Dawson v. Donahoe et al
Filing
55
ORDER granting 46 Motion for Summary Judgment for the reasons set out in the Order. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on February 23, 2016.(SP)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JAMES B. DAWSON
PLAINTIFF
v.
CIVIL ACTION NO. 3:14cv627-DPJ-FKB
MEGAN BRENNAN, Postmaster
General, United States Postal Service
DEFENDANT
ORDER
This employment-discrimination case is before the Court on Defendant’s Motion for
Summary Judgment [46]. For the reasons that follow, the motion is granted.
I.
Facts and Procedural History
Pro se Plaintiff James B. Dawson, an African-American male, has been employed by the
United States Postal Service (“USPS”) since 1997. As a postal employee, Dawson is a member
of the American Postal Workers Union-AFL CIO (“Union”) and is subject to a Collective
Bargaining Agreement (“CBA”) between the Union and the USPS. See Dawson Dep. [46-1] at
39.1 The CBA contains provisions governing the promotion of Union members.
Plaintiff contends that he should have been promoted to the position of Electronic
Technician (“ET”) on November 17, 2012. The undisputed record evidence shows that, at some
point prior to November 17, 2012, “Dawson was promoted and temporarily assigned to a
position of ET, pending qualification.” Def.’s Mem. [47] at 3 (citing Moore Decl. [46-4] ¶ 2).
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Plaintiff quibbles with Defendant’s reliance on his deposition testimony, claiming that
he “ha[s] not received a full copy of the deposition to validate as [his] true deposition” and that
“there are discrepancies in the partial deposition that was attached to the Defendant[’]s motion
for summary judgment.” Pl.’s Resp. [48] at 4. He does not elaborate on the substance of the
alleged discrepancies, and the Court did not identify any in its review of the excerpts.
Regardless, Defendant is not required under Federal Rule of Civil Procedure 30(f)(3) to provide
Plaintiff with a copy of his deposition transcript. See Adams v. Dolgencorp, LLC, No.
11-784-FJP, 2012 WL 1918625, at *2 (M.D. La. May 25, 2012).
Once Plaintiff completed a qualifying course, his promotion to ET became final on April 24,
2013, with a February 23, 2013 effective date. But from the time of his temporary assignment,
Plaintiff “was paid as an Electronic Technician and performed the duties of the Electronic
Technician.” Moore Decl. [46-4] ¶ 2.
Plaintiff filed this lawsuit on August 11, 2014, and filed an Amended Complaint on
December 19, 2014. Following the Court’s ruling on an early Motion for Partial Summary
Judgment [15], and liberally construing Plaintiff’s pleadings, Plaintiff’s remaining claims are
Title VII claims for race discrimination and retaliation against Megan Brennan, Postmaster
General, United States Postal Service. See Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(explaining that pro se pleadings should be liberally construed). Following the close of
discovery, Defendant filed her Motion for Summary Judgment [46]. Plaintiff has responded [48]
in opposition, and Defendant filed a reply [49]. The Court has personal and subject-matter
jurisdiction and is prepared to rule.
II.
Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when
evidence reveals no genuine dispute regarding any material fact and that the moving party is
entitled to judgment as a matter of law. The rule “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 (1986).
The party moving for summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of [the record] which it
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believes demonstrate the absence of a genuine issue of material fact.” Id. at 323. The
nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing
that there is a genuine issue for trial.’” Id. at 324. In reviewing the evidence, factual
controversies are to be resolved in favor of the nonmovant, “but only when . . . both parties have
submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc) (per curiam). When such contradictory facts exist, the court may “not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and
legalistic arguments do not constitute an adequate substitute for specific facts showing a genuine
issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002);
Little, 37 F.3d at 1075; SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993) (per curiam).
III.
Analysis
A.
Race-Discrimination Claim
Plaintiff alleges that the USPS failed to promote him because of his race. His Title VII
discrimination claim is governed by the familiar McDonnell-Douglas burden-shifting
framework.
To establish a prima facie case of racial discrimination in employment, an
employee must demonstrate that (1) he is a member of a protected class, (2) he
was qualified for the position at issue, (3) he was the subject of an adverse
employment action, and (4) he was treated less favorably because of his
membership in that protected class than were other similarly situated employees
who were not members of the protected class, under nearly identical
circumstances.
Lee v. Kan. City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). If the employee makes out a
prima facie case, “the burden of production shifts to the employer, who must offer an alternative
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non-discriminatory explanation for the adverse employment action.” Id. Where the employer
offers such an explanation, the burden shifts back to the employee “to demonstrate that the
employer’s explanation is merely a pretext for racial bias.” Id.
Defendant asserts that Plaintiff fails to establish three of the four elements of a prima
facie case of discrimination. Specifically, Defendant argues that Plaintiff was not qualified for
the promotion as of November 17, 2012, he suffered no adverse employment action, and he has
no evidence a similarly situated white employee was treated more favorably than him under
nearly identical circumstances. Defendant may be correct as to the second element, but because
the third and fourth are clearly lacking, this Order focuses on them.
1.
Adverse Employment Action
To qualify as an adverse employment action for purposes of a Title VII discrimination
claim, an action must involve an “ultimate employment decision[].” Thompson v. City of Waco,
Tex., 764 F.3d 500, 503 (5th Cir. 2014). It is well-settled that a failure to promote constitutes an
adverse employment action under Title VII. E.g., Pierce v. Tex. Dep’t of Crim. Justice, Inst.
Div., 37 F.3d 1146, 1149 (5th Cir. 1994). But a mere delay in promotion, unaccompanied by any
adverse effects, is not an adverse employment action. Dailey v. Whitehorn, 539 F. App’x 409,
411 (5th Cir. 2013); accord Mylett v. City of Corpus Christi, 97 F. App’x 473, 475 (5th Cir.
2004) (“A delay in promotion is not an adverse employment action where any increase in pay,
benefits, and seniority are awarded retroactively.”). Here, the undisputed evidence shows that,
from the moment Plaintiff was provisionally placed in the ET position pending completion of the
qualifying course, he was paid as an ET and performed ET duties. He thus suffered no adverse
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effects from the delay in the promotion being finalized, so the delay is not an adverse
employment action for purposes of his discrimination claim.
2.
Comparator Evidence
Plaintiff argues that he has proof that a similarly situated white employee, Jeff Creel, was
treated more favorably than him under nearly identical circumstances. Plaintiff asserts that Creel
was promoted to ET after his probationary year without competing the qualifying course. See
Creel Letter [48-2]. In its Reply, Defendant elaborated on the circumstances of Creel’s
promotion: it took place in May 2011 under a different supervisor than Plaintiff’s supervisor.
See Stovall Decl. [49-1].2
“As to this final prong of the prima facie case, [the Fifth Circuit has] held that employees
are generally not similarly situated if they have different supervisors . . . or were the subject of
adverse employment actions too remote in time from that taken against the plaintiff.” Cardiel v.
Apache Corp., 559 F. App’x 284, 288 (5th Cir. 2014). Here, the timing becomes remote because
the supervisor changed. See Stovall Decl. [49-1]. Plaintiff plainly asserts that his supervisor,
Grant Moore, made the promotion decision in his case. See Pl.’s Resp. [48] at 5. David Stovall
promoted Creel. Stovall Decl. [49-1]. Creel is not an appropriate comparator for purposes of the
fourth element of Plaintiff’s prima facie case.
In sum, Plaintiff has not come forward with record evidence establishing a prima facie
case of race discrimination. Defendant is entitled to summary judgment on the discrimination
claim.
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Defendant objects to Creel’s unattested statement. Def.’s Reply [49] at 3 n.1. But even
assuming the document could survive a proper Rule 56(c)(2) objection, the evidence is not
material.
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B.
Retaliation Claim
The McDonnell-Douglas burden-shifting framework also applies to Title VII retaliation
claims. See Jones v. Overnite Transp. Co., 212 F. App’x 268, 275 (5th Cir. 2006). To establish
a prima facie case of retaliation under Title VII, Plaintiff “must demonstrate that: (1) []he
engaged in protected activity; (2) an adverse employment action occurred; and (3) a causal link
exists between the protected activity and the adverse employment action.” Royal v. CCC & R
Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir. 2013). Defendant asserts that Plaintiff’s prima
facie case fails for lack of an adverse employment action and proof of a causal link.3 Because
the lack of an adverse employment action is dispositive, the Court need not discuss the causallink element.
In the Title VII retaliation context, an adverse employment action is an action that “a
reasonable employee would have found [to be] materially adverse, which in this context means it
well might have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal
quotation marks omitted). The material adversity of an action “depends upon the circumstances
of the particular case, and should be judged from the perspective of a reasonable person in the
plaintiff’s position, considering all the circumstances.” Id. at 71 (internal quotation marks
omitted); see also id. at 69 (“[T]he significance of any given act of retaliation will often depend
upon the particular circumstances. Context matters.”).
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It is undisputed that Plaintiff engaged in protected activity by filing at least one prior
EEO complaint related to his employment with the USPS. See Moore Decl. [46-4] ¶ 5.
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In this case, Plaintiff has pointed to no circumstances of his delayed promotion that
support a finding of a materially adverse employment action. As noted, from the time he was
temporarily placed in the ET position, Plaintiff was paid as an ET and performed the duties of an
ET; he was functionally an ET. Absent record evidence that the circumstances of the delayed
promotion might dissuade a reasonable worker from making or supporting a charge of
discrimination, Plaintiff has not established a materially adverse employment action. See Wheat
v. Fla. Parish Juvenile Justice Comm’n, No. 14-30788, 2016 WL 67197, at *3 (5th Cir. Jan. 5,
2016). He therefore fails to state a prima facie case of retaliation, and Defendant is entitled to
summary judgment on the retaliation claim.
IV.
Conclusion
The Court has considered all of the parties’ arguments. Those not specifically addressed
would not have changed the outcome. For the foregoing reasons, Defendant’s Motion for
Summary Judgment [46] is granted. A separate judgment will be entered in accordance with
Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 23rd day of February, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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