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Cornell v. Brennan

United States District Court, M.D. Florida, Tampa Division

May 2, 2018

RICHARD CORNELL, Plaintiff,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon consideration of a Motion for Summary Judgment filed on January 4, 2018, by Defendant Megan J. Brennan, who is sued in her official capacity as Postmaster General of the United States Postal Service. (Doc. # 30). Plaintiff Richard Cornell filed his response to the Motion (Doc. # 31) on February 5, 2018. The Court grants the Motion for the reasons that follow.

         I. Background

         Cornell sues Brennan for violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (Doc. # 1). Cornell asserts claims for discrimination based on sex and hostile work environment based on sex.

         Cornell first started working for the Postal Service as a letter carrier in 1966. (Cornell Dep. I Doc. # 30-1 at 15:2-17). In the following years, Cornell moved between jobs with the Postal Service in Florida and Minnesota and other nongovernment jobs. (Id. at 16:10-52:8). Then, in 1992, Cornell began working at the Winter Haven Post Office as a transitional employee carrier and was later given a clerk position in 1994. (Id. at 53:6-56:4). From then on, Cornell continued to be employed by the Postal Service until he retired in 2015. (Id. at 201:22-24). While with the Postal Service, Cornell was heavily involved with the local workers' union until he left the union in 2013. (Id. at 63:11-12). For a few years, he was the union's associate vice-president and chief steward for the Winter Haven Office. (Id. at 61:12-62:11).

         Cornell's problems at his job - about uniforms, who had to wear them, and who should pay for them - began in early 2012. During that time, Cornell's title was sales, service, and distribution associate and his principal assignment area was scheme distribution in the back of the Post Office. (Id. at 87:10-16). Still, he usually covered for window clerks during their lunch breaks because he was both scheme qualified and window qualified. (Id. at 111:19-23). According to Cornell, full-time window clerks have always been given a uniform allowance and had to wear uniforms while working at the window, where they interact with customers. (Id. at 130:11-15). But Cornell insists that employees who did not qualify for the allowance could wear “acceptable clothing [] to be in a casual professional atmosphere” when they worked the window. (Id. at 129:15-130:1). In contrast, Brennan argues that, under Postal Service regulations, employees who do not qualify for a uniform allowance must wear the appropriate uniform for the position if it is provided to them outside of the uniform allowance program. (Id. at 133:13-18, 139:7-11). Cornell disagrees and believes this standard was not in the manual in 2012. (Id. at 133:19-21, 137:16-24, 139:12-15).

         Regardless, early in 2012, the Winter Haven Post Office came under the direction of a new district manager who required all employees to wear uniforms while working at the window. (Id. at 143:19-22). According to Cornell, his supervisor, Randy Hockenberry, told Cornell he had a uniform allowance, handed him a Postal Service credit card, and instructed him to purchase uniforms by February 29, 2012. (Id. at 144:1-13, 151:18-152:17). Cornell insisted he was not entitled to a uniform allowance and was worried that if he used the credit card to purchase uniforms he would be written up for fraudulent use of the credit card and fired. (Id.).

         February 29, 2012, came but Cornell still was not wearing a uniform shirt while working the window. (Id. at 151:18-152:3, 153:2-5). Indeed, Cornell had not ordered a uniform yet. (Id. at 151:18-152:1, 153:6-7). A few days later, on March 14, 2012, Hockenberry issued Cornell a NOS-7, which is a notice of suspension for seven days, and a letter. (Id. at 150:5-151:15). The letter explained the basis for the suspension: Cornell's “unsatisfactory performance/failure to follow instructions.” (Id. at 150:5-152:3). Then, because he feared his supervisors had been “waiting to get [him] for all this time” because of his union leadership, Cornell asked the facility's postmaster, Douglas Shirer, to put in writing that Cornell would not face discipline if he agreed to use the credit card. (Id. at 148:8-23, 160:22-161:1; Cornell Dep. II Doc. # 30-2 at 57:21-58:3). Cornell said he would have ordered the uniforms then had Shirer given written confirmation, so that the NOS-7 would be rescinded. (Cornell Dep. I Doc. # 30-1 at 148:8-23). But Shirer refused, so Cornell refused to order the uniforms. (Id.).

         Cornell filed a grievance over the NOS-7. (Id. at 127:2-6, 159:1-25). Eventually, Cornell's supervisors provided him three uniform shirts to wear. (Id. at 148:8-21, 161:11-15). Cornell initially refused to wear them, arguing it was against Post Office rules for Post Office funds to be spent to buy his uniform shirts, but he relented. (Id. at 162:6-25). Cornell also refused to wear the uniform shirts unless Hockenberry laundered the shirts for him, which Hockenberry did for a few weeks. (Id. at 163:4-164:17). Time passed and Shirer decided on a new and more stringent uniform rule. On May 11, 2012, Shirer announced that all window qualified clerks had to wear their uniform polo shirts whenever they were on the clock - not just when they were working the retail window. (Id. at 168:2-7, 169:20-170:11). That same day, Shirer warned Cornell that if he did not wear the uniform shirt they would “go farther” with discipline by giving him a fourteen-day suspension. (Id. at 167:8-19, 168:9-19).

         After May 11, 2012, Cornell fully complied and wore his uniform shirt because the NOS-7 on his record meant he would receive a greater suspension if he were disciplined again. (Id. at 168:16-169:12, 172:14-175:25). Wearing the uniform while on the workroom floor was unpleasant for Cornell. The workroom floor, where mail is sorted and moved, is hot and Cornell's job involved the heavy lifting and throwing of parcels. (Cornell Dep. II Doc. # 30-2 at 40:25-41:20). As a result, when Cornell left the workroom floor to cover the retail window, he was sweaty and unkempt in appearance. (Id. at 41:13-18). Some female employees - Ahn Tran, Yvette Hadlock, Tinia Clark, and Tonya Keefer - did not follow the instruction to wear uniform shirts while on the clock, yet they were not disciplined. (Cornell Dep. I Doc. # 30-1 at 169:13-16).

         Cornell eventually filed an EEO complaint in June of 2012, regarding the NOS-7 and how the new uniform rule was not being enforced against female employees. (Id. at 165:15-169:16). In that EEO complaint, Cornell asked that his supervisors either “discipline [the female employees] or rescind [his] NOS-7.” (Id. at 175:4-9). According to Cornell, the business agent of the Postal Service then offered him a deal. The Postal service would “kill the discipline” (i.e., revoke the NOS-7) if Cornell withdrew his EEO complaint and grievance. (Id. at 183:19-184:13). Cornell did, so the Postal Service revoked the NOS-7 and Cornell never served the suspension. (Id. at 183:19-184:13, 201:11-17). But the Postal Service did not remove the NOS-7 from Cornell's employee record. (Id. at 201:22-202:11).

         After he was first disciplined, Cornell documented every time he saw a co-worker violate the uniform rules. (Id. at 185:5-15). He also reported violations to Hockenberry, Hockenberry's direct supervisor Dean Moseley, and Shirer. (Doc. # 31 at 3-4; Shirer Dep. Doc. # 31-1 at 11:12-13:11). Most violations Cornell recorded were committed by one woman, Tran. (Cornell Dep. Doc. I at 232:16-22). However, neither she nor the other women who broke the uniform rule were suspended. (Id. at 176:22-177:3). Although Cornell contends on “information and belief” that no female employee was ever disciplined in any way for uniform violations, Shirer testified that Hockenberry had issued Tran a Letter of Warning for her violations. (Doc. # 31 at 3; Doc. # 31-1 at 1; Shirer Dep. Doc. # 31-1 at 19:11-20:19). And while a general instruction was given to all employees about the uniform rule, there is no evidence that the identified female employees were given a direct order to procure and wear a uniform shirt by a specific date, but disobeyed.

         Male employees also broke the uniform rules. On April 26, 2012, Rusty Herndon violated the rule that clerks always had to wear a uniform shirt while working the retail window. (Cornell Dep. I Doc. # 30-1 at 188:8-190:15). After the more stringent uniform rule was issued on May 11, 2012, Herndon failed to wear his uniform shirt on the workroom floor on numerous days in August and September of 2012. (Id. at 207:24- 208:8, 210:8-13, 212:14-213:4). Cornell also recorded a violation in August of 2012 by a window clerk, Richard Fugate. (Id. at 210:14-211:25). Fugate was out of uniform while he was assigned to help on the workroom floor one Saturday, so Hockenberry told Fugate to put on his uniform shirt. (Id.). Fugate claimed he was unaware of the policy but complied and put on his uniform. (Id.).

         Although Cornell recorded no such incidents in his notebook, Cornell testified that Hockenberry and Moseley would flirt and show “frequent favoritism and inordinate attention” toward attractive female employees. (Id. at 234:2-16; Doc. # 31 at 17). According to Cornell, the flirting was common knowledge. (Cornell Dep. I Doc. # 30-1 at 239:10-15). As an example of greater attention being paid to female employees, Cornell recounted a time when Moseley had “put the ‘moves' on one of the attractive female[]” employees in his office. (Id. at 234:17-235:20; Doc. # 31 at 14, 17). The female employee was “clearly upset” when she left Moseley's office and told Cornell's wife Joyce, who was also an employee at the Post Office, about the unwelcome sexual advances. (Doc. # 31 at 14). Cornell's wife encouraged the female employee not to tolerate such treatment. (Id.). Having overheard Cornell's wife, Moseley called her into his office and told her “to mind her own business.” (Id. at 14, 17; Cornell Dep. I Doc. # 30-1 at 234:17-235:15). Cornell “consider[ed] that [incident and the flirting] to be part of the hostile work environment based on sex.” (Cornell Dep. I Doc. # 30-1 at 235:16-24).

         The continued refusal to punish female employees who failed to wear uniform shirts and supervisors' flirtatious treatment towards female employees led Cornell to file two more EEO complaints in December of 2012 and April of 2013. (Doc. # 31-1 at 3-4). Cornell subsequently initiated this action on May 6, 2016, asserting claims for discrimination based on sex and hostile work environment based on sex under Title VII. (Doc. # 1). Brennan filed her Answer on July 18, 2016. (Doc. # 11). The parties mediated on November 14, 2017, but reached an impasse. (Doc. # 27). Then Brennan filed her Motion for Summary Judgment. (Doc. # 30). Cornell responded in opposition on February 5, 2018. (Doc. # 31). Brennan failed to file a reply.

         II. Legal Standard

         Summary Judgment is appropriate “if the movant shows that 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 factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude a grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When a moving party has discharged its burden, the non-moving party must then ‘go beyond the pleadings, ' and by its own affidavits, or by ‘depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995)(quoting Celotex, 477 U.S. at 324).

         If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, the court should not grant summary judgment. Samples ex rel. Samples v. City of Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). But, if the non-movant's response consists of nothing ...


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