Smith v. Potter et al

Filing 38

MEMORANDUM RULING granting in part and denying in part 13 MOTION for Summary Judgment filed by John E Potter and U S Postal Service. Signed by Chief Judge Robert G James on 01/20/12. (crt,Yocum, M)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
KIMBERLY S. SMITH

CIVIL ACTION NO. 10-0121

VERSUS

JUDGE ROBERT G. JAMES

JOHN E. POTTER, ET AL.

MAG. JUDGE KAREN L. HAYES

RULING

Pending before the Court are Defendants John Potter, Postmaster General, and the United
States Postal Service’s Motion for Summary Judgment. [Doc. No. 13]. Plaintiff Kimberly Smith
(“Smith”) filed a Memorandum in Opposition to Defendant’s Motion for Summary Judgment.
[Doc. No. 37].
For the following reasons, the Government’s motion is GRANTED IN PART and
DENIED IN PART.
I.

Background
This disability discrimination, hostile work environment, and retaliation case stems from

adverse employment actions Smith claims she suffered due to a number of disabilities.1 Smith
began working with the United States Postal Service on March 18, 1995. Since late 1995, Smith
has worked at the Post Office in Bastrop, Louisiana. Although the record does not clearly
indicate all of Smith’s duties as a postal employee, her responsibilities included driving a
delivery truck.
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Although the bulk of Smith’s discrimination claim rests on her fibromyalgia, she also claims to suffer
from chronic fatigue, post-traumatic stress disorder, irritable bowel syndrome, pre-diabetes,
hypoglycemia, abnormal heart palpitations, and carpal tunnel syndrome.

Smith alleges that between August 2007 and February 2008, the Bastrop Postmaster,
Serinna Waters (“Postmaster Waters”), discriminated against her on the basis of her disability
and retaliated against her for filing Equal Employment Opportunity Commission (“EEOC”)
complaints.
On August 8, 2007, Smith claims she became ill from heat exhaustion while driving her
route. Smith worked on both August 8 and 9, but on August 10 submitted a request for five days
of sick leave. Smith states that postal management denied this request even though she had
accrued sufficient sick leave to cover the requested absence.
On August 29, 2007, Smith left work because she was not feeling well. As she drove
away from the Bastrop Post Office, Smith’s vehicle struck a police vehicle in the parking lot. On
September 13, 2007, postal management issued a letter of warning to Smith concerning her
absence, which noted Smith “seemed impaired” before leaving on August 29, 2007. [Doc. No.
35-1, p. 2].
On September 18, 2007, Smith tripped over a power cord at the Bastrop Post Office,
injuring herself. Postal management issued a Notice of Traumatic Injury that attributed the
accident to Smith’s “inattentativeness.” [Doc. No. 34-2, p. 1]. Around this period, Smith also
claims that Postmaster Waters allowed Smith’s coworkers to “laugh and make negative
comments about [Smith’s] disabilities.” [Doc. No. 1, p. 3]. Following these incidents, Smith
filed her original discrimination claim with the EEOC on January 26, 2008.
On February 16, 2008, several postal customers noticed Smith driving erratically while
delivering mail and eventually driving into a ditch. Police escorted Smith away from her postal
vehicle, and on February 25, 2008, postal management placed Smith on non-pay status. Postal
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management later reimbursed Smith for the missed pay after an internal investigation concluded
that Postmaster Waters was unable to rebut Smith’s claim that her behavior was caused by low
blood sugar.
Beginning on February 20, 2008, Smith claims postal management declined to give her
overtime work because she had filed an EEOC complaint. On November 1, 2008, postal
management gave Smith a notice of removal after an investigation uncovered that Smith did not
disclose a prior DWI conviction on her application to the Postal Service. This led Smith to add a
retaliation claim to her prior EEOC complaint on December 14, 2008.
On December 23, 2008, postal management revoked the notice of removal because the
DWI conviction occurred six years prior to Smith’s employment with the Postal Service.
Nonetheless, postal management placed Smith on a 14-day, unpaid suspension for not accurately
completing her application. On January 9, 2009, Smith struck another vehicle while driving her
delivery truck. As a result, Smith was placed on a second, 14-day suspension. After serving her
suspension, Smith submitted a FMLA certification that requested additional leave time. Postal
management denied this request, but Smith did not return to work at the Bastrop Post Office.
Following an investigation, Smith requested a hearing before an EEOC Administrative
Law Judge (“ALJ”). The ALJ issued a decision denying Smith’s claims on May 1, 2009. Smith
appealed the ALJ’s decision to the Office of Field Operations, which upheld the ALJ’s decision
on October 26, 2009. Although postal management has never officially terminated Smith’s
employment with the Bastrop Post Office, Smith states that her last day at work was February 19,
2009.
Smith filed this suit on January 27, 2010, alleging unlawful disability discrimination and
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hostile work environment under The Rehabilitation Act. 29 U.S.C. §§ 791, 794. Smith also
alleges that Postmaster Waters violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-3(a), by retaliating against her for filing a discrimination claim with the EEOC. Smith
seeks an injunction prohibiting postal management from engaging in any additional,
discriminatory practices and ordering Postmaster Waters to reinstate Smith to full pay status.
Smith also seeks recovery for lost wages, liquidated damages, lost fringe benefits, other
pecuniary losses, compensatory damages, attorney fees, litigation expenses, and costs.
II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

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). The moving party bears the
initial burden of informing the court of the basis for its motion by identifying portions of the
record which highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954
F.2d 1125, 1132 (5th Cir. 1992). A fact is “material” if proof of its existence or nonexistence
would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the
evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving
party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache
Corp., 19 F.3d 1017, 1023 (5th Cir. 1994). The nonmoving party must show more than “some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). In evaluating the evidence tendered by the parties, the Court
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must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its
favor. Anderson, 477 U.S. at 255.
III.

LAW & ANALYSIS
In its Motion for Summary Judgment, the Government argues that the Court should grant

summary judgment against Smith because she has failed to show a prima facie case of disability
discrimination, hostile work environment, and retaliation, and because the Government has
offered non-retaliatory reasons for the actions taken against Smith. Smith argues that the Court
should deny the Motion for Summary Judgment because there is a genuine issue of material fact
as to whether Smith was disabled. Additionally, Smith argues there is a genuine issue of material
fact as to whether postal management discriminated against her, whether she was subjected to a
hostile work environment, and whether the personnel actions were retaliatory.
The Rehabilitation Act protects an “otherwise qualified individual with a disability in the
United States . . . [from] discrimination under any program or activity receiving Federal financial
assistance . . . or activity conducted by the United States Postal Service.” 29 U.S.C. § 794(d).
The Rehabilitation Act adopts the standards applied under Title I of the Americans with
Disabilities Act (“ADA”) to determine whether there has been a violation. 29 U.S.C. § 794(d).
The ADA defines a qualified individual as “an individual with a disability who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C. § 12111(8). In turn, the ADA defines
disability as “(A) a physical or mental impairment that substantially limits one or more of the
major life activities of such individual; (B) a record of such an impairment; or (C) being regarded

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as having such an impairment.” § 12102(2).2
The ADA regulations provide that a plaintiff is substantially limited when she is unable
to perform a major life activity that the average person in the general population can perform or
is significantly restricted in her ability to perform the activity. 29 C.F.R. § 1630.2(j). In
determining whether an individual is substantially limited in a major life activity, EEOC
guidance suggests that courts consider: “(i) the nature and severity of the impairment, (ii) the
duration or expected duration of the impairment; and (iii) the permanent or long-term impact, or
the expected permanent or long-term impact resulting from the impairment.” 29 C.F.R. §
1630.2(j).3
When a Rehabilitation Act plaintiff relies on circumstantial evidence, the Court evaluates
the case under the McDonnell Douglas burden-shifting framework. See generally McInnis v.
Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 279-80 (1973)). Under this framework, a plaintiff must demonstrate “(1)
[s]he is disabled, has a record of disability, or is regarded as disabled; (2) [s]he is qualified for
the job; (3) [s]he was subjected to an adverse employment action on account of [her] disability;
and (4) [s]he was replaced by or treated less favorably than non-disabled employees.” McInnis

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As the Fifth Circuit has noted, there are two sources of guidance for determining whether a plaintiff’s
disability qualifies under the Rehabilitation Act–the regulations interpreting the Rehabilitation Act as
well as the regulations interpreting the ADA. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 614
(5th Cir. 2009). Therefore, the Court uses both sources in evaluating Smith’s complaint.

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The EEOC regulations implementing the ADA Amendments Act of 2008 emphasize that courts should
not rigorously scrutinize a plaintiff’s disability. Instead, the new regulations focus on whether
discrimination has occurred. Nonetheless, the facts underlying Smith’s disability claim occurred prior to
the January 2009 effective date. Therefore, the Court evaluates Smith’s claims under the ADA and
associated agency guidance as it existed prior to the 2008 amendments.

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411 U.S. at 279.
Once a plaintiff meets this burden, the defendant must “articulate a legitimate,
non-discriminatory reason for the adverse employment action.” Id. at 280. If the defendant
meets this burden, “the plaintiff must then offer sufficient evidence to create a genuine issue of
material fact either (1) that the defendant’s reason is not true, but is instead a pretext for
discrimination; or (2) that the defendant’s reason, while true, is only one of the reasons for its
conduct, and another motivating factor is the plaintiff’s protected characteristic.” Rachid v. Jack
in the Box, Inc., 376 F.3d 305, 312-13 (5th Cir. 2004).
A.

Disability

Regarding the disability discrimination claim, the Government argues that Smith is not
disabled within the meaning of the Rehabilitation Act. According to the Government, “[Smith’s]
medical reports do not reflect that she suffers from any limitation to a major life activity. To the
contrary, her doctors repeatedly indicate in their notes that she is able to drive and perform her
job.” [Doc. No. 13-1, p. 18]. The Government emphasizes that Smith’s doctors recommended a
diet that should have prevented any hypoglycemic reactions. Another doctor advised that an
increased amount of time off from work would prevent her reactions. Finally, the Government
states that the Bastrop Post Office convened a committee to address Smith’s alleged disability
and invited Smith to participate in the committee’s discussions. The committee recommended
that Smith request light duty and seek counseling from the Personnel Office about switching
positions, options that Smith did not pursue.
Smith argues that she is disabled under the Rehabilitation Act. In support, Smith submits
lengthy medical reports detailing her “multiple impairments.” [Doc. No. 37, p. 9]. Much of the
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reports detail periods not relevant to this action. Nonetheless, Smith has submitted reports
indicating that she was diagnosed during the relevant time period with fibromyalgia, reactive
hypoglycemia, generalized anxiety symptoms, hypomanic symptoms, chronic dysmenorrheal
endometriosis, extreme diarrhea, restless leg syndrome, memory loss, depressive disorder,
bipolar disorder, and polymenorrhea. Smith had previously been diagnosed with post-traumatic
stress disorder, but the record does not clearly indicate that Smith’s major life functions were
affected by PTSD during the relevant period. At least one doctor concluded that Smith is
“incapable of any gainful employment” due to her fibromyalgia. [Doc. No. 37-13, p. 27].
The Court finds that Smith has submitted evidence sufficient to satisfy the first prong of
McDonnell Douglas4 and demonstrate that she is disabled. Smith has put forward numerous
doctors’ assessments that indicate she has substantial difficulty focusing as well as working, both
activities listed as major life functions under the EEOC regulations. See McInnis, 207 F.3d at
281. One doctor’s evaluation concluded that Smith cannot work in any capacity due to her
disabilities.5 Therefore, the Government’s Motion for Summary Judgment on Smith’s disability
discrimination claim is DENIED.
B.

Hostile Work Environment Claim

In her complaint, Smith alleges that Postmaster Waters violated the Rehabilitation Act by

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In Smith’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment, Smith supports
her retaliation claim by alleging that postal management denied her FMLA leave time in February 2009.
To the extent that this incident could support a disability claim under the ADA Amendments Act of
2008, the Court notes that it has already found Smith to be disabled under the more stringent, preamendment standards. Therefore, the Court need not evaluate Smith’s disability argument under the
amended standards.

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Of course this suggests that Smith may not be “qualified” for her employment, but the Government has
not moved for summary judgment on that basis.

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continually harassing her because of her disabilities. [Doc. No. 1, p. 2]. Specifically, Smith
claims that Waters “orally reprimand[ed] her for having difficulties with her casing times,” even
though Smith’s delay was due to her carpal tunnel syndrome. [Doc. No. 1, p. 2]. Smith also
claims that Waters “repeatedly allowed [Smith’s] co-workers to laugh and make negative
comments about [Smith’s] disabilities.” [Doc. No. 1, p. 2].
To the extent that Smith is asserting a hostile work environment claim, the Government
argues that the Court should grant summary judgment because Smith’s allegations, “when
viewed in the totality of the circumstances[,] are neither severe nor pervasive enough to create a
hostile work environment.” [Doc. No. 13-1, p. 19]. Smith does not respond to this argument in
her Memorandum in Opposition.
To state a disability-based harassment claim, Smith must demonstrate that the harassment
was “sufficiently pervasive or severe to alter the conditions of employment and create an abusive
working environment.” Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 236 (5th Cir.
2001). Whether an environment is sufficiently hostile or abusive to alter a term or condition of
employment depends on the totality of the circumstances, including the frequency and severity of
the conduct, whether the conduct is physically threatening or humiliating, and whether the
conduct unreasonably interferes with an employee’s job performance. Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21-22 (1993). The severity of the harassment should be judged from a
reasonable person’s perspective in the plaintiff’s position, considering all the circumstances.
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998).
The Supreme Court has repeatedly emphasized that “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
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terms and conditions of employment.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71
(2001) (internal quotes omitted). Additionally, plaintiffs may not rely on “unsubstantiated
assertions” of harassment to survive summary judgment. Dortch v. Mem’l Herman Healthcare
Sys.- Southwest, 525 F. Supp. 2d 849, 874 (S.D. Tex. 2007) (quoting Ragas v. Tenn. Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)).
The Court finds that Smith has not alleged facts sufficient to state a hostile work
environment claim. Smith does not offer specific statements of her coworkers that she
interpreted as harassment, but rather relies on her allegation that Postmaster Waters allowed her
co-workers to “laugh and make negative comments.” Additionally, Smith claims that Postmaster
Waters “orally reprimanded” her for not timely completing her assignments. Such conclusory
allegations do not demonstrate that Smith was subjected to harassment sufficient to alter a term
or condition of her employment. Therefore, the Government’s Motion for Summary Judgment
on Smith’s hostile work environment claim is GRANTED.
C.

Retaliation Claim

Smith alleges that postal management retaliated against her for “filing an EEOC Charge
of Discrimination thereby violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-3(a), 16.” [Doc. No. 1, p. 6]. In her Memorandum in Opposition, Smith broadens the
allegedly protected activity that forms the basis of her retaliation claim: “In this case, the
summary judgment evidence submitted by Ms. Smith clearly shows a close temporal proximity
between several instances of protected activity and adverse actions. (See Exhibits Nos. 2, 3, 4, 5,
6, 7, 8, 9, 9A). Therefore, Ms. Smith has established a prima facie case of retaliation.” [Doc.
No. 37, p. 17]. These documents detail the tenuous relationship between Smith and the Bastrop
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Post Office that is discussed in the facts of this Ruling.
The Government argues that the Court should grant summary judgment as to Smith’s
retaliation claim because Smith has not demonstrated a causal connection between her EEOC
complaint and subsequent employment actions. The Government states, “[t]he only attempt at
proffering evidence of such [connection] are her own bare allegations, which standing alone,
[are] insufficient to show a causal connection.” [Doc. No. 13-1, p. 20]. Smith argues that the
proximity between the protected activity and the adverse actions is sufficient to demonstrate
causality.
To establish a prima facie case of Title VII retaliation, “a plaintiff must show that: (1)
[s]he engaged in activity protected by Title VII; (2) [s]he was subjected to an adverse
employment action; and (3) a causal link exists between the protected activity and the adverse
employment action.” Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004).
The Court finds that Smith has not alleged facts sufficient to state a Title VII retaliation
claim. Under Title VII, a plaintiff engages in protected activity when she 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.” Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996) (citing 42
U.S.C. § 2000e-3(a)). Here, Smith has not alleged any such protected activity. Instead, Smith
has alleged disability discrimination, and her retaliation claim must be asserted under the
retaliation provisions of the Rehabilitation Act. 29 U.S.C. § 794.
Therefore, the Court gives notice of its intent to sua sponte grant summary judgment in
favor of the Government as to the Title VII retaliation claim. If Smith opposes the Court’s
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intended disposition of this claim, she shall file a memorandum in opposition within fourteen
days of this Ruling and Judgment. Smith’s memorandum shall not exceed ten pages.
If Smith intends to assert a retaliation claim under the Rehabilitation Act, Smith shall file
a motion for leave to amend her complaint within fourteen days of the date of this Ruling.
IV.

CONCLUSION
For the foregoing reasons, the Government’s Motion for Summary Judgment is

GRANTED IN PART and DENIED IN PART. The Government’s Motion for Summary
Judgment on Smith’s hostile work environment claim under the Rehabilitation Act, 29 U.S.C. §
794, is GRANTED, and this claim is DISMISSED WITH PREJUDICE.
The Government’s Motion for Summary Judgment on Smith’s disability discrimination
claim under the Rehabilitation Act, 29 U.S.C. § 794, is DENIED.
To the extent that the Government moves for summary judgment on Smith’s Title VII
retaliation claim, 42 U.S.C. § 2000e-3(a), the Motion for Summary Judgment is DENIED on the
basis asserted by the Government. The Court, however, gives notice of its intent to sua sponte
grant summary judgment in favor of the Government as to Smith’s Title VII retaliation claim. If
Smith opposes the Court’s intended disposition of this claim, she shall file a memorandum in
opposition within fourteen days of this Ruling and Judgment. Smith’s memorandum shall not
exceed ten pages.

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If Smith intends to assert a retaliation claim under the Rehabilitation Act, Smith shall file
a motion for leave to amend her complaint within fourteen days of the date of this Ruling and
Judgment.
MONROE, LOUISIANA, this 19th day of January, 2012.

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