Camper v. Potter, No. 2:2007cv02251 - Document 100 (D. Ariz. 2010)
Court Description: ORDER denying 90 Motion for Summary Judgment. (See document for further details). Signed by Judge G Murray Snow on 4/29/10.(LAD)
Download PDF
<![CDATA[
Camper v. Potter Doc. 100 1 WO 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Mark A. Camper, Plaintiff, 12 13 ) ) ) ) ) ) ) ) ) ) ) ) vs. 14 John E. Potter, Postmaster General, 15 Defendant. 16 No. CV-07-2251-PHX-GMS ORDER 17 18 Pending before the Court is the Motion for Summary Judgment (Dkt. # 90) filed by 19 Defendant John Potter, the Postmaster General of the United States. For the following 20 reasons, the Court denies the Motion.1 BACKGROUND 21 22 Throughout the time period relevant to the instant action, Plaintiff Mark A. Camper 23 (“Camper”) was employed as a Supervisor at the West Valley Postal Facility for the United 24 States Postal Service (“USPS”). Camper worked the Tour 2 shift (i.e., the day shift) with 25 Sundays and Mondays as his days off. 26 27 28 1 The parties’ requests for oral argument are denied as the Court has determined that oral argument will not aid in its decision. See Lake at Las Vegas Investors Group, Inc. v. Pac. Malibu Dev., 933 F.2d 724, 729 (9th Cir. 1991). Dockets.Justia.com 1 In late 2005 and early 2006, USPS began a nationwide reorganization of its facilities 2 across the United States. As part of this reorganization, the West Valley Facility created three 3 new Tour 2 supervisor positions at pay grade “17.” Camper applied for one of the newly 4 created Level-17 positions, but was denied consideration due to a mistake in his application. 5 (See Dkt. ## 91 at ¶ 12.) When Camper learned that he was not being considered for the 6 promotion, he filed an informal Equal Employment Opportunity (“EEO”) complaint against 7 USPS, claiming discrimination on the basis of age, race, and religion. (Dkt. # 97 at 1.) 8 Specifically, Camper alleged that USPS discriminated against him by incorrectly processing 9 his application. (Id.) 10 After Camper filed his EEO complaint, USPS permitted him to reapply for the Level- 11 17 position. Nevertheless, on June 12, 2006, USPS informed Camper that he was not among 12 one of the three individuals selected for promotion at that time. Shortly thereafter, Dave 13 Carey and Dave Dilettoso, two upper-level managers at the West Valley Facility, decided to 14 adjust employee work schedules to accommodate personnel changes that resulted from 15 USPS’s nationwide reorganization. Specifically, Carey and Dilettoso determined that the 16 reorganization would require at least three supervisors to be on duty during each Tour 2 shift, 17 with the exception of Mondays, which only required two supervisors because it was the 18 slowest day of the week. (Dkt. # 91 at ¶¶ 23–24.) New schedules were then implemented on 19 July 11, 2006. Based on the record, it appears that the West Valley Facility had six 20 supervisors at that time: Ed Baker, Tim Felton, Richard Teets, Gary Platsky, Kristi Becker, 21 and Camper. (See Dkt # 96, Ex. 1 at 2061.) Of these, Baker, Felton, and Platsky, who had 22 been promoted to Level-17 supervisors, were assigned their work schedules based on 23 seniority. The remaining supervisors were then allegedly assigned schedules so that each 24 work day had no less than three supervisors. (See id.) And while USPS asserts that Camper’s 25 days off were changed from Sunday/Monday to Monday/Tuesday to ensure that each work 26 day had three supervisors, Camper presents evidence that the change was unnecessary. 27 According to Camper, USPS required him to work Sundays, even though there were already 28 four other supervisors assigned to work that day. (See Dkt. # 96, Ex. 1 at 2061.) He also -2- 1 presents evidence that there would have been at least three supervisors scheduled each work 2 day, including Mondays which only required two supervisors, even if Camper had been 3 permitted to retain his old schedule. 4 Camper was upset with his new work schedule because he operated an independent 5 real estate business on Sundays. He therefore filed the instant action, alleging that USPS 6 discriminated and retaliated against him for bringing his EEO complaint. Camper raised three 7 claims in his Complaint: (1) employment discrimination pursuant to Title VII of the Civil 8 Rights Act of 1961, 42 U.S.C. § 2000e-16 (“Title VII”); (2) retaliation under Title VII;2 and 9 (3) breach of a settlement agreement. (Dkt. # 87.) On August 26, 2009, the Court dismissed 10 Camper’s discrimination and breach of settlement claims. (Dkt. # 84.). USPS now moves for 11 summary judgment on Camper’s retaliation claim. (Dkt. # 90.) LEGAL STANDARD 12 13 Summary judgment is appropriate if the evidence, viewed in the light most favorable 14 to the nonmoving party, shows “that there is no genuine issue as to any material fact and that 15 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Substantive law 16 determines which facts are material, and “[o]nly disputes over facts that might affect the 17 outcome of the suit under the governing law will properly preclude the entry of summary 18 judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Jesinger v. Nev. 19 Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). The dispute must also be genuine; that 20 is, the evidence must be “such that a reasonable jury could return a verdict for the nonmoving 21 party.” Anderson, 477 U.S. at 248. DISCUSSION 22 23 To establish a prima facie case of retaliation under Title VII, a plaintiff must show (1) 24 that he or she engaged in protected activity, (2) a materially adverse action, and (3) a causal 25 connection between the two. Surrell v. Cal. Water Serv., 518 F.3d 1097, 1108 (9th Cir. 26 2 27 28 Camper’s claim is limited to the allegation that he was retaliated against when USPS changed his work schedule. He does not contend that he was retaliated against when he was passed up for the Level-17 promotion. (See generally Dkt. ## 87; 97.) -3- 1 2008). At the prima facie stage, the causal link is construed broadly; a plaintiff must merely 2 “prove that the protected activity and the negative employment action are not completely 3 unrelated.” See Poland v. Chertoff, 494 F.3d 1174, 1181 n. 2 (9th Cir. 2007). Once the prima 4 facie case is shown, the employer may articulate some legitimate, non-retaliatory reason for 5 the challenged action. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464–65 (citations 6 omitted). Should the employer carry this burden, the plaintiff must then show that the stated 7 reason was not the employer’s true reason, but was a mere pretext for retaliation. Id. 8 (citations omitted). 9 I. Prima Facie Case 10 Camper has set forth a prima facie case of retaliation. First, Camper engaged in a 11 protected activity when he filed his EEO complaint. It further appears that he suffered an 12 adverse employment action when USPS decided to change his days off from Sunday/Monday 13 to Monday/Tuesday. See Ray v. Henderson, 217 F.3d 1234, 1243, (9th Cir. 2000) (holding 14 that a “changes in work schedules” constitute adverse employment actions); see also Moore 15 v. King County, 2005 WL 289065, at *5 (W.D. Wash. Oct. 31, 2005) (noting “as a matter of 16 law” that assigning an employee to a “new shift” is an adverse employment action in the 17 context of a Title VII retaliation claim). Camper has also presented sufficient evidence of a 18 causal link between the EEO complaint and USPS’s decision to switch his days off. Camper 19 filed his EEO complaint on April 18, 2006. Less than three months later, USPS implemented 20 the schedule change. The proximity of these events is sufficient, given the circumstances of 21 this case, for a reasonable factfinder to determine that the EEO complaint caused the change 22 to Camper’s schedule. See Coszalter v. City of Salem, 320 F.3d 968, 977 (9th Cir. 2003) 23 (“Depending on the circumstances, three to eight months is easily within a time range that 24 can support an inference of retaliation.”); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 25 1065 (9th Cir. 2002) (holding that causation may be inferred from timing alone where an 26 adverse employment action follows on the heels of the protected activity); Hernandez v. 27 Arizona, ___ F. Supp.2d ___, 2010 WL 1193727, at *4 (D. Ariz. 2010) (inferring causation 28 under Title VII based on timing alone). And while USPS brings forth evidence that the -4- 1 decision to change Camper’s scheduled was caused by USPS’s nationwide reorganization, 2 the parties’ dispute over causation is a factual question for the jury to answer. 3 II. Legitimate Non-Retaliatory Reason 4 Because Camper has set forth a prima facie case, the burden of production now shifts 5 to USPS to articulate a legitimate, non-retaliatory reason for adjusting Camper’s work 6 schedule. See Steiner, 25 F.3d at 1464–65. To meet this burden, “the employer need only 7 produce admissible evidence which would allow the trier of fact rationally to conclude that 8 the employment decision had not been motivated by [retaliatory] animus.” See Texas Dep't 9 of Cmty. Affairs v. Burdine, 450 U.S. 248, 257 (1981); see also Steiner, 25 F.3d at 1464–65 10 (applying this standard in the context of a retaliation claim). 11 USPS has arguably offered evidence showing that the decision to switch Camper’s 12 days off was motivated by a legitimate non-retaliatory reason. The nationwide reorganization 13 for USPS required the creation of new management positions at the West Valley Facility. As 14 a result of the reorganization, the three newly-created Level-17 supervisors had preference 15 over Camper in setting their schedules. See Ballard v. Portland General Electric Co., 293 16 F. App’x 448, 450 (9th Cir. 2008) (finding that an employer’s decision to grant priority in 17 scheduling based on seniority constitutes a legitimate non-retaliatory reason). According to 18 USPS, it selected Camper to work on Sunday because it needed at least three supervisors to 19 work on that day. (Dkt. # 91 at ¶¶ 23–24.) Relying on this evidence, a reasonable jury could 20 rationally conclude that USPS had a legitimate non-retaliatory reason for changing Camper’s 21 work schedule. See Burdine, 450 U.S. at 257. This shifts the burden of production back to 22 Camper to show pretext. 23 III. Pretext 24 Camper carries his burden of showing that USPS’s explanation for shifting Camper’s 25 days off may be pretext for retaliation. To demonstrate that the employer’s reason may be 26 pretextual, a plaintiff may show either that a retaliatory reason “more likely motivated the 27 employer” or that the employer’s proffered explanation is “unworthy of credence.” Chuang 28 v. Univ. of Cal. Davis, 225 F.3d 1115, 1123–24 (9th Cir. 2000) (citing Burdine, 450 U.S. at -5- 1 256); see also Gray v. Masterfoods USA, 304 F. App’x. 611, 612 (9th Cir. 2008) (applying 2 the same test for pretext in a retaliation claim as that applied in discrimination claims). In this 3 Circuit, pretext can be proven with either direct evidence or circumstantial evidence, but 4 where the plaintiff relies on circumstantial evidence to prove pretext, that evidence must be 5 “specific” and “substantial” to survive summary judgment. Stegall v. Citadel Broad. Co., 350 6 F.3d 1061, 1066 (2003) (citing Manatt v. Bank of Am., 339 F.3d 792, 801 (9th Cir. 2003)). 7 Evidence of pretext is both specific and substantial when it is “sufficient to raise a genuine 8 issue of material fact under Rule 56(c).” Cornwell v. Electra Cent. Credit Union, 439 F.3d 9 1018, 1029 (9th Cir. 2006). 10 Though Camper does not present direct evidence of a retaliatory motive, he does bring 11 forth sufficient evidence to allow a reasonable jury to find that USPS’s reason for changing 12 Camper’s days off is “unworthy of credence.” See Chuang, 225 F.3d at 1123–24. USPS 13 explains that it required Camper to work Sundays because the West Valley Facility needed 14 at least three supervisors to work Sundays. Nevertheless, Camper presents evidence that four 15 other supervisors regularly worked that day. (See Dkt # 96, Ex. 1 at 2061.) Before USPS 16 made the schedule change in July 2006, it appears that the following four supervisors worked 17 on Sundays: Baker, Teets, Platsky, and Becker. (Id. at 2060.) After the schedule change, five 18 supervisors were required to work on Sundays: Teets, Platsky, Becker, Felton, and Camper. 19 (Id. at 2061.) If Camper had been permitted to continue having Sundays and Mondays off, 20 USPS still would have had at least three supervisors on duty every day of the week, including 21 Sunday and Mondays. (See id.) Given this evidence, it seems illogical that USPS needed 22 Camper to work Sundays in order to have at least three supervisors on duty. 23 It is further unclear why the nationwide reorganization required any schedule change 24 at all since it appears that USPS had at least three supervisors working every day of the week, 25 even prior to the reorganization. (Id. at 2060.) To the extent it was necessary to adjust 26 Baker’s, Platsky’s, and Teets’s schedules to ensure that the newly promoted Level-17 27 Supervisors worked specific shifts, there still would have been at least three supervisors 28 available on each day of the week, even if the non-promoted supervisors, such as Camper, -6- 1 had been permitted to retain their old work schedules. (See id.) And, while USPS contends 2 that it had a legitimate business reason for setting schedules the way it did, that reason 3 appears to be contradicted by the record. Where USPS scheduled five supervisors on 4 Sundays and four on Mondays, the lightest days of the week, it scheduled only three 5 supervisors on Tuesdays, the busiest of the week. (Dkt. # 96 at 172.) 6 In its reply, USPS appears to assert that Camper’s pretext argument fails because the 7 requisite number of supervisors was only available on Sundays when 204(b)s, or temporary 8 supervisors, are included in the pool of available supervisors. (Dkt. # 99 at 8–9.) According 9 to USPS, these 204(b)s cannot be considered part of the pool because they can only fill-in 10 for actual supervisors on a short-term basis. (Id.) USPS, however, does not present any 11 evidence, let alone a citation to the record, to refute Camper’s argument that the supervisory 12 pool included at least six actual supervisors. See Indep. Towers of Wash. v. Washington, 350 13 F.3d 925, 929 (9th Cir. 2003) (“‘[J]udges are not like pigs, hunting for truffles buried in 14 briefs.’”) (citation omitted). USPS further fails to identify which of the group, in any, are 15 204(b)s. See id. Accordingly, there are issues of fact with respect to whether the utilization 16 of 204(b) supervisors is necessary to Camper’s argument that a sufficient number of 17 supervisors worked Sundays to allow him to have that day off. Further, even if the 204(b)s 18 are essential to Camper’s arguments, USPS has not presented any legal or factual authority 19 to support its assertion that 204(b) supervisors cannot be considered as available supervisors. 20 (See Dkt. # 96 Ex. 4 at 62.) USPS also raises this unsupported argument for the first time in 21 its Reply, depriving Camper of the opportunity to respond to it. 22 The Court also rejects USPS’s argument that Camper fails to bring forth more than 23 a “mere refutation” of USPS’s allegedly non-retaliatory reason for switching Camper’s 24 schedule. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2002) 25 (noting that pretext “must consist of more than a mere refutation of the employer’s legitimate 26 reason and a mere assertion that the [retaliatory] reason” was the cause of the adverse 27 employment action) (internal quotation and brackets omitted). Here, Camper presents 28 evidence suggesting that the schedule change was entirely unnecessary to achieve USPS’s -7- 1 proffered purpose—to have three supervisors working every day of the week. This is 2 sufficient for a reasonable factfinder to determine that USPS’s reason for changing Camper’s 3 schedule is implausible, weak, or otherwise unworthy of credence. See Henandez, 2010 WL 4 1193727, at *9 (noting that a plaintiff may satisfy the unworthy of credence prong by 5 pointing to “specific inconsistencies, contradictions, implausibilities, or weaknesses in the 6 employer’s explanation”) (citing Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 7 1037 (9th Cir. 2005) and Burch v. Regents of the Univ. of Cal., 433 F. Supp.2d 1110, 1130 8 (E.D. Cal. 2006)). This evidence also is sufficient for the fact-finder to conclude that USPS 9 did not “honestly believe[] its reason for its actions.” See Villiarimo, 281 F.3d at 1063 10 (noting that an employer’s reason for making an adverse employment decision is not pretext 11 if the employer had an honest belief that the decision was justified). And while Camper 12 “must show both that [USPS’s] reason was false, and that [retaliation] was the real reason” 13 for the schedule change, “[t]he factfinder’s disbelief of the reasons put forward by [USPS] 14 . . . may, together with the elements of the prima facie case, suffice to show intentional 15 [retaliation].” See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 512 n.4 (1993). 16 17 18 19 20 21 CONCLUSION Having concluded that there are genuine issues of material fact with respect to Camper’s Title VII claim, IT IS THEREFORE ORDERED that USPS’s Motion for Summary Judgment (Dkt. # 90) is DENIED. DATED this 29th day of April, 2010. 22 23 24 25 26 27 28 -8-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
