Daggett v. Donahue et al

Filing 39

OPINION AND ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT Signed by District Judge Bernard A. Friedman. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONNETTA DAGGETT,
Plaintiff,

Civil Action No. 14-CV-13368

vs.

HON. BERNARD A. FRIEDMAN

PATRICK DONAHOE,
Defendant.
______________________/
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This matter is presently before the Court on defendant’s motion for summary
judgment [docket entry 34]. Plaintiff has filed a response in opposition. Pursuant to E.D. Mich.
7.1(f)(2), the Court shall decide this motion without a hearing.
This is a pro se Title VII employment discrimination action. In her complaint
plaintiff alleges that defendant discharged her based on her race and color and in “retaliation.”
Compl. (preprinted form) ¶ 10. In her typed complaint, which is attached to the preprinted form,
plaintiff indicated she intended to assert a long list of claims, see Compl. at 1 (typed complaint,
paragraph entitled COMPLAINT), but the Court has dismissed “[a]ll of plaintiff’s claims . . . except
her claim that defendant retaliated against her for filing an EEOC complaint” [docket entry 22].
This claim, as presented in her April 8, 2013, EEO Complaint of Discrimination in the Postal
Service, alleged in its entirety as follows:
On March 2012 I received last chance removal. I did not file a
complaint because I thought in May it had been thrown out. I heard
nothing from union and I believe the postal service purposely waited
to put me out the building so I could not file it with my
discrimination case. The union also failed to keep me informed til
this day. I also want to add that the union withdrew me from

arbitration so on April 3, 2013 I was terminated from the postal
service. Yes I received a last chance letter of removal but it was
untimely. The union did not contact me and let me know anything. I
found out Step 2 was denied December 2, 2013 [sic: 2012], the last
day I worked per the Postal Service. The letter of removal is not even
signed by my immediate supervisor and the AWOL on the letter is a
lie. I did call in and I have the confirmation from Postal [illegible]. I
think I also got screwed when the union allowed someone who was
retiring to represent me.
Def.’s Ex. 21 (Case No. IJ-482-0006-13). The dates plaintiff alleged she was retaliated against were
February 17, 2012; March 2012; and December 2, 2012. Id. The only reference to retaliation in that
EEOC charge is plaintiff’s “x” in the box labeled “Retaliation (Specify Prior EEO Activity).” Id.1
The allegations in the instant complaint regarding retaliation for past EEO activity
are similarly amorphous. Plaintiff alleges, in relevant part, that on February 14, 2012, two of her
supervisors, Michelle Bezel and Reji Thomas, questioned her about “unauthorized overtime” and
accused her of stealing2; that she filed an EEOC complaint alleging race discrimination about this
incident because “I was the only black employee that was written up” for “doing overtime”; that
after this incident “everything I did was under heightened scrutiny”; that in March 2012 she received
a “suspicious letter” (notice of removal) from the Postal Service, notifying her she was being

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This charge was eventually denied by the EEOC in a written decision dated May 30,
2014, which affirmed the Postal Service’s final decision dated November 20, 2013. Plaintiff
attached a copy of the EEOC’s decision to her complaint. See also Def.’s Ex. 22. In short, the
EEOC found that plaintiff failed to demonstrate that defendant’s proffered reason for discharging
her – i.e., excessive absenteeism – was a pretext for discrimination.
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Defendant’s Ex. 2 is a February 16, 2012, Letter of Warning issued by Reji Thomas,
charging plaintiff with “failure to follow instructions/unauthorized overtime.” This letter
indicates that on February 12, 2012, a “pre-disciplinary interview” was held with plaintiff,
Thomas, and a union steward. Plaintiff acknowledged receipt of the letter on February 17, 2012.
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discharged3; that in December 2012 she was told by a supervisor “to leave the building”; and that
immediately after being discharged she “filed a retaliation charge” with the EEOC.” Compl. (typed
complaint) ¶¶ 5-7, 13-14. It is this charge, No. IJ-482-0006-13, that underlies the instant action.
In a Title VII employment discrimination action, the scope of the claim is defined by
the allegations in the EEO complaint. The rule has been explained by the court of appeals as
follows:
A charge of discrimination is sufficient if it contains “a written
statement sufficiently precise to identify the parties, and to describe
generally the action or practices complained of.” 29 C.F.R. §
1601.12(b), 63 FR 36128. The purpose of filing a charge of
discrimination is to trigger the investigatory and conciliatory
procedures of the EEOC so that the Commission may first attempt to
obtain voluntary compliance with the law. See EEOC v. The Bailey
Co., Inc., 563 F.2d 439, 447 (6th Cir.1977)(citing Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970)), cert.
denied, 435 U.S. 915, 98 S.Ct. 1468, 55 L.Ed.2d 506 (1978). These
investigatory and conciliatory procedures notify potential defendants
of the nature of plaintiffs’ claims and provide them the opportunity
to settle the claims before the EEOC rather than litigate them.
Courts have expanded upon the charge filing requirement,
however, to provide that a party’s discrimination claim in the District

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A copy of the March 27, 2012, Notice of Removal is attached to defendant’s motion as
Ex. 14. It indicates that plaintiff was being discharged for absenteeism, in violation of
attendance regulations and a “last chance agreement” entered into between plaintiff and the
Postal Service in September 2010. The Notice of Removal detailed 95.62 hours of unscheduled
absences from September 2011 to March 2012. Plaintiff contested her discharge through the
grievance process, but her grievance was unsuccessful, as the arbitrator found that plaintiff “was
Absent from work on the days charged [and] . . . per the very specific language in the [last
chance agreement], the penalty for a violation would be removal from the Postal Service.” See
Def.’s Ex. 17, p. 2.
A copy of the last chance agreement, dated September 14, 2010, is attached to
defendant’s motion as Ex. 6. This agreement, which gave plaintiff “one final opportunity” to
abide by attendance rules, was to remain in effect for two years. Id. ¶ 6. The agreement would
be “considered breached if the employee incurs more than four (4) unscheduled absences[] in
any 6 month period” or if she had “any incident of AWOL.” Id. ¶ 9(d), (e).
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Court may include claims “limited to the scope of the EEOC
investigation reasonably expected to grow out of the charge of
discrimination.” EEOC v. McCall Printing Corp., 633 F.2d 1232,
1235 (6th Cir.1980); Bailey, 563 F.2d at 446. One reason for the
expanded rule is that charges are frequently filed by lay
complainants, and the courts recognize that subsequent actions
should not be restricted by the failure of a complainant to attach the
correct legal conclusion to the EEOC claim, conform to procedural
technicalities, or include “the exact wording which might be required
in a judicial pleading.” Bailey, 563 F.2d at 447; see McCall Printing,
633 F.2d at 1235. This expanded rule does not mean, however, that
plaintiffs are excused from filing charges on a particular
discrimination claim before suing in federal court.
Davis v. Sodexho, Cumberland Coll. Cafeteria, 157 F.3d 460, 463 (6th Cir. 1998).
In the present case, the only “EEO activity” plaintiff mentioned in her EEOC charge
or in the instant complaint is the race discrimination charge she filed (No. IJ-482-0009–12)
concerning the February 14, 2012, incident with Bezel and Thomas.4 The clear gist of the EEO
charge underlying the instant action (No. IJ-482-0006-13) was that the union had not represented
plaintiff properly in protesting her termination and that her discharge letter was untimely, not signed,
and based on a “lie” regarding her having been absent without leave. Plaintiff did not allege in this
charge what she is claiming in the instant lawsuit, namely, that she was served with the Notice of
Removal and eventually discharged in retaliation for filing the prior race discrimination EEOC
charge (No. IJ-482-0009–12). Under these circumstances, it is doubtful whether plaintiff exhausted

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Plaintiff filed this EEO complaint (No. IJ-482-0009-12) on May 23, 2012. A copy of
the “final agency decision,” dated March 12, 2013, denying that complaint is attached to
defendant’s summary judgment motion as Exhibit 25. The final agency decision indicates that
plaintiff alleged defendant discriminated against her based on her race and color when plaintiff
was issued a letter of warning on February 17, 2012, “for Failure to Follow Instructions/
Unauthorized Overtime.” The final agency decision dismissed the complaint as moot because the
letter of warning had been removed from plaintiff’s file “as a result of a Step II Settlement dated
September 6, 2012.” The complaint was also denied on the merits. Apparently plaintiff did not
pursue this case beyond the final agency decision stage.
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her administrative remedies as to the claim she seeks to assert in the present case. The Court notes,
however, that plaintiff did allege on a form entitled “Information for Pre-Complaint Counseling,”
which she dated January 2, 2013, and mailed to the Postal Service’s EEO Contact Center, that the
prior EEO activity she alleges as the basis for her retaliation claim is the charge she filed on
February 17, 2012. See Def.’s Ex. 8, p. 1. This form was assigned Case No. IJ-482-0006-13. As
this is the same case number of plaintiff’s March 18, 2013, EEO complaint (Def.’s Ex. 21), the Court
shall assume for present purposes that plaintiff alleged in her EEOC charge, and in the instant
complaint, that defendant discharged her in retaliation for filing a race discrimination charge in
March 2012 concerning the February 2012 incident with Bezel and Thomas.
Even giving plaintiff the benefit of this assumption, the Court concludes that plaintiff
has failed to show there is a triable issue of fact as to whether defendant’s stated reason for
discharging her was a pretext for unlawful retaliation. As noted, the parties entered into a “last
chance agreement” in September 2010 to settle an earlier “removal action” regarding plaintiff’s
attendance problems. Under the terms of this agreement, a copy of which is attached to defendant’s
motion as Ex. 6, plaintiff acknowledged that defendant had just cause to remove her for failing to
abide by attendance regulations, and that the settlement agreement “constitutes grievant’s Last
Chance to retain her Postal employment.” Id. ¶ 1. Plaintiff further agreed that she would be
removed from service if she breached any of the provisions of the agreement. Id. ¶ 5. Among other
things, items which would constitute a breach of the agreement included plaintiff incurring more
than four unscheduled absences during any six-month period and incurring any absences without
leave. Id. ¶ 9(d), (e).
Defendant has shown that plaintiff incurred many more than four unscheduled

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absences during the six-month period from September 14, 2011, to March 18, 2012, and one
“AWOL” on February 6, 2012. These absences are listed in the March 27, 2012, Notice of
Removal, which stated that plaintiff was being removed because these absences violated the last
chance agreement. See Def.’s Ex. 14. The absences are also documented in defendant’s many
“notifications of absence.” Def.’s Ex. 9. Defendant has also submitted an affidavit from plaintiff’s
supervisor, Charles Minter, who avers that he signed the Notice of Removal “because Ms. Daggett
had poor attendance and violated her last chance agreement” and for no other reason. Minter Decl.
¶¶ 6, 13. Minter notes that plaintiff had 95.62 hours of unscheduled absences (25 total unscheduled
absences) between September 14, 2011, and March 18, 2012. Id. ¶ 9. Richelle Jones, who signed
the Notice of Removal as the “reviewing authority,” likewise avers that plaintiff was discharged
“solely for violating the last chance agreement.” Jones Decl. ¶ 9.
Even assuming plaintiff had stated a prima facie case of retaliation, defendant has
presented a legitimate, nondiscriminatory reason (absenteeism in violation of the last chance
agreement) for discharging plaintiff. In response, plaintiff has submitted no evidence from which
a reasonable jury could find that this reason was pretextual. To show a genuine issue as to pretext,
plaintiff must submit evidence 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 employer’s
action.” Harris v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 594 F.3d 476, 486 (6th Cir.
2010). Further, “defendant’s proffered reason cannot be proved to be a pretext ‘unless it is shown
both that the reason was false, and that discrimination [or retaliation] was the real reason.’” Id.,
(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). Plaintiff has offered no
evidence from which a jury could find that she did not violate the last chance agreement with

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excessive absenteeism, or that her absenteeism did not (or was insufficient to) motivate defendant
to discharge her. Nor has she offered any evidence from which a jury could find that defendant’s
discharge decision was motivated, even in part, by the fact that she had filed a prior EEO complaint
regarding the February 2012 incident. Plaintiff’s response to defendant’s motion boils down to
criticism of defendant and her union regarding the grievance process, criticism of the EEOC for
failing to investigate to plaintiff’s satisfaction, and speculation that her past EEOC complaint must
have motivated the discharge decision. Plaintiff also argues that she could not have been discharged
in December 2012 for violating the last chance agreement, which expired in September 2012, but
she does not address the many specific, documented instances of unscheduled absences that occurred
while the last chance agreement was in place.
In short, defendant is entitled to summary judgment because, on this record, no
reasonable jury could find in plaintiff’s favor on the pretext issue. That is to say, a reasonable jury
would be compelled to find that defendant discharged plaintiff for excessive absenteeism in violation
of the last change agreement, and not because plaintiff engaged in prior EEO activity. Accordingly,

IT IS ORDERED that defendant’s motion for summary judgment is granted.

S/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: February 5, 2016
Detroit, Michigan

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