Jackson v. Brennan

Filing 22

MEMORANDUM OPINION granting 19 MOTION for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDRA JACKSON,

§
§
§
§
§
§
§
§
§
§
§

Plaintiff,
v.
MEGAN J. BRENNAN, POSTMASTER
GENERAL, UNITED STATES
POSTAL SERVICE
Defendant.

November 13, 2019
David J. Bradley, Clerk

CIVIL ACTION NO. H-18-1281

MEMORANDUM OPINION
Pending before the court1 is Defendant’s Motion for Summary
Judgment (Doc. 19).

The court has considered the motion, the

response, all other relevant filings, and the applicable law.

For

the reasons set forth below, the court GRANTS Defendant’s motion.
I.
Plaintiff

filed

Case Background

this

lawsuit

alleging

violations

of

the

Americans with Disabilities Act (“ADA”),2 the Rehabilitation Act,3
the Age Discrimination in Employment Act (“ADEA”),4 Title VII of
the Civil Rights Act of 1964 (“Title VII”), and 42 U.S.C. § 1981
(“Section 1981").

1

The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 13, Ord. Dated
Sept. 7, 2018.
2

42 U.S.C. § 12101 et seq.

3

42 U.S.C. § 701 et seq.

4

29 U.S.C. §§ 621-634.

A.

Factual Background
Plaintiff

is

a

Hispanic

female

who

was

born

in

1960.5

Plaintiff began working for the United States Postal Service
(“USPS”) in 1985 as a City Carrier.6
1.

City Carrier Position

City Carriers are responsible for delivering and collecting
mail along prescribed routes.7

The delivery component of the City

Carrier position involves two essential functions - casing mail and
delivering mail.8

Casing mail is the process of manually sorting

various pieces of mail into a case in the order of delivery along
a prescribed route.9

Delivering mail involves removing the mail

from a case and preparing it for efficient delivery, then actually
delivering the mail along a prescribed route.10

Collecting mail

simply involves picking up mail along the prescribed route.11
A City Carrier can be assigned to a mounted or unmounted
route.12

5

A mounted route is where delivery is made via a postal

See Doc. 19-3, Ex. C to Def.’s Mot. for Summ. J., Pl.’s Dep. Tr. p.

16.
6

See Doc. 19-4, Ex. D to Def.’s Mot. for Summ. J., Aff. of Fern
McBride ¶ 14.
7

See id. ¶ 3.

8

See id. ¶ 4.

9

See id.

10

See id.

11

See id. ¶ 5.

12

See id. ¶ 6.

2

vehicle and an unmounted route is where delivery is made by foot.13
Regardless of which type of route is assigned, a City Carrier must
be able to: (1) lift up to thirty-five pounds, intermittently, for
up to eight hours per day; and (2) kneel, bend, twist, stoop, pull,
and grasp for up to eight hours per day.14

City Carriers assigned

to mounted routes must be capable of: (1) “driving a vehicle for
approximately six hours, more or less, per workday;” (2) “standing,
intermittently, for up to two hours per workday;” and (3) “walking,
intermittently, for up to two hours per workday.”15

City Carriers

assigned to unmounted routes must be capable of: (1) “standing,
intermittently,

for

up

to

eight

hours

per

workday;”

and

(2)

walking, intermittently, for up to eight hours per day.”16
2.

Limited Duty Assignments

The USPS provides limited duty assignments to employees who
are injured while on duty.17

Limited duty assignments “generally

consist of tasks that are not being performed by another employee,
but that, at the same time, are within the injured employee’s
medical restrictions.”18

The USPS’s duty to provide limited duty

13

See id.

14

See id. ¶ 7.

15

See id. ¶ 8.

16

See id. ¶ 9.

17

See Doc. 19-5, Ex. E to Def.’s Mot. for Summ. J., Aff. of Maranda

McCoy ¶ 8.
18

See id.

3

assignments arises from its Employee and Labor Relations Manual.19
3.

Plaintiff’s Employment

Upon beginning her employment for the USPS as a City Carrier,
Plaintiff drove a postal vehicle to her routes and then delivered
mail on foot.20 Plaintiff originally worked at the Harwin station.21
After two years, Plaintiff became a permanent employee, gained full
employment benefits, and started working at the Annison Jones
Station.22

Eventually, due to dogs on her route, Plaintiff moved

to the Astrodome Station, where she continued to work as a City
Carrier, and collected, cased, and delivered mail.23
4.

Plaintiff’s Injuries

In 1989, Plaintiff’s back “popped” while she was casing mail
at the Astrodome Station.24

As a result of her injury, Plaintiff

missed six months of work and was permanently prohibited from
carrying, collecting, or delivering mail, or driving a postal
vehicle.25

The USPS gave Plaintiff a limited duty assignment that

consisted of performing administrative and customer-service related

19

See id.

20

See Doc. 19-3, Ex. C to Def.’s Mot. for Summ. J., Pl.’s Dep. Tr. p.

21

See id. p. 20.

22

See id. pp. 27-31.

23

See id. pp. 32-35.

24

See id. pp. 65-71.

25

See id.

22.

4

tasks at the Astrodome Station.26
In 2014, Plaintiff slipped and fell on her hip while leaving
the Astrodome Station.27

As a result, Plaintiff was unable to do

repetitive work, drive a postal vehicle, or lift over ten pounds.28
The USPS provided Plaintiff a conforming limited duty assignment.29
5.

Conversation with McCoy

On March 28, 2017, Plaintiff was called into the office of Ms.
Maranda McCoy (“McCoy”), the acting manager at the time, for a
meeting.30
told

Plaintiff claims that during the conversation, McCoy

Plaintiff

that

she

was

tired

of

the

other

employees

complaining about Plaintiff’s limited capabilities.31 According to
Plaintiff, an employee named Gloria later admitted that she was the
person who complained and apologized to Plaintiff.32
6.

The Melcher Station

Subsequent to the March 28, 2017 meeting, Plaintiff was asked
to train a worker at the Melcher Station.33 However, when Plaintiff
arrived at the Melcher Station, she found that the station did not
26

See id.

27

See id. pp. 47-49.

28

See id. pp. 56-57.

29

See id.

30

See id. p. 82.

31

See id. p. 83.

32

See id. pp. 87-88.

33

See id. p. 105.

5

have the

machine

necessary

for

the

training,

and

the

worker

Plaintiff was supposed to train was not there.34 Plaintiff returned
to the Astrodome Station.35
Plaintiff was sent to the Melcher Station a second time to
train a worker, but, again, the trainee was not present.36

On this

second visit, Plaintiff was asked to help a customer at the “dutch
door,” but Plaintiff refused and stated that she was at the Melcher
Station to train someone, not for the “dutch door,” and that she
could answer the “dutch door” at the Astrodome Station.37

The area

manager, Ms. Courtney McKelvey (“McKelvey”), later asked Plaintiff
if there was a problem and told Plaintiff that she should be
thankful to have a job.38
7.

USPS Station Budgets

Nationally, the USPS is divided into management areas.39

“The

Southern Area of the [USPS] contains the State of Texas[,]” which
is divided up into multiple individual districts.40

One of these

districts is the Houston District, which contains the Astrodome

34

See id.

35

See id.

36

See id. pp. 105-106.

37

See id. p. 106.

38

See id. p. 107.

39

See Doc. 19-5, Ex. E to Def.’s Mot. for Summ. J., Aff. of McCoy ¶ 3.

40

Id.

6

Station.41 “The Finance Department of the Houston District provides
each reporting office with a weekly budget.”42 Within each station,
there are multiple functional components, which are each budgeted
a certain number of work hours per week.43

The City Delivery

function is one of these functional components.44
by

City

Carriers

counts

toward

the

City

Work performed

Delivery

function’s

budgeted hours.45
8.

Employee Transfers

In April 2017, there were two City Carriers working limited
duty assignments at the Astrodome Station, Plaintiff and Stacy
Carter (“Carter”).46

Although Plaintiff was unable to deliver mail

and Carter was limited in his ability to deliver mail, their hours
worked counted towards the City Delivery function’s budgeted hours
for the Astrodome Station.47 Other employees had to absorb the work
that Plaintiff and Carter were unable to complete.48

As a result,

the Astrodome Station exceeded its number of budgeted hours for the

41

Id.

42

Id. ¶ 4.

43

Id. ¶¶ 5-6.

44

Id. ¶ 6.

45

Id.

46

Id. ¶ 7.

47

Id. ¶ 9.

48

Id.

7

City Delivery function in April 2017.49
Also in April 2017, the Melcher Station needed an employee for
administrative

tasks

administrative tasks.

and

was

below

its

budgeted

hours

for

Accordingly, Plaintiff was given a limited

duty assignment at the Melcher Station to perform administrative
duties.50

At the same time, the Houston District Safety Department

needed an employee to fill a Driving Instructor position and was
under its budgeted hours for that functional component.51

Carter’s

medical restrictions did not prevent him from working as a Driving
Instructor.52

Accordingly,

Carter

was

given

a

limited

duty

assignment as a Driving Instructor at the Houston District Safety
Department.53

These assignments allowed all three offices to

complete necessary tasks while remaining within their budgeted
hours.54
On April 22, 2017, Plaintiff began working her limited duty
assignment at the Melcher Station.55
station

Plaintiff’s official duty

remained at the Astrodome Station while she temporarily

49

Id. ¶ 10.

50

Id. ¶ 11.

51

Id. ¶ 12.

52

Id.

53

Id.

54

Id.

55

See Doc. 19-4, Ex. D to Def.’s Mot. for Summ. J., Aff. of Fern
McBride ¶ 14.

8

worked at the Melcher Station.56

Plaintiff did not lose her

seniority when she worked at the Melcher Station.57

On October 25,

2017, Plaintiff was transferred back to her previous limited duty
assignment at the Astrodome Station.58
B.

Procedural Background
Plaintiff filed a formal equal employment opportunity (“EEO”)

complaint on July 12, 2017.59
Equal Employment

Opportunity

On January 25, 2018, pursuant to
Commission

regulations,

the

USPS

issued a final agency decision finding that Plaintiff was not
discriminated against.60
April 24, 2018.61

Plaintiff filed her original complaint on

On May 30, 2019, Defendant filed its pending

motion for summary judgment.62

On June 20, 2019, Plaintiff filed

a response to Defendant’s motion for summary judgment.63

On June

27, 2019, Defendant filed a reply in support of its motion for
summary judgment.64

56

Id. ¶ 15.

57

Id.

58

Id. ¶ 14.

59
See Doc. 19-2, Ex. B to Def.’s Mot. for Summ. J., Final Agency
Decision p. 1.
60

See id. p. 19.

61

See Doc. 1, Pl.’s Orig. Compl.

62

See Doc. 19, Def.’s Mot. for Summ. J.

63

See Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J.

64

See Doc. 21, Def.’s Reply in Support of Mot. for Summ. J.

9

II.

Summary Judgment Standard

Summary judgment is warranted when the evidence reveals that
no genuine dispute exists regarding any material fact and the
moving party is entitled to judgment as a matter of law.

Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d
498, 504 (5th Cir. 2014).

A material fact is a fact that is

identified by applicable substantive law as critical to the outcome
of the suit.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271
F.3d 624, 626 (5th Cir. 2001).

“Where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial.”

Coastal Agricultural

Supply, Inc., 759 F.3d at 504 (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant must inform the court of the basis for the summary
judgment motion and must point to relevant excerpts from pleadings,
depositions, answers to interrogatories, admissions, or affidavits
that demonstrate the absence of genuine factual issues. See id. at
505 (quoting Celotex Corp., 477 U.S. at 323).

If the movant

carries its burden, the nonmovant may not rest on the allegations
or denials in the pleading but must respond with evidence showing
a genuine factual dispute.

See id.

the

as

nonmovant’s

evidence

true

10

The court must accept all of
and

draw

all

justifiable

inferences in her favor.
Chase

Bank,

N.A.,

759

Coastal Agric. Supply, Inc. v. JP Morgan
F.3d

498,

505

(5th

Cir.

2014)(quoting

Anderson, 477 U.S. at 255).
III. Analysis
Plaintiff

pled

the

following

causes

of

action

against

Defendant: (1) disability discrimination in violation of the ADA
and Rehabilitation Act; (2) failure to accommodate in violation of
the ADA and Rehabilitation Act; (3) retaliation in violation of the
Rehabilitation Act and the ADA; (4) age discrimination in violation
of the ADEA; (5) retaliation in violation of the ADEA; (6) Title
VII race discrimination; (7) Title VII retaliation; (8) Section
1981

race

discrimination;

and

(9)

Section

1981

retaliation.

Defendant argues that summary judgment is appropriate as to all of
Plaintiff’s claims.
A.

Preliminary Issues
The

incomplete

lackluster
arguments

briefing

of

necessitates

Plaintiff

and

consideration

Defendant’s
of

multiple

preliminary issues before delving into the parties’ briefing.
1.

Exclusive Remedies

Plaintiff brought multiple claims that are not available to
her.

Firstly, “Title VII is the exclusive judicial remedy for

claims of [racial] discrimination in federal employment.”

Rowe v.

Sullivan, 967 F.2d 186, 189 (5th Cir. 1992)(internal quotation marks
omitted)(citing Watkins v. Lujan, 922 F.2d 261, 263 (5th Cir.
11

1991)).

Secondly, the Rehabilitation Act is the exclusive remedy

for federal employees claiming disability discrimination.

See

Flynn v. Distinctive Home Care, Inc., 812 F.3d 422, 425–26 (5th Cir.
2016); Pinkerton v. Spellings, 529 F.3d 513, 515 (5th Cir. 2008).65
Accordingly, Plaintiff’s Section 1981 and ADA claims are improper.
2.

Adverse Employment Action

The court doubts Plaintiff’s ability to show that she suffered
an adverse employment action as required by her race and age
discrimination

claims.66

In

the

Fifth

Circuit,

“[a]dverse

employment actions include only ultimate employment decisions such
as

hiring,

compensating.”

granting

leave,

discharging,

promoting,

or

McCoy v. City of Shreveport, 492 F.3d 551, 559 (5th

Cir. 2007).
In her pleadings, Plaintiff does not specifically state what
she believes constituted an adverse employment action.

From

Plaintiff’s pleadings the court gleans that Plaintiff believes her
transfer to the Melcher Station and the statements made by McCoy
and McKelvey were adverse employment actions.
Criticism,

oral

threats,

abusive

remarks,

and

accusations do not constitute adverse employment actions.

false
See

65
Although the Rehabilitation Act is Plaintiff’s exclusive remedy for
her allegations of disability discrimination, the Rehabilitation Act incorporates
the substantive provisions of the ADA. See 29 U.S.C. § 794(d).
66

Plaintiff’s retaliation claims also require her to show that she
suffered an adverse employment action. However, the standard is different than
the one articulated here. See, infra, p. 23.

12

Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000).

McCoy

expressed frustration over fielding complaints about Plaintiff’s
limited capabilities and McKelvey told Plaintiff she was lucky to
have a job.

At worst, these statements could be characterized as

oral threats or abusive remarks.

Accordingly, the statements made

by McCoy and McKelvey are not adverse employment actions.
Regarding Plaintiff’s transfer, “an employment transfer may
qualify as an adverse employment action if the change makes the job
objectively worse.”

Pegram v. Honeywell, Inc., 361 F.3d 272, 283

(5th Cir. 2004)(internal quotation marks omitted)(quoting Hunt v.
Rapides Healthcare Sys. LLC, 277 F.3d 757, 770 (5th Cir. 2001)). A
plaintiff’s subjective preference alone is insufficient to show an
adverse employment action.

See id.

Plaintiff claims that her

transfer to the Melcher Station required her to perform work that
was prohibited by her medical restrictions.67

Plaintiff does not

support this allegation with citation to any evidence.68

Further,

Plaintiff was transferred back to her subjectively preferable
location approximately six months after her transfer to the Melcher
Station.
The court questions whether Plaintiff suffered an adverse
employment action.

Nonetheless, as Defendant failed to make this

argument and Plaintiff has not briefed the issue, the court will

67

See Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J. pp. 7-8.

68

See id.

13

proceed to the issues actually addressed by the parties. The court
will focus its analysis on Plaintiff’s transfer because that is the
only employment action that could possibly constitute an adverse
employment action.
3.

Federal Rule of Civil Procedure (“Rule”) 56

“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular
parts of materials in the record . . . .”
56(c)(1).

Fed. R. Civ. P.

“The court need consider only the cited materials, but

it may consider other materials in the record.”
56(c)(3).

Fed. R. Civ. P.

“The court has no duty to search the record for material

fact issues.
required to

Rather, the party opposing the summary judgment is
identify

specific

evidence

in

the

record

and

articulate precisely how this evidence supports his claim.”

to
RSR

Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(internal
citations omitted) (citing Ragas v. Tenn. Gas Pipeline Co., 136
F.3d 455, 458 (5th Cir. 1998)).

Under Rule 56(e):

If a party fails to properly support an assertion of fact
or fails to properly address another party’s assertion of
fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or
address the fact;
(2) consider the fact undisputed for purposes of the
motion;
(3) grant summary judgment if the motion
supporting materials — including the facts
considered undisputed — show that the movant is
entitled to it; or
14

and

(4) issue any other appropriate order.
In her response to Defendant’s motion for summary judgment
Plaintiff has hardly attempted to comply with Rule 56.

A glaring

issue is Plaintiff’s “Facts” section, which spans five pages and
includes only one citation to evidence.69
dismiss.

This is not a motion to

When faced with a motion for summary judgment, Plaintiff

must support her allegations with evidence.

The court will not

consider the unsupported allegations found in Plaintiff’s brief.
Additionally, throughout her response, Plaintiff has attempted
to rebut many of Defendant’s factual assertions without citation to
evidence.

For

example,

to

rebut

Defendant’s

articulated

legitimate, nondiscriminatory reason for Plaintiff’s transfer,
Plaintiff merely recites two pages of legal standards and then
states that “[a] wealth of circumstantial evidence exists that
Plaintiff’s transfer was motivated by Plaintiff’s disability and
race and the result of a discriminatory overall scheme.”70

This is

insufficient under Rule 56, and, as discussed more throughly below,
is fatal to Plaintiff’s claims.
Plaintiff’s

briefing

is

so

insufficient

that

the

court

believes it would be futile to give Plaintiff another opportunity
to support her allegations.

Accordingly, where Plaintiff has

failed to properly address Defendant’s assertions of fact, the

69

See Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J. pp. 5-9.

70

Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J. p. 17.

15

court will consider the fact undisputed, and, if appropriate, grant
summary judgment. See Fed. R. Civ. P. 56(c)(2)-(3).
4.

“Ebone’s” Letter

Finally, Plaintiff attached only two pieces of evidence to her
response to Defendant’s motion for Summary Judgment.
pieces

of

evidence

Plaintiff’s

is

coworker,

purportedly
“Ebone.”71

One of those

the

handwritten

The

letter

has

letter
not

of

been

authenticated and it is not even clear who wrote it because the
court assumes “Ebone” is a nickname.
and

Plaintiff

exception.

had

not

demonstrated

The letter is also hearsay
how

it

falls

within

an

Unsworn documents and inadmissible hearsay are not

appropriate for the court’s consideration on summary judgment.
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th
Cir. 1987); Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997).
Even if the court accepted the letter as competent evidence,
the only contents that would be admissible at trial are “Ebone’s”
personal observations. The only personal observations contained in
the letter are that: (1) Plaintiff was good at her job; (2) an
unnamed employee who had remained at the Astrodome Station after
Plaintiff’s transfer was doing poorly at her job; and (3) “Ebone”
missed Plaintiff and wished she had not been transferred.72
observations do not pertain to a relevant issue.
71

These

For these

See Doc. 20-1, Ex. 1 to Pl.’s Resp. to Def.’s Mot. for Summ. J.,
Coworker Letter.
72

See id.

16

reasons, the court will not consider “Ebone’s” letter.
B.

Plaintiff’s Claims
Having discussed the preliminary issues, the court will now

turn to Plaintiff’s claims.
In the absence of direct evidence, as is the case here, courts
analyze discrimination and retaliation claims under the burdenshifting approach first articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) [hereinafter McDonnell Douglas], and
modified in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), and
Rachid v. Jack In The Box, Inc., 376 F.3d 305 (5th Cir. 2004). Under
this “modified McDonnell Douglas approach,” a plaintiff may trigger
a presumption of discrimination by establishing a prima facie case.
Rachid, 376 F.3d at 312.
After a plaintiff has established a prima-facie case, the
burden

shifts

to

the

defendant

to

proffer

nondiscriminatory reasons for its actions.

legitimate,

Alkhawaldeh v. Dow

Chem. Co., 851 F.3d 422, 426 (5th Cir. 2017).

If the defendant

satisfies this burden, “the burden shifts back to the employee to
demonstrate that the employer’s proffered reason is a pretext for
discrimination.” Id. At the summary judgment stage, the plaintiff
must produce some evidence “demonstrating that discrimination lay
at the heart of the employer’s decision.”

Price v. Fed. Express

Corp., 283 F.3d 715, 720 (5th Cir. 2002). In certain circumstances,
evidence that an employer’s proffered reason is false may be enough

17

to raise a fact issue on pretext if the jury could infer from the
falsity of the explanation that discrimination was the real reason.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48
(2000); Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740
(Tex. 2003)(stating that, even if the proffered reason is false,
the plaintiff’s evidence must indicate that discrimination was the
real reason).
1.
A

Title VII Racial Discrimination
prima

facie

case

of

race

discrimination

requires

the

plaintiff to show that she: (1) is a member of a protected class;
(2) was

qualified

for

her

position;

(3)

suffered

an

adverse

employment action; and (4) was replaced by someone who is not a
member of the protected classes to which the plaintiff belongs or
was treated less favorably than similarly situated employees of a
different race.

See Okoye v. Univ. of Tex. Houston Health Sci.

Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).

In the Fifth Circuit,

“[a]dverse employment actions include only ultimate employment
decisions such as hiring, granting leave, discharging, promoting,
or compensating.”

McCoy, 492 F.3d at 559.

The court also notes

that proof of disparate treatment can establish the fourth element
of a plaintiff’s prima facie case.

See Bryant v. Compass Group USA

Inc., 413 F.3d 471, 478 (5th Cir. 2005); Okoye, 245 F.3d at 513. “To
raise an inference of discrimination, the plaintiff may compare
h[er] treatment to that of nearly identical, similarly situated

18

individuals.”

Bryant, 413 F.3d at 478.

Although the court questions Plaintiff’s ability to show the
third

element

of

her

prima

facie

case,

Defendant

has

only

challenged the fourth element, that she was replaced by a person
who was not a member of a protected class or was treated less
favorably than a similarly situated person.

Plaintiff offers

Amanda Long (“Long”) as a similarly situated employee who was
treated more favorably than Plaintiff due to their different
races.73

Long is an African-American female who began working for

the USPS on February 15, 2016.74

Long injured her back after

fainting while working for the USPS.75

As a result of the injury,

Long began a limited duty assignment as a modified City Carrier
that fell within her medical restrictions.76 In January 2017, while
Long

was

assigned

to

the

Astrodome

Station,

“parcels

were

discovered in her vehicle after her workday was completed, and she
was thereafter placed in a non-duty, non-pay status until June
2017.”77

Long was eventually transferred to the Jensen Drive

Station because she was causing the Astrodome Station to exceed its
budgeted hours and the Jensen Drive station had a need for help

73

See Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J. pp. 10-12.

74

See Doc. 19-4, Ex. D to Def.’s Mot. for Summ. J., Aff. of Fern
McBride ¶ 12.
75

Id.

76

Id.

77

Id.

19

with

window

services,

which

was

work

within

Long’s

medical

restrictions.78
Plaintiff argues that the USPS’s treatment of Long establishes
her prima facie case because Long was a different race from
Plaintiff

and

was

Plaintiff was.

not

transferred

to

the

Melcher

Station

as

However, Long was transferred to the Jensen Drive

Station for the same reasons that Plaintiff was transferred to the
Melcher Station.

Additionally, Long was suspended without pay for

approximately six months.

If anything, Long was treated less

favorably than Plaintiff. The court find that Plaintiff has failed
to provide evidence of a more favorably treated employee who was
similarly situated and of a different race.
Additionally, even if Plaintiff had shown a prima facie case,
Defendant has provided a legitimate, nondiscriminatory staffing and
budgetary reason for Plaintiff’s transfer.

See, e.g., Johnson v.

Brennan, CV 4:16-02612, 2017 WL 5672692, at *5 (S.D. Tex. Nov. 27,
2017)(holding that the USPS’s staffing needs was a legitimate,
nondiscriminatory reason for its employment actions). As discussed
above, Plaintiff merely summarily posits that the evidence in the
record shows that Defendant’s proffered reason is pretext for
discrimination without citation to any record evidence.79 The court
finds that

Plaintiff

has

not

raised

a

fact

issue

concerning

78

Id.

79

Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J. p. 17.

20

Defendant’s legitimate, nondiscriminatory reason for Plaintiff’s
transfer.
2.

ADEA Age Discrimination

The first three elements of a prima facie case for age
discrimination under the ADEA are identical to the first three
elements for a race discrimination claim.

See Leal v. McHugh, 731

F.3d 405, 410 (5th Cir. 2013)(quoting Smith v. City of Jackson,
Miss., 351 F.3d 183, 196 (5th Cir. 2003)).

For the fourth element,

the plaintiff must show that she was replaced by someone younger or
treated less favorably than similarly situated employees.

See id.

Again, Defendant only challenges Plaintiff’s ability to show
that she was treated less favorably than a similarly situated
employee who was younger than her.
case,

Plaintiff

proffers

the

To establish her prima facie

following

testimony

from

deposition: “We just had a – young lady lose her son . . .

her

[w]hen

she came back, everybody was happy to see her in management.

When

I lost my mother and I lost my brother two months later, I came
back to work, I didn’t get that.

I didn’t get that at all.”80

Plaintiff argues that this testimony establishes that Defendant had
a clear preference for younger employees.
Plaintiff’s testimony does not establish that the referenced
employee was similarly situated to Plaintiff, and, regardless,
management’s perceived “happy” reception of a younger employee

80

See Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J. p. 13.

21

returning after the death of her son does not rise to the level of
age discrimination.

Accordingly, Plaintiff has failed to show a

prima facie case of age discrimination.

Even if the court were to

assume that Plaintiff could show a prima facie case, as discussed
above, she has wholly failed to rebut Defendant’s legitimate,
nondiscriminatory reason for Plaintiff’s transfer.
3.

Rehabilitation Act Disability Discrimination

Under the Rehabilitation Act, to establish a prima facie case
of disability discrimination, “a plaintiff must prove (1) [s]he is
an

individual with a disability; (2) who is otherwise qualified

for the position sought; (3) who worked for a program or activity
receiving Federal financial assistance; and (4) that [s]he was
discriminated against solely by reason of her or his disability.”
Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007)(internal
quotation marks and alterations omitted)(quoting Hileman v. City of
Dallas,

Tex.,

115

discrimination

on

F.3d
the

352,

352

(5th

basis

of

a

Cir.

1997)).

To

show

failure-to-accommodate,

a

plaintiff must show that: “(1) the plaintiff is a ‘qualified
individual

with

a

disability;’

(2)

the

disability

and

its

consequential limitations were ‘known’ by the covered employer; and
(3) the employer failed to make ‘reasonable accommodations’ for
such known limitations.”

Feist v. Louisiana, Dept. of Justice,

Office of the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)(citing
Griffin v. UPS, 661 F.3d 216, 222 (5th Cir. 2011)).

22

Plaintiff has provided no evidence that she was transferred
solely because of her disability. Plaintiff cites to her testimony
that other limited duty employees at the Astrodome Station were not
transferred to the Melcher Station.

However, this testimony

actually supports Defendant’s proffered reason for the transfer
because it shows that Defendant did not transfer all individuals
with disabilities.
Regarding her failure-to-accommodate claim, Plaintiff actually
admits in her briefing that her modified carrier position is a
reasonable accommodation for her injuries.81

Regardless, Defendant

has provided unrebutted evidence that Plaintiff’s limited duty
assignments allowed her to continue working while complying with
her medical restrictions.82

The court finds that Plaintiff’s

limited duty assignments were reasonable accommodations for her
limited capabilities.
Finally,
Plaintiff

her

as

discussed

prima

facie

above,
case,

even

if

Plaintiff

the
has

court
not

spotted
rebutted

Defendant’s proffered legitimate, nondiscriminatory reason for her
transfer.

4.

Retaliation

“To establish a prima facie retaliation case [under the ADEA,
81

See Doc. 20, Pl.’s Resp. to Def.’s Mot. for Summ. J. p. 15.

82

See Doc. 19-3, Ex. C to Def.’s Mot. for Summ. J., Pl.’s Dep. Tr. p.
56-57, 65-71; Doc. 19-5, Ex. E to Def.’s Mot. for Summ. J., Aff. of McCoy ¶ 11.

23

the Rehabilitation Act, or Title VII,] a plaintiff must show that
‘1) [s]he engaged in protected activity; (2) [s]he suffered an
adverse employment decision; and (3) a causal link exists between
the protected activity and the adverse employment decision.’”
Goudeau v. Nat'l Oilwell Varco, L.P., 793 F.3d 470, 478 (5th Cir.
2015)(quoting Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th
Cir.2001)); Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 484
(5th Cir. 2008); Shannon v. Henderson, 275 F.3d 42 (5th Cir. 2001).
As discussed above, the court questions whether Plaintiff suffered
an adverse employment decision. Regardless, Defendant did not make
that argument so the court will address the issues actually raised.
Defendant

argues

that

Plaintiff

did

not

engage

in

any

protected activity prior to her alleged adverse employment action.
Thus, she has failed to make a prima facie case of retaliation.
“Protected activities consist of (1) opposing a discriminatory
practice; (2) making or filing a charge; (3) filing a complaint; or
(4) testifying, assisting, or participating in any manner in an
investigation, proceeding, or hearing.”
Stores,

Inc.,

540

F.

App’x

Rodriquez v. Wal-Mart

322,

328

(5th

Cir.

2013)(unpublished)(internal quotation marks omitted)(citing Dias v.
Goodman Mfg. Co., 214 S.W.3d 672, 676 (Tex. App.—Houston [14th
dist.] 2007, pet. denied)).

“Complaining about unfair treatment

without specifying why the treatment is unfair, however, is not a
protected activity.”

Tratree v. BP N. Am. Pipelines, Inc., 277 F.

24

App’x 390, 395 (5th Cir. 2008)(unpublished)(citing Harris–Childs v.
Medco Health Solutions, 169 F. App’x 913 (5th Cir. 2006)).
Plaintiff did not respond to Defendant’s argument and has not
identified any evidence showing that she engaged in a protected
activity prior to this lawsuit.

The court has similarly been

unable to

that

identify

any

protected activity.

evidence

Plaintiff

engaged

in a

In fact, Plaintiff testified that she never

complained about discrimination prior to this lawsuit and had never
previously filed an EEO complaint.83
Finally, even if the court assumed Plaintiff could make a
prima

facie

case

of

retaliation,

Plaintiff

has

not

rebutted

Defendant’s legitimate, nondiscriminatory reason for Plaintiff’s
transfer.
For

these

reasons,

summary

judgment

is

appropriate

on

Plaintiff’s retaliation claims.
IV.

Conclusion

Based on the foregoing, the court GRANTS Defendant’s motion
for Summary Judgment as to all of Plaintiff’s claims.
SIGNED in Houston, Texas, this 13th day of November, 2019.

83

See Doc. 19-3, Ex. C to Def.’s Mot. for Summ. J., Pl.’s Dep. Tr. pp.

37, 45-46.

25