Monday v. Potter 07-CV-226-SM 10/14/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jerusalem K. Monday, Plaintiff

v. Civil No. 07-cv-226-SM Opinion No.

John E. Potter, Postmaster General, United States Postal Service, Defendant

O R D E R

Pro se plaintiff Jerusalem Monday claims that his former

employer, the United States Postal Service ("USPS"), fired him

because of his race or national origin, in violation of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et se a .

("Title VII"). Before the court is defendant's motion for

summary judgment. Plaintiff objects. For the reasons given,

defendant's motion for summary judgment is granted.

Summary Judgment Standard

Summary judgment is appropriate when the record reveals "no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." F e d . R. C i v . P.

56(c). To defeat a motion for summary judgment, "the non-moving

party 'must set forth specific facts showing that a genuine issue

of material fact exists as to each issue upon which [he] would bear the ultimate burden of proof at trial.'’" Torres-Negron v.

Merck & C o .,

(1st Cir. 2007) (quoting Santiaqo-

Ramos v. Centennial P.R. Wireless Corp..

(1st

Cir. 2000)). To make that showing, "the non-moving party may not

rest merely upon the allegations or denials in its pleading."

I d . (citation omitted). When ruling on a party's motion for

summary judgment, the court must view the facts in the light most

favorable to the nonmoving party and draw all reasonable

inferences in that party's favor. See i d . (citing Rodriquez v.

SmithKline Beecham.

(1st Cir. 2000)).

Background

The court notes at the outset that, contrary to Local Rule

7.2(b)(2), plaintiff has not incorporated into his memorandum "a

short and concise statement of material facts, supported by

appropriate record citations." Accordingly, "[a]11 properly

supported material facts set forth in [defendant]'s factual

statement [are] deemed admitted." I d .; of. Fontanez-Nuhez v.

Janssen Ortho LLC,

(1st Cir. 2006) ("This court

has held repeatedly that the district court in Puerto Rico is

justified in holding one party's submitted uncontested facts to

be admitted when the other party fails to file oppositions in

compliance with local rules.") (quoting Torres-Rosado v. Rotqer-

Sabat,

(1st Cir. 2003)). Moreover, plaintiff has

2 produced neither affidavits nor any admissible evidence in

opposition; he merely makes unsupported factual allegations in

his unsworn reply brief. Thus, the factual background set out

below is drawn from defendant's properly supported factual

statement and other undisputed evidence submitted.

Monday is African and of Nigerian descent.1 The USPS hired

him in September, 2004, as a casual employee, to work in its

Nashua, New Hampshire Logistics and Distribution Center

("Center"). Monday was typically supervised by Michael Carney,

who reported to David Keane, in turn, who reported to Timothy

0 'Connor.

On August 10, 2005, Monday was assigned to work in "the

flats," a work area where large flat envelopes are sorted for

delivery. After reporting to the flats, Monday spent

approximately thirty minutes staring at a female employee, Amy

Johnson.

Monday's behavior made Johnson uncomfortable, and she

reported it to her supervisor. Faith Luhtala. Luhtala also

1 While plaintiff identifies himself as African American in his pleadings, he testified in an Equal Employment Opportunity Commission hearing in this case that his nationality is Nigerian and that he has a green card, which suggests that, as a resident alien, he is African, not African American.

3 observed Monday staring at Johnson. After seeing it for herself,

Luhtala reported Monday's behavior to Keane. Later, Johnson

discussed the incident with Keane. Keane asked her to put her

complaint against Monday in writing. She did so. She also told

Keane that she would be satisfied if management instructed Monday

to stay away from her at all times. Keane then told Carney to

instruct Monday to stay away from Johnson and to stay out of the

flats. Carney spoke with Monday about Johnson's complaint. In

response, Monday told Carney that he would stay away from

Johnson. Carney, in turn, told Keane that he had directed Monday

to stay out of the flats and away from Johnson, and that Monday

had agreed to do so.

Five days later, Monday came up behind Johnson in a narrow

corridor, so that when she turned around, the two were face-to-

face. Johnson again complained to Keane, who asked her to put

her complaint in writing. She did so. Keane promised to make

sure that Monday stayed out of the flats.

Several days later, after learning that Monday had been

assigned to work in the flats, Keane spoke with Monday. Keane

told Monday that his assignment to the flats had been a mistake,

that he was not to work in the flats, and that if any supervisor

4 assigned him to the flats, he should tell the supervisor to

contact Keane.

On October 17, Johnson spotted Monday in the flats, which

she reported to Keane. Keane and another supervisor confronted

Monday, who explained that he had been in the flats to retrieve a

cell phone from a co-worker. Keane reminded Monday that he was

not allowed in the flats, and sent him home for the rest of his

shift. Keane then contacted his superior, O'Connor, and

recommended that Monday be fired. O'Connor agreed. In a letter

dated October 19, O'Connor terminated Monday's employment,

explaining that Monday's firing was due to his failure to follow

instructions.

In his objection to summary judgment Monday states, without

citation to the record, that he was never prohibited from passing

through the flats. Notwithstanding plaintiff's failure to

support that assertion, partial support may be found in a

deposition taken from him in a proceeding before the United

States Equal Employment Opportunity Commission and submitted by

defendant in support of his summary judgment motion. In that

deposition, Monday testified that Carney never told him to stay

away from Johnson or to stay out of the flats. On the other

hand, there is no evidence to refute defendant's evidence that

5 Keane also told plaintiff he was not allowed to go into the

flats.

Discussion

Monday claims that defendant discriminated against him

because of his race or national origin by firing him. Defendant

argues that Monday's discrimination claim fails as a matter of

law because the undisputed factual record demonstrates that he

was fired for a legitimate non-discriminatory reason, i.e.. going

into the flats after he had been told to stay out of that area

and promised to do so. Without record support, Monday argues

that his firing was pretextual because: (1) the USPS conducted no

investigation into Johnson's allegations against him and did not

show him Johnson's written complaint; (2) the workforce at the

Center was predominately white; and (3) other black employees had

been fired for the same reason given in his termination letter:

failing to follow instructions. Plaintiff also contends, without

citation to the record, that various factual disputes preclude

summary judgment. Specifically, he claims that he was never told

to avoid Johnson or the flats and that the second alleged

incident involving Johnson - coming up behind her in a narrow

corridor - never occurred.

6 Under Title VII, it is "an unlawful employment practice for

an employer . . . to . . . discriminate against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race,

color, religion, sex, or national origin." 42 U.S.C. § 2000e-

2(a)(1).

Because plaintiff has produced no direct evidence of

discrimination, it is necessary to consider his claim under "the

McDonnell Douglas—Burdine— Hicks burden-shifting analysis."

Straughn v. Delta Air Lines. Inc..

(1st Cir.

2001). "Under this analysis, the plaintiff must first establish

a prima facie case of discrimination." Sher v. U.S. Dep't of

Veterans Affairs.

, 507 n.19 (1st Cir. 2007)

(parallel citations omitted).

After the plaintiff has established this prima facie case, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason" for the adverse employment action. McDonnell Douglas [Corp. v . Greenl, 411 U.S. [792,] 802 [(1973)]. If the defendant meets this requirement, the burden of production shifts back to the plaintiff, who must offer evidence showing that the defendant's proffered reason is pretext for discrimination. I d . at 804. While the McDonnell Douglas analysis thus shifts the burden of production, the burden of persuasion remains with the plaintiff at all times. St. Mary's Honor Ctr. v. Hicks.

(1993).

7 Sher, 488 F.3d at 507 n.19 (1st Cir. 2007) (parallel citations

omitted). But, "[o]n summary judgment, the need to order the

presentation of proofs is largely obviated, and a court may often

dispense with strict attention to the burden-shifting framework,

focusing instead on whether the evidence as a whole is sufficient

to make out a jury question as to pretext and discriminatory

animus." Garcia v. Bristol-Myers Squibb Co..

(1st Cir. 2008) (quoting Fennell v. First Step Designs. Ltd..

(1st Cir. 1996)). Such an approach is warranted in

this case.

In comparison with the burden of establishing a prima facie

case, "[t]he pretext analysis ... is more demanding." Kosereis

v. Rhode Island.

(1st Cir. 2003) (citation

omitted). To carry his burden of production, plaintiff must

present sufficient evidence to show both that defendant's

articulated reason for terminating him was a pretext and that the

true reason was discriminatory. See Straughn.

(quoting Thomas v. Eastman Kodak Co..

(1st Cir.

1999)). It is important to note that pretext alone is not

enough; "Title VII does not stop [an employer] from [firing] an

employee for any reason - fair or unfair - so long as the

decision to [fire] does not stem from a protected

characteristic." Rodriquez-Cuervos v. Wal-Mart Stores. Inc.. 181

, 22 (1st Cir. 1999) (citing Mesnick v. Gen. Elec. Co..

(1st Cir. 1991)). Here, Monday has established

neither pretext nor discriminatory animus.

"Pretext can be proven in several different ways." Che v .

Mass. Bay Transp. Auth.,

(1st Cir. 2003) (citing

Santiago-Ramos.

). Monday appears to rely on two

of them.

One "way of demonstrating pretext is /by showing that the

employer's proffered explanation is unworthy of credence.'" Che,

(quoting Reeves v. Sanderson Plumbing Prods..

Inc.,

(2000)); see also Straughn.

(explaining that burden of persuasion on pretext may be sustained

by demonstration that "the proffered 'explanation [was] unworthy

of credence' in circumstances where the suspect denial, taken

together with other facts, suggests [a discriminatory]

motivation") (quoting Tex. Dep't of Cmtv. Affairs v. Burdine.

(1981)).

Defendant's explanation for the decision to terminate Monday

is not unworthy of credence. O'Connor's letter to Monday

informed him that he was being fired for failing to follow

instructions. The undisputed factual record demonstrates that

9 even if Carney did not tell Monday to stay out of the flats, as

Monday claims, Keane gave Monday the same instruction. After

Keane told him to stay out of the flats, Monday entered the area

again. Thus, the explanation O'Connor gave plaintiff for his

termination is entirely credible. Now, at summary judgment,

perhaps in (unwarranted) deference to Monday's unsupported claim

that he was never told to stay out of the flats, defendant says

Monday was terminated for breaking his promise to stay out of

that area.2 There is no basis in the record for finding that

explanation unworthy of credence. It is undisputed that Monday

told Carney in August that he would stay out of the flats and

that he entered the area on October 17. Plaintiff himself

concedes that he was "terminated from his employment based on

this singular act of passing through Ms. Johnson's work area."3

2 While a Title VII plaintiff may demonstrate pretext by showing that "the employer gave 'different and arguably inconsistent explanations' for taking the adverse employment action,'" McDonough v. City of Quincy.

(1st Cir. 2006) (quoting Dominquez-Cruz v. Suttle Caribe. Inc..

(1st Cir. 2000)), the two explanations here are not so inconsistent as to demonstrate pretext, and both are supported by the undisputed factual record.

3 He continues by stating that the USPS "cannot defend its action of restricting the movement of the Defendant within a facility that is supposedly non-discriminatory just on an unsupported allegation of a white female employee." Thus, plaintiff appears to argue that: (1) he was fired for going into the area where Johnson worked; (2) the USPS had no right to restrict his movements in the workplace; and (3) because he is black and Johnson is white, his termination was racially motivated. Beyond plaintiff's incorrect legal premise, i.e.. that he had a constitutional right to unrestricted movement

10 Therefore, defendant's alternative explanation for Monday's

termination is also entirely credible. Thus, Monday has not

produced evidence showing that defendant's explanation for his

firing is pretextual because it is not worthy of credence.

A Title VII plaintiff may also prove pretext "by presenting

evidence of disparate treatment." Che,

(citing

Straughn.

; Mesnick,

).

Plaintiff's claim of disparate treatment, such as it is, consists

of unsupported assertions that the workforce at the Center is

predominately white and that other black employees have been

fired for failing to follow instructions. Even if true, those

assertions do not establish disparate treatment.

It is fundamental that "[a] claim of disparate treatment based on comparative evidence must rest on proof that the proposed analogue is similarly situated in all material respects." Perkins v. Brigham & Women's Ho s p .,

(1st Cir. 1996). The comparison cases need not be perfect replicas. See Conward [v. Cambridge Sch. Comm.1. 171 F.3d [12,] 20 [(1st Cir. 1999)]. Rather, the test is whether a "prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated." Dartmouth Review v. Dartmouth College.

(1st Cir. 1989). Thus, in offering this comparative evidence, Rodriguez bears the burden of showing that the individuals with whom he seeks to be compared "have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating

throughout his workplace, he has produced no evidence of racial animosity on the part of Carney, Keane, or O'Connor.

11 circumstances that would distinguish their conduct or the employer's treatment of them for it." Mitchell v. Toledo Ho s p .,

(6th Cir. 1992).

Rodriquez-Cuervos. 181 F.3d at 21 (emphasis added). Here,

plaintiff offers no analogue, i.e.. no similarly situated white

USPS employee who engaged in the same conduct he did without

being similarly disciplined for it. Thus, plaintiff has not

produced evidence showing that defendant's explanation for his

firing is pretextual because he was the victim of disparate

treatment. See Perkins.

("the proponent of the

evidence must show that the individuals with whom he seeks to be

compared have 'engaged in the same conduct without such

differentiating or mitigating circumstances that would

distinguish their conduct or the employer's treatment of them for

it'") (quoting Mitchell.

).

Because plaintiff has failed to produce evidence from which

pretext could be inferred, and has failed to produce any evidence

of discriminatory animus, defendant is entitled to judgment as a

matter of law on plaintiff's Title VII claim.

Conclusion

For the reasons given, defendant's motion for summary

judgment (document no. 10) is granted. The clerk of the court

12 shall enter judgment in accordance with this order and close the

case .

SO ORDERED.

Steven J./McAuliffe Chief Judae

October 14, 2008

cc: Jerusalem K. Monday, pro se Seth R. Aframe, Esq.

13