GIBBS v. BRENNAN

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

DOROTHY GIBBS,

Civ. No. 18-14410 (KM) (MAH)

PLAINTIFF,

OPINION

v.

MEGAN J. BRENNAN, POSTMASTER

GENERAL OF THE UNITED STATES

POSTAL SERVICE, A FEDERAL

AGENCY,

DEFENDANT.

KEVIN MCNULTY, U.S.D.J.:1

Dorothy Gibbs is an employee at the United States Postal Service

(“USPS”). She brings claims under Title VII, claiming that USPS demoted her

from Postmaster to Mail Handler because of her gender and because she

opposed sexual harassment. USPS moves for summary judgment.

1 Citations to certain items in the record will be abbreviated as follows.:

“DE” = Docket entry number in this case.

MSJ = Defendant’s Brief in Support of its Motion for Summary Judgment (DE 48-1)

Opp = Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment (DE 54)

Reply = Defendant’s Reply Brief in Further Support of its Motion for Summary

Judgment (DE 59)

Am. Compl. = Plaintiff’s Complaint (DE 1)

DSOMF = Defendant’s Statement of Facts (DE 48-3)

PSOMF = Plaintiff’s Supplemental Statement of Facts (DE 53)

PRSOMF = Plaintiff’s Response to Defendant’s Statement of Facts (DE 55)

DRSOMF = Defendant’s Response to Plaintiff’s Supplemental Statement of Facts (DE

59-5)

The facts are sharply disputed. USPS points to substantial evidence that

it demoted Gibbs because she failed to report sexual harassment and because

she improperly coerced a subordinate into entering paying her a private

settlement of $10,000. Gibbs, however, points to substantial evidence that

these events did not occur as described, or that they were not the true basis for

her demotion. On this summary judgment motion, I am required to construe

the facts in Gibbs’s favor. USPS’s motion for summary judgment is therefore

DENIED.

I. BACKGROUND

A. Dorothy Gibbs

Ms. Gibbs joined USPS as a clerk in January 1995. (PSOMF ¶¶ 1–2.) A

series of promotions resulted in her becoming a Level 17 Supervisor at the Fort

Lee, New Jersey postal facility. (Id. ¶¶ 3–4; DSOMF ¶ 4.) On August 23, 2014,

Gibbs was promoted to Postmaster of the Demarest, New Jersey post office.

(DSOMF ¶ 4.) She would subsequently become Postmaster at the Elmwood

Park and Bergenfield, New Jersey post offices. In December 2017 she was

demoted to a Mail Handler position in connection with the events which are at

issue in this case. (Id. ¶¶ 6–7; DE 48-4.)

B. Gibbs is Allegedly Sexually Harassed by Her Subordinate

In September 2014, on Gibbs’s final day at the Fort Lee branch, she said

her goodbyes to her fellow employees. (PSOMF ¶ 6.) While she was saying her

goodbyes, she was approached by a male letter carrier named Issa Nesheiwat

(“Nesheiwat”). (Id. ¶ 7.) Gibbs was one of Nesheiwat’s supervisors at the Fort

Lee facility. (Id.) The parties dispute what happened next.

On Gibbs’s account, Nesheiwat shook her hand and pulled her closer to

him for a hug. (Id. ¶ 9.) During the hug, he grabbed her buttocks. (Id.) He then

kissed her. (Id. ¶¶ 9–10.) Gibbs pushed him away and stood there, shocked.

(Id. ¶ 11.) Other letter carriers then yelled at Nesheiwat, calling him a “pervert.”

(Id. ¶ 12.) Gibbs left the common area and went to the bathroom and cried. (Id.

¶ 13.) After composing herself, she returned to the post office common area,

where several other letter carriers approached to ask if she was okay. (Id.)

Gibbs asserts that she called the Postal Service Equal Employment

Opportunity office in order to report the incident. (Id. ¶¶ 24–25.) She claims

that, during her call, she spoke with an individual who told her that she could

not file an EEO charge against Nesheiwat because he was her subordinate. (Id.

¶ 27.)

Gibbs also states that she spoke with two individuals employed at USPS

about the incident. First, on the day of the incident, she spoke with Roberto

Caminero, an acting supervisor at the Fort Lee facility. (Id. ¶ 29.) Caminero told

Gibbs that he had heard about the incident and was “going to take Nesheiwat

in, because he knows better.” (Id. ¶ 31.) Gibbs never heard from Caminero

again regarding the harassment or any actions he took against Nesheiwat. (Id.

¶ 33.) Caminero resigned from the Postal Service in 2015. (Id. ¶ 33 n.2.)

Gibbs also claims that she spoke with Nesheiwat’s union representative,

Frank DeGironimo, on either the day of the incident or the next day. (Id. ¶ 34.)

She states that DeGironimo had already been informed about Nesheiwat’s

conduct and that he apologized on Nesheiwat’s behalf. (Id. ¶ 35.) Gibbs claims

that she told DeGironimo that she had been informed that she could not file an

EEO charge against Nesheiwat and so was going to file a civil suit instead. (Id.

¶ 36.)

The USPS denies that Nesheiwat groped Gibbs’s buttocks or kissed her.

(DRSOMF ¶¶ 9–10.) It also rejects Gibbs’s characterization of her conversation

with DeGironimo. (Id. ¶¶ 30–36.) It does not directly provide its own version of

events, but instead refers to an investigation, detailed below, which failed to

corroborate Gibbs’s allegations. (Id.)

C. Nesheiwat Agrees to Pay Gibbs $10,000

According to Gibbs, a week after the alleged sexual harassment,

Nesheiwat called her to say that he wanted to settle their dispute. (PSOMF ¶¶

37, 40.) Gibbs asserts that Nesheiwat said he had spoken to his sister and a

lawyer, and he wanted to pay her because he knew what he had done was

wrong and because his lawyer had advised him that he would lose if the case

went to court. (Id. ¶¶ 38–39.) After two subsequent discussions, Gibbs and

Nesheiwat agreed to a $10,000 settlement. (Id. ¶ 41.)

At Gibbs’s insistence, the settlement was reduced to writing, and the

parties signed the agreement in the presence of a notary on September 25,

2014. (Id. ¶¶ 42–43.) On the agreement, Gibbs wrote “I was not inadvertently

touched. Issa Nesheiwat was full[y] aware of his wrong[]doing of touching my

butt, which is a sexual harassment charge. I have agreed to settle out of court

with him for a settlement of $10,000 total.” (Id. ¶ 45.)2 Nesheiwat then paid the

$10,000 in three installments. (Id. ¶ 46.)

According to Gibbs, she told DeGironimo about the settlement around

the time that she entered it. (Id. ¶ 12.)

The USPS again cites its investigation, detailed below, which it claims did

not corroborate Gibbs’s allegations.

D. USPS Learns of the Settlement and Conducts an Investigation

In September of 2016, the National Association of Letter Carriers

(“NALC”) and USPS learned of the alleged sexual harassment and the

settlement agreement. (DSOMF ¶ 12.) The Executive President of NALC Branch

425, Albert Valvende, heard a rumor that Gibbs had extorted money from

Nesheiwat and contacted DeGironimo and Nesheiwat to confirm. (DE 48-7 at

3.) He then reported the incident to the Postal Inspection Service. (Id.) In his

report, Valvende described his discussion with Nesheiwat, in which Nesheiwat

explained that he did not report the incident to authorities at first because he

was afraid of Gibbs, who had threatened him with job loss and physical

violence by her husband. (Id.) Gibbs disputes that she ever told Nesheiwat that

her husband would hurt him or that he would lose his job if he did not settle

with her. (PSOMF ¶¶ 48–49, PRSOMF ¶ 92.) She also claims that USPS only

2 Nesheiwat would later claim that he did not agree with this portion of the

agreement but did not object. (DSOMF ¶¶ 89–90.)

learned of the settlement agreement because DeGironimo called Nesheiwat and

told him that he should file a grievance. (PSOMF ¶¶ 50; DE 53-2 ¶ 12.)

The USPS immediately requested an investigation by the USPS Office of

the Inspector General (“OIG”). (DSOMF ¶ 14.) Special Agent Steven Vargas and

Inspector Gerard Kane of the OIG carried out the investigation, which lasted

from September 21, 2016 to October 27, 2016, and concluded with a report

issued on October 31, 2016. (Id. ¶¶ 15–16.)

Vargas and Kane first interviewed Nesheiwat on September 21, 2016. (Id.

¶ 16.) In the interview, Nesheiwat denied inappropriately touching Gibbs. In his

version, he gave Gibbs a hug in the presence of other people, including the

Postmaster and the Shop Steward. (Id. ¶ 17.) He claimed that Gibbs then called

him a week after she changed jobs to accuse him of inappropriately touching

her. (Id. ¶ 18.) According to Nesheiwat, Gibbs then mentioned the possibility of

filing a complaint against him and threatened that she had connections within

USPS who could have him fired. (Id. ¶¶ 18–20.) She then asked him to pay

$15,000; after negotiations, he ultimately agreed to pay $10,000. (Id. ¶¶ 21–

22.) Nesheiwat never provided a clear explanation for failing to report the

incident to management or local authorities. (Id. ¶ 24.)

Nesheiwat also provided investigators with a written statement dated

September 13, 2016, in which he reiterated his account, but added that Gibbs

threatened that her husband might hurt Nesheiwat. (Id. ¶¶ 25–27 (worrying

that her husband “would get involved, but Gibbs did not want him going to

jail”).) He also wrote that Gibbs called his mobile phone during work hours and

showed up unannounced at his work station to demand the money. (Id. ¶¶ 28–

29.)

On September 29, 2016, Vargas and Kane also interviewed Gibbs as a

part of their investigation. (PSOMF ¶ 52.) In that interview, Gibbs claimed that

Nesheiwat grabbed her behind on her last day and that she pushed him away

and yelled “why did you do that?” (Id. ¶ 32.) She claimed other letter carriers

were present and yelled the same thing. (Id. ¶ 33.) The parties dispute whether

Gibbs provided the investigators with the names of the carriers who allegedly

observed the incident. (DSOMF ¶ 34 (citing DE 53-14 at 4); PRSOMF ¶ 34

(citing DE 53-2 ¶ 6).)

Gibbs also claimed to have contacted EEO to file a sexual harassment

complaint. (DSOMF ¶ 35.) She explained, however, that the EEO advised her

that she could not do so against a subordinate. (Id.)3 She acknowledged that

she did not report the sexual harassment to local authorities, OIG, the Postal

Inspection Service, or other high-level USPS management officials. (Id. ¶ 36.)

The investigators reported that Gibbs was unable to provide a clear explanation

for her failure to report, other than to state that she felt it was a personal

matter. Gibbs, however, contests that characterization and claims that she

stated that she did report the harassment. (Id. ¶ 37; DE 53-2 ¶ 7.) It is not

clear from Gibbs’s submissions, however, whether she claims to have

specifically stated at this time that she reported the harassment to Caminero,

DeGironimo, or the EEO. (See DE 53-2 ¶ 7 (Gibbs’s affidavit in support of

statement of facts) (“I told Vargas clearly that I had reported the assault”)

(omitting to whom the assault was reported).) She further declined to discuss

the particulars of her settlement agreement with the investigators because her

attorney was not present. (DSOMF ¶ 39.) She acknowledged conferring with

NALC Shop Steward Frank DeGironimo regarding the harassment, but said

that she did not provide DeGironimo any details. (Id. ¶ 38.)

The OIG investigators then concluded their report and provided it to

USPS management. (Id.) On November 3, 2016, a week after the investigation

concluded, Post Office Operations Manager Maryanne Batten placed Gibbs on

administrative leave. (PSOMF ¶ 53.)

3 During the interview she could not provide any identifying information

regarding the EEO representative, though at a later hearing she stated she spoke to a

female. (PRSOMF ¶ 53.)

E. Nesheiwat Files a Grievance Against the USPS

On November 22, 2016, NALC filed a grievance against the USPS on

Nesheiwat’s behalf, alleging violations of the Employee Labor Relations Manual

and the Joint Statement on Violence and Behavior in the Workplace because

Gibbs, while acting in a supervisory role, negotiated a $10,000 payment from

Nesheiwat. (DSOMF ¶ 42.) Arbitrator Joseph Harris, PhD, issued an arbitration

award in favor of the NALC and directed USPS to remove Gibbs from her

administrative duties for a period of three years starting on July 14, 2017. (Id.

¶ 43.) The USPS then unsuccessfully sought to obtain the $10,000 from Gibbs

as indemnification for the arbitration award. (PSOMF ¶¶ 79–83.)

Although invited to testify, Gibbs did not appear at the arbitration

hearing. (PRSOMF ¶ 43; DRSOMF ¶ 79; see DE 53-17 (email from union

representative to Batten and others stating that Gibbs received an invitation to

attend but that she could not because she would be on annual leave at that

time).)

F. OIG Performs a Supplemental Investigation

Between January 26, 2017, and March 8, 2018, while the result of the

arbitration between NALC and USPS was still pending, Vargas and USPS-OIG

Special Agent Bryan Glinkin conducted a supplemental investigation. (DSOMF

¶ 44.) As a part of that supplemental investigation, Glinkin conducted an

additional interview with Gibbs on January 26, 2017. (Id. ¶ 45.) During that

interview, Gibbs reiterated the events that she described in the September 29,

2016 interview. (Id. ¶¶ 45–49, 52–55.) The parties generally agree that, in this

interview, Gibbs named other letter carriers who she claimed were present at

the time of the harassment incident. (DSOMF ¶ 50; PRSOMF ¶ 50.)4 They

disagree, however, as to which individuals she named: USPS states that Gibbs

identified Karen Andersen, Alexis Espino, Will Ramos, and Robert Ramos;

Gibbs says that she identified Robert Ramos as having been present when her

4 As mentioned, the parties dispute whether Gibbs named these individuals in

the first interview. (Id.)

buttocks were grabbed, and stated that she was not sure if Will Ramos was

present. (PRSOMF ¶ 50.)5

Gibbs also told the investigators that she spoke with Acting Supervisor

Robert Caminero about the alleged incident. (DSOMF ¶ 51.)6 She also

elaborated on her conversation with DeGironimo, adding that she had told

DeGironimo that she was going to file a civil suit against Nesheiwat, and that

DeGironimo had told her he was already aware of the alleged incident. (Id. ¶

56.)

Vargas and Glinkin also reinterviewed Nesheiwat on January 26, 2017.

Nesheiwat claimed that he gave Gibbs a hug and a kiss on the cheek. (Id. ¶¶

68–69.) He could not identify any witnesses with confidence. He mentioned that

DeGironimo may have been nearby, and that Karen Andersen and Alexis

Espino might have been present as well. (Id. ¶¶ 70–72.) Nesheiwat then claimed

that a week and a half after Gibbs left Fort Lee, she called him to accuse him of

inappropriately touching her. (Id. ¶ 73.) He claimed that he told her he was

surprised and that if he had touched her inappropriately, it was an accident.

(Id. ¶ 74.) Gibbs, he said, responded that she knew he had done it on purpose

and that she might file a sexual harassment claim. (Id. ¶¶ 75–76.) Nesheiwat

also said that Gibbs referred to knowing someone who could have him fired

from USPS. (Id. ¶ 78.)

5 The dispute emanates in part from the manner of questioning. Gibbs orally

stated that Robert and Will Ramos were there. Gibbs was asked to point out

individuals on a picture roster, but it does not appear that investigators made a clear

record of which individuals she pointed at. The transcript does generally indicate that

she pointed at other individuals on the roster. (See DE 53-3 T14:25–15:5 (“I don’t see

all the names here. I don’t know this, I don’t remember this name (indicating). There’s

another guy, I don’t remember his name. There’s another guy, he’s African-American,

he has dreads, and he’s not here, but this doesn’t look like all the names.”); id.

T15:10–13 (“These two I think was there (indicating) and I don’t see Robert Ramos’s

name on here, neither. I see Will Ramos, he was there that day, but I’m not for sure if

he was standing there.”).

6 The OIG never interviewed Caminero because at that point he was no longer

employed with USPS, having left the Postal Service in 2015. (Id. ¶ 168.)

Nesheiwat told investigators that, at the time, he was unable to contact

his attorney, who was on vacation. (Id. ¶¶ 83, 87.) He claimed to have

contacted DeGironimo, who, he explained, already knew about the alleged

incident. (Id. ¶ 84.) Nesheiwat claims that DeGironimo said he would speak to

a union attorney and get back to him; a few days later, however, DeGironimo

told Nesheiwat that he was on his own. (Id. ¶¶ 85–86.)

Vargas and Glinkin also interviewed DeGironimo. (DSOMF ¶ 96.)

DeGironimo explained that Gibbs spent her last day going around the Fort Lee

post office saying goodbye to carriers and giving them hugs and kisses. (Id. ¶

98.) He stated that he did not recall it being a “big deal” and that he did not

recall any confrontations or yelling. (Id. ¶ 99.) He explained that three weeks

after Gibbs left Fort Lee, she told him that Nesheiwat had grabbed her buttocks

while she was saying goodbye. (Id. ¶ 100.) He said that Gibbs mentioned

Nesheiwat would pay her to end the matter and that while she did not want to

hurt Nesheiwat or get him fired, she could not let it go. (Id. ¶ 102.) She also

told DeGironimo that she had prevented her husband from assaulting

Nesheiwat. (Id. ¶ 103.) DeGironimo told Gibbs that he was not aware of the

incident and did not want to get involved. (Id. ¶ 104.) DeGironimo then claimed

to have conferred with Nesheiwat, whom he described as “distraught.” (Id. ¶

106.) According to DeGironimo, Nesheiwat said that he gave Gibbs a hug and a

kiss, but had agreed to pay her $10,000 to end the matter. (Id. ¶ 107.)

DeGironimo advised Nesheiwat to retain an attorney and not pay Gibbs. (Id. ¶

108.)

Vargas and Glinkin also interviewed some of the individuals identified by

Gibbs and Nesheiwat as potential witnesses. They first interviewed Karen

Andersen on March 8, 2017. (Id. ¶ 111.) Andersen recalled Gibbs’s last day at

Fort Lee, but did not remember any yelling or confrontations. (Id.) Second,

Vargas and Glinkin interviewed Alexis Espino, who explained that he did not

personally witness the incident, but recalled that Gibbs told him about it at a

bar in Hoboken after her last day in Fort Lee. (Id. ¶ 115.) He stated that Gibbs

told him, Caminero, Will Ramos, and an individual named Keisaun William

about the incident. (Id.) Espino recalled that Gibbs told them that Nesheiwat

had touched her buttocks, but he did not recall her appearing upset or serious,

and he did not receive any indication that she planned to take action against

Nesheiwat. (Id. ¶¶ 116–17.) Third, Vargas and Glinkin interviewed Keisaun

Williams, who stated that he did not observe the incident, but learned about it

in August 2015 from Will Ramos. (Id. ¶ 119.) Fourth, and finally, Vargas and

Glinkin interviewed Will Ramos, who stated that Gibbs never mentioned the

incident to him and that he had learned about it from another employee. (Id. ¶

120; Ex. H to MSJ (DE 48-11) at 7.)

G. Gibbs is Demoted and Her Pay is Reduced

On June 10, 2017, Batten informed Gibbs of the allegations against her

and issued her a letter of proposed reduction in grade and pay. (PSOMF ¶¶ 56–

57.) Batten’s letter seemingly did not take a position as to the truth of the

harassment allegations, but criticized Batten for mishandling the situation:

This demotion action is based upon your action, and also your

failure to take certain actions . . . . [A]s a management official you

have an affirmative duty to report any incidents of sexual

harassment or sexual assault so that the incident can be

immediately and fully investigated.

You have consistently and uniformly taken the position that Mr.

Nesheiwat’s July 2014 actions were illegal and even criminal . . . .

Yet, to this day you never reported what you had perceived and

have characterized as the actions of the perpetrator of sexual

assault so that it could be promptly and fully investigated. For

example, you never reported the Nesheiwat incident to the Fort Lee

Postmaster, to your POOM, to your District Manager, to your

Human Resources manager, to your Labor Relations manager, or

to the Office of Inspector General or the Postal Service Inspection

Service. By failing to contact the relevant authorities you let a man

who you perceived and regarded as someone who committed a

sexual assault go uninvestigated, thereby putting other Postal

Service employees potentially at risk for repetition of his action, if,

indeed, he had committed a sexual assault. Your failure to act at

all prevented a timely investigation from occurring.

In contrast to your total inaction with respect to fulfilling your

responsibilities as a supervisor to ensure that an investigation

occurred, you were very active in pursuing and advancing your

own selfish interests and self-enrichment. At the time that the

incident occurred Nesheiwat was your subordinate. You threatened

him with a civil lawsuit unless he agreed to pay you money. You

then engaged in adversarial settlement negotiations with Nesheiwat

in which you demanded a certain amount of money . . . . you also

demanded that certain language be included as a condition of not

filing a lawsuit against him in court . . . .

Your failure to act to have the incident investigated and your

threat to sue your subordinate . . . make you unfit to continue to

serve in a position of management where you will be supervising

any letter carriers or any other craft employees.

(Batten Letter, Ex. A to MSJ (DE 48-4) at 1–3.)

Batten cited Publication 552, entitled “Manager’s Guide to

Understanding, Investigating, and Preventing Harassment,” which requires

supervisors, like Gibbs, to conduct a thorough investigation into harassing

behavior, including interviews of all parties involved and all witnesses to the

alleged misconduct, and eliminate harassing behaviors. (DSOMF ¶ 122.) She

stated that Publication 552 requires supervisors “to take action in the face of

harassing behavior . . . . You cannot ignore the problem, because it may likely

continue.” (DE 48-4 at 2 (“Batten Letter”).)

Batten’s proposal was then sent to Batten’s superior, Milford Scott

Hooper, USPS District Manager for Northern New Jersey, for review. (PSOMF

¶¶ 62–64.) Hooper approved the proposed demotion, making it official, in a

December 2017 decision. (Id. ¶ 65; DSOMF ¶ 125.) Hooper’s written decision

largely reiterated the reasoning set forth in Batten’s proposed notice of

reduction. (See generally Ex. E to MSJ (DE 48-8) (“Hooper Letter”).) Hooper

noted that he could “no longer trust that [Gibbs] will make the appropriate

judgments in any supervisory or managerial position” in light of the fact that

Gibbs “abused [her] superior position of power and authority to pressure an

employee of lower rank and authority to pay you $10,000 secretly” and “let a

man who [she] perceived and regarded as someone who committed a sexual

assault go uninvestigated, thereby putting other Postal Service employees

potentially at risk for repetition of his action, if, indeed, he had committed a

sexual assault.” (Id. at 2–4.) He further found that Gibbs had not expressed

remorse, so rehabilitation was unlikely to be successful. (Id.) As a result, Gibbs

was demoted from Postmaster to Mail Handler and her salary was cut by more

than $40,000. (PSOMF ¶ 66.)

H. Gibbs Appeals the Demotion Decision to the MSPB

Gibbs appealed Hooper’s decision to demote her by filing an appeal with

the United States Merit Systems Protection Board (“MSPB”) on December 23,

2017. (DSOMF ¶ 130.) The MSPB conducted a hearing and issued a decision

denying Gibbs’s appeal.

Randall Laib, an EEO Data Analyst at the National EEO Investigative

Services Office (“NAISO”), testified at the MSPB hearing. (DSOMF ¶ 135.) He

explained that the NAISO handles all EEO complaints and contacts made to

the EEO, and that he acts as administrator of the EEO centralized intake

system. (DSOMF ¶ 137.) He explained that when an individual calls the EEO

hotline number, a recorded script asks for the caller’s Employee Identification

Number (“EIN”) or Social Security Number. (Id. ¶ 138.) Afterwards, the caller is

prompted to supply his or her name, address, and finance number, which

identifies the facility where the caller works. (Id. ¶ 139.) Laib explained that a

live person never comes on the EEO line and that every call ever made to the

hotline is recorded. (Id. ¶ 140.)

Laib then explained that he used Gibbs’s name, EIN, and Social Security

Number to attempt to identify any calls made by Gibbs to the hotline. (Id. ¶

142.) He identified eight instances associated with calls made by Gibbs, but

none of them were made in 2014, the year that Gibbs claimed to have called

the hotline. All but one of the Gibbs-identified calls occurred before 2014, and

the last occurred in 2015. (Id.) Thus, there was no record of Gibbs contacting

EEO in 2014. (Id. ¶ 136.)7

Gibbs asserts that rather than contacting the NAISO number, she

contacted the EEO field office in New York City. (Id. ¶ 144.) Laib acknowledged

that he would not know whether Gibbs called that office, as such a call would

not be registered in the NAISO system. (Tr. of MSPB Hearing (DE 48-16)

T83:25–84:4.) He also addressed Gibbs’s claim that she contacted the local

EEO office rather than the hotline number, explaining that although the EEO

has a Field Office in New York City, that office would ordinarily handle cases at

the informal stage of processing after a case had proceeded through NAISO. (Id.

¶ 144.)

Gibbs produced a letter issued to her by Kathy Thomas of the New York

EEO field office, which stated that a management official cannot file an EEO

complaint against a subordinate plant employee. (Tr. of MSPB Hearing T88:4–

11.) That letter was sent in February 11, 2014, well before the events at issue

in this case. (DSOMF ¶¶ 150—51.)

Mr. Hooper, the USPS District Manager who approved the demotion, also

testified at the hearing. He explained that he made his decision after reviewing

the interviews with all of the witnesses, the supplemental investigation, Ms.

Batten’s proposal letter, and a letter from an advocate on Ms. Gibbs’s behalf.

(Tr. of MSPB Hearing 100:20–103:11.) He then explained the reasoning for his

decision:

[W]hen you look at Ms. Gibbs’s responsibilities as a supervisor, she

failed her responsibilities, you know, to promote or to protect the

employees in her unit. As a manager, any time that one of you

know, that you have an assault, immediately obviously you should

respond to that and the fact that she didn’t do that, didn’t make

any kind of notification to start an investigation. She did pursue

the letter carrier for the Civil action, but never took the

responsibility on the Postal side to make sure that, you know, this

7 Gibbs asserts that she actually called an EEO office and spoke with an EEO

specialist. (PRSOMF ¶¶ 136–44.)

was investigated properly and allowed this particular person that

allegedly assaulted her to potentially stay in the unit and could

have assaulted other people, you know, afterward.

. . . .

I mean we have posters in every facility. The fact that it wasn’t

done at all you can make—maybe you can understand at that

particular day at that particular time, but at no point, at no point

in time was this reported to anybody.

(PSOMF ¶ 67 (emphasis added); DSOMF ¶ 132.) Hooper later admitted on cross

examination, however, that Gibbs did in fact report her sexual harassment to

some USPS employees; what she had failed to do, he said, was report to the

“correct people within the Postal Service to start an investigation.” (Tr. of

MSPB, 114:16–18.)

Hooper concluded his direct testimony by explaining that he considered

Gibbs’s length of service to be an aggravating factor. Because she had been a

supervisor for many years and should have known to report the harassment,

he felt he had no confidence in her ability to continue in management. (Tr. of

MSPB 105:22–107:6.)

Hooper denied on cross examination that Gibbs’s pursuit of a private

settlement had factored into his decision to demote her. (Id. 108:23–109:1.) He

acknowledged, however, that he stated in his decision that Gibbs had coerced

her subordinate into paying her $10,000. (Id. 132:12–17.) Hooper also

acknowledged on cross examination that Nesheiwat and DeGironimo, like

Gibbs, had similar obligations to report the sexual harassment and the

allegedly coercive settlement to the appropriate authorities. (Id. 133:7–134:22.)

The MSPB judge then issued a decision denying Gibbs’s challenge to her

demotion. (DSOMF ¶ 145.) The judge noted that Gibbs had received

harassment training as a part of her employment at USPS ,which made clear

that she was obligated to report any instances of harassment or sexual

misconduct to the Fort Lee Postmaster, her POOM, her District Manager, her

Human Resources Manager, the OIG, or the Postal Inspection Service. (Id. ¶¶

152–54.) The MSPB judge found that Gibbs’s report to DeGironimo was not

sufficient, because DeGironimo was not empowered to speak on her behalf to

her manager. (Id. ¶ 155.)

The MSPB then found that Gibbs’s claim that she reported the incident

to EEO and Caminero lacked credibility. (Id. ¶ 156.) Specifically, the judge

found that Gibbs did not contact EEO, noting that there was no evidence that

she had called the NAISO hotline. (Id. ¶ 148.) The judge acknowledged that it

was possible that Gibbs had called the local EEO office, but reasoned that

because Gibbs had called the NAISO hotline number seven times before the

incident and one time after, she likely would have followed the same procedure

if she had reported the Nesheiwat incident. (Id. ¶¶ 148–49.) The MSPB judge

also questioned why, if Gibbs had been in possession of a letter issued by

Kathy Thomas of the EEO stating that she could not bring a claim against a

subordinate, she would nevertheless have reported the incident to the EEO. (Id.

¶¶ 150—51.)

I. Other Disciplinary Matters

The USPS never disciplined Nesheiwat. (DSOMF ¶ 169.) USPS claims

that it did not do so because too much time had passed since the alleged

incident of sexual harassment. Here, it relies on Article 16.1 of the Joint

Contract Administration Manual (“JCAM”), which states that “[n]o employee

may be disciplined or discharged except for just cause . . . ,” (id. ¶¶ 170–72; see

also Reply at 3–4), and a decision by Arbitrator Karen Jacobs in USPS v.

National Association of Letter Carriers, AFL-CIO, (Oct. 23, 2003), in which the

arbitrator determined that USPS violated an employee’s rights under Article

16.1. In her decision, Arbitrator Jacobs held that USPS violated “the basic

sense of justice on which just cause is based” where it disciplined an employee

four to six months after alleged misconduct.

USPS also now notes that none of the witnesses identified (or allegedly

identified) by Gibbs corroborated her version of the incident. USPS thus

suggests that it would have been difficult to make a case that Nesheiwat had

engaged in sexual harassment.

As justification for the severity of the discipline imposed, the USPS cites

the case of Keith Reid, a Manager of Human Resources who was not in the

same chain of command as Gibbs. (Id. ¶¶ 173–74.) Reid was accused of failing

to remove pornographic material posted on his Facebook page by his friends

quickly enough. (Id. ¶ 177.) Like Gibbs, Reid was demoted. (Id. ¶ 179.)

J. Procedural History

As mentioned above, Gibbs brought her claim before the MSPB, which

issued its initial decision on July 25, 2018. Gibbs then filed a petition for

review with the MSPB on August 29, 2018. (Am. Compl. ¶ 9(d)) After 120 days

had elapsed without a decision on the review petition, she filed this action

pursuant to 5 U.S.C. § 7702(e)(1)(B). (Id. ¶ 9(d–f).)

Gibbs filed the original Complaint in this Court on September 27, 2018.

(DE 1.) USPS filed a motion to dismiss (DE 10), and Gibbs filed an Amended

Complaint on April 22, 2019 (DE 14). USPS filed a motion for summary

judgment on May 20, 2021 (MSJ), Gibbs filed her Opposition on June 30, 2021

(Opp.), and USPS filed a Reply on July 28, 2021 (Reply).

Gibbs brings claims under Title VII of the Civil Rights Act of 1964 for

unlawful retaliation and unlawful discrimination.

II. STANDARD OF REVIEW

A. Summary Judgment: Rule 56

Federal Rule of Civil Procedure 56(a) provides that summary judgment

should be granted “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.”

See Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion

for summary judgment, a court must construe all facts and inferences in the

light most favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny

Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing Peters v. Delaware River

Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)). The moving party

bears the burden of establishing that no genuine issue of material fact

remains. See Celotex, 477 U.S. at 322-23. “[W]ith respect to an issue on which

the nonmoving party bears the burden of proof . . . the burden on the moving

party may be discharged by ‘showing’ — that is, pointing out to the district

court — that there is an absence of evidence to support the nonmoving party’s

case.” Id. at 325.

Once the moving party has met that threshold burden, the non-moving

party “must do more than simply show that there is some metaphysical doubt

as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The opposing party

must present actual evidence that creates a genuine issue as to a material fact

for trial. Anderson, 477 U.S. at 248; see also Fed. R. Civ. P. 56(c) (setting forth

types of evidence on which nonmoving party must rely to support its assertion

that genuine issues of material fact exist).

Unsupported allegations, subjective beliefs, or argument alone, however,

cannot forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S.

871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1988) (nonmoving party may not

successfully oppose summary judgment motion by simply replacing

“conclusory allegations of the complaint or answer with conclusory allegations

of an affidavit.”); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138

(3d Cir. 2001) (“A nonmoving party has created a genuine issue of material fact

if it has provided sufficient evidence to allow a jury to find in its favor at trial.”).

Thus, if the nonmoving party fails “to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial . . . there can be ‘no genuine issue of

material fact,’ since a complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other facts immaterial.”

Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,

477 U.S. at 322-23).

Moreover, the “mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”

Anderson, 477 U.S. at 247-48. A fact is only “material” for purposes of a

summary judgment motion if a dispute over that fact “might affect the outcome

of the suit under the governing law.” Id. at 248. A dispute about a material fact

is “genuine” if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

III. DISCUSSION

USPS moves for summary judgment, arguing both that the undisputed

facts establish that Gibbs has no claim and that the MSPB decision has issue-

preclusive or claim-preclusive effect on this proceeding. I first turn to the

logically prior issue of issue and claim preclusion.

A. Whether the MSPB Decision Has Issue or Claim Preclusive Effect

USPS asserts that the MSPB decision controls this litigation under the

doctrines of issue and claim preclusion. Those doctrines have been

summarized as follows:

Issue preclusion, otherwise known as collateral estoppel, bars re-

litigation of an issue identical to that in a prior action. Claim

preclusion, often called res judicata, is broader in effect and

prohibits reexamination not only of matters actually decided in the

prior case, but also those that the parties might have, but did not,

assert in that action.

Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993).

Generally, administrative agency decisions made in a judicial capacity

may be afforded issue- and claim-preclusive effect. “When an administrative

agency is acting in a judicial capacity and resolves disputed issues of fact

properly before it which the parties have had an adequate opportunity to

litigate, the courts have not hesitated to apply res judicata8 to enforce repose.”

United States v. Utah Construction & Mining Co., 384 U.S. 394, 421–22 (1966).

The Third Circuit has clarified that an agency is acting in a judicial capacity

8 Confusingly, the term res judicata, which is used as a synonym for claim

preclusion, has also been used as a catchall term for preclusion doctrines in general.

when it is “charged with resolving factual and legal disputes based on an

evidentiary record developed by the parties following notice and a hearing,” as

such “functions are inherently judicial in nature, and properly subject to

principles of issue preclusion.” Duvall v. Attorney General of the United States,

436 F.3d 382, 387 (3d Cir. 2006). Preclusion doctrines thus “apply to ‘all

proceedings that may be deemed adjudicative, no matter whether the governing

entity is a court or an agency.’” Duhaney v. Attorney General of the United

States, 621 F.3d 340, 347–48 (3d Cir. 2010) (quoting Duvall, 436 F.3d at 390).

“[C]ommon law preclusion doctrines,” however, “apply to adjudicative

agency determinations . . . [only] as long as application of these doctrines ‘does

not frustrate congressional intent or impede the effective functioning of the

agency.’” Id. (quoting Duvall, 436 F.3d at 387–88). Thus, in Duhaney, the Third

Circuit explained that there is only a “lenient presumption in favor of

administrative estoppel” and did not automatically grant estoppel effect to a

decision by an immigration judge without first determining that applying

preclusion principles would “not frustrate the goals of Congress.” Id. at 348.

Accordingly, “the ‘suitability of preclusion may vary according to the specific

context of the rights at stake, the power of the agency, and the relative

adequacy of agency procedure’ . . . . ‘the question is not whether administrative

estoppel is wise but whether it is intended by the legislature.”’ Tice v. Bristol-

Myers Squibb Co., 325 Fed. Appx. 114, 118 (3d Cir. 2009) (quoting Astoria Fed.

Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108–10 (1991)). As is discussed in

further detail below, courts have concluded that it is inconsistent with Title VII

to afford administrative agency decisions preclusive effect over discrimination

claims which are subsequently brought in federal district court. Id. at 119.

For federal employees who seek to vindicate their Title VII rights, the

relevant administrative scheme operates as follows: The employee who claims

she was the victim of discrimination is first subject to the administrative

scheme set forth in the Civil Service Reform Act of 1978, Pub. L. No. 95-454,

92 Stat. 1111. See Slingland v. Donahoe, 542 Fed. Appx. 189, 192 (3d Cir.

2013). She may proceed down either of two paths: she may file a complaint

with the employer’s EEO office, or she may file an appeal with the MSPB,

although she cannot do both. Id. If she files an appeal with the MSPB, she may

not file a discrimination action in federal district court until after the MSPB has

rendered its final decision. Id.; see also 5 C.F.R. § 1201.157; 29 C.F.R.

1614.310(b). If the employee attempts to file suit in federal district court before

completing either step, her claim can be dismissed for lack of exhaustion of

administrative remedies. Slingland, 542 Fed. Appx. at 192.

After the MSPB has issued a ruling, an employee may seek judicial

review of the decision. 5 U.S.C. § 7703. Section 7703 offers two avenues for

review. First, Section 7703(b)(1) provides that petitions for review should

generally be filed in the Federal Circuit. Section 7703(b)(2), however, provides

an exception to (b)(1) for “[c]ases of discrimination subject to the provisions of

section 7702 of this title.”9 Those cases “‘shall be filed under’ section 717(c) of

the Civil Rights Act, section 15(c) of the Age Discrimination in Employment Act

of 1967, and section 16(b) of the Fair Labor Standards Act of 1938.” Id.

(citations omitted).

The United States Supreme Court has determined that cases brought

under § 7703(b)(2) are properly filed in federal district court, rather than the

Federal Circuit. Kloeckner v. Solis, 568 U.S. 41, 49 (2012). The Kloeckner Court

reasoned that the enumerated discrimination statutes in (b)(2) each authorize

suit in federal district court, so that is the proper place for a litigant to seek

review of an MSPB decision under the same statutes. Id. at 50. Mixed cases

involving both an individual’s rights under the Civil Service Act and

discrimination claims are to be brought in federal district court. Id.

Section 7703(c) sets the standard of review for federal court review of

MSPB decisions. The Federal Circuit, when reviewing a decision in its capacity

under § 7703(b)(1), is directed to review MSPB decisions under an arbitrary-

9 Section 7702 covers claims based on discrimination arising under Title VII. 5

U.S.C. § 7702.

and-capricious standard. Id. § 7703(c)(1–3). Federal district courts reviewing

MSPB decisions pursuant to Section 7703(b)(2), however, are not to afford

similar deference: “[I]n the case of discrimination brought under any section []

referred to in subsection (b)(2) of this section, the employee or applicant shall

have the right to have the facts subject to trial de novo by the reviewing court.”

Id. § 7703(c) (emphasis added).

There is an obvious tension between the de novo review granted by the

statute and the USPS’s proposal here to afford the MSPB decision preclusive

effect. It comes as no surprise, then, that the courts, including the United

States Supreme Court, have rejected the application of preclusion doctrines in

such cases, reasoning that “according preclusive effect to underlying agency

decisions would eviscerate the ultimate responsibility that Congress placed

with the judiciary by depriving aggrieved parties of a federal forum.” Tice, 325

F. App’x at 120; see also Chandler v. Roudebush, 425 U.S. 840 (1976)

(“”Congress intended to accord federal employees the same right to a trial de

novo [following administrative proceedings] as is enjoyed by private-sector

employees . . . under the amended Civil Rights Act of 1964”); University of

Tennessee v. Elliot, 478 U.S. 788, 795 (1986) (“It would be contrary to the

rationale of Chandler to apply res judicata to deny a respondent a trial de novo

on his Title VII claim . . . . Congress did not intended . . . administrative

proceedings to have preclusive effect on Title VII claims.”)); Gergick v. Austin,

997 F.2d 1237, 1238 (8th Cir. 1993) (“Congress intended that claims arising

under Title VII be afforded a trial de novo. Consequently, the doctrine of

administrative estoppel is inapplicable to Title VII claims.”) (citations to

Chandler and Elliot omitted); Rosenfeld v. Department of the Army, 769 F.2d

237, 239–42 (4th Cir. 1982) (denying collateral estoppel effect of administrative

findings on age discrimination claim); Anderson v. Napolitano, 2010 U.S. Dist.

LEXIS 10422 at *23–24 (S.D. Fla. Feb. 8, 2010) (“Title VII claims are entitled to

de novo review. Consequently, unreviewed administrative proceedings do not

have preclusive effect on Title VII claims.”); Burrell v. United States Postal Serv.,

164 F. Supp. 2d 805, 811 (E.D. La. 2001) (plaintiff “would have been entitled to

pursue her Title VII claims in this Court after an adverse finding on the merits

by the MSPB without any res judicata or collateral estoppel effects”); Long v.

Frank, 808 F. Supp. 961, 964 (E.D.N.Y. 1992) (“Administrative proceedings in

ADEA actions, just as in Title VII actions, do not enjoy preclusive effect.”).

The Third Circuit’s decision in Tice v. Bristol-Myers Squibb Co. is not to

the contrary. 325 F. App’x 114. There, the plaintiff had previously filed an

administrative claim with the Occupational Safety and Health Administration

(“OSHA”). Before the administrative law judge, the plaintiff had argued that she

was fired for reporting illegal corporate activity in violation of Sarbanes-Oxley.

Id. at 115–16. The OSHA ALJ rejected that claim, finding that the employer had

not fired her for reporting illegal corporate activity, but rather for the legitimate,

non-pretextual reason that she had been falsifying reports. Id.

The Tice plaintiff then brought a claim under Title VII in federal district

court, arguing she was fired because of her age and gender. Id. at 116. The

Third Circuit found, however, that the OSHA ALJ’s decision had issue

preclusive effect on the subject of pretext. It explained that Sarbanes-Oxley

statutorily prohibited collateral attacks on final agency decisions issued under

the act. Specifically, it states “[a]n order . . . with respect to which review could

have been obtained under subparagraph (A) [providing for judicial review of a

final agency decision] shall not be subject to judicial review in any criminal or

other civil proceeding.” 49 U.S.C. § 42121(b)(4)(B). The Third Circuit thus

concluded that “normal preclusion principles apply here because [Sarbanes-

Oxley] falls outside the general Title VII framework and explicitly prohibits

collateral attacks.” 325 Fed. App’x at 123. It reasoned that permitting collateral

estoppel in the narrow space of proceedings under Sarbanes-Oxley “comports

with the plain language of SOX as well as the general purpose of Title VII,”

namely Sarbanes-Oxley’s “explicit prohibition against collateral attack” and

Title VII’s aim of providing a federal forum for complaints of discrimination on

the basis of protected characteristics. Id. at 120. In short, Tice is simply off

point. Ms. Gibbs’s case, unlike Tice, does not involve Sarbanes-Oxley’s bar on

collateral attacks; it falls squarely within the ordinary run of cases in which a

Title VII claim was raised and rejected in prior administrative proceedings.

I therefore rule that application of claim and issue preclusion is not

appropriate. Unencumbered by those prior findings of fact, I turn to the

summary judgment issue, i.e., whether the undisputed facts here entitle USPS

to judgment as a matter of law.

B. Title VII Framework

The retaliation and gender discrimination claims which Gibbs asserts are

governed by the burden-shifting analysis set forth in the Supreme Court’s

decision in McConnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that

framework, a plaintiff “must first establish a prima facie case” that she suffered

retaliation and discrimination. See Moore v. Johnson, 2016 WL 7408844 at *4

(D.N.J. 2016) (quoting Thompson v. Bridgeton Bd. of Educ., 9 F. Supp. 3d 446,

454 (D.N.J. 2014)). Second, if the plaintiff establishes a prima facie case, “the

burden then shifts to the employer to articulate a legitimate, nonretaliatory or

nondiscriminatory reason for its actions.” Id. (citing Tourtellote v. Eli Lilly & Co.,

636 Fed. Appx. 831, 842 (3d Cir. 2016)). Third, if the employer is able to

articulate such a reason, “the burden then shifts back to the plaintiff to prove

that the employer’s nonretaliatory or nondiscriminatory explanation is merely a

pretext for the discrimination or retaliation.” Id. At this point, to overcome a

motion for summary judgment, a plaintiff must

point 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. (quoting Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)).

1. Gibbs’s Retaliation Claim – Prima Facie Case

As relevant here, Title VII confers a cause of action based on an

employer’s retaliation for protected activity, as follows:

It shall be an unlawful employment practice for an employer to

discriminate against any of his employees . . . because [the

employee] has opposed any practice made an unlawful employment

practice by this subchapter, or because [the employee] has made a

charge, testified, assisted, or participate in any manner in an

investigation, proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3.

To establish a prima facie case of retaliation, a plaintiff must make a

tripartite showing:

(1) That she engaged in protected employee activity; (2) that there

was an adverse action by the employer either after or

contemporaneous with the employee’s protected activity; and (3)

that there is a causal connection between the employee’s protected

activity and the employer’s adverse action.

See Moore, 2016 WL 740844 at *6 (citing Marra v. Philadelphia Housing Auth.,

497 F.3d 286, 300 (3d Cir. 2007)).

Whether Gibbs Engaged in Protected Activity

Gibbs asserts that she engaged in a variety of protected activities. She

specifically identifies three: (1) reporting the sexual harassment to the EEO

office, to Caminero, and to DeGironimo in 2014; (2) providing information to

USPS OIG investigators in September 2016 and January 2017; and (3)

threatening to sue and settling with Nesheiwat in 2014. (Opp. at 7–8.)

Reporting sexual harassment to an EEO office or providing information to

investigators is unambiguously protected activity under the statute and the

parties do not dispute that aspect of Gibbs’s claim. They do, however, dispute

whether Gibbs’s threatened civil claim against Nesheiwat constitutes a

protected activity.

“Title VII’s anti-retaliation provisions protect employees who participate

in Title VII’s statutory processes or who otherwise oppose employment

practices made illegal by Title VII.” Curay-Cramer v. Ursuline Acad. of

Wilmington, Delaware, Inc., 450 F.3d 130, 134–35 (3d Cir. 2006) (emphasis

added). Gibbs asserts that her threatened civil suit against Nesheiwat

constitutes “opposition” under the statute.

“In Title VII, ‘oppose,’ being left undefined by the statute, carries its

ordinary meaning: to resist or antagonize . . .; to contend against; to confront;

resist; withstand.’” Crawford v. Metro. Gov’t of Nashville & Davidson County,

555 U.S. 271, 276 (2009). “[P]rotected opposition includes more than formal

filing of charges before the EEOC,” and “there is no hard and fast rule as to

whether the conduct in a given case is protected. Instead . . . [the courts]

evaluate the facts of each case in light of the statutory language and legislative

intent.” Curay-Cramer, 450 F.3d at 135. Thus “informal protests of

discriminatory employment practices, including making complaints to

management, writing critical letters to customers, protesting against

discrimination by industry or society in general, and expressing support for co-

workers who have filed formal charges” constitute “opposition” under the

statute. Id.

“A general complaint of unfair treatment,” however, “is insufficient to

establish protected activity under Title VII.” Id. The complaint must be “specific

enough to notify management of the particular type of discrimination at issue

in order to constitute protected activity.” Sanchez v. SunGard Availability

Servs., L.P., 362 Fed. App’x 283, 288 (3d Cir. 2010). “[O]pposition to an illegal

employment practice must identify the employer and the practice—if not

specifically, at least by context,” Gress v. Temple Univ. Health Sys., 784 Fed.

App’x 100, 106 (3d Cir. 2019), and contain “some perceptible connection to the

employer’s alleged illegal employment practice,” Curay-Cramer, 450 F.3d at

135. It “must be possible to discern from the context of the statement that the

employee opposes an unlawful employment practice.” Id. Additionally, courts

“look to the message being conveyed rather than the means of conveyance.”

Sanchez, 362 Fed. App’x at 288.

This case does not fit neatly into the typical “opposition” case, where a

plaintiff has complained to management about discrimination or a

discriminatory practice and is punished as a result. See, e.g., See Bliss v. MXK

Restaurant Corp., 220 F. Supp. 3d 419, 425–26 (S.D.N.Y. 2016) (the usual case

involves “some act of complaining or protesting.”). I nevertheless conclude that

filing a civil case against one’s harasser on the basis of sexual harassment, or

threatening to do so and then settling with the alleged harasser, may fit the

definition of protected “opposition” under Title VII.

Taking the words at their plain meaning, pursuing a civil claim against

one’s harasser for their harassing conduct is clearly “resisting,” “confronting,”

or “contending against” sexual harassment. Crawford, 555 U.S. at 276. Such

an interpretation is consistent with the legislative intent behind the anti-

retaliation provision in Title VII, which was aimed at prohibiting employers

from punishing employees for resisting sex discrimination. Curay-Cramer, 450

F.3d at 135. To hold otherwise might discourage employees from standing their

ground against harassment by fellow employees.

Curay-Cramer makes it clear that no hard-and-fast rules apply and that

each case must be analyzed on its own merits. 450 F.3d at 135. Cases have

held that protected opposition may take the form of pursuing criminal charges

against an alleged harasser. See DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293

(S.D.N.Y. 1999); see also Patrick v. Local Union No. 282, Int’l Brotherhood of

Teamsters, AFL-CIO, 2005 WL 2179415 at *4 (E.D.N.Y. 2005). Likewise, there is

protection against retaliation for negotiating and securing a settlement against

one’s employer for sex discrimination. See Greenlee v. Southwest Health Sys.,

2007 WL 2320544 at *10 (D. Colo. Aug. 9, 2007) (“If alleging discrimination

constitutes protected opposition, then negotiating and securing a settlement

that resolves such allegations must also constitute protected opposition.”); see

also Wells v. Colo. DOT, 325 F.3d 1205, 1212 (10th Cir. 2003) (accepting that

bringing suit to enforce a settlement of a prior Title VII claim is protected

activity).

Research has not, however, revealed a previous retaliation case in which

the alleged protected activity was the threat of a sexual harassment suit, or

pursuit of a private settlement, by a manager against an employee.

Gibbs’s threat of a lawsuit and negotiation of a $10,000 settlement differ

in a number of ways from the typical opposition case. First, Gibbs did not bring

her prospective suit against Nesheiwat to USPS’s attention, or in any way make

an effort to make her protest against her treatment known. Indeed, it appears

that she regarded the matter as “private” and would have preferred that the

employer never find out. Nevertheless, courts do not require that opposition be

expressed to the employer. See Curay-Cramer, 450 F.3d at 136 (“public

manifestations of disagreement with illegal employment practices can be

protected under the opposition clause”); see also id. at 135–36 (compiling cases

in which employees engaged in public protest or appeared in television

programs to complain about conduct). Indeed, in Curay-Cramer, the employee

signed her name to an advertisement in favor of Roe v. Wade and her employer

learned separately that she had done so. Id. at 135. While the Third Circuit

ultimately concluded that the employee’s conduct was not protected activity, it

did not hold against the plaintiff the fact that her opposition was directed to

the public at large rather than to her employer. Id.; see also Barber v. CSX

Distribution Services, 68 F.3d 694, 702 (3d Cir. 1995) (opposition includes

“writing critical letters to customers, protesting against discrimination by

industry or society in general, and expressing support of co-workers who have

filed formal charges”) (quoting Sumner v. United States Postal Serv., 899 F.2d

203, 209 (2d Cir. 1990)). Gibbs says she expressed her opposition to Nesheiwat

and others, and the authorities at USPS eventually learned about it when they

conducted their investigation.

Second, Gibbs did not actually file a formal complaint or lawsuit, but

only threatened to do so. See Bliss v. MXK Restaurant Corp., 220 F. Supp. 3d

419, 425–26 (S.D.N.Y. 2016) (“the extent of her opposition was that she

‘expressed to the employee her belief that Kotsonis was racist and that the

employee should pursue a claim based on that fact. This is a far cry from even

the ‘informal’ protests outlined by the Sumner Court, which at the very least

involved some act of complaining or protesting.”). The Third Circuit has been

clear, however, that it looks “to the message being conveyed rather than the

means of conveyance.” Sanchez, 362 Fed. App’x at 288. The message Gibbs

expressed was that she opposed her alleged sexual harassment and believed it

violated the law.

Third, as for the message Gibbs conveyed, Gibbs did not specifically

invoke Title VII; to the extent she gave any legal form to her claims, she

identified them as being based in harassment or battery. (Am. Compl. ¶ 17.)

Nevertheless, “nothing in the language of the statute or common sense

suggests that [a plaintiff is] required to mention Title VII in order to be

protected from opposing the practices that Title VII renders unlawful.”

Rodriguez-Vives v. P.R. Firefighters Corps. of P.R., 743 F.3d 278, 283–84 (1st

Cir. 2014) (anti-retaliation provision protects filing lawsuit for discrimination

under § 1983 and the equal protection clause). In Rodriguez-Vives, the

defendant conceded that the plaintiff’s previous suit “alleged discriminatory

hiring practices and procedures on the basis of gender,” and because “Title VII

makes it unlawful ‘for an employer . . . to fail or refuse to hire . . . any

individual . . . because of such individual’s . . . sex . . . . The conduct

Rodriguez-Vives opposed was therefore precisely the kind of discrimination that

Title VII was intended to combat.” Id. at 284. Here, Gibbs’s potential suit

against Nesheiwat targeted sex discrimination in the workplace the form of

groping. That is “an unlawful employment practice” prohibited by Title VII,10 so

“[t]he opposition for which she was punished therefore fell well within the scope

of the conduct that Congress sought to protect from retaliation, whether or not

she referred to Title VII . . . in voicing that opposition.” Id.

10 Indeed, it is not even necessary that Nesheiwat’s conduct actually be found to

have constituted a Title VII violation. Gibbs need only have “complained about the type

of conduct that is generally protected by that Title, such as discrimination” as long as

the discrimination could “remotely be considered ‘extremely serious’” such that “a

reasonable person would have believed that [it] violated Title VII’s standard.” Kengerski

v. Harper, ___ F.4th __, 2021, WL 3199225, 2021 U.S. App. LEXIS 22494 at *9 (3d Cir.

July 29, 2021). Groping in the workplace is certainly serious conduct and constitutes

discriminatory treatment which a reasonable person could conclude violates Title VII.

Fourth, the Third Circuit requires that opposition “identify the employer

and the practice.” Curay-Cramer, 450 F.3d at 135. I find Gibbs’s threatened

civil suit implicitly met that requirement because it identified Nesheiwat’s

alleged groping in a USPS work location.

Fifth, it may be objected that Gibbs chose wrongful means of opposing

sexual harassment. On one version of the facts, she oppressed or even extorted

a subordinate employee, and failed in her duty as a manager to report sexual

harassment. Here, however, I must credit Gibbs’s version of the facts, and the

issue is the threshold one of what constitutes protected “opposition” to

harassment. That definition is necessarily broad.11

USPS claims that Gibbs engaged in what amounted to a shakedown, not

a protest. A fact finder might be persuaded to agree. But USPS is the summary

judgment movant here. Crediting Gibbs’s version of the events, as I must,12 I

conclude that there is at least an issue of fact as to whether Gibbs engaged in

protected opposition to sexual harassment.

Whether USPS Took an Adverse Employment Action Against Gibbs

“For an employer’s action to satisfy the second prong of a prima facie

case of retaliation, the plaintiff ‘must show that a reasonable employee would

have found the challenged action materially adverse, which in this context

means it might well have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Daniels v. School Dist. of Phil., 776 F.3d

181, 195 (3d Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006)). The parties do not dispute that adverse action was taken

against Gibbs: namely, that USPS put her on administrative leave in November

11 Opposition may be wrongful for some independent reason. It might, for

example, take unacceptable physical form, or, as is alleged here, violate other

workplace regulations and norms. In such a case, the employer might well succeed on

the second or third prong of McDonnell-Douglas by demonstrating that the allegedly

retaliatory demotion was independently justified by a non-discriminatory, non-

pretextual reason. But that is a separate issue. See pp. 31–42, infra.

12 As previously noted, I construe all disputed facts in Gibbs’s favor on this

motion for summary judgment. Boyle, 139 F.3d at 393.

2016, that Batten proposed her demotion in July 2017, and that Hooper

demoted her as of January 2018. (Opp. at 8.) These are clearly actions which, if

retaliatory, would be sufficient to dissuade a reasonable worker from making a

charge of discrimination.

Whether There Was a Causal Connection Between the Adverse Action

and the Protected Activity

As previously noted, Gibbs took three protected actions which she claims

were causally related to her demotion: her report to the EEOC, her cooperation

with USPS OIG investigators, and her threat of bringing a civil suit against

Nesheiwat. To complete her prima facie case, Gibbs must show that there was

a causal connection between her protected actions and her demotion.

Courts “consider ‘a broad array of evidence’ in determining whether a

sufficient causal link exists [for a plaintiff] to survive a motion for summary

judgment.” Daniels, 776 F.3d at 196 (quoting LeBoon v. Lancaster Jewish

Community Center Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)). A plaintiff may

establish a causal connection between protected activity and the employer’s

adverse action by “(1) unusually suggestive temporal proximity between the

protected activity and the allegedly retaliatory action, or (2) a pattern of

antagonism coupled with timing.” Kania v. Potter, 358 Fed App’x 338, 344 (3d

Cir. 2009) (quoting Lauren W. ex rel Jean W. v. DeFlaminis, 480 F.3d 259, 267

(3d Cir. 2007)). “In the absence of . . . a close temporal proximity” courts

“consider the circumstances as a whole, including any intervening antagonism

by the employer, inconsistencies in the reasons the employer gives for its

adverse action, and any other evidence suggesting that the employer had a

retaliatory animus when taking the adverse action.” Daniels, 776 F.3d at 196

(quoting LeBoon, 503 F.3d at 232–33).

First, there is ample evidence of a causal relationship between Gibbs’s

threatened civil suit against Nesheiwat and her demotion. Indeed, USPS

explicitly states that the civil suit was a basis for her demotion in its motion for

summary judgment. (MSJ at 6 (“Gibbs failed to follow established procedures

for reporting sexual harassment and instead pressured a subordinate into

paying her $10,000 to ‘resolve’ the incident.”)) USPS’s concession of the point is

sound, as both Batten and Hooper, in their letters demoting Gibbs, explicitly

cited her threatened suit against Nesheiwat. (See Batten Letter at 2; Hooper

Letter at 2.) While Hooper later claimed in his testimony before the MSPB that

he had not relied on Gibbs’s suit to demote her (MSPB Tr. 108:23–109:1), there

is at least a disputed issue here.

As for Gibbs’s report to the EEO, Caminero, and DeGironimo, and her

cooperation with USPS OIG investigators, I also find sufficient evidence to

make out a prima facie case of causation. As Gibbs notes, USPS placed her on

administrative leave shortly after it learned that she had cooperated with

investigators and after she told them that she reported the harassment. Such a

short interval between events—here, about a week—is suggestive of causation.

See Moore, 2016 WL 7408844 at *7; Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d

Cir. 1989) (“The causal connection may be demonstrated by evidence of

circumstances that justify an inference of retaliatory motive, such as protected

conduct closely followed by adverse action.”) (quoting Burrus v. United Tele. Co.,

683 F.2d 339, 343 (10th Cir. 1982)).13 “[T]he burden of establishing a prima

facie case . . . is not onerous.” Texas Dep’t of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). Gibbs has made out a prima facie case.

2. USPS Has Asserted a Legitimate, Non-Discriminatory Reason for

Gibbs’s Demotion

Because Gibbs has made out a prima facie case of retaliation, USPS

must “rebut the proof of discrimination by articulating some legitimate,

nondiscriminatory reason for the employee’s discharge.” Jalil, 873 F.3d at 706.

USPS claims that Gibbs was demoted because its investigation indicated

that she failed to notify the proper authorities in order to start an investigation

13 USPS argues that it took action a week after the investigation terminated

because the investigation revealed that Gibbs had engaged in misconduct. (Reply at

13.) That may be so, but a factfinder is entitled to credit or reject USPS’s explanation.

into the sexual harassment, thereby potentially exposing other individuals in

the Fort Lee post office to ongoing sexual harassment. (MSJ at 7.) It also claims

that it demoted Gibbs because it determined that she “forced a subordinate to

enter into a secret agreement that net[ted] her $10,000.” (Id.) These claims are

supported by Batten and Hooper’s contemporaneous decision letters, which

stated that they demoted Gibbs because they could no longer trust her in a

managerial position in light of the fact that she had not reported the

harassment, thus endangering other postal employees, and because she

abused her superior position at the company to take advantage of Nesheiwat.

(Batten Letter at 2; Hooper Letter at 2.)

Each of these would constitute a legitimate, nondiscriminatory reason for

demoting Gibbs. Jalil, 873 F.2d at 708. Even if a threat to sue is protected

activity, Gibbs was not thereby entitled to abuse her superior rank or otherwise

intimidate Nesheiwat into a secret monetary settlement. On USPS’s version of

the facts, Gibbs was not merely invoking the legal system to vindicate her

rights, but engaging in an extortionate “shakedown” of her subordinate

employee. (See e.g. DSOMF ¶¶ 27–29.) On that version of events, USPS had

ample nondiscriminatory reasons to demote Gibbs. Gibbs, however, claims that

these reasons were not the actual reasons for her demotion.

3. Gibbs’s Proof That the Non-Discriminatory Reason is a Pretext

The burden shifts to Gibbs to demonstrate that the stated non-

discriminatory reasons for her demotion were pretextual. She claims that the

real reason for her demotion was not failure to report sexual harassment or

abuse of her managerial position. On the contrary, she says, she was demoted

because she did report the sexual harassment and did no more than assert her

legitimate rights against Nesheiwat.

In a Title VII case, “[t]he ultimate burden of persuasion . . . always

remains with the plaintiff,” who, when faced with a legitimate

nondiscriminatory reason for her firing, must prove “by a preponderance of the

evidence that the alleged reasons proffered by the defendant were pretextual

and that the defendant intentionally [retaliated] against the plaintiff.” Id. (citing

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252–63 (1981)). The

plaintiff may satisfy that burden “either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by

showing that the employer’s proffered explanation is unworthy of credence.” Id.

(quoting Burdine, 450 U.S. at 256).

At trial, “[i]t is not enough . . . to disbelieve the employer; the fact-finder

must believe the plaintiff’s explanation of intentional discrimination.” St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). At summary judgment,

however, “the plaintiff’s burden is not so heavy. To survive summary judgment,

the plaintiff need only raise doubt as to the legitimacy of the defendant’s

proffered reason for its adverse action; it need not prove its discrimination

case.” Andes v. N.J. City. Univ., 419 F. App’x 230, 233 (3d Cir. 2011).

“‘[A]ffirmative’ evidence [of discrimination] is not required at summary

judgment.” Andes, 419 Fed. App’x at 233 (citing Fasold v. Justice, 409 F.3d

178, 187 (3d Cir. 2005)). “[A]t this stage, the ‘real’ reason for the employer’s

action is unimportant; it matters only that there is evidence to suggest that

there is a ‘real’ reason which is not the articulated reason.” Id.

Gibbs thus may defeat summary judgment by adducing evidence from

which a fact finder could reasonably infer that the employer’s non-

discriminatory reasons were either a post hoc fabrication or otherwise did not

actually motivate the employment action. Fuentes v. Perskie, 32 F.3d 759, 764

(3d Cir. 1994). Such a showing may rest on “weaknesses, implausibilities,

inconsistencies, or contradictions in the employer’s proffered legitimate reasons

for its actions so that a reasonable factfinder could rationally find them

unworthy of credence . . . and hence infer that the employer did not act for the

asserted non-discriminatory reasons.” Id. at 765.

The issue, however, is not whether the demotion was fair or justified.

Gibbs cannot carry her burden under Title VII by showing that “the decision to

[demote her] was wrong or mistaken. Inaccuracy does not establish pretext.

The issue is not whether the USPS’s decision was unwise or even correct . . . .”

Wilcher v. Postmaster Gen., 441 Fed. App’x 879, 881 (3d Cir. 2011).

In the following discussion, I find enough such inconsistencies or

weaknesses in the record to defeat summary judgment. That is not to say that

Gibbs can ultimately prove that that USPS punished Gibbs for discriminatory

reasons other than its proffered explanations. It is only to say that her evidence

is sufficient to warrant a trial of that issue.

i. USPS’s Claim That it Demoted Gibbs Because She Failed to

Report Her Harassment

First, I consider USPS’s explanation that it demoted Gibbs because she

failed to properly report her harassment by Nesheiwat. There is a great deal of

evidence that suggests this was USPS’s reason for firing Gibbs: both Batten

and Hooper cited this reason in their demotion letters, and Hooper repeated it

during his testimony in front of the MSPB. Still, on the difficult-to-prove issue

of intent, the Title VII case law grants a plaintiff some breathing space at the

summary judgment stage. There is sufficient evidence to raise a triable doubt

that this was USPS’s actual reason for demoting Gibbs.

USPS’s Explanation Evolved Over Time

First, USPS’s precise explanation as to how Gibbs failed to comply with

reporting standards has evolved over time. Batten and Hooper both initially

faulted Gibbs for failing to report her alleged harassment to anyone at all. (See

Batten Letter (DE 48-4) at 2 (“to this day you never reported what you had

perceived and have characterized as the actions of the perpetrator of sexual

assault so that it could be promptly and fully investigated”); Hooper Letter (DE

48-8) at 2 (“it is undisputed that you perceived a currently employed postal

service employee as a sexual predator. Yet, you never reported what you

perceived as a sexual assault so that it could be fully investigated promptly”)

(emphasis in original).) Both managers said that Gibbs should have reported

the incident to the local Postmaster, POOM, District Manager, Human

Resources manager, Labor Relations manager, the Office of the Inspector

General, or the Postal Inspection Service. (See Batten Letter (DE 48-4) at 2;

Hooper Letter (DE 48-8) at 2.)

On cross examination during the MSPB hearing, Hooper clarified that he

demoted Gibbs not because she failed to report her alleged harassment at all,

but because she didn’t report it in the proper manner or to the right people.

(Tr. of MSPB Hearing (DE 48-16) at 114:16–18 (“she didn’t properly notify the

correct people within the Postal Service to start an investigation”).) On further

questioning, he backtracked a bit farther. Admitting that Gibbs might have

properly reported her harassment to Caminero, he then claimed for the first

time that Gibbs was required to report the harassment via written

documentation. (Id. 115:24–116:2; 117:3–10.)

To be sure, such inconsistencies might have arisen innocently. It could

have been Hooper’s state of knowledge, rather than Hooper’s story, that evolved

over time, or he simply could have been mistaken. On the other hand, however,

such inconsistencies could be cited as evidence of pretext.

USPS Sets a Less Rigid Standard

As stated above, Batten and Hooper claimed that Gibbs was required to

report harassment to her local Postmaster, POOM, District Manager, Human

Resources manager, Labor Relations manager, the Office of the Inspector

General, or the Postal Inspection Service. In support of that requirement, they

cited Publication 552, Manager’s Guide to Understanding, Investigating, and

Preventing Harassment. (Ex. C to Reply (DE 59-4).) Publication 552, however,

does not limit “proper” reporting to those listed persons or entities. One section

states that “[i]n all cases of harassment, employees should also report the

incident to one of the following: Their immediate supervisor or manager [or] . . .

Another supervisor or manager.” (Id. at 12.) Another section requires that

managers “[c]onduct harassment inquiries promptly and, where necessary,

take inquiries to the next appropriate level” and “[c]onfer with and inform the

Manager, Human Resources, in your local district or area office . . . of any

harassment allegations.” (DE 59-4 at 14.)

Again, Batten and Hooper could simply have had an understanding of

Publication 552’s requirements that was somewhat erroneous, though in the

ballpark. On the other hand, their insistence that Publication 552 required

Gibbs to report in a particular manner to a particular list of authorities could

be taken as evidence of pretext.

Gibbs’s Evidence of Substantial Compliance

On this record, it remains debatable that Gibbs actually did fail to

comply with USPS reporting requirements. USPS employs a number of

resources to inform employees and managers what to do in the event of a

sexual harassment.

One such resource is Poster 159, which is posted in every USPS building.

(PSOMF ¶ 15.) The Poster is entitled WORKPLACE HARASSMENT, KNOW

YOUR RIGHTS! TAKE RESPONSIBILITY! It enumerates activities which

constitute harassing conduct, which it defines as “unwelcome verbal or

physical conduct that demeans or shows hostility or aversion toward an

individual or group of individuals.” (DE 53-12.) It specifically identifies

“physical contact of a sexual nature that is unwelcome to the recipient.” (Id.) It

then tells a victim of harassment what to do:

Postal Employees who believe they are the victims of workplace

harassment or inappropriate conduct, or who have witnessed such

harassment, should bring the situation to the attention of any one

of the following:

 Their immediate supervisor or manager.

 Any supervisor or manager.

 The manager, Human Resources.

 A union representative or coworker who will speak to a manager on

the employee’s behalf.

 A special agent of the Office of Inspector General.

(Id.) It goes on to state that managers have a responsibility to act in response to

such complaints:

Any manager or supervisor who receives a complaint must act to

stop any inappropriate behavior, ensure that a prompt and

thorough investigation is conducted, and ensure that the

harassing or inappropriate conduct does not persist . . . . All

managers and supervisors must follow the Management Inquiry

Process materials available in Publication 552, Manager’s Guide to

Understanding, Investigating, and Preventing Harassment, when a

complaint is brought to their attention.

(Id.) Finally, Poster 159 states that “[i]n addition, you can seek relief through:

The EEO complaint process,” among other options. (Id.) It states that “[i]f you

elect to pursue an EEO complaint, you must contact the EEO Centralized

Intake Center by calling toll free: 1-888-EEO-USPS (888-336-8777) . . . within

45 days of the act or acts giving rise to the claim to preserve your rights under

federal law.” Id.

Gibbs claims that she reported the harassment incident in compliance

with Poster 159. The poster directs that an employee facing sexual harassment

should report it to “any supervisor,” a category that seemingly would include

Caminero; if not Gibbs’s supervisor, he was of (acting) supervisory rank.14

(MSPB Tr. at 117:8–10.) She also claims to have followed the EEO15 process,

listed on Poster 159 as an option “in addition” to the other reporting avenues.16

The USPS also provides another resource for employees and managers

called Publication 553, “Employee’s Guide to Understanding, Preventing and

Reporting Harassment.” Under the section entitled “What to Do if You Are

Harassed,” the Publication describes various means of reporting:

Whether or not you get the harasser to stop, report harassing

behavior to those in authority who are responsible for stopping the

14 Gibbs claims that she complied with the Poster by telling DeGironimo as well,

but DeGironimo was not her union representative and so could not speak to a

manager on her behalf.

15 USPS has proffered evidence, such as call records, to call into doubt Gibbs’s

claim that she contacted EEO. Gibbs testified that she contacted a local EEO office,

which would not be reflected in the NAISO hotline call records. A jury might accept

USPS’s conclusion that Gibbs did not contact EEO, or it might accept her testimony

that she did.

16 This, of course, is a poster, not a carefully drafted statute or set of

regulations. It is somewhat ambiguous whether the “in addition” language means that

these are alternative avenues for reporting, or whether they are supplemental actions

which may be taken in addition to the obligatory methods of reporting.

harassment, and who will make a record of it. You can write, or

just talk, to any of the following:

 Your immediate supervisor or manager.

 Any supervisor or manager.

 The manager of Human Resources.

 A Special Agent of the Office of the Inspector General.

 A Postal Service Inspector, when you believe that criminal

misconduct is involved.

If you are uncomfortable making a report yourself, you can ask a

union representative or coworker to speak to a manager on your

behalf.

(DE 53-13 at 137.) Publication 553 states that employees “also have the right

to pursue a complaint through the EEO process.” (Id. at 138.) For the reasons

expressed in relation to Poster 159, it appears Gibbs has submitted evidence of

compliance with these processes.

Finally, USPS provides direction to managers in the form of Publication

552, “Manager’s Guide to Understanding, Investigating and Preventing

Harassment.” (DE 59-4.) Managers faced with complaints of sexual harassment

are directed to confer with the Manager of Human Resources and institute an

Initial Management Inquiry Process (“IMIP”) if warranted. (DE 59-4 at 1.)

Publication 552 then directs managers to interview the parties, gather detailed

data, and seek written statements, among other things. (Id.) Managers are then

to evaluate the statements, consult with the Human Resources Manager

regarding remedies or discipline, and then carry out the discipline. (Id.) The

publication makes clear that it is a supervisor’s “role to listen, inquire, and try

to resolve a harassment complaint. If you do not have the authority to conduct

an inquiry, you must take it to a manager, postmaster, or supervisor who

does.” (Id. at 13.)

Gibbs does not dispute that she failed to comply with Publication 552. It

is undisputed that she did not institute an IMIP, conduct an investigation, or

even inform the Manager of Human Resources. It is not obvious, however, that

the cited portions of Publication 552 applied to Gibbs under these

circumstances. Poster 159 directs “[a]ny manager or supervisor who receives a

complaint” to “follow the Management Inquiry Process materials available in

Publication 552.” Gibbs, for sure, was of managerial rank. She did not,

however, “receive a complaint”; in this scenario, she would be the complainant.

A plausible reading of Publication 552 is that it refers to managers qua

managers, not victims of sexual harassment who happen to be managers.

Publication 552 may be read to incorporate an assumption that the

usual victim of harassment is an ordinary employee. But Gibbs, Hooper

testified, was a manager, and he held her to a higher obligation to comply with

the directions for managers. (MSPB Decision (DE 48-17) at 8; MSPB Tr. at

149:18–151:11.) A factfinder could find that Hooper stated a sincere, good faith

interpretation of these materials; on the other hand, it could find that this

interpretation was unjustified and bespeaks some pretextual motive to

disregard Gibbs’s compliance with the usual reporting requirement.

Whether Any Noncompliance Was Severe

Assuming arguendo that Gibbs was in technical noncompliance with

Publication 552, the parties dispute whether such noncompliance was

sufficient to merit demotion. See Jalil, 873 F.2d at 709 (noting that while Jalil

could legitimately have been fired for insubordination, summary judgment was

inappropriate because of “the very real possibility that Avdel ‘seized upon this

instance of insubordination to fire’ Jalil”). On Gibbs’s version of events, she told

Caminero, DeGironimo, and the EEO about her harassment. If this did not

follow reporting requirements to the letter, it at least constituted an effort to tell

individuals in authority within USPS about her harassment. In other words,

she was in substantial, if not technical, compliance with reporting

requirements.

USPS sought to justify its treatment of Gibbs’s noncompliance as a

serious offense by explaining that Gibbs’s silence left coworkers exposed to

someone she regarded as a sexual predator. (Batten Letter (DE 48-4) at 2.) In

response, Gibbs points to an inconsistency. She states that she reported the

harassment to DeGironimo. As a manager, DeGironimo would have had the

same reporting and investigatory obligations under Poster 159 and Publication

552 that formed the basis for Gibbs’s demotion. The evidence does not reflect

that DeGironimo followed those procedures, or that he faced any disciplinary

consequences for failing to do so. Again, a factfinder could take this as

evidence that USPS’s claim that it punished Gibbs for similar misconduct was

pretextual.

USPS’s Explanations for Never Disciplining Nesheiwat

Nesheiwat admitted to having inappropriately touched Gibbs in the

connection with the settlement (although he denied it in testimony), and he

never reported the alleged extortion to a supervisor. Accepting Gibbs’s version

of the facts (i.e., that the harassment did in fact take place and that she

reported it), the failure to discipline Nesheiwat could be taken as further

evidence that the basis for her demotion was pretextual.

USPS at one point claimed that JCAM Article 16.10 barred punishment

of Nesheiwat. (MSJ at 12.) That provision provides as follows:

The records of a disciplinary action against an employee shall not

be considered in any subsequent disciplinary action if there has

been no disciplinary action initiated against the employee for a

period of two years.

Upon the employee’s written request, any disciplinary notice or

decision letter will be removed from the employee’s official

personnel folder after two years if there has been no disciplinary

action initiated against the employee in that two-year period.

(Id.) USPS now admits, however, that Article 16.10 is irrelevant. (Reply at 3

n.2.)

Now, USPS relies on Article 16.1, which states that “[n]o employee may

be disciplined or discharged except for just cause.” (Reply at 4.) This provision

seems to articulate no more than a generalized standard. But USPS cites an

interpretation of Article 16.1 in USPS v. National Association of Letter Carriers,

AFL-CIO (Oct. 23, 2003) (DE 59-3), where an arbitrator found that a delay of

four to six months between the alleged misconduct and a disciplinary

investigation was unjustifiably long.

Again, a fact finder could go either way. It could find that USPS was

sincerely concerned with the timeliness of a complaint against Nesheiwat,

based on the persuasive force of this arbitration decision. On the other hand,

this arbitration decision could easily be distinguished, and USPS’s reliance on

it could be portrayed as pretextual.17

ii. USPS Claims That it Fired Gibbs for Extorting Nesheiwat

Second, USPS asserts it fired Gibbs for extorting Nesheiwat. Gibbs has

shown evidence that USPS has at least wavered on that point, raising enough

doubt to require a trial on the issue of pretext.

Batten and Hooper initially appeared to fault Gibbs for having threatened

to sue Nesheiwat unless he paid her. (See Batten Letter (DE 48-4) at 3 (“your

threat to sue your subordinate Letter Carrier Nesheiwat which resulted in a

$10,000 payment to you make[s] you unfit to continue to serve in a position of

management”); Hooper Letter (DE 48-8 at 2–3 (“You threatened [Nesheiwat]

with a civil lawsuit unless he agreed to pay you money” and “you abused your

superior position of power and authority to pressure an employee of lower rank

and authority to pay you $10,000 secretly”).) Batten’s demotion letter notes

Nesheiwat’s subordinate position, and states that Gibbs “threatened him with a

civil lawsuit unless he agreed to pay [her] money,” “engaged in adversarial

settlement negotiations with Nesheiwat,” and “did not stop pressuring him

until he agreed to offer you $10,000.” (Id.) Both letters state that Gibbs “abused

[her] superior position of power and authority to pressure an employee of lower

rank and authority to pay [her] $10,000 secretly” (Id.)

At the hearing, however, Hooper seemingly backed off of the grounds

stated in the letter. Hooper stated that he “did not factor in at all her decision

to pursue a private remedy against Nesheiwat in [his] decision to demote” and

17 For example, the arbitrator in the earlier case found that USPS could easily

have begun its disciplinary investigation earlier. (See, e.g., DE 59-3 at 4–5.) Here, by

contrast, USPS began its investigation as soon as it learned of the misconduct. In

Gibbs’s case, USPS expressed concern about the strength of the evidence that the

harassment incident occurred, and Nesheiwat’s confession was part and parcel of the

alleged shakedown, or extortion.

that he “didn’t hold that against her.” (MSPB Tr. at 146:25–147:10.) It is

possible to reconcile the two versions; Gibbs’s “decision to pursue a private

remedy” is not the same thing as her (in USPS’s version) extortion of a secret,

$10,000 settlement from a subordinate employee. Still, there does seem to have

been at least a shifting of focus.

As part of its extortion theory, USPS now cites Gibbs’s alleged threat to

have her husband beat up Nesheiwat or to have him fired. The demotion

letters, however, do not. (DSOMF ¶¶ 27–29.)

A jury might or might not interpret the foregoing as a post hoc attempt to

rehabilitate the actual grounds for dismissal. The issue is a factual one.

* * *

Multiple issues of fact are presented by this evidentiary record. I will

therefore thus DENY the motion of USPS for summary judgment on Gibbs’s

retaliation claim.

C. Gibbs’s Discrimination Claim

Title VII makes it illegal for an employer 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.” 42 U.S.C. § 2000e-2(a)(1). Discrimination cases are also analyzed under

the McDonnell Douglas burden shifting framework. See Stewart v. Rutgers

Univ., 120 F.3d 426, 432 (3d Cir. 1997).

1. Gibbs’s Prima Facie Case

To prove a prima facie case of sex discrimination, Gibbs must show: (1)

she belongs to a protected class; (2) she is qualified for her position; (3) she

suffered an adverse employment action; and (4) the circumstances support an

inference of unlawful discrimination. Hicks v. New Jersey Dep’t of Corrections,

2019 WL 5587324 at *4 (D.N.J. Oct. 30, 2019) (citing In re Tribune Media Co.,

902 F.3d 384, 402 (3d Cir. 2018)). Gibbs may prove discriminatory animus by

either direct or circumstantial evidence. United States Postal Service Board of

Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983).

The parties do not dispute that Gibbs belongs to a protected class by

virtue of her sex, that she was qualified for her position, or that her demotion

was an adverse employment action. The only remaining question is whether the

circumstances support an inference of unlawful discrimination.

Gibbs asserts that the circumstances indicate that she faced

discrimination based on a comparator analysis, i.e., that she received less

favorable treatment than a similarly situated male employee. (Opp. at 13

(quoting Bullock v. Children’s Hosp. of Phila., 71 F. Supp. 2d 482, 487 (E.D. Pa.

1997).) The similarly situated employee, she says, is Nesheiwat. (Id.)

The traditional comparator mode of analysis is a poor fit here. The

premise of that analysis is that two employees were comparable in every way

except for their sex, but were treated differently, suggesting that discrimination

must have been the reason.

Gibbs and Nesheiwat, however, are not similarly situated individuals for

purposes of Title VII. “[C]omparator employees must be similarly situated in all

relevant respects.” Wilcher, 441 Fed. App’x at 882. “A determination of whether

employees are similarly situated takes into account factors such as the

employees’ job responsibilities, the supervisors and decision-makers, and the

nature of the misconduct engaged in.” Id. If a comparator employee is different

even “with respect to at least one relevant factor,” they are not sufficient to

ground a claim. Id.

Gibbs and Nesheiwat are simply too dissimilar. Nesheiwat was a letter

carrier, while Gibbs was a supervisor. Nesheiwat allegedly committed sexual

harassment while Gibbs allegedly failed to report it and allegedly coerced him

into paying her a settlement. Gibbs was under Batten and Hooper’s command,

while Nesheiwat was subject to a different disciplinary authority. (MSPB Tr. at

148:23–149:1 (Hooper answering questioning: Q: “So if there’s an instance

where a letter carrier should be disciplined whose responsibility is it to initiate

discipline?” A: “The supervisor.” Q: “And in your role as District Manager . . .

do you have any responsibility to initiate a proposed discipline for a craft

employee?” A: “No.”) While the question of whether two employees are similarly

situated is generally one for a jury, I must nevertheless evaluate whether there

is sufficient evidence that a reasonable jury could conclude that similarity

exists. See Andujar v. Gen. Nutrition Corp., 2018 WL 1087494 at *5–6 (D.N.J.

Feb. 28, 2018). Such evidence is lacking here,

Showing disparate treatment of similarly situated employees, however, is

not the only means by which a Title VII plaintiff can prove a prima facie case.

The larger issue is whether the plaintiff can “point to evidence with sufficient

probative force that a factfinder could conclude by a preponderance of the

evidence that [discrimination] was a motivating or determinative factor in the

employment decision.” Simpson v. Kay Jewelers, 142 F.3d 639, 644–45 (3d Cir.

1998).18

Gibbs’s claim is not that she and Nesheiwat committed similar

misconduct but were treated differently. Rather, she makes the a fortiori claim

that USPS decided to punish her, an innocent victim of sexual harassment,

rather than Nesheiwat, the perpetrator. That, she says, is evidence of

discrimination. Now of course it may be perfectly legitimate to treat an accuser

and an accused differently, depending on the merits of the case. But taking

18 See also Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996)

(the prima facie test is flexible and must be tailored to fit the specific context in which

it is applied). That evidence can, but need not, take the form of inferences from the

treatment of similarly situated employees. See Simpson, 142 F.3d at 645 (“For

example, the plaintiff may show . . . that the employer has treated more favorably

similarly situated persons not within the protected class.”); Sarullo v. United States

Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (Sarullo “has not claimed that

employees who are not Native American have been rehired after having criminal

charges dismissed. Although he need not establish that precise type of disparate

treatment to establish a claim of discrimination, he must establish some causal nexus

between his membership in a protected class and the decision not to rehire him.”)

(emphasis added); see also In re Tribune Media Company, 902 F.3d at 402 (fourth

prong only requires “circumstances that support an inference of unlawful

discrimination”); Bullock v. Children’s Hosp. of Phil., 71 F. Supp. 2d 482, 488 (E.D. Pa.

1999) (prima facie case only requires “evidence adequate to create an inference that an

employment decision was based on an illegal discriminatory criterion” and “is not

limited to showing that . . . other similarly situated employees outside of the relevant

class were treated more favorably.”) (citing Pivirotto v. Innovative Systems, Inc., 191

F.3d 344, 355–59 (3d Cir. 1999)).

Gibbs’s version of the facts surrounding the harassment incident as true, she

is correct that circumstances might raise an inference of discrimination.

Viewing the facts most favorably to Gibbs, she was sexually harassed by

a coworker.19 She then reported the harassment to her coworkers and the

EEO, substantially—if not technically—complying with her obligation to report

harassment. Having been informed that she had no claim through the EEO,

and having received no support from her coworkers, she threatened a civil suit

against the perpetrator. The perpetrator then admitted that he committed the

harassment in a signed settlement with Gibbs. Then Gibbs, but not the

perpetrator, was disciplined, and USPS then took the extraordinary action of

attempting to recover $10,000 from Gibbs to recoup its losses in arbitration

with the perpetrator.

On its own view of the evidence, USPS’s actions were justified. The

evidence of harassment was weak; Gibbs’s self-help in lieu of a formal

complaint was inappropriate; the $10,000 represented proceeds of that

inappropriate conduct; and USPS believed, for reasons having nothing to do

with discrimination, that her conduct toward this subordinate employee

implied unfitness to be a supervisor.

On the other hand, a fact finder could view the facts, as presented by

Gibbs, as evidence of discriminatory intent. USPS’s decisions could be viewed

as a refusal to credit or take seriously a female victim’s complaint of sexual

harassment, or a predisposition to side with the male alleged harasser. Viewed

in that light, USPS’s decision to demote Gibbs could be seen as an expression

or implementation of that discriminatory attitude. (PSOMF ¶¶ 79–83.)

I find sufficient issues of fact to deny summary judgment on the issue of

a prima facie case.

19 Of course, it is a disputed fact whether Nesheiwat did in fact harass Gibbs,

but there is enough evidence in the record, including Gibbs’s own testimony and

Nesheiwat’s admission in connection with the settlement, to support a fact finder’s

conclusion that he did. Now, USPS seeks to dispute whether Nesheiwat committed the

assault. (See, e.g., DRSOMF ¶ 9.) Neither Hooper nor Batten, however, expressed a

conclusion as to Nesheiwat’s culpability in their demotion letters.

2. USPS’s Asserted Non-Discriminatory Reason and Gibbs’s Proof of

Pretext

I turn to the second and third McDonnell-Douglas factors. As noted in

relation to the retaliation claim, see Section III.B.2, supra, USPS states that it

demoted Gibbs because she coerced Nesheiwat into settling and because she

failed to report the harassment. But, as also noted in the retaliation section,

see Section III.B.3, I find evidence that could support a finding that the stated

reasons for demotion were pretextual.

Since there is evidence of pretext, I must deny USPS’s motion for

summary judgment on the discrimination claim as well.

IV. CONCLUSION

For the foregoing reasons, USPS’s motion for summary judgment is

denied as to both the Title VII retaliation claim and the sex discrimination

claim. An appropriate order accompanies this opinion.

Dated: August 18, 2021

/s/ Kevin McNulty

____________________________________

Kevin McNulty

United States District Judge