Troupe v. Brennan
Filing
62
MEMORANDUM OPINION: Defendant's motion for summary judgment is GRANTED as more fully set out in therein. Signed by Judge Liles C Burke on 3/31/2020. (AHI )
FILED
2020 Mar-31 PM 04:27
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
MEAGAN A. TROUPE,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster
General, U.S. Postal Service,
Defendant.
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Case No.: 5:15-cv-2340-LCB
MEMORANDUM OPINION
Plaintiff Meagan A. Troupe1 brought this action against Defendant Megan J.
Brennan, Postmaster General of the United States Postal Service, under Title VII for
alleged discriminatory and retaliatory conduct she experienced as a postal employee.
Plaintiff began working at the Post Office in Toney, Alabama in 2014. During her
tenure at the Post Office, Plaintiff was terminated twice but reinstated each time
before she was ultimately fired in July 2016. (Doc. 26 at 7). Plaintiff maintains that
she was fired and subjected to other negative consequences because of race and color
discrimination, as well as retaliation for filing grievances and EEO claims against
her supervisor Linda Smith. (Id. at 7–9). She also claims that she experienced a
hostile work environment while an employee. (Id. at 4). Defendant moves for
1
Since filing this lawsuit, Plaintiff has married; her name is now Meagan Alexander. (Doc. 46–2
at 4).
1
summary judgment on all of Plaintiff’s claims. For the reasons stated below, the
Court finds that Defendant’s motion is granted.
I.
BACKGROUND
Plaintiff is an African American woman. (Doc. 26 at 1). She began working
at the Post Office in Toney, Alabama on June 21, 2014, where she was classified as
a postal support employee (PSE). (Id. at 3; Doc. 46–1 at 1). Plaintiff would typically
arrive at the Post Office in the morning and work for as long as it took her to
complete her duties for the day, typically three or four hours. (Doc. 46–2 at 31). In
her position, she primarily worked with Linda Smith, the postmaster of the Toney
office and Plaintiff’s immediate supervisor. (Id. at 38). Plaintiff also interacted with
Stacey Lee, a part-time flex (PTF) employee. Ms. Smith is black, and Ms. Lee is
white. (Doc. 50 at 2, 15).
Within the first two weeks of her employment, Plaintiff was sent to window
training, a week-long course that employees took to work the front counter at the
post office. (Doc. 46–2 at 39, 43). Plaintiff was initially told that window training
was unnecessary for her position. (Id. at 42). She had the training in Madison,
Alabama, and subsequently took an exam to determine if she was qualified to handle
window service. (Id. at 40). Plaintiff was the only employee from the Toney Post
Office that failed the exam. (Id. at 40–41). After finding out that she had failed,
Plaintiff told Ms. Smith about the results and asked what the next steps were
2
regarding her job. (Id. at 43). Ms. Smith told her “she would get back with [Plaintiff]
and let [her] know.” (Id.).
Plaintiff was soon told by Tasha Salem, an employee from Human Resources,
that window training was required for her job and, having failed the exam, she would
need to turn in her badge and keys. (Id. at 44). Following the call with Salem,
Plaintiff received a letter of removal. (Id.). In response, Plaintiff filed a grievance
through her union steward Sylvia Crane. (Id. at 45). A few months later, once it had
been determined through the grievance process that window training was not
required for PSEs, Plaintiff was reinstated in her position and offered $600 in
compensation. (Id.). Plaintiff rejected the offer, believing $600 to be too little to
compensate her for the humiliation she had suffered. (Id. at 46).
Plaintiff claims that this first termination was based on her race. (Id. at 47).
As evidence for her claim, Plaintiff notes only that Smith was a “darker shade” of
black than Plaintiff. (Id.). Plaintiff believes that it was the “postal service as a
whole,” not Smith alone, that discriminated against her regarding this termination.
(Id.). Before failing the exam, however, Plaintiff’s relationship with Smith had been
“cordial” and a “[t]ypical management-employee relationship,” and Smith said
nothing “negative” to her about failing the test after her reinstatement. (Id. at 52).
Plaintiff ultimately filed an EEO Complaint regarding this termination against
3
Derrick King, Manager of Post Office Operations, and Smith for discriminatory
firing on October 22, 2014. (Doc. 49–2 at 2).
On July 29, 2014, after she had returned to work, Plaintiff had an altercation
with employee Stacey Lee. (Id. at 53; Doc. 46–1 at 3). Lee began arguing with her
because she claimed Plaintiff had parked in her parking space. (Doc. 46–2 at 53).
Ms. Smith broke up the altercation and agreed it was best that Lee go home for the
day. (Doc. 46–1 at 3). Plaintiff believes Ms. Lee confronted her over the parking
space because she was black. (Id. at 57). Plaintiff had repeated negative interactions
with Ms. Lee. (Id. at 58). Ms. Lee would “micromanage” Plaintiff and critique the
way that she handled certain tasks. (Id. at 59). Ms. Lee also ignored Plaintiff because
she felt “threatened and intimidated” by her. (Id. at 64).
Plaintiff’s issues with Ms. Smith continued. On October 27, 2014, Plaintiff
became aware of an opening for a permanent clerk position. (Id. at 71). While
Plaintiff received the notification on the 27th, the deadline for applying for the
position had been three days earlier. (Doc. 46–2 at 72).
Following this event, Plaintiff was injured at work on October 31, 2014. (Doc.
26 at 5). Plaintiff was performing her “normal work duties” when she lifted a box
and felt a “pop in [her] back.” (Doc. 46–2 at 76). Plaintiff continued to work that
day, but when she woke the next morning she could not move her “lower
extremities.” (Id.). She called in to work and texted Smith to let her know what
4
happened. (Id. at 76–77). Plaintiff visited the doctor and was placed on sick leave
for about a month. (Id. at 78). After her sick leave ran out, she was placed on leave
without pay status. (Id.).
On December 9, 2014, Plaintiff received a disciplinary action form signed by
Smith. (Id. at 79). The form indicated that Plaintiff was being disciplined for working
in an unsafe manner when she injured herself. (Id. at 78). Plaintiff filed another
grievance through Crane, her union representative, over the disciplinary action, and
Crane called Smith, with Plaintiff on the phone, and “did all of the talking.” (Id. at
80). The disciplinary action was later taken off Plaintiff’s record. (Id. at 79).
While Plaintiff was on sick leave, a conversion opportunity arose and Plaintiff
attempted to secure a promotion. (Id. at 83). Plaintiff ranked the jobs that she wanted
in order of least to most desirable, indicating that she wanted to be relocated to either
the Courtland or Tanner post office locations. (Id. at 83–87). Plaintiff did not receive
information about these new conversion opportunities until November 14, 2014,
after the deadline to apply for the new positions. (Id. at 83).
Plaintiff applied for worker’s compensation after she was injured. (Doc. 46–
2 at 103). Her claim was denied on December 23, 2014. (Doc. 26 at 5). Plaintiff
received a disciplinary action from Smith on January 28, 2015, for failing to
maintain a regular work schedule after her injury. (Doc. 26 at 5). Plaintiff admitted
that she had been absent from work for a couple of weeks and she was out of leave.
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(Doc. 46–2 at 113). She did not notify Smith directly that she was going to be absent
but called in “through an automated system.” (Id.). Before the action was issued,
Smith conducted an investigative interview with Plaintiff over the phone with her
union representative on the line. (Id. at 115). This disciplinary action was later
rescinded. (Id.).
Once Plaintiff returned to work following her injury on February 27, 2015,
Plaintiff was asked to sign a PS Form 2499 indicating that her duties would be
modified because she hurt herself. (Id. at 105–6). She was asked to sign another 2499
Form that required her to perform more than sedentary work. (Id.) Her doctor limited
her to sedentary work, but she perceived that the restrictions on the form were no
different than the work she was doing before she was injured. (Id. at 106).
After experiencing missing more days of work, Plaintiff was terminated for a
second time on April 27, 2015. (Id. at 115). Plaintiff was notified of her termination
after receiving a letter of removal in the mail. (Doc. 46–2 at 116). Once Plaintiff was
notified she was terminated, she contacted Sylvia Crane, her union representative,
who filed another grievance on Plaintiff’s behalf. (Id. at 117). Plaintiff also filed an
EEO Complaint of Discrimination against Smith for race discrimination and
retaliatory firing on August 6, 2015. (Doc. 49–13 at 3). Through the grievance
process, Plaintiff asked for a work assignment at any post office within twenty miles
other than the office in Toney. (Doc. 46–2 at 118). Although she was not relocated
6
through the grievance process, Plaintiff was reinstated in her position in Toney on
June 2, 2015. (Id. at 119–20). Plaintiff was no longer under any medical restrictions
from her previous injury. (Id. at 119).
On the morning of May 20, 2016, several months after Plaintiff had been back
in her position, Plaintiff was approached by a man in the post-office parking lot. (Id.
at 120). It was 4:00 a.m. and still dark outside, and the lighting was poor outside of
the building, but once she was out of her car Plaintiff could see that the man was
coming towards her in a “fast-paced manner.” (Id. at 121–22). Plaintiff jumped in
her car, drove away, and called the police. (Id.). The incident frightened Plaintiff,
and she requested that Smith allow another person to open the store office with her
in the morning. (Id. at 122). Smith denied this request, telling Plaintiff that “it was
not within the budget.” (Id.).
Because Ms. Smith failed to make this accommodation, Plaintiff did not feel
comfortable coming back to work and her hours were reduced. (Id. at 127). Plaintiff
worked sporadically after this incident but did not entirely attribute her absence to
this event. (Id. at 129). She had received window training again and believed that
additional hours should have been scheduled because of her new abilities. (Id.).
Nevertheless, Plaintiff was terminated a third time on July 27, 2016 for failing
“to maintain a regular work schedule.” (Doc. 26 at 7). That morning, Plaintiff was
handed her letter of removal and told “we don’t need you.” (Id. at 130). Plaintiff
7
reached out to her new union representative but was told that because she was in a
probationary period there was nothing that could be done to get her reinstated. (Id.
at 131–32). However, her representative did file two grievances on her behalf to
release her final paychecks. (Id. at 133–34).
Plaintiff maintains that she was subjected to these various negative
experiences while an employee at the Toney Post Office because of illegal race and
color discrimination under Title VII of the Civil Rights Act. (Doc. 26 at 7–8). She
also claims that her working relationship with fellow employees like Ms. Smith and
Ms. Lee created a hostile work environment. Plaintiff originally filed a complaint
against Defendant on December 28, 2015. (Doc. 1). She refiled an amended
complaint on September 21, 2017. (Doc. 26). Defendant moved for summary
judgment on all of Plaintiff’s claims on April 11, 2019. (Doc. 46).
II.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary
judgment bears the initial responsibility of informing the court of the basis for its
motion and identifying those portions of the pleadings or filings which it believes
8
demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the
moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and—by pointing to affidavits, or depositions, answers to
interrogatories, and/or admissions on file—designate specific facts showing that
there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are
irrelevant.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(“Anderson”). All reasonable doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. For Bibb Cty.,
495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.
When faced with a “properly supported motion for summary judgment, [the
non-moving party] must come forward with specific factual evidence, presenting
more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th
Cir. 1997). As Anderson teaches, under Rule 56(c) a plaintiff may not simply rest on
her allegations made in the complaint; instead, as the party bearing the burden of
proof at trial, she must come forward with at least some evidence to support each
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element essential to her case at trial. See Anderson, 477 U.S. at 252. “[A] party
opposing a properly supported motion for summary judgment ‘may not rest upon the
mere allegations or denials of [her] pleading, but . . . must set forth specific facts
showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
III.
DISCUSSION
Defendant moves for summary judgment against Plaintiff on several grounds.
First, Defendant argues that Plaintiff cannot relitigate claims that were already
handled by the union grievance process, pursuant to 5 U.S.C. § 7121(d) and 29
C.F.R. § 1614.301(a), and thus Plaintiff could not raise her two dismissals and letter
of warning2 through a statutory procedure. (Doc. 47 at 12). Plaintiff argues that she
is entitled to file a grievance and EEO complaint for the same claims of
discrimination. (Doc. 50 at 28).
5 U.S.C. § 7121(d) governs grievance procedures for government employees.
Pursuant to this section, “[a]n employee shall be deemed to have exercised his option
under this subsection to raise the matter under either a statutory procedure or the
negotiated procedure at such time as the employee timely initiates an action under
the applicable statutory procedure or timely files a grievance in writing.” Notably,
2
Defendant also argues that Plaintiff’s grievance about her letter of warning includes complaints
about modified work assignments and worker’s compensation. (Doc. 47 at 12). However, having
examined this grievance, the Court finds that the modified work assignment and worker’s
compensation issues fall outside the scope of this grievance. (Doc. 46-5).
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an employee can raise an issue under a statutory procedure or a grievance procedure
but cannot do both. Id. See also 29 C.F.R. § 1614.301. Accordingly, a federal
employee who “alleges a discriminatory personnel practice ‘must elect to pursue his
claim under either a statutory procedure or a union assisted grievance procedure; he
cannot pursue both avenues, and his election is irrevocable.” Fernandez v. Chertoff,
471 F.3d 45, 52 (2d. Cir. 2002) (internal citations omitted). However, a party that
chooses to grieve a complaint can appeal the decision to the EEOC. Id. at 54. After
the EEOC has issued a decision, then a plaintiff can file suit within 180 days in
district court. Id.
Plaintiff elected to raise her claims concerning the first two dismissals and her
letter of warning through the grievance process, and that process resolved those
issues. Plaintiff was allowed to return to work, and the letter of warning was removed
from her record. (See Doc. 50). While Plaintiff filed EEO complaints, they were not
filed to contest the outcome of the grievance procedure but to reiterate that Plaintiff
felt either discriminated or retaliated against. Nothing in the record suggests that
Plaintiff appealed the outcome of the grievance procedure to the EEOC. Thus,
because Plaintiff has not exhausted her administrative remedies, she is barred from
raising those same issues here. Fernandez, 471 F.3d at 52.
A. Race and Color Discrimination Claims
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Plaintiff claims that her final removal was based on race and color
discrimination. (Doc. 26 at 7). Plaintiff also claims that various other negative
interactions she experienced were motivated by her race or color, including Smith’s
handling of the parking-space disputes. (Id. at 4). Defendant argues that she has
failed to successfully prove elements of discriminatory treatment at the summary
judgment stage. (Doc. 47 at 15).
Employers are prohibited from discriminating against their employees on the
basis of race or color. 42 U.S.C. § 2000e-2(a)(1). A party attempting to prove that
she was subject to disparate treatment can establish her case with direct or
circumstantial evidence. Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323
(11th Cir. 2006). Courts apply the McDonnell Douglas framework to evaluate claims
based on circumstantial evidence. Id. See also McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). To make a prima facie discrimination case under this
framework, a party must show that: “(1) she is a member of a protected class; (2)
she was subjected to an adverse employment action; (3) her employer treated
similarly situated employees outside of her protected class more favorably than she
was treated; and (4) she was qualified to do the job.” Id. (citing E.E.O.C. v. Joe’s
Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000)). If a plaintiff satisfies the
elements of a prima facie case, the defendant “has the burden of producing
‘legitimate, non-discriminatory reasons for its employment action.’” Joe’s Stone
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Crab, 220 F.3d at 1286 (quoting Holifield v. Reno, 115 F.3d 1364, 1368 (11th Cir.
1999)). Once the defendant meets this burden, the plaintiff “has the ultimate burden
of proving the reason to be pretext for unlawful discrimination.” Id.
To demonstrate an adverse employment action, there must be “serious and
material change in the terms, conditions, or privileges of employment.” Holland v.
Gee, 677 F.3d 1047, 1057 (11th Cir. 2012) (quoting Davis v. Town of Lake Park,
Fla., 245 F.3d 1232 (11th Cir. 2001). An adverse employment action is a “significant
change in employment status such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities or a decision causing a significant change
in benefits.” Webb-Edwards v. Orange Cty. Sherriff’s Office, 525 F.3d 1013, 1031
(11th Cir. 2008) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998));
see also Kidd v. Mando, 731 F.3d 1196, 1203 (11th Cir. 2013) (holding that in the
case of demotion, plaintiff must show “the change in responsibilities was ‘so
substantial and material that it [] indeed alter[ed] the “terms, conditions, or
privileges” of [her] employment.”) (alteration in original) (citing Davis, 245 F.3d at
1245).
For a plaintiff to show that she has been discriminated against because of a
protected characteristic, she can introduce evidence that she was treated differently
than a proffered comparator, a person “similarly situated in all material respects.”
Lewis v. City of Union City, Ga., 918 F.3d 1213, 1218 (11th Cir. 2019) (en banc).
13
While there is no set formula to determine who may be considered a proper
comparator, the Court will consider whether the similarly situated comparator has
“engaged in the same basic conduct (or misconduct) as the plaintiff,” id. at 1227
(citing Mitchell v. Toledo Hosp., 964 F.2d 577, 580, 583 (6th Cir. 1992); has “been
subject to the same employment policy, guideline, or rule as the plaintiff,” id. (citing
Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999); has
ordinarily “been under the jurisdiction of the same supervisor as the plaintiff,” id. at
1227–28 (citing Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989)); and has
“share[d] the plaintiff’s employment or disciplinary history,” id. at 1228 (citing
Tennial v. United Parcel Serv., Inc., 840 F.3d 292, 304 (6th Cir. 2016) at 1228–29.
Ultimately, “a plaintiff and her comparator[] ‘must be sufficiently similar, in an
objective sense, that they cannot reasonably be distinguished.’” Id. (quoting Young
v. United Parcel Service, Inc., 575 U.S. 206, 209 (2015)).
However, if a plaintiff does not have a comparator for her claim, it is not
automatically fatal to a prima facie case. A prima facie case can also be made by
showing a “‘convincing mosaic’ of circumstantial evidence that warrants an
inference of intentional discrimination.” Id. at 1220, n.6 (citing Smith v. LockheedMartin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011); see also Alvarez v. Royal Atl.
Dev., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (“The methods of presenting a
prima facie case are flexible and depend on the particular situation.”)
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1. Plaintiff’s Non-Removal Claims
Defendant contends that summary judgment is appropriate for Plaintiff’s nonremoval discrimination claims because the allegedly discriminatory actions do not
rise to the level of an adverse employment action. (Doc. 47 at 17). Plaintiff’ nonremoval claims amount to seven incidents she alleges were motivated by race or
color discrimination; specifically, Plaintiff alleges that: (1) “she was harassed by
coworkers about where she parked her car; (2) she was denied the opportunity to
retake the window training class and certification exam while she was still ineligible
to retest; (3) she did not receive mail regarding conversion opportunities until after
the selection period closed (but admits receiving same packet by email and
submitting selections); (4) she was issued letters of warnings for failing to maintain
a regular work schedule; (5) she was denied Worker’s Compensation by the
Department of Labor and a modified duty assignment; (6) her hours were cut [on]
May 20, 2016; and (7) that her Continuance of Pay was not restored.” (Doc. 47 at
17–18).
Resolving all reasonable doubts in Plaintiff’s favor, none of Plaintiff’s claims
of alleged discriminatory treatment can survive summary judgment. When
reviewing the evidence in this case, no reasonable factfinder could conclude that
Plaintiff was subject to these actions because of her race or color. Considering
Plaintiff’s above allegations, she has not presented evidence that the disputes over
15
parking spaces or letters of warning altered the “terms, conditions, or privileges” of
her employment. Holland, 677 F.3d at 1057; see also Chapman v. U.S. Postal
Service, 442 F. App’x. 480, 485 (11th Cir. 2011) (holding that a letter of warning
was not an adverse employment action where Plaintiff had not adequately alleged
that it affected the terms, conditions, or privileges of her employment). While the
remaining allegations could constitute adverse employment actions, Plaintiff must
still demonstrate her employer was had discriminatory reasons for its actions.
As Plaintiff has provided no direct evidence of race or color discrimination,
her case depends on circumstantial evidence. While Plaintiff could attempt to
establish a prima facie discrimination case with a comparator, she has proffered no
valid comparator to show that she was treated differently than someone “similarly
situated in all material respects.” See Lewis, 918 F.3d at 1228. Without direct
evidence or a comparator, Plaintiff can make a prima facie case of discrimination
only by presenting the “convincing mosaic of circumstantial evidence” warranting
an inference of intentional discrimination. See id. at 1220 n.6. No reasonable
factfinder, however, could conclude that Plaintiff has shown such a “convincing
mosaic” of circumstantial evidence. Id. at 1220 n.6. Smith’s comments about
Plaintiff’s skin complexion and her comment to Plaintiff that “we are in Toney,
Alabama,” even taken together, do not aggregate to the “convincing mosaic of
16
circumstantial evidence” required to support a reasoned inference of discriminatory
intent.
Nor has Plaintiff presented any circumstantial evidence against any other
superiors to create an inference of race or color discrimination. Indeed, Plaintiff’s
only basis for believing that Mundi discriminated against her was that Mundi “just
knew that [her] race was black.” Without more circumstantial evidence, these claims
cannot succeed. (Doc. 46–2 at 110) Accordingly, Defendant’s motion for summary
judgment as to Plaintiff’s Race and Color Discrimination claims is GRANTED.
2. Plaintiff’s Removal Claim
Defendant does not contest that Plaintiff’s final removal was an adverse
employment action. Instead, Defendant contends that summary judgment is
appropriate on Plaintiff’s removal claim because: (1) she has no evidence of
discrimination to make a prima facie case; and (2) Defendant had a “legitimate, nondiscriminatory reason” for firing her. (Doc. 47 at 21–24).
Plaintiff contends that her final dismissal was motivated by color
discrimination. Plaintiff was distressed after encountering a suspicious man at the
post office, so she returned to work sporadically after the incident. She was
terminated for the last time on July 27, 2016, for failing to maintain a regular work
schedule. (Doc. 46–1 at 11). She believes Ms. Smith fired her in part because of her
color. (Doc. 46–2 at 131).
17
As with her related non-termination claims, Plaintiff cannot establish a prima
facie discrimination case. In support of her claim, Plaintiff asserts Smith targeted her
for her color because she remarked “[Plaintiff] had a very even skin tone” and “asked
why [Plaintiff] wore makeup to work.” (Id. at 58). Plaintiff presents neither direct
evidence, a comparator, nor the requisite “convincing mosaic of circumstantial
evidence” to make out a prima facie case of discrimination. Accordingly, Plaintiff
has not proven a prima facie case regarding her last termination.
As Plaintiff as not successfully proven a prima facie case regarding any of her
termination claims, it is unnecessary to discuss whether Defendant’s reasons for her
terminations is legitimate or pretext for discrimination. Therefore, Defendant’s
motion to dismiss Plaintiff’s Race and Color Discrimination claims is GRANTED. 3
B. Retaliation Claims
Defendant moves for summary judgment on Plaintiff’s retaliation claims on
the grounds that (1) some do not constitute an adverse employment action; (2) there
is no causal connection between an adverse action and Plaintiff’s EEO activity; or
(3) Defendant had a legitimate, non-discriminatory reason for any adverse
employment action. (Doc. 47 at 30).
3
The Court notes that Plaintiff pleaded a separate count of wrongful termination. However, as
Plaintiff tied her wrongful termination claim intrinsically with discrimination, any remaining
claim is resolved as Plaintiff’s race and color discrimination claims cannot survive summary
judgment.
18
To establish a prima facie retaliation case under Title VII, a party must show
“(1) statutorily protected expression, (2) adverse employment action, and (3) a
causal link between the protected expression and the adverse action.” Taylor v.
Runyon, 175 F.3d 861, 868 (11th Cir. 1999) (internal quotation marks omitted)
(quoting Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)). If the
plaintiff established a prima facie case, the defendant “has an opportunity to
articulate a legitimate, non-retaliatory reason for the challenged employment
action.” Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
Once a defendant meets this burden, the plaintiff has the “ultimate burden” of
proving that the defendant’s reason is pretext for “prohibited, retaliatory conduct.”
Id.
An employee’s complaint about discrimination is protected expression “if the
employee could ‘reasonably form a good faith belief that the alleged discrimination
existed.’” Jefferson v. Sewon America, Inc., 891 F.3d 911, 924 (11th Cir. 2018)
(quoting Taylor, 175 F.3d at 869). An adverse action in a retaliation claim refers not
only to “ultimate employment decisions” such as termination, but “actions which
fall short of ultimate employment decisions. Wideman, 141 F.3d at 1456. These
actions include demotions or failing to promote an employee. Id. (internal citations
omitted).
19
A causal connection can be established if “the protected activity and the
adverse action are not completely unrelated.” Wideman v. Wal-Mart Stores, Inc., 141
F.3d 1453, 1457 (11th Cir. 1998) (quoting Meeks v. Comput. Assocs. Intern., 15 F.3d
1013, 1021 (11th Cir. 1994)). An alleged victim of retaliation must prove “[the]
protected activity was a but-for cause of the alleged adverse action by the employer.”
Trask v. Sec’y, Dept. of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016)
(quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013)). Stated
plainly, a plaintiff must show “that had she not complained, she would not have been
[subject to an adverse employment action].” Jefferson, 891 F.3d at 924; see also
Thomas v. Cooper Lighting, Inc. 506 F.3d 1361, 1364 (11th Cir. 2007) (“[M]ere
temporal proximity, without more, must be ‘very close’… A three to four month
disparity between the statutorily protected expression and adverse employment
action is not enough.”) (internal citations omitted).
1. Plaintiff’s Non-Termination Claims
As she argued in response to Plaintiff’s discriminatory treatment claims,
Defendant argues that Plaintiff cannot succeed on many of her retaliation claims
because they do not constitute adverse employment actions. (Doc. 47 at 27). Short
of her three terminations, Plaintiff claims that many negative actions she experienced
were in retaliation for filing grievances and EEO complaints alleging race and color
discrimination. (See Doc. 50 at 4). These alleged adverse actions include: (1) failing
20
to send Plaintiff back for window training and retesting; (2) failing to send an
opportunity for conversion in a timely manner; (3) and being denied worker’s
compensation for her previous injury. 4
Plaintiff consistently filed grievances and EEO complaints while she was a
Postal Service employee. (See Doc. 46–2). Because of the overlap that exists
between these grievances and EEO filings, Plaintiff contends “that there is a close
temporal proximity between all the events between June 27, 2014 and July 27,
2016.” (Doc. 50 at 37). Assuming, arguendo, that her accusations indeed are adverse
actions and that the temporal connection is satisfied, Plaintiff still cannot survive
summary judgment as to these claims: Defendant has met its burden of showing a
“legitimate, non-retaliatory reason” for these allegations. Pennington, 261 F.3d at
1266. Smith provided that Plaintiff was not sent back for window training because
she was ineligible to take it within six months of failing the test and the office needed
“to receive higher approval” before sending clerks to window training if it was not
a requirement. (Doc. 46–1 at 4). Regarding Plaintiff’s conversion opportunity, Ms.
Smith offers evidence that she sent Plaintiff the information about the opportunity
4
Plaintiff asserts that she did not receive an announcement for a new job opportunity in October
2014 that coworker Celeste was considered for. (Doc. 46–2 at 72). However, Plaintiff first
admitted she did not have direct knowledge Ms. Smith mailed the announcement and later
evidence determined Ms. Smith did not mail this announcement. (Id.; Doc. 46–3 at 4). Because
this claim of retaliation is targeted towards Ms. Smith, this claim will not be considered. Further,
Plaintiff’s letter of warning for working in an unsafe manner will not be considered as it was
resolved in the grievance process.
21
and confirmed that she received it. (Doc. 46–1 at 5, 24). Finally, Defendant’s
evidence reflects that the Office of Worker’s Compensation Program (OWCP)
denied Plaintiff’s claim, and there is no evidence that Smith or Mundi had influence
over the OWCP’s decision. (Id. at 53).
The burden therefore shifts to Plaintiff to show that Defendant’s reasons are a
pretext for retaliation. Pennington, 261 F.3d at 1266. A showing of pretext requires
a party to show “such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions” with an employer’s reasons “that a reasonable factfinder could
find them unworthy of credence.” Jackson v. State of Ala. State Tenure Comm’n,
405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Combs v. Plantation Patterns, 106
F.3d 1519, 1538 (11th Cir. 1997)); see also Brooks v. Cty. Comm’n of Jefferson Cty.,
Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (A plaintiff has the burden of producing
“sufficient evidence” for a reasonable factfinder to “conclude [defendant’s]
articulated reasons were not believable.”) Regarding these claims, Plaintiff has not
presented any evidence—except her own intuitions—from which a reasonable
factfinder could find the reasons inconsistent, incoherent, or contradictory. See
Jackson, 405 F.3d at 1289. Because no reasonable factfinder could conclude that
Defendant’s proffered non-retaliatory reasons for pretextual, Defendant is entitled
to judgment as a matter of law. Defendant’s motion for summary judgment as to
these claims is therefore GRANTED.
22
2. Plaintiff’s Termination Claim
Plaintiff also argues that her final termination was based on retaliation because
of her previous grievances and EEO claims filed. However, Plaintiff’s claim cannot
survive summary judgment, even if there are “overlapping” time periods that create
a temporal connection as Plaintiff suggests. (Doc. 50 at 37). Defendant has presented
a legitimate, non-retaliatory reason for this firing. When Plaintiff was terminated for
the final time, Defendant noted that she had failed to report consistently to work and
had thus been fired for her excessive absences. (Doc. 46-1 at 12). With a legitimate,
non-retaliatory reason established, Plaintiff must show these reasons are a pretext
for retaliation. But again, Plaintiff offers no evidence that Defendant’s proffered
reasons were pretextual besides her own suspicions. Because no reasonable
factfinder could conclude that Defendant’s reasons are pretextual, Defendant is
entitled to judgment as a matter of law on this claim. Accordingly, Defendant’s
motion for summary judgment as to Plaintiff’s retaliation claim is GRANTED.
C. Hostile Work Environment 5
Finally, Defendant challenges Plaintiff’s claim that she experienced a hostile
work environment while a Post Office employee. (Doc. 47 at 30). Defendant
5
Plaintiff does not unambiguously argue that she experienced a hostile work environment in her
amended complaint. (Doc. 26). Allegations of hostile work environment are included with
Plaintiff’s disparate treatment allegations. However, the Court will address this issue as Defendant
included argument in its brief supporting its Motion for Summary Judgment. (Doc. 47).
23
contends that Plaintiff’s harassment claims, even when aggregated, “are insufficient
to support a hostile work environment claim.” (Id.).
A hostile work environment is a “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.’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). A party seeking “to
establish a hostile work environment claim must show: (1) that he belongs to a
protected group; (2) that he has been subject to unwelcome harassment; (3) that the
harassment must have been based on a protected characteristic of the employee, such
as national origin; (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 a theory of vicarious or direct liability.” Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1275 (11th Cir. 2002); see also Reeves v. C.H. Robinson Worldwide,
Inc., 594 F.3d 798, 807 (11th Cir. 2010) (observing that “a plaintiff must show that
her employer discriminated because of her membership in a protected group, and
that the offensive conduct was either severe or pervasive enough to alter the terms
or conditions of employment.”) Regarding the fourth element of the test, “a plaintiff
[must] prove that the work environment is subjectively and objectively hostile.”
24
Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1249 (11th Cir. 2014) (citing
Mendoza v. Borden, Inc., 195 F.3d 1238, 1256 (11th Cir. 1999)). Notably, even
though an offended party may be subjected to offensive action or language, “Title
VII is not a civility code.” Reeves, 594 F.3d at 807; see also Alvarez, 610 F.3d at
1266 (“[The Court] does not sit as a ‘super-personnel department’”) (internal
citations omitted).
Construing the facts in the most favorable light to Plaintiff, she has not created
a genuine dispute of material fact that she was subjected to a hostile work
environment. The circumstances she described are not such that point to a workplace
“permeated with discriminatory intimidation, ridicule, and insult.” Harris, 510 U.S.
at 21. While Plaintiff certainly had negative experiences with her supervisor and
coworkers, even if Plaintiff could satisfy the first two elements of a hostile work
environment claim, she could not satisfy the third: no reasonable factfinder could
conclude that the allegedly hostile comments and actions were based on Plaintiff’s
race or color. For example, her coworker Ms. Lee telling her that she was performing
a job function incorrectly may have been irritating, but Plaintiff has not presented
any evidence that would lead one to conclude Lee’s comments were discriminatory.
Further, even if the comments Ms. Smith made about her skin tone were motivated
by Plaintiff’s color, no reasonable factfinder could conclude that they were severe
or pervasive enough to constitute a hostile work environment. If true, comments
25
about Plaintiff’s appearance are inappropriate. However, under Eleventh Circuit
precedent, these incidents do not rise to a level that is actionable. Therefore, as
Plaintiff has not created a genuine dispute of material fact on this issue, Defendant’s
motion for summary judgment on this claim is GRANTED.
IV.
CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment
(Doc. 46) is GRANTED. A separate final judgment will issue contemporaneous
with this order.
DONE and ORDERED this March 31, 2020.
_________________________________
LILES C. BURKE
UNITED STATES DISTRICT JUDGE
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