CARTER v. BRENNAN

Filing 47

ORDER for Response to Motion re: 40 MOTION for Summary Judgment filed by LOUIS DEJOY. Both parties are ORDERED to submit briefs within 21 days addressing Carter's claims under the proper standard. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 4/26/2021. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
SHERMAN CARTER,

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Plaintiff,
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v.
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LOUIS DEJOY, Postmaster General, )
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Defendant.
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__________________
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CIVIL ACTION NO. 5:19-CV-207 (MTT)

ORDER
Plaintiff Sherman Carter asserts three claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2: (1) race discrimination, (2) sex discrimination, and (3)
retaliation. Doc. 4 at 1-4. His complaint also includes claims for hostile work
environment and age discrimination under the Age Discrimination in Employment Act,
29 U.S.C. §§ 621. Id. Defendant, Louis DeJoy, Postmaster General of the United
States Postal Service (the “Agency”) moved for summary judgment on all claims. Doc.
40. Recent Eleventh Circuit decisions altered, in part, the test for analyzing claims of
retaliatory hostile work environment, discrimination and retaliation under Title VII, and
age discrimination under the ADEA brought by plaintiffs in the federal sector. See Babb
v. Sec’y, Dep’t of Vet. Affs., 2021 WL 1219654 (11th Cir. Apr. 1, 2021); see also
Tonkyro v. Sec’y, Dep’t of Vet. Affs., 2021 WL 1539964 (11th Cir. Apr. 20, 2021); Durr
v. Sec’y, Dept. of Vet. Affs., 2021 WL 1291135 (11th Cir. Apr. 7, 2021). Both parties

appear to have analyzed the relevant claims under tests that “no longer apply.” Durr,
2021 WL 1291135, at *1. Therefore, supplemental briefing is required.
The parties analyze Carter’s discrimination and retaliation claims using the
burden-shifting framework under McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). In the private-sector context, McDonnell Douglas remains the proper test for
these claims. However, the Supreme Court in Babb v. Wilkie, 140 S. Ct. 1168, (2020),
“all but prewrote” the Circuit’s decision in Babb v. Sec’y, Dep’t of Vet. Affs., which
provides a different test for Title VII and ADEA federal-sector claims. Babb, 2021 WL
1219654, at *4 (quoting Allen v. Cooper, 140 S. Ct. 994, 1007 (2020)).
As to Carter’s retaliatory hostile work environment claim, both parties also use
the “severe and pervasive” test that the Circuit disapproved. Babb, 2021 WL 1219654,
at *10-11. Relying on Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020),
the Circuit established that the proper standard is “whether the employer’s complainedof action ‘well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.’” Babb, 2021 WL 1219654, at *10-11 (quoting Burlington
Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006)).
Accordingly, both parties are ORDERED to submit briefs within 21 days
addressing Carter’s claims under the proper standard.
SO ORDERED, this 26th day of April, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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