Couch v. Potter

Filing 29

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 1/9/2013; re 20 MOTION for Summary Judgment filed by John E. Potter ; an appropriate order shall issuecc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CASE NO. 3:10-CV-00763-TBR
VICKI L. COUCH,

PLAINTIFF

v.
PATRICK R. DONAHOE, Postmaster General
United States Postal Service

DEFENDANT.

MEMORANDUM OPINION
This matter comes before the Court on a Motion for Summary Judgment by Defendant
(DN 20). Plaintiff has filed her response (DN 26), to which Defendant has replied (DN 28). This
matter is now ripe for adjudication. For the reasons that follow, Defendants’ Motion is
GRANTED.
BACKGROUND
Plaintiff Vicki Couch, an African American female, has worked at the United States
Postal Service since 1993. Couch currently holds a permanent, bid position as a Mail Processing
Clerk in the Gardiner Lane facility in Louisville. Plaintiff alleges that over the last five years, she
has been subjected to discriminatory harassment based on her gender and race and in retaliation
for her complaints to the EEOC. During her tenure at the USPS, Plaintiff has filed a number of
complaints with the Equal Employment Opportunity Commission (EEOC). The four most recent
of these complaints, filed in July 2008, October 2009, June 2010, and October 2010, contain
much of the factual basis for Plaintiff’s allegations in this lawsuit.1

1

The agency issued a final decision in favor of the USPS regarding Plaintiff’s 2008 and 2009 complaints. Both of
these decisions were affirmed by the Office of Federal Operations (OFO) on appeal. Plaintiff’s two 2010 EEOC
complaints were both dismissed for failure to state a claim. Both dismissals were affirmed on appeal to the OFO.

Plaintiff’s 2008 EEOC claim focused mainly on Plaintiff’s conflict with and harassment
by co-worker Vickie Grimes 2 and what she perceives as her supervisors’ inadequate responses
while she was working at the Air Mail Facility (AMF). On April 6, 2008, Grimes went out of her
way to attempt physical contact with Plaintiff. Although no physical contact was made, Plaintiff
considered the behavior hostile, and she informed her supervisor, Mike Miller, about the
incident. Miller indicated he would handle the situation and requested she not report the incident
to another supervisor, Ken Creten. Miller did, however, inform Creten of the incident “a few
days later.” On April 11, 2008, Grimes again attempted to bump into Plaintiff while Plaintiff was
working alongside Union Steward Jay Parran. When Plaintiff and Parran reported Grimes’s
conduct to Miller, he told them he would speak to Grimes.
Five days later, dissatisfied with the response from management, Plaintiff called the Plant
Manager and the Office of the Inspector General (OIG). The OIG did not return Plaintiff’s phone
call. The Plant Manager returned her call the next day and informed Plaintiff that Acting
Manager at AMF, William Needy, was investigating the situation. During a later conversation
with Needy, he indicated the OIG thought her complaints were funny. Although members of
management said they would schedule a meeting where Grimes and Plaintiff could discuss their
conflict, no such meeting took place. The record shows that during this time, management took
statements from Plaintiff, Grimes, and Parran. After the investigation revealed that no physical
contact had been made, management decided to take no further action.
Plaintiff asserts that she was so upset by management’s lack of response that in late April
2008, she failed an examination to qualify as a window clerk at the AMF. Plaintiff does not
allege the test or her failure was discriminatory. In mid-May 2008, Plaintiff asked Creten to

2

Grimes is an African American female who works for the USPS as a “casual employee,” as opposed to a career
permanent employee like Plaintiff.

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move Grimes to a different area because Grimes was working next to her. Initially, Creten
declined, and Plaintiff became loud and caused a scene. Creten took Plaintiff to his office, and
Plaintiff requested a union steward. Because a union steward was not immediately available,
Creten agreed to move Grimes to another work area if Plaintiff agreed to forget about calling the
union representative. Additionally, around this same time, Plaintiff learned that a representative
from the Employee Assistance Program (EAP) had been to the AMF facility on a day Plaintiff
was not working to speak with individuals about the conflict with Grimes. Plaintiff was upset she
had not been informed about the visit.
According to Plaintiff, Grimes continued to harass her over a two-and-a-half-year period.
Grimes’s conduct included trying to bump into Plaintiff when they would pass one another on
the workroom floor or in the restroom, placing mail trays in Plaintiff’s path on the workroom
floor, and altering her break schedule so that she would be in the break room with Plaintiff to
“direct hostile or harassment behavior toward her.” In her 2009 EEOC complaint, Plaintiff cited
an incident where Grimes tried to provoke her by leaving the conveyor belt at the same time as
Plaintiff and walking in the same direction.
On May 12, 2009, two Health & Resource Management employees, Jean Tucker and
Deborah Miller, shared confidential medical information about a previous ear infection and
psychiatric illness with Creten. Plaintiff asserts the release occurred in retaliation for her filing a
compensation claim for stress and anxiety. The administrative record shows the Office of
Workers’ Compensation Programs requested additional information from Plaintiff’s supervisors
about her medical issues. In response to this request, Miller sent the appropriate forms 3 to
Creten.

3

The forms included workers’ compensation documents that required a supervisor to complete them and a blank
Department of Labor form related to psychiatric illness.

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In addition to the issues with Grimes, Plaintiff has cited a number of incidents with other
co-workers, which she also addressed in her complaints to the EEOC. On May 27, 2009, coworker Bobby Pittman 4 intentionally bumped his shoulder into Plaintiff. Later that evening,
Plaintiff asked Creten, the supervisor on duty, to come out to the concourse. Plaintiff then yelled
at Pittman not to bump into her “with [his] ignorant ass” again. Creten requested Plaintiff write a
statement about the incident, but she declined. That same night, co-worker Richard Boyd 5 came
over to work near Plaintiff, ostensibly to “cause trouble” with Plaintiff. After Plaintiff told Boyd
not to “come up here fucking with me,” the two had a verbal altercation and Boyd gestured as if
he was going to hit Plaintiff. Creten told Plaintiff to go into his office and calm down. After
attempting to call a Union Steward, Couch dialed 911. Police responded to AMF, but no charges
were ultimately filed. After this incident, Plaintiff went on medical leave through September 29,
2009 due to work-related stress. The record shows a number of statements were taken from coworkers who were involved in or witnessed that night’s events.
Upon her return on September 30, 2009, Plaintiff had successfully applied for a level
seven position, which involved a bump in pay. (Couch depo. pp. 47-48.) However, Plaintiff
asserts that she continued to be harassed by co-workers, including Grimes, Pittman, Boyd, Larry
Tinkle, Mary Kaye Johnson, Ron Nance, A.J. Johnson, Vincent Saniel, and Victor Owen. For
example, Johnson made “extremely unpleasant and hurtful comments” to Plaintiff, Nance threw
a box of mail at Plaintiff, Johnson would “call [Plaintiff] psycho bitches and so forth” and yell
verses of songs in Plaintiff’s ear “constantly,” and several co-workers would attempt to bump
into her.

4
5

Pittman is a white male.
Boyd is an African American male. He is a casual employee.

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Plaintiff says although members of management witnessed or knew about her coworkers’ actions, they did not respond adequately or promptly to them. Conversely, Plaintiff
asserts that when male employees 6 had confrontations with co-workers, management handled
their issues immediately. The USPS has a zero-tolerance policy against workplace violence.
STANDARD
Summary judgment is appropriate where “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 determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J. C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position; the plaintiff must present evidence on which the
trier of fact could reasonably find for the plaintiff. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
summary judgment; “the mere existence of a colorable factual dispute will not defeat a properly
supported motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Moinette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).

6

Plaintiff specifically references Jason Frances, Bobby Pittman, Woodrow Perry, Roby Kishner, all Caucasian
males; Walter Hendrickson, an African American male; and Jay Castillo, a Hispanic male.

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DISCUSSION
I.

Race and Gender Discrimination

Plaintiff asserts claims of race and sex discrimination under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. Under Title VII, it is “an unlawful employment practice for an
employer ... to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e–2(a)(1). Defendant argues that Plaintiff has failed to meet
her burden of proof under Title VII. Plaintiff asserts she has presented enough evidence to
survive a motion for summary judgment.
In a Title VII action, the burden is on the plaintiff to establish a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). The plaintiff may prove his or her case through direct or circumstantial
evidence of discrimination. Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1246 (6th Cir.
1995); Henry v. Ohio Dept. of Mental Retardation & Developmental Disabilities, 162 F. Supp.2d
794, 799 (S.D. Ohio 2000). No direct evidence of discrimination exists in the present case. “In
the absence of direct evidence ... Title VII claims are subject to the familiar burden-shifting
framework set forth in McDonnell ... as subsequently modified in Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).” Risch v.
Royal Oak Police Dept., 581 F.3d 383, 390 (6th Cir. 2009). Under McDonnell, after the plaintiff
has established a prima facie case of discrimination, the burden then shifts to the employer “to
articulate some legitimate, nondiscriminatory reason” for the adverse employment action. 411
U.S. at 802. If the employer demonstrates such a reason, the burden shifts back to the plaintiff to
show that the stated reason is in fact pretext for unlawful discrimination. Id. at 804. The burden
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of persuasion remains with the plaintiff at all times. Risch, 581 F.3d at 391 (citing Burdine, 450
U.S. at 253).
To establish a prima facie case of discrimination, the plaintiff must demonstrate that she
(1) is a member of a protected class, (2) was qualified for her job, (3) suffered an adverse
employment action, and (4) was treated differently than similarly situated non-protected
employees. See, e.g., White v. Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir.2008). The
plaintiff must at least establish an inference of discrimination. Id. (citing Burdine, 450 U.S. at
253).
Defendant does not dispute that Plaintiff has satisfied the first two prongs. However,
Defendant first argues that Plaintiff has not shown she was subjected to an adverse employment
action. An adverse employment action constitutes “a materially adverse change in the terms and
conditions of employment” that is “more disruptive than a mere inconvenience or an alteration of
job responsibilities,” such as “a termination of employment, a demotion evidenced by a decrease
in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished
material responsibilities, or other indices that might be unique to a particular situation.” Hollins
v. Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999) (citation omitted). This Court looks to
whether a particular employment action was “objectively intolerable to a reasonable person,”
rather than an individual's subjective impressions, in order to determine whether an employment
action was materially adverse. Policastro v. Nw. Airlines, Inc., 297 F.3d 535, 539 (6th Cir.
2002). “In short, the action must have a ‘significant detrimental effect’ on the employee's status
as evidenced by objective factors, not subjective impressions.” Freeman v. Potter, 200 Fed.
App’x. 439, 442-43 (6th Cir. 2006) (internal quotation omitted). Importantly, this standard filters

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out claims establishing merely a “bruised ego” or a “mere inconvenience.” White v. Burlington
N. & Santa Fe Ry., 364 F.3d 789, 802 (6th Cir. 2004) (en banc), aff'd, 126 S.Ct. 797 (2005).
Plaintiff has not shown she suffered an adverse employment action. Plaintiff has not been
demoted, discharged, or lost benefits or duties. To the contrary, Plaintiff applied for and received
a higher level job with better pay. Instead, Plaintiff asserts that “being forced to go to a
threatening work place was a change in status” that qualifies as an adverse employment action.
First, while Plaintiff correctly contends that the list explicated in Hollins is not exclusive, a
plaintiff must show an employer’s action had a significant detrimental effect on the employee’s
status. The facts in this case, when viewed in a light most favorable to Plaintiff, still fail to
satisfy this burden. Second, even if the Court were find that Plaintiff’s conflicts with her coworkers constituted an adverse employment action, although it is clear that Plaintiff did not get
along with many of her co-workers, Plaintiff points to no evidence that would suggest such
conflicts, many with those of the same race and/or gender as Plaintiff, were because of her race
or gender.
Furthermore, Plaintiff has not offered evidence that she was treated differently than a
similarly-situated person outside the protected class. In order for two or more employees to be
considered “similarly-situated,” the Plaintiff “must prove that all of the relevant aspects of [her]
employment situation are ‘nearly identical’ to those of the [non-protected] employees who he
alleges were treated more favorably. The similarity between the compared employees must exist
in all relevant aspects of their respective employment circumstances.” Pierce v. Commonwealth
Life Ins. Co., 40 F.3d 796, 802 (6th Cir.1994). As to what constitutes “all relevant aspects,” the
Sixth Circuit has said that courts “should make an independent determination as to the relevancy

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of a particular aspect of the plaintiff's employment status and that of the non-protected
employee.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998).
First, although Plaintiff has pointed to conflicts between other employees that she claims
were handled more quickly by management, she has offered no evidence as to why her
employment situation is “nearly identical” to those of the co-workers she cites. Richard Boyd,
for example, is a casual employee, and thus not protected by the Union and subject to different
scheduling than permanent employees such as Plaintiff. Further, the facts show that management
did not ignore Plaintiff’s complaints. Plaintiff’s supervisors interviewed witnesses and took
statements, and only after investigating Plaintiff’s complaints determined that they required no
further action.
Finally, assuming arguendo that Plaintiff could prove her prima facie case, Defendant has
offered a legitimate, non-discriminatory reason for any limited response to the incidents between
Plaintiffs and her co-workers. Plaintiff’s supervisors testified that they handled her complaints no
differently than they handled the complaints of other employees. As stated above, management
initially responded to Plaintiff’s complaints and only discontinued their investigation after
determining no further action was required.
Thus, Plaintiff must show pretext. To satisfy this burden, plaintiff must show by a
preponderance of the evidence that the proffered reason (1) had no basis in fact, (2) did not
actually motivate the decision, or (3) that is was insufficient to motivate the decision. Briggs v.
Potter, 463 F.3d 507, 516 (6th Cir. 2006). A plaintiff may not show pretext by merely
questioning her employer’s business judgment. Chappell v. GTE Products Corp., 803 F.2d 261
(6th Cir. 1986). Plaintiff points to no reason to doubt the authenticity of management’s

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explanation, and the facts support management’s explanation. Plaintiff cannot show pretext.
Plaintiff’s discrimination claim fails.
II.

Hostile Work Environment

A plaintiff may establish a prima facie hostile work environment claim by showing that (1)
the plaintiff “is a member of a protected class;” (2) the plaintiff “was subjected to unwelcomed
racial [or sexual] harassment;” (3) “the harassment was race [or sex] based;” (4) “the harassment
unreasonably interfered with [the plaintiff's] work performance by creating an environment that
was intimidating, hostile, or offensive;” and (5) “employer liability.” Clay v. United Parcel
Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007) (citing Hafford v. Seidner, 183 F.3d 506, 512 (6th
Cir. 1999)). Further, a hostile work environment is one “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.” Williams v. General
Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999) (citing Harris v. Forklift Systems, 510 U.S. 17,
21, 114 S.Ct. 367, 126 L.Ed.2d 295 (citations and quotation marks omitted)).
To establish a hostile work environment claim, a plaintiff must show that his work
environment was both objectively and subjectively hostile. Slayton v. Ohio Dept. of Youth Servs.,
206 F.3d 669, 678 (6th Cir. 2000). An objectively hostile work environment exists where a
“reasonable person in the plaintiff's position, considering all the circumstances” would find the
environment hostile. Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998) (internal citations omitted)). Courts look to the following factors to determine whether an
objectively hostile work environment exists: the frequency of the discriminatory conduct; its
severity; whether it is physically threatening, humiliating, or a mere offensive utterance; and

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whether it unreasonably interferes with an employee's work performance. Id. at 678-79 (citing
Morris v. Oldham County Fiscal Court, 201 F.3d 784, 789-90 (6th Cir. 2000)).
Plaintiff argues that the fact that the “bullying hostility and threats … continue[d] for a
period of over five years certainly meets the severe and pervasive test.” To the contrary, Plaintiff
cites a handful of incidents that include her co-workers purposefully walking in the same
direction as her, acting as if they would (but not actually making) physical contact with her when
passing her in the workplace, bumping shoulders or elbows with her, and singing songs in her
ears. The conduct here was not continuous, but instead is comprised of a few notable incidents
over a five-year period. These minor incidents over a span of five years far from demonstrate an
objectively hostile work environment, especially considering management responded to the
incidents and Plaintiff participated in the hostility. Furthermore, as discussed in section I., infra,
Plaintiff can point to no evidence that these isolated incidents were based on her sex or her
gender. Rather, in a deposition, Plaintiff hypothesized that the casual employees were jealous of
her because she had obtained a permanent position with the USPS. (Couch depo. pp. 126-27.)
Plaintiff has not pointed to acts that rise to the level of an abusive working environment. Her
claim for hostile working environment must fail.
III.

Retaliation
Under a Title VII retaliation claim, a plaintiff may prove his or her claim through direct

or circumstantial evidence. Henry v. Ohio Dept. of Mental Retardation & Developmental
Disabilities, 162 F. Supp.2d 794, 800 (S.D. Ohio 2000). The Court finds no direct evidence of
retaliation. Absent direct evidence, the Court follows the McDonnell Douglas balancing test. Id.;
McDonnell, 411 U.S. at 802. “[T]o establish a prima facie case of retaliation, a plaintiff must
establish that: (1) he engaged in activity protected by Title VII; (2) the exercise of his civil rights
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was known to the defendant; (3) thereafter, the defendant took an employment action adverse to
the plaintiff; and (4) there was a causal connection between the protected activity and the adverse
employment action.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir. 2003); Nguyen v.
City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).
The anti-retaliation provision only “protects an individual ... from retaliation that
produces an injury or harm,” but the United States Supreme Court has recently held that “the
anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory
actions that affect the terms and conditions of employment,” or only those acts that occur at the
workplace. Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405, 2412-14 (2006). In
modifying the third element of the prima facie case, above, the Court held that a plaintiff “must
show that a reasonable employee would have found the challenged action materially adverse,”
meaning “‘it well might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.’” Id. at 2415 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir.
2006) (internal quotations omitted)) (emphasis added). The causal connection must be proven by
sufficient evidence to demonstrate an inference that, had the plaintiff not engaged in his
protected rights, the defendant would not have taken the adverse action. Id.
As discussed above, Plaintiff has not shown that her supervisors subjected her to any
adverse employment action. First, there is absolutely no evidence that suggests her co-workers
behaved as they did because they learned Plaintiff had filed EEOC complaints in the past.
Secondly, Plaintiff’s claim that management’s “inaction” in the face of “a harassing and
threatening environment surrounded by bullies” was an adverse employment action is similarly
flawed. The record is replete with evidence that her supervisors did in fact respond to Plaintiff’s
conflicts with her fellow employees. Finally, Plaintiff also fails to offer explanation as to how

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Miller’s distribution of medical documentation affected the terms of her employment in a
materially adverse manner.
Assuming, arguendo, that Plaintiff satisfied her prima facie burden, as discussed above
Plaintiff cannot prove that Defendant’s explanation about their investigation was pretextual.
Further, Miller explained that she distributed the medical documentation in conformance with
normal protocol, at the behest of the state workers’ compensation board. Plaintiff offers no
reason this explanation is pretextual or untruthful. Plaintiff’s retaliation claim must also fail.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED. An
appropriate order shall issue.

CC:

Counsel

January 9, 2013

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