United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGON UNITED STATES DISTRICT JUDGE
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.
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.
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
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,
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
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.
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,
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).
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).
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.
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.
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).
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.
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).
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).
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