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Bailey v. Brennan

United States District Court, N.D. Illinois, Eastern Division

August 26, 2016

JAMES BAILEY, Plaintiff,
MEGAN J. BRENNAN, Postmaster General of the United States, Defendant.


          Honorable Edmond E. Chang United States District Judge

         James 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.[1] R. 1; R. 13.[2] 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.

         I. Background

         In 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.

         A. Local Rule 56.1

         First, 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.

         The 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 60.[3] 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.[4] 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.

         In the 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 statement.

         The 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).

         The 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 dispute.

         Next, 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 additional facts.

         Finally, 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.

         B. Cecil Watson Affidavit

         The 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.

         C. Bailey's Employment at the Wood Dale Post Office

         James Bailey is an African-American male. DSOF ¶ 1.[5] 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. 11:17-24.

         Part-time postal carriers are generally assigned to regular work schedules of less than forty hours per service week[6]; 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.

         While 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.

         Yet, 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.

         The Postal Service has certain policies to help guide a supervisor when issuing discipline. Article 16.1 of the Joint Contract Administration Manual[7]instructs 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.

         If a 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.

         Every 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 ¶ 9.

         D. Bailey's EEO Complaints

         i. First EEO Complaint: Incident on September 1, 2009

         In 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.

         The 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.

         According 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.

         Both 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 000090.

         In his 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.

         ii. Second EEO Complaint: Incidents on June 30, August 4, and August 25, 2011

         Bailey 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.

         On 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.[8] 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.

         The 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.

         According 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.”).

         At that 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.”).

         It is 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.”).

         Pointing 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.

         iii. Third EEO Complaint: Incidents on August 9, September 25, and October 23, 2012

         In his 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.

         The 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.

         The 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.

         Bailey's 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.[9] 7/02/14 Notice of Final Action Related to Third EEO Compl.

         iv. Fourth EEO Complaint: Incidents on February 16 and April 2, 2013

         In 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 ΒΆ 40. But that notice was later rescinded due to a typographical error in the discipline. R. ...

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