Smith v. Donahoe

Filing 21

OPINION. Signed by Honorable Judge Myron H. Thompson on 9/29/2015. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JERRY S. SMITH,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
PATRICK R. DONAHOE,
Postmaster General,
Defendant.

CIVIL ACTION NO.
2:13cv213-MHT
(WO)

OPINION
In

this

defendant

case,

Patrick

plaintiff
R.

Jerry

Donahoe,

S.

the

Smith

United

sued
States

Postmaster General, claiming retaliation in violation
of

Title

VII

of

the

Civil

Rights

Act

of

1964,

as

amended (42 U.S.C. §§ 1981a & 2000e through 2000e-17).
This court has original jurisdiction over his claims
under 28 U.S.C. §§ 1331 (federal question) and 1343
(civil rights), and 42 U.S.C. § 2000e-5(f)(3) (Title
VII).
This cause is before the court on the Postmaster
General’s

motion

for

summary

judgment.

Summary

judgment will be granted in favor of the Postmaster
General

I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on

which

summary

judgment

is

sought.

The

court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter
of law.”

Fed. R. Civ. P. 56(a).

The court must view

the admissible evidence in the light most favorable to
the non-moving party and draw all reasonable inferences
in favor of that party.

Matsushita Elec. Indus. Co.

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. BACKGROUND
The

following

favorable to Smith.

are

the

facts

in

the

light

most

Smith, a white male veteran, is
2

both disabled and over 40 years old.1

He works as a

postal carrier for the United States Postal Service and
also serves as the union shop steward for his branch
office.

In

early

2012,

he

filed

an

administrative

complaint with the United States Postal Service’s Equal
Employment Office (“EEO”) for discrimination due to his
union affiliation.
his

concern

was

His EEO complaint was dismissed and
converted

to

an

informal

complaint

because union affiliation is not a valid EEO factor
under Postal-Service guidelines.
Smith alleges that, about two months after he filed
the complaint (and one month after he was told that his
EEO complaint was invalid), he began to be targeted by
his supervisors for his age and disability.

He was

told that he must complete work with the same speed as
younger, more physically able employees; he was closely

1. Smith does not specify his disability. His EEO
complaint
alleges
that
his
disability
is
“mental/physical.”
May 31, 2012, EEO Complaint (doc.
no. 13-2) at 2.
3

supervised;

and

he

received

a

warning

letter

for

failure to follow parking and driving instructions for
his postal vehicle.
After a few weeks of this treatment, he threatened
his supervisor, claiming that he had brought a gun to
work in his car and that management had “better be
careful.”

USPS Notice (doc. no. 13-4) at 2.

Because

of this threat, he was placed on emergency off-duty
status and suspended without pay in April 2012, and he
was ultimately removed in July for improper conduct.
While he was suspended, he filed another EEO complaint
with the Postal Service, alleging discrimination based
on age, disability, and retaliation for his previous
EEO

activity,

removal.

and

describing

his

suspension

and

He indicated on his complaint that he was a

preference-eligible employee because he was a qualified
veteran.
The Postal Service investigated his complaint, and,
on January 7, 2013, it issued a final agency decision
4

that

the

evidence

did

not

support

a

finding

of

discrimination.

Smith’s lawyer received this decision

on January 11.

The form he received notified him that

Smith had presented a “mixed case,” and that he was
entitled to appeal to the federal government’s Merit
Systems Protection Board (“MSPB”) within 30 days or, in
the alternative, to file a judicial complaint in United
States District Court within the same 30-day timeline.
Meanwhile, Smith separately engaged in arbitration
with the Postal Service.

On February 15, 2013--after

his 30-day appeal deadline had passed--the arbitrator
found

in

punished

his
for

reinstatement.

favor;
union

determined

that

activities;

and

Smith returned to work.

he

had

been

ordered

his

On April 4,

2013, he filed a judicial complaint alleging Title VII
retaliation based on the facts described above.

5

III. DISCUSSION
The

Postmaster

summary

judgment

General

because

argues

Smith’s

that

he

claims

is

are

due
time-

barred; because the discrimination he alleges is not
protected by Title VII; because he failed to support
his complaint with sufficient factual allegations; and
because he cannot meet

the “but-for” causation test

required in University of Texas Southwestern Medical
Center v. Nassar, 133 S. Ct. 2517 (2013).

Because the

court agrees that Smith’s claims are time-barred, it
does not reach the Postmater General’s other arguments.
The Civil Service
U.S.C.

§

1101

et

Reform Act of 1978

seq.,

evaluating

establishes

(CSRA), 5
statutory

employee

personnel

framework

for

actions.

See Kloeckner v. Solis, 133 S. Ct. 596, 600

(2012).

Pursuant

personnel

action

to

taken

federal

a

the

CSRA,

against

when

certain

an

adverse

classes

of

federal civil servants is particularly serious--such as
a removal, a long suspension, or a reduction in grade
6

or pay--the affected employee may appeal the decision
to the MSPB,

an “independent adjudicator of federal

employment disputes.”

Id.; see 5 U.S.C. §§ 1204, 7512,

7701; see also Chappell v. Chao, 388 F.3d 1373, 1375
(11th

Cir.

2004).

discrimination

When

prohibited

the
by

employee
another

complains

federal

of

statute

that is related to or stemming from an action that may
be appealed to the MSPB, the complaint is classified as
a “mixed case.”

See Kloeckner, 133 S.Ct. at 601 (“When

an employee complains of a personnel action serious
enough

to

action

was

appeal
based

to

the

on

MSPB

and

alleges

discrimination

that

[prohibited

the
by

another federal statute], she is said (by pertinent
regulation) to have brought a ‘mixed case.’”); see also
5 U.S.C. § 7702(a)(1); 29 C.F.R. § 1614.302.
“The CSRA and regulations of the MSPB and Equal
Employment
special

Opportunity

procedures

to

Commission
govern

such

(EEOC)
a

set

out

case--different

from those used when the employee either challenges a
7

serious

personnel

attacks

a

less

action

under
action

serious

the
as

CSRA

alone

or

discriminatory.”

Kloeckner, 133 S.Ct. at 601; see also 5 U.S.C. §§ 7702,
7703(b)(2);

5

C.F.R.

§ 1614.301-310.
the

employee

allowed

review

becomes final.

1201.151-157;

29

C.F.R.

When the mixed-case regulations apply,

is

administrative

§

to

before

seek

another

any

layer

agency

of

decision

The statute and regulations governing

mixed cases also outline special procedures for these
complaints, including filing deadlines.

See, e.g., 5

U.S.C. § 7703(b)(2); 29 C.F.R. § 1614. 310(a).
A

federal

proceed
pursued,
complaint

in

employee

several

the

ways.

the

a

mixed

Under

the

first

files

a

agency,

“much

as

employee

with

pursuing

case

route

may
Smith

discrimination
an

employee

challenging a personnel practice not appealable to the
MSPB could do.”

Kloeckner, 133 S.Ct. at 601; see 5

C.F.R. § 1201.154(a); 29 C.F.R. § 1614.302(b).

If the

agency decides against the employee, he then may appeal
8

to the MSPB, or he may bypass further administrative
review and sue the agency in district court.
C.F.R.

§

1201.154(b);

C.F.R. § 1614.310(a).

29

C.F.R.

§

See 5

1614.302(d);

29

In either case, the MSPB appeal

or the civil action must be filed within 30 days of
when the employee receives the agency’s decision on the
discrimination issue.

5 U.S.C. § 7703(b)(2); 29 C.F.R.

§ 1614.310(a); see also Butler v. W., 164 F.3d 634, 638
(D.C.

Cir.

agency

1999)

EEO

(“Should

route,

within

[the

employee]

thirty

days

elect

of

a

the

final

decision she can file an appeal with the MSPB or a
civil

discrimination

action

in

federal

district

civil

service

employee

court.”).
Here,

as

(specifically,
employee

of

a

federal

as
the

a

veteran’s

Postal

preference-eligible

Service)

who

challenged

discrimination on the basis of age, disability, and
retaliation

“related

to

or

stemming

from”

adverse

personnel actions that were appealable to the MSPB,
9

Smith brought a mixed-case complaint to his agency’s
EEO.

29 C.F.R. § 1614.302(a).

As such, Smith’s claim

was processed and reviewed as a mixed case.

When his

claim was denied, he was given notice and instructions
that, because he raised a mixed case, he had 30 days
from receipt of that final decision to file his appeal
or his civil action.
Smith did not appeal the agency’s decision to the
MSPB.

Instead, he chose to treat his administrative

appeals as exhausted, and he filed a lawsuit in federal
court.

But he filed too late.

Specifically, he filed

his judicial complaint 84 days after he received the
final agency decision--well outside the 30-day window
clearly set forth in the statute, the regulations, and
the

paperwork

accompanying

notice of appeal rights.

his

final

decision

and

Because he filed late, his

lawsuit is time-barred.
Smith attempts to save his lawsuit by reference to
the 90-day statutory deadline applicable to Title VII
10

discrimination

cases

under

42

See also 29 C.F.R. § 1614.407.
alternate

deadline

should

U.S.C.

§

2000e-16(c).

Smith argues that this

govern

his

case

because--

given that arbitration resolved the adverse employment
actions in his favor--he now charges the agency with
only retaliation.
he

can

now

Put differently, Smith believes that

bring

retaliation).

But

a

pure

discrimination

Smith

cannot

extend

case
his

(for

filing

deadline simply by dropping his personnel-action claim
(that is, the challenge to his suspension and removal).
Because Smith brought a mixed case, he was required
to follow the mixed-case deadlines, and he cannot opt
into

the

more

favorable

discrimination statutes.

deadlines

set

out

by

the

Indeed, even the statute that

governs the filing of judicial actions prohibits him
from relying on the statutes of limitation set out by
“other provision[s] of law.”

See 5 U.S.C. § 7703(b)(2)

(“Notwithstanding any other provision of law, any such
case [of discrimination subject to the provisions of 5
11

U.S.C.

§

statute

7702]

filed

prohibiting

under

any

[relevant

discrimination]

must

be

federal
filed

within 30 days after the date the individual filing the
case

received

notice

of

the

judicially

reviewable

action under such section 7702.”) (emphasis added); see
also Kloeckner v. Solis, 133 S. Ct. 596, 601 (2012)
(citing statute).
In short, Smith’s attempt to save his lawsuit from
being time-barred by splitting his allegations fails as
a

matter

of

law.

That

the

arbitrator

decided

in

Smith’s favor on Smith’s personnel-action claim does
not afford him additional time to file a discrimination
claim

based

on

a

mixed-case

timeline had already expired.2

complaint

whose

appeal

Having filed and pursued

2. Indeed, the arbitrator did not even make its
decision in Smith’s favor on the personnel-action claim
until after the deadline to file in court or to appeal
the agency’s decision to the MSPB had long passed on
either claim. Because Smith could not have known that
he would win his case with the arbitrator such that
only his discrimination claim would remain, the court
(footnote continued)
12

a mixed-case complaint, he was obliged to follow the
time limits for those complaints as set out in the
statute and regulations.
The

Postmaster

General’s

judgment will be granted.

motion

for

summary

An appropriate judgment will

be entered.
DONE, this the 29th day of September, 2015.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

does not believe that Smith even relied on the Title
VII statutory deadline when he failed to file a timely
appeal or lawsuit.
13