KITE, Chief Justice.
[¶ 1] When shared physical custody of their child failed, Kari Jo Roemmich (Mother) filed a petition for custody modification seeking primary physical custody of the child with reasonable visitation for Shane Christopher Roemmich (Father). After a hearing on the petition, the district court awarded Father primary physical custody with reasonable visitation by Mother and ordered Mother to pay child support. Mother appeals the district court's order raising a number of claims, including error in awarding custody to Father. We affirm the district court's custody determination, but remand for further proceedings on the issues of visitation and child support.
ISSUES
[¶ 2] Mother asserts the district court committed error or abused its discretion in the following ways:
1. Granting custody to Father when he did not file a counter-petition for custody;
2. Failing to strike Father's witnesses and exhibits after he did not disclose them to Mother as agreed and in a timely fashion;
3. Granting custody to Father after a stalking protection order was entered against him;
4. Granting custody to Father on the basis of findings concerning Mother's employment that were contrary to the evidence;
5. Failing to order visitation in sufficient detail to promote understanding and compliance; and
6. Ordering child support with no evidence of the parties' incomes.
Father asserts the district court did not abuse its discretion in granting custody to him or figuring child support.
FACTS
[¶ 3] Father and Mother were married on July 1, 2000, in Cody, Wyoming. In 2003, they had a child. They were divorced by decree entered in April of 2009. In accordance with the parties' agreement, the decree provided that Mother and Father would have joint legal care, custody and control of the child, with each parent having physical custody of the child for one week and visitation the following week.
[¶ 4] On June 15, 2009, Mother filed a petition for modification of custody in which she alleged that substantial changes in circumstances had occurred warranting modification of the decree, including that Father had berated and harassed her in front of the child, Father had been stalking her to the point that she had filed for a protective order and the shared physical custody arrangement was not in the child's best interest. Mother also filed a motion seeking temporary custody of the child pending a decision on her modification petition. The following day, on June 16, 2009, the district court set the temporary custody motion for hearing on June 19, 2009.
[¶ 5] On June 18, 2009, Father filed a motion to continue the temporary custody hearing, asserting insufficient time to prepare his case. The district court granted the motion and continued the hearing until July 10, 2009. On the day the hearing was to be held, Father filed a response to Mother's motion for temporary custody in which he alleged that no material change in circumstances had occurred since entry of the original decree and it was not in the child's best interest to award temporary custody to Mother. He also filed a response to Mother's custody modification petition in which he denied berating or harassing her in front of the child and denied stalking her but admitted the shared custody arrangement was not in the child's best interest.
[¶ 6] For reasons that do not appear in the record, no hearing was held on July 10, 2009. By order dated July 15, 2009, the district court rescheduled the temporary custody hearing for July 20, 2009. A hearing was held on July 20, however, the matter heard was Mother's petition for custody modification, not the temporary custody motion. After two days of testimony, the district court issued a decision letter in which it concluded it was in the child's best interest for Father to have primary physical custody. The district court entered an order to that effect and also ordered that Mother was to have visitation with the child every other weekend beginning August 28, 2009, and was to pay Father child support in the amount of $279.00 per month. Mother appealed from the district court's order.
STANDARD OF REVIEW
[¶ 7] We review a district court's order on a petition to modify custody, visitation, and child support for an abuse of discretion. Inman v. Williams, 2009 WY 51, ¶ 9, 205 P.3d 185, 191 (Wyo. 2009).
We will not interfere with the district court's decision regarding modification of custody absent a procedural error or a clear abuse of discretion. In determining whether the district court has abused its discretion, we must decide whether it could reasonably conclude as it did. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.
Id., quoting
Selvey v. Selvey, 2004 WY 166, ¶ 15,
102 P.3d 210, 214 (Wyo. 2004).
DISCUSSION
1. Requirements for Modifying Joint Custody
[¶ 8] Mother asserts the district court abused its discretion in awarding primary physical custody of the child to Father when he did not file a pleading seeking custody but instead merely filed a response to her petition. She claims his response did not give her adequate notice that he was seeking custody. Father responds that once Mother filed a petition for modification alleging a material change in circumstances, the district court was required to determine what custodial arrangement was in the best interest of the child. Father contends the district court was required to make that determination regardless of the pleading he filed in response to the petition. Father argues that because he agreed that the shared custody arrangement had failed, a material change in circumstances existed as a matter of law and the district court was left to decide which parent should have custody based upon the child's best interest.
[¶ 9] Mother filed her petition pursuant to Wyo. Ann. Stat. § 20-2-204 (LexisNexis 2009), which provides in pertinent part as follows:
§ 20-2-204. Enforcement and modification.
(a) Either parent may petition to enforce or modify any court order regarding custody and visitation.
. . . .
(c) A court having jurisdiction may modify an order concerning the care, custody and visitation of the children if there is a showing by either parent of a material change in circumstances since the entry of the order in question and that the modification would be in the best interests of the children pursuant to W.S. 20-2-201(a).
[¶ 10] We construed this provision in Gaines v. Doby, 794 P.2d 566, 570 (Wyo. 1990), in the context of the parents' requests to modify visitation, child support and medical insurance provisions in the original divorce decree. Father filed a petition to modify the divorce decree to clarify his visitation rights, asserting that Mother had failed to allow reasonable visitation in accordance with the decree. Mother responded with a cross-petition to modify the child support and medical insurance provisions of the decree alleging that circumstances had changed in that she was no longer working. The district court modified the visitation provision and Mother appealed to this Court claiming the district court erred in doing so because Father had not shown a change in circumstances supporting the modification. We said:
[T]he parties willingly presented and tried to the court the modification issues relating to visitation and medical insurance. Since the parties induced the district court to act by their motions to modify these provisions of the original divorce decree
and by their litigation posture at the hearing on the motions, neither of them can be heard on appeal to argue error based upon that action.
We determine that the district court could reasonably conclude from the evidence that the parties wanted it to exercise its revisory powers with respect to the visitation provisions and the medical insurance provision[.]
Id. at 571.
[¶ 11] Subsequently, in Gurney v. Gurney, 899 P.2d 52 (Wyo. 1995), we addressed modification of custody in the context of a divorce decree providing for shared physical custody. Shortly after the decree was entered, Mother moved with the child to a nearby town. Father filed a petition for modification of the custody order, claiming Mother was not abiding by the visitation agreement and a substantial change of circumstances had occurred warranting an award of primary physical custody to him. In response, Mother denied a change of circumstances had occurred and requested that Father's petition be denied. She also counter-petitioned for an order awarding primary physical custody to her and requested a hearing on the ground that communication between the parties had deteriorated and shared physical custody was not working. Following the hearing, the district court found a material change in circumstances had occurred and the best interest of the child supported modifying the decree to award primary physical custody to Father.
[¶ 12] Mother appealed and we addressed the requirements for reopening a shared custody order. We concluded that when the parents are unable to make the shared physical custody arrangement work, "a change of circumstances justifying judicial reexamination of the original joint custody order is demonstrated." Id. at 55. We said:
[C]onsidering . . . the parties' express invitations to reopen [the original custody order], common sense dictates the district court should reopen the joint custody order and award custody to one parent or the other. Here, as in
Gaines, each party invited the district court to do so. No error can be claimed because that court accepted and, at the parties' behest, acted upon the invitations.
Id. We have since reiterated the rule in Wyoming that when both parents inform the court that a joint physical custody arrangement is not working, a sufficient change in circumstances justifying the reopening of the custody order has been presented to the district court.
Harshberger v. Harshberger, 2005 WY 99, ¶ 10,
117 P.3d 1244, 1249-1250 (Wyo. 2005), citing
Gurney, 899 P.2d at 55.
[¶ 13] Here, Mother petitioned the court for modification of the original custody order asserting that the child was "suffering from the current shared custody arrangement." Father filed a response in which he agreed that the child was suffering from the arrangement. Both parents having informed the district court that the shared custody arrangement was not working, the district court was presented with a sufficient change in circumstances justifying reconsideration of the original order. The parents presented a material change in circumstances by their agreement that shared physical custody was not working, and the district court was required pursuant to § 20-2-204(c) to determine what custody arrangement was in the child's best interest.
[¶ 14] Mother claims Father's response to her petition to modify custody did not provide adequate notice that the district court might award Father primary physical custody of the child. She contends that because Father did not file a counterclaim for primary custody, the district court was limited to deciding whether to continue the original shared custody arrangement or modifying the decree by awarding primary physical custody to her. She asserts the district court did not have discretion to award primary custody to Father because he did not request such an award by way of a counterclaim.
[¶ 15] As reflected in Gurney, the law has been established in Wyoming for fifteen years that when parents agree shared physical custody is not working, a district court is required to establish a custody arrangement that is in the child's best interest. Upon filing her petition for custody modification, and receiving Father's response agreeing that shared custody was not in the child's best interest, Mother was on notice that the original custody arrangement would be re-opened and a determination would be made as to what arrangement was in the best interest of the child. The district court was required to determine what arrangement was in the child's best interest, and was not limited to maintaining the status quo or awarding primary custody to Mother.
2. Witness and Exhibit Designations
[¶ 16] In her second issue, Mother contends the district court erred in not striking Father's designation of witnesses and exhibits when he filed them at noon on the first day of trial contrary to the discovery rules and the parties' agreement. She claims she was prejudiced because the late filing denied her the opportunity to interview Father's witnesses prior to the trial and prepare to respond to his evidence.
[¶ 17] The record reflects that Mother filed her witness and exhibit designations on July 16, 2009. She contends Father did not file his designations until halfway through the first day of trial on July 20, 2009. Mother asserts the parties had an agreement to exchange witness and exhibit designations by July 16, the Wednesday prior to trial. Because Father failed to comply with the agreement and the discovery rules, Mother contends the district court should have stricken Father's witnesses and exhibits pursuant to W.R.C.P. 37, which provides in pertinent part as follows:
Rule 37. Failure to make disclosures or cooperate in discovery; sanctions.
. . . .
(c)
Failure to disclose;
(1) A party that without substantial justification fails to disclose information as required by Rule 26(a) . . . is not, unless such failure is harmless, permitted to use as evidence at trial . . . any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions.
[¶ 18] Father contends there was no firm agreement concerning disclosure and he did not violate the discovery rules. He points to the following provision in W.R.C.P. 26(a)(1.1) governing disclosure in divorce actions: "[D]isclosures in divorce actions must be made within 30 days after the defendant is served unless a different time is set by stipulation in writing or by court order." He contends the thirty day time limit did not apply because he did not have thirty days between service of the petition and trial and no other time for disclosure was set by written stipulation or court order. Even if there had been a time set for disclosure, he asserts sanctions are appropriate under Rule 37 only when a party fails "without substantial justification" to disclose information as required. He asserts he demonstrated substantial justification by his attorney's representations to the district court that he was out of town or in court the week before trial. He also contends that he attempted to fax his designations to Mother on the Friday before trial and an equipment failure beyond his control intervened.
[¶ 19] W.R.C.P. 26 provides in relevant part:
(a) Required disclosures;
. . . .
(1.1) Initial disclosures in divorce actions. In divorce actions the following initial disclosures are required . . . in post-decree proceedings to the extent that they pertain to a particular claim or defense:
. . . .
(H) A party seeking custody or a change in custody shall set forth the facts believed to support the claim of superior entitlement to custody. In addition, as to a change of custody the party shall set forth any facts comprising a substantial change in circumstances and disclose any supporting documentation.
These disclosures in divorce actions must be made within 30 days after the defendant is served unless a different time is set by stipulation in writing or by court order. A party must make its disclosures based on the information
then reasonably available to it and is not excused from making its disclosures because it has not fully completed its investigation of the case or because it challenges the sufficiency of another party' disclosures or because another party has not made its disclosures.
[¶ 20] Pursuant to this provision, Father was required to disclose any facts supporting his belief that joint custody was not working and, if he intended to seek primary physical custody, the facts supporting such an award. The rule required him to make the disclosure within thirty days of service of the custody modification petition unless a different time was set by written stipulation or court order. The record contains no written stipulation or court order setting a time for disclosure. Father was served with the petition on June 15, 2009, meaning he was required to make his disclosure on July 15, 2009. His contention that there were not thirty days between service and trial is, therefore, incorrect. Father does not dispute that he failed to make his disclosure on July 15. Pursuant to W.R.C.P. 37(c), the district court had the discretion to refuse to allow him to present his evidence or impose other appropriate sanctions.
[¶ 21] After hearing the parties' arguments on Mother's motion to exclude Father's evidence, the district court determined that it was in the child's best interest to allow Father to present his evidence. In its ruling, the district court acknowledged that allowing presentation of the evidence would be "somewhat prejudicial" to Mother and admonished Father's attorney to "do better" in the future.
[¶ 22] While we do not condone Father's failure to comply with the discovery rules, our review of the district court's ruling is limited. A "district court must generally be afforded broad discretion, both in the mechanisms adopted to control discovery and in its selection of appropriate sanctions for violations of . . . discovery. . . ." Ruwart v. Wagner, 880 P.2d 586, 592 (Wyo. 1994). A court does not abuse its discretion if it reasonably could have concluded as it did. We do not find unreasonable the district court's conclusion that the best interest of the child favored allowing Father to present his evidence.
3. Stalking Protection Order
[¶ 23] Mother asserts the district court abused its discretion in awarding primary physical custody to Father when he was the subject of a stalking protection order. Spousal abuse is contrary to a child's best interest; therefore, she maintains, the district court's order must be reversed. Father contends the issue of spousal abuse was only one factor the district court was required to consider and the district court properly considered all of the factors set forth in § 20-2-201 in arriving at its decision. Father also asserts witness credibility determinations are properly left to the district court and after hearing the witness testimony the district court chose not to make a finding that spousal abuse occurred.
[¶ 24] The best interest of the child are paramount in child custody determinations. Parris v. Parris, 2009 WY 44, ¶ 18, 204 P.3d 298, 304 (Wyo. 2009). Upon a showing in a custody modification proceeding that a material change of circumstances has occurred, it must be shown that modification of custody is in the best interest of the child. Durfee v. Durfee, 2009 WY 7, ¶ 6, 199 P.3d 1087, 1089 (Wyo. 2009). In determining the best interest of the child, the court is required pursuant to § 20-2-201 to consider the following factors:
(i) The quality of the relationship each child has with each parent;
(ii) The ability of each parent to provide adequate care for each child throughout each period of responsibility, including arranging for each child's care by others as needed;
(iii) The relative competency and fitness of each parent;
(iv) Each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for each child at specified times and to relinquish care to the other parent at specified times;
(v) How the parents and each child can best maintain and strengthen a relationship with each other;
(vi) How the parents and each child interact and communicate with each other and how such interaction and communication may be improved;
(vii) The ability and willingness of each parent to allow the other to provide care without intrusion, respect the other parent's rights and responsibilities, including the right to privacy;
(viii) Geographic distance between the parents' residences;
(ix) The current physical and mental ability of each parent to care for each child;
(x) Any other factors the court deems necessary and relevant.
In addition, § 20-2-201 provides:
(c) The court shall consider evidence of spousal abuse or child abuse as being contrary to the best interest of the children. If the court finds that family violence has occurred, the court shall make arrangements for visitation that best protects the children and the abused spouse from further harm.
[¶ 25] In support of her claim that spousal abuse occurred, Mother testified that on one occasion in early April shortly after the divorce, Father wanted to talk to her as she was giving the child a bath and getting him ready for bed. She testified that she told Father she did not want to talk with him then; he followed her around the house until she went into the bedroom and slammed the door; he pushed the door open; she got her cell phone and he grabbed it from her; she went into the child's room to get the house phone and Father tackled her on the bed, took the phone and removed the batteries. Mother testified she then went into the bathroom to get the child and Father proceeded to tell the child, "Your mom is a lying, cheating whore. She's a liar. Her family is a bunch of liars. And all this is her fault."
[¶ 26] Mother testified that a few weeks later, on May 1, 2009, Father called her on her cell phone and said, "We need to talk . . . to prove what a lying, cheating whore you are." Mother testified he continued to call her names, she hung up, he repeatedly called her back, and she called the police to ask what she could do to stop him. She testified that as she was speaking with a police officer, Father continued to call and text her, and did so "every minute for two hours." Mother testified that Father waited for her outside her school that day and called her when she was not there as he expected her to be. He continued to call and text even after being told by a law enforcement officer not to contact her. Mother testified Father told her she could not have the child the following Sunday unless she came into his house when she came to pick him up and listened to something Father had to tell her. She again called the police and a police officer offered to park nearby while she picked up the child. Mother told Father an officer was going to come with her. When she arrived to pick up the child, Father asked her where her "f — ing body guard" was?
[¶ 27] Mother testified that on May 6, 2009, she went to her storage shed and Father unexpectedly showed up with the child. Father proceeded to take things out of her storage shed and put them in his vehicle. He got into her car and rifled through items in it. He took her car keys, she threatened to call the police and he threw the keys back into her car. Mother testified that after this incident, Father continued to call and text Mother repeatedly. He brought the child to the birthday party Mother was having for the child on May 30, 2009, and followed her around, getting in her face and bullying her.
[¶ 28] Father confirmed that a protection order was entered against him prohibiting him from having any contact with Mother for ninety days. He also confirmed the protective order was placed against him for numerous text messages and phone calls he made to Mother in which he made threatening statements. He admitted he sent a text to Mother on May 1, 2009, stating to the effect, "You are so full of sh — . I cannot wait until the day comes when I get to share with your son who you really were." He also admitted sending a text to Mother stating, "[E]veryone knows you are a crazy bitch." Father also admitted taking items from Mother's car without her permission although he testified the items belonged to him and he and Mother jointly owned the car. He further admitted to taking the phone away from Mother to prevent her from calling the police during the fight when Mother was giving the child a bath. He also admitted pushing Mother but testified he did so because she was hitting him.
[¶ 29] Father testified that both parties engaged in taking "pot shots" at each other. He testified that many times he contacted Mother about financial matters that needed to be resolved after the divorce. He testified that he asked Mother to come into the house when she picked up the child in order to get her signature on some papers. He denied Mother's account of the confrontation at the storage shed, stating that she jumped on his back and started scratching him when he was removing some of his tools from the shed and she then jumped in her car and took off, squealing the tires as she drove away. He testified that he did not get into her car or take her phone or her keys.
[¶ 30] It is clear from the decision letter that the district court considered the evidence both parties presented on the issue of spousal abuse. The district court summarized the testimony of three law enforcement officers Mother called as witnesses about their involvement with her complaints and concerns about Father's behavior. The district court also summarized Mother's and Father's testimony about the events in the house while the child was taking a bath and at the storage unit and specifically noted that Mother's testimony was inconsistent with Father's testimony. Beyond summarizing the testimony, however, the district court made no finding on the issue of spousal abuse and does not appear to have weighed it as a factor in determining the child's best interest.
[¶ 31] It would have been helpful if the district court had made express findings about the spousal abuse allegations. However, considering all of the evidence and the district court's statements in their entirety, we cannot say the district court abused its discretion in declining to base its custody determination on the evidence of spousal abuse. While there is no question from the evidence that Father harassed Mother by cell phone and that the parties fought on two occasions in the presence of the child contrary to his best interest, we conclude the district court reasonably could have determined from the totality of the evidence that the admitted harassment and alleged abuse was not sufficient to override the other factors it was required to consider in determining custody. It is clear from the district court's decision letter that it considered and weighed each of the factors set out in § 20-2-201. Additionally, as we have said many times, the district court is in the best position to assess witness credibility and weigh testimony and is therefore in a better position than this Court to judge the respective merits of the parties' claims. Pond v. Pond, 2009 WY 134, ¶ 9, 218 P.3d 650, 652 (Wyo. 2009). From the evidence presented, we conclude the district court did not abuse its discretion in declining to award primary custody to Mother on the basis of her spousal abuse claim.
4. Findings Contrary to the Evidence
[¶ 32] Mother contends that in awarding custody to Father the district court assumed she would continue to work nights which was contrary to her trial testimony that she would work days at her new job. Father responds that the district court based its decision on all of the factors set forth in § 20-2-201, not just Mother's employment; therefore, whether or not it made an incorrect assumption about where and when Mother was working, the district court did not abuse its discretion in awarding primary custody to Father.
[¶ 33] Mother testified at the hearing that she had been accepted into nursing school, and would continue to work during the two years it would take her to complete the nursing program. She testified, however, that she would not continue to work at her current job, but would be working as a certified nurse's assistant during the day while the child was in school. In its decision letter, in considering § 20-2-201(a)(v) — how the parents and the child can best maintain and strengthen a relationship with each other, the district court made the following findings:
[Father] proposed having [child] attend Sunset School where he teaches third grade. [Child] would go to school and leave school with his father. He would be with his father after school. [Mother] is pursuing a nursing degree with a combination of real classes and online study. Real time is between 10:00 a.m. and noon during the weekdays,
and the Court assumes her employment at Wyoming's Rib and Chop House would continue with some evening hours. The Court finds [Father's] schedule to accommodate this factor and thus finds in his favor.
(Emphasis added).
[¶ 34] The district court made the following finding with regard to § 20-2-201(a)(x) — other factors the court deems necessary and relevant:
[Father] had several witnesses who worked at Sunset School, including his principal and two other co-employees. It is apparent [Father] is a fine teacher and respected by others. [Father] testified he used skills learned as a teacher to help with parenting. [Father] is stable in his profession, and [Mother] is seeking to become a nurse after having worked in a bank and
working in a restaurant. The court applauds her effort to become a nurse, however, believes [Father's] position will provide more stability and consistency for [child]. This factor favors [Father.]
(Emphasis added).
[¶ 35] The district court's decision letter confirms Mother's contention that it incorrectly assumed she would continue working nights. However, the district court's decision letter reflects that the assumption was not the only or even a primary factor in its determination to award primary custody to Father. The district court's incorrect assumption is not sufficient to establish that it abused its discretion in awarding primary custody to Father.
5. Visitation
[¶ 36] Mother asserts the district court's visitation order is not sufficiently definite to promote understanding and compliance as required by § 20-2-202(a)(1) because it ordered "visitation as proposed by [Father] in his closing argument" when Father's closing argument contained no visitation proposal and made no provision for holiday and summer visitation. Section 20-2-202 provides in relevant part:
§ 20-2-202. Visitation.
(a) The court may order visitation it deems in the best interests of each child and the court shall:
(i) Order visitation in enough detail to promote understanding and compliance;
[¶ 37] Father maintains the original divorce decree addressed holiday visitation and it remains in effect because it was never modified. Father points out that summer visitation was not addressed in the original decree or the modification order but neither party objected or proposed an alternative order. Father suggests the matter be remanded to the district court for determination of summer visitation.
[¶ 38] The parties are correct that the district court's order does not address holiday and summer visitation. In their presentations to the district court, both parties sought primary physical custody of the child with reasonable visitation by the other parent. More specifically, Mother proposed visitation for Father on alternating major holidays, including Thanksgiving, Christmas, spring break, and six weeks visitation in the summer. Father agreed that if he was awarded primary physical custody, Mother should have reasonable visitation on alternating major holidays and for six weeks in the summer. Given the parties' agreement concerning holiday and summer visitation, it is appropriate to remand these proceedings to the district court for entry of a revised order providing for visitation by Mother on alternating major holidays and for six weeks in the summer.
6. Child Support
[¶ 39] In her final issue, Mother claims the district court erred in ordering child support without adequate evidence of the parties' income. In support of her claim, she points to Wyo. Stat. Ann. § 20-2-308(a) (LexisNexis 2009), which states,
(a) No order establishing or modifying a child support obligation shall be entered unless financial affidavits on a form approved by the Wyoming Supreme Court which fully discloses the financial status of the parties have been filed, or the court has held a hearing and testimony has been received.
Mother asserts she did not file a financial affidavit nor did she testify concerning her income. Therefore, she claims, the district court abused its discretion when it ordered her to pay child support in the amount specified in the order.
[¶ 40] Wyo. Stat. Ann. § 20-2-307(d) (LexisNexis 2009) authorizes the parties in a divorce proceeding to submit child support agreements to the district court for approval. In their property settlement and child custody agreement Mother and Father stipulated to the following:
5.
Child Support. [Mother's] net monthly income shall be imputed, since she is a student, at $1,025.00. [Father's] net monthly income is $3,110.36. [Mother's] support obligation during [Father's] custody is $107.00. [Father's] support obligation during [Mother's] custody is $325.00, resulting in a support obligation of $218.00 per month. The parties agree to deviate from this amount due to the time each spends with the child and the contributions each party makes to the minor child's expenses, including clothing and activities.
The divorce decree incorporated the parties' agreement almost verbatim except that it clarified the parties had agreed to deviate from the presumptive amount, "to a zero support obligation" and added that Father would provide health insurance for the child.
[¶ 41] Later, in seeking an order modifying the decree to award primary physical custody of the child to her, Mother also sought an order establishing child support. In her opening statement at the hearing, counsel for Mother proposed that child support be calculated on the basis of the income figures incorporated into the divorce decree. Had the district court calculated Mother's child support obligation on the basis of the figures the parties stipulated to earlier — figures the court had approved and incorporated into the decree just two months before — it would not have been an abuse of discretion.
[¶ 42] However, for reasons that do not appear in the record, rather than calculating child support using the $1,025.00 net monthly income imputed to Mother in the divorce decree as Mother proposed, the district court imputed a net monthly income of $1,160.53 to Mother. Combining that amount with Father's monthly net income of $3,110.36, the same figure used in the divorce decree, the district court arrived at a joint presumptive child support obligation of $880.00 per month. Concluding that Mother was responsible for 27% of that amount, the district court calculated her child support obligation as $239.00 per month. Again for reasons that do not appear in the record, the district court then ordered Mother to pay child support of $279.00 per month, $40.00 more than it calculated her obligation to be in the preceding paragraph of the order. There is no evidence in the record supporting the $1,160.53 income imputed to Mother nor is there any explanation for the order requiring her to pay $279.00 per month, as opposed to the earlier calculation of $239.00 per month. On remand, the district court will need to recalculate Mother's child support obligation based upon the parties' respective incomes as incorporated in the divorce decree, or request the parties to submit financial affidavits as provided in § 20-2-308.
[¶ 43] The district court's modification order awarding primary physical custody to Father is affirmed. The case is remanded to the district court for a revised order setting out holiday and summer visitation and calculating child support.
closure In addition, a dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party.
"If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. . . . The mere existence of a scintilla of evidence in support of the Plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Id. at 251-52.
Id. at 248.
Id. at 249-50, 252.
Rule 56(e) of the Federal Rules of Civil Procedure also requires that any affidavit submitted on summary judgment "must be made on personal knowledge, state facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." The Court has reviewed the numerous affidavits submitted by postal carriers at the Lutz Post Office, and has disregarded those statements in the affidavits that would be inadmissible because they contain hearsay, make conclusory statements, assert facts without personal knowledge, or otherwise violate the Federal Rules of Evidence.
ANALYSIS
I. Johnson's Claims Are Not Barred by Exhaustion Requirement
Before filing a Title VII action, a plaintiff first must file a charge with the EEOC, or in the case of the Postal Service, the EEO. The purpose of this requirement "is that the [EEO] should have the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts." In Gregory v. Georgia Department of Human Resources, the Eleventh Circuit held that a "plaintiff's judicial complaint is limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Because courts should be "extremely reluctant to allow procedural technicalities to bar claims . . . the scope of an EEOC complaint should not be strictly interpreted." Judicial claims are allowed if they "amplify, clarify, or more clearly focus" the allegations in the EEOC complaint, but not if they allege new acts of discrimination."
Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970).
Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004).
Id. (internal citations omitted).
Id.
Id.
The Postmaster General asserts that two incidents in Johnson's lawsuit should be barred because she did not exhaust her administrative remedies at the EEO level before filing suit. The incidents include that (1) Johnson was not allowed to work extra hours as a rural carrier associate, and (2) that in October 2007, Marsh required Johnson to obtain a doctor's note saying she was not a threat to herself or others before Johnson could return to work. As the basis for this assertion, the Postmaster General states that the EEO did not include these two incidents in a December 18, 2007 letter of partial acceptance/partial dismissal of Johnson's formal EEO complaint. Johnson did not object to this omission.
Doc. 31-4 at 26, Ex. 14.
The EEO's failure to include these two incidents in the December 18, 2007 letter does not bar Johnson from raising the claims now. First, the December 18, 2007 EEO letter said that its investigation was "not limited to" the listed incidents. Johnson had every reason to take the EEO at its word. She could safely assume that the listed incidents were the major incidents being investigated, but not the only ones. Second, the Postmaster General is not correct that Johnson did not include the two incidents at issue in her EEO complaints. On October 30, 2007, Johnson complained about the doctor's note demand in a letter to the EEO. Johnson also complained about the lack of extra hours she received as a rural carrier associate in a pre-complaint counseling form submitted to the EEO, and also mentioned the issue, albeit in passing, in another letter to the EEO. Johnson clearly intended these letters to serve as part of her EEO complaint, either as updates or amendments. Even if these letters did not strictly comply with the Postal Service's complaint procedures, it is undisputed that Johnson put the Postal Service on notice of these incidents. Courts should be "extremely reluctant to allow procedural technicalities to bar claims." Therefore, Johnson should not be barred from raising these two incidents now because the EEO failed to incorporate them into a summary of her allegations.
Doc. 31-1 at 79, Ex. 16.
Doc. 31-1 at 64, Ex. 12.
Doc. 31-1 at 81, Ex. 16. While the letter is not dated, it must have been sent after October 16, 2007 because the letter mentions events that occurred on that date. The letter says in relevant part: "In June 2007, Ms. Marsh stated that she will not be using me for any extra work for at least 6-8 months because of a write up I received in May 2007." Id.
Gregory v. Ga. Dep't of Human Resources, 355 F.3d 1277, 1279-80 (internal citations omitted).
II. Johnson Did Not Abandon Claims By Failing to Plead Every Factual Basis in the Amended Complaint
The Postmaster General also seeks to bar, as abandoned, any claim that stems from six incidents not specifically described in Johnson's Amended Complaint. The Postmaster General acknowledges that Johnson included these six incidents in her EEO complaint, but failed to enumerate them in her Amended Complaint. The six incidents include: (1) the 14-day suspension in March 2008 for failing to deliver mail for more than 10 days; (2) the 14-day suspension in June 2008 for failing to immediately report her injury from an accident; (3) the 14-day suspension in September 2008 for failing to notify management of the return of urgent "Hot Case" mail; (4) the Postal Service's failure to correctly pay for a work injury; (5) the Postal Service's failure to correctly pay her for delivering "Hot Case" mail; and (6) the Postal Service's action that allegedly denied her an opportunity to bid on different routes in November 2007.
Rule 8 of the Federal Rules of Civil Procedure requires a plaintiff to make a "short and plain statement" of her claims. The purpose is to provide the defendant with notice of the claims against them. A plaintiff need not describe every factual detail that supports her complaint so long as she pleads sufficient factual information to provide notice of a plausible claim. Rule 15 also provides that a court "should freely give leave" for a party to amend the pleadings "when justice so requires."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Fed.R.Civ.P. 8(a)(2).
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Fed.R.Civ.P. 15(a).
The Postmaster General relies on Cooper v. Southern Co., in which the Eleventh Circuit upheld summary judgment against a plaintiff who failed to include denial of a specific job as part of the factual basis for a discrimination claim. In ruling on a discrimination claim, the Eleventh Circuit said that the plaintiff's failure to list a specific job denial in the complaint was fatal. "Any claims not asserted in the plaintiff's Complaint are properly dismissed." In Coon v. Georgia Pacific Corp., the Eleventh Circuit said that even the mention of discriminatory incidents in pre-trial motions and discovery "were not a substitute for the factual allegations of a complaint under Federal Rule of Civil Procedure 8(a)." A defendant cannot be expected to guess at the scope of a plaintiff's claim. When Johnson failed to include these six incidents in the Amended Complaint, the Postmaster General may have properly concluded that Johnson had dropped the claims in order to limit the lawsuit.
Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004),overturned on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006).
Id.
Coon v. Ga. Pac. Co., 829 F.2d 1563, 1568 (11th Cir. 1987).
On the other hand, equity counsels against the harsh result that the Postmaster General seeks. The Postmaster General is not prejudiced by the pleading deficiencies. Both sides explored these incidents extensively in discovery. The Postmaster General knew about the incidents from the outset and, based on his motion, realized during discovery that Johnson planned to use the incidents as evidence of discrimination and retaliation. Moreover, this is not a case where the plaintiff raised entirely new theories or claims in response to summary judgment. Instead, the Postmaster General in his summary judgment motion realized that Johnson had omitted several incidents that may form part of the lengthy factual basis for the existing claims. Since Rule 15 instructs courts to freely grant leave to amend pleadings to conform to the evidence, the Court on its own will allow Johnson to amend her pleading to include these incidents. Failure to do so will result in the claims being barred.
See Gilmour v. Gates, McDonald Co., 382 F.3d 1312 (11th Cir. 2004) ("Efficiency and judicial economy require that the liberal pleading standards under Swierkiewicz and Rule 8(a) are inapplicable after discovery has commenced. At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a).").
III. Count I: Part of Johnson's Discrimination Claim Survives Summary Judgment
A. Hostile Workplace Claim: Johnson Has Not Offered Sufficient Evidence to Support a Hostile Workplace Claim
Although it is not clear that Johnson pleaded a hostile workplace claim under Count I of the Amended Complaint, the Court will address the claim since both parties raise it. A plaintiff establishes a hostile workplace claim under Title VII when she proves that "the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." In evaluating allegedly discriminatory conduct, the Eleventh Circuit considers the harassment's (1) frequency; (2) severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee's work performance. "Moreover, the plaintiff must prove that the environment was both subjectively and objectively hostile. . . . The employee must subjectively perceive the harassment as sufficiently severe and pervasive to alter the terms or conditions of employment, and this subjective perception must be objectively reasonable."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quotations and citations omitted). Johnson must show: (1) that she belongs to a protected group; (2) that she has been subject to unwelcome harassment; (3) that the harassment must have been based on a protected characteristic; (4) that the harassment was sufficiently severe or pervasive to alter the terms or conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or direct liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808-09 (11th Cir. 2010) (en banc) (internal citations and quotations omitted).
Id.
Even when viewing the evidence in the light most favorable to Johnson and drawing every reasonable inference in her favor, Johnson's evidence of mistreatment does not rise to the level of "severe and pervasive" harassment that creates "an abusive working environment." At best, Johnson has offered evidence that her supervisors treated her rudely, regularly talked down to her, unfairly disciplined her, denied her extra hours above her guaranteed minimum hours, and made it administratively difficult for her to obtain leave and the correct pay. In addition, Johnson testified she felt humiliated when, after a leg injury, managers gave her a pillow to rest her leg that contained pictures of monkeys. While the Court understands that Johnson interpreted the monkeys on the pillow to be offensive, the Court must evaluate whether "objectively" a person would consider the pillow to amount to a racial slur so outrageous that it altered the conditions of the workplace. The monkeys on the pillow send an ambiguous message that might offend some people, but not others. The monkeys on the pillow are not the type of hate symbol, such as a swastika or noose, that clearly conveys a message of terror. Thus, the Court does not find that this incident, even considered in combination with the other incidents, could be considered as a matter of law to create "severe and pervasive" harassment that "alter[s] the conditions of the victim's employment and create an abusive working environment." Therefore, any harassment or hostile workplace claim does not survive summary judgment.
Harris, 510 U.S. at 21 (quotations and citations omitted).
B. Disparate Treatment Claims: Part of Johnson's Claim Survives Summary Judgment
"In a disparate treatment case, the plaintiff bears the burden of proving that the employer intentionally discriminated against him because of her race. The plaintiff can establish discriminatory intent through either direct or indirect evidence; to establish a prima facie case of intentional discrimination using circumstantial evidence, plaintiffs may use the framework established in McDonnell Douglas Corp. v. Green. . . . "
No direct evidence exists in this case. See Cooper v. Southern Co., 390 F.3d 695, 723 n. 15 (11th Cir. 2004), overturned on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006) ("Direct evidence is evidence which itself proves the existence of discrimination and does not require inference or interpretation, as for example a frank admission from a manager that he refused to hire an applicant because he was black or because she was female.").
Cooper, 390 F.3d at 723-24.
"In a discrimination action brought under either Title VII or Section 1981, a plaintiff must first establish a prima facie case of discrimination, which the defendant can rebut by offering a legitimate, non-discriminatory reason for the allegedly discriminatory act. . . . [T]he defendant's burden of rebuttal is exceedingly light. . . . At this stage of the inquiry, the defendant need not persuade the court that its proffered reasons are legitimate; the defendant's burden is merely one of production, not proof."
Cooper, 390 F.3d at 724-25 (internal citations and quotations omitted).
"If the defendant successfully rebuts the plaintiff's prima facie case, the presumption of discrimination is eliminated. To survive summary judgment, the plaintiff must then come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable fact finder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision. To show that the employer's reasons were pretextual, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence." 1. Disparate Discipline Claim
Cooper, 390 F.3d at 725 (internal citations and quotations omitted).
In her Amended Complaint, Johnson asserts that one standard of discipline applied to her because she is African-American and another standard applied to white employees. To establish a prima facie case of discrimination, Johnson must show: (1) she is a member of a group protected by Title VII; (2) she was qualified for the position or benefit sought; (3) she suffered an adverse effect on her employment; and (4) she suffered from a differential application of work or disciplinary rules.
Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999).
Johnson's disparate discipline claim fails because she cannot show that any of the discipline amounted to an "adverse action," as that term is defined by law. The Eleventh Circuit has repeatedly said that "[n]ot all discipline is actionable as a matter of law." Instead, "the employee challenging the acts must demonstrate serious and material change in the terms, conditions, or privileges of their employment." The action must overcome some "threshold level of substantiality."
Davis v. Town of Lake Park, 245 F.3d 1232, 1238-39 (11th Cir. 2001).
Davis, 245 F.3d at 1238-39.
Davis, 245 F.3d at 1239.
In Clark v. Potter, another discrimination case against the Postal Service, the Eleventh Circuit found that the Postal Service's warning letters did not constitute "adverse action." In Clark, as in this case, the "letter had no effect on [the plaintiff's] employment. [The plaintiff] admitted that she did not lose pay or suffer a loss of grade or employment benefits as a result of such disciplinary action. [The plaintiff did] not allege that the letter had any other tangible job
Clark v. Potter, 232 F. App'x 895, 897 (11th Cir. 2007).
effects, nor is there any such evidence." Here, it is undisputed that the warning letters and suspensions did not alter Johnson's pay, pay grade, or benefits. Nor did the warning letters or suspensions change Johnson's employment in a "serious and material" way. As a result of the "time out" suspensions and warning letters, Johnson did not lose pay and did not lose benefits. The disciplinary "write-ups" were not permanent. Johnson's warning letters and suspensions would drop out of her personnel file within one year and two years, respectively, unless Johnson received additional discipline during this period. Because the suspensions and warning letters did not affect Johnson's pay or employment conditions, the discipline does not constitute an adverse employment action for purposes of a Title VII discrimination claim. Therefore, Johnson cannot make a prima facie case of disparate discipline.
Id.
Doc. 46-2, Ex. G; Stanton Dep. at 148.
There may be additional grounds to grant the Postmaster General summary judgment on Johnson's disparate discipline claim. However, since one ground is sufficient, the Court will not rule on the other grounds.
2. Disparate Award of Extra Hours Additional Pay
Johnson also alleges that the Postal Service discriminated against her by not allowing her to work extra hours to earn extra pay. Johnson claims that the Postal Service permitted similarly-situated white carriers to work extra hours. It is undisputed that the Postal Service was not required to let Johnson or any other carrier work extra hours. As a part-time carrier, Johnson was only guaranteed a minimum amount of hours. While giving a carrier extra hours did not amount to a "promotion," the extra hours allowed the carrier to earn more money. For this reason, the Court will analyze this claim under the analogous framework set out for failure to promote claims. Under McDonnell Douglas, a plaintiff may establish a prima facie case of discrimination in promotion by showing that "(1) she belongs to a racial minority; (2) she was qualified for and applied for a position the employer was trying to fill; (3) she was denied the position; and (4) others who were not members of the protected class were hired" or, in this case, given extra work hours.
Cooper, 390 F.3d at 724 n. 16.
No dispute exists that Johnson can make out the elements of this prima facie case, and that the Postal Service has offered a legitimate, non-discriminatory reason for its failure to award Johnson extra hours. Marsh and other supervisors testified that they did not give Johnson extra hours to avoid paying excessive overtime. Extra duties went to the first carriers who completed their routes. Because Johnson took longer to complete her route and "struggled to deliver her [regular mail] within the evaluated time," she did not get as many extra hours as carriers who worked faster.
Doc. 31-6; Elliott Dep. at 156. Doc. 31-6; Knerr Dep. at 49.
Doc. 31-5; Marsh Decl. ¶ 32.
As evidence of pretext, Johnson produced time records for herself and three white carriers. Johnson's analysis of the records shows that the other white carriers received more extra hours between May 2007 and March 2008, even though in many months, Johnson completed her route quicker than they did. This data satisfies Johnson's burden to produce evidence of pretext such that a reasonable jury might disbelieve the Postmaster General's non-discriminatory reason for the actions. Therefore, a genuine issue of material fact exists for a jury to decide whether the Postal Service denied Johnson additional hours and extra pay for discriminatory or legitimate reasons.
Doc. 59-1, Ex. 1 2.
3. Failure to Create Full-Time Position in Mail Count
Johnson also alleges that the Postal Service denied her the opportunity to become a full-time carrier quicker by sabotaging the September 2007 mail count for discriminatory reasons. Johnson alleges that before the mail count began, Marsh removed streets from one of the routes, resulting in the creation of two, rather than three, full-time positions. The two new positions went to white carriers as a result of seniority. The third position, which Johnson would have automatically filled by virtue of seniority, was not created. Consequently, Johnson was not promoted to full-time status for another eight months.
Johnson's claim does not squarely fit into the failure to promote rubric since Marsh's alleged actions resulted in no one being promoted to a position that did not exist. "Failure to promote is generally an adverse action but not if there is no open position." However, "[i]t is well-settled that the prima facie case method established in McDonnell Douglas was `never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.'" Therefore, while recognizing that the allegation does not fall perfectly into a failure to promote framework, the Court nevertheless draws upon this analogous framework to guide its analysis.
Guimaraes v. Nors, No. 07-20592-CIV, 2009 WL 1098092, at *5 (S.D. Fla. Apr. 22, 2009).
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983).
Under Johnson's theory, the discriminatory act at issue here was Marsh's alleged decision in September 2007 to take two streets out of Route 50 and assign them to another route, resulting in the creation of two, rather than three, new full-time positions. Johnson has presented evidence that Marsh instructed that two streets be removed from Route 50. Marsh did not deny this allegation.
In an affidavit, carrier Sebastein Figuero said that Marsh "filled out a Route Adjustment form and asked me to make the change by eliminating Lake Allen and Blount Roads from the `line of travel.'" Doc. 48-1, Ex. G ¶ 8. In another affidavit, carrier Shelba Christian said Lake Ellen [sic] and Blount Roads were transferred from Route 50 to Route 47, which was "very unusual because Lake Ellen [sic] and Blount were not even in the same zip code as Route 47." Doc. 48-1, Ex. K ¶¶ 10-14.
In her deposition, Marsh was asked whether she moved Geraci and Blout Roads before the mail count. "I don't definitely remember," Marsh testified. "It probably was." Doc. 46-1; Marsh Dep. at 124-25.
The Postmaster General moves for summary judgment on this claim based on a single argument: that Johnson was not treated differently than another, white employee ranked fourth in seniority who also was not promoted to a position that was not created. This argument does little to advance the Postmaster General's position, and misses the mark of Johnson's claim. Johnson did not present evidence that Marsh removed streets from two routes. She presented evidence only that Marsh targeted her by removing streets from one route, resulting in the loss of one full-time job that would have gone to Johnson. The Postmaster General offers no other basis to grant summary judgment. Moreover, the Postmaster General offers no legitimate reason why Marsh removed these streets from the route. Accordingly, since material facts remain in dispute, summary judgment must be denied on this claim.
IV. Count II: Genuine Dispute of Material Facts Remains on Retaliation Claim
In order to prove retaliation under Title VII, a "plaintiff must show that (1) she engaged in statutorily protected activity, (2) an adverse employment action occurred, and (3) the adverse action was causally related to the plaintiff's protected activities." The parties do not dispute that Johnson engaged in statutorily protected activity by filing an EEO complaint.
Little v. United Techs, Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir. 1997).
"The filing of an EEOC claim is a `statutorily protected activity.'" Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008).
1. Adverse Action for Retaliation Claims
Although the Eleventh Circuit used to apply the same definition of an "adverse action" for both discrimination and retaliation claims under Title VII, that practice changed when the U.S. Supreme Court in Burlington Northern Sante Fe Railway Co. v. White announced a different standard for adverse actions in retaliation claims. In Burlington Northern, the Supreme Court made clear that the retaliation provisions of Title VII are "not limited to discriminatory actions that affect the terms and conditions of employment." A retaliatory adverse action is any action which "might have dissuaded a reasonable worker from making or supporting a charge of discrimination." The adverse action, however, must be materially adverse. The harm must be "significant," as opposed to "trivial." "[N]ormally petty slights, minor annoyances, and simple lack of good manners" do not deter a reasonable worker from pursuing a discrimination charge under Title VII. The Supreme Court in Burlington Northern emphasized that "[c]ontext matters." It explained:
A schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. A supervisor's refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee's
professional advancement might well deter a reasonable employee from complaining about discrimination.
548 U.S. 53, 63-70 (2006). See also Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Grimsley v. Marshalls of MA, Inc., 284 F. App'x 604, 608 n. 5 (11th Cir. 2008).
In Grimsley, the Eleventh Circuit said, "We reject [the] argument that the decision in Burlington Northern Santa Fe Railway Co. v. White applies to claims of disparate treatment discrimination. The `materially adverse' standard in Burlington Northern was explicitly limited to claims brought under Title VII's anti-retaliation provision, and the Supreme Court was careful to note that a different standard applied to substantive claims of discrimination." Id. (internal citations omitted).
Burlington Northern Sante Fe Railway Co. v. White, 548 U.S. 53, 64 (2006). The Eleventh Circuit has described the retaliation standard as a "more liberal view" protecting "a wider range of retaliatory conduct" than the standard that the Eleventh Circuit previously used. Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008).
Burlington Northern, 548 U.S. at 68.
Id.
The Eleventh Circuit has said that Burlington Northern "strongly suggests that it is for a jury to decide whether anything more than the most petty and trivial actions against an employee should be considered materially adverse to him and thus constitute adverse employment actions" within a retaliation claim.
Crawford, 529 F.3d at 973 n. 13.
The Postmaster General argues that the various disciplinary actions taken against Johnson after her initial EEO complaint cannot constitute adverse retaliatory actions because they did not, in fact, deter Johnson from pursuing her EEO complaint. After each of these actions, Johnson updated or amended her EEO complaint. The Postmaster General's argument, however, applies the wrong legal standard to this issue. The Court must apply an "objective standard" to the question of whether an action would deter a "reasonable" worker in Johnson's position from pursing a discrimination complaint. While the fact that Johnson persisted with her claim "may shed light as to whether the actions are sufficiently material and adverse to be actionable," Johnson's subjective response does not control the question. Given the nature of the alleged retaliatory actions, which included the denial of extra pay, and viewing the evidence in the light most favorable to Johnson, the Court finds a jury question exists on whether the Postal Service took adverse retaliatory actions against Johnson.
Burlington Northern, 548 U.S. at 68-69.
Burgos v. Napolitano, 330 F. App'x 187, 190 (11th Cir. 2009) (quoting Somoza v. Univ. of Denver, 513 F.3d 1206, 1214 (10th Cir. 2008)).
2. Causal Connection Between Protected Activity and Adverse Action
The Postmaster General first argues that there can be no causal link between Johnson's EEO complaint and the disciplinary action taken against her because some of the supervisors working under Marsh did not know about Johnson's EEO complaint until after they disciplined her. But exactly when Marsh and Cardinal learned of Johnson's EEO activity is itself in dispute. Furthermore, there remains a genuine issue of material fact about whether the supervisors acted independently to discipline Johnson and deny her extra hours, or whether the supervisors acted in concert with Marsh or at Marsh's direction. The record contains testimony supporting both positions. Therefore, this factual issue turns on witnesses' credibility, which makes summary judgment unsuitable.
The Postmaster General also argues that no "close temporal proximity" exists between Johnson's first EEO complaint in October 2007 and the allegedly retaliatory acts that began the same month and continued through 2008. Viewing the facts in the light most favorable to Johnson, Johnson's protected activity includes not just the filing of her initial complaint, but also the subsequent amendments or "updates" that Johnson provided the EEO as each new allegedly retaliatory activity occurred. Johnson filed an informal EEO complaint on or around October 5, 2007 and a formal EEO complaint on October 20, 2007. Johnson sent the EEO letters on October 30, 2007, November 6, 2007, and December 5, 2007 that updated or amended her complaint with new allegations. Around May 10, 2008, Johnson filed a second EEO complaint, and updated it with new allegations on September 24, 2008. During this time period, Johnson alleges that different supervisors retaliated against her through (1) unfair disciplinary actions; (2) unfair denial of extra hours; (3) consistently rude behavior, including giving her the "monkey pillows"; and (4) by interfering with the EEO process. Specifically, Johnson alleges retaliatory discipline occurred around October 18, 2007, when Marsh ordered her to get the doctor's note to return. Johnson also alleges retaliation in early November 2007 when Johnson received a warning letter for losing her arrow key, and on January 22, 2008, when she received a seven-day time-off suspension for not showing up for work after the Dr. Martin Luther King Jr. federal holiday. In addition, Marsh received an "official discussion" after speaking in March 2008 on the phone while at work to an EEO official. Johnson offers evidence that throughout this time period, supervisors did not assign her as many extra hours and treated her with disrespect. Viewing the evidence in the light most favorable to Johnson, the Court finds that a jury question remains whether a causal link exists between the Postal Service's actions and Johnson's EEO activity.
The exact date is not clear in the record.
Doc. 31-1, Ex. 12 16. In her response, Johnson states that her formal EEO Complaint was filed November 1, 2007. But one of the signed dates on the formal Complaint is October 20, 2007. Based on the evidence before the Court, the exact date is unclear.
Doc. 31-1, Ex. 16. Doc. 31-2, Ex. 18.
The exact date is not clear in the record.
Doc. 31-2, Ex. 29. Doc. 31-4, Ex. 30.
Doc. 31-1, Ex. 16.
3. McDonnell Douglas Burden Shifting
Because Johnson alleges a retaliation claim based on circumstantial evidence, the burden shifting framework in McDonnell Douglas applies. Since Johnson has presented enough evidence to create a jury question to establish a prima facie case, the burden shifts to the Postmaster General to articulate a legitimate reason for the Postal Service's actions. The Postmaster General can meet this burden. He can show that supervisors disciplined Johnson because she failed to follow procedure and performed poorly on the job. He can show that Johnson's supervisors did not give her extra work because it would have cost too much overtime.
Beard v. 84 Lumber Co., 206 F. App'x 852, 858-59 (11th Cir. 2006).
Therefore, Johnson must produce evidence that the Postmaster General's reasons are pretext for retaliation. Johnson "must meet the reason proffered head on and rebut it." Her burden, however, is to produce evidence, not to persuade the Court that her evidence definitely establishes pretext.
Id.
Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007).
As the Eleventh Circuit has said, "The burden to avoid summary judgment is not to show by a preponderance of the evidence that the reasons stated were pretext. Rather, plaintiff's burden at summary judgment is met by introducing evidence that could form the basis for a finding of facts, which when taken in the light most favorable to the non-moving party, could allow a jury to find by a preponderance of the evidence that the plaintiff has established pretext." Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 921 (11th Cir. 1993).
By showing that other carriers were assigned extra hours, even though they delivered the mail slower than Johnson did, Johnson produced evidence that the Postmaster General's financial reasons for the supervisor's assignment of extra hours could be pretext for a retaliatory motive.
As for Johnson's discipline, Johnson produced evidence of pretext by submitting affidavits to show that supervisors did not discipline other carriers who had not filed EEO complaints for committing similar infractions. For instance, Johnson produced an affidavit from carrier Shelba Christian, who requested a leave for stress in November 2007, about a month after Johnson requested the leave. While Marsh required that Johnson obtain a letter from her doctor stating that she was not a threat, Marsh did not demand that Christian obtain the same type of letter. Johnson also produced an affidavit from carrier Bruce McKenney. McKenney stated that he was not disciplined for failing to immediately report an on-the-job injury, even though he waited six hours to tell his supervisors about the injury. By contrast, Johnson received a 14-day suspension in May 2009 for waiting one hour to report her injury. McKenney also stated in his affidavit that he lost his arrow key, but supervisor Jada Elliott told him "not to worry." He was not disciplined. By contrast, Johnson lost her arrow key on October 13, 2007, shortly after she filed her informal EEO complaint. Two months later on December 14, 2007, after converting her informal EEO complaint into a formal complaint, Cardinal gave Johnson a warning letter for losing her arrow key.
At the time that Christian requested leave for stress, she had not filed an EEO complaint. But she did so in June 2009. Doc. 48-1, Ex. K. Christian Aff. ¶ 20.
Doc. 48-1, Ex. K. Christian Aff. ¶¶ 4-5.
Doc. 48-1, Ex. C. McKenney Aff. ¶¶ 14-25. McKenney filed a supplemental affidavit stating that he had never filed an EEO complaint. Doc. 48-1, Ex. J.
Doc. 48-1, Ex. C. McKenney Aff. ¶¶ 26-30. The record is unclear if Elliott acted alone, or consulted Marsh when deciding not to discipline McKenney. Cardinal — not Elliott — disciplined Johnson for losing her arrow key.
The Eleventh Circuit has "made clear that, when a plaintiff seeks to point out a workplace comparator who was treated less severely than the plaintiff, the `quantity and the quality of the comparator's misconduct [must be] nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.'" Therefore, a jury would have to find whether the other carriers' conduct was "nearly identical" to Johnson's. Also, a jury would have to consider (except as to the doctor's note) whether the other carriers had nearly identical disciplinary records as Johnson. Since the Postal Service operates on a progressive discipline system, where discipline increases based on the nature and number of an employee's past infractions, two employees who committed the same misconduct might not receive the same punishment if they had different disciplinary records.
Hankins v. AirTran Airways, Inc., 237 F. App'x 513, 522-34 (11th Cir. 2007) (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
However, to survive summary judgment, Johnson must merely produce evidence from which a reasonable jury could find pretext. Viewing the evidence in the light most favorable to Johnson, the Court finds that Johnson has met this burden.
V. Count III: Without Evidence of Damages, Johnson's FMLA Claim Fails
The Postmaster General moves for summary judgment on Count III, which alleges interference with Johnson's rights under the Family Medical Leave Act ("FMLA"), because Johnson acknowledges that she suffered no damages as a result of the alleged violations. In her answers to interrogatories, Johnson stated that she did not lose any income or incur any expenses as a result of the Postal Service's denial of her FMLA leave request. Moreover, in her response, Johnson does not address the Postmaster General's argument as to Count III. Having failed to respond to this argument, Johnson apparently does not oppose summary judgment on Count III.
Even if Johnson had opposed the motion, the Court must grant the Postmaster General summary judgment on Count III. The FMLA "provides no relief unless the employee has been prejudiced by the violation" in some way. Johnson may not recover for "technical infractions under the FMLA . . . in the absence of damages." Since Johnson does not claim economic damages, and because the FMLA does not provide for nominal damages or emotional distress damages, Johnson's FMLA claim cannot succeed. Therefore, the Postmaster General is entitled to summary judgment on Count III of the Amended Complaint.
Demers v. Adams Homes of N.W. Fla., Inc., 321 F. App'x 847, 849 (11th Cir. 2009) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)).
Id. (citing Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1284 (11th Cir. 1999)).
29 U.S.C. § 2617(a)(1); Andrews v. CSX Transp., Inc., 3:06-cv-704-J-32-HTS, 2009 WL 5176462, at *2 n. 6 (M.D. Fla. Dec. 22, 2009).
CONCLUSION
The Postmaster General's Motion for Summary Judgment (Doc. 31) is GRANTED IN PART AND DENIED IN PART as follows:
(1) As to Count I, the discrimination claim, summary judgment is
GRANTED IN PART and
DENIED IN PART as described in this Order.
(2) As to Count II, the retaliation claim, summary judgment is
DENIED.
(3) As to Count III, the FMLA claim, summary judgment is
GRANTED in favor of the Defendant, United States Postmaster General John E. Potter, and against the Plaintiff, Wendy Johnson.
IT IS SO ORDERED.