IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

VIVIAN DIAZ,

Plaintiff,

v.

PATRICK R. DONAHOE,

POSTMASTER GENERAL, UNITED

STATES POSTAL SERVICE

Defendant.

Civil No. 10-6510 (JBS/AMD)

OPINION

APPEARANCES:

Amy B. Sunnergren, Esq.

F. MICHAEL DAILY, JR. LLC

216 Haddon Avenue

#106

Westmont, NJ 08108

Attorney for Plaintiff

Irene E. Dowdy, Assistant U.S. Attorney

OFFICE OF THE U.S. ATTORNEY

401 Market Street

Fourth Floor

P.O. Box 2098

Camden, NJ 08101

Attorney for Defendant

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter is before the Court on a motion for summary

judgment [Docket Item 17], brought by Defendant Patrick Donahoe,

who is being sued in his official capacity as Postmaster General

for the United States Postal Service (“Defendant”). Plaintiff

Vivian Diaz alleges that her termination as a transitional postal

employee violated Title VII of the Civil Rights Act of 1964, as

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amended, 42 U.S.C. § 2000e, et seq., because she was subjected to

intentional employment discrimination on the basis of race

(Hispanic), sex (female), and national origin (Puerto Rican). She

also alleges that her termination was in retaliation for prior

protected activity, namely raising allegations of prior

discrimination.

The key inquiries for the Court are whether Plaintiff has

adduced admissible evidence from which the finder of fact could

reasonably conclude that she was treated differently from

“similarly situated” non-minority employees for her

discrimination claims, and whether Plaintiff has shown materially

adverse employment actions under her retaliation claim. A

secondary issue is, to the extent Plaintiff makes out a prima

facie case for discrimination or retaliation, whether Plaintiff

has proffered admissible evidence from which a reasonable

factfinder would conclude that Defendant’s asserted legitimate

reasons for Plaintiff’s termination or other adverse actions were

pretextual. Because the Court answers all three questions in the

negative, Defendant’s motion for summary judgment must be

granted.

II. Background

A. Facts

The facts of the case are drawn primarily from the parties’

statements of facts and are undisputed, except where noted.

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Plaintiff Diaz (“Plaintiff”), a female born in Puerto Rico, began

her employment with the U.S. Postal Service (“USPS”) in 2006 as a

mail handler and, later, a clerk - both considered “casual”

positions - at two different facilities. [Pl. Dep. of Vivian Diaz

(“Diaz Dep.”) at 27:17-29:24.] In October 2008, she was

transferred to the Salem (N.J.) Post Office as a “City Carrier

(Transitional Employee),” commonly referred to as a “TE city

carrier.” [Pl. Statement of Material Facts (“Pl. SF”) ¶ 1; Def.

Statement of Undisputed Material Facts (“Def. SF”) ¶¶ 1-2.] 

A TE city carrier is a non-career, temporary employee, who

delivers and collects mail, by vehicle or by foot, and who sorts

(“cases”) mail in sequence of delivery along a mail route, among

other duties. [Def. SF ¶¶ 2, 6.] These employees may be required

to carry shoulder satchels with mail weighing up to 35 pounds,

and to load and unload containers of mail weighing up to 70

pounds. [Id. ¶ 6.] A TE city carrier is hired for a term not to

exceed 360 calendar days, with a break in service of at least

five days between appointments. [Id. ¶ 3.] In contrast to fulltime employees, who are assigned regular schedules and routes,

and part-time employees, who either are assigned to regular

schedules and routes or work flexible hours assigned weekly, TE

city carriers do not have fixed routes and receive work

assignments as needed, only after efforts to use part-time

flexible employees have been exhausted. [Id. ¶¶ 3-5.] TE city

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carriers are paid an hourly wage, are subject to maximum hour

limits, do not receive medical benefits and may be terminated at

any time upon completion of their assignment or for lack of

available work. [Id. ¶ 5.] They may be temporarily or permanently

reassigned to another post office, as needed; the USPS frequently

reassigns TEs to give them additional hours and to reduce the

number of overtime hours worked by career employees. [Id. ¶¶ 5,

12.] As of March 2009, the Salem Post Office employed three TE

city carriers (Plaintiff, Justin Ramsden, and Eric Price) to

supplement a workforce of regular and part-time flexible

carriers. [Id. ¶¶ 9-11.] 

 Plaintiff alleges that during her 10 or 11 months in Salem,

she was subject to multiple incidents of harassment,

discrimination and other slights by her supervisors. In March

2009, the USPS’s South Jersey District, which handled human

resources matters for the Salem Post Office, transferred John

Reese, a customer service supervisor in Delaware, to Salem as a

part-time flexible city carrier. [Id. ¶ 14.] Disappointed that

she had not had an opportunity to apply for the position,

Plaintiff contacted a USPS Equal Employment Opportunity (“EEO”)

counselor for “pre-complaint counseling” about Reese’s

reassignment, and asserted that the reassignment constituted

discrimination against her on the basis of race, national origin

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and gender. [Id. ¶ 15; Pl. SF ¶ 21; Def. Ex. M.] 1

Later, Plaintiff discussed the reassignment with Darryl

Hester, the Postmaster of the Salem Post Office. [Def. SF ¶ 10.]

Hester told Plaintiff that a hiring freeze was in effect, meaning

that the South Jersey District would not have hired a temporary

employee as a part-time flexible employee, which was a career

position. [Id. ¶ 16.] The South Jersey District had not hired a

new career letter carrier since July 2008 and had been filling

career vacancies by transferring existing career employees to

those posts. [Id. ¶ 8.] Plaintiff was not aware of the hiring

freeze and later admitted that had she known about it, she would

not have contacted the EEO. [Id. ¶ 16; Diaz Dep. 44:22-45:12.]

Plaintiff asserts that she and Hester discussed other

problems she allegedly experienced with Hester’s predecessor,

Fran Dougherty. [Pl. SF ¶ 22.] Plaintiff testified that she felt 2

harassed by Dougherty because he (1) asked if she had a

boyfriend, (2) on occasion assigned other TE city carriers to the

route Plaintiff usually covered, and (3) on occasion followed

 Plaintiff asserts that she filed “an EEO Complaint” 1

regarding the job vacancy and reassignment [Pl. SF ¶ 21], which

Defendant denies. [Def. Resp. to Pl. SF (“Def. RSF”) ¶ 21.] The

deposition testimony and other exhibits supplied by Plaintiff do

not support the assertion that Plaintiff actually filed a

complaint. 

 Defendant denies this, pointing to Hester’s deposition, in 2

which he testified that he never spoke to Plaintiff about

Dougherty. [Def. RSF ¶ 22; Hester Dep. at 28:4-6.]

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Plaintiff as she delivered mail. [Diaz Dep. 46:5-50:25.]

Plaintiff states that she never felt sexually harassed by

Dougherty after she told him she had a boyfriend. [Pl. SF ¶ 26.]

Defendant, denying that Plaintiff ever spoke to Hester about

Dougherty, notes, and Plaintiff admits, that postmasters are

required to accompany letter carriers on each delivery route at

least once per year. [Def. SF ¶ 17; Def. RSF ¶ 22.] Defendant

also asserts that Plaintiff never contacted an EEO counselor

about any of Dougherty’s alleged conduct. [Def. RSF ¶ 22.]

Plaintiff further claims that she spoke with Hester about

harassment she suffered at the hands of Artannia Moore, the

acting supervisor in Salem. [Pl. SF ¶ 23.] Plaintiff testified 3

in her deposition that Moore tried to embarrass Plaintiff by

stopping her on her route one day and driving her to see a

customer who had a problem with mail delivery. [Diaz Dep. at

48:23-49:9.] However, the customer told Moore that another

carrier, not Plaintiff, was responsible for the problem. [Pl. SF

¶ 24.]

The next incident involved Moore again and Hester himself.

On April 6, 2009, Plaintiff worked for approximately two and a

half hours before falling ill and reported to Hester that she

needed to go to the hospital. [Def. SF ¶ 19; Pl. SF ¶ 31.]

 Defendant denies this, arguing that the record does not 3

support that Plaintiff ever discussed Moore’s conduct with

Hester. [Def. RSF ¶ 23.]

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Plaintiff asserts she was crying and complaining of an irregular

heartbeat and faults Hester for not calling an ambulance or

arranging for her transportation to the hospital. [Pl. SF ¶ 28.] 4

Plaintiff sought treatment and did not return to work that week.

[Def. SF ¶ 19.] When Plaintiff returned to work, she was told

that her time card would be altered to reflect that she had

worked approximately two and a half hours on April 6. [Pl. SF ¶

30.] Plaintiff viewed this as a slight, but admits that she only

worked approximately two and a half hours on April 6, or “[m]aybe

less.” [Diaz Dep. 55:22-24.] She also was disappointed that, 5

during this and other absences from work in April and early May

that Hester did not “follow up . . . to see if there was any

assistance that could be offered by the post office . . . .” [Pl.

SF ¶¶ 32-33; Def. SF ¶ 20; Def. RSF ¶ 32.]

Plaintiff again felt slighted when, on May 1, 2009, she was

assigned to a route with which she was unfamiliar, and as a

result it took her longer to complete than was considered

necessary. [Pl. SF ¶ 35.] Although Plaintiff complains that it

was customary to assign TE city carriers to the same route, she

 Defendant denies Plaintiff’s characterization of the 4

interaction. [Def. RSF ¶ 28.]

 Plaintiff also asserts that “[d]espite multiple requests” 5

to view a copy of her “leave slip” to figure out “what actions

were being taken regarding her illness and her sick time,

defendant refused . . . .” [Pl. SF ¶ 34.] Defendant denies this

[Def. RSF ¶ 34], and there is no support for this contention in

Plaintiff’s deposition testimony or elsewhere in the record.

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also admits that TE city carriers are not assigned set routes the

way career employees are. [Id. ¶ 37; Pl.’s Resp. to Def. SF ¶ 4.]

Plaintiff felt further harassed the next day when she was

assigned part of a route normally handled by a full-time carrier,

who was absent that day, in addition to part of her “regular”

route. [Pl. SF ¶¶ 38-39; Diaz Dep. at 59:12-14.] 6

The next week, on May 8, Plaintiff fell while delivering

mail, injuring her knees and clavicle. [Def. SF ¶ 21.] She

received treatment at an emergency room and did not report to

work for an extended period of time. [Id. ¶¶ 21, 26.] USPS policy

dictates that Postmasters or supervisors accommodate employees

who have been injured on the job by creating light duty or

limited duty assignments to reflect the injured employee’s

physical restrictions. [Pl. SF ¶¶ 44-47.] On July 30, 2009, the

South Jersey District human resources department received a

report from Plaintiff’s physician, clearing Plaintiff to work

consistent with the following restrictions: driving up to six

hours a day, lifting or carrying 35 pounds for up to six hours a

day, and pulling or pushing 15 pounds for up to six hours a day.

[Def. SF ¶ 27.] The next day, Hester prepared an “Offer of

 Defendant asserts that the full-time carrier who normally 6

handled that route was absent from work on May 2, necessitating

flexible coverage. [Def. RSF ¶ 38.] Plaintiff claims she

requested assistance to cover the additional partial route, but

was denied. [Pl. SF ¶ 41.] Defendant disputes this

characterization. [Def. RSF ¶ 41.]

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Modified Assignment” for Plaintiff that included some driving and

some sorting of mail. [Id. ¶ 28.] Plaintiff refused the offer,

asserting that she was having additional difficulty with her knee

and sought further medical consultation. [Pl. SF ¶ 48.] On August

7, Hester prepared a second offer of limited duty assignment,

which included some driving, some casing and some collection of

mail, based on restrictions dictated in new report from

Plaintiff’s physician, and Plaintiff accepted this assignment.

[Id. ¶ 49; Def. RSF ¶ 49; Def. Ex. T.] Plaintiff worked for

approximately four and a half hours on August 8, but found she

could not sufficiently bend her knee or carry heavy items without

pain, and did not work again for approximately two weeks. [Def.

SF ¶ 31; Pl. SF ¶ 50.]

Plaintiff’s physician prepared a new report on August 17

that restricted permissible activity for Plaintiff even more.

[Def. SF ¶ 32.] Plaintiff was not permitted to drive, but could

sit for up to eight hours a day, stand and walk for two hours a

day, bend or stoop six hours a day, and lift, carry, pull or push

15 pounds for up to six hours a day. [Id.] The next day, Hester

prepared a third limited duty assignment, which included filing,

sweeping, mopping, emptying trash cans, dusting, inspecting

vehicles and other duties. [Id. ¶ 33.] Plaintiff believed

sweeping and mopping would be stressful on her knees, and her

physician created a new report indicating that Plaintiff could

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not sweep, mop, empty trash cans, dust, bend, stoop or lift, in

addition to the other restrictions. [Id. ¶ 34.] 

On August 24, Plaintiff returned to the job on a more

regular basis, working four hours or less several times per week.

[Id. ¶ 37.] However, Plaintiff complains that her hours were

concentrated in the afternoon, and she asserts that the only work

she was permitted to do was “sit[] at a desk looking at the wall

. . . .” [Pl. SF ¶¶ 54-57.] Defendant denies this

characterization, and points to the offer of limited duty

assignment on August 24, which lists several jobs for Plaintiff

to do; however, that report is marked up by Plaintiff’s

physician, indicating that Plaintiff was not physically capable

of doing all of the work suggested on the offer of limited duty

assignment. [Def. RSF ¶ 56; Def. Ex. Y.]

In the meantime, the Salem Post Office was undergoing

changes. In June 2009, Hester was informed that the South Jersey

District was reassigning an existing career employee to fill a

vacant full-time regular city carrier position and that TE city

carrier Justin Ramsden would be reassigned to the Haddonfield

(N.J.) Post Office. [Def. SF ¶ 23.] Hester also was informed

around that time that the USPS, which conducted twice-yearly

evaluations of carrier routes, would be adjusting Salem’s five

carrier routes down to four, due to a decline in mail volume.

[Id. ¶ 24.] Consequently, staffing would be reduced and Salem

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would lose all remaining TE city carrier employees. [Id. ¶ 25.]

Hester negotiated for Salem to retain its TE city carriers

through Labor Day. [Id.] After Labor Day, TE city carrier Eric

Price would be reassigned to the Woodstown (N.J.) Post Office.7

[Id. ¶ 38.] Hester stated in his declaration that he discussed

Plaintiff’s status with the Post Office Operations Manager,

including how her condition prevented her from performing

essential duties of a TE city carrier. [Def. SF ¶ 39.] On

September 15, 2009, Hester gave Plaintiff a notice of

termination. [Def. SF ¶ 40.] The letter stated: “The reason for

termination is due to the most recent route minor adjustments

that was performed. As a result to the new scheduled work load,

The staffing must be reduced in order to provide necessary work

for the career employees.” [Def. SF ¶ 40; Def. Ex. Z.]

Plaintiff asserts that she was still able to case, or sort,

mail [Pl. SF ¶ 58], but Defendant responds that Hester understood

the restrictions from her physician to mean that Plaintiff should

not be assigned to casing mail. [Def. RSF ¶ 58.] Plaintiff

 Plaintiff admits as true all of the facts in Defendant’s 7

statement of material facts, ¶¶ 1-36. Plaintiff does not admit,

deny, acknowledge or respond in any way to ¶¶ 37-41. According to

current L. Civ. R. 56.1(a), “any material fact not disputed shall

be deemed undisputed for purposes of the summary judgment

motion.” See also Hill v. Algor, 85 F. Supp. 2d 391, 408 n.26

(D.N.J. 2000) (citing the previous L. Civ. R. 56.1 for this

proposition). Therefore, all facts in Defendant’s statement of

material facts ¶¶ 37-41 that are not otherwise contradicted in

Plaintiff’s statement of material facts, will be deemed admitted.

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suggests that Eduok Uwah, a Salem supervisor, would have been

able to use Plaintiff to case mail, except Hester told him

Plaintiff could not perform that task. [Pl. SF ¶ 58.] Defendant

accurately responds that Uwah’s deposition does not support that

statement; rather, Uwah stated that Hester told him Plaintiff

could not case mail, and Uwah added that career carriers would

object when others cased mail for them, because that took work

away from them. [Uwah Dep. at 35:17-36:19.] Uwah did not state

that he could have used or intended to use Plaintiff to case mail

but for Hester’s statement. 

Plaintiff further asserts she could have been reassigned to

Bellmawr, N.J., because her boyfriend told her that the Bellmawr

Post Office had sufficient light duty work for her. [Pl. SF ¶¶

62, 64.] Defendant objects that Plaintiff’s boyfriend’s

statements are hearsay and no other evidence in the record

supports Plaintiff’s contention about available work in Bellmawr.

[Def. RSP ¶¶ 62, 64.] Plaintiff claims that when she told Hester

she could have been transferred to another office, he did not

respond to Plaintiff’s satisfaction. [Pl. SF ¶ 65.] Plaintiff 8

faults Hester for not inquiring outside of Salem to see if

Plaintiff could be reassigned [Pl. ¶ 63], but Hester’s deposition

 Plaintiff’s deposition testimony on this point consists 8

of: “When I tell him [Hester] that he could have sent me to other

office to light-duty work he didn’t.” Diaz Dep. at 99:24-25.

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testimony does not support this point. It is undisputed that 9

Hester told Plaintiff that if a temporary employee wished to have

another 360 day term assignment, she was expected to contact

personnel to check availability. [Id. ¶ 66.]

B. Plaintiff’s Complaint

Plaintiff’s Complaint includes four civil rights claims.

Count One alleges that the Defendant’s actions constituted

discrimination based on race, in violation of 42 U.S.C. § 2000e2(a), which states:

It shall be an unlawful employment practice for an

employer-- 

(1) to fail or refuse to hire or to discharge any

individual or otherwise to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status

as an employee, because of such individual’s race,

color, religion, sex or national origin.

 Plaintiff cites a portion of Hester’s deposition testimony 9

to support this contention (“Exhibit D, 14:31-24"); however, the

testimony on page 14 concerns the mechanics of an employee’s

daily duties. The Court cannot find any testimony by Hester that

indicates whether he inquired outside of Salem to see if other

offices had work Plaintiff could perform. He did testify,

however, that if an employee wanted to have another assignment,

the employee should contact personnel to see if there were any

availability. [Hester Dep. at 93:6-9.] Hester also testified that

the procedure to look for work within the employee’s craft and

then outside their craft, and then to other locations did not

apply to Plaintiff at the time, due to union contractual issues

and overstaffing. [Id. at 143:8-145:1.]

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Count Two alleges discrimination on the basis of sex under the

same provision. Count Three alleges that Defendant retaliated

against her for making charges of discrimination, under 42 U.S.C.

§ 2000e-3(a). Count Four, like Counts One and Two, alleges

discrimination on the basis of national origin under 42 U.S.C. §

2000e-2(a).

III. Discussion

A. Standard of Review

A court shall grant summary judgment “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 dispute is “genuine” if, based on the evidence in the

record, a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A fact is “material” if it might affect the outcome of

the suit; disputes over irrelevant or unnecessary facts will not

prevent the entry of summary judgment. Id. The court will view

evidence in the light most favorable to the non-moving party and

extend any reasonable favorable inferences to be drawn from that

evidence to that party. Hunt v. Cromartie, 526 U.S. 541 (1999).

“[U]nsupported allegations” in memoranda and pleadings “are

insufficient to repel summary judgment.” Schoch v. First Fid.

Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). 

B. Employment discrimination claims under Title VII

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An employee claiming that her termination was the result of

discrimination in violation of Title VII is subject to the

burden-shifting scheme set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); see also Sanborn v. Postmaster

General of the United States, 431 Fed. Appx. 188, 190 (3d Cir.

2011) (setting forth the standard for employment discrimination

in a case in which a former postal worker alleged her termination

was the result of discrimination on the basis of race, sex and

disability). McDonnell held that a complainant establishes a

prima facie case for discrimination by showing (1) he belonged to

a protected class, (2) he applied and was qualified for a job for

which the employer sought applicants, (3) despite his

qualifications, he was rejected, and (4) after his rejection, the

position remained open and the employer continued to seek

applicants. McDonnell, 411 U.S. at 802. The Supreme Court later

clarified that McDonnell did not create “an inflexible

formulation” to establish a prima facie case and that the proof

required will necessarily change in different factual situations.

Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977);

see also McDonnell, 411 U.S. at 802 n.13 (“The facts necessarily

will vary in Title VII cases, and the specification above of the

prima facie proof required from respondent is not necessarily

applicable in every respect to differing factual situations.”).

The Third Circuit has held that “some showing must be made that

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the plaintiff was treated differently from similarly situated

individuals” of different races, gender or national origin.

Jackson v. U.S. Steel Corp., 624 F.2d 436, 440-41 (3d Cir. 1980).

If the plaintiff establishes a prima facie case, the burden

shifts to the employer to “articulate some legitimate,

nondiscriminatory reason” for the adverse employment action.

McDonnell, 411 U.S. at 802. See also Fuentes v. Perskie, 32 F.3d

759, 763 (3d Cir. 1994) (articulating the burden-shifting

scheme). The employer must introduce evidence which, if taken as

true, would permit the conclusion that a nondiscriminatory reason

motivated the adverse employment action. Fuentes, 32 F.3d at 763

(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509

(1993)). This burden is “relatively light.” Id.

When an employer articulates a nondiscriminatory reason for

the adverse employment action and introduces evidence in support

thereof, the burden shifts back to the plaintiff, who may defeat

summary judgment by pointing “to some evidence, direct or

circumstantial, from which a factfinder could reasonably either

(1) disbelieve the employer’s articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of the

employer’s action.” Id. at 764 (citing Hicks, 509 U.S. at 510-

11). The plaintiff must demonstrate by a preponderance of the

evidence that the proffered reason is pretextual and that the

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true reason is discriminatory or retaliatory. Sanborn, 431 Fed.

Appx. at 190. See also Fuentes, 32 F.3d at 764 (rejecting the

contentions that a plaintiff may argue merely that the factfinder

may disbelieve the defendant or that the plaintiff must adduce

evidence directly contradicting the defendant’s proffered

legitimate explanations). The plaintiff’s evidence rebutting the

articulated legitimate reasons must permit a factfinder

reasonably to infer that “each of the employer’s proffered nondiscriminatory reasons . . . was either a post hoc fabrication or

otherwise did not actually motivate the employment action . . .

.” Fuentes, 32 F.3d at 764 (citing Logue v. Int’l Rehab. Assocs.

Inc., 837 F.2d 150, 155 (3d Cir. 1988) and Anderson v. Baxter

Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994)). The

plaintiff must demonstrate that the employer’s legitimate reasons

contain “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” such that a reasonable

factfinder could rationally find the proffered reasons “unworthy

of credence.” Id. at 765 (citing Ezold v. Wolf, Block, Schorr &

Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).

C. Prima facie case of discrimination

Defendant argues that Plaintiff cannot make out a prima

facie case of discrimination. [Def. Br. at 13.] Defendant

concedes that Plaintiff is a member of a protected class, as a

female, Hispanic and a person of Puerto Rican origin, and that

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her termination qualifies as a materially adverse employment

action. [Id.] But Defendant asserts that Plaintiff cannot

establish the other necessary elements of a prima facie case.

First, Defendant argues that at the time of her termination,

Plaintiff “was not qualified to perform the basic duties of a TE

City Carrier, i.e., to deliver and collect the mail by vehicle

and on foot.” [Id.] Second, Defendant argues that she was not

treated differently than similarly situated individuals not

belonging to the same protected classes, because the other TE

city carriers who were reassigned were “fully able-bodied and

physically capable of performing the regular duties of a TE City

Carrier.” [Id. at 14.] Defendant suggests that Plaintiff alleged

no facts tending to show that Plaintiff’s termination was

actually motivated by class-based discrimination or retaliation.

[Id.]

Plaintiff disputes the assertion that because Plaintiff was

unable to perform regular TE city carrier duties that she cannot

establish a prima facie case of discrimination. Plaintiff

asserts, without citations to the record, that at the time of

termination, Plaintiff was undergoing treatment and Hester “had

no knowledge of what the future entailed.” [Pl. Br. at 8.]

Plaintiff contends that Hester should have looked within the

“clerk craft” to find Plaintiff work, if none could be found

within the mail-handler or carrier crafts, first within the Salem

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Post Office and then at other post offices. [Id. at 8-9.]

Plaintiff argues that by showing that other TE city carriers were

reassigned, rather than terminated, Plaintiff establishes a prima

facie case of discrimination. [Id. at 9-10.]

Defendant replies that there is no USPS policy that

establishes that Postmasters must look to different crafts or

other post offices to find work for TE city carriers, and

Plaintiff has not adduced evidence to establish that fact. [Def.

R. Br. at 4-6.] Rather, transitional employees may be terminated

at any time upon completion of their assignment or for lack of

available work. [Id. at 6, Def. Ex. B at 5.] Hester testified

that the procedure to search for work outside of the employee’s

craft or post office did not apply to Plaintiff, because of union

contractual issues and overstaffing. [Hester Dep. at 143:8-

145:1.]

The key inquiry here is whether Plaintiff was treated

differently from similarly situated individuals who were not

members of Plaintiff’s protected class. Plaintiff’s own arguments

demonstrate that she was not. Plaintiff’s request for relief is

predicated on the fact that she could and should have been

assigned to do work other than that of a typical TE city carrier

in a post office outside of Salem. Plaintiff even suggests that

Hester should have looked outside the letter carrier craft to

find work suitable for someone in Plaintiff’s physical condition.

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[Pl. Br. at 8-9.] But Plaintiff’s lawsuit depends on the fact

that the other TE city carriers benefitted from favorable

treatment that was denied to her, as a direct result of the

employer’s invidious discrimination. Here, Plaintiff cannot show

that similarly situated TE city carriers received different

treatment, because Plaintiff admits that both Price and Ramsden

were reassigned to perform regular duties of a TE city carrier,

some of which she could not perform, and both were without the

physical restrictions Plaintiff had at the time. [Def. Br. at 14;

Pl. Br. at 9.]

The Third Circuit has not stated precisely how “similarly

situated” plaintiffs must be to other employees with which they

wish to compare themselves. However, district courts in the Third

Circuit, as well as the majority of Courts of Appeals in other

circuits have consistently held that, to establish a prima facie

case of discrimination, employees must be similar in all material

respects. See Lopez v. Alrod Enters., Inc., 602 F. Supp. 2d 604,

610 n.8 (E.D. Pa. 2009) (citing cases from U.S. Courts of Appeals

in the First, Second, Fifth, Sixth, Seventh, and Eighth circuits

holding that employees must be similar in “all material

respects,” “in all respects,” in “circumstances nearly

identical,” or without “differentiating or mitigating

circumstances”); see also Gray v. City of Jacksonville, No. 12-

10974, 2012 WL 4786187, at *3 (11th Cir. Oct. 9, 2012) (“To make

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a comparison of the plaintiff’s treatment to that of non-minority

employees, the plaintiff must show that [s]he and the employees

are similarly situated in all relevant respects.”) (emphasis in

original); Lucero v. Sandia Corp., No. 11-2028, 2012 WL 3667449,

at *5 (10th Cir. Aug. 28, 2012) (holding that the plaintiff and

non-minority employees must be “similar in all material

respects”); Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006)

(holding that “similarly situated” means similar “in all material

respects”); Devine v. Prudential Ins. Co. of Am., No. 03-3971,

2007 WL 1875530, at *22 (D.N.J. June 28, 2007) (holding that a

similarly situated person “must be similarly situated in all

material respects,” citing Shumway v. United Parcel Serv., Inc.,

118 F.3d 60, 64 (2d Cir. 1997)); Fullman v. Henderson, 146 F.

Supp. 2d 688, 697 (E.D. Pa. 2001), aff’d, 29 Fed. Appx. 100 (3d

Cir. 2002) (holding that “similarly situated” requires persons to

be “without such differentiating or mitigating circumstances that

would distinguish their conduct or the employer’s treatment of

them for it”).

Price and Ramsden were different from Plaintiff in one

essential respect: they could perform TE city carrier work

without restriction and Plaintiff could not. [Diaz Dep. at 96:1-

98:25.] Plaintiff admits in her testimony that she was unable to

lift trays of mail, that she could not go up and down stairs, and

that she could not drive a postal truck. [Id. at 96:1-25.]

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Plaintiff cannot name any TE city carrier who was sent to another

office to do light-duty work, the kind of transfer to which she

claims she was entitled. [Id. at 97:23-25.] In the end, Plaintiff

does not seek the treatment Price and Ramsden received; she seeks

placement in other post offices doing work not exclusively in the

carrier craft but “secretary work,” “office work,” or “clerk

work.” [Id. 98:5-25.] Her physical condition, which had prevented

her from performing as a fully functioning TE city clerk for four

months, was a material factor for her employer to consider when

making transfer or hiring decisions, especially considering that

transitional employees may be terminated at any time following

completion of an assignment or for lack of available work, and

each year transitional employees must be given a “break” before

being rehired for a new term. Therefore, Plaintiff is unable to

establish that similarly situated employees were treated

differently than she was, and thus she fails to establish a prima

facie case of discrimination.

Plaintiff argues that Vill. of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (per curiam) stands for the proposition that

Plaintiff can be a “class of one,” when no other injured TE city

carrier exists for comparison. [Pl. Br. at 9.] However, in that

case the Supreme Court held that an equal protection claim could

be brought by a “class of one . . . where the plaintiff alleges

that she has been intentionally treated differently from others

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similarly situated and that there is no rational basis for the

difference in treatment.” Vill. of Willowbrook, 528 U.S. at 564.

As explained above, Plaintiff here cannot show she was

intentionally treated differently from others similarly situated

and that no rational basis exists for that treatment. Even

setting aside the “similarly situated” language quoted above, the

fact that Plaintiff had significant physical restrictions was at

least a rational basis for treating her differently than other

transitional employees who had no restrictions.

Because the evidence, even considered in the light most

favorable to Plaintiff, has failed to establish a prima facie

case of discrimination, Defendant is entitled to summary judgment

on Counts One, Two and Four of the Complaint.

D. Employer’s legitimate reasons for termination

Even if the Court were to assume, arguendo, that Plaintiff

established a prima facie case of discrimination, Defendant would

still be entitled to summary judgment because Defendant has

articulated legitimate reasons for her termination, supported by

evidence, and Plaintiff cannot show by a preponderance of the

evidence, even giving Plaintiff all reasonable favorable

inferences from the facts, that the proffered reasons are

pretextual.

Defendant has shown that the South Jersey District

eliminated all TE city carrier positions from Salem and

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Plaintiff’s services were no longer needed. In addition,

Defendant has shown that the Postmaster need not accommodate

transitional employees as if they were career employees;

transitional employees may be terminated at any time upon

completion of an assignment or for lack of available work, and

thus Hester owed no duty to Plaintiff to reassign her to another

post office, particularly in a different craft. Defendant also

has shown that Plaintiff, at the time of termination, was not

physically capable of performing her job, justifying her

termination and distinguishing her treatment from that of other

TE city carriers who were transferred out of Salem. 

Plaintiff has neither cast sufficient doubt on these

reasons, nor shown that invidious discrimination was more likely

than not the motivating or determinative cause of her

termination. From the evidence of record, Plaintiff cannot show

by a preponderance of the evidence that Defendant’s proffered

reasons are pretextual. Plaintiff’s brief does not even argue the

point; Plaintiff’s brief merely responds to Defendant’s argument

that Plaintiff failed to establish a prima facie case. 

The record contains descriptions of a number of incidents in

which Plaintiff’s supervisors behaved in a manner that upset her

or made Plaintiff uncomfortable. But such anecdotes fall well

short of showing that Plaintiff’s termination was more likely

than not a result of her employer’s animus on the basis of race,

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gender or national origin. Nothing in the record suggests a

reasonable factfinder could find that Defendant’s explanations

for Plaintiff’s termination contain weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions, or that they

were post hoc fabrications or did not actually motivate the

employment action. Therefore, even if Plaintiff were able to

establish a prima facie case of discrimination, she has not made

the requisite evidentiary showing to defeat a motion for summary

judgment.

E. Retaliation

Retaliation claims are governed by the same McDonnell

burden-shifting scheme described supra, Part II.B. Marra v.

Philadelphia Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007). To

establish a prima facie case of retaliation, an employee must

show “(1) protected employee activity; (2) adverse action by the

employer either after or cotemporaneous with the employee’s

protected activity; and (3) a causal connection between the

employee’s protected activity and the employer’s adverse action.”

Id. (quoting Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68

(3d Cir. 2002)). 

Under the antiretaliation provision of Title VII, a

plaintiff shows she was subject to an “adverse action” by showing

that “a reasonable employee would have found the challenged

action materially adverse,” meaning that “it well might have

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dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 67-68 (2006). This is an objective standard and

distinguishes “significant from trivial harms.” Id. at 68. Title

VII does not protect employees from “petty slights, minor

annoyances, and simple lack of good manners,” nor from “the

ordinary tribulations of the workplace, such as the sporadic use

of abusive language, gender-related jokes, and occasional

teasing,” nor from common personality conflicts that “generate

antipathy and snubbing by supervisors and co-workers.” Id.

(internal quotation marks omitted).

A “causal connection” between the materially adverse action

and the retaliation may be established by a “broad array of

evidence” and

[w]here the time between the protected activity and

adverse action is not so close as to be unusually

suggestive of a causal connection standing alone,

courts may look to the intervening period for

demonstrative proof, such as actual antagonistic

conduct or animus against the employee . . . or other

types of circumstantial evidence . . . that give rise

to an inference of causation when considered as a

whole.

Id. at 302 (citing Woodson v. Scott Paper Co., 109 F.3d 913, 921

(3d Cir. 1997) and Farrell v. Planters Lifesavers Co., 206 F.3d

271, 280-81 (3d Cir. 2000)).

Plaintiff has satisfied the first prong of the standard: she

engaged in protected activity when she met with an EEO counselor

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and articulated charges of discrimination.

Concerning the second prong, Plaintiff alleges three

retaliatory actions in her opposition brief: (1) Hester ignored

Plaintiff when she was sick, (2) Hester ignored her physical

restrictions and attempted to assign Plaintiff work that would

stress her knee, and (3) Hester claimed there was no work to give

Plaintiff. [Pl. Opp’n at 12.]

The first claimed alleged retaliatory action may be rejected

out of hand. Plaintiff complains that Hester “did not offer to

call an ambulance or make any other arrangement for Diaz to go to

the hospital” when she was sick at work and, during this and

other medical absences, “did not follow up with Diaz to see if

there was any assistance that could be offered by the post office

. . . .” [Pl. SF ¶¶ 28, 33.] At most, these are examples of the

kind of “antipathy” or “snubbing” or “lack of good manners” that

the Supreme Court has said is not actionable under Title VII.

Plaintiff has adduced no evidence that Hester was under a duty to

help Plaintiff get to the hospital, let alone that his failure to

help was a reaction to her meeting with an EEO counselor.

Plaintiff admits that transitional employees do not receive

health insurance or other such benefits. Plaintiff has not shown

that a reasonable factfinder could conclude that Hester’s conduct

regarding her sickness constituted a materially adverse action

that would dissuade a reasonable worker from making or supporting

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a charge of discrimination. Thus, Plaintiff cannot sustain a

retaliation claim based on this conduct.

Plaintiff next argues that Hester ignored her medical

restrictions and offered work that would cause stress on her

knees. The record does not suggest that Hester, in fact, ignored

Plaintiff’s condition, or that Hester’s actions were materially

adverse to Plaintiff in this case. Plaintiff was free to reject

an offer of limited duty or raise concerns about any of the

assigned tasks to Hester, both of which she did. [Def. SF ¶¶ 28,

34.] Each time Plaintiff provided the post office with a note

from her physician, Hester, in a timely manner, responded with an

offer of limited assignment that reasonably accommodated the

physician’s limitations. It is not materially adverse, as

Plaintiff suggests, to propose that Plaintiff sweep or mop in

response to a physician report that cleared Plaintiff to stand

and walk for two hours a day, or bend and stoop for six hours a

day, or push or pull up to 15 pounds for six hours a day. [Def.

SF ¶¶ 32-33.] That Hester devised a work assignment with sweeping

and mopping does not show that he “did his best to ignore the

restrictions” of Plaintiff’s physician. [Pl. Opp’n at 12.] Hester

believed that a restriction of “0 hours per day” of pushing or

pulling mail precluded Plaintiff from being assigned to case

mail. [Def. Ex. H; Hester Decl. ¶ 19.] This evidence cannot

establish a prima facie case of retaliation on Hester’s alleged

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disregard for Plaintiff’s physical restrictions.10

Plaintiff also argues that Hester “claimed that there was no

work to give [Plaintiff], even though his supervisor testified

that he would have been able to find work for her if he had been

told of the restrictions.” [Id.] Plaintiff claims that, after

Hester eliminated physically taxing tasks from Plaintiff’s

assignments, she was left to “sit[] at a desk looking at the wall

as [Hester] would not even let her answer the telephone.” [Pl. SF

¶ 56.] Plaintiff suggests that her supervisor, Uwah, would have

assigned her to case mail or to perform other tasks, but for

Hester’s directive to Uwah that she could not deliver or case

mail and Hester did not further articulate Plaintiff’s

restrictions. [Pl. Opp’n at 12.] Uwah’s deposition does not

support that charge. Uwah testified that Hester told him that

Plaintiff could not deliver or case mail, and that contributed to

his assigning her to afternoon hours. [Uwah Dep. at 35:15-25.] He

testified he did not recall specifically discussing Plaintiff’s

limitations with Hester, and that he and Hester did not sit down

to parse her limitations. [Id. at 35:15-21.] Uwah further

testified that when he assigned workers to case mail, he would

 Even if Plaintiff’s unsupported allegation that Hester 10

ignored her physician’s restrictions could be construed to

establish a prima facie case of retaliation, under McDonnell,

Plaintiff has failed to show, by a preponderance of the evidence,

that Hester’s conduct was retaliatory. Rather, the record shows

that Hester reacted reasonably to Plaintiff’s physician’s

restrictions, and Plaintiff does not rebut Defendant’s evidence.

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receive objections that he was taking casing time away from other

employees. [Id. at 36:7-19.] Uwah did not testify that he would

have been able to find work for Plaintiff if he had been told of

her restrictions.

Plaintiff does not articulate how her limited duty

assignments were materially adverse to her. She does not specify

what work Uwah would have been able to find her, but she seems to

suggest that more work or different work was available, and she

would have preferred those assignments to what she received.

Plaintiff does not argue that she was assigned an unreasonably

insufficient number of hours or that she was not compensated for

her time she spent at work. Because Plaintiff fails to show how

her assignments were materially adverse, she cannot establish a

prima facie case for retaliation.

Even if Plaintiff were able to make a prima facie for

retaliation based on this conduct, the facts in evidence fail to

show a causal link between her protected activity and Defendant’s

conduct. No reasonable factfinder could find a retaliatory

motivation in Hester’s alleged failure to find Plaintiff work

that she preferred. Defendants show that transitional employees

receive assignments as needed and may be terminated at any time

upon completion of an assignment or for lack of available work.

[Hester Dep. at 34:23-35:23, 53:10-18; Def. Ex. B at 5.] The post

office does not have the same obligation to accommodate

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limitations of transitional employees as it does career

employees. [Hester Dep. at 143:13-24.] Indeed, Defendant shows

that transitional employees may be assigned to work in other

crafts only in limited circumstances [Def. Ex. B at 4], and

Hester testified that union contractual issues and overstaffing

at Salem prevented him from reassigning work from clerks to

Plaintiff, who was a letter carrier. [Hester Dep. at 143:8-24,

144:10-145:1.] Hester received weekly staffing analysis reports,

which indicated that he had too many employees for the volume of

mail the post office had to handle, and Hester made assignments

based, at least in part, on that analysis. [Id. at 145:8-18.]

Hester may not have gone out of his way, or bent the rules, to

find acceptable work for Plaintiff, but Plaintiff, as a

transitional employee, was not entitled to better treatment.

Plaintiff has not adduced evidence to show that Hester was

obligated to accommodate her or that his failure to do so was

causally linked to her meeting with an EEO counselor, rather than

from fatigue from trying to find Plaintiff suitable limited duty

work that would not elicit objections from her or her physician.

See id. at 139:15-24 (describing the difficulty of finding

assignments for Plaintiff, that she rejected multiple assignment

offers, and that she had been out of work for an extended period

of time). Therefore, even if the Court were to hold that

Plaintiff made a prima facie case of retaliation based on this

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conduct, Defendant still would be entitled to summary judgment.

Although not articulated in so many words in her opposition

brief, Plaintiff’s statement of material facts includes even more

examples of behavior Plaintiff considered retaliatory. They are:

(1) Hester failed to provide Plaintiff with her leave slip [Pl.

SF ¶ 34], (2) Plaintiff was reassigned to a route with which she

was unfamiliar [Pl. SF ¶ 35], (3) Plaintiff was assigned part of

a route that normally was handled by another employee and Moore

refused to assign other workers to help Plaintiff cover the

partial route [Pl. SF ¶¶ 38, 41], and (4) Plaintiff was

terminated. [Pl. SF ¶ 60.]

Plaintiff’s allegation that she was not provided her leave

slip is unsupported by the cited portion of Plaintiff’s

deposition. The cited testimony does not concern a leave slip or

Plaintiff’s sickness but rather Plaintiff’s assignment to cover

for a career employee who was absent that day. The Court need

only consider cited materials, Ullrich v. U.S. Sec’y of Veterans

Affairs, 457 Fed. Appx. 132, 137 (3d Cir. 2012), but may consider

other materials in the record, and the Court does not see any

deposition testimony from Plaintiff supporting this allegation.

Plaintiff’s evidence of record cannot establish a prima facie

case based on this conduct.

Plaintiff’s complaints related to her route assignments

concern behavior squarely within the supervisor’s discretion when

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assigning transitional employees work. There is no evidence to

show that Plaintiff’s assignments were a direct response to

Plaintiff’s protected activity. A reasonable employee would not

be dissuaded from making or supporting a charge of discrimination

based on two isolated assignment shifts, which are to be expected

for transitional employees. In this case, one assignment shift

was in response to the absence of the regular mail carrier that

day. [Diaz Dep. at 59:9-15.] Two instances of route reassignments

in Plaintiff’s entire employment at Salem do not raise suspicion

of her employer’s retaliatory motive. Any hope or expectation, as

a transitional employee, that she could not be reassigned to new

routes or duties is fatuous. Thus, conduct related to Plaintiff’s

assignments does not constitute materially adverse action capable

of supporting a prima facie case of retaliation.

Finally, Plaintiff’s Complaint and opposition brief could be

construed to assert that her termination was retaliatory for her

protected activity. Termination is a materially adverse action.

However, for the reasons discussed supra, Parts II.C & D, even if

Plaintiff establishes a prima facie case of retaliation based on

her termination, she has not shown by a preponderance of the

evidence that Defendant’s proffered explanations for her

termination - downsizing at the post office and her inability to

perform all regular tasks of a TE city carrier - are pretextual.

Therefore, insofar as Plaintiff asserts this claim under Count

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Three, Defendant is entitled to summary judgment.

IV. Conclusion

Plaintiff has not raised a genuine factual dispute that she

was treated differently from “similarly situated” non-minority

employees, and thus she cannot establish a prima facie case of

discrimination under Counts One, Two or Four. Even assuming,

arguendo, that Plaintiff could establish a prima facie case of

discrimination, she has not raised a genuine factual dispute that

Defendant’s asserted reasons for her termination were pretextual,

and thus, Defendant is entitled to summary judgment on Counts

One, Two and Four. Similarly, Plaintiff has not adduced evidence

from which a reasonable factfinder could find a prima facie case

of retaliation because her Complaint and opposition brief do not

assert materially adverse employment actions. To the extent her

Complaint can be construed as alleging materially adverse

actions, the evidence does not suggest that a causal link can be

inferred between her protected activity and the adverse actions.

Therefore, Defendant is entitled to summary judgment on Count

Three. An appropriate order will be entered.

January 3, 2013 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge

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