United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge
Bailey, a mail carrier at the Wood Dale Post Office, filed
this lawsuit in October 2014 against the Postal Service,
alleging race discrimination, gender discrimination, and
retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 et seq. R. 1; R.
Bailey, who is male and African-American, claims that since
2009, he has faced harsher discipline than those similarly
situated to him of a different race or gender. Id.
He also claims he was retaliated against for complaining of
this alleged discrimination. Id. The Postal Service
seeks summary judgment on all of Bailey's claims. R. 37.
For the reasons discussed below, the Postal Service's
motion is granted in part and denied in part.
deciding the Postal Service's motion for summary
judgment, the Court views the evidence in the light most
favorable to the non-moving party, Bailey. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). Before summarizing the facts of this case,
the Court first addresses two arguments raised by the Postal
Service: (1) that Bailey's response to the Postal
Service's statement of material facts violated Local Rule
56.1, and (2) that Bailey impermissibly attached the
affidavit of Cecil Watson to his response to the Postal
Service's statement of material facts. R. 50, Def.'s
Reply Br. at 2-4.
Local Rule 56.1
the Postal Service asserts that Bailey's response to its
statement of material facts failed to comply with Local Rule
56.1. Def.'s Reply Br. at 2. Local Rule 56.1 governs
motions for summary judgment in this District. It requires
the moving party to provide “a statement of material
facts as to which the moving party contends there is no
genuine issue.” L.R. 56.1(a)(3). The non-moving party
is then required to respond to “each numbered paragraph
in the moving party's statement, including, in the case
of any disagreement, specific references to the affidavits,
parts of the record, and other supporting materials relied
upon.” L.R. 56.1(b)(3)(B). The non-moving party must
“admit or deny each factual statement proffered by the
[moving party] and … designate with specificity and
particularity those material facts believed to establish a
genuine dispute for trial.” Greer v. Bd. of Educ.
of the City of Chi., Ill., 267 F.3d 723, 727 (7th Cir.
2001). All uncontroverted material facts in the moving
party's statement are deemed admitted. L.R.
56.1(b)(3)(C). If the non-moving party wishes to present
additional facts, then it must do so in its own
“statement, consisting of short numbered
paragraphs” supported by citations to the record.
Id. Complying with Local Rule 56.1 is not a mere
technicality. Indeed, the Rule takes on added importance in a
case, like this one, with many events underlying the
discrimination claims, an expansive volume of discovery, and
an extensive factual back-and-forth; sorting through the
myriad factual assertions would be extremely difficult
without substantial adherence to Local Rule 56.1.
Postal Service asserts that Bailey failed to comply with this
Rule in several ways. First, in multiple instances, Bailey
supposedly claims a fact is in dispute when he simply wishes
to add additional information. Def.'s Reply Br. at 2. The
Postal Service points to Bailey's responses to DSOF
¶¶ 10-13, 19, 22, 34, 41, 44, 47, 57-58, and
Id. In one instance, the Postal Service is correct.
In response to Paragraph 11, Bailey does not actually dispute
any of the facts described in the Postal Service's
statement, which relate to an incident that took place on
September 1, 2009; rather, Bailey agrees to those facts and
then adds new, unrelated facts about the hours he worked that
day. Pl.'s Resp. to DSOF ¶ 11. Bailey's hours
are not referenced in the Postal Service's statement. If
Bailey wanted to add these additional facts, then he needed
to do so in his own statement, not in his response to the
Postal Service's statement. L.R. 56.1(b)(3)(B) & (C);
Ammons v. Aramark Uniform Svcs., Inc., 368
F.3d 809, 817 (7th Cir. 2004) (noting that “several of
[plaintiff's] responses … admit to the allegation
but then add other additional facts[;] [t]hese facts should
have been included in a separate statement”);
Johnson v. Cnty. of Cook, 2012 WL 2905485, at *12
(N.D. Ill. July 16, 2012) (“It is inappropriate for a
non-movant to include additional facts, meaning facts
extraneous to the substance of the paragraph to which the
non-movant is responding, in a Local Rule 56.1(b)(3)(B)
response. Rather, Local Rule 56.1 requires …
a litigant seeking to oppose a motion for summary judgment
[to] file a response that contains a separate statement under
Local Rule 56.1(b)(3)(C) … .” (citations and
quotation marks omitted)). Paragraph 11 is deemed admitted.
other paragraphs, however, Bailey does seem to be genuinely
disputing some of the facts contained in those paragraphs.
For example, in Paragraph 10, the Postal Service states that
“Bailey filed his initial complaint in this lawsuit on
October 7, 2014, nearly a year after the final denial.”
DSOF ¶ 10. Bailey broadly denies this statement.
Pl.'s Resp. to DSOF ¶ 10. But Bailey goes on to
admit that he filed his complaint on October 7, 2014.
Id. He then adds additional facts about the dates
his EEOC appeals were decided. Id. Although the
Postal Service asserts that Bailey agrees with the entirety
of its statement, the additional dates Bailey provided do
seem to dispute the latter part of the Postal Service's
statement, namely, that Bailey filed his complaint in this
case a year after the final denial. Sure, it would have been
better for Bailey to admit to the date he filed this ¶
11. But as already explained, if Bailey wanted to add these
additional facts, the proper place to do so was in his own
statement. L.R. 56.1(b)(3)(B) & (C). complaint and then
to dispute only the second half of the Postal Service's
statement, but his response does not warrant automatic
admission of the entirety of the Postal Service's
Court reaches a similar conclusion on the remaining
paragraphs. To be sure, there are times where Bailey disputes
some of the Postal Service's asserted facts in a
particular paragraph, but then goes on to impermissibly add
additional, unrelated facts in his response. See
Pl.'s Resp. to DSOF ¶ 12 (last sentence challenging
Postal Service's Exhibit 8); id. ¶ 13 (last
two sentences related to Bailey's pay for September 1,
2009); id. ¶ 60 (last four sentences discussing
discipline issued). In these instances, the Court disregards
the additional facts, and takes into account only
Bailey's actual challenge to the Postal Service's
statement. Ciomber v. Coop. Plus, Inc., 527 F.3d
635, 643-44 (7th Cir. 2008) (affirming the district
court's refusal to consider additional facts included in
the non-movant's Local Rule 56.1(b)(3)(B) response);
see also Eason v. Nolan, 416 Fed.App'x 569,
569-70 (7th Cir. 2011); Bolden v. Dart, 2013 WL
3819638, at *2 (N.D. Ill. July 23, 2013).
Postal Service next claims that several of Bailey's other
responses violate Local Rule 56.1 by admitting to specific
facts in a statement and then disputing facts not in the
statement. Def.'s Reply Br. at 3. The Postal Service
points to DSOF ¶¶ 14, 17, 20, 23, and 33.
Id. These paragraphs are all similar. In all but one
of the paragraphs, the Postal Service asserts that Bailey
failed to apologize or to accept responsibility for certain
conduct that resulted in Bailey receiving discipline. In his
responses, Bailey admits that he did not apologize or accept
responsibility, but he then adds that he disputes the
statement's intimation that he engaged in the allegedly
improper conduct. E.g., Pl.'s Resp. to DSOF
¶ 33 (“33. Bailey did not apologize or accept
responsibility for leaving … mail in the wrong place
… [Response]: Undisputed as to ‘Bailey never
apologized' and as to ‘nor did he accept
responsibility, ' only. … Plaintiff disputes the
intimation in Paragraph 33 that he was responsible for
leaving mail in the wrong place, and denies the
same.”). The only paragraph that is slightly different
is Paragraph 17, but there too Bailey challenges the
statement's implied assertion. Pl.'s Resp. to DSOF
¶ 17. So, all of Bailey's responses are merely a
denial of the unstated factual implications underlying the
Postal Service's statements, and there is nothing wrong
with laying down a cautious marker that Bailey disagrees with
the unstated implications. These paragraphs are properly in
the Postal Service argues that in certain instances Bailey
purports to dispute facts related to what actually happened
by adding statements about what should have
happened. Def.'s Reply Br. at 3. The Postal Service
points to DSOF ¶¶ 25, 27-28, 36-37, 48, and 69.
Id. The Postal Service is correct. In each of
Bailey's responses here, Bailey seeks to add additional
facts about how a particular supervisor should have acted
under the alleged circumstances. These additional facts are
argumentative and improper in a Rule 56.1 statement. De
v. City of Chi., 912 F.Supp. 2d. 709, 713 (N.D. Ill.
2012) (“[A] Local rule 56.1(b)(3)(B) response [is] not
the proper province of argumentative or conclusory
allegations.”) They will be disregarded. Johnson v.
Trans Union, LLC, 2012 WL 983793, at *2 (N.D. Ill. March
22, 2012) (“‘It is inappropriate to make legal
arguments in a Rule 56.1 statement' or response.”
(quoting Judson Atkinson Candies, Inc. v.
Latini-Hohberger Dhimantec, 529 F.3d 371, 382 n.2 (7th
Cir. 2008))). The only slightly different response is to
Paragraph 25; there Bailey also adds additional facts that he
later uses to support his argument for why his supervisor
acted improperly. Pl.'s Resp. to DSOF ¶ 25. Because
this suffers from the same problems discussed previously, the
Court will also disregard these argumentative statements and
the Postal Service argues that Bailey violated Local Rule
56.1 in his response to DSOF ¶¶ 15 and 68 by
claiming to dispute the facts alleged without citing to any
evidence in the record. Def.'s Reply Br. at 3; L.R.
56.1(b)(3)(B). The Court agrees that Bailey fails to include
a citation to any record evidence in his response to
Paragraph 68, as required under Local Rule 56.1(b)(3)(B), so
the Postal Service's statement in that paragraph is
deemed admitted. FTC v. Bay Area Bus. Council, Inc.,
423 F.3d 627, 634 (7th Cir. 2005); Smith v. Lamz,
321 F.3d 680, 682-83 (7th Cir. 2003) (“[A] mere
disagreement with the movant's asserted facts is
inadequate [under Local Rule 56.1] if made without reference
to specific supporting material.”). But the Court
disagrees that Bailey fell short in Paragraph 15. Although
Bailey does not include any record citations in his response
to that particular paragraph, he does refer specifically to
certain of his prior responses. See Pl.'s Resp.
to DSOF ¶ 15 (referring to “Plaintiff's
Response in Paragraphs 11-14, herein”). In those prior
responses, Bailey includes specific record citations.
Id. ¶¶ 11-14. This response is acceptable.
Cecil Watson Affidavit
Postal Service also challenges Bailey's reliance on the
affidavit of Cecil Watson, a former Postal Service
supervisor. Def.'s Reply Br. at 4. Bailey attaches
Watson's affidavit to his response to the Postal
Service's statement of facts. See R. 47, Exh. C,
Watson Aff. The affidavit does not, however, say anything
specifically about the incidents at issue in this case.
Instead, Watson's affidavit describes his understanding
of several post office policies and procedures based on his
experience as a supervisor. See generally Watson
Aff. The problem is that the subject of Watson's
potential testimony was too vaguely and too broadly disclosed
by Bailey during discovery. First and foremost, Watson's
testimony likely qualifies as expert testimony under Federal
Rule of Evidence 702 (he is an expert based on his
“experience”), which requires a disclosure under
Rule 26(a)(2). At a minimum, Bailey should have provided
“a summary of the facts and opinions to which [Watson]
is expected to testify, ” Fed.R.Civ.P. 26(a)(2)(C)(ii),
which he did not (at least there is nothing in the record
saying that he did). Even if Watson should not be considered
a Rule 702 expert, still Bailey did not sufficiently disclose
the subjects of Watson's testimony. Specifically, in an
interrogatory response, Bailey merely indicated that Watson
had “knowledge of the facts” and “knowledge
of Postal Policies and Regulations.” R. 39, Exh. 44,
Pl.'s Third Resp. to Def.'s Interrog. at 11. This is
not a proper disclosure of the “subjects of [the]
information” that the witness had under Rule
26(a)(1)(A)(i), which Bailey (and every litigant) has an
ongoing duty to supplement during discovery. It would have
been one thing if Bailey had identified, even generally, what
policies and regulations Watson had knowledge of, but Bailey
did not do that. So the Postal Service was unfairly surprised
by Watson's affidavit. Bailey did not front this issue in
his response brief, nor did he seek a sur-reply to explain
why reliance on Watson's affidavit was permissible after
the Postal Service attacked it in the defense reply brief.
Because Bailey failed to properly disclose his intended
reliance on Watson, Watson's affidavit will be
disregarded. With these issues now addressed, the Court turns
to the facts.
Bailey's Employment at the Wood Dale Post Office
Bailey is an African-American male. DSOF ¶
From 1998 through November 2013, Bailey was employed by the
Postal Service as a part-time flexible letter carrier (or,
PTF-carrier for short) at the Wood Dale Post Office. DSOF
¶ 1; R. 39, Exh. 1, Bailey Dep. 10:12-11:24. In November
2013, Bailey was converted to a full-time letter carrier, a
position he still holds today. DSOF ¶ 3; Bailey Dep.
postal carriers are generally assigned to regular work
schedules of less than forty hours per service
week; they must also be available to work
flexible hours as assigned by the Postal Service. DSOF ¶
2; Bailey Dep. 12:9-11 (“A part-time letter carrier is
… only guaranteed two hours … .”); R. 39,
Exh. 2, Union Contract at 007204. Full-time carriers, by
contrast, are assigned to work schedules of at least five
eight-hour days per service week. DSOF ¶ 3; Union
Contract at 007204. See also Bailey Dep. 12:5-13
(“A. A full-time letter carrier is guaranteed 40 hours.
A part-time letter carrier is not[.]”). Part-time
carriers can bid to temporarily hold-down a full-time
assignment, which is vacant either because the regular
carrier is “on leave or otherwise unavailable to work
for five or more days.” R. 47, Exh. B, The Joint
Contract Administration Manual (JCAM) Art. 41.2B.3-B.5 at
008018 (listing “part-time flexible carriers” as
a type of carrier that “may … opt for hold-down
assignments”). If a PTF-carrier's bid is
successful, and the carrier is assigned to a temporary,
full-time, hold-down assignment, then that carrier is
entitled to assume the full-time schedule for that
assignment. Pl.'s Resp. to DSOF ¶ 2; JCAM Art.
41.2B.3-B.5 at 008024 (“Employees on hold-downs are
entitled to work the regularly scheduled days and the daily
hours of duty of the assignment[.] (emphasis in original
omitted)); R. 47, Exh. A, Collins 2015 Dep. 116:16-117:5
(“[a] PTF … on the Hold-Down Assignment …
[is] holding down assignments just like a regular would
normally do”). In February 2011, Bailey was temporarily
assigned to Carrier Route 4, a vacant full-time assignment.
Pl.'s Suppl. Resp. to Def.'s Interrog. at 7; R. 47,
Exh. D, Bailey Ltr. to Postmaster General at 007160; R. 48,
Exh. 3, Collins 2012 EEO Dep. 10:3-5; Am. Compl. ¶ 10.
working at the Wood Dale Post Office, and in particular,
while working Carrier Route 4, Bailey was supervised by Kusum
Puri and Marcus Collins. DSOF ¶¶ 7-8; R. 48, Exh.
3, Collins 2012 EEO Dep. 10:1-5; R. 39, Exh. 13, Puri 2011
EEO Aff. ¶ A7; Am. Compl. ¶ 12. Kusum Puri is
female and of Asian descent. Puri 2011 EEO Aff. ¶¶
A3, A5. From May 2007 to November 2012, Puri worked as an
“Officer in Charge and Supervisor of Customer
Services.” DSOF ¶ 7; R. 39, Exh. 4, Puri 2014 EEO
Decl. ¶ 1. In November 2012, she became Postmaster of
the Wood Dale Post Office. DSOF ¶ 7, Puri 2014 EEO Decl.
¶ 1. Collins is male and African-American. DSOF ¶
8; R. 39, Exh. 5, Collins 2013 EEO Decl. ¶ 2. He has
worked as a full-time letter carrier at the Wood Dale Post
Office for 20 years. Collins 2013 EEO Decl. ¶ 1. From
around 2005 or 2006 until 2013 or 2014, Collins held a
temporary supervisory position: “Acting Supervisor of
Customer Service.” PSOF ¶ 33; DSOF ¶ 8;
Collins 2013 EEO Decl. ¶ 1. While in that role, Collins
was Bailey's immediate supervisor. Collins 2013 EEO Decl.
¶ 1. Both Collins and Puri have characterized Bailey as
“a very good Carrier, ” and “the best
carrier on this particular route [Route 4].” R. 48,
Exh. 2, Collins 2011 EEO Aff. ¶ A12; Puri 2011 EEO Aff.
¶ A7 (“[Bailey] is a very good and productive
Carrier on his route”); PSOF ¶ 3.
throughout his career, Bailey has been disciplined several
times, which has included several “working
suspensions.” DSOF ¶ 4. This means the employee
continues to work and to collect his usual pay during the
term of suspension. Id.; Bailey Dep. 18:3-19:4; R.
48, Exh. 1, JCAM Art. 16.1 at 007907 (“Employees issued
… suspensions of fourteen days or less will remain on
duty during the term of the suspension with no loss of
pay.”). Working suspensions are still considered to be
“of the same degree of seriousness” as time-off
suspensions; they may also be considered in future
disciplinary actions. Id.; R. 39, Exh. 8, 9/18/09
Notice of Suspension at 006032.
Postal Service has certain policies to help guide a
supervisor when issuing discipline. Article 16.1 of the Joint
Contract Administration Manualinstructs supervisors to follow
the “Just Cause Principle, ” which
“requires a fair and provable justification for
discipline.” PSOF ¶ 2; JCAM Art. 16.1 at 007903.
This provision outlines several basic factors for a
supervisor to consider when issuing discipline, including
whether there is a rule on point, whether that rule is
reasonable and consistently enforced, whether a thorough
investigation was completed, whether the severity of the
discipline reasonably relates to the infraction and the
employee's disciplinary record, and whether the
discipline was issued in a timely manner. JCAM Art. 16.1 at
007903-7904; PSOF ¶ 2. Supervisors are also instructed
to use, generally speaking, a progressive discipline system:
“for most offenses[, ] [supervisors] must issue
discipline in a ‘progressive' fashion, issuing
lesser discipline (e.g., a letter of warning) for a first
offense and a pattern of increasingly severe discipline for
succeeding offenses (e.g., short suspension, long suspension,
discharge).” JCAM Art. 16.1 at 007904.
carrier is disciplined, then that carrier may challenge the
discipline by filing a grievance. PSOF ¶ 28; R. 47, Exh.
I, Puri 2015 Dep. 17:8-11. During the first step of the
grievance process, informal Step A, the supervisor who issued
the discipline independently reviews the discipline and
decides whether to reduce it. PSOF ¶ 28; Puri 2015 Dep.
17:20-18:4. During the second step of the grievance process,
Step B, the discipline is reviewed by the postmaster. PSOF
¶ 28; Puri 2015 Dep. 18:5-13. The postmaster meets with
the letter carriers' union president, and then decides
whether to keep the employee's discipline the same or
reduce it. Puri 2015 Dep. 18:5-11. If the employee disagrees
with the postmaster's decision, then the matter is sent
to the Dispute Resolution Team. PSOF ¶ 29; Puri 2015
Dep. 19:24-20:13. The Dispute Resolution Team may choose to
reduce or even to drop the discipline; it may also decide
whether the discipline should stay in the employee's file
and for how long. PSOF ¶ 29; Puri 2015 Dep. 20:14-21:7.
time Bailey has been disciplined by the Postal Service, he
has filed a grievance. DSOF ¶ 6; Bailey Dep. 86:14-87:6.
Since at least 2009, he has also filed a corresponding EEO
complaint. DSOF ¶ 6; Bailey Dep. 86:25-87:10. Five of
Bailey's EEO complaints, and the disciplinary actions
discussed within them, are relevant to this case. DSOF ¶
Bailey's EEO Complaints
First EEO Complaint: Incident on September 1, 2009
Bailey's first EEO complaint, EEOC docket no.
443-2010-00133X, which Bailey filed in December 2009, Bailey
complained about an incident that took place on September 1,
2009, and the resulting discipline that he received. DSOF
¶ 9; R. 39, Exh. 6, 10/31/13 EEOC Denial of Mot. for
Recons. of First EEO Compl. at 001468. When Bailey arrived at
work on September 1, 2009, he noticed mail for a different
route-Route 8-at his station. DSOF ¶ 11. Bailey
approached Puri about it. Id. ¶¶ 11-12;
Pl.'s Resp. to DSOF ¶ 12. Puri told Bailey that he
would need to deliver the Route 8 mail, which would take
about 25 minutes, in addition to the mail for his own route.
DSOF ¶ 11. Bailey told Puri that he would not be able to
deliver all of this mail within eight hours. DSOF ¶ 12.
parties dispute what happened next. According to Puri, she
then told Bailey to work through lunch or to take overtime if
necessary. Id.; R. 39, Exh. 8, 9/18/09 Notice of
Suspension at 006032. But Bailey refused to deliver the Route
8 mail and repeatedly asked Puri, “What are your
instructions?” DSOF ¶ 12; 9/18/09 Notice of
Suspension at 006032. Because Bailey's tone during this
exchange was loud, rude, and disruptive to the workroom
floor, Puri asked Bailey to leave. DSOF ¶¶ 12-13;
9/18/09 Notice of Suspension at 006032.
to Bailey, after he told Puri that he would not be able to
deliver all the mail without going into overtime, he simply
asked her what her instructions were. Pl.'s Resp. to DSOF
¶ 12; R. 39, Exh. 7, 1/08/10 Step B Decision at 000089.
Puri then began yelling at Bailey, telling him that he could
perform the assignment in eight hours. Pl.'s Resp. to
DSOF ¶ 12; 1/08/10 Step B Decision at 000089. Bailey
asked her to stop yelling; Puri became angry and told Bailey
to clock out for the day. Pl.'s Resp. to DSOF ¶ 12;
1/08/10 Step B Decision at 000089.
parties agree that following this incident, on September 18,
2009, Puri issued Bailey a 14-day suspension for conduct
unbecoming a postal employee. DSOF ¶ 15; 9/18/09 Notice
of Suspension. That suspension was later (in January 2010)
reduced to a letter of warning by the Dispute Resolution
Team. DSOF ¶ 16; 1/08/10 Step B Decision at 000088.
Bailey was ultimately paid for the hours of work he missed on
September 1 after being sent home by Puri. DSOF ¶ 13;
Pl.'s Resp. to DSOF ¶ 13; 1/08/10 Step B Decision at
EEO complaint, Bailey asserted that the Postal Service
discriminated against him on account of his race
(African-American) and sex (male), and in reprisal for prior
protected EEO activity when Puri sent him home on September
1, 2009, placed him in an off-duty status without pay for the
day, and issued him a 14-day suspension. 10/31/13 EEOC Denial
of Mot. for Recons. of First EEO Compl. at 001468. After an
investigation, Bailey requested a hearing before an EEOC
administrative judge. Id. That hearing request was
dismissed, and the Postal Service issued a final decision on
the record finding no discrimination. Id. In October
2013, Bailey's final request for reconsideration was
denied, and Bailey was told he had 90 calendar days within
which to file a civil action in a United States District
Court. Id. at 001469.
Second EEO Complaint: Incidents on June 30, August 4,
and August 25, 2011
filed his second EEO complaint, EEOC docket no.
440-2012-00068X, in November 2011. DSOF ¶ 18; R. 39,
Exh. 10, 8/21/14 EEOC Decision on Second EEO Compl. at
001837. Here, Bailey complained about discipline he received
in 2011 on June 30 and August 4, as well as an incident that
occurred on August 25, 2011. DSOF ¶ 18; 8/21/14 EEOC
Decision on Second EEO Compl. On June 30, 2011, Puri issued
Bailey a letter of warning for failing to perform his duties
as assigned after a clerk found some of Bailey's
deliverable mail in an empty tray on a skid that was to be
returned to the plant and discarded. DSOF ¶ 19; R. 39,
Exh. 11, 6/30/11 Ltr. of Warning at 000258; R. 39, Exh. 12,
Puri 2012 EEO Dep. 8:20-9:17. Bailey denies leaving any
deliverable mail in an empty tray. Pl.'s Resp. to DSOF
¶ 19. Puri admits that neither she, nor the distribution
clerk who discovered the mail, saw Bailey place it there.
Puri 2012 EEO Dep. 9:3-11. Puri's letter of warning was
later reduced to a job discussion by the Dispute Resolution
Team. DSOF ¶ 21; R. 39, Exh. 15, 11/22/11 Step B
Decision at 000323-324.
August 4, 2011, Collins issued Bailey a seven-day suspension
for failing to perform his duties as assigned after a clerk
found first-class mail in Bailey's undeliverable bulk
business mail (or, UBBM) bin. DSOF ¶ 22; R. 39, Exh. 16,
8/04/11 Notice of Suspension at 000256; R. 39, Exh. 17,
Collins 2012 EEO Dep. 13:19-14:13. Bailey disputes that he
left any mail behind. Pl.'s Resp. to DSOF ¶ 22. The
Postal Service admits that no one saw Bailey put any mail in
his UBBM bin. Def.'s Resp. to PSOF ¶ 6. When
questioned about this incident by Collins, Bailey continually
responded, “I do my job to the best of my
ability.” DSOF ¶ 23; 8/04/11 Notice of Suspension
at 000256. Bailey's seven-day suspension was again
reduced by the Dispute Resolution Team, this time to a letter
of warning. DSOF ¶ 24; R. 39, Exh. 19, 11/21/11 Step B
Decision at 000330.
incident on August 25, 2011 related to the number of hours
Bailey was allowed to work that day. Bailey complained that
he was allowed to work only 5.15 hours, while PTF-carrier
LaTanya Rogers (female and African-American), and
transitional employees Rafael Barszczewski (male and
Caucasian) and Debra Stewart (female and African-American)
were allowed to work longer hours. DSOF ¶¶ 25-26;
R. 39, Exh. 20, Hours Analysis at 000339; R. 39, Exh. 42,
10/23/14 Final Agency Decision at 002334; Pl.'s Third
Resp. to Def.'s Interrog. at 4-5 (¶ 8). On August
25, Rogers worked 8.98 hours, Barszczewski worked 8.25 hours,
and Stewart worked 8.00 hours. Pl.'s Resp. to DSOF ¶
25; R. 39, Exh. 20, Hours Analysis at 000339, 000342.
to Puri, mail was “very light” that day, so she
needed to take work from a PTF-carrier to ensure that the
full-time carriers could work their full eight-hour days.
DSOF ¶ 25; Puri 2011 EEO Aff. ¶ A24. She decided to
split Bailey's route, rather than another
PTF-carrier's route (like Rogers'), because it was
“more efficient” and would help even-out the
weekly hours between Bailey and Rogers. Puri 2011 EEO Aff.
¶¶ A24-A25; Puri 2012 EEO Dep. 43:20-45:14. Puri
stated that she tries to equalize PTF work hours in
accordance with a verbal agreement she has with the letter
carriers' union steward in the Wood Dale Post Office.
Puri 2011 EEO Aff. ¶ A25; Puri 2012 EEO Dep. 46:21-24.
She also stated that Bailey agreed to give up part of his
route that day: “I asked PTF Bailey if he would give up
part of his route and when he agreed, I asked him how many
hours work would he agree to give up. He replied 3
hours.” Puri 2011 EEO Aff. ¶ A24; Puri 2012 EEO
Dep. 45:1-8 (“Q. Mr. Bailey agreed [to give up part of
his route]? A. That's right.”).
time, Bailey was still assigned to Route 4, his temporary
full-time, hold-down assignment. Collins 2012 EEO Dep.
34:7-9. Rogers, by contrast, was not on a bid assignment.
Id. 34:17-19 (“Q. And Miss Rogers was not on a
bid assignment for that day, correct? A. Correct.”). A
PTF-carrier on a hold-down assignment (like Bailey was at the
time) is generally considered to have priority over both a
non-hold-down PTF-carrier and transitional employees. Collins
2015 Dep. 41:6-15 (“[Q.] Is it fair to say that a PTF,
a T.E. [transitional employee], and a causal, … there
is no priority over who is entitled to more hours? A. What I
would say out of those three people, I would base it off of
that the PTF would probably be a little bit more superior
than a T.E. or a causal … .”); id.
117:11-118:3 (“Q. Do … PTFs with Hold-Down
Assignments come before PTFs without [them] … ? A. I
would say that they do, because they actually hold-down the
assignment. … Q. So if there was overtime available,
… [o]bviously the full-time carrier gets priority in
the overtime hours … ? A. Yes. Q. Okay. And the PTF
[with] … the Hold-Down Assignment would have priority
over the PTF that doesn't … is that right? A. I
would say so, yes, because that PTF is holding down an
assignment … .”); Puri 2015 Dep. 22:9-21
(“[Q]. Are the PTFs ranked for any purposes by
seniority? A. When time comes for conversion, yes, the senior
person gets converted first. Q. Okay. But other than
conversion … ? A. No. Q. What if a PTF has a Hold-Down
Assignment, does the … hold-down PTF carrier have
priority over a non-hold-down PTF carrier? A. Yes.”);
id. 69:5-8 (“Q. Can work be taken from a PTF
on a Hold-Down Assignment and given to PTFs who were not on
Hold-Down Assignments? A. No.”).
also undisputed that there is no specific written post office
policy requiring hours to be equalized among PTF-carriers.
Puri 2012 EEO Dep. 47:1-6 (Q. Okay. Let me ask you. According
to postal contract, are you required to equalize --A. No. Q.
-- PTF hours? A. No, no.”); Collins 2012 EEO Dep.
39:4-7 (“Q. … [I]s there a contract regulation
that states you have to equalize PTF work hours? A. I
don't recall … ”). However, it does appear
to be an adopted practice in the Wood Dale Post Office.
Id. 39:10-15 (“A. … I don't recall.
But I believe that it is fair that all PTFs get the equal
share of hours. We have a verbal agreement between the union
and management in our office. … So that's what
I've always known … ”); Puri 2012 EEO Dep.
46:21-24 (“Q. Are you required to equalize PTF work
hours? A. It's our verbal agreement with the union
steward in Wood Dale office.”).
to these three incidents, Bailey alleged in his second EEO
complaint that he was subjected to harassment and a hostile
work environment on account of his race and sex, and in
reprisal for prior EEO activity. 8/21/14 EEOC Decision on
Second EEO Compl. at 001837-1838. Bailey again requested a
hearing before an EEOC Administrative Judge. Id. at
001838. The Postal Service sought a decision without a
hearing. Id. On November 25, 2013, the
administrative judge issued a summary judgment decision in
favor of the Postal Service finding no discrimination.
Id. The judge concluded that Bailey had
“[failed to] show by a preponderance of the evidence
that he was discriminated against on the bases of race, sex
and reprisal discrimination, ” or that “the
[Postal Service's] proffered reasons for its actions were
a pretext for discrimination.” Id. The Postal
Service implemented the administrative judge's decision
in its final action. Id. Bailey appealed, but the
Postal Service's decision was affirmed on August 18,
2014. Id. at 001837-1841.
Third EEO Complaint: Incidents on August 9, September 25,
and October 23, 2012
third EEO complaint, EEOC docket no. 440-2013-00077X, Bailey
contested discipline he received on August 9, 2012, and
October 23, 2012, as well as an incident that occurred on
September 25, 2012. DSOF ¶ 31. On August 9, 2012,
Collins issued Bailey a seven-day suspension after
deliverable mail was again found in Bailey's UBBM bin on
three separate occasions. R. 47, Exh. K, 8/09/12 Notice of
Suspension; R. 39, Exh. 24, Collins 2013 EEO Decl.
¶¶ 5-10; Puri 2013 EEO Decl. ¶¶ 9-11.
Before issuing the suspension, on July 26, 2012, Collins
tried to hold a pre-disciplinary interview with Bailey, but
because Bailey requested union representation, the meeting
was pushed to a later date. DSOF ¶ 33; Pl.'s Resp.
to DSOF ¶ 33; 8/09/12 Notice of Suspension at 000530; R.
39, Exh. 27, Bailey 2013 EEO Dep. 30:16-31:4. The parties
agree that on July 26, when Bailey was instructed to go to
the Postmaster's office, Bailey asked, “Is it
discipline?” 8/09/12 Notice of Suspension at 000530;
Collins 2013 EEO Decl. ¶ 8; Bailey 2013 EEO Dep.
30:19-24. The parties dispute what happened next. According
to Collins, when Bailey was told that it could lead to
discipline, he tried to clock out; when he was told he could
be charged with failing to follow instructions if he left,
Bailey started yelling. Collins 2013 EEO Decl. ¶ 8;
8/09/12 Notice of Suspension at 000530. Bailey was then
instructed to leave. Id. According to Bailey, it was
Collins who got upset. Bailey 2013 EEO Dep. 31:1-13. Bailey
also disputes whether he left mail in his UBBM tub on the
dates alleged. Pl.'s Resp. to DSOF ¶ 33. Again, the
Postal Service admits no one saw Bailey put the mail in his
UBBM bin. Def.'s Resp. to PSOF ¶ 6.
incident on September 25, 2012 related to an attempt by
Bailey to take eight hours of sick leave, a request that was
ultimately denied. DSOF ¶ 34. Bailey was scheduled to
work both Monday, September 24, 2012 and Tuesday, September
25, 2012. Puri 2013 EEO Decl. ¶ 13. On September 24, he
was to work his regular Route 4 shift. Id.;
Pl.'s Resp. to DSOF ¶ 34. On September 25, which was
a non-scheduled day for Route 4 (meaning he was not required
to work his route that day), Bailey was still scheduled to
work, but on some other PTF-carrier assignment. Puri 2013 EEO
Decl. ¶ 13; R. 39, Exh. 26, Puri 2013 EEO Dep.
40:22-41:16. On Monday September 24, Bailey called in sick
and requested sixteen hours of sick leave for Monday
September 24 and Tuesday September 25. R. 47, Exh. E., Bailey
2015 Aff. ¶ 9; Puri 2013 EEO Dep. 40:22-41:1.
Bailey's request for eight hours on September 25 was
denied. DSOF ¶ 34; Puri 2013 EEO Dep. 41:5-7. According
to Puri, Bailey's request was denied because it was a
non-scheduled day for him on Route 4 and he was already
scheduled to work forty hours that week. Id.
41:8-16. The Postal Service's Employee and Labor
Relations Manual limits a PTF-carrier's ability to
request sick leave depending on a PTF-carrier's hours in
a given week. R. 39, Exh. 29, Employee Manual at 007787. It
provides that “part-time flexible employees who have
been credited with 40 hours or more of paid service (work,
leave, or a combination of work and leave) in a service week
are not granted sick leave during the remainder of that
service week.” Id. (Section 513.421(c)). Puri
interpreted this section as prohibiting Bailey from being
paid sick leave for his non-scheduled day (September 25)
because he was already scheduled to work (and to be paid for)
at least forty hours that week. DSOF ¶ 36; Puri 2013 EEO
Decl. ¶ 13; Puri 2013 EEO Dep. 41:8-16. Indeed,
excluding the requested sick leave on September 25, Bailey
was paid for 42.94 hours of work that week (September 22-28,
2012). DSOF ¶ 35.
last instance of discipline Bailey cited in this EEO
complaint occurred on October 23, 2012. On that day, Collins
issued Bailey a 14-day suspension for failing to maintain a
regular work schedule after Bailey had three unscheduled
absences within a three-month period. R. 39, Exh. 30,
10/23/12 Notice of Suspension. Bailey did not submit
doctors' notes for any of those absences. DSOF ¶ 38.
He was not, however, strictly required to provide this
documentation. For absences of three days or less,
supervisors may accept the employee's statement
explaining the absence. PSOF ¶ 12; R. 48, Exh. 5,
Employee and Labor Relations Manual at 003032. This policy of
disciplining carriers for three unscheduled absences in a
three-month period is not a nationwide policy, but there is
evidence to suggest that it is a local policy at the Wood
Dale Post Office. PSOF ¶ 17; R. 47, Exh. P, Def.'s
Second Resp. to Pl.'s First Set of Interrog. at
002373-2374 (¶ 25); Puri 2015 Dep. 33:22-34:9.
third EEO complaint was unsuccessful. In June 2014, an EEOC
administrative judge determined that Bailey had not shown
that he was the victim of illegal discrimination. R. 39, Exh.
22, 7/02/14 Notice of Final Action Related to Third EEO
Compl. at 003908; R. 39, Exh. 31, 6/20/14 EEOC AJ Summ. J.
Op. In July 2014, the Postal Service issued a final agency
action implementing the decision of the administrative
judge. 7/02/14 Notice of Final Action Related to
Third EEO Compl.
Fourth EEO Complaint: Incidents on February 16 and April 2,
Bailey's fourth EEO complaint, EEOC docket no.
440-2013-00216X, Bailey complained about discipline he
received on February 16, 2013, and April 2, 2013. DSOF ¶
39. On February 16, 2013, Collins issued Bailey a 14-day
suspension for failing to perform his duties as assigned, and
more specifically, for the unauthorized disposal of mail. R.
39, Exh. 35, 2/16/13 Notice of Suspension. This discipline
was issued after two pieces of first-class mail were found in
Bailey's UBBM bin on December 8, 2012. Id.; R.
39, Exh. 33, Photocopy of Mail. Originally, Collins issued
Bailey a notice of removal for this incident on December 22,
2012. R. 39, Exh. 32, 12/22/12 Notice of Removal; DSOF ¶
40. But that notice was later rescinded due to a
typographical error in the discipline. R. ...