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Lopez v. Brennan

United States District Court, D. Utah

September 28, 2018

STEVE LOPEZ, Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General, United States Postal Service, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS (ECF NO. 14)

          EVELYN J. FURSE MAGISTRATE JUDGE

         Plaintiff Steve Lopez filed the present Title VII civil rights action in August 2015. (Compl., ECF No. 2.) Mr. Lopez asserts claims for a national origin and race based hostile work environment and retaliation for claiming national origin or race based discrimination against his employer, the United States Postal Service (“Postal Service”).[1] (See id.) Defendant Megan J. Brennan, Postmaster General, United States Postal Service (“Postmaster Brennan”) now moves the Court[2] for summary judgment on all of Mr. Lopez's claims. (Def.'s Mot. for Summ. J. on All Claims (“Mot.”), ECF No. 14.) Mr. Lopez opposes Postmaster Brennan's Motion for Summary Judgment but does not dispute any of the facts set forth in her Statement of Undisputed Facts or set forth any additional undisputed facts in support of his Opposition. (See generally Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. on All Claims (“Opp'n”), ECF No. 19.)

         After considering the parties' briefing and the undisputed facts in this case, the Court finds Mr. Lopez fails to set forth facts from which a rational jury could conclude that the Postal Service subjected him to a hostile work environment because the alleged actions and inactions are neither severe nor pervasive. Similarly, the Court finds Mr. Lopez fails to set forth facts from which a rational jury could conclude that the Postal Service retaliated against him for engaging in activity that Title VII protects because of a lack of causal connection between the protected activity and the alleged retaliation. Accordingly, the Court GRANTS Postmaster Brennan's Motion for Summary Judgment.

         SUMMARY JUDGMENT STANDARD

         The Court grants summary judgment when the evidence shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “‘A fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.'” Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013) (quoting E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (internal quotations omitted)).

         “‘[W]here the non moving party will bear the burden of proof at trial on a dispositive issue' that party must ‘go beyond the pleadings' and ‘designate specific facts' so as to ‘make a showing sufficient to establish the existence of an element essential to that party's case' in order to survive summary judgment.” McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Further, “in opposing a motion for summary judgment, the non-moving party ‘cannot rest on ignorance of facts, on speculation, or on suspicion.'” Bird v. W.Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (quoting Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988)).

         In evaluating a motion for summary judgment, the Court reviews “the facts in the light most favorable to the nonmovant and draw[s] all reasonable inferences in the nonmovant's favor.” Jones v. Norton, 809 F.3d 564, 573 (10th Cir. 2015).

         FACTUAL BACKGROUND

         The following facts are taken from Postmaster Brennan's Motion. (Mot. 2-7, ECF No. 14.) Mr. Lopez does not dispute these facts or set forth any additional facts to support his Opposition. (See Opp'n 2-12, ECF No. 19.)

         Mr. Lopez worked as a city carrier for the Postal Service in the Holladay Post Office during all times relevant to this case. (Mot., Statement of Undisputed Facts (“Facts”) ¶ 1, ECF No. 14; Ex. A to Mot., Equal Emp't Opportunity Comm'n (“EEOC”) Hr'g Tr. 16:12-17:2, ECF No. 14-2.) Mr. Lopez's national origin is Mexico. (Mot., Facts ¶ 2, ECF No. 14; Ex. B to Mot., Lopez EEO Aff., USPS000097, ECF No. 14-3.) Mr. Lopez has a history of filing Equal Employment Opportunity (“EEO”) complaints dating back to the 1980s. (Mot., Facts ¶ 3, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 117:25- 118:9, ECF No. 14-2.)

         Heidi Clark directly supervised Mr. Lopez during the relevant period. (Mot., Facts ¶ 4, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 17:7-14, ECF No. 14-2; Ex. C to Mot., Clark EEO Aff., USPS000184, ECF No. 14-4.) Karen Higgs served as station manager during the relevant period . (Mot., Facts ¶ 4, ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000153, ECF No. 14-5; Ex. A to Mot., EEOC Hr'g Tr. 302:20-304:21, ECF No. 14-2.) Eric Fields, one of Mr. Lopez's co-workers, worked as a clerk at the Holladay Post Office and union steward during the time relevant to this case. (Mot., Facts ¶ 5, ECF No. 14; Ex. E to Mot., Fields EEO Aff., USPS000241, ECF No. 14-6; Ex. A to Mot., EEOC Hr'g Tr. 98:2-7, 204:16-205:2, ECF No. 14-2.) Mr. Fields is of German-Irish descent. (Mot., Facts ¶ 6, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 203:7-11, ECF No. 14-2.)

         Ms. Clark, Ms. Higgs, and Mr. Fields knew Mr. Lopez's race and national origin during the relevant time. (Mot., Facts ¶ 7, ECF No. 14; Ex. C to Mot., Clark EEO Aff., USPS000183, ECF No. 14-4; Ex. D to Mot., Higgs EEO Aff., USPS000152, ECF No. 14-5; Ex. A to Mot., EEOC Hr'g Tr. 254:6-13, ECF No. 14-2.) Ms. Clark and Ms. Higgs also knew of Mr. Lopez's prior EEO activity during the relevant period. (Mot., Facts ¶ 8, ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000152, ECF No. 14-5; Ex. A to Mot., EEOC Hr'g Tr. 368:23-369:1, ECF No. 14-2.)

         A. Lori Sugar Promotion

         At various times, Mr. Lopez told Ms. Higgs he sought a promotion outside of the Holladay Post Office. (Mot., Facts ¶ 9, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 316:11-16, 344:16-345:4, ECF No. 14-2.) In December 2010, Ms. Higgs promoted another Holladay Post Office employee, Lori Sugar, to a temporary supervisor position known as 204(b). (Mot., Facts ¶ 10, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 315:17- 316:10, ECF No. 14-2.) Ms. Higgs did not offer Mr. Lopez that position, and he did not compete for it. (Mot., Facts ¶ 11, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 63:20-64:1, 316:17-22, ECF No. 14-2.)

         In January 2011, Mr. Lopez called Salt Lake City Postmaster Charley Wright to complain about Ms. Sugar's promotion, citing her lack of education and prior criminal record. (Mot., Facts ¶ 12, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 21:2-13, 31:1-23, ECF No. 14-2; Ex. F to Mot., Wright EEO Aff., USPS000202, USPS000211, ECF No. 14-7.) Mr. Lopez claims he told Mr. Wright that he is more qualified than Ms. Sugar, but she got promoted because she is white and friends with Ms. Higgs. (Mot., Facts ¶ 12, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 21:2-13, 31:1-23, ECF No. 14-2.) Mr. Wright shared Mr. Lopez's concerns about Ms. Sugar's promotion with Ms. Higgs but did not mention anything to Ms. Higgs about national origin discrimination or retaliation. (Mot., Facts ¶ 13, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 326:18-327:20, ECF No. 14-2.) Mr. Lopez also voiced his concerns about cronyism and favoritism to Ms. Sugar. (Mot., Facts ¶ 14, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 22:21-23:16, ECF No. 14-2.)

         B. Mr. Lopez and Mr. Fields Interactions

          Until approximately 2011, Mr. Lopez and Mr. Fields remained cordial with each other. (Mot., Facts ¶ 15, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 208:7-209:11, ECF No. 14-2.) After Ms. Sugar's promotion, Mr. Lopez and Mr. Fields began to have a negative relationship. (Mot., Facts ¶ 16, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 23:10-24:1, ECF No. 14-2.) Mr. Fields sang, whistled, and changed song lyrics to reference those around him, which annoyed other coworkers including Mr. Lopez. (Mot., Facts ¶¶ 17, 18, ECF No. 14; Ex. B to Mot., Lopez EEO Aff., USPS000125, ECF No. 14-3; Ex. D to Mot., Higgs EEO Aff., USPS000157, ECF No. 14-5; Ex. A to Mot., EEOC Hr'g Tr. 207:4-13, ECF No. 14-2.)

         At some point after Ms. Sugar's promotion, Mr. Lopez “crossed crafts” by handling and sorting certain mail that under union rules only clerks could handle. (Mot., Facts ¶ 19, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 216:4-217:15, ECF No. 14-2.) Mr. Fields asked Mr. Lopez to stop, threatened to file grievances, and informed management about the situation. (Id.) Management prohibited Mr. Lopez from sorting this type of mail. (Mot., Facts ¶ 20, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 370:8- 371:6, ECF No. 14-2.) On one occasion, when Mr. Lopez suggested he could help with the sorting of such mail, Mr. Fields, after an exchange with Mr. Lopez, told him “I'm going to take you out in the parking lot, kick your ass, fuck you in the ass and turn it into a man pussy.” (Mot., Facts ¶ 21, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 32:25-34:9, ECF No. 14-2; Ex. B to Mot., Lopez EEO Aff., USPS000125, ECF No. 14-3.) Later, when Mr. Lopez accused Mr. Fields of stealing mail, he called Mr. Lopez a “lying piece of shit.” (Mot, Facts ¶ 22, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 220:22-221:23, ECF No. 14-2.)

         Mr. Fields also called Mr. Lopez a “red-headed Mexican” and “red-headed stepchild.” (Mot., Facts ¶ 23, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 35:25-36:15, ECF No. 14-2.) Mr. Lopez admits he jokingly and publicly referred to himself at work as a “red-headed Mexican.” (Mot., Facts ¶ 24, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 88:10-90:1, ECF No. 14-2.) In addition, Mr. Fields once asked Lopez, “Who's your daddy?” and later said to Mr. Lopez “I'm your daddy, ” which Mr. Lopez interpreted as racially derogatory. (Mot., Facts ¶ 25, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 36:11- 37:11, ECF No. 14-2.) In response, Mr. Lopez told Mr. Fields “you better shut your fucking mouth, I don't need your ghetto jokes, keep them on the street.” (Mot., Facts ¶ 26, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 36:11-37:11, ECF No. 14-2.)

         Both Ms. Clark and Ms. Higgs knew about the negative relationship between Mr. Fields and Mr. Lopez, and both Mr. Fields and Mr. Lopez informed management the other had harassed him. (Mot., Facts ¶¶ 27, 28, ECF No. 14; Ex. C to Mot., Clark EEO Aff., USPS000184, ECF No. 14-4; Ex. D to Mot., Higgs EEO Aff., USPS000153, USPS000156, ECF No. 14-5.) Ms. Higgs investigated these reports and consulted the Threat Assessment Team. (Mot., Facts ¶ 29, ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000153, ECF No. 14-5; Ex. A to Mot., EEOC Hr'g Tr. 341:20-342:12, ECF No. 14-2.) Given the lack of witnesses, Ms. Higgs concluded that the complaints were “he said/she said.” (Mot., Facts ¶ 30, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 318:6- 19, 339:4-341:7, ECF No. 14-2.) Ms. Higgs gave both Mr. Fields and Mr. Lopez instructions, including not to speak to each other, or come near each other, and to focus on their jobs. (Mot., Facts ¶ 31, ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000153, USPS000156, ECF No. 14-5; Ex. A to Mot., EEOC Hr'g Tr. 318:6-19, 341:4-14, ECF No. 14-2.) Beyond Ms. Higgs's instructions, neither Mr. Fields nor Mr. Lopez received discipline for their behavior toward each other. (Mot., Facts ¶ 32, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 319:9-13, ECF No. 14-2; Ex. D to Mot., Higgs EEO Aff., USPS000156, ECF No. 14-5.)

         C. Door Policy [3]

         At the Holladay Post Office, a Dutch door, also referred to as the “front door, ” leads from the customer lobby area to the area where the clerks, including Mr. Fields, work. (Mot., Facts ¶¶ 33, 34, ECF No. 14; Ex. F to Mot., Wright EEO Aff., USPS000207-08, ECF No. 14-7; Ex. A to Mot., EEOC Hr'g Tr. 25:5-10, ECF No. 14-2; Ex. D to Mot., Higgs EEO Aff., USPS000161, ECF No. 14-5.) If a carrier wanted to enter through the Dutch door, Mr. Fields had to open the door, which disrupted his work, or leave the door unlocked. (Mot., Facts ¶ 39, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 328:20-330:4, ECF No. 14-2.) Carriers, including Mr. Lopez, used to enter the office through the Dutch door. (Mot., Facts ¶ 35, ECF No. 14; Ex. A to Mot., EEOC Hr'g Tr. 328:20-330:4, ECF No. 14-2.) Allowing carriers to use the Dutch door created security risks because customers would sometimes enter the workroom floor through the unlocked door. (Mot., Facts ¶ 36, ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000159-65, ECF No. 14-5; Ex. F to Mot., Wright EEO Aff., USPS000207-08, ECF No. 14-7; Ex. A to Mot., EEOC Hr'g Tr. 328:20-330:4, ECF No. 14-2.)

         Ms. Higgs determined that no employee, unless he or she had a key, could use the Dutch door for security reasons and that it needed to remain locked at all times. (Mot., Facts ¶ 38, ECF No. 14; Ex. D to Mot., Higgs EEO Aff., USPS000159-65, ECF No. ...


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