Winslow-Harris et al v. United States Postal Service

Filing 31

ORDER granting 29 Motion to Dismiss for Lack of Jurisdiction, Motion for Summary Judgment; The plaintiff's lawsuit is hereby dismissed. Signed by Judge Martin L.C. Feldman on 2/17/2012. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
INGRID CYLESTE WINSLOW-HARRIS

CIVIL ACTION

v.

NO. 10-3588

PATRICK R. DONAHOE,
POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE

SECTION "F"

ORDER
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

No memoranda in opposition to the

defendant’s motion to dismiss and motion for summary judgment,
noticed for submission on February 22, 2012, has been submitted.
Accordingly,

the

motion

is

deemed

to

be

unopposed,

and

further, it appearing to the Court that the motion has merit,1 IT
1

The plaintiff claims that the defendant retaliated
against her because her deceased father was a civil rights leader.
However, there is no record showing that the plaintiff exhausted
her administrative remedies relative to the alleged retaliatory
discharge. Thus, the defendant has shown that this Court lacks
jurisdiction over the plaintiff’s retaliation claim.
See
Fitzgerald v. Sec’y, U.S. Dep’t of Veterans Affairs, 121 F.3d 203,
206 (5th Cir. 1997). It is undisputed that the plaintiff did file
an administrative charge of discrimination based on allegations of
race and color discrimination. However, the defendant has shown
that the plaintiff cannot establish a prima facie case of race or
color discrimination because she has not shown that she was treated
less favorably than other similarly situated employees outside of
her protected class. In particular, the defendant points out that
the Fifth Circuit requires that an employee who proffers a fellow
employee as a comparator demonstrate that the employment actions at
issue were taken “under nearly identical circumstances.”
See
Little v. Republic Ref. Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991).
Because the plaintiff cannot show that others similarly situated
were treated more favorably under Fifth Circuit standards, the
1

IS ORDERED that the defendant’s motion to dismiss and motion for
summary judgment is GRANTED as unopposed.

The plaintiff’s lawsuit

is hereby dismissed.2
New Orleans, Louisiana, February 17, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

defendant suggests it is entitled to judgment as a matter of law.
The Court agrees. The plaintiff has not submitted any opposition
papers and there is no evidence in the record to suggest that the
plaintiff can discharge her burden on this point.
Even if the
plaintiff could establish a prima facie case of race or color
discrimination, the defendant also contends that the plaintiff
cannot establish that the defendant’s proffered reasons for
terminating her during her probationary period were pretextual.
The Court agrees.
The summary judgment record is replete with
evidence that the plaintiff’s job performance was poor: the record
shows that the plaintiff’s immediate supervisor, Michele Redman, an
African-American, made the decision to terminate the plaintiff
during her probationary period due to poor job performance; Redman
testified that the plaintiff repeatedly improperly handled express
mail and that the plaintiff had difficulty with many aspects of her
job, which caused customer complaints. The record also shows that
the plaintiff had difficulty “catching on to her duties.”
The
defendant suggests, and the Court agrees, that this evidence
satisfies its burden of production and that the burden then shifts
to the plaintiff to submit evidence that shows that the defendant’s
explanation was merely pretext for the actual reasons she was
terminated during her probationary period: race and color
discrimination. The plaintiff has not submitted any opposition
papers or submitted any evidence suggesting that she can satisfy
her burden. “‘A complete failure of proof concerning an essential
element of the non-moving party’s case necessarily renders all
other fact immaterial’ and ‘mandates the entry of summary judgment’
for the moving party.” United States ex rel. v. City of Houston,
523 F.3d 333, 337 (5th Cir. 2008) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).
2

The plaintiff’s retaliation claim is dismissed for lack
of subject matter jurisdiction and the plaintiff’s claims for
discrimination
based
on
allegations
of
race
and
color
discrimination are dismissed on summary judgment.
2