DIPING Y. ANDERSON, Plaintiff, Appellant/Cross-Appellee,
MEGAN J. BRENNAN, Postmaster General, Defendant, Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District
Smith-Lee, with whom Smith Lee Nebenzahl LLP was on brief,
for Diping Anderson.
Jennifer Utrecht, Appellate Staff, Civil Division, with whom
Chad A. Readler, Acting Assistant Attorney General, Andrew E.
Lelling, United States Attorney, Jason C. Weida, Assistant
United States Attorney, and Marleigh D. Dover and Andrew
Rhorbach, Appellate Staff, Civil Division, were on brief, for
Lynch and Lipez, Circuit Judges, and Katzmann, Judge.
end in these cross-appeals after a bench trial, we leave the
parties just where they were, as we see no error by the trial
Diping Anderson was a Postal Police Officer (PPO) employed by
the U.S. Postal Service and terminated on September 9, 2013.
Her Title VII lawsuit alleged that her termination as a PPO
was unlawfully discriminatory on the basis of race and
national origin, and independently was in retaliation for her
having filed earlier Equal Employment Opportunity (EEO)
seven-day bench trial, the district court concluded that
Anderson was not discriminated against but that the decision
to terminate her employment, rather than impose lesser
discipline, was in retaliation for her protected conduct --
the assertion of her EEO rights. The Postal Service appeals
that ruling here and Anderson appeals from the remedy awarded
-- back pay, but not reinstatement or front pay. We affirm
the district court's rulings.
the facts as found by the district court, consistent with
record support. Nevor v. Moneypenny
Holdings, LLC, 842 F.3d 113, 116 (1st Cir. 2016).
Anderson was raised in Shanghai, China. She immigrated to the
United States in 1990 and became a U.S. citizen in 1993. She
began work for the Postal Service in 1995, first as a letter
carrier, then as a window clerk. In 2000, she became a PPO.
In her first sixteen years of employment with the Postal
Service, from 1995 to 2011, Anderson was never disciplined.
2011, Anderson took time off for a workplace ankle injury.
She reported back to work on May 1, 2011, with a doctor's
note approving her return. Her supervisor, Captain Gerald
Harrington, refused to allow Anderson to return to work, for
a reason not specified in the record. On May 12, 2011,
Anderson filed a request for EEO pre-complaint counseling,
alleging race discrimination by Captain Harrington. Anderson
returned to work later, at a time not specified in the
23, 2011, an EEO dispute resolution specialist emailed
Captain Harrington and then-Sergeant Peter Ford to inform
them of Anderson's EEO filing. The specialist asked to
schedule a redress conference.
21, 2011, Anderson had been assigned to check the
identification of people entering the employee entrance of
the Boston General Mail Facility. Anderson got a call
informing her that her mother had been admitted to a
hospital, so she left in the middle of her shift. She did not
get prior approval for this departure, but she filled out an
emergency leave request form and left it on the duty
sergeant's desk. Then-Sergeant Ford approved this
emergency leave request on May 24, 2011.
reported to work the next day, May 25, 2011, to find a broken
and unstable stool in place of her normal chair, and
attempted to borrow a different chair from a nearby office.
Then-Sergeant Ford told her, "No. This chair is not
brought the matter to Captain Harrington. She told Harrington
that she could not complete her job assignment without a
standard-size chair because of her ankle injury. She added,
"I cannot get on the [stool]. Even if I get on, I have a
hard time getting off." Harrington responded, "If
you don't like it, go home." There is no evidence
that he had treated others similarly. Anderson said that she
would leave, that she wanted to be put back on workers'
compensation status, and that she would come back to work
when the broken stool was replaced. Anderson did not hear
back from Captain Harrington.
did not report to work on May 26, 2011. Then-Sergeant Ford
called to ask why she was absent. Anderson said that Captain
Harrington had told her to go home. Ford told Anderson that
he would consider her to be on sick leave.
that day, Ford changed the status of Anderson's May 21
leave request (from when Anderson's mother was in the
hospital) from approved to "AWOL" (Away Without
Leave). A note on the leave request form said that
Anderson's leave status was "[c]hanged to AWOL per
Capt. H[arrington]." The Postal Service offered no
evidence which explained Captain Harrington's decision to
reverse Ford's prior approval of Anderson's leave.
15, 2011, Anderson attended an EEO redress conference with
Captain Harrington, then-Sergeant Ford, and an EEO mediator,
in response to Anderson's May 12 EEO request for
pre-complaint counseling. Anderson testified that Captain
Harrington and then-Sergeant Ford refused to discuss her
allegations of discrimination and told her to file a formal
24, 2011, then-Sergeant Ford issued Anderson a seven-day
suspension for having left her assigned post on May 21, 25,
and 26, 2011 (when no stool was provided), before being
properly relieved or dismissed. This was the first discipline
Anderson received as a Postal Service employee.
this same time, a different PPO, Martha Barris, had several
conversations with Captain Harrington in which Harrington
said that he found Anderson's EEO complaints
"distasteful" and that he did not understand why
Anderson was filing them.
later filed a complaint with the EEOC about the seven-day
suspension, asserting that the suspension was racially
discriminatory. An EEOC Administrative Judge dismissed
Anderson's complaint in September 2012 because Anderson
had failed to identify any similarly situated comparator
outside her protected group who was treated more favorably.
The Postal Service issued a Notice of Final Action in
December 2012 adopting the Administrative Judge's
decision. Anderson did not appeal this decision.
early 2012, Anderson filed several requests for pre-complaint
EEO counseling, alleging incidents of race discrimination and
retaliation that had taken place on several dates from
December 2011 to February 2012. The forms listed Captain Ford
as a responsible official, and then-Sergeant Joseph
Motrucinski was also listed on the last of the request forms.
March 29, 2012, Anderson filed a formal EEO complaint
alleging race discrimination and retaliation by Captain
Ford.Anderson voluntarily withdrew the complaint
in its entirety in October 2012. The record does not reveal
the reason for this withdrawal.
in 2012, Anderson received two Letters of Warning. The first
stated it came from Anderson's failure to carry her
firearm during the performance of her official duties.
Anderson did not file an EEO complaint in response to that
second Letter, issued on August 29, 2012, stated it came from
Anderson's failure to properly protect and secure her
weapon. On September 11, 2012, Anderson filed another request
for EEO pre-complaint counseling, asserting that the second
Letter of Warning represented unlawful retaliation for her
prior EEO activity. Anderson named Captain Ford and
then-Sergeant Motrucinski as responsible officials.
two weeks later, on September 26, 2012, Anderson received a
fourteen-day suspension. There were two bases stated for this
discipline. The first went back to July 2012, when
then-Sergeant Motrucinski told Anderson that she should not
store her weapon locker key inside the weapon locker itself,
because doing so was potentially dangerous (an unauthorized
person might gain access to the firearms). Anderson stopped
storing her key in this way. Even so, Sergeant Gregg McGee
told then-Sergeant Motrucinski that, on four separate
occasions after, he found Anderson's weapon locker key
stored in her weapon locker. McGee, however, admitted that he
did not confront Anderson on any of those four occasions,
that he did not tell any of her supervisors, and that he took
no pictures of the alleged infractions, as was his normal
practice. The district court found McGee's testimony
"unlikely." Anderson v. Brennan, No. CV
14-13380-PBS, 2017 WL 1032502, at *6 (D. Mass. Mar. 16,
2017), on reconsideration in part, 254 F.Supp.3d 253
(D. Mass. 2017).
Letter said the second basis for discipline involved
Anderson's loss of keys. On August 17, 2012, Anderson had
left her keys in the keyhole on the weapon room door at the
end of her shift. Anderson realized that she was missing her
keys when she arrived for her shift the next day. The keys
were recovered and returned to her the day after that.
was instructed three times to complete an incident report
about the misplaced keys. The first two instructions came
from Sergeant Pare. Anderson did not comply. Then-Sergeant
Motrucinski also told Anderson to complete an incident report
about the misplaced keys. Anderson responded that an incident
report was unnecessary because she had her keys back.
Motrucinski asked her, "Are you refusing my direct order
to complete the incident report?" Anderson replied,
"yes, I refuse," and left Motrucinski's office.
November 16, 2012, Anderson attended an EEO redress
conference concerning her September 11, 2012 request for EEO
pre- complaint counseling. In addition to Anderson, PPO
Barris, Captain Ford, then-Sergeant Motrucinski, and an EEO
mediator attended. At the conference, Ford and Motrucinski
proposed as a resolution of the matter that if Anderson
resigned from her position as a PPO, her disciplinary record
would be wiped clean. They said she could then take a
position as a post office clerk. Ford and Motrucinski
otherwise refused to discuss the disputes.
the other PPO at the redress conference, had further
conversations with Captain Ford about Anderson's EEO
activity around the same time. In one conversation, Ford got
upset about Anderson's EEO complaints and yelled,
"How dare she do this to me? I've been nothing but
nice to her." Captain Ford also said, referring to
Anderson, "I want her gone. I want her gone before I
retire. I want her gone." And Ford screamed to Barris
that he wanted "both of [them] gone" because he
thought Barris was encouraging Anderson to file the
mid-December 2012, Anderson filed another request for
pre-complaint EEO counseling, charging Captain Ford and
then-Sergeant Motrucinski with race discrimination and
retaliation for an incident on October 19, 2012. That
incident involved Anderson's removal from the acting
sergeant's list following her fourteen-day suspension. A
PPO on the acting sergeant's list ...