Barton v. Donahue

Filing 45

MEMORANDUM OPINION AND ORDER, GRANTING Defendants' 30 Motion for Summary Judgment. Signed by Judge Callie V. S. Granade on 2/6/2015. (copy to pltf) (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LORI BARTON, pro se,
Plaintiff,
vs.
PATRICK R. DONAHUE, ERIC
HOLDER, LEANDER HARRIS,
Defendants.

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) CIVIL ACTION NO. 13-0642-CG-C
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MEMORANDUM OPINION AND ORDER
This matter is before the court on Defendants’ motion for summary judgment
(Doc. 31), Plaintiff’s opposition (Doc. 33), Defendants’ reply (Doc. 34), and Plaintiff’s
sur-reply (Doc. 35). For the reasons explained below, the court finds that
Defendants’ motion is due to be GRANTED.
FACTS
Plaintiff filed this action pro se on December 27, 2013, alleging that she was
sexually harassed by her manager, Defendant Leander Harris, while she was
employed as a letter carrier for the United States Postal Service (“the Agency”).
(Docs. 1, 4). The Amended Complaint asserts that the sexual harassment started in
2007 and eventually led to her latest EEOC matter which is based on Plaintiff being
“put off the clock” on December 9, 2011, while an investigation was conducted
concerning mail delivered to a complex on Plaintiff’s route. (Doc. 4, pp. 2-4).
Plaintiff had been delivering mail to a housing project that had been closed for more
than two months, in violation of Postal regulations. (Doc. 31-5, ¶¶ 3-9). On

December 9, 2011, Plaintiff’s supervisor discovered that Plaintiff had been
delivering the mail to the closed housing project and Plaintiff was placed on off-duty
status without pay at the close of business that day. (Doc. 31-5, p. 22).
Plaintiff initiated contact with the EEOC about her claim in March 2012 and
filed a formal complaint on May 19, 2012. (Doc. 4, p. 9, Doc. 31-3, p. 70). On the
complaint form the Plaintiff checked boxes for discrimination on the basis of sex and
retaliation. (Doc. 33-3, p. 70). In the EEOC complaint she described the specific
actions that resulted in her believing she was discriminated against as follows:
MGMT. GAVE FALSE STATEMENTS. THE ATTACKS ON ME ARE
BECAUSE OF OTHER EEO’S FILED PREVIOUSLY ON LEANDER
HARRIS. THESE ATTACKS ARE ON-GOING.
(Doc. 33-3, p. 70). By letter dated June 8, 2012, the EEOC acknowledged receipt of
Plaintiff’s formal complaint and stated that the investigation would include only the
issue of discrimination based on retaliation. (Doc. 33-3, pp. 70-74). The letter also
stated that if she did not agree with the defined accepted issues, she must provide a
written response specifying the nature of her disagreement within seven calendar
days of receipt of the letter. (Doc. 33-3, p. 72-74). The Administrative Law Judge
found that Plaintiff did not establish a prima facie case of reprisal discrimination
and that the Agency had articulated legitimate nondiscriminatory reasons for its
actions which Plaintiff failed to show were a pretext. (Doc. 4, pp. 9-10). Plaintiff
appealed the decision and the EEOC affirmed the decision. (Doc. 4. pp. 9-14). The
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Plaintiff attached a copy of the EEOC’s decision to her original and amended
complaint in this matter. (Docs. 1, 4). The EEOC noted in its decision that on
appeal Plaintiff had attempted to raise a claim of sexual harassment, but that it
was inappropriate for her to raise the claim for the first time on appeal. (Doc. 4, p.
13).1
At her deposition, Plaintiff testified that the last incident of sexual
harassment was in 2008. (Doc. 31-1, p. 5). Plaintiff appears to be confused about
her claims, as she apparently believes she has been subjected to other harassment
“stemming from sexual harassment.” (See Doc. 31-1, p. 5 : “That’s not sexual
harassment. That’s harassment stemming from sexual harassment. Because like I
said, if I had had sex with him, I probably wouldn’t have had no other problem.” –
The full context of these statements was not provided to the court.).
Plaintiff initiated numerous other EEOC claims in the past. Since the
alleged sexual harassment started in 2007, Plaintiff has initiated a total of five
EEOC complaints: the complaint described above and four prior complaints.2 The
first complaint, dated July 1, 2009, alleged sexual harassment and reprisal. (Doc.

The EEOC’s decision also informed Plaintiff that she could file a civil action within
ninety calendar days from receiving the decision. (Doc. 4, p. 14). Plaintiff states in
her Amended Complaint that she received the notice of right to sue on September
29, 2013. (Doc. 4., p. 7). Plaintiff filed the current action 90 days later, on December
27, 2013. (Doc. 1).
2 Plaintiff initiated four EEOC actions, from 1998 through 2006, which asserted
claims of discrimination on the basis of race, sex and disability.
3
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31-3, pp. 18-21). The 2009 complaint was not resolved and Plaintiff was informed of
her right to file a formal complaint, but Plaintiff took no further action. (Doc. 33-3,
p. 20). The second complaint, dated October 25, 2010, alleged disability and sexual
harassment. (Doc. 31-3, pp. 27-33). The 2010 matter was settled by the parties.
(Doc. 33-3, pp. 31-33). The third complaint, dated September 30, 2011, alleged
sexual harassment and reprisal. (Doc. 31-3, pp. 34- 39). The September 30, 2011,
complaint was not settled and Plaintiff filed a formal complaint with the Agency
which was later dismissed by the Agency. (Doc. 31-3, pp. 36-37). Plaintiff appealed
the dismissal and the decision was affirmed by the EEOC. (Doc. 33-3, p. 37). The
fourth complaint, dated December 21, 2011, alleged reprisal only. (Doc. 33-3, pp. 2226). The December 21, 2011, complaint was withdrawn by Plaintiff. (Doc. 33-3, p.
26).
DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall
be granted: “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The trial court’s
function is not “to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the
non-moving party is not sufficient for denial of summary judgment; there must be
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‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting
Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson, at 249-250.
(internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“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.”
See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving
that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d
1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the
court must view all evidence in the light most favorable to the non-moving party,
and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle
Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on
the inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th
Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,
841 (11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the nonmoving party "must make a sufficient showing to establish the existence of
each essential element to that party's case, and on which that party will bear
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the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524
(11th Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Otherwise stated, the non-movant must “demonstrate that there is indeed a
material issue of fact that precludes summary judgment.” See Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party
“may not rely merely on allegations or denials in its own pleading; rather, its
response .... must be by affidavits or as otherwise provided in this rule be set
out specific facts showing a genuine issue for trial.” Vega v. Invsco Group,
Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere ‘scintilla’ of evidence
supporting the [non-moving] party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences
in the record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d
994, 998 (11th Cir. 1992). “Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574 at 587 (1986) (internal quotation and citation omitted).
B. Plaintiff’s Claims
The claims asserted by Plaintiff in her Amended Complaint are not
clear. The court notes that Plaintiff is proceeding pro se and this court will
attempt to give her Complaint a very lenient reading.
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Courts do and should show a leniency to pro se litigants not
enjoyed by those with the benefit of a legal education. See, e.g.,
Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Yet even
in the case of pro se litigants this leniency does not give a court
license to serve as de facto counsel for a party, see Hall v.
Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991), or to rewrite an
otherwise deficient pleading in order to sustain an action, see
Pontier v. City of Clearwater, 881 F.Supp. 1565, 1568
(M.D.Fla.1995).
GJR Investments Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998). Plaintiff “is subject to the relevant law and rules of court, including the
Federal Rules of Civil Procedure,” the same as any other litigant. Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989). The court concludes from reading Plaintiff’s
Amended Complaint and other filings that she may be attempting to assert claims of
discrimination based on: 1) sexual harassment, 2) disability, and 3) retaliation.
1. Sexual Harassment
Defendants assert that Plaintiff’s sexual harassment claims are time barred
because she admits that the most recent alleged incident of sexual harassment
occurred in 2008. To timely exhaust administrative remedies, federal-sector
employees must initiate contact with an EEOC Counselor prior to filing a complaint
and must do so within 45 days of the date the alleged discriminatory act occurred. 29
C.F.R. § 1614.105(a)(1). The complainant must then file a formal complaint of
discrimination with the agency so that the agency can conduct an investigation and
attempt to resolve the matter. 29 C.F.R. §§ 1614.106, 1614.108. Plaintiff testified that
the most recent sexual harassment incident occurred in 2008, more than three years
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before she initiated contact with an EEOC counselor, in March 2012. To the extent
Plaintiff is attempting to assert claims based on conduct that occurred in 2008 or
before, those claims are clearly time-barred. However, the court notes that the
Plaintiff appears to be confused about what constitutes sexual harassment. She
stated in her deposition that other actions were not sexual harassment, but instead
“harassment stemming from sexual harassment.” If Plaintiff’s rejection of her
manager’s advances was the basis for later employment decisions regarding Plaintiff,
then such actions could constitute sexual harassment.3 Although Plaintiff is
experienced in asserting EEOC complaints, she is not an attorney, has not been
represented by or counseled by an attorney, and may not fully understand the legal
definition of sexual harassment. As such, the court will not accept Plaintiff’s legal

3

The EEOC defines “sexual harassment” as:
Unwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature constitute sexual harassment when
(1) submission to such conduct is made either explicitly or implicitly a term
or condition of an individual's employment, (2) submission to or rejection of
such conduct by an individual is used as the basis for employment
decisions affecting such individual, or (3) such conduct has the purpose or
effect of unreasonably interfering with an individual's work performance or
creating an intimidating, hostile, or offensive working environment.

29 CFR § 1604.11(a). The above EEOC guidelines, “while not controlling upon the
courts by reason of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” General
Electric Co. v. Gilbert, 429 U.S. 125, 141–142, 97 S.Ct. 401, 410–11, 50 L.Ed.2d 343
(1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89
L.Ed.124 (1944)).
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conclusion by itself as a factual admission that she was not subjected to sexual
harassment after 2008. Thus, the court finds that Plaintiff’s testimony does not
necessarily demonstrate that all sexual harassment occurred in 2008 or before.
Defendants also assert that to the extent the Agency’s December 9, 2011, action
of putting Plaintiff off the clock could constitute sexual harassment, Plaintiff failed to
exhaust her remedies because she did not properly raise a sexual harassment claim in
her administrative proceeding. Prior to filing a Title VII action, “a plaintiff first must
file a charge of discrimination with the EEOC.” Gregory v. Georgia Dept. of Human
Resources, 355 F.3d 1277, 1279 (11th Cir. 2004). “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.” Mulhall v. Advance Sec. Inc., 19 F.3d 586,
589 n.8 (11th Cir. 1994). “In other words, judicial claims are allowed if they amplify,
clarify or more clearly focus the allegations in the EEOC complaint, while allegations
of new acts of discrimination are inappropriate.” Russell v. City of Mobile, 2013 WL
1567372, *2 (S.D. Ala. April 12, 2013) (internal quotations omitted). “The 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, 1277
F.3d at 1279 (citations and internal quotations omitted).

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In the instant case, the Plaintiff checked boxes in her form complaint indicating
that she suffered discrimination on the basis of both sex and retaliation, but then
described the basis of her complaint as attacks against her because she had previously
filed EEOC complaints. There were no factual allegations in Plaintiff’s formal EEOC
complaint that would support a claim for sex discrimination. Plaintiff was also
notified that the only basis her discrimination complaint was being investigated for
was retaliation. Plaintiff was given time to object to the scope of the investigation, but
did not do so. Although Plaintiff attempted to raise a claim for sexual harassment
during the appeal process of her complaint, as the Administrative Law Judge correctly
determined, Plaintiff cannot raise a new claim for the first time on appeal and she has
now waived that claim. See Marathon Oil Co. v. U.S., 807 F.2d 759, 767 -768 (9th Cir.
1986) (“As a general rule, we will not consider issues not presented before an
administrative proceeding at the appropriate time.” citation omitted); Bechtold v.
Massanari, 152 F.Supp.2d 1340, 1346–47 (M.D. Fla. 2001) (social security case finding
that failure to raise issue before ALJ results in waiver of the issue before the district
court). The court notes that Plaintiff is experienced in making EEOC claims and has
asserted sexual harassment claims in the past. Any claim she has arising from these
prior claims is time-barred for the reasons discussed above.4 Plaintiff has not

Any conduct that occurred more that 45 days before Plaintiff initiated contact with
an EEOC Counselor in March 2012 cannot be the basis of a claim here. 29 C.F.R. §
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exhausted her remedies as to her non-time-barred claims and thus, the court finds
that plaintiff has failed to assert a viable claim of sexual harassment. Accordingly,
summary judgment is due to be granted in favor of Defendants on Plaintiff’s sexual
harassment claim.
2. Disability
Plaintiff’s Amended Complaint lists mental disability and the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12117, as a basis for her claim. (Doc. 4, p. 6).
However, Plaintiff has not supported such a claim with any factual allegations and did
not include the claim in her most recent EEOC complaint. Thus, the court finds
Plaintiff has not stated a viable ADA claim and has failed to exhaust her
administrative remedies as to any ADA claim she might have.
3. Retaliation
The Amended Complaint does not appear to assert a retaliation claim, but the
court notes that retaliation was the basis for her most recent EEOC proceeding and
that Plaintiff attached a copy of the EEOC’s decision in that proceeding to her
Complaint and Amended Complaint. To the extent Plaintiff is attempting to assert a
claim of retaliation, the claim would not be barred as to conduct she complains of that
occurred within 45 days of her initial contact with the EEOC. To make out a prima
facie case of retaliation, Plaintiff “must establish that (1) she engaged in statutorily

1614.105(a)(1).
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protected activity, (2) she suffered a materially adverse action, and (3) there exists a
causal link between the two.” Smith v. City of Fort Pierce, Fla., 565 Fed.Appx. 774,
776-777 (11th Cir. 2014) (citations omitted). “If a plaintiff establishes a prima facie
case, the burden shifts to the employer to proffer a legitimate, non-retaliatory reason
for the adverse employment action.” Id. at 777 (citation omitted). “If an employer
provides a legitimate non-discriminatory reason, the burden shifts to the plaintiff to
show that the employer's given reason is a pretext designed to mask retaliation.” Id.
A plaintiff shows pretext by “demonstrat[ing] that the proffered reason was not the
true reason for the employment decision[,]” and by “introduc[ing] significantly
probative evidence . . . that the asserted reason is merely pretext for discrimination.”
Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006)
(internal quotation marks and citation omitted). An employer’s reason is not pretext
for discrimination “unless it is shown both that the reason was false, and that
discrimination was the real reason.” Id. at 1163 (emphasis in original) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). As part of the pretext inquiry,
the court “must evaluate whether the Plaintiff has demonstrated 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.” Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276,
1289 (11th Cir. 2005) (internal quotation marks and citations omitted).
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A plaintiff is not allowed to recast an employer’s proffered
nondiscriminatory reasons or substitute his business judgment for that of
the employer. Provided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason head
on and rebut it, and the employee cannot succeed by simply quarreling
with the wisdom of that reason.
Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).
Defendants assert that Plaintiff has not shown a prima facie case because she
has not provided any facts to support a causal link between her prior EEOC
complaints and the discipline she received. Even if Plaintiff could show a prima facie
case, she has offered nothing to show that Defendants’ proffered reasons for taking her
off-duty was merely pretext. Defendants contend that Plaintiff was placed on off-duty
status because it was discovered that she had been delivering mail to a housing
project that had been closed for more than two months, in violation of Postal
regulations. Though Plaintiff filed a response and a sur-reply to Defendants’ motion
for summary judgment, she has not contested Defendants’ version of the facts with
any facts of her own. Defendants have offered a legitimate, non-retaliatory reason for
the action and Plaintiff has offered no facts to demonstrate any weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered reasons. In her response to Defendants’ motion, Plaintiff points to the fact

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that in the declaration of Frank Carstarphen submitted by Defendants, the Edit Book5
of October 16 2011 was cited to and attached rather than the updated Edit Book from
December 2011. (Doc. 33, p. 2). However, the October 2011 Edit Book was in effect for
the months of October, November and early December 2011, when the housing project
in question had closed and Plaintiff allegedly continued to deliver mail to the closed
housing project and failed to update the Edit Book. Thus, Defendants submitted the
appropriate document to show the status of the Edit Book at the time relevant to this
case. In Plaintiff’s sur-reply, she is adamant that the Defendants and their counsel
are deceptive and gave false statements, but in support of her contention Plaintiff only
offers a news article that reports of other postal workers who claim they were sexually
assaulted and retaliated against by their manager in Albany, New York. (Doc. 35, pp.
4-8). The news article does not mention any of the parties in this case. Plaintiff has
offered nothing to show that what allegedly occurred in Albany, New York to other
individuals has anything to do with Plaintiff’s claims here. Nothing in the article

5

Mr. Carstarphen explained in his affidavit that:

An Edit Book contains a list of every address assigned to the carrier’s route
and which is in the carrier’s line of travel. The carrier is required to keep
this book updated with current information so that vacancies and inactive
addresses are properly updated in the Address Management System.
When the Edit Book is updated, mail for those vacant and inactive
addresses are taken out of the carrier’s route, thus making delivery to
those addresses unnecessary.
(Doc. 31-6, ¶ 11).
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demonstrates that the legitimate non-discriminatory reason proffered by the
Defendants in this case should not be believed. Thus, the court finds that summary
judgment is due to be granted in favor of Defendants to the extent Plaintiff has
asserted a claim of retaliation.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment (Doc.
31), is GRANTED.
DONE and ORDERED this 6th day of February, 2015.

/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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