Anthony v. Potter

Filing 61

ORDER and REASONS granting 41 Motion for Summary Judgment. Signed by Judge Helen Ginger Berrigan on 06/23/11. (PAH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JANET E. ANTHONY

CIVIL ACTION

VERSUS

NO. 09-1009

JOHN POTTER, POSTMASTER
GENERAL, UNITED STATES POSTAL SERVICE

SECTION: “C” (3)

ORDER AND REASONS1
Before the Court is a motion for summary judgment, filed by Defendant John Potter,
Postmaster General, United States Postal Service (“USPS”). (Rec. Doc. 41). Plaintiff Janet E.
Anthony (“Anthony”) opposes the motion. (Rec. Doc. 46). Having reviewed the memoranda of the
parties, the record in the case, and the applicable law, the Court GRANTS Defendant’s Motion for
the following reasons.

I. BACKGROUND
Anthony brings this action under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, and the Age Discrimination of Employment Act of 1967 (“ADEA”), 29 U.S.C. §
621(1)(a). Anthony alleges that she was discrimination against based on her race, gender, and age,

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Max Weiss, a second year student at Tulane University Law School, assisted in the preparation of this Order.

and because of her prior Equal Employment Opportunities (“EEO”) activity and letter to Senator
Mary Landrieu, was retaliated against by being temporarily reassigned to another Post Office in the
aftermath of Hurricane Gustav. (Rec. Doc. 1 at 4-5).
Anthony was employed by the United States Postal Service (“USPS”), and prior to
Hurricane Katrina she held the position of Manager of Transportation Networks in the New Orleans
office. (Rec. Doc. 1 at 1). After Hurricane Katrina, she was transferred to the Baton Rouge office,
holding the same position. Id. During this time she would come to New Orleans early in the week
and return to Baton Rouge later in the week. (Rec. Doc. 50-3 at 1). In June 2008, she was
“detailed” to the position of Service Coordinator and stationed in Baton Rouge full time. Id. On
August 16, 2008, Carol Weisiger (“Weisiger”) arrived at the Baton Rouge facility as Acting Plant
Manager and Anthony’s supervisor. (Rec. Doc. 41-2 at 4,5,6).
Hurricane Gustav made landfall on the South Louisiana coast on September 1, 2008. One
week prior, the Postal Service began to prepare for the arrival of the storm by closing the New
Orleans facility and re-routing inbound mail to other facilities, such as the USPS facility in Port
Allen, Louisiana. (“Port Allen”). Id. at 1-2 ; (Rec. Doc. 1 at 3). Pursuant to USPS emergency
protocol, numerous employees from all over the Southwest were called into the Southern Louisiana
region to help work through the backlog of mail. Id. at 6. These employees were often asked to
perform duties outside their regular job descriptions. Id. at 10. On September 3, 2008, Weisiger
reassigned Anthony from her temporary “detail” position and instructed her to report to Port Allen
to assist in processing the backlog of mail that had accumulated in the aftermath of the hurricane.
(Rec. Docs. 1 at 3-4; 41-2 at 6). Anthony remained at Port Allen for three weeks. (Rec. Doc. 1 at
3). During this time, Anthony alleges that she incurred a moderate to severe case of carpal tunnel

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syndrome, swollen knees, and chrondritis in her chest. Id. at 4. After the three weeks, Anthony
went on extended sick leave until she ultimately retired from the USPS in January 2009. Id.
Anthony, an African-American female, who at the time of Gustav was 59 years-old, alleges
that she was subject to gender, age, and race discrimination by being made to do mail processing
work in Port Allen, unlike similarly situated younger white males. Id. at 1, 4-5; (Rec. Doc. 46-1
at 1). She claims that a white male co-worker, Gary LaBorde (“LaBorde”), was not transferred to
another facility. Id. at 2, 5. She also indicated that Herman Ellis (African-American, male, over 55)
and Martha Bratcher (Caucasian, female, age unknown) were also not instructed to go to another
facility to process mail. (Rec. Doc. 41-2 at 9).
Anthony also alleges that her reassignment to Port Allen was in retaliation for her filing a
prior EEO complaint as well as a congressional complaint to Senator Mary Landrieu. (Rec. Doc.
1 at 4). Specifically, on February 14, 20082, Anthony had filed an EEO complaint alleging
discrimination based on her age, sex, and race. Id.; (Rec. Doc. 41-3 at 16). She had filed this
complaint after she received a letter of warning in January 2008, because of emails she had sent to
a previous supervisor that were deemed inappropriate. (Rec. Doc. 41-3 at 16). The complaint was
dismissed by the EEO agency on March 27, 2008, with a finding of no discrimination. Id. at 17.
On August 2, 2008, Anthony sent a letter to Senator Landrieu in which she gave a detailed account
of her frustration regarding the general operations, functioning, organization, policies, and
management of the USPS. (Rec. Doc. 41-5 at 7-14). Senator Landrieu in turn, sent a letter dated
August 25, 2008, to Daisy Comeaux (“Comeaux”), the Direct of Public Relations for the USPS in
New Orleans. Id. at 6. The date stamp on the Senator’s letter, the enclosure, and the exterior of the

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The EEO Complaint went formal on May 22, 2008. (Rec. Doc. 1 at 4); Plaintiff’s Deposition at 42.

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envelope, which indicates receipt by the District Manager’s Office, is marked September 9, 2008.
Id. at 6, 7, 15.
On October 14, 2008, while on extended sick leave, Anthony contacted an EEO counselor
and on December 19, 2008, filed a formal complaint with the agency. (Rec. Doc. 41-3 at 3, 4). On
June 8, 2009, the EEO issued a decision with a finding of no discrimination. Id. at 6, 7.

II. Law and Analysis
a. Summary Judgment Standard
Summary judgment is proper when the record indicates that there is not a “genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. A genuine issue of fact exists 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, 247-48 (1986);
see also Taita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001). When
considering a motion for summary judgment, this Court “will review the facts drawing all inferences
most favorable to the party opposing the motion.” Reid v. State Farm Mut. Auto Ins. Co., 784 F.2d
577, 578 (5th Cir. 1986).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact .” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its initial burden, however, “the burden shifts to
the non-moving party to produce evidence or designate specific facts showing the existence of a
genuine issue for trial.” Engstrom v. First Nat’l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.

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1995). In order to satisfy its burden, the non-moving party must put forth competent evidence and
cannot rely on “unsubstantiated assertions” and “conclusory allegations.” See e.g., Hopper v. Frank,
16 F.3d 92 (5th Cir. 1994); Lujan v. Nat’l. Wildlife Fed’n., 497 U.S. 871, 871-73 (1990); Donaghey
v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

b. Disparate Treatment Based on Race and Gender
Anthony alleges that she was subject to race and gender discrimination when she was
reassigned from her managerial position to perform mail processing work at Port Allen, unlike
similarly situated white males. (Rec. Doc. 1 at 4-5). Title VII of the Civil Rights Act of 1964
(“Title VII”) provides that it “shall be unlawful employment practice for an employer . . . to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, sex, or national origin . . .” McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973) (citing 42 U.S.C. § 2000e-2(a)). In McDonnell Douglas Corp. v. Green, the
Supreme Court established a burden shifting framework to analyze Title VII discriminatory
treatment cases that can only be proven by circumstantial evidence. 411 U.S. at 802. First, the
plaintiff must make a prima facie case by demonstrating that: (1) she was a member of a protected
class, (2) she was qualified for her position, (3) she was subjected to adverse employment action,
and (4) similarly situated employees not in her protected class were treated more favorably in like
circumstances. McDonnell Douglas, 411 U.S. at 802; Pegram v. Honeywell, Inc., 361 F.3d 272, 281
(5th Cir. 2004). If the plaintiff establishes her prima facie case, the burden then shifts to the
employer to put-forth legitimate, non-discriminatory reasons for its actions. McDonnell Douglas,

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411 U.S. at 802. Upon doing so, the burden then shifts back to the plaintiff to show that the
employer’s legitimate reasons were just pretext for discrimination. Id.
The Fifth Circuit utilizes a “strict interpretation of the adverse employment element of the
prima facie intentional discrimination case.” Pegram, 361 F.3d at 282. Under Title VII principles,
an employment action that “does not affect job duties, compensation, or benefits” is not an adverse
employment action. Id. (quoting Banks v. E Baton Rouge Parish School Bd., 320 F.3d 570, 575 (5th
Cir. 2003)). “Rather, an adverse employing action consists of ‘ultimate employment decisions such
as hiring, granting leave, discharging, promoting, and compensating.’” Id. (quoting Felton v. Polles,
315 F.3d 470, 486 (5th Cir. 2002)). “Circuit precedent establishes that in cases where the evidence
produces no objective showing of a loss in compensation, duties, or benefits, but rather solely
establishes that a plaintiff was transferred from a prestigious and desirable position to another
position, that evidence is insufficient to establish an adverse employment action.” Id. at 283.
Demotions can qualify as adverse employment action under Title VII. Sharp v. City of Houston, 164
F.3d 923, 933 (5th Cir. 1999). An employment transfer may qualify as an adverse employment
action if the change makes the job “objectively worse.” Id. (quoting Hunt v. Rapides Healthcare
Sys., 277 F.3d 757, 770 (5th Cir. 2001)). Thus, in determining whether an employment action was
adverse, courts should view the action objectively. Pelgam, 361 F.3d at 283.
Anthony cannot carry her burden of proof for the third element of a prima facie case for
Title VII discrimination – that she was subjected to adverse employment action. At her deposition,
Anthony testified that while she was working out of Port Allen, she received the same salary and
benefits she had been receiving prior to Gustav, including sick and annual leave at the same rate,
as well as retirement. (Rec. Doc. 41-3 at 13, 14). Although Anthony alleges that she was told by

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a person delivering her orders at Port Allen that she was “nothing but a clerk,”Anthony admitted that
she had not been demoted. Id. at 13, 14; (Rec. Doc. 46 at 2). The USPS was in the process of
recovering from a disruptive hurricane, and based on established policies, employees of all positions
and description were called in from all over the region to help with the backlog of mail. (Rec. Doc.
41-2 at 6). Weisiger testified that she gave orders that any non-essential personnel needed to help
in mail processing and that the employees were to return to their regular positions after the needs
had been met. Id. at 10. Anthony was not in an essential position, so she was utilized to help
process mail based on the needs of the USPS. Id. at 6. Anthony testified that she was aware of other
management staff assigned to the workroom floor to assist where they could. (Rec. Doc. 41-3 at 23).
She also admitted that no one at the USPS ever told her that she wasn’t allowed to return to her
previous position once the needs at Port Allen were met. Id. at 11. Anthony’s reassignment was
temporary and based on the need for USPS employees to share in the burden of bringing the mail
back to speed after a disruptive hurricane. Id.; 41-2 at 10. She suffered no loss in wages or
benefits, and she was not demoted. Id. at 13, 14. While her duties did change, this was only a
temporary reassignment and therefore Anthony did not “lose” any duties on a permanent basis.
Pelgram, 361 F.3d at 282 (quoting Banks, 320 F.3d at 575). Therefore, Anthony cannot carry her
burden as she did not experience an adverse employment action.
Additionally, Anthony cannot carry her burden of proof for the fourth element of a prima
facie case for Title VII discrimination – that similarly situated employees not in her protected class
were treated more favorably. Okoye v. Univ. of Texas Houston Health Sci. Ctr., 245 F.3d 507, 51213 (5th Cir. 2001). In disparate treatment cases, the plaintiff-employee must show “nearly identical
circumstances” for employees to be considered similarly situated. Berguist v. Wash. Mut. Bank, 500

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F.3d 344, 353 (5th Cir. 2007). Anthony identified Gary LaBorde as the similarly situated employee
outside her protected class who was treated more favorably by not being moved from his regular
position. (Rec. Docs. 1 at 2, 4; 41-3 at 9-10). LaBorde is a Caucasian male who during the time at
issue was the New Orleans in-plant support manager, and like Anthony, reported directly to
Weisiger. Id. at 2; (Rec. Doc. 41-3 at 10). Weisiger testified that LaBorde was considered an
essential employee and based on his expertise, was one of only five people selected to temporarily
close the General Mail Facility in New Orleans and to return to New Orleans immediately after the
storm to reopen the facility. (Rec. Doc. 41-2 at 3). Anthony had a different title with different
responsibilities than LaBorde, and as discussed earlier, was not considered an essential employee.
Id. at 6. The record demonstrates that Anthony and LaBorde were not similarly situated employees.
Therefore, Anthony cannot carry her burden of showing that a similarly situated employee was
treated more favorably.
Since Anthony cannot carry the burden of proving a prima facie case, as a matter of law, her
claim of employment discrimination based on race and gender must be dismissed.

c. Age Discrimination Claim
Under the Age Discrimination in Employment Act of 1967 (“ADEA”) it is unlawful for an
employer to discriminate against any individual with respect to her compensation, terms, conditions,
or privileges of employment, because of such individual’s age. 29 U.S.C. § 623 (a)(1). To establish
a prima facie case of age discrimination, the plaintiff must establish that: (1) she is forty or older;
(2) she was subjected to adverse employment action; and (3) there is a causal link between her age
and the employer’s action. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312, 313

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(1996). To establish a disparate treatment claim under the ADEA, the plaintiff must prove by a
preponderance of evidence that age was the “but-for” cause of the employer’s adverse action.
Gross v. FBL Fin. Serv, Inc., 129 S.Ct. 2343, 2352 (2009). If the plaintiff satisfies her prima facie
case, the burden of persuasion does not shift to the employer to show that it would have taken the
action regardless of age. Id.
Here, Anthony can establish only the first element of an age discrimination claim - that she
is older than forty. As mentioned supra, Anthony cannot carry her burden to prove that her
temporary reassignment rose to the level of adverse employment action. The standard of “adverse
employment action” under the ADEA is the same as under Title VII. See Meinecke v. H & R Block
of Houston, 66 F.3d 77, 83 (5th Cir. 1995) (noting that “the first three elements of a prima facie case
of age discrimination under the ADEA are identical to the first three elements of a Title VII prima
facie case.”). Furthermore, Anthony cannot carry her burden to prove that her age was the “but for”
cause of her alleged adverse employment action. Id. In her EEO complaint, Anthony indicated
three people who were not instructed to go to another facility, including LaBorde. (Rec. Doc. 41-2
at 9). According to Weisiger, all of these named employees were either over fifty years old or their
age was unknown. Id. Weisiger further testified that Anthony’s age was not a factor in her
temporary reassignment. Id. at 8. Anthony has provided no evidence that her temporary transfer
to Port Allen was motivated by age. Therefore, as a matter of law, her age discrimination claim
must be dismissed.

d. Retaliatory Discrimination Claim
Title VII makes it unlawful for an employer to retaliate against an employee who opposes

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an employment practice made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). The burden shifting
framework provided by McDonnell Douglas to analyze discrimination cases also applies to Title VII
unlawful retaliation cases. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000).
To make a prima facie case of retaliation under Title VII, a plaintiff must show: (1) that the plaintiff
engaged in an activity protected by Title VII, (2) that an adverse employment action occurred, and
(3) that a causal link existed between the protected activity and the adverse action. Raggs v.
Mississippi Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002). Summary judgment is
appropriate if the plaintiff cannot support all three elements. Stewart v. Miss. Transp. Comm’n., 586
F.3d 321, 331 (5th Cir. 2009).
An employee has engaged in an activity protected by Title VII if he has either (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.
42 U.S.C.A. § 2000e-3(a). Under Title VII, it is unlawful 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.A. § 2000e2(a)(1) (West 2011). Although informal complaints may constitute protected activity, not all
abstract grumblings or vague impressions of discontent are actionable as complaints. Hagan v.
Echostar Satellite, 529 F.3d 617, 626-27 (5th Cir. 2008). An adverse employment action is one that
would dissuade a reasonable worker from making or supporting a charge of discrimination.
Burlington N. & Sante Fe Ry. Co v. White, 548 U.S. 53, 68 (2006). Reassignment of job duties is
not automatically actionable. Id. at 71. Whether a particular reassignment is materially adverse
depends upon the circumstances of the particular case and “should be judged from the perspective

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of a reasonable person in the plaintiff’s position, considering all the circumstance.” Id.(citing
Oncale v. Sundowner Offshore Serv., Inc. , 523 U.S. 75, 81 (1998)). “The ultimate determination
in an unlawful retaliation case is whether the conduct protected by Title VII was a ‘but for’ cause
of the adverse employment action.” McDaniel v. Temple Indep. Sch. Dist., 770 F.2d 1340, 1346 (5th
Cir. 1985).
Anthony fails to establish her prima facie case because she is neither able to show that an
adverse employment action occurred nor demonstrate a causal link between the protected activity
and the adverse action. Thus dismissal is proper. Anthony’s retaliation claim focuses on her
August 2, 2008, letter to Senator Landrieu. (Rec. Docs. 1 at 4; 46 at 2-4; 41-5 at 7-14). Although
the date stamp on the Senator’s letter indicating receipt by the USPS District Manager’s Office is
clearly marked September 9, 2008, Anthony has spent considerable energy in an attempt to raise
material issues of fact regarding when the letter should have actually arrived and the District
Manager’s Office and came to the attention of her supervisors. (Rec. Docs. 46 at 2-4, 7-8; 46-1 at
6; 50-5; 41-3 at 17-21). This effort is moot, since regardless of when the letter actually came to the
attention of Anthony’s superiors, her temporary reassignment does not rise to the level of adverse
employment action protected by Title VII. As discussed supra, Anthony’s reassignment to Port
Allen after Hurricane Gustav was temporary, she was not demoted, and she received no diminution
of her salary or benefits. Plaintiff’s Deposition at 39-40. Given the circumstances of this case, a
reasonable person in Anthony’s position would not consider her temporary reassignment so
materially adverse as to dissuade her from making charges of discrimination. Burlington, 548 U.S.
at 71.
Furthermore, even if her temporary reassignment constituted adverse employment action

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under Title VII, Anthony has failed to prove a causal link between her letter to Senator Landrieu and
the allegedly adverse action. The evidence indicates the letter came to the attention of her superiors
after her reassignment, and Anthony has provided no evidence demonstrating that Weisiger knew
of this letter or that it influenced the decision to reassign her to Port Allen. (Rec. Doc. 41-5 at 6, 7,
15).
Anthony also points to her previous EEO activity as a basis for the alleged retaliatory
discrimination. (Rec. Doc. 1 at 4). The USPS conceded that Anthony’s May 2008 EEO complaint
is protected activity. (Rec. Doc. 41-1 at 19). Even assuming that her temporary reassignment was
adverse employment action, Anthony’s prima facie case for retaliatory discrimination based on her
previous EEO activity still fails because she is unable to prove a causal link existed between the
protected activity and the alleged adverse action.
Plaintiff filed her EEO complaint in late May 2008, and it was dismissed with a finding of
no discrimination. (Rec. Doc. 1 at 4; 41-3 at 16-17). Anthony’s dispute occurred with a different
manager, and not with Weigiser. (Rec. Doc. 41-3 at 16). Weisiger did not arrive at the Baton
Rouge facility as Acting Plant Manager and Anthony’s supervisor until August 16, 2008. (Rec. Doc.
41-2 at 4, 5, 6). Weisiger testified that she was unaware of Anthony’s previous EEO activity. Id.
at 6. She also testified that Anthony’s previous EEO activity was not a factor in her decision to
transfer her to the Port Allen facility. Id. at 9. Anthony even testified that she never discussed her
prior EEO activity with Weisiger. (Rec. Doc. 41-3 at 23). Anthony is unable to provide any
evidence beyond her naked assertions and conclusory belief that Weisiger was even aware of her
EEO complaint filed in the Spring of 2008. Anthony cannot prove a causal link between here
alleged protected activity and the alleged adverse employment action, an action which the Court

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does not find sufficiently adverse. Therefore, her prima facie case for retaliatory discrimination
based on her previous EEO activity must be dismissed.
The evidence demonstrates that Anthony’s race, gender, or age were not factors in the
decision to temporarily reassign her to perform mail processing in the Port Allen facility in the
aftermath of Hurricane Gustav. Furthermore, her temporary reassignment to Port Allen does not
rise to a sufficient level of adverse employment action. Additionally, the evidence demonstrates that
her complaint to Senator Landrieu, regardless of when it was received by Anthony’s supervisors,
along with her previous EEO activity, was not the impetus for her reassignment. Anthony has
produced no evidence or facts showing the existence of a genuine issue for trial in any of these
claims.

III. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion for Summary Judgment (Rec. Doc. 41) is
GRANTED.
New Orleans, Louisiana, this 23rd day of June, 2011.

_______________________________________

HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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