Stewart v. United States Postal Service, Postmaster General

Filing 26

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the defendant's motion for summary judgment is GRANTED, and all of plaintiff's claims are DISMISSED with prejudice; Costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 7/8/2013. (AHI)

FILED
2013 Jul-08 PM 03:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
FRANKIE STEWART, III,
Plaintiff,
vs.
PATRICK R. DONAHUE,
POSTMASTER GENERAL,
UNITED STATES POSTAL
SERVICE AGENCY
(SOUTHEAST AREA),
Defendant.

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Civil Action No. CV-12-S-2307-NE

MEMORANDUM OPINION AND ORDER
Plaintiff, Frankie Stewart, III, initiated this case pro se on June 28, 2012, by
filing an application under § 706(f) of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5(f).1 His requests for appointment of an attorney and for leave to proceed
without prepayment of fees, costs, or security were denied, and he filed an amended
complaint, still pro se, on July 17, 2012.2 The amended complaint asserts claims
against plaintiff’s former employer, Patrick Donahue, the Postmaster General of the
United States Postal Service, for race discrimination pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and

1

Doc. no. 1.

2

Doc. no. 4.

disability discrimination pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701
et seq. (the “Rehabilitation Act” or “the Act”).3 After defendant answered plaintiff’s
complaint,4 attorney Michael F. Robertson entered an appearance on plaintiff’s
behalf.5 Mr. Robertson has continued to represent plaintiff through the remainder of
these proceedings.
The case presently is before the court on defendant’s motion for summary
judgment on all of plaintiff’s claims.6 Upon consideration of the motion, the parties’
briefs, and the evidentiary submissions, the court concludes the motion is due to be

3

See doc. no. 4. Plaintiff did not explicitly state that he was bringing his claims under the
Rehabilitation Act, but as he is suing a federal defendant, the Rehabilitation Act, not the Americans
with Disabilities Act, is the proper statute. See, e.g., Mullins v. Crowell, 228 F.3d 1305, 1313 (11th
Cir. 2000).
The Amended Complaint also mentions the Family Medical Leave Act of 1993, 29 U.S.C.
§ 2601 et seq. (“FMLA”). See doc. no. 4, Attachment 1, at 1 (“All the days missed from work were
due to my illnesses and were covered under FMLA.”). Even so, the rest of the complaint focuses
on plaintiff’s race and disability claims. See id. (“I am being discriminated against for my disability
being diabetic and for being a black male working under all white supervisors. . . . All of this has
to do with discrimination against my race and disability, in which the post Office was fully aware
that I was sick.”). Furthermore, defendant’s summary judgment motion characterizes plaintiff’s
Amended Complaint as asserting claims for race and disability discrimination, and plaintiff did not
refute that characterization in his response brief, which was filed by the attorney plaintiff
subsequently retained to represent him. See doc. no. 19 (brief in support of motion for summary
judgment), at 2 (“Although neither his complaint nor his amended complaint are particularly
succinct, in essence [plaintiff] alleges causes of action for race discrimination under Title VII, at 42
U.S.C. § 2000e-16, and for disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C.
§ 791 et seq.”) (alteration supplied); doc. no. 21 (plaintiff’s brief in response to defendant’s motion
for summary judgment).
4

See doc. no. 9 (Answer).

5

Doc. no. 11.

6

Doc. no. 18.

2

granted.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
3

materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied).
See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law”).
II. SUMMARY OF RELEVANT FACTS
Defendant’s motion for summary judgment is based upon plaintiff’s alleged
failure to exhaust his administrative remedies and to timely pursue relief at both the
administrative and district court levels. Thus, all of the facts relevant to defendant’s
motion relate to plaintiff’s pursuit of relief, not to the merits of plaintiff’s claims.
The United States Postal Service sent plaintiff a Notice of Proposed Removal
on September 19, 2008.7 The Notice served as “advance written notice that it is
proposed to remove you from the US Postal Service no sooner than 30 calendar days
from your receipt of this notice.”8 The reason for the Notice was “Improper
Conduct”: specifically, that plaintiff had been observed engaging in physical activity
that exceeded the medical restrictions for which he had been placed on medical

7

Defendant’s Exhibit 1 (September 19, 2008 Notice of Proposed Removal).

8

Id. at 1.

4

leave.9 The Notice also stated:
You and/or your representative may answer this notice within ten
(10) calendar days from your receipt of this letter, either in person or in
writing or both, before Doug Miller, Plant Manager, Huntsville P&DF
between the hours of 9:00 am to 4:00 pm Monday thorough Friday. You
and/or your representative may also furnish affidavits or other written
material to Mr. Miller within ten (10) calendar days from your receipt
of this letter. You will be afforded a reasonable amount of official time
for the above purpose if you are otherwise in a duty status. After the
expiration of the time limit for reply, all of the facts in your case,
including any reply you and/or your representative submit, will be given
full consideration before a decision is rendered. You will receive a
written decision from Mr. Miller.
You have the right to file a grievance under the
grievance/arbitration procedure set forth in Article 15 of the National
Agreement within 14 calendar days of your receipt of this notice.10
Defendant sent plaintiff a “Letter of Decision – Notice of Removal” on October
9, 2008.11 The letter noted that plaintiff and a representative had met with Doug
Miller, the Plant Manager, on September 26, 2008, to discuss the matter in
accordance with the September 19th Notice discussed in the previous paragraph.
Even after reviewing all the information submitted by plaintiff, Miller decided that
plaintiff’s actions warranted the termination of his employment, and the termination
was made effective as of October 13, 2008.12 The letter also informed plaintiff that
9

Id. at 1-2.

10

Id. at 2.

11

Defendant’s Exhibit 2 (October 9, 2008 Letter of Decision).

12

Id. at 1-2.

5

he had the right to appeal the decision to the Merit Systems Protection Board
(“MSPB”) within thirty (30) days.13 It further stated:
If you believe this action is based on discrimination, in whole or
in part, you have the option of either filing an appeal with the MSPB
that includes your claim of discrimination or filing a separate formal
EEO complaint with the Postal Service. You are, however, prohibited
from proceeding in both forums concurrently. If you do attempt to
concurrently file in both forums, where you first filed will be considered
an election to proceed first in that forum.
....
If you first file a formal EEO complaint with the Postal Service,
you will have no further right to concurrently file a claim of
discrimination to the MSPB. Your EEO complaint will be subject to
EEO regulations set forth at 29 C.F.R. Section 1614.107 and will be
processed pursuant to the applicable regulations set forth at 29 C.F.R.
1614.302-310.14
It is undisputed that a poster was displayed in the facility where plaintiff
worked, informing employees of their equal employment opportunity rights.15 The
poster stated:
If you are a Postal Service employee or an applicant for Postal
Service employment, and you feel that you have been discriminated
against because of race, color, religion, national origin, sex, age (40+),
physical or mental disability, or in retaliation for engaging in an EEOprotected activity, you must consult an EEO counselor before filing a
13

Id. at 2.

14

Id. at 3 (emphasis in original).

15

See Defendant’s Exhibit 4 (Affidavit of Laura Grummel), at 1; see also doc. no. 21 (failing
to dispute Defendant’s Proposed Fact No. 5).

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complaint of discrimination.
You must bring individual and class action complaints to the
attention of the EEO office by requesting counseling within 45 calendar
days of the date of the alleged discriminatory act; within 45 calendar
days of the date you knew or reasonably should have known about the
discrimination; or if a personnel action is involved, within 45 calendar
days of its effective date. If you bring an individual complaint and later
believe that your case has class-action implications, you may move for
class certification at any reasonable point during the processing of your
original complaint.16
The poster also listed two toll-free telephone numbers an employee could call to
request EEO counseling.17
There is no indication that plaintiff ever filed an appeal with the Merit Systems
Protection Board. Instead, plaintiff contacted an EEO counselor on August 21,
2009.18 The EEO Dispute Resolution Specialist’s Inquiry Report indicates that
plaintiff complained of discrimination on the basis of race and sex. There was no
indication that plaintiff complained of discrimination based on his disability.19 The
Dispute Resolution Specialist interviewed plaintiff on September 1, 2009, and also
interviewed Roger Hyde, who took over Doug Miller’s position as Plant Manager, on

16

Grummel Affidavit, at Exhibit 1 (italicized emphasis in original, boldface emphasis

supplied).
17

Id.

18

See doc. no. 21, at 2 (Response to Defendant’s Proposed Fact No. 3) (“The Plaintiff does
not dispute that he contacted an EEO counselor on August 21, 2009.”).
19

See Defendant’s Exhibit 3 (EEO Dispute Resolution Specialist’s Inquiry Report), at 1.

7

September 28 and November 3, 2009. The Specialist provided the following
summary of those interviews:
On November 12, 2009, the Counselee was informed that no
resolution could be reached relating to his allegation of discrimination.
The Counselee was advised of his rights to file a formal complaint of
discrimination. Subsequently, the Counselee received PS Form 2565,
EEO Complaint of Discrimination in the Postal Service and PS Form
2579-A, Notice of Right to file Individual Complaint via Signature
Confirmation 2305 0270 0001 5097 4018.20
Defendant sent plaintiff a letter on November 10, 2009, formally informing plaintiff
that his complaints of race and sex discrimination could not be resolved. The letter
stated:
Since the matters that you raised at the counseling stage have not
been resolved, you have the right to file a formal complaint within
fifteen (15) calendar days after receipt of this notice. The complaint
must be in writing, signed by you and mailed or delivered to [a specified
address].21
Plaintiff received the letter on November 12, 2009.22
Plaintiff submitted a formal complaint of discrimination to the United States
Postal Service EEO office. He dated the complaint November 10, 2009,23 but he did

20

Id. at 3.

21

Defendant’s Exhibit 5 (November 10, 2009 letter), at 1 (alteration supplied).

22

See id. at 4-5 (Return on Service); see also doc. no. 21 (failing to dispute Defendant’s
Proposed Fact No. 7).
23

Defendant’s Exhibit 6.

8

not mail it until December 1, 2009.24 Plaintiff checked the boxes indicating that he
was complaining of discrimination based on race and disability, specifically, an onthe-job injury.25 He also stated that the date on which the alleged discrimination took
place was June 15, 2008.26 The narrative statement attached to plaintiff’s complaint
stated:
I am an African American male who was given improper
paperwork (CA-1) deliberately to fill out. By all white supervisors
named previously above. [sic] After I filled out the CA-1 which should
have been a CA-2. They proceeded to collect statements to back-up
their claim for a CA-1. [sic] All of which was pointed out to them as
being the wrong paperwork by Workmans’ Comp, that it should have
been a CA-2 filled out for this incident. The day I went to the doctor
they informed the OIG that I was totally disabled from work. Even
though I presented all of the doctors [sic] paperwork that refutes all
allegations that they gave OIG. The Post Office terminated me even
after receiving an approval appeal from the Office of Workman’s’ [sic]
Comp showing how their gross negligence gave me a complete reversal
of their decision. I believe they terminated me purposely based on the
color of my skin.27
Defendant received the complaint on December 9, 2009.28
The EEO Office dismissed plaintiff’s formal EEO complaint on December 21,

24

See doc. no. 21, at 2 (Response to Defendant’s Proposed Fact No. 8) (failing to dispute
anything but the effective date of plaintiff’s termination).
25

Defendant’s exhibit 6, at 1.

26

Id.

27

Id. at 2 (alterations supplied).

28

Id. at 3.

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2009.29 The letter notifying plaintiff of the dismissal stated that the decision was
made because plaintiff failed to file a formal complaint within fifteen days of
receiving notice of his right to file the complaint by the EEO counselor,30 and because
plaintiff failed to initiate contact with an EEO counselor within forty-five days of the
alleged discriminatory actions.31 The letter also informed plaintiff of his right to
appeal the decision to the United States Equal Employment Opportunity Commission
(“EEOC”) within thirty days of his receipt of notice of final agency action, or to file
a civil action in a United States District Court within ninety days of receiving notice
of final agency action.32
Plaintiff timely appealed the administrative decision to the EEOC Office of
Federal Operations,33 and the EEOC affirmed the dismissal of his administrative
complaint by written decision dated April 5, 2011.34 The EEOC’s appeal decision
informed plaintiff that he had the right to request reconsideration within thirty days

29

See Defendant’s Exhibit 7.

30

Id. at 1-2.

31

Id. at 3-4.

32

Id. at 4-5.

33

See Defendant’s Exhibit 8 (April 5, 2011 decision of the EEOC), at 1 (“Complainant filed
a timely appeal with this Commission from the Agency’s decision dated December 21, 2009,
dismissing his complaint of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 792 et seq.”).
34

Defendant’s Exhibit 8.

10

of receiving the decision, and the right to right to file a civil action in a United States
District Court within ninety days of receiving the decision.35
During some of the same time period when the appeal from his termination
decision was being processed, plaintiff also pursued a worker’s compensation claim
for an on-the-job injury he received in June of 2008. Plaintiff’s claim initially was
denied, and he filed an Appeal Request Form, requesting an appeal by oral hearing,
on August 6, 2008.36 Plaintiff subsequently received a letter from the United States
Department of Labor Employment Standards Administration Office of Workers’
Comp Programs.37 The letter does not bear an official date, but it appears as though
the date May 14, 2009 has been rubber-stamped onto the letter.38 The letter stated
that a hearing had been held on February 18, 2009, after which it was decided that the
decision to deny plaintiff’s worker’s compensation benefits should be reversed. The
letter referenced an attached hearing decision, but plaintiff did not make that decision
a part of this court’s record.39
Plaintiff also received a Notification of Personnel Action that had been

35

Id. at 2-3.

36

Plaintiff’s Exhibit 1 (Appeal Request Form).

37

Plaintiff’s Exhibit 3.

38

Id. at 1.

39

See id.

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processed by the United States Postal Service on May 19, 2009.40 The document bore
plaintiff’s name and personal information, and in the top left-hand corner, it stated an
“effective date” of May 13, 2009.41 At the bottom left of the page, under the heading
“Nature of Personnel Action,” the description of the personnel action was
“removal.”42 There also was an indication on the form that plaintiff’s “last day in pay
status” was October 20, 2008.43
III. DISCUSSION
Defendant asserts that summary judgment is due to be granted on all of
plaintiff’s claims because plaintiff failed to fully exhaust his administrative remedies
prior to filing suit. “A federal employee must pursue and exhaust [his] administrative
remedies as a jurisdictional prerequisite to filing a Title VII action.” Crawford v.
Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999) (citing Brown v. General Services
Administration, 425 U.S. 820, 832-33 (1976)) (alteration supplied).
Before an aggrieved [federal] employee may seek relief through
the filing of a civil action in federal court, [Title VII] requires that he or
she must first seek relief in the agency that has allegedly engaged in
discrimination. Brown v. GSA, 425 U.S. at 832 . . . . This requirement
is not a technicality; “[r]ather, it is part and parcel of the congressional
design to vest in the federal agencies and officials engaged in hiring and
40

Plaintiff’s Exhibit 4.

41

Id. at 1.

42

Id.

43

Id.

12

promoting personnel ‘primary responsibility’ for maintaining
nondiscrimination in employment.” Kizas v. Webster, 707 F.2d 524,
544 (D.C. Cir. 1983).
Grier v. Secretary of the Army, 799 F.2d 721, 724 (11th Cir. 1986) (alterations in
original).44 Similarly, “[a] plaintiff asserting a private right of action under the
Rehabilitation Act must satisfy the exhaustion of administrative remedies requirement
in the manner prescribed by Title VII.” Tarmas v. Secretary of Navy, 433 F. App’x
754, 759 (11th Cir. 2011) (citing 42 U.S.C. §§ 2000e–5, 2000e–16; 29 U.S.C. § 794a;
Doe v. Garrett, 903 F.2d 1455, 1459–60 (11th Cir.1990)) (alteration supplied).
Plaintiff’s responsibilities with regard to pursuing a complaint of
discrimination are set forth in the Code of Federal Regulations.45
Aggrieved persons who believe they have been discriminated
against on the basis of race, color, religion, sex, national origin, age,
disability, or genetic information must consult a Counselor prior to
filing a complaint in order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a
44

The Eleventh Circuit has also stated, in the context of claims asserted by non-federal
employees, that “[t]he purpose of this exhaustion requirement ‘is that the [EEOC] 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.’” Gregory v. Georgia Dept. of
Human Resources, 355 F.3d 1277, 1279 (11th Cir. 2004) (quoting Evans v. U.S. Pipe & Foundry
Co., 696 F.2d 925, 929 (11th Cir. 1983)) (first alteration supplied, second alteration in original).
45

Plaintiff does not dispute this point. See doc. no. 21 (plaintiff’s brief), at 5-6 (“The
Plaintiff does not dispute that administrative remedies are to be exhausted as a prerequisite to filing
a federal court action for discrimination. The Plaintiff also does not dispute that the requisite
procedures for exhausting administrative remedies in the present case are found in the Code of
Federal Regulations.”) (emphasis in original).

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Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days
of the effective date of the action.
(2) The agency or the Commission shall extend the 45–day
time limit in paragraph (a)(1) of this section when the individual
shows that he or she was not notified of the time limits and was
not otherwise aware of them, that he or she did not know and
reasonably should not have been known [sic] that the
discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond
his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or
the Commission.
29 C.F.R. § 1614.105(a) (alteration supplied). See also Shiver v. Chertoff, 549 F.3d
1342, 1344 (11th Cir. 2008) (“Under . . . the Rehabilitation Act, federal employees
are required to initiate administrative review of any alleged discriminatory or
retaliatory conduct with the appropriate agency within 45 days of the alleged
discriminatory act.”) (citing, inter alia, 29 C.F.R. § 1614.105(a)(1)). “Generally,
when the claimant does not initiate contact within the 45-day charging period, the
claim is barred for failure to exhaust administrative remedies.” Shiver, 549 F.3d at
1344 (citing Brown v. Snow, 440 F.3d 1259, 1264-65 (11th Cir. 2006)).
The “Letter of Decision – Notice of Removal” defendant sent plaintiff on
October 9, 2008 stated that the termination of plaintiff’s employment was effective
October 13, 2008. There also is evidence that claimant was aware, or should have

14

been aware, of the 45-day time limit for contacting an EEO counselor, due to the
posters posted in his workplace. Despite that knowledge, plaintiff did not contact an
EEO counselor until August 21, 2009 — much longer than 45 days after October 13,
2008.
In an effort to mitigate his failure to timely contact an EEO counselor, plaintiff
disputes that October 13, 2008 was the effective date of his termination. Plaintiff
claims that he was confused by the “myriad paperwork” he received as a result of
both his termination decision and his worker’s compensation claim.46 When plaintiff
received the May 19, 2009 Notification of Personnel Action from the Postal Service,
and saw that the “effective date” of the document was May 13, 2009, he allegedly
came to the conclusion that May 13, 2009 was the “effective date” of his termination,
especially considering that the form listed “removal” as the personnel action being
taken. “Accordingly, the plaintiff moved forward with his worker’s compensation
claim, and his claims for discrimination, under the belief that his date of termination
was May 13, 2009, thus further believing that he was acting in a timely manner.”47
Even assuming the reasonableness of plaintiff’s belief that the effective date
of his termination was May 13, 2009, and that such a belief could effectively toll his

46

See doc. no. 21, at 7.

47

Id. at 9.

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deadline for contacting an EEO counselor,48 and that plaintiff’s initial complaint with
the EEO counselor fairly encompassed his claims for disability discrimination,
plaintiff still did not timely pursue his administrative remedies. Forty-five days from
May13, 2009 was July 3, 2009, and plaintiff did not contact the EEO counselor until
August 21, 2009. Plaintiff has offered no explanation for that delay, and no argument
for why he should have been allowed additional time.
IV. CONCLUSION AND ORDER
Because plaintiff failed to contact an EEO counselor within 45 days of the
effective date of his termination, he did not exhaust all of his administrative
remedies.49 Because plaintiff failed to exhaust all of his administrative remedies, he
cannot proceed with case in federal court.

48

It is questionable whether any of these assumptions actually would hold up. By the time
plaintiff received the Notification of Personnel Action form — which he acknowledges was created
on May 19, 2009 — he already was several months overdue to contact an EEO counselor. There is
no indication that defendant did anything else to confuse plaintiff about the effective date of his
termination prior to the expiration of his 45-day deadline. Moreover, the Notification of Personnel
Action form also contains a statement that plaintiff’s “last day in pay status” was October 20, 2008,
which is consistent with the effective date of his termination being October 13, 2008. Finally, when
plaintiff initially contacted an EEO counselor to complain of discrimination on August 21, 2009, the
Dispute Resolution Specialist who accepted his complaint indicated that the complaint was based
upon race and sex discrimination, not disability discrimination.
49

Defendant also argued that plaintiff failed to exhaust his administrative remedies because
he did not submit his formal EEO complaint to the agency within 15 days of being advised of his
right to do so, and that plaintiff failed to file a complaint in federal district court within 90 days of
receiving notice of the agency’s final decision on his administrative complaint. The court need not
consider those arguments, however, because summary judgment is due to be granted on the
independent grounds discussed herein.

16

Accordingly, defendant’s motion for summary judgment is GRANTED, and all
of plaintiff’s claims are DISMISSED with prejudice. Costs are taxed to plaintiff. The
Clerk is directed to close this file.
DONE this 8th day of July, 2013.
______________________________
United States District Judge

17