Bennett v . Potter CV-03-063-JD 03/11/04
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Brenda D. Bennett
v. Civil N o . 03-063-JD
Opinion N o . 2004 DNH 044
John E . Potter,
Postmaster General
O R D E R
Brenda D. Bennett brings a claim of gender discrimination
pursuant to Title VII of the Civil Rights Act of 1 9 6 4 , 42
U.S.C. § 2000e-16, and New Hampshire Revised Statutes
Annotated (“RSA”) § 354-A:10, against the Postmaster General
of the United States. 1 Her claim arose from events during her
employment by the United States Postal Service (“USPS”). The
Postmaster General moves for summary judgment on the grounds
that Bennett cannot prove that she suffered discrimination
based on her gender or that any harassment or hostility was
sufficiently severe and pervasive to constitute a hostile work
environment. The Postmaster General also asserts that RSA
354-A:10 does not apply to the circumstances of this case.
Bennett objects to the motion as to Title VII but does not
address her claim under RSA 354-A:10.
1
Bennett’s other claims were previously dismissed.
Background
“All properly supported material facts set forth in the
moving party’s factual statement shall be deemed admitted
unless properly opposed by the adverse party.” LR 7.2(b)(2).
Because Bennett failed to include a statement of facts in her
objection to the Postmaster General’s motion, which does
include a statement of facts, all properly supported facts in
his motion and memorandum will be deemed to be admitted by
Bennett. S e e , e.g., Cosme-Rosado v . Serrano-Rodriguez, ___
F.3d ___, 2004 WL 383357 (1st Cir. Mar. 2 , 2004) (publication
pages unavailable).
Brenda Bennett began working for the USPS in August of
1988 as a Rural Carrier Associate, in Derry, New Hampshire.
In 1991, she was promoted to the position of full-time rural
carrier, assigned to Route 14 in Derry. Bennett’s claims are
based on events beginning in 1998.
In September of 1998, the Derry office posted a job
opening for a full-time carrier for Rural Route 3 . Don
Johnson, who was a Rural Carrier Associate, was awarded the
route in early October. Soon after, Bennett told Postmaster
John Swiniarski that she did not think it was fair that
Johnson was awarded the route because she believed he had lost
2
his driver’s licence on a drunk driving charge. She also told
Swiniarski that she intended to get the union involved.
Swiniarski told Bennett that it was none of her business.
Monday, October 1 2 , 1998, was Columbus Day, and because
it was a federal holiday, there was no mail delivery.
Anticipating a high volume of mail to be processed on Tuesday,
October 1 3 , Bennett asked her supervisor, Bruce Olson, on
Saturday, October 1 0 , if she could come into work on Monday.
Olson denied the request because he had others coming in to
help with the sorting. Bennett went into work on Monday
anyway and found that no mail had been sorted on her route or
on three or four other routes. She left a note for
Swiniarski, letting him know what had happened.
When she arrived at work on Tuesday morning, Bennett
claims she found twice as much mail as she would be able to
deliver. She asked one of her supervisors if she could get
help with her mail. The supervisor said that help would be
provided if someone became available. She was told to do all
of the first and second class mail for delivery that day but
that she could withhold the third class mail if necessary.
She put stickers on six buckets of mail that she did not
deliver on Tuesday. On Wednesday, October 1 4 , she processed
the new mail but did not go back to the six buckets of mail
3
left from Tuesday.
At noon on Thursday, October 1 5 , Swiniarski, along with
Supervisors Patricia Doyle and Brian Casey, confronted Bennett
about the six buckets of leftover mail at her work station.
Swiniarski accused her of holding back first and second class
mail. Bennett said she did not know what was in the buckets
of mail and that she was waiting for help to process that
mail. Bennett felt intimidated and singled out for criticism.
On Friday, October 1 6 , Doyle and Casey asked Bennett to
give them her side of the story. When she asked what the
worst outcome might b e , they told her that she could be fired
for withholding first and second class mail. Bennett
contacted Ann Travers at the Personnel Office to set up an
intervention with Swiniarski. On October 2 7 , Travers notified
Bennett that she had not heard from Swiniarski about
scheduling an intervention and asked Bennett how she wanted to
proceed. Bennett said she did not need to do anything and
dropped i t .
Bennett was called into a meeting with her union
representative, Olson, and Swiniarski on October 3 0 . She was
given written notice that she was being terminated effective
December 5 , 1998. She then left the office on sick leave and
did not return to work. The union initiated a grievance
4
proceeding on her behalf, and on February 6, 1999, Bennett
received a letter notifying her that the USPS has rescinded
her termination and reduced her discipline to a letter of
warning. The same day, Bennett submitted her resignation from
the USPS, effective as of February 1 , 1999. She pursued
administrative proceedings before bringing suit.
Discussion
Bennett’s remaining claim is that she was forced to work
in a hostile environment and was subjected to harassment based
on her gender in violation of Title VII and RSA 354-A:10. The
Postmaster General moves for summary judgment on the Title VII
claim on the grounds that there is no evidence that Bennett
was subjected to a hostile environment or harassment based on
her gender and that any harassment or hostility she
experienced was not sufficiently pervasive or severe to be
actionable. With respect to the claim under RSA 354-A:10, the
Postmaster General points out that the statute is inapplicable
to the circumstances of this case and that any claim that
Bennett might have intended under other provisions of RSA 354-
A is preempted by § 2000e-16.
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on
5
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 5 6 ( c ) . The party seeking summary judgment must first
demonstrate the absence of a genuine issue of material fact in
the record. See Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323
(1986). A party opposing a properly supported motion for
summary judgment must present competent evidence of record
that shows a genuine issue for trial. See Anderson v . Liberty
Lobby, Inc.,
477 U.S. 2 4 2 , 256 (1986). All reasonable
inferences and all credibility issues are resolved in favor of
the nonmoving party. See id. at 2 5 5 .
A. Title VII
“Title VII is neither a civility code nor a general anti-
harassment code. Title VII requires, rather, that the level
of incivility or harassment must amount to either a tangible
or a constructive employment action. Furthermore, the alleged
harassment and the employment action must be causally related.
The discrimination must be based on gender or some other
prohibited category.” Lee-Crespo v . Schering-Plough Del
Caribe Inc., 354 F.3d 3 4 , 37 (1st Cir. 2 0 0 3 ) . As the
Postmaster General points o u t , there is no evidence that the
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events of which Bennett complains were in any way related to
her gender.
1. Wrongful termination.
To the extent Bennett claims that her employment was
terminated in violation of Title V I I , the summary judgment
record does not support such a claim. “Generally, a plaintiff
establishes a prima facie case by showing that ( 1 ) [s]he is a
member of a protected class; ( 2 ) [s]he was qualified for the
job; ( 3 ) the employer took an adverse employment action
against [ h e r ] ; and ( 4 ) the position remained open or was
filled by a person with similar qualifications.” Kosereis v .
Rhode Island, 331 F.3d 2 0 7 , 212-13 (1st Cir. 2003) (citing S t .
Mary’s Honor Ctr. v . Hicks,
509 U.S. 5 0 2 , 506 (1993)). If the
plaintiff establishes a prima facie case, the burden shifts to
the employer to provide a non-discriminatory reason for the
action. Gu v . Boston Police Dep’t,
312 F.3d 6, 11 (1st Cir.
2002). The plaintiff bears the ultimate burden of
establishing intentional discrimination against her.
Id.
Bennett has not addressed who was hired to fill her
position after she was fired, and therefore, has not
established a prima facie case. Even if that factor were
satisfied, however, the Postmaster General has provided a
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legitimate reason for terminating Bennett’s employment which
is that she deliberately failed to sort and deliver the mail
in the six buckets left after Columbus Day. That conduct, the
Postmaster General asserts without contradiction, was
insubordination and an “outright subversion of the fundamental
mission of her employer.” Nothing in the summary judgment
record suggests that Bennett was terminated instead because of
her gender. 2
2. Hostile environment.
In her response to the Postmaster General’s motion,
Bennett contends that her treatment at work during the fall of
1998 amounted to harassment and a hostile work environment
based on her gender.
To prove a claim of hostile work environment sexual
harassment, a plaintiff must establish: ( 1 ) that
she (or h e ) is a member of a protected class; ( 2 )
that she was subjected to unwelcome sexual
harassment; ( 3 ) that the harassment was based upon
sex; ( 4 ) that the harassment was sufficiently severe
or pervasive so as to alter the conditions of
plaintiff’s employment and create an abusive work
environment; ( 5 ) that sexually objectionable conduct
was both objectively and subjectively offensive,
such that a reasonable person would find it hostile
2
That the sanction against Bennett was later reduced from
termination to a letter of reprimand following a union
grievance procedure does nothing to show that she was
terminated based on her gender.
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or abusive and the victim in fact did perceive it to
be s o ; and ( 6 ) that some basis for employer
liability has been established.
Crowley v . L.L. Bean, Inc., 303 F.3d 3 8 7 , 395 (1st Cir. 2002)
(citing O’Rourke v . City of Providence,
235 F.3d 7 1 3 , 728 (1st
Cir. 2001)). In particular, Bennett contends that she was
subjected to disparate treatment based on her gender when
Swiniarski criticized her, rules were applied more harshly to
her, she was given poor performance appraisals and increased
workloads, she was not given support during heavy workloads,
she had to rely on employees who had retaliated against her
for filing a complaint against them, and her mail was not
sorted after the Columbus Day holiday.3
Hostility and harassment, even when it is severe, is
insufficient to support a Title VII claim unless the treatment
is discriminatory. S e e , e.g., Higgins v . New Balance Athletic
Shoe, Inc., 194 F.3d 2 5 2 , 258 (1st Cir. 1 9 9 9 ) . Bennett offers
no evidence of any kind that she was treated differently than
3
Although Bennett recites this list of alleged
mistreatment and adds her own view that she was treated
differently than male employees, she offers no evidence of
disparate treatment. As the party with the burden of proof,
Bennett cannot rely on speculation or conjecture and must
present “more than a mere scintilla of evidence in her favor.
Invest Almaz v . Temple-Inland Forest Prods. Corp., 243 F.3d
5 7 , 76 (1st Cir. 2 0 0 1 ) .
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male employees or that she was harassed or treated with
hostility because she is a woman. Instead, based on the
summary judgment record, it appears that to the extent she was
treated any differently than her fellow employees, that
difference was due to animosity arising from her complaint
against Don Johnson, which was not based on her gender, and
because she did not perform her job as her supervisors
expected her and all other employees to d o .
Therefore, based on the summary judgment record, Bennett
cannot prove her Title VII claim, and the Postmaster General
is entitled to summary judgment. 4
B. RSA 354-A:10
The Postmaster General correctly asserts in his motion
that RSA 354-A:10 proscribes discriminatory practices in
leasing and selling residential and commercial property, which
has no application to the circumstances of this case. It
appears that Bennett’s counsel failed to read the statute that
4
The Postmaster General also contends that the events in
September and October of 1998 were not sufficiently severe or
pervasive to constitute a hostile work environment. S e e ,
e.g., Lee-Crispo, 354 F.3d at 4 4 . While that may also be
true, because there is no evidence that Bennett’s experiences
were related to her gender, it is unnecessary to consider the
viability of her claim on other grounds.
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she cites in the complaint filed on behalf of Bennett. In
addition, Bennett did not address the claim in her objection
to summary judgment. As Bennett has not alleged a cause of
action under RSA 354-A:10, the Postmaster General is entitled
to summary judgment on that claim.5
Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document n o . 1 0 ) is granted. The clerk of
court shall enter judgment in accord with this order and the
court’s order of May 2 3 , 2003 (document n o . 7 ) and close the
case.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
March 1 1 , 2004
cc: Mary Notaris, Esquire
T . David Plourde, Esquire
5
The Postmaster General alternatively argues that if
Bennett intended to allege a claim under RSA 354-A:6 and : 7 ,
which address discrimination in employment, such a claim would
be preempted by § 2000e-16. The court declines to construe
Bennett’s complaint to state a claim that is not alleged.
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