Bell v. Postmaster General
Filing
27
ORDER & REASONS granting 18 Motion to Dismiss for Lack of Jurisdiction and Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 11/21/2013. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CAMILLE BELL
CIVIL ACTION
VERSUS
NO. 12-2674
POSTMASTER GENERAL,
PATRICK R. DONAHOE
SECTION: “F”
ORDER & REASONS
Before the Court is the defendant's motion to dismiss and for
summary judgment.
For the reasons that follow, the motion is
GRANTED.
Background
This is an employment discrimination lawsuit.
Camille Bell, a 61 year-old African American woman, works as
a clerk in the Time and Attendance Collection Systems (TACS) Office
of the United States Postal Service in New Orleans. Bell has worked
as a TACS clerk for twelve years, and has been with the Postal
Service since 1978.
She claims that for the past few years, her
manager, Vanessa Smith, has subjected her to retaliation, age
discrimination,
racial
discrimination,
and
a
hostile
work
environment.
Bell alleges that when Smith first came to the TACS Office, she
gave
all
the
information.
clerks
a
fourteen-day
suspension
for
falsifying
Bell claims the suspensions were found meritless and
ultimately rescinded. When all the clerks filed grievances with the
National Labor Relations Board, Smith retaliated.
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On November 10,
2011, Bell filed (and later amended) a formal EEO Complaint of
Discrimination in the Postal Service against Smith, alleging nine
instances of discrimination based on age and retaliation:
1) On July 14, 2011, Smith directed Bell to move a chair from
beside her desk.
2) On August 12, 2011, Smith notified Bell that her assignment
was being reposted.
3) On August 12, 2011, Smith advised Bell that sick leave
requests for doctor's appointments would only be approved for
four hours.
4) On August 14, 2011, Smith yelled at Bell regarding union
requests.
5) On August 18, 2011 and October 31, 2011, Smith subjected
Bell to investigative interviews.
6) On September 2, 2011, Smith excluded Bell from a telephone
conference.
7) On December 7, 2011, Bell's request for leave was denied.1
8) On January 17, 2012, Bell was charged leave without pay
instead of annual leave for the period of December 29, 2011
through January 13, 2012.
9) On April 4, 2012, after arriving at work twenty minutes
late, Bell was not allowed to revise her schedule but instead
was charged leave without pay.
On September 6, 2012, the EEOC issued a Notice of Right to Sue.
On November 5, 2012, Bell filed suit in this Court against Patrick
R. Donahoe, Postmaster General of the United States Postal Service.
In her complaint in this Court, Bell alleges fourteen instances of
1
Bell alleged this incident also involved sexual
discrimination. However, she raises no sex discrimination claims
in this Court.
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retaliation,
age
discrimination,
racial
discrimination,
and
a
hostile work environment, including:
1) On February 17, 2011, Smith accused Bell of not effectively
performing her duties and threatened her job.
2) On March 3, 2011, Smith transferred a call to Bell to
assist a customer with entering time even though Bell was
suspended.
3) On March 25, 2011, Smith insisted that Bell process some
forms, even though Bell told Smith she was too busy.
4) On June 1, 2011, Smith attempted to deliver a letter to
Bell but Bell refused to accept it.
5) On July 14, 2011, Smith directed Bell to move a chair from
beside her desk because it was a safety hazard, even though
the chair had been there for years.
6) On August 12, 2011, Smith informed Bell that her job was
being reposted and that she must bid on the new position or
forfeit the job.
7) Also on August 12, 2011, Smith announced a new policy of
approving only four hours of leave for doctor's appointments.
8) On August 14, 2012, Smith became belligerent when Bell
requested a Union Representative.
9) On August 18, 2011 and October 31, 2011, Smith subjected
Bell to investigative interviews for unacceptable behavior and
failure to follow instructions.
10) On September 2, 2011, Smith excluded Bell from a telephone
conference.
11) On December 7, 2011, Smith denied Bell's request for
excess annual leave.
12) On April 4, 2012, after Bell arrived at work twenty
minutes late due to inclement weather, Smith would not adjust
her schedule and required her to take leave without pay.
13) On April 12, 2012, when Bell took her second break of the
day after lunch instead of at its regular time, Smith "began
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babbling that she will change all of this."
14) On August 6, 2012, Bell became upset after Smith pressured
her to fill out a form immediately.
The Postmaster General now moves to dismiss for failure to exhaust
administrative remedies and for summary judgment.
Bell, who is
proceeding in this case pro se, opposes dismissal.
I.
Standard for 12(b)(1) Dismissal
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the Court’s subject matter
jurisdiction.
Fed. R. Civ. P. 12(b)(1).
The burden of proof for
a Rule 12(b)(1) motion to dismiss is on the party asserting
jurisdiction. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001).
The Court may find a plausible set of facts to support
subject matter jurisdiction by considering any of the following:
“(1)
the
complaint
alone;
(2)
the
complaint
supplemented
by
undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the court's resolution of
disputed facts.” Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996).
There is disagreement in the Fifth Circuit on
whether exhaustion of Title VII claims is merely a prerequisite to
suit, or whether it is a requirement that implicates subject matter
jurisdiction and therefore Rule 12(b)(1).
Pacheco v. Mineta, 448
F.3d 783, 788 n.7 (5th Cir. 2006).
II.
Standard for Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
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judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to judgment
as a matter of law.
No genuine issue of fact exists if the record
taken as a whole could not lead a rational trier of fact to find for
the non-moving party.
See Matsushita Elec. Indus. Co. v. Zenith
Radio., 475 U.S. 574, 586 (1986).
A genuine issue of fact exists
only "if the evidence is such that a reasonable jury could return
a verdict for the non-moving party."
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See id. Therefore, "[i]f the evidence is merely colorable,
or is not significantly probative," summary judgment is appropriate.
Id. at 249-50 (citations omitted).
Summary judgment is also proper
if the party opposing the motion fails to establish an essential
element of his case.
322-23 (1986).
See Celotex Corp. v. Catrett, 477 U.S. 317,
In this regard, the non-moving party must do more
than simply deny the allegations raised by the moving party.
See
Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th
Cir. 1992).
Rather, he must come forward with competent evidence,
such as affidavits or depositions, to buttress his claims.
Id.
Hearsay evidence and unsworn documents do not qualify as competent
opposing evidence.
Martin v. John W. Stone Oil Distrib., Inc., 819
F.2d 547, 549 (5th Cir. 1987).
Finally, in evaluating the summary
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judgment motion, the Court must read the facts in the light most
favorable to the non-moving party.
III.
Anderson, 477 U.S. at 255.
Discussion
A.
The Plaintiff's Claims Based on Instances 1-4 and 13-14
and of Racial Discrimination are Barred
The defendant first contends to be entitled to dismissal of the
plaintiff's claims based on instances 1-4 and 13-14 and of racial
discrimination, based on the plaintiff's failure to exhaust her
administrative remedies respecting those claims. The Court agrees.
Title VII requires employees to exhaust administrative remedies
with the EEOC before seeking relief from federal court.
Taylor v.
Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002)(courts
may entertain a Title VII claim only if the aggrieved party has
exhausted her administrative remedies).
That is, as a condition
precedent to filing suit, a plaintiff must first file a charge with
the
EEOC
practice.
within
180
days
of
the
alleged
unlawful
employment
42 U.S.C. § 2000e-5(e)(1), (f)(1); McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
Exhaustion occurs when the
plaintiff files a timely charge with the EEOC and administrative
efforts fail to reach a resolution. McClain v. Lufkin Indus., Inc.,
519 F.3d 264, 273 (5th Cir. 2008)(“[c]ourts should not condone
lawsuits that exceed the scope of EEOC exhaustion, because doing so
would thwart the administrative process and peremptorily substitute
litigation for conciliation”).
The Court must, the Fifth Circuit
instructs, “construe[] an EEOC complaint broadly but in terms of the
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administrative EEOC investigation that ‘can reasonably be expected
to grow out of the charge of discrimination.’” Id.
Bell did not file a charge of discrimination with the EEOC
based
on
racial
discrimination;
instead,
she
asserted
only
complaints of retaliation, age discrimination, and a hostile work
environment.
Because Bell failed to exhaust her administrative
remedies with respect to her racial discrimination claims, those
claims are now barred.
Likewise, Bell's claims based on instances
1-4 and 13-14 as outlined in her complaint in this Court are barred
by her failure to raise those claims in the administrative process.
The defendant is therefore entitled to dismissal of these claims.
B.
The Plaintiff Cannot Make a Prima Facie Case of Age
Discrimination
The defendant next seeks summary judgment on the plaintiff's
age
discrimination
claims.
Claims
of
age
discrimination
are
governed by the Age Discrimination in Employment Act of 1967 (ADEA).
Under the AEDA, it is unlawful for an employer to discriminate
against any individual with respect to her compensation, terms,
conditions, or privileges of employment because of her age.
U.S.C. § 623(a)(1).
29
To establish a prima facie case of age
discrimination, the plaintiff must establish that: (1) she is at
least 40 years old; (2) she is qualified for the position; (3) she
suffered an adverse employment action; and (4) she was replaced by
a younger employee or treated less favorably than a similarly
situated younger employee.
Sandstad v. CB Richard Ellis, Inc., 309
-7-
F.3d 893, 897 (5th Cir. 2002).
If the plaintiff makes out a prima
facie case, the burden of production shifts to the defendant to
proffer a legitimate nondiscriminatory reason for the employment
decision.
Id.
Once the defendant meets its burden, the plaintiff
is left with the ultimate burden of proving age discrimination. Id.
The defendant first contends that most of the plaintiff's
claims involve "minor annoyances" that do not rise to the level of
adverse employment actions.
precedent,
"adverse
The Court agrees.
employment
actions
Under Fifth Circuit
include
only
ultimate
employment decisions such as hiring, granting leave, discharging,
promoting, or compensating."
McCoy v. City of Shreveport, 492 F.3d
551, 559 (5th Cir. 2007)(internal quotation marks and footnote
omitted).
None of the alleged instances, except number 11, when
Bell was denied use of her excess annual leave, and, perhaps, number
12, when Bell was charged leave without pay for arriving to work
late, constitute an "adverse employment action."2
But the defendant correctly responds that the plaintiff fails
to establish that she was treated less favorably than a similarly
situated younger employee.
Bell points to no worker outside the
protected class who received more favorable treatment from Smith.
In fact, she repeatedly alleges that Smith treated all the TACS
2
Even number 12 can hardly be said to be an "adverse
employment action." Although it may appear to involve the ultimate
employment decision of granting or denying leave, in fact, the
defendant claims Bell was charged leave without pay only because
she herself refused to use annual leave.
-8-
clerks poorly.
The defendant has offered legitimate, nondiscriminatory reasons
both for denying plaintiff's excess leave request and for charging
her leave without pay after she arrived to work late.
Bell was
denied use of her excess annual leave because she failed to timely
submit a leave request even after being notified of the need to do
so. Notification was hand delivered and also sent by certified mail
to Bell, specifically informing her that her failure to timely file
a leave request could result in forfeiture.
The plaintiff presents
nothing that casts doubt on the defendant's proffered reasons.
There is simply nothing on this record that the actions at issue
were motivated by age discrimination.
C. The Plaintiff Cannot Make a Prima Facie Case of
Retaliation
The defendant also seeks summary judgment on the plaintiff’s
retaliation claims.
Bell charges that Smith unlawfully retaliated
against her after she and all the other TACS clerks filed grievances
with the National Labor Relations Board challenging their 14-day
suspensions.
The defendant contends that he is entitled to summary
judgment dismissing Bell's retaliation claims because she fails to
present a prima facie case, and fails to rebut the proffered
nonretaliatory reasons for the various employment actions at issue.
The Court agrees.
Title
42,
United
States
Code,
§
2000e-3(a)
prohibits
an
employer from discriminating against an employee “because [she] has
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opposed any practice made unlawful by this subchapter....”
The well-known McDonnell Douglas burden-shifting framework
applies
to
retaliation
cases
brought
under
a
pretext
theory.
Septimus v. The University of Houston, 399 F.3d 601, 608 (5th Cir.
2005).
First, the plaintiff must establish a prima facie case of
retaliation; the plaintiff must show: (1) she participated in
protected activity under Title VII; (2) her employer took an adverse
employment action against her; and (3) a causal connection exists
between the protected activity and the adverse employment action.
Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484 (5th Cir.
2008).
In the retaliation context, "adverse employment action"
includes "any action that might well have dissuaded a reasonable
worker from making or supporting a charge of discrimination."
McCoy, 492 F.3d at 559 (5th Cir. 2007)(internal quotation marks
omitted).
burden
If the plaintiff establishes a prima facie case, the
shifts
to
the
employer
to
articulate
nonretaliatory reason for the employment action.
a
legitimate,
Aryain, 534 F.3d
at 484. If the employer meets this burden, the burden shifts to the
plaintiff
to
prove
retaliatory purpose.
the
employer’s
reason
is
pretext
for
the
Id.
The defendant contends that the plaintiff fails to satisfy the
first element of her prima facie case, that she participated in a
protected activity under Title VII.
The Court agrees.
Bell claims
that Smith retaliated against her after she filed a grievance with
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the NLRB.
The defendant correctly contends that the grievance was
not a "protected activity" within the meaning of Title VII.
"An
employee has engaged in protected activity when she has (1) opposed
any practice made an unlawful employment practice by Title VII or
(2) made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under Title VII."
Douglas v. DynMcDermott Petroleum Operations Co., 144 F.3d 364, 37374 (5th Cir. 1998)(internal quotation marks and citations omitted).
Because the grievance was not itself based on discrimination, but
was rather a challenge to the merits of the across-the-board
suspensions, it does not constitute an opposition to an unlawful
employment practice under Title VII.
Even if the Court assumes the plaintiff can make a prima facie
case
of
retaliation,
her
retaliation
claims
fail.
Once
the
plaintiff makes her prima facie case, the defendant must carry his
burden by articulating a legitimate, nonretaliatory reason for the
employment actions.
He has done so.
The defendant has articulated
nonretaliatory specific reasons for the denial of Bell's excess
leave request and for the decision to charge Bell leave without pay
when she was late for work:
Bell was denied the use of her excess
leave because she failed to timely submit her leave request despite
being notified to do so, and she was charged leave without pay
because she improperly submitted a request for change of schedule
and then refused to use her annual leave when given the option. The
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record is clear.
The burden falls to the plaintiff to establish that the
employer’s stated reason is pretext for the real, retaliatory
purpose.
Id.
She has not done so.3
Although the plaintiff claims
she complained about Smith, there is no evidence that, but-for her
complaints, she would not have been denied use of her excess leave
or charged leave without pay.4
D.
The Plaintiff Cannot Make a Prima Facie Case of a
Hostile Work Environment
The defendant also seeks summary judgment on the plaintiff's
hostile work environment claims.
To establish a hostile work
environment, the plaintiff must prove that: (1) she belongs to a
protected group; (2) she was subjected to unwelcome harassment; (3)
3
The Court is mindful that Bell is representing herself in
this matter, and accordingly her filings must be liberally
construed. See Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007)
(per curiam) (citing Estelle v. Gable, 249 U.S. 97 (1976))(“A
document filed pro se is ‘to be liberally construed’ and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”).
However, the Court notes that Bell's “pro se status does not exempt
her from the usual evidentiary requirements of summary judgment.”
See Ellis v. Principi, 246 F. App'x 867, 869 (5th Cir. Sept. 5,
2007) (per curiam) (citing Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995)); cf. Merriman v. Potter, 251 F. App'x 960, 965-66 (5th
Cir. Oct. 25, 2007) (per curiam) (referencing Fed. R. App. P. 28
and noting that “even a pro se appellant must brief the reasons for
the requested relief, including ‘citation to the authorities,
statutes and parts of the record relied on’”).
The plaintiff
failed to cite to any authority or part of the record in support of
her theory of recovery.
4
In fact, it was not even Smith, but another manager, Gary
Laborde, who denied Bell's request for use of her excess annual
leave. Bell's case seems anger-driven at best.
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the harassment complained of was based upon the protected trait; (4)
the
harassment
complained
of
affected
a
term,
condition,
or
privilege of employment; and (5) the employer knew or should have
known of the harassment in question and failed to take prompt
remedial action."
See Ramsey v. Henderson, 286 F.3d 264, 268 (5th
Cir. 2002).
For harassment to affect
privilege
employment,
of
it
must
be
a term, condition, or
"sufficiently
severe
or
pervasive to alter the conditions of the victim's employment and
create an abusive working environment."
marks
and
citations
omitted).
To
Id. (internal quotation
determine
whether
a
work
environment is hostile or abusive, the Court considers the totality
of the circumstances, including the frequency and severity of the
allegedly
discriminatory
conduct,
whether
it
is
physically
threatening or humiliating or merely offensive, and whether it
unreasonably interferes with the employee's work performance.
Id.
"Title VII was only meant to bar conduct that is so severe and
pervasive that it destroys a protected classmember's opportunity to
succeed in the workplace."
Weller v. Citation Oil & Gas Corp., 84
F.3d 191, 194 (5th Cir. 1996).
The defendant contends the plaintiff cannot satisfy several of
the threshold elements of a hostile work environment claim.
The
Court agrees. The plaintiff cannot show that the alleged harassment
was based on a protected trait.
There is no evidence to indicate
that Smith's actions were based on Bell's age, or designed as
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retaliation for any protected activity.
Neither does the record
reflect that the alleged harassment affected a term, condition, or
privilege
of
employment–-the
actions
"sufficiently severe or pervasive."
complained
of
are
not
Although Bell was in her mind
offended by Smith's actions, and it is unclear whether or to what
extent
those
actions
somehow
interfered
with
Bell's
work
performance, there is nothing of record that Smith's actions were
discriminatory, physically threatening, or humiliating. Ramsey, 286
F.3d at 268.5
Accordingly, the defendant's motion to dismiss and for summary
judgment is GRANTED.
The plaintiff's claims are hereby dismissed.
New Orleans, Louisiana, November 21, 2013
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
5
The Court also notes that it appears as though the defendant
took prompt remedial action in response to Bell's complaints of a
hostile work environment.
Manager Gary Laborde met with Human
Resources to conduct a Work Climate Assessment of the TACS Office,
and an investigative summary concluded that there was no hostile
work environment.
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