Morrissette v. United States Postal Service

Filing 24

OPINION and ORDER granting Defendant's 15 Motion for Summary Judgment. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM MORRISSETTE, III, an individual,
Plaintiff,
No. 2:11-cv-14554
Hon. Gerald E. Rosen

vs.
PATRICK R. DONAHOE, Postmaster
General of the United States.
Defendant.
___________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff William Morrissette III, acting pro se, filed a Complaint on October
17, 2011 asserting a wide variety of claims arising out of his employment with and
subsequent termination from the United States Postal Service (USPS). Defendant,
the Postmaster General of the United States, has moved for Summary Judgment.
Having reviewed and considered the parties’ briefs and supporting documents and
the entire record of this matter, the Court has determined that the pertinent
allegations and legal arguments are sufficiently addressed in these materials and
that oral argument would not assist in the resolution of this motion. Accordingly,

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the Court will decide Defendant’s motion “on the briefs.” See L.R. 7.1(f)(2). This
Opinion and Order sets forth the Court’s ruling.
II. PERTIENT FACTS
A.

Plaintiff’s employment with the United States Postal Service
Plaintiff is a former USPS employee who worked at the College Park Station

in Detroit as a City Letter Carrier. (Def’s Ex. 1, Dkt. # 15-2, at 2). At some
unspecified time in 2007 and 2008, Plaintiff engaged in several unknown acts of
protected activity.1 This litigation centers on Plaintiff’s allegation that his former
supervisors and managers took issue with this protected activity and subsequently
engaged in six discrete categories of retaliatory conduct in 2009, ultimately
culminating with his removal from the USPS at the end of 2009. These six acts are
set forth in chronological order below.
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Such activity, however well-known to the parties, is not reflected in the record
before this Court. It is not apparent, for example, what activity Plaintiff engaged
in, when, and its resolution. While Defendant’s Brief provides a multitude of
different dates and resolutions in its papers (see, e.g., Def’s Ex. A, Dkt. # 15-20, ¶
18), these are not reflected in the record. As far as the Court can discern, the latest
date Plaintiff asserts he engaged in protected activity unrelated to the complaints
lodged at issue in this current litigation is September 26, 2008. (Def’s Ex. 12, Dkt.
# 15-13, at 19). Because Defendant does not dispute that Plaintiff engaged in
protected activity, this is not an issue. The Court, however, cautions Defendant to
be more thorough in its submissions in the future with respect to presenting
material facts not in dispute because it is not up to a district court to “search the
entire record to establish that it is bereft of a genuine issue of material fact.” Street
v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989); Emerson v.
Novartis Pharmaceuticals Corp., 446 F. App’x 733, 736 (6th Cir. 2011) (“Judges
are not like pigs, hunting for truffles that might be buried in the record.”)
(alterations and citations omitted).
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1.

Acts of Aggressive and Threatening Behavior in March 2009

Plaintiff complains about two independent incidents in March 2009
involving two separate management employees, both of whom had knowledge of
Plaintiff’s prior protected activity. (Def’s Ex. 13, Dkt. # 15-14, at 8, 35-36). First,
Plaintiff points to a March 10, 2009 incident with his former manager, Cheryl
Lewis. On this date, Plaintiff and one of his supervisors -- Sean Hickombottom -were getting papers off the fax machine. (Def’s Ex. 2, Dkt. # 15-3, at 14; see also
Def’s Ex. 12, Dkt. # 15-13, at 19-21).

Lewis came in from another office,

approaching Plaintiff in a “physical [and] intimidating manner.” (Def’s Ex. 2, Dkt.
# 15-3, at 14).

Lewis testified, and Plaintiff did not dispute, that she was

concerned that Plaintiff was on the clock during this time when he should not have
been and instructed him to clock out.

(Def’s Ex. 13, Dkt. # 15-14, at 8-9).

According to Plaintiff, Lewis then “snatched some stuff out [of his] hands and was
in [his] face.” (Def’s Ex. 2, Dkt. # 15-3, at 15). Plaintiff responded by letting her
know that she should not “be in [his] face.” (Id.). He also told her “never to run
up on [him] ever again in [her] life as long as [he’s] a man and [he’s] black,” and
that he was “only going to say [that] once.” (Id. at 68). Hickombottom stepped in
between the two and Plaintiff left the building. (Id.). Plaintiff was not disciplined
for this incident. (Id.).

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Second, Plaintiff points to a March 19, 2009 incident involving one of his
two direct supervisors, Willie Greggs. On that day, another supervisor -- though
not Plaintiff’s at the time -- conducted a street observation of Plaintiff’s delivery
route. (Id. at 68-69). After the street observation, Plaintiff returned to the College
Park Station without having completed his route. (Id. at 72). Greggs instructed
Plaintiff to either finish his route or fill out a request for leave, but advised that he
was not going to approve vacation leave. (Id. at 70-71). Plaintiff chose the latter
and filled out a leave request for 5.75 vacation hours -- the remainder of the day.
(Id. at 71-72). While filling out this form, Greggs “came to [him] and spoke in a
condescending and loud manner.” (Id. at 16.). Plaintiff then stepped towards
Greggs, Greggs stepped away, and Plaintiff asked Greggs if he was “trying to
engage [him] physically.” (Id. at 16; Def’s Ex. 13, Dkt. # 15-14, at 69-70).
Greggs replied, stating “if I were engaging you physically you would know about
it.” (Def’s Ex. 2, Dkt. # 15-3. at 16). Plaintiff interpreted this as a threat. (Id.).
2.

May 12, 2009 Denial of FMLA

On May 12, 2009, Plaintiff submitted a request to take leave under the
Family and Medical Leave Act (FMLA) to cover an April 2009 absence when he
was hospitalized.

(Id. at 17-20, 74-75, 209-10).

Tamara Connelly-Myrick,

Defendant’s FMLA Coordinator for the College Park Station, processed Plaintiff’s
request by asking that Plaintiff provide more information to determine whether his

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request could be approved and provided him with a Designation Notice indicating
the following: “Admission & discharge papers required. Medical information
regarding condition and dates of incapacity required.” (Id. at 17-18; Def’s Ex. 6,
Dkt. # 15-7, at 5). Plaintiff did not do this and instead just provided a record
showing an emergency room visit. (Def’s Ex. 2, Dkt. # 15-3, at 18, 212-14).
Accordingly, Myrick denied Plaintiff’s request. (Id. at 212-14). Plaintiff believes
that Myrick did this to “throw obstacles and hurdles in the way of getting approved
for FMLA,” asserting that he “believes” Lewis told Myrick to do this because he
engaged in protected activity. (Def’s Ex. 2, Dkt. # 15-3, at 19; Def’s Ex. 1, Dkt. #
15-2, at 9). He also claims that because Myrick works for the USPS, she is not
objective and therefore makes decisions based only to protect USPS’s best
interests. (Def’s Ex. 2, Dkt. # 15-3, at 20). Despite this assertion, he admits that
Myrick had no knowledge of his prior protected activity when she denied
Plaintiff’s request.2 (Id. at 24-25).

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In addition, Plaintiff also testified that Myrick set up another “hurdle” by
requesting a second medical opinion for a serious health condition unrelated to his
May 12, 2009 request. (Def’s Ex. 2, Dkt. # 15-3, at 18-19; Def’s Ex. 6, Dkt. # 157, at 5). He contends that Myrick was “not in a position of having a medical
background or knowledge . . . to question the opinion of a certified physician.”
(Def’s Ex. 2, Dkt. # 15-3, at 18). The second opinion found that he was entitled to
leave for intermittent absences of 1 to 2 days per month, but Plaintiff did not
accept this. (Id. at 215-16; Def’s Ex. 6, Dkt. # 15-7, at 7). Myrick gave Plaintiff
the opportunity to provide input into selecting a physician for a third exam, but
Plaintiff never provided Myrick with any names. (Def’s Ex. 2, Dkt. # 15-3, at
217). Nevertheless, Plaintiff was ultimately approved for this leave and actually
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3.

Alterations of “Clock Rings” on Unspecified Dates

Defendant uses a “badge reader” system that allows employees to
electronically punch in and out when performing different operations and
functions. (Id. at 21). According to Plaintiff, Defendant had a regular practice of
altering his “clock rings” to reflect the time that management “felt” Plaintiff
worked on a given day -- i.e., reducing the number of hours he worked. (Id.). This
was apparently an issue that was subject to a prior settlement agreement, resulting
in Defendant adjusting Plaintiff’s pay. (Id. at 20, 75-76; see also Def’s Ex. 13,
Dkt. # 15-14, at 12; Def’s Ex. 15, Dkt. # 15-16). Under Defendant’s policy,
management employees may alter clock rings if an employee improperly punches
in or out or if they observe employees who are on the clock but not working.
(Def’s Ex. 13, Dkt. # 15-14, at 12-13, 18-19, 44-45). Both Lewis and Gregg
admitted to altering Plaintiff’s clock rings to adjust for instances where Plaintiff
should not have been on the clock -- like sitting at his case, in the bathroom, or
otherwise not working. (Id. at 20-22, 44-45). Plaintiff cannot, however, identify
any specific dates in 2009 when this occurred, and there is no record evidence
indicating that these alterations were done for any reason other than to correct his
time records to reflect time he was actually working. (Def’s Ex. 2, Dkt. # 15-3, at
21-24). He was also given an opportunity in mid-2009 to provide dates of alleged
received over 760 hours -- 280 hours more than the 480 hours to which he was
entitled per year -- of approved FMLA leave in 2009. (Id. at 72).
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improper alterations to Stephanie Brantley, another one of his supervisors, for her
to review and to verify his clock rings -- he never did. (Def’s Ex. 13, Dkt. # 15-14,
at 97). Finally, there is no evidence linking these unspecified clock rings to his
prior protected activity other than the fact that altering Plaintiff’s clock rings was
part of his prior protected activity.
4.

Bypassing Plaintiff for Overtime Opportunities on Unspecified
Occasions

Next, Plaintiff asserts that Defendant retaliated against him by not giving
him overtime opportunities. (Def’s Ex. 2, Dkt. # 15-3, at 23-25). Similar to the
“clock rings” allegation, this was apparently the subject of a prior settlement
agreement between the parties.

(Id. at 23-24).

Plaintiff’s supervisors and

managers told him that they would not give him overtime “based on the fact that
[his] route was not getting completed by [him] in eight hours and that they could
not give anyone who couldn’t complete their route overtime.” (Id. at 24; Def’s Ex.
13, Dkt. # 15-14, at 46). There is no dispute that Plaintiff took longer -- often more
than eight hours -- to complete his route. Plaintiff’s explanation for this is that his
route was “out of adjustment,” meaning that the route’s workload was such that it
required more than eight hours to complete. (See, e.g., Def’s Ex. 2, Dkt. 15-3, at
80). He does not identify any specific dates in 2009 where he was bypassed for
overtime opportunities and there are again no facts linking this allegation to

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Plaintiff’s prior protected activity other than overtime scheduling was the subject
of a prior settlement agreement.
To the issue of adjustment, the record is clear that other carriers were able to
complete his route within the projected time, without any assistance, and therefore
were not precluded from receiving overtime opportunities. (Id. at 84-92; Def’s Ex.
13, Dkt. # 15-14, at 74; Def’s Ex. 16, Dkt. # 15-17). For example, on November
23, 2009, another carrier delivered Plaintiff’s route. (Def’s Ex. 2, Dkt. # 15-3, at
91-92). She delivered 1792 pieces of mail, spending only 48 minutes in the office
and 6 hours and 22 minutes delivering mail, all without assistance from other
carriers. (Id.). On the very next day, Plaintiff spent 4 hours and 17 minutes in the
office and 3 hours and 31 minutes delivering close to half of the prior day’s
volume -- 1095 items -- and still required an additional 6 hours and 16 minutes of
assistance from other carriers. (Id.). Indeed, Plaintiff’s route was inspected before
and after his removal -- both inspections concluded that it should take fewer than
eight hours to complete.3 (Id. at 115-17).
5.

October 21, 2009 Emergency Placement

On October 21, 2009, Plaintiff claims that three hours into his shift,
“[s]upervision” told him to “leave the building” because they were “placing [him]
3

Plaintiff’s supervisor observed Plaintiff engaging in time-wasting tactics, perhaps
explaining why Plaintiff regularly took longer to complete his route: “[H]e would
do baby steps. Every driveway he’d get to he’d look left and right [to] make sure
no cars is (sic) coming.” (Def’s Ex. 2, Dkt. # 15-3, at 254-55).
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on emergency placement.” (Id. at 25-26.) Plaintiff asserts that he was not initially
told why he was removed from work that day and claims that Defendant
“concocted an emergency placement letter” that was given to him the next day.
(Id. at 26-27). This letter -- authored by his then-supervisor Aquanetta Littleton,
who was not aware of Plaintiff’s prior protected activity -- stated the following:
Based on your conduct displayed on the workroom floor and your
blatant refusal to follow your Supervisor’s instructions, there was a
reason to believe that retaining you on duty might have resulted in an
unfavorable effect on the Postal Service.
In addition, when
Management requested you to relinquish your employee identification
badge, your employee time card, and vehicle keys you refused and left
the premises with these items in your possession.
(Def’s Ex. 5, Dkt. # 15-6, at 1, 30; Def’s Ex. 13, Dkt. # 15-14, at 136-41).
Plaintiff’s behavior caused other employees to become “more engaged in what was
going on [with Plaintiff] than being productive in the office.” (Def’s Ex. 13, Dkt. #
15-14, at 101-02). Though he returned to work the next day, Plaintiff takes issue
with the fact that he has not received pay for the time he missed despite an
agreement with Defendant and Plaintiff’s Union to the contrary. (Def’s Ex. 2, Dkt.
# 15-3, at 27).
6.

Removal From The USPS

Lastly, Plaintiff asserts that Defendant retaliated against him by removing
him from the Postal Service on December 29, 2009. (Id. at 27-31). On this date,
the USPS notified Plaintiff that he was being “removed” from the Postal Service

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for two job-performance reasons: (1) failing to follow instructions and discharge
his duties; and (2) failing to make “MSP” scans. (Def’s Ex. 5, Dkt. # 15-6, at 510).4 Littleton issued this letter, with input from others -- Greggs, Brantley, and an
unidentified labor relations representative -- in gathering information and drafting
its wording. (Def’s Ex. 13, Dkt. 15-14, at 47, 60-61, 148).
First, Plaintiff failed to follow instructions and discharge his duties as
assigned -- he spent too much time on his route (which then required assistance
from other carriers to complete), failed to return to the College Park Station when
requested, and took his breaks at inappropriate times. (Def’s Ex. 5, Dkt. # 15-6, at
5-7). For example, on December 3, 2009, Plaintiff’s route should have taken just
over 8 hours, but Plaintiff took close to 14 and did not even complete it -- requiring
close to 6 more hours of assistance from other carriers. (Id. at 5-6). As one of his
supervisors put it: “[E]ach day with that assignment it took nine and a half hours or
better, to sometimes close to 12 hours a day to get that assignment delivered when
[Plaintiff] was on the route. When he’s not on the route, there’s an eight-hour
assignment or less.” (Def’s Ex. 13, Dkt. # 15-14, at 104). The removal letter also
references several other times where Plaintiff’s route hours varied greatly from
route projections. (Def’s Ex. 5, Dkt. # 15-6, at 6-7). Plaintiff does not dispute that
4

Defendant also took parts of Plaintiff’s past disciplinary record into account,
including prior no-time off suspensions in October and November 2009 for being
AWOL, deviating from his route, and failing to make MSP scans. (Def’s Ex. 5,
Dkt. # 15-6, at 10; see also id. at 20-21, 31-34).
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he took longer to complete his route, and as referenced above, just responds that
his route was never adjusted. (Def’s Ex. 2, Dkt. # 15-3, at 79-81).
Second, Plaintiff failed to make required “MSP” scans -- scanning barcodes
at the station and along a carrier’s line of travel, which tracks a carrier’s office and
street performance. (Def’s Ex. 5, Dkt. # 15-6, at 8). From November 25, 2009
through December 3, 2009, Plaintiff had a possible total of three scans per day in
the office (fifteen total office scans) and a possible total of seven scans per day on
the street (totaling thirty-five street scans). (Id.; Def’s Ex. 18, Dkt. # 15-19). He
missed all of these fifty opportunities. (Id.). Plaintiff admits that his supervisors
instructed him to make these scans, but that he just did not do so. (Def’s Ex. 2,
Dkt. # 15-3, at 79-81).
B.

Procedural history
Plaintiff filed documents with the USPS after most of these incidents

requesting an appointment with a USPS Dispute Resolution Specialist (commonly
referred to as “Pre-Complaint Counseling”) asserting that these incidents were in
retaliation for his prior protected activity. (See, e.g, Def’s Ex. 12, Dkt. # 15-13, at
9-21, 23-26). He filed a formal EEOC Complaint of Discrimination on October
30, 2009, asserting claims of retaliation against Myrick, Greggs, and Lewis: “I
was approached in a physical manner by Cheryl Lewis. I was treated disparately
by management and supervision.

My request for FMLA was sent through

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unnecessary hurdles and denied with no real basis. My clock rings have been
fraudulently altered.” (Def’s Ex. 8, Dkt. # 15-9, at 1). Defendant acknowledged
this complaint and, consolidating issues, noted that Plaintiff alleged ongoing
retaliation “since on or about March 2009” in the following ways: “approached in
an aggressive manner; FMLA request denied; clock rings were altered; by-passed
the opportunity to work overtime; and has been removed from service.” (Def’s Ex.
9, Dkt. # 15-10).
On April 4, 2010, Plaintiff requested a hearing on his formal complaint
before an EEOC Administrative Law Judge. (Def’s Ex. 10, Dkt. # 15-11). After
two full days of hearing in November 2010 (Def’s Ex. 2, Dkt. # 15-3; Def’s Ex. 13,
Dkt. # 15-14), EEOC Administrative Law Judge Mimi M. Gendreau issued a
decision on July 19, 2011 making certain factual findings and concluding that
Defendant did not retaliate against Plaintiff for the above issues. (Def’s Ex. 11,
Dkt. # 15-12). Plaintiff filed this instant lawsuit shortly thereafter. Contrary to
Defendant’s assertion, Plaintiff’s lawsuit is not an “appeal” of this determination.
(Def’s Br., Dkt. # 15, at 1). Rather, this Court reviews Plaintiff’s claims de novo
because Plaintiff has now filed this litigation pursuant to 42 U.S.C. § 2000e-16(c).
C.

Plaintiff’s Complaint
Plaintiff’s Complaint asserts a myriad of employment-related claims. His

one-page handwritten complaint makes the following allegations:

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I am suing my former employer for damages related to wrongful
termination, harassment, discrimination, intimidation, unpaid wages,
violation of FMLA related statutes, unfair labor practices,
medical/disability discrimination, breach of contract (previous EEOC
settlement agreements), subjection to stress and duress, intentional
infliction of emotional distress, mental anguish, financial
destabilization, etc. The employer violated laws by fraudulently
misrepresenting/tampering with clock rings. I was also violated in
regards to being penalized for FMLA protected leave. I was subjected
to constant harassment and discrimination. My dismissal violated
terms of the national agreement between management and the union.
Several previous EEOC settlements had (sic) been breached. All
attempts to rectify these matters were met with unnecessary hurdles
and obstacles as well as aggression. The time for crying and sorrow
has passed; what’s right is right and what’s wrong is wrong.
(Plf’s Complaint, Dkt. # 1).
III. DISCUSSION
A.

Rule 56 Standard
Summary judgment is proper if the moving party “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). As the Supreme Court has explained, “the
plain language of Rule 56[] mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). In addition, where a
moving party -- here, Defendant -- seeks an award of summary judgment in its

13

favor on a claim or issue as to which it bears the burden of proof at trial, this
party’s “showing must be sufficient for the court to hold that no reasonable trier of
fact could find other than for the moving party.” Calderone v. United States, 799
F.2d 254, 259 (6th Cir. 1986) (internal quotation marks, citation, and emphasis
omitted).
In deciding a motion brought under Rule 56, the Court must view the
evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp.,
434 F.3d 810, 813 (6th Cir. 2006). Yet, the nonmoving party may not rely on mere
allegations or denials, but must “cit[e] to particular parts of materials in the record”
as establishing that one or more material facts are “genuinely disputed.” Fed. R.
Civ. P. 56(c)(1). But, “the mere existence of a scintilla of evidence that supports
the nonmoving party’s claims is insufficient to defeat summary judgment.” Pack,
434 F.3d at 814 (alteration, internal quotation marks, and citation omitted).
Although Plaintiff did not substantively respond to Defendant’s Motion for
Summary Judgment,5 such a failure is not the end of this Court’s inquiry. The

5

In response, Plaintiff asks that the Court infer a factual dispute because Defendant
allegedly did not produce certain documents during discovery and therefore “all
the relevant facts are not on the table.” (Plf’s Resp., Dkt. # 20, at 1-2). Plaintiff
neither provided any information regarding these certain documents nor put forth
any other additional facts into the record. See, e.g., Emswiler v. CSX Trans., Inc.,
691 F.3d 782, 788 (6th Cir. 2012) (“Defendant[] bear[s] the burden of showing the
absence of a genuine dispute of material fact as to at least one essential element of
[Plaintiff]’s claims. Plaintiff must then present sufficient evidence from which a
jury could reasonably find in his favor.”) (citing Celotex, 477 U.S. at 323). To the
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Sixth Circuit has held that a party’s failure to respond to an opponent’s motion for
summary judgment should not by itself warrant a grant of summary judgment.
Carver v. Bunch, 946 F.2d 451 (6th Cir. 1991). The Carver panel stated:
As the Supreme Court has repeatedly held, “The Federal Rules reject
the approach that pleading is a game of skill in which one misstep by
counsel may be decisive to the outcome and accept the principle that
the purpose of pleading is to facilitate a proper decision on the
merits.” Additionally, under Rule 56(c) a party moving for summary
judgment always bears the burden of demonstrating the absence of a
genuine issue as to a material fact . . . . Although subsequent Supreme
Court cases have redefined the movant’s initial burden . . . the
requirement that the movant bears the initial burden has remained
unaltered. More importantly for all purposes, the movant must always
bear this initial burden regardless if an adverse party fails to respond.
In other words, a district court cannot grant summary judgment in
favor of a movant simply because the adverse party has not
responded. The court is required, at a minimum, to examine the
movant’s motion for summary judgment to ensure that he has
discharged that burden.
Id. at 454-55 (citations omitted).
B.

Plaintiff’s Retaliation Claim
Title VII contains “a potent anti-retaliation provision.” Fuhr v. Hazel Park

Sch. Dist., 710 F.3d 668, 673 (6th Cir. 2013). The Supreme Court has emphasized
that “[c]ontext matters” when examining retaliation claims: “[T]he significance of
any given act of retaliation will often depend upon the particular circumstances. . .
. ‘The real social impact of workplace behavior often depends on a constellation of
extent Plaintiff is referring to those documents that were the subject of Plaintiff’s
Motion to Compel (Dkt. #19), this Court has already addressed the merits of that
Motion. (Dkt. # 23).
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surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed.’”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006) (citation
omitted). Accordingly, an “employer’s actions must be harmful to the point that
they could well dissuade a reasonable worker from making or supporting a charge
of discrimination.” Id. at 56.
Like a Title VII anti-discrimination claim, a plaintiff may establish a
retaliation claim through direct or indirect evidence. Fuhr, 710 F.3d at 673. Direct
evidence “requires the conclusion that unlawful retaliation was a motivating factor
in the employer’s action.” Id. (citing Abbott v. Crown Motor Co., 348 F.3d 537,
542 (6th Cir. 2003). Absent direct evidence, a plaintiff may establish indirect
evidence through the familiar burden-shifting framework established in McDonnell
Douglas Corp. v. Green., 411 U.S. 792 (1973). Id. at 674.
There is not any direct evidence of retaliation in the record and as such,6 this
Court will examine whether Plaintiff can establish indirect evidence of retaliation.

6

Plaintiff testified that at some unidentified date, Lewis told him that he “was the
reason for holding her up . . . from a different position because [he] was engaging
in . . . EEO activity.” (Def’s Ex. 2, Dkt. # 15-3, at 32). This non-specific and
ambiguous statement does not indicate discriminatory intent and was not made by
someone with managerial authority over any of the challenged personnel decisions
at issue in this case -- Lewis was off work from June 1, 2009 until after Plaintiff’s
removal. (Def’s Ex. 13, Dkt. # 15-14, at 27). It is therefore a “stray remark” and
not relevant. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th
Cir. 1998). Plaintiff also testified that “other individual witnesses” told Plaintiff
16

To establish a prima facie case of retaliation under Title VII, Plaintiff must prove
that “(1) [he] engaged in activity protected by Title VII; (2) this exercise of
protected rights was known to defendant; (3) defendant thereafter took adverse
employment action against the plaintiff, or the plaintiff was subjected to severe or
pervasive retaliatory harassment by a supervisor; and (4) there was a causal
connection between the protected activity and the adverse employment action or
harassment.” Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 995-96 (6th Cir. 2009)
(citation omitted).
If Plaintiff establishes a prima facie case, “the burden of production of
evidence shifts to the employer to ‘articulate some legitimate, nondiscriminatory
reason’ for its actions.” Id. (citation omitted). Upon such a showing, Plaintiff
must then demonstrate “that the proffered reason[s] w[ere] not [Defendant’s] true
reason[s] but merely a pretext for retaliation.” Harris v. Metro. Gov’t of Nashville
and Davidson Cnty., Tenn., 594 F.3d 476, 485 (6th Cir. 2010). Plaintiff may do so
“by demonstrating that the proffered reasons (1) had no basis in fact, (2) did not
actually motivate the employer’s action, or (3) were insufficient to motivate the
that Lewis and Greggs made comments to the effect that their “ultimate goal is to
get rid of this guy.” (Def’s Ex. 2, Dkt. # 15-3, at 32). Plaintiff may not offer this
statement for the truth of the matter asserted in opposition to Defendant’s Motion
for Summary Judgment because “[a] court cannot rely on unsworn inadmissible
hearsay when ruling on a summary judgment motion.” Hoover v. Walsh, 682 F.3d
481, 491 n. 34 (6th Cir. 2012). Even if it were not hearsay, it is an ambiguous
statement and is therefore a stray remark -- it does not tie their alleged desire to
“get rid of him” to his prior protected activity. Ercegovich, 154 F.3d at 354.
17

employer’s action.” Id. Finally, a proffered reason cannot be pretextual “unless it
is shown both that the reason was false, and that [retaliation] was the real reason.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). As the Supreme Court
recently explained, Plaintiff “must establish that his . . . protected activity was a
but-for cause of the alleged adverse action[s] by the [USPS].” Univ. of Texas Sw.
Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013).
Because it is undisputed that Plaintiff engaged in activity protected by Title
VII, the Court examines, in turn, the remainder of the prima facie elements for
each alleged act of retaliation: (1) Acts of aggressive and threatening behavior in
March 2009 by Lewis and Greggs; (2) The May 12, 2009 denial of his FMLA
request; (3) Altering his “clock rings” on unspecified dates; (4) Bypassing him for
overtime opportunities on unspecified occasions; (5) Placing him on “emergency
placement” on October 21, 2009; and (6) Removing him from service on
December 29, 2009.
1.

Acts of Aggressive and Threatening Behavior in March 2009

Plaintiff’s assertion that Lewis and Greggs retaliated against him based on
their March 2009 behavior fails as a matter of law. First, according to Plaintiff,
Lewis approached him aggressively on March 10, 2009, “snatched some stuff out
[of his] hands and was in his face” and had “an intimidating stance.” He also
admits that in response, he told Lewis “never to run up on [him] ever again in [his]

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life as long as [he’s] a man and [he’s] black” and that he was “only going to say
[that] once.” Second, on March 19, 2009, Greggs “came to [him] and spoke in a
condescending and loud manner.”

Plaintiff stepped towards Greggs, asked if

Greggs was “trying to engage [him] physically,” to which Greggs responded: “if I
were engaging you physically you would know about it.”
These isolated incidents are not sufficient to establish that USPS took an
adverse employment action against Plaintiff, or that Plaintiff was subjected to
severe or pervasive retaliatory harassment by a supervisor. No reasonable jury
would find these allegedly retaliatory acts so adverse that they would dissuade a
reasonable employee from making a charge of discrimination, especially given
Plaintiff’s own aggressive and threatening conduct. At most, these incidents -taken in Plaintiff’s best light -- reflect two discourteous isolated work incidents
that did not affect his employment. See, e.g., Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, 80 (1998) (Title VII is not a “general civility code for the
American workplace”). Plaintiff was not disciplined for, nor did significantly
different job responsibilities result from, these incidents. Hunter, 565 F.3d at 99667; Ceckitti v. City of Columbus, Dep’t of Pub. Safety, Div. of Police, 14 F. App’x
512, 516 (6th Cir. 2001) (“To establish that an employer’s conduct constitutes
severe or pervasive retaliatory harassment, the plaintiff must show that ‘the
workplace is permeated with discrimination, intimidation, ridicule, and insult that

19

is sufficiently severe or pervasive to alter the conditions of the victim’s
employment . . .’”) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); cf
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“‘[S]imple teasing,’
offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of employment.’”)
(citing Oncale, 523 U.S. at 81).
Even assuming such acts did constitute adverse action or severe or pervasive
retaliatory harassment, there is no record evidence establishing a causal link
between these acts and Plaintiff’s protected activity. Plaintiff’s burden at the prima
facie stage, though minimal, requires him to “put forth some evidence to deduce a
causal connection between the retaliatory action and the protected activity.” A.C.
ex rel J.C. v. Shelby Cnty. Bd. of Educ., 711 F.3d 687, 699 (6th Cir. 2013). “While
temporal proximity between an assertion of Title VII rights and an adverse
employment action provides highly probative evidence of a causal connection,
‘temporal proximity alone will not support an inference of retaliatory
discrimination when there is no other compelling evidence.’” Arendale v. City of
Memphis, 519 F.3d 587, 606 (6th Cir. 2008) (two-month gap between protected
activity and adverse action, without other evidence of retaliation, is not enough to
establish a causal connection); see also Vereecke v. Huron Valley Sch. Dist., 609
F.3d 392, 401 (6th Cir. 2010) (gap of at least eight months plus Plaintiff’s bad

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behavior leading to discipline was insufficient to permit an inference of retaliatory
motive). Plaintiff has put forth no such evidence that these March 2009 events
permit an inference of retaliatory discrimination and Plaintiff’s claim therefore
fails.
2.

May 12, 2009 Denial of FMLA

Plaintiff cannot establish a prima facie case with respect to this claim. He
admits that Myrick -- the person responsible for denying his FMLA claim and for
pursuing a second medical opinion -- was not aware that he had previously
engaged in protected activity when she made these adverse decisions.

This

admission is fatal as he cannot establish the second element of a prima facie case
for retaliation -- knowledge. And, even if she were aware, there is no factual
record indicating these decisions were causally connected to his protected activity.
The FMLA does not require that an employer “simply accept an employee’s say-so
that he needs and has taken FMLA leave on a particular date.”

Manns v.

ArvinMeritor, Inc., 291 F. Supp. 2d. 655, 661-62 (N.D. Ohio 2003). Rather, it
expressly permits employers to verify whether leave is actually FMLA-qualifying
or not. See, e.g., 29 U.S.C. § 2613(a) (“An employer may require that a request for
leave . . . be supported by certification issued by the health care provider of the
eligible employee”). Certification is sufficient when, among other things, it states
“the probable duration of the condition.”

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§ 2613(b)(2).

Here, Plaintiff’s

submissions did not provide this information and Myrick denied his request
accordingly. Given Plaintiff’s inability to submit complete paperwork, there is no
causal connection here. Hunter, 565 F.3d at 996; Vereecke, 609 F.3d at 401.
3.

Alterations of “Clock Rings” on Unspecified Dates

This claim fails as well. There is no record evidence indicating Defendant
impermissibly changed his clock rings on any specific dates in 2009 and as such,
Plaintiff cannot meet the third prong of the prima facie test -- adverse action. And,
even if he could, there is no record evidence causally connecting this claim to his
prior protected activity. Id.
4.

Bypassing Plaintiff for Overtime Opportunities on Unspecified
Occasions

For the same reason Plaintiff’s clock ring claim fails, so too does his
allegation that Defendant retaliated against him for not offering him overtime
opportunities. There is no record evidence indicating when Defendant denied him
overtime opportunities to which he was entitled in 2009 and there is no evidence
deducing a causal connection. Id.
5.

October 21, 2009 Emergency Placement

Summary judgment is also appropriate on this claim. The Sixth Circuit has
not examined whether a one-day -- or less -- suspension without pay is a materially
adverse action, meaning it would “dissuade[] a reasonable worker from making or
supporting a charge of discrimination.” Burlington, 548 U.S. at 68. Courts across
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the country have come to different conclusions on this issue. See, e.g., Martinez v.
Connecticut, State Lib., 817 F. Supp. 2d 28, 40-41 (D. Conn. 2011) (collecting
cases); see also LeMaire v. Louisiana Dep’t of Transp. and Dev., 480 F.3d 383,
390 (5th Cir. 2007) (two-day suspension without pay is a materially adverse
action). This Court need not resolve this however, because even assuming the
half-day unpaid suspension on October 21, 2009 is a materially adverse action,
there is no record evidence linking this action to Plaintiff’s protected activity.
Hunter, 565 F.3d at 996; Vereecke, 609 F.3d at 401.
6.

Removal From The USPS

As with all of Plaintiff’s other claims, Plaintiff has not put forth a prima
facie case relating to his removal from the Postal Service. Given the distance in
time between Plaintiff’s past protected activity and his December removal, as well
his admissions that others completed his route within the time parameters and that
he did not make MSP scans, this Court cannot deduce a causal connection here.
Id.
7.

Defendant’s Legitimate Reasons/Pretext

Assuming, arguendo, that Plaintiff could establish a prima facie case of
retaliation, Defendant has proffered legitimate, nondiscriminatory reasons for the
above incidents.

The record is clear that Plaintiff: was insubordinate; made

inappropriate statements; failed to submit appropriate paperwork or evidence to

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substantiate his FMLA, clock ring, and overtime claims; took too long to complete
his route; disrupted other employees; and failed to make MSP scans. Plaintiff has
put forth no evidence to show that these reasons were not anchored in fact, did not
motivate Defendant’s actions, or were insufficient to motivate Defendant’s actions.
Harris, 594 F.3d at 685. He has also not shown that these reasons were actually
false and that retaliation was the real reason for Defendant’s actions. Hicks, 509
U.S. at 515.
In sum, Defendant is entitled to Summary Judgment on Plaintiff’s retaliation
claim.7

7

Though the USPS did not brief the issue, Federal Rule of Evidence 803(8)(c)
permits this Court to consider ALJ Gendreau’s factual findings for the purposes of
summary judgment. Under this rule, “[p]rior administrative findings made with
respect to an employment discrimination claim may . . . be admitted as evidence at
a federal-sector trial de novo” and therefore may be considered at the summary
judgment stage. Alexander v. CareSource, 576 F.3d 551, 562 (6th Cir. 2009)
(citing Chandler v. Roudebush, 425 U.S. 840, 863 n. 39 (1976)). This exception to
the hearsay rule, however, does not apply if “there is an indication of lack of
trustworthiness.” Id. at 563. Here, ALJ Gendreau made factual findings that
completely undermine Plaintiff’s claim of retaliation. For example, she did “not
credit [Plaintiff]’s version and interpretation of” his March 10, 2009 interaction
with Lewis because “it was [Plaintiff] who made an aggressive comment” and “it
was clear that Lewis’ [was] concern[ed] that [Plaintiff] was going into
unauthorized overtime after not completing his route.” (Def’s Ex. 11, Dkt. 15-12,
at 38). She made similar factual findings for all other acts of alleged retaliation,
giving little to no credence to Plaintiff’s testimony. (Id. at 4-10, 37-47). There is
also no indication that ALJ Gendreau’s determination lacked trustworthiness,
especially because it was based upon two days of live testimony where Plaintiff
presented evidence and cross-examined witnesses. Her findings, therefore, further
support this Court’s conclusion that Plaintiff’s retaliation claim fails.
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C.

Plaintiff’s Other Claims
In addition to Plaintiff’s retaliation claim, Plaintiff’s Complaint makes

several conclusory claims that are legally cognizable: wrongful termination,
harassment, discrimination, unpaid wages, violation of FMLA related statutes,
unfair labor practices, medical/disability discrimination, breach of contract, and
intentional infliction of emotional distress.8 While pro se pleadings are held to
“less stringent standards than formal pleadings drafted by lawyers,” courts “need
not accept as true legal conclusions or unwarranted factual inferences.”
Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th Cir. 2003). All such
allegations are conclusory, without factual support, and are therefore dismissed for
failing to state a claim under Rule 12(b)(6).9

8

Intimidation, subjection to stress and duress, mental anguish, and financial
destabilization are, on their own, not recognizable causes of action.
9
As Defendant points out, several of these claims are also barred on alternative
grounds. First, Plaintiff’s intentional infliction of emotional distress claim fails
because Plaintiff did not exhaust his administrative remedies pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2675(a). (Def’s Ex. 17, Dkt. # 15-18).
Second, Plaintiff’s breach of contract claim is premised on a violation of prior
EEOC settlement agreements between the parties. Plaintiff was required to notify
the EEO Director, in writing, of the alleged noncompliance within 30 days of when
he knew or should have known of the alleged noncompliance. 29 C.F.R. §
1614.504(a). Because Plaintiff did not do so, this Court lacks subject-matter
jurisdiction to hear that claim. Taylor v. Geithner, 703 F.3d 328, 335 (6th Cir.
2013). Third, this Court does not have subject-matter jurisdiction over Plaintiff’s
unfair labor practices claim -- the National Labor Relations Board has exclusive
jurisdiction over all unfair labor practices. Martin v. Lake Cnty. Sewer Co., 269
F.3d 673, 680 (6th Cir. 2001).
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IV. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED and Plaintiff’s Complaint is dismissed, with prejudice.
IT IS SO ORDERED.

Dated: September 30, 2013

s/Gerald E. Rosen
GERALD E. ROSEN
CHIEF, U.S. DISTRICT COURT

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, September 30, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, 313-234-5135

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