Winslow-Harris et al v. United States Postal Service

Filing 40

ORDER AND REASONS denying 32 Motion for Reconsideration. Signed by Judge Martin L.C. Feldman on 3/5/2012. (caa, )

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 AND REASONS
Before the Court is the plaintiff’s motion to reconsider this
Court’s February 17, 2012 Order dismissing the plaintiff’s case.
For the reasons that follow, the motion to reconsider is DENIED.
Background
This litigation arises out of a former mail carrier’s claims
of employment discrimination by the Postmaster General of the
United States Postal Service.1
1

Because the plaintiff still has not endeavored to file
any papers opposing the merits of the defendant’s motion to dismiss
and motion for summary judgment, the Court summarizes the facts
contained in the defendant’s summary judgment submission.
See
Local Rule 56.1 (requiring that all motions for summary judgment be
“accompanied by a separate and concise statement of the material
facts which the moving party contends present no genuine issue”)
and Local Rule 56.2 (requiring that a party opposing a motion for
summary judgment include a “separate and concise statement of the
material facts which the opponent contends present a genuine issue”
and further providing that “[a]ll material facts in the moving
party’s statement will be deemed admitted, for the purposes of the
motion, unless controverted in the opponent’s statement.”). See
also Jegart v. Roman Catholic Church of the Diocese of HoumaThibodaux,
384
Fed.Appx.
398
(5th
Cir.
June
30,
2010)(unpublished)(citing Eversley v. MBank Dallas, 843 F.2d 172,
174 (5th Cir. 1988) for the proposition that, when a plaintiff fails
to file an opposition to a motion for summary judgment, the
1

Ingrid Cyleste Winslow-Harris, an African-American female, was
originally hired in March 2007 as a temporary rural carrier.2
Thereafter, in October 2007, Ms. Winslow-Harris was hired as a
rural carrier associate, which serves as a substitute for a regular
rural letter carrier. A regular rural letter carrier delivers mail
five days a week and, on the sixth day, a rural carrier associate
delivers the mail for the route.

Thus, a rural carrier associate

is only guaranteed one work day each week.
A rural carrier associate cases, delivers, and collects mail
along a prescribed rural route using a vehicle and provides
customers on the route with a variety of services, including
selling stamps and delivering accountable mail; accountable mail
consists of certified mail, registered mail, and express mail.
Ms. Winslow-Harris, as with all rural carrier associates, was
hired for a 90-day probationary period, which expires after 90 days
of actual work.

During her probationary period, Michele Redman,

also an African-American female, was Ms. Winslow-Harris’ immediate
supervisor.

And in January 2008, during Ms. Winslow-Harris’

probationary period, Ms. Redman decided to terminate her employment
due to poor job performance. According to Ms. Redman, Ms. Winslow-

district court may consider the facts listed in support of the
motion as undisputed and grant summary judgment if they show that
the moving party is entitled to judgment in his favor).
2

This is not a career position with USPS; a temporary
rural carrier has no opportunity for advancement.
2

Harris had difficulty with aspects of her job, including her
repeated

failure

to

properly

customers to complain.

handle

express

mail,3

causing

Ms. Redman spoke to Ms. Winslow-Harris

several times and tried to correct her performance deficiencies.4
On December 20, 2010 Ms. Winslow-Harris, pro se, sued the USPS
and

John

E.

Potter,

Postmaster

General,

asserting

that

her

employment was terminated due to race/color discrimination and that
she was retaliated against because her father had been a civil
rights

leader;

reinstatement

and

Ms.

Winslow-Harris

lost

wages.5

A

claimed

entitlement

to

scheduling

conference

was

conducted with the Court on May 31, 2011, in which a pre-trial
conference was set for March 13, 2012 and a bench trial was
scheduled for March 26, 2012.

Thereafter, on August 1, 2011, the

Court granted the plaintiff’s motion to enroll counsel.

On

February 2, 2012 the defendant filed a motion to dismiss and motion
for summary judgment in which he: (1) requested dismissal of the

3

USPS Express Mail is a guaranteed delivery service: if
the delivery is not performed within the committed delivery, the
USPS owes the customer a full refund.
4

Ms. Redman’s immediate supervisor at the time,
Postmaster Matthew McFall, concurred with her decision to terminate
Ms. Winslow-Harris. McFall had also spoken to Ms. Winslow-Harris
on several occasions about her work performance and he had tried to
assist her with understanding her job duties.
5

Because Patrick R. Donahoe was sworn in as the new
Postmaster General on January 11, 2012, he was automatically
substituted pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure.
3

plaintiff’s

retaliation

claim

for

lack

of

subject

matter

jurisdiction (for failure to exhaust administrative remedies) and
(2) requested summary judgment in his favor on the plaintiff’s
claim of race and color discrimination on the ground that the
plaintiff failed to make a prima facie case of disparate treatment
and, even if she could make out a prima facie case, the defendant
contended that plaintiff could not demonstrate that the defendant’s
articulated reasons for terminating her employment during her
probationary period were pretextual.

The defendant’s motion was

noticed for submission on February 22, 2012, making the plaintiff’s
opposition due no later than February 14, 2012.

No opposition

having been filed in the record by February 17, 2012, this Court
issued an Order granting the defendant’s motion as unopposed; in
doing so, the Court also noted that the motion had merit and that
the defendant had discharged its summary judgment burden. The
plaintiff now seeks reconsideration of the Court’s February 17
Order dismissing her case.
I.
Rule 59(e) of the Federal Rules of Civil Procedure provides
that a motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.

Fed.R.Civ.P. 59(e).

Rule 60(b), on the other hand, applies to motions filed after the
28-day

period,

requirements.”

but

demands

more

“exacting

substantive

See Lavespere v. Niagara Machine & Tool Works, 910

4

F.2d 167, 173-74 (5th Cir. 1990), abrogated on other grounds,
Little v. Liquid Air Corp., 37 F.3d 1069, 1078 (5th Cir. 1994)(en
banc).
“A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’”

Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th

Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).

Because of the interest in finality, Rule 59(e)

motions may only be granted if the moving party shows there was a
mistake of law or fact or presents newly discovered evidence that
could

not

have

been

discovered

previously.

Id.

at

478-79.

Moreover, Rule 59 motions should not be used to relitigate old
matters, raise new arguments, or submit evidence that could have
been presented earlier in the proceedings.

See id. at 479;

Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th
Cir. 2010)(“a motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued’”)(citing Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003)(quoting Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)).

The grant of such a motion is an

“extraordinary remedy that should be used sparingly.” Indep. CocaCola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola
Bottling Co. United, Inc., 114 Fed.Appx. 137, 143 (5th Cir. Nov.

5

11, 2004) (citing Templet, 367 F.3d at 479).

The Court must

balance two important judicial imperatives in deciding whether to
reopen a case in response to a motion for reconsideration: “(1) the
need to bring the litigation to an end; and (2) the need to render
just decisions on the basis of all the facts.”

Templet, 367 F.3d

at 479.
Because the Court entered the challenged Order on February 17,
2012, and the plaintiff filed her motion to reconsider on that same
day, the motion to amend is timely under Rule 59(e).
II.
A.
As an excuse, counsel for plaintiff claims that he was
unaware, until February 17, 2012, that anything other than a twopage motion for summary judgment had been filed; he says that when
he received electronic notice of the motion’s filing on February 2,
2012, he checked the Court’s electronic filing system and did not
see the Memorandum in Support and accompanying materials that
should have been attached to the motion; the next day, counsel says
he contacted counsel for the defendant and left a voicemail to
determine if a Memorandum would follow the motion.

Counsel for

plaintiff apparently then waited two weeks before again reaching
out to counsel for the defendant, at which time he was advised that
the Memorandum and exhibits were filed as attachments to the
original motion on February 2; he says he immediately checked the

6

CM/ECF filing system and at that time saw the Memorandum and
accompanying exhibits, along with the notice of submission; he also
learned at that time that the Court had entered an Order granting
the

defendant’s

motion

and

dismissing

the

plaintiff’s

case.

Counsel contends that corroboration of the phone call by opposing
counsel and a technological review of the Court’s electronic filing
system activities on February 2, 2012 and February 3, 2012 should
convince the Court to permit the plaintiff to respond to the
defendant’s motion for summary judgment.6
The defendant opposes reconsideration, countering that (1)
there is no evidence that plaintiff’s counsel contacted defendant’s
counsel on February 3, 2012;7 (2) the body of the Notice of
Electronic Filing received by counsel for defendant by email, a
copy of which is attached to the defendant’s opposition, details
the “docket text” in its entirety, which includes the hearing date
as well as all attachments to the motion; and (3) counsel for the
plaintiff fails to advise the Court as to why he did not contact
the Clerk of Court’s office if the electronic notice he received
did not allow him to access all the documents, or, why he did not

6

Counsel for plaintiff attaches no exhibits to the motion
to reconsider.
7

Counsel for defendant suggests that she was on vacation,
out of the country, from February 3, 2012 through February 15, 2012
and, as such, an outgoing message detailing this fact was placed on
her phone, along with a suggestion that callers contact her
paralegal or her secretary. Counsel for defendant represents that
no messages were left with her support staff.
7

check PACER, which reveals all documents filed within each record
document. Counsel for defendant insists that counsel for plaintiff
should not have waited over two weeks to contact her to ask her if
other documents were filed with the two-page motion.8
The Court finds that the arguments raised by the two sides are
interesting and irrelevant, considering this Court’s findings in
its February 17 Order and the applicable Rule 59(e) standard.9

8

Counsel for the defendant suggests that she would not
have opposed either a request by the plaintiff’s counsel for an
extension of time to file her opposition, or a motion fo leave to
file the opposition out of time, but neither were filed. In fact,
defendant opposes reconsideration “because the instant motion
appears to consist of an ad hominem attack[] against [defendant’s]
counsel, an unsupported attack on the reliability of the ECF
system, and a lack of diligence on his part....”
9

Because counsel for both sides focus so intently on this
issue, the Court notes that the record shows that the Notice of
Electronic Filing emailed to counsel on February 2, 2012 included
under “docket text”:
MOTION to Dismiss for Lack of Jurisdiction
and, MOTION for Summary Judgment by United
States Postal Service....
Motion set for
2/22/2012 10:00 AM before Judge Martin L.C.
Feldman. (Attachments: #(1) Memorandum in
Support, #(2) Exhibit A, #(3) Exhibit B, #(4)
Exhibit C, #(5) Exhibit D, #(6) Exhibit E,
#(7) Exhibit F, #(8) Exhibit G, #(9) Exhibit
H, #(10) Exhibit I, #(11) Statement of
Contested/Uncontested Facts, #(12) Notice of
Submission)....
Counsel for plaintiff, in reply papers, submits his PACER history,
which shows that he printed two pages on February 2, 2012 and then
performed another search on February 17, 2012, at which time he
printed 62 pages. Giving counsel for plaintiff the benefit of the
doubt, it is curious that counsel could not access the documents
about which he was emailed notification of having been filed. But
it is also curious that counsel did not check thereafter PACER or
contact the Court over the course of the next few weeks in order to
advise of this alleged technological issue so that it could be
8

What is dispositive of the plaintiff’s motion for reconsideration
is her failure to acknowledge or point to, let alone present any
genuine disputes as to material facts challenging this Court’s
analysis of the issues raised by the defendant’s motion to dismiss
and for summary judgment.

The plaintiff begs the Court for an

opportunity to respond to the defendant’s motion, but fails to
present any arguments regarding the merit of her claims that would
show the Court that it had erred in its legal and factual analysis
that supported its February 17 ruling.
B.
Although the Fifth Circuit U.S. Court of Appeals forbids a
district court from granting summary judgment merely because the
motion is unopposed (even if the failure to oppose violated a local
rule), if the Court’s independent review of the record reveals that
there are no genuine disputes as to any material facts, granting
summary judgment is certainly appropriate. See Hibernia Nat’l Bank
v. Administration Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th
Cir. 1985)(“The movant has the burden of establishing the absence
of a genuine issue of material fact and, unless he has done so, the
court may not grant the motion, regardless of whether any response
was filed.”); John v. Louisiana Bd. of Trustees for State Colleges
& Universities, 757 F.2d 698, 709 (5th Cir. 1985); Fed.R.Civ.P.
56(e)(“If a party fails to properly support an assertion of fact or

sorted out.
9

fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may...grant summary judgment if
the motion and supporting materials–including the facts considered
undisputed–show that the movant is entitled to it”).10
Summary judgment is appropriate when the competent summary
judgment evidence demonstrates that there are no genuine disputes
as to any material facts and the moving party is entitled to
judgment as a matter of law.

See Fed.R.Civ.P. 56(a).

Here, in

granting the defendant’s motion to dismiss and motion for summary
judgment, the Court deemed the motion to be unopposed.

Even so,

the Court did not grant the motion as unopposed simply to sanction
the plaintiff for her failure to respond.

To the contrary, the

Court proceeded to address the merits of the motion, and determined
that the motion indeed had merit, specifically observing with
clarity that:
The plaintiff claims that the defendant retaliated
against her because her deceased father was a civil
10

See also Luera v. Kleberg County, Texas, No. 11-40774,
2012 WL 490407 (5th Cir. Feb. 15, 2012). In Luera, an unpublished
opinion, the Fifth Circuit noted:
We have approached the automatic grant of a
dispositive motion, such as a grant of summary
judgment based solely on a litigant’s failure
to respond, with considerable aversion.... In
this case, however, the record makes clear
that the district court dismissed the suit
based on its merits and not as a sanction....
Id. at *1-2 (noting that the plaintiff did not respond to the
defendant’s motion for summary judgment, that the district court
treated the motion as unopposed and that the district court then
proceeded to analyze the merits in granting the motion).
10

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 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.
11

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)).
See Order dated February 17, 2012, p.1 at n.1.11 In connection with
her request that the Court reconsider its Order, the plaintiff
still has not submitted a response to the defendant’s motion to
dismiss and for summary judgment.

In fact, the plaintiff makes no

mention of this Court’s findings, makes no effort to substantiate
her claims, and otherwise fails to suggest that the Court’s
findings based on the summary judgment record are unfounded or
undermined by any materials the plaintiff hypothetically may wish
to present.

In failing even to suggest that she could submit

evidence discharging her burden of proving her discrimination
claims (or in failing to suggest that she could raise genuine
disputes as to the material facts established by the defendant’s
presentation), she likewise fails to persuade this Court that
reconsideration of its grant of summary judgment is warranted.12

11

The Court notes that the Federal Rules do not require
that district courts state their findings or conclusions when
ruling on a motion under Rule 12 or 56. See Fed.R.Civ.P. 52(a)(3).
12

Cf. Bustos v. Martini Club, Inc., 599 F.3d 458 (5th Cir.
2010). In Bustos, the Fifth Circuit affirmed a district court’s
grant of summary judgment in favor of defendants when the plaintiff
failed to respond, observing that:
12

Accordingly, the plaintiff’s motion for reconsideration is
DENIED.

New Orleans, Louisiana, March 5, 2012

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

The defendants submitted competent summary
judgment evidence showing that there were no
genuine issues of fact for trial as to the
forsseeability of the altercation. They also
submitted evidence that the [defendant]
Martini Club did not serve individuals who
appeared to be intoxicated, had not violated
any Texas Alcoholic Beverage Commission rules,
and that the Club’s premises were not unsafe.
Bustos did not respond to the motion for
summary judgment in the district court and
therefore failed to carry his burden of
showing that material factual issues existed.
He cannot now assert that the district court’s
reliance on the defendants’ uncontested
evidence was improper. The district court did
not err in granting summary judgment.
Id. at 468-69. In the present matter, the plaintiff would have
been well-served in submitting, along with her motion to
reconsider, any arguments or evidence that might undermine this
Court’s findings on the merits of the defendant’s summary judgment
presentation.
Counsel for plaintiff suggests that he has been
diligently preparing the case for trial, including conducting
depositions. Without demonstrating that this Court erred in its
ruling, however, this representation falls short of satisfying the
Rule 59(e) standard.
13