Retaliation Claim Proceeds Despite Employee Sleeping on Job

By Jeffrey Rhodes Dec 21, 2016
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A U.S. Postal Service (USPS) police officer was fired for sleeping on the job after she filed a complaint of discrimination. Her discrimination and retaliation claims could proceed to trial because she showed that others slept on the job without being fired, the U.S. District Court for the District of Massachusetts ruled.

The USPS hired Diping Anderson, who is of Chinese descent, as a postal police officer  at the Boston General Mail Facility in July 2000. On May 12, 2011, Anderson filed a pre-complaint statement with the Equal Employment Opportunity Commission (EEOC) alleging that her supervisors, Captain Harrington and Sergeant Ford, impeded her return to work after a workplace injury because of her race.

The EEOC notified Harrington and Ford of Anderson's filing on May 23, 2011. When Anderson returned to work on May 25, she found that her normal chair had been replaced by a broken chair. Anderson objected to Ford, and Ford responded that if she did not like it she could go home. Anderson went home, and, on May 26, Ford rescinded his approval of her request for leave on May 21 and changed her status on that day to "AWOL."

The EEOC held a conference on June 15, 2011, between Anderson and her supervisors. Nine days later, Ford issued a seven-day suspension against Anderson for leaving her assigned post without authorization. The notice of suspension claimed that Anderson had left the facility on May 21, 25 and 26 without prior approval.

Anderson's June 9, 2011, formal EEOC complaint alleged that her seven-day suspension was based on discrimination. On March 25, 2012, Anderson filed her second formal complaint with the EEOC claiming that she was being harassed by her supervisors in retaliation for her prior EEOC filing.

On August 29, 2012, Anderson's new supervisor, Sergeant Joseph Motrucinski, issued a letter of warning against her for failure to properly protect and secure her service weapon at the end of her shift on Aug. 1, 2012. Anderson filed a statement with the EEOC on Sept. 11, 2012, claiming that the warning letter was another act of retaliation. Anderson received another warning letter on Sept. 26, 2012, for misplacing her keys and keeping her weapon locker key in her locker with her weapon.

Anderson filed a third formal complaint on Dec. 28, 2012, and the EEOC contacted Ford and Motrucinski to request affidavits. Motrucinski issued Anderson a notice of removal on Sept. 9, 2013, claiming that Anderson was sleeping in her car on June 6, 2013, when she was supposed to be standing outside her cruiser to prevent access to a postal distribution center.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

On Aug. 15, 2014, Anderson filed a federal court complaint alleging race and national original discrimination and retaliation. She claimed that her supervisors subjected her to more severe disciplinary punishment than other postal police officers because of her race and in retaliation for her EEOC activity. The USPS filed a motion for summary judgment claiming that Anderson's complaint should be dismissed because she could not show that she was disciplined more harshly than similarly situated employees.

To defend against the motion for summary judgment, Anderson produced evidence that white employees were disciplined less severely for equal or greater misconduct. A veteran officer testified that postal police officers were rarely disciplined and even more rarely fired even when they repeatedly violated USPS rules and regulations.

Anderson further showed that other officers, including Motrucinski, had misplaced or lost their service weapons and only received a warning or less. She also produced evidence that a number of postal police officers were notorious for falling asleep on the job and were never disciplined.

The court found that Anderson presented sufficient evidence of disparate discipline to survive summary judgment. While the USPS claimed that Anderson did not show that the other postal police officers she mentioned were in her same department, the court found the postal police officers could still be similarly situated to Anderson. Anderson further showed that her discipline and discharge were related to her EEOC filings because they were close in time and because she presented evidence that Ford had stated that he wanted to remove her after she filed with the EEOC.

The court thus denied the USPS's motion for summary judgment.

Anderson v. Brennan, D. Mass, No. 14-13380-PBS (Nov. 23, 2016).

Professional Pointer: Even when an employee engages in an egregious act of misconduct like sleeping on the job, the employee may still be able to show disparate discipline. Employers must be consistent in their discipline and should consider whether other employees acted similarly but were not punished before taking disciplinary action.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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