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Cynthia L. Bennett v. John E. Potter

March 30, 2011

CYNTHIA L. BENNETT, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL OF THE
UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Cynthia L. Bennett works for the United States Postal Service as a mail processing equipment manager. In this action, Bennett, a white female, alleges sex and race discrimination at her workplace during 2007 and 2008. Bennett claims that her manager, Surjit Grewal, an Indian male, made disparaging remarks towards her about women on several occasions between 2007 and 2009. Bennett alleges, further, that Grewal took adverse employment actions against her because she is a woman: specifically, he did not reimburse her for her travel pay; he did not enter her correct pay level into the payroll system, resulting in underpayment; he denied her four or five opportunities to work overtime; and he delayed her receipt of a promotion. Bennett argues that Grewal's actions violated Title VII, 42 U.S.C. § 2000e, et seq. Defendant argues that the alleged incidents do not constitute adverse employment actions and that to the extent there was any disparate treatment, it was justified by legitimate, nondiscriminatory reasons. For the reasons explained herein, Defendant's motion for summary judgment is granted.

BACKGROUND

Plaintiff, Cynthia Bennett, is a white female employed by the United States Postal Service at the Chicago Metro Surface Hub. (Pl.'s Response to Def.'s 56.1(a) [35] [hereinafter "Pl.'s Resp."] ¶¶ 1-2.) Her manager until October 2009 was Surjit Grewal, an Indian male, and her supervisor was Russell Ricard, a black male. (Pl.'s 56.1(b) ¶ 1.) Plaintiff claims she was the only female mail processing mechanic under the supervision of Grewal and Ricard. (Id. ¶ 2); Defendant denies this, noting that in a related case Judge Zagel found another female held that position as well. (Def.'s Resp. to Pl.'s 56.1(b) [hereinafter "Def.'s Resp."] ¶ 2 (citing Bennett v. Porter, No. 08 C 3587, 2009 WL 3837448 (N.D. Ill. Nov. 17, 2009).)

Plaintiff alleges four adverse employment actions that she alleges were motivated both by her sex and race: delay in receipt of a promotion, payment at an incorrect level, nonpayment of travel pay, and denial of overtime opportunities.

Plaintiff first alleges that, on a date not specified, she submitted a request to Grewal and another maintenance manager, Gil Nuccio, to sit for the maintenance mechanic processing test, which would make her eligible for promotion.*fn1 (Pl.s 56.1(b) ¶ 33.) Plaintiff alleges that scheduling errors delayed her ability to sit for the test, and that she repeatedly asked Nuccio and Grewal about these errors, to which they replied, "We're working on it"; Defendant denies this portion of Plaintiff's account in its entirety. (Id. at 34; Def.'s Resp. ¶¶ 34-35.) Plaintiff contends that she sat for the August 2007 exam, and received results in September or October 2007 that showed she had been incorrectly registered for the exam. (Pl.'s 56.1(b) ¶ 35.) Plaintiff testified in her deposition that she has not been able to determine who was responsible for the registration error, though she does not believe Grewal was at fault. (Bennett Dep., Ex. 2 to Def.'s 56.1(a) at 11-15.) In December 2007, Grewal notified Plaintiff that the issue had been corrected and that she had passed the exam. (Pl.'s 56.1(b) ¶ 36.) She received her results in January 2008, and was promoted in March 2008. (Id. ¶¶ 36-37.)

After her promotion from a Level 6 Maintenance Mechanic to a Level 9 Mail Processing Equipment Manager, (Pl.'s 56.1(b) ¶ 3), Plaintiff attended an out-of-state training course in Oklahoma from May 5 to June 13, 2008. (Pl.'s Resp. ¶¶ 4-5.) Plaintiff has not received reimbursement for "travel pay" totaling $242.29, which she claims she is owed for the time she spent traveling home from Oklahoma and back during a break in her training program. (Id.) Defendant contends that Plaintiff received "all travel expenses that are allowed," and points to Postal Service regulations explaining that employees are not paid for time spent traveling home from an out-of-state assignment if that travel time does not fall during their regular work schedule. (Def.'s Resp. ¶¶ 20-21.)

On June 14, 2008, and again on July 11, 2008, Plaintiff received paychecks that were in total approximately $200 less than she was entitled to. (Pl.'s Resp. ¶¶ 6-7.) She was paid at the PS-07 level when she should have been paid at the PS-09 level. (Id.) Plaintiff notified James Frazier, Maintenance Operations Supervisor, and Grewal. (Id. ¶¶7-8.) It is not clear from the record when Plaintiff contacted Frazier, or how, but it appears from her deposition testimony and Frazier's EEO affidavit that she contacted him in person. (Bennett Deposition at 34-35; Frazier Affidavit, Ex. 4 to Def.'s 56.1(a) at 4.) Frazier corrected the mistake going forward, and referred the back pay issue to what both parties refer to as "leave control." (Pl.'s Resp. ¶ 8.) (Neither party explains what "leave control" is.) Defendant contends Plaintiff was eventually paid at the correct level for the entire time period in question, and has attached pay records that reflect payment during the period in question at the higher pay level (Def.'s 56.1(a) ¶ 9; Ex. 4 to Def.'s 56.1(a) at 8-23); Plaintiff denies this but does not offer anything in support of this denial.*fn2 (Pl.'s Resp. ¶ 9.)

On July 24, 2008, Plaintiff asked Grewal if she could work overtime on her next day off, the following weekend, to which Grewal responded that no one was supposed to work on their days off. (Pl.'s Resp. ¶ 10.) Grewal controls overtime assigned for the department, pursuant to a collective bargaining agreement that provides for assignment of overtime as needed, in order of seniority on a rotating basis. (Pl.'s 56.1(b) ¶ 8.) On August 4, 2008, Plaintiff asked Grewal why Al Pough, another employee, had been allowed to work overtime on his day off. (Pl.'s Resp. ¶ 10.) Defendant asserts that Pough's days off were Saturday and Sunday, while Plaintiff's were Thursday and Friday. (Def.'s 56.1(a) ¶ 12.) Plaintiff denies this, but offers no support for her denial. (Pl.'s Resp. ¶ 12.) Grewal explains in his EEO affidavit that, "Ms. Bennett is on a personal convenience schedule change to be off on Fri/Sat so she can go to church on Saturday, but her regular [requested days off] are Thursday/Friday." (Grewal Affidavit, Ex. 6 to Def.'s 56.1(a) at 9.) The EEO decision noted, "[d]uring the period [Pough] and [Plaintiff] occupied the same position, Mr. [Pough] worked overtime on his regular days off . . . all of which were Saturdays, a day the complainant was off for religious observance." (EEO Decision, Ex. 1 to Compl. at 13.) Plaintiff never confronts this fact in the record.

Plaintiff alleges that in denying her overtime, Grewal explained that "he wanted men there." (Pl.'s 56.1(b) ¶ 6.) Although the record lacks a direct response from Grewal as to whether he made this statement, he did state that sex played no role in his decision to award overtime, and that overtime is assigned on an as-needed basis in rotation by order of seniority. (Grewal Affidavit at 9-10.) Grewal asserted that if Pough worked overtime, it would have been because he had five years more seniority than Plaintiff and that he had different days off than Plaintiff. (Id.) As reflected in the "Maintenance Craft Seniority Listing," of the twelve maintenance craft employees at Plaintiff's work site, ten have more seniority than Plaintiff, and Pough is the sixth most senior. (Pl.'s Resp. ¶ 14.) Grewal was only asked about a single instance when Plaintiff was allegedly denied overtime, on Thursday, July 24, and he explained that "we did not need extra help that day." (Grewal Affidavit at 9.) (Plaintiff later clarified she had not actually requested to work overtime on that day. (Pl.'s Resp. ¶ 10.).) The record thus contains no specific date on which Plaintiff claims she was denied overtime but on which Al Pough or any other employee worked overtime. Plaintiff also alleges that Grewal told her "numerous times" between 2007 and 2009 that women should not be mechanics, and in July 2008 told her, "The guys don't like it that you're a mechanic and that you're showing them up." (Pl.'s 56.1(b)¶¶ 4-5.) When asked whether Grewal told Plaintiff that "people were complaining about [Plaintiff]" because she is a "White female Mechanic," he responded, "This is an untrue statement. The statement was Tour One Mechanics were complaining about Tour 3 Mechanics getting over-time." (Grewal Affidavit at 11.)

As noted, Plaintiff previously brought suit against the Postal Service alleging sexual harassment, hostile work environment, and sex and race discrimination. Bennett v. Potter, No. 08 C 3587, 2009 WL 3837448 (N.D. Ill. Nov. 17, 2009). Those allegations involved conduct between November 2006 and May 2007 by Grewal, Ricard, and a co-worker, Doug Rattin. Id. at *1. Judge Zagel concluded that the comments Bennett alleged, including Grewal's statement that "women shouldn't be working on machines," did support an inference they were based on Bennett's sex. Id. at *3. That conduct was not "particularly frequent," however, and did not support a hostile work environment claim when viewed in light of Bennett's receipt of two promotions during the same time period. Grewal's promotion of another female, Judith Rodgers. Id. at *4-5. "[T]here is no legal right to sue your employer because your supervisor is a jerk," the court concluded. Id. at *5. The court also found the Faragher/Ellerth defense applicable because Bennett suffered no "tangible employment action," Rattin ceased his offensive conduct immediately after receiving the EEO complaint, and Bennett did not argue that any of Defendant's policies were inadequate. Id.

The court next turned to her discrimination claims, which rested on her allegations that she (1) received a delayed promotion*fn3 , (2) was initially denied a tool box, and (3) was denied a requested change in shift assignment. Those allegations could not support a discrimination claim, the court concluded, because being denied a tool box or a shift change did not constitute "adverse employment actions," and the delay in promoting her did not reflect sex discrimination because the promotion she did not receive was awarded to another woman. Id. at *7.Finally, the court concluded that Bennett's race discrimination claim failed because there was no evidence that she had requested the work assignment that she claims was denied her, nor any evidence of pretext in the decision to award that position to her black colleagues. Id.

Plaintiff filed an Equal Employment Opportunity complaint with the Postal Service regarding her current allegations on September 5, 2008. (Compl., Ex. A ("EEO Decision") at 1.) The EEO concluded Bennett's allegation that she was paid at a lower level from June 14 to 20 and her allegation related to travel pay should be dismissed for mootness because both issues had been corrected, and she had received all pay due. (Id. at 2.) The EEO dismissed Plaintiff's complaint alleging that she had been denied the opportunity to work overtime because she failed to show any injury based on these allegations--in other words, she did not demonstrate she was ever actually denied the opportunity to work overtime. (Id. at 3.) "As stated by . . . [Bennett] herself, the issue is not about Mr. Grewal denying her any overtime, but is about her discovery that things were not as Mr. Grewal said they were [, regarding employees working overtime on their days off.]" (Id.) The agency's decision to deny Plaintiff's claim gave her the right to file the instant lawsuit within 90 days of its February 10, 2009 decision. (Id. at 15-16.) Plaintiff timely filed her complaint in this case on April 14, 2009.

DISCUSSION

Plaintiff brings two claims: disparate treatment based on race and sex. ...


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