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Kaula v. Brennan

United States District Court, D. New Mexico

March 2, 2018

TIANA A. G. KAULA, Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General of the United States, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant's Motion for Summary Judgment and 12(b)(1) Motion to Dismiss and Memorandum in Support, filed on July 20, 2017. (Doc. 31.) Jurisdiction arises under 28 U.S.C. § 1331. Having considered the submissions of counsel and relevant law, the Court will GRANT Defendant's motion.

         I. Factual and Procedural Background[1]

         Ms. Tiana Kaula (Plaintiff) began working full time with the United States Postal Service (USPS) in 1986. (Docs. 31-A at 18:13-17; 7 (Am. Compl.) ¶ 7.) In 2007, Plaintiff sustained a periscapular strain in an on-the-job auto accident. (Docs. 31-A at 38:18-25; Am. Compl. ¶ 8.) Consequently, Plaintiff had physical restrictions and began working subject to an “Offer of Modified Assignment, ” which reflected limits on the number of hours Plaintiff could perform certain duties. (Docs. 31-G; 31-J; 31-A at 26:17-23.) For example, Plaintiff's June 21, 2010 Offer limited the time she spent carrying the route (i.e., delivering the mail on her route) to 3.5 hours. (See Docs. 31-J; 31-A at 28:15-19, 86:23-87:5.) This 3.5 hour restriction was in place as early as January 22, 2008. (See Doc. 6-2 at 9.[2])

         First in 2008 and later in 2012, the USPS fired Plaintiff. (See Docs. 6-2; 31-L; 31-A at 26:11-12, 62:2-18.) Plaintiff asserts that both terminations came as retaliation for her physical restrictions. (See Docs. 31-A at 21:9-11; 26:11-12.) Plaintiff filed Equal Employment Opportunity (EEO) complaints after each termination (one in 2008, two in 2012). (See Docs. 31-L; 6-2; 31-K.) The EEO ruled in Plaintiff's favor after the 2008 termination and reinstated her with back pay and benefits. (See Doc. 6-2.) The parties settled Plaintiff's 2012 EEO complaints by signing a “Formal A Grievance Settlement” on January 9, 2013. (See Doc. 31-K.) This Settlement provided that Plaintiff's removal was “reduced to a 30 day time-off suspension with a retention period of two (2) years through January 9, 2015.” (Id.) The Settlement did not grant Plaintiff any back pay, and it mandated that Plaintiff “relinquish her bid assignment at the Academy Station and become an unassigned regular.” (Id.)

         After she was reinstated in 2013, Plaintiff transferred to the Steve Schiff Building. (See Doc. 31-A at 26:6-13.) Again, Plaintiff returned to work under a modified job offer. (See Id. at 26:20-23.) At the Steve Schiff Building, Plaintiff's chain of command included two floor supervisors (Joe Alberti and Peter Baldwin) and manager Scott Bissell. (Id. at 29:13-20.)

         Plaintiff testified that her former floor supervisor at the Academy Station, Mr. Anthony Perez, told her that Mr. Bissell had been to the station to pick up Plaintiff's badge and identification card before she returned to work in 2013. (Id. at 65:10-15.) Plaintiff believes that Mr. Bissell talked to someone at the Academy Station about her history and perhaps obtained Plaintiff's file, including her history of EEO complaints.[3] (Id. at 65:21-66:5.)

         On Saturday, January 12, 2013, Plaintiff reported for what she believed was her first day at work at the Steve Schiff Station. (Id. at 84:2-12.) Her supervisor told her that it was actually her day off; he also advised her that before she could come back to work, she needed to obtain a new CA-17. (See id.) A CA-17 “is a form an employee's doctor fills out that is submitted to a supervisor so that the supervisor understands the employee's current physical restrictions.” (Docs. 31 ¶ 15 (citing Doc. 31-A at 84-85, 117); 38 at 4.) Plaintiff's doctor's office was closed on January 12, 2013. (Docs. 38 at 4; 31-A at 84:2-85:8.)

         Plaintiff was scheduled to work at the Steve Schiff Station on the morning of Monday, January 14, 2013. (See Doc. 31-A at 84:25-85:5) Rather than going to work, Plaintiff went to her doctor's office, hoping to be seen as a walk-in patient. (See id.; see also Doc. 31-B at 7.) Mr. Bissell called Plaintiff around 8:15 a.m. on January 14, 2013, and asked why she had not reported for work.[4] (See Docs. 31-A at 84:25-85:12; 31-B at 7.) Plaintiff said that she was trying to get a new CA-17 as directed. (Doc. 31-A at 6-8.) Mr. Bissell advised Plaintiff to come in to work. (See Doc. 31-B at 7.)

         Plaintiff arrived for work at 9:00 a.m. and met with Mr. Bissell about her CA-17 and Offer of Modified Assignment. (See Id. at 85:13-14, 86:16-88:18.) On January 14, 2013, both Plaintiff and Mr. Bissell signed an Offer of Modified Assignment that limited Plaintiff to 8 hours of work, which included 3.5 hours of driving to deliver mail and 2 hours of walking to deliver mail based on the restrictions listed in Plaintiff's 2012 CA-17. (See Docs. 31-G; 31-H; see also Docs. 31 ¶ 16; 38 at 4, 10-11; 31-B at 5, 7.) While the right-hand column of the 2012 CA-17 included restrictions of walking for 2 hours per day and driving a vehicle for 3.5 hours per day, a note in the left-hand column of the form specifically restricted Plaintiff to “delivery/driving . . . 3.5 hrs/day.” (Doc. 31-H.) This firm 3.5 hour restriction on delivery appears to conflict with the 2013 Offer of Modified Assignment, which defines Plaintiff's duties as “[w]alking to deliver” mail for 2 hours, and “[d]riving to deliver” mail for 3.5 hours. (Doc. 31-G.) Plaintiff was not satisfied with the Offer of Modified Assignment, presumably due to this discrepancy. (See Doc. 31-A at 86:16-88:18.) Mr. Bissell told Plaintiff that he was required to “follow the right side of the CA-17 on her limitations” and that she could obtain a new modified offer if she got an updated CA-17. (Doc. 31-B at 7.) She disagreed with him, but she signed the Offer “[p]ending approval of” the Office of Workers' Compensation Programs (OWCP) and her doctor.[5] (Id.; see also Doc. 31-B at 7.)

         After her meeting with Mr. Bissell, Plaintiff left the station to begin delivering her mail around 10:05 a.m. (Id. at 88:19-90:2, 110:10-11.) Plaintiff stopped for lunch and realized that she had missed delivering to an apartment complex at the beginning of her route, so she backtracked to the apartment complex after she finished lunch. (See Id. at 90:1-92:9.) Defendant asserts that Mr. Bissell drove Plaintiff's route at some point while she was out delivering mail, but he was unable to find her.[6] (Docs. 31-B at 7; 31-A at 94:25-95:4; 31 ¶ 22; 38 at 5.) Plaintiff testified that because she had delivered mail for 3.5 hours as she understood her Offer of Modified Assignment required, she returned to the station between 2:00 and 3:00 p.m. (Id. at 92:2-93:20.) Although Plaintiff delivered for 3.5 hours, she had not completed her entire assigned route. (See Docs. 31-A at 92:2-93:20; Docs. 31 ¶ 21; 38 at 5.)

         Having heard that Plaintiff failed to complete her route and failed to complete the assigned hours as he understood them, Mr. Bissell approached Plaintiff on the dock where she was unloading the remaining mail from her truck. (See Docs. 31-A at 92:10-93:15; 31-B at 7.) Mr. Bissell said, “What the hell are you doing? Why are you bringing mail back?” (Doc. 31-A at 93:15-16.) Plaintiff attests that Mr. Bissell was less than two inches in front of her with his hands raised in fists and was “spitting on [her] face” as he yelled.[7] (Id. at 93:23-25, 108:5-21, 109:3-9; Doc. 52-N at 1.) Plaintiff explained to Mr. Bissell that she had been out since 10:00 a.m., and she could not do any more. (Id. at 94:6-17.) Mr. Bissell ordered her to go back out to deliver the rest of her route. (Id. at 94:1-24.) Mr. Bissell told Plaintiff she was “worthless” and said that he had tried to find her on her route, but she was not there. (Id. at 94:25-95:4.) Plaintiff explained that she had forgotten to deliver at the apartment complex and had returned to deliver there. (Id. at 95:5-20.) Mr. Bissell continued to yell at Plaintiff, called her “worthless” again, and then said “[t]his is ridiculous. You're a terrible carrier. . . . This is incredibly stupid.” (Id. at 95:21-96:5.) Mr. Bissell then walked inside. (Id. at 96:6.)

         Plaintiff proceeded to put her mail away, when Mr. Bissell came back out and told her to “[g]et off the work room floor.” (Id. at 96:7-97:4.) Plaintiff said that she needed to complete her day's responsibilities, and Mr. Bissell ordered her again to “[g]et off the clock.” (Id. at 97:5-17.) Plaintiff strongly felt she needed to follow procedure exactly, because she believed the USPS would fire her if she did not. (Id. at 97:23-98:9.) Plaintiff had to be “checked out” at the end of her shift, and she also needed to fill out a time card. (See Id. at 99:3-7.) Mr. Bissell was the only person available to check Plaintiff out, and during this process, he accused her of falsifying her time sheet when she wrote that she came in at 9:00 a.m. (See Id. at 99:8-100:23.)

         Because this was Plaintiff's first day back at work after her previous EEO complaints had been resolved, she was expecting several “back paychecks” for the time she was gone. (Id. at 98:18-22.) After she checked out and signed her time sheet, Plaintiff asked Mr. Bissell for her back paychecks. (Id. at 101:15-16.) Mr. Bissell refused to give her the paychecks and said, “you're not ever coming back, and I'll send you home on a 16-7.”[8] (Id. at 101:17-20.) Plaintiff asked for the form that he was sending her out on, and Mr. Bissell replied, “Go. Just leave. Just go. . . . If you're going to go on sick leave, fill out a 3971.” (Id. at 101:21-25.) Plaintiff filled out the 3971 form to take sick leave for the rest of her shift and left the office. (Id. at 102:1-6.)

         Plaintiff began crying and called her Union Steward, Steve McCully, who arranged for Plaintiff to come back to the station in an hour to pick up her paychecks from Mr. Baldwin. (Id. at 102:6-103:24; see also Doc. 38 at 11.) Plaintiff returned to the station, and Mr. Baldwin accompanied her to his office. (Id. at 104:10-23.) Mr. Bissell came into the office and said he had approved her checks. (Id. at 105:4-7.) Plaintiff signed for the checks and left. (Id. at 105:17- 20.)

         Plaintiff talked to Mr. McCully again and expressed that she could not “work like this.” (Id. at 105:20-24.) On January 15, 2013, Plaintiff went to her doctor's office, where the doctor told her that she was suffering from PTSD and wrote her a note so that she would not have to return to work that day. (Id. at 106:2-14, 115:19-23.) Plaintiff took the doctor's note back to the station and showed it to Mr. McCully, and together, they brought it to Mr. Bissell. (Id. at 106:19-25.) Plaintiff asked Mr. Bissell for the “16-7 that [he was] sending [her] home with.” (Id. at 106:23-107:1.) Mr. Bissell replied, “I just made that up[] because I was angry, because I was mad, because you really pissed me off.” (Id. at 107:2-4.) Mr. Bissell also admitted that he had screamed at Plaintiff the day before. (Id. at 116:5-6.) Plaintiff gave Mr. Bissell the doctor's note and said she would go home sick or on leave without pay. (Id. at 107:12-16.) After the parties hashed out what hours to put on Plaintiff's time sheet for January 14, 2013, Plaintiff left and did not return to her job with the USPS. (See Id. at 110:17-113:12; Doc. 31-B at 4.) Plaintiff successfully bid to work at another USPS station in February 2013; however, she did not actually work at that job. (See Docs. 52 at 7; 52-O ¶¶ 5-6.) On March 30, 2013, Plaintiff was placed on leave without pay. (Doc. 52-O ¶ 6.)

         On April 24, 2013, Plaintiff filed her final EEO complaint, this time regarding Mr. Bissell's treatment of her, and the EEO conducted an investigation. (See Docs. 52-N; 31-B; 31-C; 31-D; 31-E; 31-F; 6-13; Am. Compl. ¶ 13.) Plaintiff's complaint states:

I was discriminated against and reprisals were taken against me . . . when Scott Bissell degraded & verbally abused me. He physically threatened me red faced and closed fists while yelling orders that would exceed my medical restriction. This abuse and assault resulted in real harm, loss, pain and suffering. I have not been able to return to work due to the hostile environment. I am making a claim for this loss.

(Doc. 52-N at 1.) Plaintiff named Mr. Bissell, Ms. Rosarita Archuleta (her supervisor at the Academy Station), Mr. Perez, and Eric Martinez, the USPS Postmaster, as the individuals who had taken discriminatory action against her. (See id.) Plaintiff alleged that the discrimination was based on her race, color, national origin, sex, age, disability, and as retaliation for prior complaints. (See id.) Plaintiff testified that she marked all of the options because she wasn't sure why Mr. Bissell treated her the way he did, so she simply marked “everything that applied to” her. (See Doc. 31-A at 66:20-67:5.)

         As part of the EEO investigation, Mr. Bissell completed an EEO Investigative Affidavit. (See Doc. 31-B.) Mr. Bissell, a white male, stated that he was unaware of Plaintiff's race, national origin, sex, age, or prior EEO activities. (Id. at 1, 4-5.) Mr. Bissell stated that neither Plaintiff's color, race, national origin, sex, age, medical condition, nor prior EEO activities were factors in how he treated her that day. (Id. at 4-5.) Mr. Bissell stated that he was aware that she signed a modified job offer that provided for an eight hour workday with certain physical restrictions.[9] (See Id. at 4.)

         Ultimately, the EEO found in the USPS's favor with respect to Plaintiff's complaint. (See Doc. 6-13.) Plaintiff, proceeding pro se, filed a Complaint in this Court on March 16, 2016, and a Corrected Amended Complaint on April 22, 2016. (Docs. 1, 6, 7.) Construing her Complaint liberally, it appears Plaintiff brings three claims: hostile work environment, retaliation, and constructive discharge.[10] (See Am. Compl. ΒΆΒΆ 18-19; Doc. 31 at 9; 31-A at 78:8-80:24.) Defendant now moves for summary judgment on Plaintiff's hostile work environment and retaliation claims, and moves to dismiss the constructive ...


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