Robbins v. United States Postal Service
Filing
47
MEMORANDUM AND ORDER GRANTED 27 MOTION for Summary Judgment (Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
KERTRELL ROBBINS,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster
General,
Defendant.
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October 26, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. H-14-2625
MEMORANDUM AND ORDER
This employment case is before the Court on the Motion for Summary
Judgment (“Motion”) [Doc. # 27] filed by Defendant Megan J. Brennan, United States
Postmaster General. Plaintiff Kertrell Robbins filed a Response [Doc. # 36],
Defendant filed a Reply [Doc. # 43], and Plaintiff filed a Sur-Reply [Doc. # 46]. The
Court has carefully reviewed the record in this case. Based on that review and the
application of relevant legal authorities, the Court grants Defendant’s Motion.
I.
BACKGROUND
Plaintiff, an African-American male, began his employment with the United
States Postal Service (“USPS”) as a Transitional Employee in Houston, Texas, on
November 8, 2008. Transitional Employees are non-career bargaining unit employees
who are appointed to a term of employment not to exceed 360 days. There is a break
of at least five (5) days between appointments.
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On April 19, 2010, Plaintiff received a Notice of Removal (“NOR”) for
unsatisfactory attendance. See Notice of Removal, Exh. 16 to Motion. On May 4,
2010, the removal was abated conditioned on Plaintiff having no more than two
unscheduled absences in the future. See Informal “Step A” Resolution Settlement,
Exh. 17 to Motion.
A.
2010 Removal
On June 18, 2010, a customer reported seeing Plaintiff put gasoline into his
personal vehicle and pay for it with a government gas card. See Exh. 18 to Motion.
An investigation revealed a receipt for the purchase of 11.8 gallons of gasoline on
June 18, 2010, purportedly for Plaintiff’s assigned vehicle that has a 12-gallon
capacity. The purchaser used the gasoline credit card PIN assigned to Gail Isley, a
USPS supervisor. Shortly after the customer’s report on June 18, 2010, USPS
management took possession of the Postal Service vehicle assigned to Plaintiff that
day. The gas tank was only half full even though Plaintiff had just purchased 11.8
gallons of gasoline. See id. Gail Isley stated that she had not given Plaintiff
permission to use her PIN. See Exh. 23 to Motion.
On July 21, 2010, the USPS issued a Disciplinary Action Proposal based on the
allegation that Plaintiff used Isley’s PIN to put gasoline into his personal vehicle. See
Disciplinary Action Proposal, Exh. 25 to Motion. On July 22, 2010, during an
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investigative interview, Plaintiff denied putting gasoline into his personal vehicle. See
Investigative Interview, Exh. 25 to Motion. When questioned about using another
employee’s PIN, Plaintiff initially declined to answer and stated “This is bullshit I’m
not answering nothing else.” See id. Later, however, Plaintiff admitted using other
employees’ PINs “with the supervisor’s permission.” See id. On July 30, 2010, the
USPS issued a NOR to Plaintiff for misuse of a government credit card by purchasing
gasoline using another employee’s PIN without permission. See Notice of Removal,
Exh. 2 to Motion.
Plaintiff’s initial Equal Employment Opportunity (“EEO”) contact was on
July 22, 2010. See Exh. 1 to Motion. On July 30, 2010, Plaintiff filed an informal
EEO complaint alleging “Filing a mixed-case appeal with the MSPB;1 double
jeopardy, discrimination against self.” See id. The EEO Investigative Service Office
identified “gender” as the basis for the alleged discrimination. See Exh. 29 to Motion.
Plaintiff did not object to this characterization of his complaint.
On September 23, 2010, Plaintiff withdrew his complaint. See Withdrawal of
Complaint of Discrimination, Exh. 3 to Motion.
Plaintiff stated that he was
withdrawing his allegations of discrimination “on the basis of sex (male)” and
stipulated that the withdrawal of his complaint “did not result from threat, coercion,
1
Merit Service Protection Board
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intimidation, promise or inducement.” See id. Plaintiff’s union representative was
present at the time Plaintiff withdrew his complaint.2
November 2, 2010, was Plaintiff’s last day “in pay status” with the USPS in
Houston. His union filed a grievance on his behalf, which was settled on January 5,
2011. The settlement provided that Plaintiff would be paid $1,662.18 for the time
remaining on his current appointment, that his contract would not be renewed, and that
he would “not be hired by Postal Service.” See Pre-Arbitration Agreement, Exh. 4 to
Motion.
B.
2012 Removal
Notwithstanding his agreement “not to be hired by [the] Postal Service,” on
February 15, 2012, Plaintiff applied for a position with the USPS in Katy, Texas. See
Application for Employment, Exh. 6 to Motion. With reference to his Work History,
Plaintiff stated in February 2012 that he had been employed by the USPS in Houston
from “11-2008 - Present.” See id. Plaintiff answered “No” to the questions “Have
you ever been fired from any job for any reason?” and “Have you ever quit a job after
being notified that you would be fired?” See id. Plaintiff certified that his answers
2
Although the union representative was not an attorney, a “labor union is assumed to
have some degree of expertise in equal employment opportunity matters.” See Nat’l
Ass’n of Gov’t Emps. v. City Pub. Serv. Bd. of San Antonio, 40 F. 3d 698, 709 (5th
Cir. 1994).
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were “true, complete, and correct” and acknowledged that a false answer to any of the
questions could be grounds for dismissal if he were hired. See id. During his
interview with Brenda Johnson, a USPS supervisor, Plaintiff stated that he was one
of 25 Transitional Employees who had been laid off and that he had “left on a high
note.” See Disciplinary Action Proposal, Exh. 33, p. 3. Plaintiff was hired by the
USPS and began working at the Katy Post Office on April 9, 2012.
On July 31, 2012, Plaintiff requested time off to attend a family reunion on
August 31, 2012, and September 1, 2012. Johnson, Plaintiff’s supervisor, denied the
request. Plaintiff called in sick on both days and provided a doctor’s excuse. Johnson
checked Plaintiff’s attendance records from his prior USPS employment, and she
discovered his April 2010 NOR for unsatisfactory attendance.
Johnson also
discovered the NOR from July 2010 and the settlement agreement from January 2011.
On September 24, 2012, Johnson conducted an investigative interview with
Plaintiff in the presence of his union representative. See Disciplinary Action Proposal,
Exh. 37 to Motion. In the interview, Plaintiff wrote that he was “never fired” and that
he could not remember whether he received the July 30, 2010 NOR. See id. Plaintiff
similarly could not remember whether he received the January 5, 2011 settlement
agreement. See id. Johnson conducted a second investigative interview on October
3, 2012, again in the presence of Plaintiff’s union representative. See Disciplinary
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Action Proposal, Exh. 33 to Motion. At that time, Plaintiff admitted receiving the
$1,662.18 to settle the union’s grievance. See id.
On September 25, 2012, Plaintiff contacted an EEO counselor and alleged
retaliation for prior EEO activity.
The USPS issued a formal Disciplinary Action Proposal on October 10, 2012.
See id. On October 15, 2012, the USPS issued a NOR to Plaintiff for not being
truthful in his application and interview, advising Plaintiff that his last date of
employment with the USPS would be November 23, 2012. See Notice of Removal,
Exh. 7 to Motion. Plaintiff’s union filed a grievance on his behalf. The grievance was
denied on November 30, 2012, and the denial was not appealed. On December 20,
2012, Plaintiff filed a formal EEO Complaint alleging sex discrimination and
retaliation. See EEO Complaint of Discrimination, Exh. 8 to Motion.
On December 7, 2012, Plaintiff attempted to amend his EEO pre-complaint
counseling form to add a claim that he became aware on November 27, 2012, that the
“Withdrawal of Complaint of Discrimination” form signed in September 2010 was
signed under duress.3 See Information for Pre-Complaint Counseling, Exh. 41 to
3
Defendant argues that Plaintiff’s withdrawal of his 2010 EEO complaint renders his
gender discrimination claim unexhausted as to the 2010 removal. Plaintiff argues that
the withdrawal was under duress. As explained below, the gender discrimination
claim regarding the 2010 removal fails on the merits. Therefore, the Court need not
rule on the validity of Plaintiff’s 2010 “Withdrawal of Complaint of Discrimination.”
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Motion. The EEO Investigative Services Office advised Plaintiff that it would not
accept the proposed amendment alleging duress, and that the allegation must be
presented in writing to the Manager of EEO Compliance and Appeals, Southern Area.
See Acceptance for Investigation, Exh. 44 to Motion. On May 20, 2014, the EEO
Compliance and Appeals Manager notified Plaintiff that he had determined Plaintiff
made an informed decision to withdraw his complaint in 2010 and, therefore, the 2010
complaint remained closed. See Letter dated May 20, 2014, Exh. 43 to Motion.
On September 20, 2014, the EEOC granted summary judgment in favor of the
USPS on Plaintiff’s 2012 EEO complaint. See Order Entering Judgment and Decision
Without Hearing, Exh. 10 to Motion. The Administrative Law Judge found that
Plaintiff failed to prove either sex discrimination or retaliation. See id.
On October 9, 2014, the USPS issued its Notice of Final Action in accordance
with the Administrative Law Judge’s decision. Plaintiff appealed to the EEOC Office
of Federal Operations, which dismissed the appeal when Plaintiff filed this lawsuit.
On September 12, 2014, Plaintiff filed this lawsuit pro se alleging only that he
was falsely accused of stealing gas. See Complaint [Doc. # 1], ¶ 7. On May 18, 2015,
Plaintiff through counsel filed his First Amended Complaint asserting causes of action
for gender discrimination, race discrimination, retaliation, and a due process violation.
See First Amended Complaint [Doc. # 16]. After a period of more than one year to
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conduct discovery, Defendant filed the pending Motion for Summary Judgment. The
Motion has been fully briefed and is now ripe for decision.
II.
SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for the entry of
summary judgment against a plaintiff who fails to make a sufficient showing of the
existence of an element essential to his case and on which he will bear the burden at
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v. Anthony, 710
F.3d 587, 594 (5th Cir. 2013); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc). Summary judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a); Celotex, 477 U.S. at 322-23; Curtis, 710 F.3d
at 594.
For summary judgment, the initial burden falls on the movant to identify areas
essential to the non-movant’s claim in which there is an “absence of a genuine issue
of material fact.” ACE Am. Ins. Co. v. Freeport Welding & Fabricating, Inc., 699
F.3d 832, 839 (5th Cir. 2012). The moving party, however, “need not negate the
elements of the nonmovant’s case.” Coastal Agric. Supply, Inc. v. JP Morgan Chase
Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014) (quoting Boudreaux v. Swift Transp.
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Co., 402 F.3d 536, 540 (5th Cir. 2005)). The moving party may meet its burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.”
Malacara v. Garber, 353 F.3d 393, 404 (5th Cir. 2003) (citing Celotex, 477 U.S. at
323; Stults v. Conoco, Inc., 76 F.3d 651, 656 (5th Cir. 1996)).
If the moving party meets its initial burden, the non-movant must go beyond the
pleadings and designate specific facts showing that there is a genuine issue of material
fact for trial. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 141 (5th Cir. 2004);
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal
citation omitted). “An issue is material if its resolution could affect the outcome of
the action.” Spring Street Partners-IV, L.P. v. Lam, 730 F.3d 427, 435 (5th Cir.
2013). “A dispute as to a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” DIRECT TV Inc. v.
Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).
In deciding whether a genuine and material fact issue has been created, the
court reviews the facts and inferences to be drawn from them in the light most
favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A genuine issue of material fact
exists when the evidence is such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th Cir. 2009) (citing Anderson
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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Conclusional allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.’” Pioneer Exploration, L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th
Cir. 2014) (quoting Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002); accord Delta
& Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.
2008). Instead, the nonmoving party must present specific facts which show “the
existence of a genuine issue concerning every essential component of its case.”
Firman v. Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir. 2012) (citation and
internal quotation marks omitted). In the absence of any proof, the court will not
assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d
at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
The Court may make no credibility determinations or weigh any evidence.
Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves
Brokerage Co., 336 F.3d at 412-13). The Court is not required to accept the
nonmovant’s conclusory allegations, speculation, and unsubstantiated assertions
which are either entirely unsupported, or supported by a mere scintilla of evidence.
Id. (citing Reaves Brokerage, 336 F.3d at 413); accord, Little, 37 F.3d at 1075.
Affidavits cannot preclude summary judgment unless they contain competent and
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otherwise admissible evidence. See FED. R. CIV. P. 56(c)(4); Love v. Nat’l Med.
Enters., 230 F.3d 765, 776 (5th Cir. 2000).
III.
GENDER DISCRIMINATION CLAIM
Plaintiff alleges that his removals in 2010 and in 2012 were the result of gender
discrimination in violation of Title VII. Plaintiff can establish his discriminatory
discharge claim through direct or circumstantial evidence. See Heggemeier v.
Caldwell County, 826 F.3d 861, 867 (5th Cir. 2016) (citing McCoy v. City of
Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)). Because Plaintiff in this case relies
on circumstantial evidence, his claim is analyzed under the McDonnell Douglas
burden-shifting framework. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973)). Under this framework, Plaintiff must first establish a prima facie
case of discrimination and, if he does so, there arises a presumption of discrimination
and the employer must articulate a legitimate, non-discriminatory reason for its
removal decision. Id. If the employer meets this burden of production, Plaintiff must
present evidence that Defendant’s articulated reason is a pretext for discrimination.
Id.
Prima Facie Case.– To establish a prima facie case of gender discrimination
in connection with the termination of employment for alleged misconduct, Plaintiff
must present evidence that:
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(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. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). It is undisputed that
Plaintiff is male and, therefore, is a member of a protected class. It is undisputed that
he was qualified for the positions he held with the USPS, and that his removals were
adverse employment actions.
Plaintiff has failed to present evidence, however, that his gender caused him to
be treated less favorably than similarly situated female employees under nearly
identical circumstances. To demonstrate the fourth element of the prima facie case,
Plaintiff must identify a similarly-situated employee who is not a member of his
protected class. Id. Additionally, “[t]he employment actions being compared will be
deemed to have been taken under nearly identical circumstances when the employees
being compared held the same job or responsibilities, shared the same supervisor or
had their employment status determined by the same person, and have essentially
comparable violation histories.” Heggemeier, 2016 WL 3457260 at *3 (quoting Lee,
574 F.3d at 260).
With reference to the 2010 removal, Plaintiff in the EEO process and in his
Response identified three comparators – two male and one female. The two males are
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members of Plaintiff’s protected class and, therefore, do not support a prima facie case
of gender discrimination. The female comparator, who reported to a different
supervisor than Plaintiff did, allegedly was once intoxicated when she reported to
work. This alleged misconduct is not “nearly identical” to Plaintiff’s misuse of a
government gasoline credit card. Additionally, Plaintiff alleges, without supporting
evidence, that there were many USPS employees who used other employees’ PINs.
Plaintiff has not, however, identified any female USPS employees who used another
employee’s PIN without permission. Absent evidence of a similarly-situated female
USPS employee who was treated more favorably than he, Plaintiff has failed to
present evidence to support a prima facie case of gender discrimination in connection
with his 2010 removal.
Plaintiff has similarly failed to present evidence of any female USPS employees
who were treated more favorably than he in connection with his 2012 removal.
Plaintiff has not identified any female employees who provided false statements on
their application and during their pre-employment interview who were not removed
from their employment. Consequently, Plaintiff has not presented evidence to support
a prima facie case of gender discrimination in connection with the 2012 removal.
Plaintiff has failed to identify or present evidence of a similarly-situated female
employee with the USPS who was treated more favorably than he under nearly
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identical circumstances. As a result, he has not established a prima facie case of
gender discrimination in connection with the 2010 removal or the 2012 removal.
Defendant’s Motion for Summary Judgment on this claim is granted on this basis.
Pretext.– As a separate basis for summary judgment in favor of Defendant,
Plaintiff has failed to present evidence that raises a genuine issue of material fact on
the issue of pretext. Defendant has articulated a legitimate non-discriminatory reason
for its decisions to remove Plaintiff in 2010 and in 2012. Plaintiff was removed in
2010 for using another employee’s PIN without permission. Plaintiff was removed
in 2012 for having provided false statements in his application and his preemployment interview. Therefore, to avoid summary judgment in favor of Defendant
on his gender discrimination claim, Plaintiff must present evidence from which a
reasonable factfinder could conclude that Defendant’s explanation was a pretext for
discrimination. A plaintiff’s subjective speculation that he was fired because of his
protected status is not evidence that the true reason for his discharge was
discrimination. See Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 379 (5th
Cir. 2010); Strahan v. Waste Mgmt., 539 F. App’x 331, 332 (5th Cir. Aug. 19, 2013)
(citing Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 (5th Cir. 2004)).
With reference to the 2010 removal, Plaintiff admits that he used Isley’s PIN,
and he has presented no evidence that suggests gender discrimination was the true
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reason for his removal. With reference to the 2012 removal, Plaintiff’s statements in
his application and interview were demonstrably false.
Plaintiff argues that
Defendant’s explanation is pretextual because he was not “fired” in 2010.4 Plaintiff’s
argument is unpersuasive. Plaintiff made statements in his application and during his
pre-employment interview that he was one of 25 Transitional Employees who were
laid off, that he left his position with the USPS “on a high note,” and that he had not
quit a job after being notified that he would be fired. These statements are not
rendered truthful simply because Plaintiff was permitted to end his Transitional
Employee appointment with the USPS to avoid imposition of the Notice of Removal.
Defendant has articulated a legitimate, non-discriminatory reason for the 2010
removal and the 2012 removal. Plaintiff has failed to present evidence that raises a
genuine issue of material fact regarding whether these explanations are false and
pretextual. As a result, on this basis also, Defendant’s Motion for Summary Judgment
on the gender discrimination claim is granted.
IV.
RACE DISCRIMINATION CLAIM
A federal employee must exhaust administrative remedies prior to filing a
lawsuit in federal court. See Francis v. Brown, 58 F.3d 191, 192 (5th Cir. 1995);
4
Plaintiff in his Response argues also that no other rural carrier associate at the Katy
Post Office has ever been removed for the first unscheduled absence. Plaintiff was
not removed for his unscheduled absence.
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Thomas v. Napolitano, 449 F. App’x 373, 374-75 (5th Cir. Nov. 9, 2011). To exhaust
his administrative remedies, a federal employee first must “‘initiate contact’ with an
Equal Employment Opportunity counselor at his agency ‘within 45 days of the date
of the matter alleged to be discriminatory.’” Green v. Brennan, __ U.S. __, 136 S. Ct.
1769, 1774 (2016) (quoting 29 CFR § 1614.105(a)(1)). If the matter is not resolved
after the mandatory counseling period, the federal employee has the choice of
appealing the decision to the EEOC Office of Review and Appeals or filing suit in
federal district court. See Tolbert v. United States, 916 F.2d 245, 248 (5th Cir. 1990).
If the employee chooses to appeal, he must file a formal written administrative
complaint with the EEOC within fifteen days of the EEO counselor’s notice of final
interview and right to file a formal complaint. If the appeal is unsuccessful, the
federal employee may proceed to federal court and file a Title VII civil action
(a) within ninety days of the notice of a final agency decision on the EEOC complaint
or (b) after 180 days from the filing of the EEOC complaint if the Commission has not
yet issued a decision. See id.
The scope of the complaint is limited to the discrimination stated in the charge
and issues that could reasonably be developed during the EEOC investigation. See
Nat’l Ass’n of Gov’t Emps. v. City Pub. Serv. Bd of San Antonio, 40 F.3d 698, 712
(5th Cir. 1994); see also Thomas v. Tex. Dep’t of Crim. Justice, 220 F.3d 389, 395
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(5th Cir. 2000) (holding that the “scope of a Title VII complaint is limited to the scope
of the EEOC investigation which can reasonably be expected to grow out of the
charge of discrimination”). “Although courts read the EEOC charges rather broadly
to determine what EEOC investigations it can reasonably be expected to trigger, a
failure to reference a claim in that charge may defeat that claim.”
Lopez v.
Kempthorne, 684 F. Supp. 2d 827, 852 (S.D. Tex. 2010).
In this case, it is undisputed that Plaintiff did not allege race discrimination in
connection with any EEO activity regarding his 2010 or 2012 removals. In his two
EEO complaints, he neither marked “Race” as a basis for his EEO charge nor alleged
facts that would support a race discrimination claim. Indeed, his EEO complaint in
2010 did not identify any basis for the alleged “discrimination against self.” The EEO
Investigative Service Office identified “gender” as the alleged basis, and Plaintiff did
not object to that characterization of this complaint. As a result, Plaintiff has not
exhausted his race discrimination claim.
Plaintiff argues that he is entitled to equitable relief from the 45-day period
because Defendant coerced him into withdrawing his grievance. Plaintiff is not
entitled to such equitable relief, however, because he has neither alleged nor presented
evidence that the USPS concealed facts from him or affirmatively misled him
regarding the reason for his removal. See Manning v. Chevron Chem. Co., LLC, 332
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F.3d 874, 880 (5th Cir. 2003) (holding that “[w]e equitably toll a limitations period
only when the employer’s affirmative acts mislead the employee and induce him not
to act within the limitations period”); Ramirez v. City of San Antonio, 312 F.3d 178,
184 (5th Cir.2002) (“A court will equitably toll a limitations period only when the
employer’s affirmative acts mislead the employee.”).
Plaintiff failed to assert a race-based discrimination claim within 45 days after
his removal. Indeed, Plaintiff failed to assert a race-based discrimination claim in his
original Complaint and did not do so until he filed his First Amended Complaint on
May 18, 2015. As a result, his race discrimination claim is unexhausted. Absent
allegations or evidence that would support equitable tolling or estoppel, Defendant is
entitled to summary judgment on Plaintiff’s race discrimination claim.
V.
RETALIATION CLAM
To establish a prima facie case of retaliation under Title VII, Plaintiff must
show that (1) he participated in a protected activity, (2) he suffered an adverse
employment action, and (3) there exists a causal connection between the protected
activity and the adverse action. See Stewart v. Miss. Transp. Comm’n, 586 F.3d 321,
331 (5th Cir. 2009); Wu v. Miss. State Univ., 626 F. App’x 535, 537 (5th Cir. Sept. 29,
2015). The third element requires “but-for causation,” meaning proof that the adverse
action would not have occurred without the employee’s protected activity. Univ. of
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Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S. Ct. 2517, 2533 (2013); Wu, 626 F.
App’x at 537. If Plaintiff establishes a prima facie case of retaliation, the burden then
shifts to Defendant to articulate a legitimate, non-retaliatory reason for the adverse
employment action. Wu, 626 F. App’x at 737 (citing Long v. Eastfield Coll., 88 F.3d
300, 304-05 (5th Cir. 1996)). The burden then falls on Plaintiff to establish that the
explanation is pretextual and that, “but for” his protected activity, he would not have
suffered the adverse employment action. See Porter v. Houma Terrebonne Housing
Auth. Bd. of Comm’rs, 810 F.3d 940, 948 (5th Cir. 2015) (citations omitted).
Plaintiff has presented evidence that he engaged in activity protected under
Title VII. Specifically, Plaintiff has presented evidence that in 2010 he had an initial
EEO contact on July 22 and filed an informal EEO complaint on July 30. Plaintiff has
presented evidence that in 2012 he contacted an EEO counselor on September 25,
attempted to amend his EEO pre-complaint counseling form on December 7, and filed
an EEO complaint on December 20. There is no dispute that Plaintiff’s removals in
2010 and 2012 were adverse employment actions.
On the causal connection element of his retaliation claim, the chronology
refutes Plaintiff’s retaliation claim regarding his removals. In 2010, the Disciplinary
Action Proposal was issued on July 21, 2010. It was not until the next day, July 22,
2010, that Plaintiff first contacted an EEO counselor.
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With reference to the 2012 removal, Johnson conducted the first investigative
interview with Plaintiff on September 24, 2012. The next day, September 25, 2012,
Plaintiff had his initial contact with the EEO. Additionally, there is no evidence that
Johnson, the decision maker in 2012, knew of Plaintiff’s 2010 EEO activity prior to
beginning her investigation and issuing the Disciplinary Action Proposal. The
settlement agreement of which Johnson had knowledge involved the settlement of the
union’s grievance of Plaintiff’s removal, not any activity that is protected under Title
VII. There is similarly no evidence that Johnson knew of Plaintiff’s September 25,
2012, EEO contact when she began her investigation, or when the Notice of Removal
was issued on October 15, 2012, advising Plaintiff that his last date of employment
would be November 23, 2012. Plaintiff did not file his formal EEO complaint until
December 20, 2012. Plaintiff has presented no evidence that raises a genuine issue
of material fact regarding a causal connection between any of his EEO activity and his
2010 or 2012 removals. On this basis, Defendant is entitled to summary judgment on
Defendant’s retaliation claim.
Even if Plaintiff were able to establish a prima facie case of retaliation, as
discussed above in connection with the gender discrimination claim, Defendant has
articulated a legitimate, non-retaliatory reason for its removal decisions in 2010 and
2012. As discussed above, Plaintiff has presented no evidence that Defendant’s
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explanations are false and that retaliation was the true reason for the removal
decisions. On this basis also, Defendant’s Motion for Summary Judgment on the
retaliation claim is granted.
VI.
DUE PROCESS CLAIM
Plaintiff alleges that Defendant violated his right to procedural due process in
connection with his removals. Defendant moved for summary judgment on this claim
as preempted by Title VII. Plaintiff did not address the due process claim in his
Response or his Sur-Reply.
“Title VII provides the exclusive remedy for employment discrimination claims
raised by federal employees.” Jackson v. Widnall, 99 F.3d 710, 715 (5th Cir. 1996)
(citing Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976)); see also Scott v.
U.S. Dept. of Agric., 2013 WL 5890613, *1 (E.D. La. Nov. 1, 2013); Wilkerson v.
Snow, 2003 WL 21528235, *4 (N.D. Tex. June 30, 2003). As a result, Defendant is
entitled to summary judgment on Plaintiff’s due process claim based on the 2010 and
2012 removals which are covered by Plaintiff’s Title VII claims.
VII. CONCLUSION AND ORDER
Plaintiff has failed to present evidence that raises a genuine issue of material
fact in support of his gender discrimination and retaliation claims. Plaintiff failed to
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exhaust his administrative remedies with respect to his race discrimination claim. His
due process claim is preempted by Title VII. As a result, it is hereby
ORDERED that Defendant’s Motion for Summary Judgment [Doc. # 27] is
GRANTED. The Court will issue a separate final judgment.
SIGNED at Houston, Texas, this ____ day of October, 2016.
26th
NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE
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