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Hargis v. Brennan

United States District Court, D. Nebraska

November 28, 2018

MEGAN J. BRENNAN, Postmaster General, in her official capacity; Defendant.


          Laurie Smith Camp United States District Judge

         This matter is before the Court on the Motion for Summary Judgment, ECF No. 46, filed by Defendant Megan Brennan, the United States Postmaster General. For the reasons stated below, the Motion will be granted.


         Unless otherwise indicated, the following facts are those stated in the parties' briefs, supported by pinpoint citations to admissible evidence in the record, in compliance with NECivR 56.1[1] and Federal Rule of Civil Procedure 56.[2]

         On February 26, 2001, Plaintiff Michelle Hargis began work at the United States Postal Service Processing and Distribution Center in Omaha, Nebraska (USPS). On May 17, 2014, USPS promoted her to Supervisor of Distribution Operations (SDO). Her regular work schedule was Tuesday through Saturday from 6:00 a.m. to 3:00 p.m., with Sundays and Mondays off. Hargis was generally responsible for “[s]upervis[ing] a medium group of employees engaged in mail processing and distribution activities.” Job Description, ECF No. 47-6, Page ID 314. Under USPS's management hierarchy, Hargis and other SDOs reported directly to the Managers of Distribution Operations (MDOs); the MDOs reported to the senior MDO; and the senior MDO reported to the Senior Plant Manager.

         USPS generally assigned employees to one of three shifts: Tour 1 (10 p.m. to 6:30 a.m.); Tour 2 (7:30 a.m. to 4:30 p.m.); and Tour 3 (4:00 p.m. to 1:00 a.m.). At some point following her promotion, Hargis was assigned to Tour 2. In September 2015, the Senior Plant Manager, Pamela Cook, decided to reevaluate the number of SDOs assigned to the Tour 2 and Tour 3 shifts. At the time, Tour 3 had fewer SDOs than Tour 2, and Cook believed that Tour 3 needed more SDOs than Tour 2. Thus, sometime between September and November 2015, Cook decided to reassign one SDO from Tour 2 to Tour 3, and another SDO from Tour 2 to a Tour 2-Tour 3 split shift. Cook also decided that the two most recently promoted Tour 2 SDOs would be selected for reassignment.[3]

         In November 2015, Cook told Hargis that because she was the second most recently promoted SDO Hargis had the option of taking either the Tour 3 assignment or the Tour 2-Tour 3 split shift assignment. Hargis Dep., ECF No. 52-1, Page ID 481, 20:25. Hargis chose the split shift but objected to the reassignment because she was a single parent to her nine-year-old child and was concerned about the effect Tour 3 shifts would have on her childcare arrangements. The most recently promoted Tour 2 SDO, Komlan Amegbeto, was reassigned to Tour 3. On the split shift, Hargis was to work the Tour 2 shift on Tuesdays and Wednesdays and the Tour 3 shift on Thursdays, Fridays, and Saturdays. She would continue to have Sundays and Mondays off. According to Hargis, when she objected to the reassignment, Cook stated “go ahead and file an EEO because she [Cook] never loses.” Hargis Dep., ECF No. 52-1, Page ID 489-90.

         Hargis also claims that, at some point, Mike Dornbusch, the senior MDO at the time, told Hargis that she would remain on Tour 2 permanently.[4] Cook discussed the reassignment with Hargis again on January 15, 2016, and told Hargis that she would be assigned the split shift despite her childcare concerns. Hargis reasserted her opposition during that discussion. On January 23, 2016, Hargis filed an Information for Pre-Complaint Counseling, ECF No. 47-7, Page ID 353, with the United States Postal Service Equal Employment Opportunity Office (EEOO) wherein she complained about Cook's decision to assign Hargis the split shift. Id. In a letter to Hargis dated February 10, 2016, Cook confirmed that she was reassigning Hargis to the split shift, but also informed Hargis that the reassignment was being postponed until March 26, 2016, to give Hargis additional time to make childcare arrangements. Until then, Hargis was to remain on Tour 2. Hargis's reassignment was further postponed to June 11, 2016, because she served a temporary detail as Acting Supervisor of Customer Service from March 26, 2016, to June 10, 2016. Hargis continued to object to her upcoming reassignment and, on April 17, 2016, she filed a formal Complaint of Discrimination, ECF No. 47-7, Page ID 357, claiming Cook discriminated against her, based on her sexual orientation, and retaliated against her for contacting the EEOO. Hargis supplemented her complaint on August 29, 2016. ECF No. 47-7, Page ID 361. On June 11, 2016, Hargis began working the split shift.

         Throughout July and August 2016, Tour 2 occasionally had unfilled SDO shifts on days when Hargis was scheduled to work on Tour 3 and on Hargis's scheduled days off. The MDOs were responsible for making sure their Tours were adequately staffed, and, generally, when Tour 2 had unfilled SDO shifts, the MDO had a Tour 1 or Tour 3 SDO cover the unfilled shift. Sometimes, other MDOs covered the unfilled shifts as well. USPS often had to compensate the employee who covered the unfilled shift with overtime pay. Although Lance Abbott, the Tour 3 MDO, and George Jarrett, the Tour 2 MDO, allowed Hargis to cover some of the unfilled Tour 2 shifts in August, Hargis complained that she was not permitted to cover other unfilled Tour 2 shifts, and that she should have been returned to Tour 2 permanently.

         On August 2, 2016, USPS solicited applications for two open SDO positions, one on the Tour 2 shift and the other[5] partially on Tour 2 and partially on Tour 3. Hargis applied for both positions, but was not selected for an interview. David Dunning, the Manager in Plant Support, was the Selecting Official for both positions, and a committee was formed to review applications. Michaeal Sralik, the senior MDO, chaired the committee, and Jay Nuzum and Heidi Meyers, both Operations Support Specialists, were the other committee members. According to the committee, they rejected Hargis's application because she failed to address and answer certain questions adequately on the application. Hargis claims she was the most qualified person for both open positions and that her application was not deficient in any regard.

         In June 2016, while Hargis was serving her temporary detail as Acting Supervisor of Customer Service, Stephen Prince, the Manager of Customer Service Operations, denied Hargis's requests for annual leave on June 3 and 4. On June 23, 2016, after Hargis returned to her permanent SDO position on the split shift, she requested annual leave for June 25, 2016, and Abbott, the Tour 3 MDO, denied that request. Her other requests for annual leave on June 10, 24, and 27-30 were approved. Sometime in late June or early July, Hargis complained to Cook about the denials of her annual leave requests.

         On August 3, 2016, Hargis emailed Edward Newman, who served as acting MDO on Tour 2 and Tour 3 on an as-needed basis, and told him she would be leaving work early the next day for a doctor's appointment. Newman construed the email as a request for sick leave and denied the request. He explained to Hargis that “[t]his [was] not the appropriate way to request leave for an appointment. [A] leave slip should be given to one of the MDOs in person so the leave can be scheduled and approved in advance.” Newman Aff., ECF No. 47-3, Page ID 252. Abbott approved Hargis's later requests for sick leave on September 13, 29, and 30.

         On August 16, 2016, Hargis submitted a request for annual leave from September 6 through 11, and Abbott denied that request. Hargis also separately requested annual leave for September 10 and 17 so that she could attend football games. Newman reviewed the requests and denied Hargis's request for leave on September 10 but approved her request for leave on September 17.

         Hargis was never terminated or demoted, and she never received a reduction in pay or benefits. Although Hargis complained that her split shift schedule and Cook's management decisions prevented her from working overtime hours, it is undisputed that on June 24, 2016, Hargis told Cook and Newman that she was restricted to working eight hours each day and forty hours each week.

         Hargis brought this action against USPS asserting claims against USPS for sexual orientation discrimination and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). She also asserted claims against Cook, personally, for intentional infliction of emotional distress and negligent infliction of emotional distress. Brennan moved to dismiss Hargis's discrimination and emotional distress claims, and, on October 17, 2017, the Court granted that motion. Mem. and Order, ECF No. 25. Brennan now moves for summary judgment on Hargis's only remaining claim-for retaliation under Title VII.


         “Summary judgment is appropriate when, construing the evidence most favorably to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir. 2013) (citing Fed.R.Civ.P. 56(c)). “Summary Judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) cert. denied, 132 S.Ct. 513 (2011)) (internal quotation marks omitted). In reviewing a motion for summary judgment, the Court will view “all facts and mak[e] all reasonable inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five Star Custom Foods, Ltd.,703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The moving party ...

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