Hixon v. Donahoe et al
Filing
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OPINION and ORDER Granting Defendants' 24 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARRELL A. HIXON,
Plaintiff,
v.
Civil Case No. 13-12439
Honorable Linda V. Parker
PATRICK R. DONAHOE,
POSTMASTER GENERAL,
and, JAMES E. TANKSLEY,
Defendants.
__________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Plaintiff filed this pro se lawsuit against Defendants on June 4, 2013,
claiming breach of a settlement agreement and age discrimination and retaliation in
violation of Title VII of the Civil Rights of 1964 (“Title VII”) and the Age
Discrimination and Employment Act (“ADEA”). Defendants are Patrick R.
Donahoe in his capacity as Postmaster General of the United States Postal Service
and James E. Tanksley, who served as Plaintiff’s supervisor during the relevant
period of Plaintiff’s employment with the United States Postal Service (“Postal
Service”). Presently before the Court is Defendants’ motion for summary
judgment, filed pursuant to Federal Rule of Civil Procedure 56 on December 1,
2014. Plaintiff filed a response to the motion on December 22, 2014. Finding the
facts and legal arguments sufficiently presented in the parties’ pleadings, the Court
dispensed with oral argument pursuant to Eastern District of Michigan Local Rule
7.1(f) on January 13, 2015. For the reasons that follow, the Court is granting
Defendants’ summary judgment motion.
I.
Summary Judgment Standard
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is
appropriate “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 central inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56
mandates summary judgment against a party who fails to establish the existence of
an element essential to that party’s case and on which that party bears the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To
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demonstrate a genuine issue, the nonmoving party must present sufficient evidence
upon which a jury could reasonably find for that party; a “scintilla of evidence” is
insufficient. See Liberty Lobby, 477 U.S. at 252.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255.
II.
Factual and Procedural Background
Plaintiff began his employment with the Postal Service as a letter carrier.
Between 1995 and 2001, he worked as a supervisor and then an acting manager of
the Joyfield and Fenkell stations. (Defs.’ Mot., Ex. 7 at 9.) In 2002, Plaintiff
became an EAS-17 Operation Program Support Specialist (“OSS”) at the Postal
Service’s Detroit District Office. (Id. at 10.) As the OSS, Plaintiff’s “primary
function was delivery, confirmation, and signature confirmation scanning.” (Id. at
11.)
The Postal Service evaluates the job performance of EAS employees at the
middle and end of the fiscal year. Employees are expected to prepare for the mid3
year reviews and end of the year performance evaluations by documenting their
contributions and describing their accomplishments. (Defs.’ Mot., Ex. 8 at 4.)
Supervisors are expected to conduct mid-year performance reviews, end of the
year discussions, and complete the end of the year performance evaluations. (Id. at
2.) Employees dissatisfied with their end of the year performance rating may
challenge the rating using the Postal Service’s “Recourse” process. (Id. at 8.)
To process performance evaluations, the Postal Service uses an automated
web based computer program referred to as the Performance Evaluation System.
Employees and supervisors access performance evaluations on the Postal Service
computer network by inputting their user name and password. (Defs.’ Mot., Ex.
13.) On April 28, 2010, Plaintiff entered his mid-year accomplishments using the
system. (Defs.’ Mot., Ex. 9.) On the same date, Kenneth Scott, the acting
Operation Support Manager, entered comments about Plaintiff’s mid-year
performance using the same system. (Id.) Scott was Plaintiff’s acting supervisor
and his mid-year evaluator.
On September 30, 2010, which was the end of Fiscal Year 2010, Defendant
Tanksley was the acting operations support manager. (Defs.’ Mot., Exs. 10, 13.)
End of the year evaluations were due on or before December 8, 2010. (Id., Ex.
11.) Under the performance evaluation system, an employee can receive ratings
between 1 and 15. As the acting manager, Tanksley could recommend the
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following ratings: 1-3 (Non-contributor); 4-9 (Contributor); 10-12 (High
Contributor); or 13-15 (Exceptional Contributor). (Id. Exs. 9, 12.)
Plaintiff was absent from work on leave from the beginning of October
through late December 2010. (Defs.’ Mot., Ex. 7 at 39-40.) Plaintiff did not enter
his accomplishments in the performance evaluation system for the year end
evaluation because he was not there. (Id. at 47.) On November 28, 2010,
Tanksley entered information on the system indicating that Plaintiffs’ end of the
year discussion and comment were not held because Plaintiff was on extended
leave between October and December. (Defs.’ Mot., Ex. 9 at 3.) Apparently this
resulted in the system reflecting that Plaintiff received a “zero” rating.
On December 31, 2011, Plaintiff sent an email to the Detroit District Office
indicating that he did not receive a performance evaluation for Fiscal Year 2010
and was unable to make entries in the performance evaluation system. (Defs.’
Mot., Ex. 12.) When Plaintiff returned to duty at the end of December 2010, he
asked Tanksley about his rating. Tanksley told Plaintiff that he did not rate him
because he was not there and that Tanksley would look into it. (Id., Ex. 7 at 4041.) The matter was reviewed and, on January 27, 2011, Plaintiff’s overall
performance rating was change to 7. (Id., Exs. 9, 10.)
In the interim, believing that the Postal Service had subjected him to
unlawful discrimination, Plaintiff had contacted an Agency Equal Employment
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Office (“EEO”) Counselor to initiate the EEO complaint process. (See Defs.’
Mot., Ex. 5 at 1.) It is unclear what the specific subject matter of Plaintiff’s
complaint was. In any event, on December 29, 2010, Plaintiff and the Postal
Service entered into a settlement agreement resolving Plaintiff’s discrimination
claim. (Defs.’ Mot., Ex. 1.) The agreement stated in pertinent part:
Counselee withdraws his claim of discrimination.
Management agrees that Counselee will continue his role as an OSS
and support the scanning initiative via Field Operations and
Counselee will also contribute to the AMS [Address Management
System] function.
(Id.)
On February 1, 2011, Plaintiff alleged that the settlement agreement had
been violated when he was “forced to monitor the CPMS website,” instructed not
to assist with scanning programs while in the AMS office, and his access to
scanning programs had been revoked. (Defs.’ Mot., Ex. 2.) Plaintiff further
claimed that Tanksley gave him a zero rating on his Fiscal Year 2010 performance
evaluation in retaliation for his earlier EEO action. (Id.)
On April 6, 2011, the Postal Service issued a Letter of Determination
indicating that there was no evidence that the EEO settlement agreement had been
breached. (Id., Ex. 3.) Plaintiff appealed the Postal Service’s determination to the
Equal Employment Opportunity Commission (“EEOC”). (Id., Ex. 4.) On
September 12, 2012, the EEOC issued a decision finding that Plaintiff failed to
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establish that the Postal Service breached the agreement. (Id., Ex. 5 at 2-3.)
Plaintiff filed a timely request for reconsideration, which was denied by the EEOC
on March 20, 2013. (Id., Ex. 6.)
This lawsuit followed in which Plaintiff claims that the Postal Service
breached the settlement agreement of December 29, 2010, and retaliated and
discriminated against him on the basis of age with respect to his zero rating.
III.
Applicable Law and Analysis
Defendants raise three arguments in their summary judgment motion. First
they argue that subject matter jurisdiction is lacking with respect to Plaintiffs’
breach of settlement agreement claim. Next they argue that Tanksley is not a
proper defendant to this action. Finally, they contend that Plaintiff fails to show
that he was subjected to age discrimination or retaliation.
A.
Plaintiff’s Breach of Contract Claim
Plaintiff’s breach of contract claim is barred by sovereign immunity. “ ‘The
doctrine of sovereign immunity serves as a bar to suit against the United States
unless the government has explicitly waived sovereign immunity. A waiver of
sovereign immunity must be clear, express, and unambiguous; it cannot be implied
from vague language.’ ” Taylor v. Geithner, 703 F.3d 328, 333 (6th Cir. 2013)
quoting United Liberty Life Ins. Co. v. Ryan, 985 F.2d 1320, 1325 (6th Cir. 1993))
(internal citations and quotation marks omitted in Taylor); see also Lane v. Pena,
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518 U.S. 187, 192 (1996). Several Circuits, including the Sixth Circuit Court of
Appeals, have held that Title VII and the ADEA do not waive the government’s
sovereign immunity for claims alleging that a federal agency breached an EEO
agreement. Taylor v. Geithner, 703 F.3d at 335; Munor v. Mabus, 630 F.3d 856,
860-61 (9th Cir. 2010); Lindstrom v. United States, 510 F.3d 1191, 1195 (10th Cir.
2007); see also Frahm v. United States, 492 U.S. 258, 262 (4th Cir. 2007)
(concluding that Title VII’s statutory waiver of sovereign immunity does not
extend to monetary claims against the federal government for a breach of a
settlement agreement).
The Court therefore is granting Defendants’ motion to dismiss Plaintiff’s
breach-of-settlement agreement claim for lack of subject matter jurisdiction.
B.
Claims Against Tanksley
Plaintiff is suing Tanksley, his supervisor, for discrimination and retaliation
in violation of Title VII and the ADEA. Tanksley is not a proper defendant with
respect to those claims, however.
Title VII provides that “the head of the department, agency, or unit, as
appropriate, shall be the defendant” in a civil action brought by federal employees
to enforce their rights against employment discrimination. 42 U.S.C. § 2000e16(c). The ADEA relies on § 2000e-16(c) to identify the proper defendant in an
age discrimination suit. See Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986),
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cert. denied, 481 U.S. 1050 (1987); Ellis v. United States Postal Service, 784 F.2d
835, 838 (7th Cir. 1986); Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988);
Williams v. Bolger, No. 88-1534, 1998 WL 105284, at *1 (4th Cir. Sept. 26, 1988).
Thus the Postmaster General is the only properly named defendant with respect to
Plaintiff’s discrimination and retaliation claims. See Quillen v. United States
Postal Service, 564 F. Supp. 314 (E.D. Mich. 1983) (citing cases and holding that
the Postmaster General was the only proper defendant in postal service employee’s
employment discrimination lawsuit).
The Court therefore is granting summary judgment to Tanksley with respect
to Plaintiff’s claims against him.
C.
Discrimination and Retaliation Claims Against the Postmaster
General
As the Court lacks subject matter jurisdiction with respect to Plaintiff’s
breach-of-settlement agreement claim, the question is whether he can establish his
discrimination and retaliation claims based on the zero rating he received in
December 2010. Defendants contend that summary judgment is warranted with
respect to Plaintiff’s claims because he cannot establish a prima facie case under
Title VII or the ADEA based on that conduct.
In order to establish a prima facie case of age discrimination under the
ADEA, “a plaintiff must show: (1) membership in a protected group; (2)
qualification for the job in question; (3) an adverse employment action; and (4)
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circumstances that support an inference of discrimination.” Blizzard v. Marion
Technical Coll., 698 F.3d 275, 283 (6th Cir. 2012). A prima facie case of
retaliation under Title VII or the ADEA requires proof by the plaintiff that: “(1) he
engaged in activity protected by Title VII; (2) his exercise of such protected
activity was known by the defendant; (3) thereafter, the defendant took an action
that was ‘materially adverse’ to the plaintiff; and (4) a causal connection existed
between the protected activity and the materially adverse action.” Laster v. City of
Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014) (internal quotation marks and
citation omitted) (Title VII); Aldrich v. Rural Health Servs. Consortium, Inc., 579
F. App’x 335, 337 (6th Cir. 2014) (ADEA). Defendants maintain that Plaintiff
lacks evidence of “an adverse employment action.”
This element does not have the same meaning in the context of an ADEA
discrimination claim and a retaliation claim under Title VII or the ADEA. Laster,
746 F.3d at 719 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59
(2006) and Michael Caterpillar Fin. Servs. Corp., 496 F.3d 584, 595 (6th Cir.
2007)). As the Sixth Circuit summarized in Laster, the term has the following
meaning in the context of a discrimination claim:
In the context of a Title VII discrimination claim, an adverse
employment action is defined as a “materially adverse change in the
terms or conditions” of employment. Kocsis v. Multi-Care Mgmt.
Inc., 97 F.3d 876, 885 (6th Cir. 1996). An adverse employment action
“constitutes a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different
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responsibilities, or a decision causing a significant change in
benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.
Ct. 2257, 141 L.Ed.2d 633 (1998). Adverse employment action
“requires an official act of the enterprise, a company act. The decision
in most cases is documented in official company records, and may be
subject to review by higher level supervisors.” Id. at 762, 118 S. Ct.
2257. In addition, it typically “inflicts direct economic harm.” Id.
Laster, 746 F.3d at 727. Plaintiff has not identified a materially adverse change in
the conditions of his employment as a result of his temporary Fiscal Year 2010
zero performance rating.
In the context of a retaliation claim, the adverse action element is satisfied if
the plaintiff shows “that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.’ ”
Laster, 746 F.3d at 731 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 82 (1998)); White, 548 U.S. at 68. The Supreme Court explained in White
that the purpose of Title VII’s anti-retaliation provisions is to prohibit “employer
actions that are likely to deter victims of discrimination from complaining to the
EEOC, the courts, and their employers,” and “normally petty slights, minor
annoyances, and simple lack of good manners will not create such deterrence.”
548 U.S. at 68-69 (citation and internal quotation marks omitted). The Court
further explained that it purposely phrased the standard in general terms “because
the significance of any given act of retaliation will often depend on the particular
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circumstances.” Id. Thus, for example, “[a] schedule change in an employee’s
work schedule may make little difference to many workers, but may matter
enormously to a young mother with school-age children.” Id. Similarly, a
“supervisor’s refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding an employee from a
weekly training lunch that contributes significantly to the employee’s professional
advancement might well deter a reasonable employee from complaining about
discrimination.” Id. (citing 2 EEOC 1998 Manual § 8, p 8-14.)
The Sixth Circuit considered whether changes to a plaintiff’s performance
evaluations constituted an adverse action in Halfacre v. Home Depot, U.S.A., Inc.,
221 F. App’x 424 (2007). In that case, the plaintiff’s evaluations changed
significantly after he filed an EEOC discrimination charge. Id. at 432. Before
filing the charge, his “evaluations were generally stellar”, ranking in the highest of
four levels. Id. After filing the charge, however, his rankings dropped to the third
and second levels. The Sixth Circuit rejected the defendant’s contention that these
“negative evaluations comments and scores are nothing more than constructive
criticism” if they “significantly impact an employee’s wages or professional
advancement[.]” Id. at 433. There was evidence that the plaintiff would have
received a higher pay raise than the one he received if his rankings had not dropped
and that “one of the evaluations’ main purposes is to establish promotion
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potential[.]” Id. The court remanded the matter to the district court to fully
develop the evidence relevant to assessing whether the lower evaluations “actually
impacted [the plaintiff’s] wages or promotion potential.” Id. (emphasis in
original).
In a subsequent decision relying on Halfacre, the Sixth Circuit held that the
defendant’s bad employment evaluations of the plaintiff, in addition to its denial of
her request for a lateral transfer and imposition of cataloguing quotas, did not
constitute adverse employment actions in retaliation for the plaintiff’s filing of
EEOC charges. James v. Metro. Gov’t of Nashville, 243 F. App’x 74, 79 (6th Cir.
2007). The court relied on the fact that “none of these things [the plaintiff]
complained about significantly affected her professional advancement. [The
plaintiff] continued to work and she received the same pay . . ..” Id. In short, the
court found that the plaintiff’s “employment conditions were essentially unchanged
after she filed with the EEOC.” Id.
In the present case, like James, there is no evidence suggesting that an
employee’s end-of-year performance evaluation has any impact on his or her
employment conditions. Plaintiff in fact testified that he usually did not “pay any
attention to the ratings and numbers” on his performance evaluations. (Defs.’
Mot., Ex. 7 at 87.) Moreover, there is no evidence offered as to what Plaintiff’s
ratings were before he filed his EEO complaint. When asked at his deposition,
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Plaintiff was unable to recall what his fiscal year ratings were in 2007, 2008, or
2009. (Id. at 86.)
Even if Plaintiff established that the performance rating constituted an
adverse employment action and satisfied the elements of his prima facie case,
Defendants have articulated a legitimate non-retaliatory reason for the zero
performance rating. The undisputed evidence establishes that Plaintiff was not
present at work between October and December 2010. In an affidavit submitted in
support of Defendants’ motion, Tanksley explains that Plaintiff’s absence was the
only reason he did not evaluate him. (Defs.’ Mot., Ex. 13 ¶ 13.) Tanksley attests
that “[i]t is [his] understanding per Human Resources policy that if an employee is
not available we are not to rate their performance.” (Id. ¶ 12.) Plaintiff fails to
present evidence to suggest that this reason was a pretext for retaliation.
For the above reasons, the Court concludes that Plaintiff cannot prevail on
his discrimination or retaliation claims under Title VII or the ADEA.
Accordingly,
IT IS ORDERED, that Defendants’ motion for summary judgment is
GRANTED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 19, 2015
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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 19, 2015, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager
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