Tedford v. Potter

Filing 25

REPORT AND RECOMMENDATIONS - GRANTING re 15 Motion to Dismiss filed by John E. Potter. Signed by Judge Nancy Stein Nowak. (mailed on 1/07/2010 by certified mail, or sent via electronic transmittal)(rg)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS S A N ANTONIO DIVISION

D O M I N G A TEDFORD, P la in tif f , v. J O H N E. POTTER, P o s tm a s te r General, D efe n d a n t.

§ § § § § § § § §

C I V I L ACTION NO. S A -0 9 -C V -0 5 6 3 XR

R E P O R T AND RECOMMENDATION TO: H o n o r a b le Xavier Rodriguez U n ite d States District Judge

T h is report and recommendation addresses defendant Postmaster General John E. Potter's m o tio n to dismiss and/or motion for summary judgment.1 In the motion, Potter asked the district c o u rt to dismiss plaintiff Dominga Tedford's gender discrimination and retaliation claims. Potter a ls o asked for summary judgment on Tedford's age discrimination and disability discrimination c la im s . I have authority to enter this report and recommendation under 28 U.S.C. § 636(b) and th e district court's order referring all pretrial matters to me for disposition by order or to aid the d is tric t court by recommendation where my authority as a magistrate judge is statutorily c o n s tra in e d .2 After reviewing the parties' submissions3 and the applicable law, I recommend gra n tin g the motion.

1

Docket entry # 15. Docket entry # 8. Docket entry #s 15, 21, 22, 23 & 24.

2

3

Tedford's gender discrimination and retaliation claims. Tedford is an employee of the U .S . Postal Service; she works as a custodian. Tedford alleges that she was not hired as a parttim e Flexible City Carrier ( a letter carrier) because of her gender and because she filed a prior c h a rge of discrimination. Potter maintains these claims should be dismissed because Tedford fa ile d to exhaust her administrative remedies.4 B e c a u s e I relied on documentary evidence in considering Potter's argument, I conducted m y analysis under Rule 56 of the Federal Rules of Civil Procedure.5 Under Rule 56, summary ju d gm e n t is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions o n file, together with the affidavits, if any, show that there is no genuine issue as to any material fa c t and that the moving party is entitled to a judgment as a matter of law."6 "A party seeking s u m m a ry judgment bears the initial burden of identifying those portions of the pleadings and d is c o v e ry on file, together with any affidavits, which it believes demonstrates the absence of a ge n u in e issue of material fact."7 If the movant meets this burden, the burden shifts to the n o n -m o v a n t to show that a fact question exists that precludes summary judgment.8 B e fo re filing a Title VII action in federal court, a government employee must exhaust her a d m in is tra tiv e remedies by filing a complaint of discrimination.9 If a government employee fails
4

Docket entry # 15, pp. 2-3.

See Fed. R. Civ. P. 12(d) ("If, on a motion under Rule 12(b)(6) or 12(c), matters outside the p le a d in gs are presented to and not excluded by the court, the motion must be treated as one for s u m m a ry judgment under Rule 56.").
6

5

Fed. R. Civ. P. 56. FDIC v. McCrary, 977 F.2d 192, 194 (5th Cir. 1992). See McCrary, 977 F.2d at 194. See 42 U.S.C. 2000e-16(c); Tolbert v. United States, 916 F.2d 245, 247-8 (5th Cir. 1990).

7

8

9

2

to exhaust her administrative remedies, the district court lacks jurisdiction over the employee's c la im s .10 No question exists that Tedford failed to exhaust her administrative remedies as to her ge n d e r discrimination and retaliation claims. Previously, I directed Tedford to submit a copy of h e r complaint of discrimination.11 Tedford responded and submitted a copy of her complaint.12 T e d fo rd 's complaint alleged discrimination based on age and disability, but not discrimination b a s e d on gender or retaliation. By failing to include gender discrimination and retaliation in her c o m p la in t, Tedford failed to exhaust her administrative remedies as to those claims. Tedford p re s e n te d a vague argument about why these claims should not be dismissed,13 but Tedford did n o t raise a fact question about whether she included gender discrimination or retaliation in her c h a rge . Potter is entitled to dismissal of Tedford's gender discrimination and retaliation claims b a s e d on the failure to exhaust administrative remedies. T e d f o r d 's age discrimination claim. Tedford also alleged that she was not hired as a le tte r carrier because of her age in violation of the Age Discrimination in Employment Act (A D E A ).14 Potter asked for summary judgment on this claim, in part, on grounds Tedford cannot p ro v e pretext.15 T o prove an ADEA claim, "[a] plaintiff must prove by a preponderance of the evidence

10

See Tolbert, 916 F.2d at 247-8. Docket entry # 3 (directing Tedford to file a copy of her charge of discrimination). Docket entry # 4, exh. 1, p. 1 (charging discrimination on the basis of age and disability). See docket entry # 21, p. 1 & # 24, pp. 1-2. See docket entry # 10.

11

12

13

14

See docket entry # 15, pp. 3-4 (asking for summary judgment because Tedford cannot make out a prima facie claim for age discrimination and because she cannot prove pretext).

15

3

(which may be direct or circumstantial), that age was the `but-for' cause of the challenged e m p lo ye r decision."16 When the plaintiff relies on circumstantial evidence, the burden-shifting fra m e w o rk of McDonnell Douglas Corp. v. Green applies.17 [U n d e r that framework,] [f]irst, the employee must raise a genuine issue of m a te ria l fact as to each element of his prima facie case. Then, the employer must a rtic u la te a legitimate, nondiscriminatory reason for its employment decision. Finally, the employee must raise a genuine issue of material fact as to whether the e m p lo ye r's proffered reason was merely a pretext for age discrimination.18 P o tte r maintains that Tedford was not hired as a letter carrier because of a poor recommendation fro m Alfred Bonenberger.19 Bonenberger was the station manager of the Arsenal Station when T e d fo rd worked there as a custodian.20 A poor recommendation from a station manager where T e d fo rd once worked is a legitimate, nondiscriminatory reason for not hiring Tedford as a letter c a rrie r. To support this reason for why Tedford was not hired as a letter carrier, Potter presented B o n e n b e rge r's evaluation form. On the form, Bonenberger indicated that he would rehire T e d fo rd as a custodian, but he "would not hire her as a carrier because in [his] view she does not h a v e the ability to perform as a carrier."21 This evidence satisfied Potter's burden to articulate a le gitim a te , nondiscriminatory reason for not hiring Tedford as a letter carrier. Because Potter a rtic u la te d a legitimate, nondiscriminatory reason, the burden shifted to Tedford to raise a fact

16

Gross v. FBL Fin. Servs., 129 S. Ct. 2343, 2351 (2009). Sandstad v. CB Richard Ellis, 309 F.3d 893, 896 (5th Cir. 2002). Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). Docket entry # 15, p. 6.

17

18

19

See docket entry # 19, exh. 3, p. 6, ¶ 2 (responding that he was station manager at a time Tedford w o rk e d at the station as a custodian).
21

20

Docket entry # 19, exh. 14, p. 1.

4

question about whether Potter's proffered reason is merely a pretext for age discrimination. T e d fo rd did not raise a fact question. Instead, Tedford stated that she appeared to be the o ld e s t person in the room of interviewees22 and suggested that her "age could have played a part in why [she] was denied the job."23 She presented no other evidence. Tedford's observation and s u gge s tio n are insufficient to raise a fact question to preclude summary judgment because they p ro v id e no basis for a rational jury to find that Tedford's age was why she was not hired as a le tte r carrier.24 Potter is entitled to summary judgment on Tedford's age discrimination claim. T e d f o r d 's disability discrimination case. In addition to alleging gender discrimination, a ge discrimination and retaliation, Tedford also alleged that she was not hired as a letter carrier b e c a u s e of obesity in violation of the Americans with Disabilities Act (ADA).25 Although T e d fo rd sued under the ADA, the Rehabilitation Act of 1973 is the statute protecting federal e m p lo ye e s from employment discrimination based on disability.26 Potter asked for summary ju d gm e n t on Tedford's disability discrimiation claim on grounds that no evidence exists that

Docket entry # 21, p. 3 & # 24, p. 2. See also docket entry # 22, Pl.'s exh. 1, p. 1 (stating on p re -c o m p la in t counseling form that she was the oldest casual employee at the testing site). This d o c k e t entry is titled as "defendant's motion to file under seal," but it best construed as "plaintiff's e x h ib its supporting response to defendant's motion for summary judgment."
23

22

Docket entry # 21, p.5.

James by James v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) ("The standard of review is not m e re ly whether there is a sufficient factual dispute to permit the case to go forward, but whether a ra tio n a l trier of fact could find for the non-moving party based upon the record evidence before the c o u rt." ).
25

24

See docket entry # 10.

See Pinkerton v. Spellings, 529 F.3d 513, 515 (5th Cir. 2008) ("[F]ederal employees may bring d is a b ility discrimination claims against the Government under either § 501 or § 504 of the R e h a b ilita tio n Act.").

26

5

Tedford is disabled.27 A plaintiff alleging disability discrimination must first show that (a) she has a disability; (b ) she is qualified for the job; and (c) an adverse employment decision was made because of her d is a b ility.28 Showing that she suffers from a disability is a threshold issue.29 Unlike the ADA, th e Rehabilitation Act uses the term handicapped," but that term mirrors the ADA's use of the te rm "disabled."30 The ADA defines disability as "a physical or mental impairment that s u b s ta n tia lly limits one or more of the major life activities of such individual." 31 The regulations in te rp re tin g this definition provide that "substantially limits" means the following: (I) Unable to perform a major life activity that the average person in the general p o p u la tio n can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an in d iv id u a l can perform a particular major life activity as compared to the c o n d itio n , manner, or duration under which the average person in the general p o p u la tio n can perform that same major life activity.32

" M a jo r Life Activities means functions such as caring for oneself, performing manual tasks,

See docket entry # 15, pp. 3-4 (asking for summary judgment because Tedford cannot make out a prima facie claim for age discrimination and because she cannot prove pretext).
28

27

See Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998). Id.

29

Toyota Motor Mfg., Ky, v. Williams, 534 U.S. 184, 193-94 (2002) ("Congress drew the ADA's d e fin itio n of disability almost verbatim from the definition of `handicapped individual' in the R eh ab ilitatio n Act, § 706(8)(B), and Congress' repetition of a well-established term generally implies th a t Congress intended the term to be construed in accordance with pre-existing regulatory i n t e r p r e t a t i o n s ." ) .
31

30

42 U.S.C. § 12102(2)(A). 29 C.F.R. § 1630.2(j)(1).

32

6

walking, seeing, hearing, speaking, breathing, learning, and working." 33 P o tte r supported his contention with Tedford's response to the EEOC's affidavit q u e s tio n s .34 When asked to provide a detailed description of the medical condition on which she b a s e d her discrimination claim,35 Tedford responded, "I weigh 215 pounds." 36 Tedford provided th e following response when asked to describe in detail any work or personal activities that are a ffe c te d by her medical condition and to what degree:37 I am a bit slower at things tha[n] I used to be able to do with no problem. Caring fo r myself is an effort. Bending over and reaching around is difficult. Getting out o f bed is a problem. I do not sit comfortably in booths because I barely fit. I have to be careful with what I order because I have trouble bending over my plate. I d re a d when I drop something on the floor because it's quite an effort to pick it up. I think my health would improve by being a carrier because of all the walking e n ta ile d . The walking 7 to 10 miles a day would help me lose weight and improve m y life at home and at work.38 T h is evidence satisfies Potter's summary-judgment burden to identify the portion of Tedford's c la im lacking a genuine issue of material fact because it does not reflect an inability to perform a m a jo r life activity or a significant restriction in performing a particular major life activity. At m o s t, Tedford's responses to the affidavit questions show that Tedford's weight limits her b e n d in g and reaching movement--a limitation at odds with Tedford's claim that she can perform

33

29 C.F.R. § 1630.2(I). Docket entry # 19, exh. 1. Id. at p. 2, ques. 9. Id. at p. 6, item 9. Id. at p. 2, ques. 11.

34

35

36

37

Id. at p. 6, item 11. See also docket entry # 24, p. 2 (stating that bending over is a chore and s u gge s tin g that getting a good night`s sleep and tying her shoes is difficult).

38

7

the physical demands of a letter carrier.39 Because Potter met the movant's summary-judgment b u rd e n , the burden shifted to Tedford to raise a fact question precluding summary judgment. T e d fo rd did not raise a fact question. Instead, Tedford explained that it was not her c h o ic e to be obese,40 stated that no medical reason had been found to explain why she is obese,41 a n d discussed surgical options for removing excess skin and fat.42 Tedford also complained that C yn th ia Betancourt was interviewed for the letter carrier job even though Betancourt had a poor p e rfo rm a n c e record.43 Tedford's explanations do not raise a fact question about whether she is d is a b le d because her explanations do not address an inability to perform a major life activity or a s ign ific a n t restriction in performing a particular major life activity. Potter is entitled to summary ju d gm e n t on this claim. R e c o m m e n d a tio n . For the reasons discussed above, I recommend: (1) granting Potter's m o tio n (docket entry # 15), (2) dismissing Tedford's gender discrimination and retaliation claims fo r failure to exhaust administrative remedies, and (3) entering summary judgment on Tedford's a ge discrimination and disability discrimination claims. I n s tr u c tio n s for Service and Notice of Right to Object/Appeal. The United States D is tric t Clerk shall serve a copy of this report and recommendation on all parties by either (1) e le c tro n ic transmittal to all parties represented by attorneys registered as a "filing user" with the

Docket entry # 22, Pl.'s exh. 14, p. 1 (indicating that a letter carrier must be able to bend/stoop a n d reach above the shoulder for 2 or more hours per day)
40

39

Docket entry # 24, p. 2. Docket entry # 21, p.2. Docket entry # 24, p. 2-3. Docket entry # 21, p. 3 & # 24, p. 2.

41

42

43

8

clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt re q u e s te d . Written objections to this report and recommendation must be filed within 14 days a fte r being served with a copy of same, unless this time period is modified by the district court.44 S u c h party shall file the objections with the clerk of the court, and serve the objections on all o th e r parties and the magistrate judge. A party filing objections must specifically identify those fin d in gs , conclusions or recommendations to which objections are being made and the basis for s u c h objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and re c o m m e n d a tio n s contained in this report shall bar the party from a de novo determination by the d is tric t court.45 Additionally, failure to file timely written objections to the proposed findings, c o n c lu s io n s and recommendations contained in this memorandum and recommendation shall bar th e aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjectedto proposed factual findings and legal conclusions accepted by the district court.46 S I G N E D on January 7, 2010.

_____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE

44

28 U.S.C. §636(b)(1); FED. R. CIV. P. 72(b).

Thomas v. Arn, 474 U.S. 140, 149-152 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5 th Cir. 2000).
46

45

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

9