Payne v. Brennan et al
MEMORANDUM OPINION. Signed by Judge Paula Xinis on 2/15/2018. (c/m)(hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MYRON C. PAYNE
Civil Action No. PX 16-1095
MEGAN J. BRENNAN, Postmaster General,
United States Postal Service,
Pending before the Court in this employment discrimination suit is a motion to dismiss
or, in the alternative, motion for summary judgment filed by Defendant Postmaster General
Megan Brennan (ECF No. 28). The issues are fully briefed, and no hearing is necessary. See D.
Md. Loc. R. 105.6. For the reasons stated below, Defendant’s motion will be GRANTED.
Procedural and Factual Background
This case was the subject of the Court’s prior memorandum opinion granting Brennan’s
motion to dismiss without prejudice so that Payne could amend his Complaint to cure pleading
deficiencies. ECF Nos. 20, 21. Payne subsequently filed an Amended Complaint, incorporating
by reference the factual allegations included in his initial Complaint. See ECF No. 25 ¶ 1.
Although Payne failed to follow this Court’s local rules with respect to filing an Amended
Complaint, the Court recognizes that Payne is appearing pro se, and so will consider both the
original Complaint and the Amended Complaint in deciding the current motion.
Payne began his USPS service as a letter carrier in 1987. ECF No. 1 ¶ 14. In May 2005,
Plaintiff suffered an on-the-job back injury for which he filed a worker’s compensation claim
and was placed on limited duty. The limited duty assignment guaranteed Payne eight hours of
medically approved modified assignments per workday. ECF No. 1 ¶¶ 15–16. In December
2008, Payne’s worker’s compensation case was closed, ending his limited-duty status. ECF No.
1 ¶¶ 18–19. In May 2009, Payne received a letter from one of his supervisors, Postmaster Darryl
Jones, instructing Payne to submit a request to be placed on light duty, which Payne “reluctantly
and involuntarily” submitted. ECF No. 1 ¶¶ 19, 20. After being assigned to light duty, Payne’s
work hours were reduced and subsequently fluctuated between two and six hours per day without
notice or explanation. ECF No. 1 ¶¶ 21, 23, 24, 25.
On October 8, 2009, Plaintiff filed a grievance, challenging USPS’s insistence that
Plaintiff submit a light duty request and the reduction of his hours. ECF No. 1 ¶ 22. Payne
alleged that his work hours continued to fluctuate between November 2009 and January 2010.
On January 26, 2010, Plaintiff filed an EEOC complaint alleging discrimination, sexual
harassment, and retaliation. ECF No. 1 ¶ 26. Following discovery, USPS moved for summary
judgment, which the EEOC granted on June 6, 2013. More particularly, the EEOC determined
that Payne had not established that USPS unlawfully discriminated against him. ECF No. 1 ¶ 27.
Payne then moved for reconsideration and appealed the EEOC determination. The motion for
reconsideration was denied and the EEOC determination affirmed. ECF No. 1 ¶ 28.
Payne then filed his initial Complaint in this Court on April 13, 2016, alleging claims of
discrimination based on race, color, age, and disability as well as sexual harassment and
retaliation. ECF No. 1. The Court granted USPS’s motion to dismiss for failure to state a claim,
but granted Payne leave to amend the complaint. ECF Nos. 20, 21.
On May 5, 2017, Payne amended his Complaint. As to Count I, Payne’s disability
discrimination claim, Payne added allegations of specific instances of mistreatment, including
USPS not modifying Payne’s work assignments in writing, denying Payne compensation by
reducing his hours, coercing Payne into signing a light duty assigned form, presenting Payne
with the ultimatum of working reduced hours in light duty or “go home,” and creating a hostile
work environment by “covertly retaliat[ing] against plaintiff when complaints were initiated.”
ECF No. 25 ¶ 4.1 Payne also alleges that, because of his disability, he was treated less favorably
than other employees. ECF No. 25 ¶ 5.
The amendments to Count II, Payne’s Title VII color discrimination claim, are not
altogether clear. Payne adds that “all comparators are of fair or tan complexioned [sic] and
whose hours were not reduced or were in light-duty status [sic],” ECF No. 25 ¶ 9, which the
Court takes to mean that individuals whose complexions were lighter than Payne’s either did not
have their hours reduced or were not placed in light-duty status. Payne also alleges that USPS
did not make work available to him even though other employees both in and out of light-duty
status were being given overtime work. ECF No. 25 ¶ 10.
Payne adds to Count III, his age discrimination claim, the following facts: that he was 50
years old at the time the contested actions took place; that he was approximately five years older
than Jones; and that he was older than all “comparators.” ECF No. 25 ¶ 11. He further alleges
that overtime and work assignments were given to “the much younger comparators” despite
Payne previously completing the same tasks. ECF No. 25 ¶ 12.
Count IV, Payne’s sexual harassment claim, is now based on his supervisor Genese
Rollins telling Payne to use his “big arms” to move boxes, a task outside of Payne’s medically
restricted abilities. ECF No. 25 ¶ 13, 14. Payne alternatively asserts that this comment
Payne re-alleges these facts as part of his retaliation claim. See ECF No. 25 ¶ 20.
“illustrates a certain apathy or disregard . . . [to] Plaintiff’s medical condition” even if it is not
sexual harassment. ECF No. 25 ¶ 14. It appears that Payne complained internally about this
comment, but that no formal investigation occurred. Payne asserts that some time afterward, “a
letter of warning for poor attendance against Plaintiff was issued by . . . Rollins.” ECF No. 25 ¶
14. Payne does not allege to whom he made the complaint about Rollins’ comment, the contents
of the letter, or how the letter later was used by USPS.
Regarding Payne’s Rehabilitation Act claim, Count V, Payne adds that his supervisor,
Annett Ford, suggested that Payne be suspended for 14 days because he had engaged in a verbal
altercation with a coworker. Payne asserts that despite the co-worker saying, “light-duty people
need to get out of here,” and then engaging in a verbal altercation with Payne, the coworker was
not disciplined. ECF No. 25 ¶ 16. Although Payne ultimately received a letter of warning, not a
suspension, ECF No. 25 ¶ 17, Payne asserts that references to his potential suspension in the face
of his coworker receiving no discipline demonstrate that he was subject to a hostile work
environment due to his disability. ECF No. 25 ¶ 17. Payne also asserts that he had been
harassed because his supervisor required that Payne provide proof of his car trouble to
substantiate Payne’s claimed reason for being absent from work. ECF No. 25 ¶ 18.
Finally, as to the retaliation claim, Count VI, Payne adds that his change from limited to
light duty, not receiving a permanent work assignment in writing that comported with his
medical restrictions, and being told to “either work or go home,” constitutes retaliation. ECF
No. 25 ¶ 20. Payne also alleges that even after he prevailed in a nonspecific “grievance,”
management did nothing to address his concerns and spread “subtle comments” about his
performance. ECF No. 25 ¶ 21. Payne further asserts, without amplification, that no
comparators were treated similarly and that a warning letter issued by Rollins provides further
proof of retaliation. ECF No. 25 ¶¶ 14, 21.
Brennan moved to dismiss Payne’s Amended Complaint, or in the alternative, for
summary judgment on all claims. ECF No. 28. Brennan argues that Payne’s discrimination
claims fail because Payne’s allegations regarding supposed comparators lack sufficient
specificity to allow an inference that he was treated poorly because of a protected characteristic.
As to Payne’s sexual harassment discrimination claim, which Brennan construes as one based on
a hostile work environment, Brennan argues that the complained-of conduct is not plausibly
based on sex or gender. Alternatively, Brennan argues that the complained-of incidents are not
severe and pervasive enough to state a claim for a hostile work environment. Finally, with
respect to retaliation, Brennan argues that Payne has failed to allege any actionable adverse
action or that such action was because Payne engaged in protected activity. The Court addresses
each count in turn.
A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6) properly is granted when a complaint does not include sufficient factual allegations to
render the plaintiff’s claims facially plausible, or to permit reasonable inference that the
defendant is liable for the alleged misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). To assess a motion to dismiss, a court takes as true all well-pleaded factual allegations
and makes all reasonable inferences in the favor of the plaintiff. Phillips v. Pitt Cty. Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 1999). However, when determining if a plaintiff has stated a
valid claim, a court does not credit conclusory statements or a plaintiff’s legal conclusions, even
when the plaintiff purports them to be allegations of fact. See Iqbal, 556 U.S. at 678–79;
Giarrantano v. Jonson, 520 F.3d 298, 302 (4th Cir. 2008). Further, “[a] court considering a
motion to dismiss can choose to begin by identifying pleadings that, because they are not more
than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 665.
Because Payne is proceeding pro se, the Court must construe his complaint liberally to
allow for the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9
(1980). Liberal construction requires that if the Court can reasonably read the Complaint to state
a valid claim, it must do so; however, the Court cannot ignore a clear failure to allege facts
setting forth a cognizable claim. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir.
1990) (“The ‘special judicial solicitude’ with which a district court should view such pro se
complaints does not transform the court into an advocate. Only those questions which are
squarely presented to a court may properly be addressed.”). Neither should the Court “conjure
up questions never squarely presented . . . . Even in the case of pro se litigants, [district courts]
cannot be expected to construct full blown claims from sentence fragments.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
A. Counts I–V: Discrimination Based on Race, Color, Sex, Age, and
Payne brings discrimination claims based on race, color, and sex in violation of Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e-2; age in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 623(a); and disability in violation of the Rehabilitation
Act, 29 U.S.C. § 794(a). These statutes require that a plaintiff plausibly aver that because of a
protected characteristic—race, color, gender, age, or disability—his employer took some adverse
employment action against him. As amended, Payne’s allegations still do not contain sufficient
factual material to infer that this occurred here.
Discrimination can be alleged as either a disparate treatment or a hostile work
environment claim. To sustain a disparate treatment claim, a plaintiff must show (1) that he was
a member of a protected class (or is over the age of 40), (2) that his employer took an adverse
employment action against him, (3) that his job performance was satisfactory, and (4) that
similarly situated employees outside the protected class received more favorable treatment. See
Cepada v. Bd. Of Educ. of Baltimore Cty., 814 F. Supp. 2d 500, 510, 512 (D. Md. 2011).
To prove a hostile work environment claim, a plaintiff must show that the complained-of
conduct was (1) unwelcome; (2) based on a protected characteristic; (3) sufficiently severe or
pervasive to alter the conditions of employment and to create an abusive work environment; and
(4) imputable to his employer. See Pryor v. United Air Lines, Inc., 791 F.3d 488, 495–96 (4th
Cir. 2015). Whether the plaintiff has established the existence of a hostile work environment
depends on “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is
physically threatening or humiliating, or a mere offensive utterance; and (4) whether it
unreasonably interferes with [the] employee’s work performance.” Smith v. First Union Nat’l
Bank, 202 F.3d 234, 242 (4th Cir. 2000). Discrete acts that are little more than a “mere utterance
of an epithet which engenders offensive feelings” do not amount to a hostile work environment.
Boyer-Liberto v. Fontainbleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (internal quotation
marks and citations omitted). Rather, the harassing “conduct must be [so] extreme [as] to
amount to a change in the terms and conditions of employment.” Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998).
1. Hostile Work Environment
Construing Payne’s assertions liberally, the Court interprets the Amended Complaint as
alleging a hostile environment on the basis of race, sex, and disability. For the reasons discussed
below, the allegations relating to each claim are insufficient to infer the existence of a hostile
a. Hostile Environment on the Basis of Race
Payne’s allegations relate to the process by which Payne was put on light duty status,
required either to do work he was not physically capable of doing or going home, and “covert
retaliat[ion]” after Payne initiated complaints. None of these allegations, however, appear
plausibly to be based on Payne’s race. Nor do they appear to be physically threatening or
humiliating. Without additional facts making out sufficiently hostile conduct based on race, this
b. Hostile Environment on the Basis of Sex
Payne’s sexual harassment claim also appears to be based on a hostile work environment
theory. Payne bases his sexual harassment claim on his supervisor Rollins asking him to use his
“big arms” to move boxes. The Court cannot plausibly conclude that this comment was based on
Payne’s sex. But, even if it were, a single comment of this kind cannot as a matter of law state a
claim for a hostile work environment. See Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745,
753 (4th Cir. 1996).
c. Hostile Environment on the Basis of Disability
Payne’s allegations relating to a hostile work environment based on disability fare no
better. In support of his claim that he worked in a hostile environment, Payne points to his
coworker’s disparaging comment regarding individuals on light-duty status, disciplinary action
in connection with the ensuing altercation with that coworker, and his supervisor’s insistence that
he provide proof of car trouble to justify his absence from work. ECF No. 25 ¶¶ 16–17. None of
these events, taken singularly or together, create severe or pervasive hostile environment. See
Boyer-Liberto, 786 F.3d at 277; Faragher, 524 U.S. at 788; High v. R&R Transportation, Inc.,
242 F. Supp. 3d 433, 442–43 (M.D.N.C. 2017). Once again, therefore, this claim must fail.
2. Disparate Treatment
Payne’s Amended Complaint lacks sufficiently detailed allegations of fact regarding
supposed comparators to state a disparate treatment claim. Where, as here, a plaintiff’s
discrimination claim rests entirely upon comparator analysis, a plaintiff “must demonstrate that
the comparator was ‘similarly situated’ in all relevant respects.” Johnson v. Baltimore City
Police Dep’t, No. ELH-12-2519, 2014 WL 1281602, at *19 (D. Md. Mar. 27, 2014) (citing
Sawyers v. United Parcel Serv., 946 F. Supp. 2d 432, 442 n.10 (D. Md. 2013), aff’d, 576 F.
App’x 199 (4th Cir. 2014)). “Such a showing would include evidence that the employees ‘dealt
with the same supervisor, [were] subject to the same standards and . . . engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish their
conduct or the employer’s treatment of them for it.’” Haywood v. Locke, 387 F. App’x 355, 359
(4th Cir. 2010) (quoting Mitchell v. Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992)).
Comparators need not be precisely equivalent in position to a plaintiff, but there must be
sufficient similarity between them to allow appropriate comparison. See Roberts v. Coffey, No.
CIV.A. DKC 10-3359, 2012 WL 2000353, at *4 n.11 (D. Md. June 4, 2012); see also Humphries
v. CBOCS W., Inc., 474 F.3d 387, 405 (7th Cir. 2007) (“[T]he purpose of the similarly situated
requirement is to eliminate confounding variables, such as differing roles, performance histories,
or decision-making personnel . . . .”), aff’d, 553 U.S. 442 (2008).
Payne has not alleged facts to support the existence of actual comparators, who were
treated differently, sufficient to raise an inference that Payne suffered discrimination based on
any protected status.2 Rather, Payne states in conclusory fashion that “[w]hen compared to
comparators, whether in or outside of a protected class, the record is replete with instances where
because of Plaintiff[’s] race, oddly enough, he was subjected to discriminatory practices,” ECF
No. 25 ¶ 5; that “all comparators . . . of fair or tan complexioned [sic]” either did not have their
hours reduced or were not on light-duty status, ECF No. 25 ¶ 9; that Payne was told “that there
was no available work for Plaintiff yet overtime was being given to comparators,” ECF No. 25 ¶
10; that Payne is “older than all of the comparators,” ECF No. 25 ¶ 11; that “overtime and work
assignments were given to the much younger comparators,” ECF No. 25 ¶ 12; that a hostile work
environment existed “against this disabled worker and not comparators,” ECF No. 25 ¶ 17; that
“Plaintiff[ ] was the only light-duty comparator whose hours were substantially reduced and
fluctuated,” ECF No. 25 ¶ 19; and that “[n]one of the comparators were treated in . . . a manner”
like Payne, ECF No. 25 ¶ 21. Payne’s other allegations provide no additional facts to support a
finding that any other individuals were similarly situated. See, e.g., ECF No. 25 ¶ 10 (overtime
being given to other workers); ¶¶ 16–17 (difference in discipline received).3 The Court therefore
is unable to eliminate “confounding variables” and cannot plausibly infer that Payne was treated
adversely because of an illicit motive. Cf., e.g., Johnson v. Baltimore City Police Dep’t, No.
CIV.A. ELH-12-2519, 2014 WL 1281602, at *20 (D. Md. Mar. 27, 2014). See also Coleman v.
Maryland Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010), aff’d sub nom. Coleman v. Court
of Appeals of Maryland, 566 U.S. 30 (2012) (dismissing a claim where “the complaint fails to
Payne’s sex discrimination claim does not appear to be based on disparate treatment, see ECF No. 25 ¶¶
13–14, but to the extent that he intends such a claim, this argument applies with equal force.
Further confusing the matter, Payne appears to be include individuals both outside and inside his protected
class as comparators. See ECF No. 25 ¶ 5.
establish a plausible basis for believing [the comparator] and Coleman were actually similarly
situated or that race was the true basis for Coleman’s termination.”). Without more, Payne’s
claims do not plausibly aver that he was discriminated against because of his race, color, sex,
age, or disability status by virtue of disparate treatment. Accordingly, the Court dismisses
Counts I, II, III, IV, and V of Payne’s Amended Complaint.
B. Count VI: Retaliation
Title VII prohibits an employer from taking an adverse employment action against an
employee for pursuing Title VII rights or remedies. See Villa v. CavaMezze Grill, LLC, 858 F.3d
896, 900 (4th Cir. 2017). To prove retaliation, a plaintiff must demonstrate (1) that he engaged
in a protected activity; (2) that the employer took an adverse employment action against him, and
(3) that a causal link exists between the two actions. See Boyer-Liberto, 786 F.3d at 281
(internal quotation marks and citation omitted). An adverse employment action must be
sufficiently serious to dissuade a reasonable employee from making or supporting a charge of
discrimination. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Payne points to a series of events which, in his view, support his retaliation claim.
Critically, however, Payne never avers facts to make plausible a causal connection between his
engaging in protected activity and the adverse action taken in response. For example, Payne
asserts that his transfer from limited to light duty was retaliatory, but fails to aver how this action
is linked to any protected activity in which he had engaged prior to the transfer. Likewise,
Payne’s assertion that Defendant refused to give him assignments within his medical restrictions
cannot be considered retaliatory because Payne has offered no facts which link this refusal to
Payne having engaged in protected activity. ECF No. 25 ¶ 20. Nor can his assertion that he was
“given an ultimatum[ ] of either work or go home” constitute retaliation because, once again,
Payne fails to plausibly aver that the ultimatum was levelled in response to his having engaged in
any protective activity. ECF No. 25 ¶ 20.4
Payne suggests that Defendant’s spreading of “subtle comments” about his work
performance in the wake of a successful grievance, and Defendant not “addressing the concerns”
raised in the grievance, amounts to retaliation. ECF No. 25 ¶ 21. This theory also fails. First, a
retaliation claim cannot be based on Defendant’s inaction in the wake of a grievance. See
Yeager v. UPMC Horizon, 698 F. Supp. 2d 523, 546–47 (W.D. Pa. 2010) (cited by Robinson v.
G.E. Aviation, No. 7:10-cv-00240-BR, 2012 WL 607559, at *2 (E.D.N.C. Feb. 24, 2012)); cf.
Baird v. Gotbaum, 662 F.3d 1246, 1250 (D.C. Cir. 2011). Second, Payne’s characterization of
an act as “retaliation” is a conclusory allegation that the Court cannot credit; Payne has not
pleaded sufficient facts to support that “subtle comments” or “covert retaliation” constituted a
materially adverse action. Without more, Payne’s retaliation claim must be dismissed.
Finally, Payne seems to claim that Rollins retaliated against him after he complained
about Rollins saying that Payne should use his “big arms” to move boxes. See ECF No. 25 ¶ 14.
Even if Payne has sufficiently alleged that he engaged in protected activity by complaining about
perceived sexual harassment, the Court cannot see how the nonspecific letter of warning that
followed as to Payne’s “poor attendance” is “materially adverse.” See Burlington Northern, 548
U.S. at 68; Faragher, 524 U.S. at 788; Spencer v. Virginia State Univ., 224 F. Supp. 3d 449,
459–60 (E.D. Va. 2016). Payne fails to allege any adverse consequences that flowed from this
This claim also fails because merely being told to “work or go home” is not a sufficiently adverse
employment action. See Burlington Northern, 548 U.S. at 68 (“[I]t is important to separate significant from trivial
harms . . . . An employee’s decision to report discriminatory behavior cannot immunize that employee from those
petty slights or minor annoyances that often take place at work and that all employees experience.”); Faragher, 524
U.S. at 788; cf. Spencer v. Virginia State Univ., 224 F. Supp. 3d 449, 459–60 (E.D. Va. 2016) (reference to plaintiff
as a troublemaker, refusal to sign plaintiff’s time sheet, encouragement of plaintiff’s student to file a complaint,
chastisement of plaintiff via e-mail for challenging defendant’s pay practices, and denying plaintiff opportunity to
teach a class outside of the defendant university did not alone or together constitute a materially adverse
poor attendance letter. Rather, Payne asserts that the letter was used “in an attempt to impose
progressive discipline” without any factual assertion that discipline was ever imposed. Cf. Jones
v. Dole Food Co., Inc., 827 F. Supp. 2d 532, 549–50 (W.D.N.C. 2011) (plaintiff’s belief that a
written warning could have impacted later job performance evaluations was insufficient to show
adverse action when it was not so used). Therefore, Payne has not cured the deficiencies of his
retaliation claim, and Count VI also must be dismissed.
Despite the benefit of this Court’s previous opinion in this case and the opportunity to
amend his Complaint, Payne still has failed to plead facts sufficient to raise his right to relief
above a speculative level. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Nor is
there any indication that any further amendment would or could cure these pleading deficiencies.
Accordingly, the Court DISMISSES Payne’s Amended Complaint with prejudice. See Rubino v.
New Action Mobile Indus., LLC, 44 F. Supp. 3d 616, 625 (D. Md. 2014). A separate Order
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?