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LeBOY v. Brennan

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

July 5, 2017

ELISSA LeBOY Plaintiff,
MEGAN J. BRENNAN, Postmaster General of the United States Defendants.



         After months of what she alleges was a campaign of harassment on the basis of her sex and disability, Plaintiff Elissa LeBoy was fired from her job as a mail carrier with the United States Postal Service (“USPS”) in 2006. Years passed while she unsuccessfully pursued her claims before the Equal Employment Opportunity Commission (“EEOC”), through two appeals and a motion to reconsider the agency's decision in the USPS's favor; those proceedings terminated in 2014. LeBoy filed this action shortly thereafter in May 2014, alleging disparate treatment and a hostile work environment based on sex and perceived mental disability in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and 42 U.S.C. § 1983. Defendant now seeks summary judgment. For the reasons set forth below, Defendant's motion is granted in part and denied in part.


         The court views the record in the light most favorable to the party opposing a motion for summary judgment, here, LeBoy. Dawson v. Brown, 803 F.3d 829, 832 (7th Cir. 2015).

         Elissa LeBoy was employed by the United States Postal Service (“USPS”) at its Palatine, Illinois facility from March 6, 2004 through March 9, 2006. (Plaintiff's Local Rule 56.1(b)(3)(C) Statement of Additional Facts [hereinafter “Pl.'s SOF”] [52], at ¶¶ 1-2.) During that two-year period, LeBoy contends, her supervisors harassed and mistreated her in a variety of ways. The parties have not described her job responsibilities, but LeBoy had the title of Part Time Flexible City Carrier. (Id. ¶ 2.) Dennis Arneson was LeBoy's direct supervisor until he was replaced by Mark Hurter in September 2004. (Id. ¶ 3.) The record does not disclose Hurter's precise job title, nor his position in the facility's management hierarchy. (See id.)

         Richard Cullerton was the postmaster in Palatine during the relevant period until November 25, 2005. (Id.) Cullerton was replaced by Officer-in-Charge Michael Naranjo on November 28, 2005. (Id.) (The court presumes that an Officer-in-Charge and a Postmaster have the same responsibilities.) Fred Johnson was a supervisor of customer service (id.), who also had some supervisory authority over LeBoy that the parties do not further explain. (See Id. at ¶ 34.) Neither party has identified any other level of management, so the court presumes that Johnson and Hurter reported directly to Cullerton until late 2005, and to Naranjo after that date.

         A hostile work environment claim is timely as long as “any act falls within the statutory time period, ” even if the charge includes events occurring before the statutory cut-off. Adams v. City of Indianapolis, 742 F.3d 720, 730 (7th Cir. 2014) (quoting National R.R. Passenger Corp v. Morgan, 536 U.S. 101, 120 (2002)). As described further below, LeBoy timely contacted an EEO counselor within 45 days after she was fired in 2006, preserving her hostile work environment and discriminatory firing claims. For reasons the parties do not fully explain, her complaint remained pending with the EEOC for more than seven years until her final agency appeal was denied on January 30, 2014. See LeBoy v. Donahoe, Request No. 0520130501, Ex. 1 to Compl. [1 at p. 8], slip op. at 3 (U.S. Equal Emp't Opportunity Comm'n Jan. 30, 2014). Accordingly, the events described below, though not independently actionable, are relevant to the court's determination on summary judgment.

         Specifically, LeBoy describes numerous incidents of what she believes to be unwarranted discipline and humiliating comments made by Hurter, Johnson, and, later in her tenure, Naranjo, spanning nearly her entire two years with the USPS. She claims that these events created a hostile work environment and culminated in her firing because of sex or perceived disability. The court considers each below.

         I. Fall 2004-Winter 2005

         Even before Hurter became LeBoy's direct supervisor in August 2004, LeBoy alleges that he started calling her “Coco, ” which eventually transformed into the pejorative “Coo Coo.” (Pl.'s SOF ¶ 4.) When LeBoy asked him to stop doing this, Hurter explained that he used the nickname because LeBoy's name reminded him of a 1970s-era baseball player for the Montreal Expos, José Alberto “Coco” Laboy. (Postal Service's Local Rule 56.1 Statement of Facts [hereinafter “Def.'s SOF”] [48], at ¶ 74); see also Coco Laboy, Soc'y for Am. Baseball Research (last visited Jul. 5, 2017), Hurter evidently did not stop-LeBoy alleges that by December 2004, “the work environment became extremely hostile due to this continuing name calling.” (Pl.'s SOF ¶ 4.) Her relationship with Hurter deteriorated further after Hurter announced to the entire work floor in early December that LeBoy was not scheduled to work on Christmas Day; evidently, many others were. (Id. ¶ 5.) After she explained to him that she needed the day off to go to her girlfriend's family's home for Christmas dinner, Hurter asked LeBoy if she was dating a woman. (Id.) LeBoy confirmed that she was (Admin. Hearing Tr., Ex. D. to Pl.'s SOF [54], at 3582:22-83:9), and felt this contributed to Hurter's eventually singling LeBoy out for discipline and harassment. (Id. at 3584:23-85:13.)

         The situation boiled over shortly before Christmas. On December 21, 2004, LeBoy felt ill and asked to leave work early. (Pl.'s SOF ¶ 6.) Hurter approved, but as LeBoy was leaving, another supervisor, Sheila Broadway, told LeBoy that the schedule had changed and that LeBoy was now scheduled to work on Christmas Day. (Id. ¶ 6.) LeBoy sought Hurter out and protested that he had promised she would have that day off. (Id.) Hurter pointed out to LeBoy that she was a Part Time Flexible carrier, which meant that her schedule was subject to change. (Def.'s SOF ¶ 3). LeBoy does not apparently dispute this, but complains that Hurter then announced, “You're working and there's nothing you can do about it.” (Pl.'s Resp. to Def.'s SOF ¶ 3.) LeBoy appears to believe that Hurter's tone was hostile. The argument escalated, with LeBoy and Hunter “in each other's faces, ” in LeBoy's characterization, when LeBoy accused Hunter of rescheduling her in retaliation for being sick that day. (Def.'s SOF ¶ 4; Pl.'s Resp. to Def.'s SOF ¶ 4.)

         LeBoy alleges that Hurter backed LeBoy into a set of doors on the workroom floor, pounded his fist against the door, and screamed at her. (Pl.'s Resp. to Def.'s SOF ¶ 4.) The parties agree that Hurter told LeBoy to leave the building, and that LeBoy called Hurter an “asshole.” (Def.'s SOF ¶ 5-6.) Defendant claims that LeBoy told Hurter that she would “kick his ass” (Def.'s SOF ¶ 6); LeBoy admits only that she told a fellow employee, Marty Mia, that “if I were a guy, I would kick his ass.” (Pl.'s Resp. to Def.'s SOF ¶ 6.) The police were called (by whom and when, the parties do not say), but neither Hurter nor LeBoy was arrested. (See Def.'s SOF ¶ 6.) LeBoy left the building voluntarily. (See id.) Hurter sent LeBoy a letter the same day, placing her in “off-duty status” on an “emergency” basis; that is, he immediately suspended LeBoy indefinitely without pay. (See Def.'s SOF ¶ 1; Letter from Mark Hurter to Elissa LeBoy, “Emergency Placement in an Off-Duty Status” (Dec. 21, 2014), Ex. 2 to Def.'s SOF [48-1 at p. 3].)

         Hurter followed the suspension with a formal Notice of Removal, the Postal Service's method for initiating a termination, on December 28, 2004. (Letter from Mark Hurter to Elissa LeBoy, “Notice of Removal” (Dec. 28, 2004), Ex. 3 to Def.'s SOF [48-1 at p. 5].) LeBoy filed a union grievance, and a union representative negotiated with management to reduce the removal to a 14-day “paper suspension, ” which the parties entered into in January 2005. (Settlement Agreement Between Richard Cullerton, Postmaster & Carl F. Oefelein, Nat'l Ass'n of Letter Carriers (Jan. 12, 2005), Ex. 6 to Def.'s SOF [48-1 at p. 18].) The parties' submissions do not explain what a paper suspension is, nor do they say whether LeBoy was at work or suspended between December 21 and the resolution on January 12.

         LeBoy filed an EEO complaint against Hurter regarding this incident, alleging that he discriminated against her. (See Def.'s SOF ¶ 8.) The parties did not produce the original document and what exactly LeBoy alleged there is unknown. The USPS is required by law to maintain its own EEO unit, where employees can file discrimination complaints based on federal civil rights laws. 42 U.S.C. § 2000e-16; USPS, Publication 133 - What You Need to Know About EEO 4-5 (2012), available at To initiate the process, a person who claims discrimination must meet with a counselor and submit a complaint to the EEO within 45 days of the incident, 29 C.F.R. § 1614.105(a)(1), which in the Post Office requires filing an “Information for Pre-Complaint Counseling, ” see Publication 133 at 6. The counselor attempts to informally resolve the situation through “counseling, ”[1] but if that effort is unsuccessful, the aggrieved person may file a formal complaint with the EEOC. 29 C.F.R. § 1614.105(d). If the person who has allegedly suffered discrimination does not file a complaint, the EEOC dismisses the matter. See 29 C.F.R. § 1614.107(a)(2). If a formal complaint is filed, the EEOC will investigate. 29 C.F.R. § 1614.106(e)(2). Absent a settlement, the matter proceeds to a hearing before an administrative judge, who hears testimony from witnesses under oath and issues a decision. 29 C.F.R. § 1614.109. The EEOC then issues a “final action” on the complaint, which notifies the complainant of her right to appeal within the EEOC if she has not prevailed, or to file a civil action in federal district court, along with the time limits for filing. 29 C.F.R. § 1614.110(a).

         The parties do not say whether LeBoy made it past the “Information for Pre-Complaint Counseling” stage to filing a formal complaint; the parties' submissions say only that she “did not pursue” this action. The court concludes that she did not file a complaint, as only an Information would result in dismissal for lack of pursuit by the party. See 29 C.F.R. § 1614.107(a)(2). LeBoy concedes that she dropped the matter, and explains that she feared that Fred Johnson would use any statements she made in connection with the EEOC proceedings against her in the future. (Pl.'s Resp. to Def.'s SOF ¶ 8.) As this is LeBoy's first mention of Johnson in the chronology, the exact predicate for this concern is unclear.

         LeBoy complains about a host of incidents over the next several months that, she believes, reflect bias. For example, LeBoy claims that she was unfairly subject to suspension in February 2005 for failure to deliver Express Mail by the noon deadline. (Pl.'s Resp. to Def.'s SOF ¶¶ 9-10.) LeBoy asserts that the intended recipient had moved by the time she arrived to deliver the mail. (Id. ¶ 9.) In a post-suspension letter, the new resident at the address confirmed that LeBoy did attempt a timely delivery. (Letter from Rose Benjamin (Feb. 17, 2005), Ex. R to Pl.'s SOF [54 at p. 46].)

         Just a few months after that, in May 2005, Johnson attempted to fire her again for “conduct unbecoming a postal employee, ” stemming from an incident on April 14 in which LeBoy arrived less than five minutes late from completing her route. (Def.'s SOF ¶¶ 12-13; Pl.'s Resp. to Def.'s SOF ¶ 13 (arguing that she was two minutes late).) When Sheila Broadway asked her why she was late, a confrontation ensued between LeBoy, Broadway, and Johnson, who had entered the scene at some point. (Pl.'s Resp. to Def.'s SOF ¶¶ 14-15.) LeBoy claims that Broadway was “haranguing her, ” and that LeBoy responded by accusing Broadway of being a “lousy carrier and supervisor” and by pointing out that Johnson had three DUIs and his drivers' license had been revoked. (Id.)[2]

         Johnson waited nearly a month before issuing LeBoy a Notice of Removal for this incident on May 6. (Def.'s SOF ¶ 7.) LeBoy promptly filed a grievance, which was successful in that the punishment was reduced by the USPS's Dispute Resolution Team (“DRT”). (Def.'s SOF ¶ 7.) A DRT is a group of USPS employees and union officials-who do not know the parties involved in the dispute-that reviews the matter and renders a decision. (Def.'s SOF ¶ 7; Dispute Resolution Team, Step B Decision (June 13, 2005), Ex. 12 to Def.'s SOF [48-1 at p. 74].) In a decision dated June 13, the DRT converted LeBoy's termination to a 14-day suspension “without loss of pay or time off.” The DRT found LeBoy's conduct inappropriate, but also observed that management “had prodded an employee that is known to ‘go off, '” which the DRT decided was a mitigating factor in LeBoy's behavior. (See DRT, Step B Decision at USPS454; see also Def.'s SOF ¶ 18.) Though the suspension was applied “without time off, ” the parties do not address whether LeBoy remained at work while the DRT process was pending.

         Both parties note that LeBoy filed another “complaint” with the EEO after this incident- which the court presumes was an Information for Counseling-on May 10, 2005, while the grievance was pending. (Pl.'s Resp. to Def.'s SOF ¶ 19.) This complaint charges that Johnson called LeBoy “worthless” on several occasions beginning in January of that year (id.), but the original is not in the record and LeBoy has not identified the protected-class basis for this complaint. She did not file a formal complaint after the initial Information, so this matter, too, was terminated by the EEOC. (Def.'s SOF ¶ 20.)

         Yet another incident occurred on June 1, 2005, leading to another Notice of Removal. (Id. ¶ 21.) LeBoy reported 15 minutes late to work and immediately asked to see a union steward to request a retroactive change of schedule-presumably, so she would not be charged with tardiness for the day-but Broadway refused her request. (Pl.'s Resp. to Def.'s SOF ¶¶ 22-23.) LeBoy then discovered that she would not be authorized to work a full eight-hour day because some of her work had already been completed, and again asked to see a union steward. (Def.'s SOF ¶¶ 25-26; Pl.'s Resp. to Def.'s SOF ¶¶ 25-26.) Again, Broadway refused and ordered LeBoy back to her work area. (Def.'s SOF ¶ 27; Pl.'s Resp. to Def.'s SOF ¶ 27.)[3]After further exchanges, Broadway claims that LeBoy looked at her “in a threatening manner, ” which caused Broadway to order LeBoy to leave the premises-effectively placing her, again, immediately in unpaid, “off-duty” status. (Def.'s SOF ¶ 28; Letter from Fred Johnson to Elissa LeBoy, Emergency Placement in an Off-Duty Status (Jun. 2, 2005), Ex. 14 to Def.'s SOF [48-1 at p. 80].) Fred Johnson penned both the formal off-duty status letter and, a month later, the Notice of Removal. (Letter from Fred Johnson to Elissa LeBoy (Jul. 7, 2005), Ex. 13 to Def.'s SOF [48-1 at p. 77].) Both the off-duty decision and the removal were reversed by a DRT after LeBoy promptly grieved the decisions within a day of their issuance. (See Pl.'s SOF ¶ 31.) LeBoy was off-duty without pay from June 1, 2005 until that decision was reversed on July 20, 2005 (Dispute Resolution Team, Step B Decision (Jul. 20, 2005), Ex. 17 to Def.'s SOF [48-1 at p. 86], at USPS504), and the removal was reduced to a 21-day suspension, time LeBoy was deemed to have served during her off-duty status. (Dispute Resolution Team, Step B Decision (Aug. 25, 2005), Ex. 18 to Def.'s SOF [48-1 at p. 89], at USPS534.)

         In September 2005, LeBoy filed another Information complaining that Johnson, in a derogatory tone, made hostile comments to her, such as “Lady you're not worth a damn thing, ” “Lady, you can't do anything, ” and “Lady, what don't you understand.” (Def.'s SOF ¶ 38.) This matter, too, was closed after thirty days because LeBoy did not file a formal complaint. (Pl.'s Resp. to Def.'s SOF ¶ 40.) LeBoy claims she was prevented from doing so by an on-the-job injury: on September 10, 2005, she suffered a pelvic muscle injury while lifting a heavy mail bag up the stairs which kept her out of work until October. (Pl.'s SOF ¶ 10; Pl.'s Resp. to Def.'s SOF ¶ 40; see also Letter from Dr. Albert Olorvida (Nov. 29, 2005), Ex. H to Pl.'s SOF [54 at p. 14].) LeBoy alleges that Johnson interfered with her receiving pay for the time she was out of work by contesting the fact of her injury to the Injury Compensation Department, the office in charge of determining work-related injury pay, and by ultimately firing her before the issue could be resolved. (Pl.'s SOF ¶ 35.)

         II. Hurter and Naranjo's Comments

         The date that LeBoy returned to work is not clear in the record, but she was apparently back on the job by the end of October. The morning of October 27, LeBoy reported that she was unable to come to work due to pain, explaining to Mark Hurter over the phone in confidence that her menstrual period was aggravating her existing pelvic injury. (Pl.'s SOF ¶ 11.) LeBoy claims that afternoon, Carl Oefelein, the union steward, and another letter carrier, Karla Reinke, called her to tell her that Hurter had announced to her coworkers that LeBoy could not work because of her period. (Id.) LeBoy remained off work through October 31, 2005, and claims that while she was out, unidentified coworkers called her to let her know that when other female workers called in sick, Hurter would comment that “She's pulling a CoCo” and “can't work because of her period.” (Id.) Several other employees corroborated in unsworn statements that they saw and heard Hurter mocking LeBoy by saying that she called in sick due to her period and by grabbing his crotch. (Pl.'s SOF ¶¶ 11-16.)[4]

         In October 2005, LeBoy renewed her September 2005 EEO claim, alleging that Johnson was referring to her as “lady” in a derogatory way, and added that Hurter was making demeaning references to her menstrual cycle. (Def.'s SOF ¶¶ 41-42.) LeBoy did not file a formal complaint, however, which she again explains was due to pain from her injury and that she was focused on getting back to work. (Pl.'s Resp. to Def.'s SOF ¶ 43.)

         Shortly afterward, Johnson issued yet another Notice of Removal to LeBoy for allegedly failing to follow instructions between August 29, 2005 and September 3, 2005. (Def.'s SOF ¶ 34; Pl.'s Resp. to Def.'s SOF ¶ 34.) This Notice of Removal, issued on November 5, 2005, charged LeBoy with reporting late to work, failing to notify supervisors that she would be late returning from her route, deviating from work assignments, wearing headphones on her route, and walking off her route during those dates. (Def.'s SOF ¶ 35.) LeBoy again sought DRT review, and again the DRT reversed the notice, finding that Johnson issued the notice too long after the incidents for the union to adequately defend against the charges. (Id. ¶ 36.) The DRT did not find make any findings on the merits of the charges. (Id. ¶ 37.)

         In December 2005, LeBoy again filed an Information with the EEO, claiming that Johnson continued to refer to her as “lady” in a derogatory way, and that he had refused to authorize her pay while she was out of work due to her pelvic muscle injury. (Def.'s SOF ¶¶ 44- 45.) The EEO again closed the matter because LeBoy did not file a formal complaint. (Pl.'s Resp. to Def.'s SOF ¶ 50.)

         LeBoy called in sick on December 10, 2005 due to stomach flu. (Pl.'s SOF ¶ 27.) When she returned, she found a box of anti-diarrheal medication in her work area labeled “For Elissa LeBoy.” (Id.) She believes it was Hurter who left it there, noting that he later “paraded around the work floor in the unit with the box, smirking and laughing.” (Id.) Defendant asserts that LeBoy cannot prove that it was Hurter who left the ...

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