Callies v. Donahoe, No. 4:2012cv03710 - Document 35 (S.D. Tex. 2014)
Court Description: MEMORANDUM AND ORDER Granting 21 MOTION for Summary Judgment (Signed by Judge Ewing Werlein, Jr) Parties notified.(gkelner, 4)
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LARRY CALLIES, § § § § Plaintiff, v. PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant. CIVIL ACTION NO. H-12-3710 § § § § § § § MEMORANDUM & ORDER Pending is Defendant Patrick R. Donahoe, Postmaster General, United States Postal (Document No. 21). response, reply, Service's After and Motion carefully applicable law, for Summary considering the Court the Judgment motion, concludes as follows. I. Background Plaintiff Larry Callies ("Plaintiff"), a black man who is 61 years old,l was a letter carrier for the United States Postal Service ( "USPS" ) for 34 years until his retirement on March 1, 2010. 2 Plaintiff was assigned to the Sugarland Post Office in Sugarland, Texas. 3 1 Document No. 21, ex. 4 at 7-8. 2 Document No.1 at 2 (Orig. Compl.); Document No. 21, ex. 9. 3 Document No.1 at 2. On March 17, USPS supervisor Philip Philipose ("Philipose") instructed Plaintiff to carry additional deliveries for minutes. 4 thirty After Plaintiff refused, Postmaster Debora Duplechain ("Duplechain") follow Philipose's order. 5 Sugar Land ordered Plaintiff to Plaintiff once again refused, and was issued a 14-day suspension on April 8, 2008 for repeated failure to follow instructions. 6 time or pay. On The suspension did not result in a loss of 7 April 1, 2009 Newhouse ("Newhouse"), Missouri City, Texas at approximately p.m., Hildridge Postmaster and Officer-in-Charge at Post Office, observed vehicle parked on the side of a building. 8 the vehicle, 5:09 Plaintiff's the postal Newhouse pulled up to identified herself and showed her badge, then asked Plaintiff for his name and what he was doing. 9 Plaintiff responded that his name was Larry and that he was on a 10 -minute break. 10 Newhouse then asked Plaintiff to open the back of the vehicle, and 4 Document No. 21, ex. 1 at 00098-99. 5 rd. , ex. 1 at 00098-99. 6 rd. , ex. 1 at 00098-99. 7 rd. , ex. 1 at 00098-99. 8 rd. , ex. 1 at 00218-19, 00250. 9 rd. , ex. 1 at 00218-19, 00250. 10 rd. , ex. 1 at 00218, 00250. 2 observed that there was no mail to be delivered. 11 The next day, Newhouse emailed Duplechain and recounted her observations. 12 On May 6, 2009, USPS Supervisor Mathew Scaria ("Scaria") issued Plaintiff a fourteen-day suspension for failure to follow instructions and for taking an unauthorized break.13 The written notice of suspension explained that Plaintiff was working overtime when he was approached by Newhouse on April 1, and that carriers working overtime are not entitled to breaks. 14 Furthermore, the notice stated that the "Carriers Handbook M-41" required Plaintiff to return to the delivery unit immediately upon completion of his assigned duties and promptly clock in, and that Plaintiff did not return to the station until 5:38 p.m. that day, and did not end his tour until 5:42 p.m. 1S The suspension was a "paper suspension" and resulted in no time off.16 On July 8, USPS 2009, management. 17 Plaintiff submitted two doctors' The note from one physician notes to stated that 11 Id., ex. 1 at 00218, 00250. Newhouse observed that there was "a priority box and a tub of collection mail" in the back of Plaintiff's vehicle, but "NO MAIL to be delivered." Id., ex. 1 at 00250. 12 Id. , ex. 1 at 00250. 13 Id. , ex. 1 at 00066-67. 14 Id. , ex. 1 at 00066. 15 Id. , ex. 1 at 00066. 16 Id. , ex. 1 at 00066-67. 17 Id. , ex. 1 at 00123; id. , ex. 4 at 102-03. 3 Plaintiff has spasmodic dysphonia, says causes his vocal difficult to speak.19 cords to IS a condition which Plaintiff spasm and lock That note advised that, up, making it \\ [iJ f possible no more than 8 hours shifts could help the condition. ,,20 The note from the other doctor, in family practice at a separate clinic, was on a "Release to Work/School Permit" form and released Plaintiff to work "no more than 8 hrs a day," but contained no diagnosis or explanation for the limitation. 21 On August 5, contends Plaintiff worked overtime. 22 2009, that when asked to work overtime, he always Plaintiff obj ected because he was not on the Overtime Desired List ("ODL") and because he had submitted doctors' notes. 23 On August 7, 2009, supervisor Andre Felder ("Felder") asked Plaintiff to have his doctor fill out paperwork for a light duty assignment which accommodation. 24 would formalize Plaintiff's request for Plaintiff refused, believing that filling out the paperwork would be tantamount to falsifying a document because it IS Id. , ex. 1 at 00123. 19 Id. , ex. 1 at 00113. 20 Id. , ex. 1 at 00123. 21 Id. , ex. 1 at 00123. 22 Id. , ex. 1 at 00193, 00231. 23 Id. , ex. 4 at 113. 24 Id. , ex. 1 at 00194-95, 00230, 00259-64; id. , ex. 4 at 115- 19. 4 would deem him interpretation an of "ill the and union injured" employee. 25 agreement, such Under employees his were considered part-time regular employees and Plaintiff was a fulltime regular. 26 On August Opportunity 10, ("EEO") 2009, Plaintiff complaint with filed the an Equal USPS, Employment alleging that Duplechain and Scaria retaliated against him for his "[p]rior EEO activity" when they issued the May 2009 suspension. 27 USPS began an investigation into Plaintiff's allegations. 28 On the morning of September 8, 2009, Felder informed Plaintiff that he had to work overtime that afternoon due volume. 29 Plaintiff asked to be limited to an eight-hour day, as he believed his doctor had prescribed. 30 that he to high mail was not on the ODL. 31 Felder Plaintiff also objected and Plaintiff 25 Id., ex. 1 at 00117,259; id., ex. 4 at 122. 26 briefly Id., ex. 1 at 00117, 00259; id., ex. 4 at 122. 27 Id., ex. 1 at 00043, 00045. Plaintiff's EEO complaint did not specify what his prior EEO acti vi ty involved, or when it occurred. See id. 28 I d., ex . 1 at 00145 - 4 6, 00344. 29 Id., ex. 1 at 00106, 00232; id., ex. 5 3. Felder avers that, given the circumstances, he believed that he was entitled, under the terms of a local memorandum of understanding between USPS and the union, to ask any available letter carrier to work overtime, regardless of whether he or she was on the ODL. Id., ex. 5 3. 30 I d., ex . 1 at 00106, 00115, 00232. 31 Id., ex. 1 at 00232. 5 discussed the matter but were unable to agree, and Plaintiff left for his regular route. 32 When Plaintiff returned from his route that afternoon, Felder again told him that he needed to work overtime. 33 Plaintiff responded that he was not on the ODL and again referred to his medical documentation, that is, the two doctors' notes. 34 Felder ordered Plaintiff to work the overtime, and Plaintiff walked away. 35 Duplechain then approached Plaintiff and instructed him to complete the overtime assignment. 36 out and went home. 37 Rather than comply, Plaintiff clocked USPS contends that Plaintiff's actions were contrary to instructions in its Employee and Labor Relations Manual requiring employees to carry out orders even if they find them obj ectionable. 38 32 Id. , ex. 1 at 00106, 00232; id. , ex. 4 at 128. 33 Id. , ex. 1 at 00106, 00232; id. , ex. 4 at 129. 34 Id. , ex. 1 at 00106, 35 Id. , ex. 1 at 00193. 00232; id. , ex. 4 at 129-130. Id., ex. 1 at 00193. Duplechain states that she heard Plaintiff tell Felder that he was not on the ODL, but did not hear him mention his medical documentation. Id., ex. 1 at 00193, 00195. Plaintiff alleges he informed Duplechain of his medical documentation, but that neither she nor Felder asked to see it. Id., ex. 1 at 00106. 36 37 Id., ex. 1 at 00106, 00193, 00232; id., ex. 4 at 129-130. rd., ex. 4 at ex. 9 § 665.15 ("Employees must obey the instructions of their supervisors. If an employee has reason to question the propriety of a supervisor's order, the individual must nevertheless carry out the order and may immediately file a protest in writing to the official in charge of the installation or may 38 6 The next day, Plaintiff returned to work and worked overtime. 39 On September 21, 2009, Felder issued Plaintiff a Notice of Removal for failure to follow instructions, discharging Plaintiff effective October 30, 2009. 40 The Notice stated that Plaintiff's 2008 and 2009 suspensions were considered in deciding on his removal. 41 Defendant alleges that in late September 2009, Plaintiff filed a grievance regarding the Notice of Removal. 42 The grievance was referred to an arbitrator, who, after a hearing, on March 19, 2010, issued his award. 43 He found that Plaintiff had failed to follow instructions, but rescinded the removal and reinstated Plaintiff because USPS had neglected to follow protocols in Article 8 of the union agreement requiring USPS first to use carriers from the ODL for overtime assignments, and, if it is necessary to use non-ODL carriers, to assign the overtime on a rotating basis starting with appeal through official channels."). Id., ex. 1 at 00193, 00231. In the arbitration award addressing Plaintiff's grievance, the union's position is that Plaintiff did not work overtime on this day, but " [r]ather, he participated in a pre-disciplinary interview for about 30 minutes that day and then carried his route for 8 hours. Id., ex. 6 at 4. 39 II 40 Id., ex. 1 at 00253-55. The letter was marked as received on September 23, 2009. Id., ex. 1 at 00255. 41 Id., ex. 1 at 00254. 42 Document No. 21 at 5. 43 Id., ex. 6. 7 the junior employee. 44 Before the Arbitrator ruled, Plaintiff had applied for retirement on December 21, 2009 and elected that his retirement become effective on March I, 2010. 45 arbitrator's ruling, Thus, despite the Plaintiff did not return to work from his voluntary retirement. 46 On October to include 26, 2009, allegations Plaintiff of race amended his EEO complaint discrimination, disability discrimination, and retaliation based on the Notice of Removal. 47 On October 13, 2010, a United States Equal Employment Opportunity Commission ("EEOC") Administrative Judge issued an order finding no discrimination or retaliation. 48 Notice of order.49 Later that month, USPS issued a Final Action implementing the Administrative Judge's Plaintiff appealed to the EEOC, and the EEOC affirmed the Administrative Judge's opinion. 50 44 Id., ex. 6 at 4 -7. The arbitrator also ordered that Plaintiff be "made whole" and that the reinstatement be accompanied by a "last chance agreement," which would be effective from the date of his reinstatement and continue for one calendar year. Id., ex. 6 at 6 -7. 45 Id., ex. 9. 46 Id., ex. 18 3. Id., ex. 1 at 00068 -78. Plaintiff alleged that he was retaliated against for EEO activity that he engaged in on November 9, 2006 and September 26, 2009. Id., ex. 1 at 00068. 47 48 Id. , ex. 12. 49 Id. , ex. 13. 50 Id. , exs. 14, 15. 8 This lawsuit followed. tion in violation of Plaintiff now claims age discrimina- the Age Discrimination in Employment Act ("ADEN'), and race discrimination, disability discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and 42 U.S.C. under the Employee Retirement § 1981. 51 Income He also makes a claim Security Act ( "ERISA" ) , arguing that Defendant fired him with the intent to deprive him of his retirement benefits. 52 Defendant moves for summary judgment. 53 II. Rule 56 (a) Legal Standard provides that "[t] he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." this burden, the FED. R. Crv. 56 (a) P. burden shifts to Once the movant carries the nonmovant summary judgment should not be granted. to show that Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials in a pleading, and unsubstantiated assertions that a fact issue exists will not suffice. Id. "[T]he nonmoving party must set forth specific facts showing the existence 51 Document No.1. 52 53 Document No. 21. 9 of a 'genuine' case." issue concerning every essential component of its "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: particular parts of materials in the record . (A) citing to ., or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." FED. R. CIV. P. 56 (c) (1). "The court need consider only the cited materials, consider other materials in the record." but it may Id. 56 (c) (3) In considering a motion for summary judgment, the district court must view the evidence "through the prism of the substantive evidentiary burden." 2505, 2513 (1986). Anderson v. Liberty Lobby, Inc., 106 S. Ct. All justifiable inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. Corp., 106 S. Ct. Matsushita Elec. 1348, 1356 (1986) Indus. Co. v. Zenith Radio "If the record, viewed in this light, could not lead a rational trier of fact to find" for the nonmovant, then summary judgment is proper. Kelley v. Price- Macemon, Inc., 992 F.2d 1408, 1413 (5th Cir. 1993). On the other hand, if "the factfinder could reasonably find in [the nonmovant's] favor, then summary judgment standards of Rule 56 are met, is improper." Id. Even if the a court has discretion to deny a motion for summary judgment if it believes that "the better course 10 would be to proceed to a full trial." Anderson t 106 S. Ct. at 2513. III. A. Age Discrimination Plaintiff alleges plaintiffts employment t a much younger person," § Analysis 623 (a) (1) ("It that USPS "involuntarily terminated and subsequentlYt replaced plaintiff with in violation of the ADEA.54 shall be unlawful for See 29 U.S.C. an employer to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or pri vi leges of employment, because of such individual's age."). Before filing suit under the ADEA, a plaintiff must either file a complaint with the EEO division of their agency or give notice of intent to sue to the EEOC. (5th Cir. 2012) Allard v. Holder, 494 F. App'x 428, 431 (citing 29 U.S.C. § 633a(d) i 29 C.F.R. § 1614.201). Because Plaintiff chose to pursue an administrative remedy, he was required to exhaust his administrative remedies with respect to all claims before filing a civil action. Affairs, 2009). 2167716, No. 08-60532, See Hill v. Dep't of Veterans 2009 WL 348767, at *3 (5th Cir. Feb. 12, See also Smith v. O'Keefe, Civ. A. No. H-03-5900, 2006 WL at *6 (S.D. Tex. July 31,2006) ("Once an employee has chosen the agency in which he wishes to adjudicate his claims . 54 Document No. 1 at 3 (emphasis in original) . 11 he is required to bring all claims relevant to his discharge in that proceeding. H) (S.D.N.Y. 2000)). (quoting German v. Pena, 88 F. Supp. 2d 222, 225 "When a claim was not formally raised in the administrative proceedings, the exhaustion requirement may still be satisfied as long as an administrative investigation of the claim not raised could \ reasonably be charges actually raised. expected to grow out Hill, 2009 WL 348767, at *3 H of' the (quoting Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006)). In his August 2009 EEO Complaint, Plaintiff checked only the box marked "Retaliation when asked H Discrimination You Are Alleging. H55 to identify the "Type of The narrative explanation of his claim detailed his interaction with Newhouse and his 14-day suspension, but made no mention of age discrimination. 56 October 26, 2009 amendment, DISABILITY AND RETALIATION H In his Plaintiff listed "RACE AND PHYSICAL as alleged "factors of Discrimination, H and described the events of September 8, 2009, but again asserted 55 Document No. 21, ex. 1 at 00043. id., ex. 1 at 00043 ("On April 7, 2009 I was issued a 14 day suspension by Phillip Phillipost at 3:15 p.m. on April 7, 2009 with witness Andre Felden. The suspension said that I was observed by Post Master Hildridge Newhouse. The EEO ADR specialist Amaryllis Lee said Newhouse was an Officer-in-charge. Newhouse said I was on a 10-minute break. EEO ADR specialist stated I was on a break. I was on a bathroom break. Newhouse also stated there was a priority box and a tub of raw mail in the 14-day suspension. EEO ADR specialist stated she saw one parcel that was not for delivery but was coming back to the station. Matthew told me in the presence of witnesses that Debora Duplechain asked him to issue the suspension. H ) . 56 See 12 no claims based on his age. 57 complaints mentions age, Because neither of Plaintiff's EEO or any information from which an investigation concerning age discrimination could reasonably be expected to grow, Plaintiff's ADEA claim is dismissed without prejudice for failure to exhaust administrative remedies. v. Life School, 809 F. Supp. 2d 572, 580 (N.D. See King Tex. 2011) (plaintiff failed to exhaust her age discrimination claim where she checked only the box for race on her EEOC charge and failed to make any allegations related to age discrimination) F. Supp. 1218, 1224 (S. D. Tex. 1995) i Lee v. Kroger, 901 (plaintiff precluded from maintaining racial discrimination and harassment claims where he checked the box labeled "Retaliation" on his EEOC charge, while leaving blank the box labeled "Race," and did not allege facts indicating he was complaining of racial discrimination or harassment) Alternatively, even if Plaintiff was not required to exhaust his ADEA claims in his EEO complaint process, his putative ADEA claim is barred because there is no evidence that Plaintiff filed with the EEOC the requisite notice of intent to sue at least 30 Id., ex. 1 at 00068 ("On September 8, 2009, Andre Felder and Debra Duplechain, Postmaster, charged me with failure to follow instructions from my supervisor by not carrying the assigned split on route #7826. On that same day, a WHITE carrier, Debbie Sardelich, who IS on the overtime desired list was allowed to clock out after eight hours. I, a BLACK carrier, who is NOT on the overtime desired list, and who has medical documentation, was attempted to be FORCED to work overtime.") 57 13 days before (allowing bringing employee this to action. file ADEA 29 See suit U.S.C. without 633a(d) § first pursuing administrative remedies but requiring 30 days' notice to the EEOC of intent to sue) B. 29 C.F.R. i § 1614.201(a) (same). Disability Discrimination Plaintiff's Complaint suggests that he was against on the basis of his spasmodic dysphonia, 58 discriminated and alleges that USPS failed to provide him with reasonable accommodations. 59 claims are not actionable under Title VII. 2 (a) (1) "race, Court See 42 U.S.C. (prohibiting discrimination because color, will religion, construe Rehabilitation Act sex, 1973, an or national origin. Plaintiff's of of 29 claims U.S.C. as § II ) et 2000e- individual's Thus, • arising 701 § Such the under the seq., ( "the Rehabilitation Act") , although Plaintiff has not alleged reliance on that Act in his pleadings. Nonetheless, the Rehabilitation Act "constitutes the exclusive remedy for a federal employee alleging Document No. 1 at 7 (Under the heading "Section 1981 Claim/Title VII Claim," Plaintiff writes that he "was diagnosed wi th a certain medical condition known as spasmodic dysphonia. This condition is aggravated by stress. ") . See also id. at 8 ("Defendant and its management employees were aware of plaintiff's health condition and the factors that would aggravate plaintiff's condition. Defendant's management employees willfully, knowingly or recklessly placed plaintiff in situations to worsen his condition. ") . 58 59 Id. at 2. 14 disability-based discrimination. I! See Dark v. Potter, 293 F. App' x 254, 258 (5th Cir. 2008). Plaintiff does not contend that his alleged disability played a role in his 2009 suspension, and concedes that he has no proof to support his allegation that it was a factor removal. 60 in his Accordingly, his claims of disability discrimination based on his suspension and removal are dismissed. An employer's failure to make reasonable accommodations of an employee's disability constitutes Rehabilitation Act. Sapp v. Donohoe, Cir. a 2013). requests a "When qualified discrimination 539 F. App'x 590, individual reasonable accommodation, under with a the 596 (5th disability the employer and employee should engage in flexible, interactive discussions to determine the appropriate accommodation.1! 462, 471 (5th Cir. 2009) .61 E.E.O.C. v. Agro Distrib., 555 F.3d "[W]hen an employer's unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate [Rehabilitation Act] 736 (5th Cir. 1999). 60 I! an employee, the employer violates the Loulseged v. Akzo Nobel Inc., 178 F.3d 731, However, "an employer cannot be found to have Document No. 21, ex. 4 at 211-212. 61 Although Agro Distrib. and several other cases cited herein involve the Americans with Disabilities Act ("ADAI!), the Fifth Circuit has held that the language of the ADA generally tracks that of the Rehabilitation Act, and that jurisprudence interpreting either section applies to both. Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010). 15 violated the [Rehabilitation Act] breakdown of the 'informal, when responsibility interactive process' the employee and not the employer." for the is traceable to Id. The summary judgment evidence is that Plaintiff provided USPS with two doctors' notes, one a "Release to Work/School Permit" form from a neighborhood family practice doctor, which stated Plaintiff could return to work "no more than 8 hrs a day," but included no diagnosis, no duration for such limitation, and no explanation for it. The second doctor's note was on a prescription form from a Baylor College of Medicine specialist, which stated that Plaintiff "has spasmodic condition. dysphonia. Increased [illegible] stress this If possible no more than 8 hours shifts could help the condition. ,,62 clarification Plaintiff's USPS of responds these limitations that statements and to it from determine to sought the formalize his Plaintiff extent request of for accommodations, and asked Plaintiff to fill out further paperwork. 63 There is 62 no summary judgment evidence that USPS's request was Document No. 21, ex. 1 at 123. 63 Id., ex. 5 2 ("On August 7, 2009, I asked Larry Callies to complete paperwork for a light duty assignment. I presented Mr. Callies with this paperwork because there was an ambiguity in certain medical documentation that Mr. Callies had submitted to USPS management. One of the doctors notes submitted by Mr. Callies seemed to be merely a recommendation that he only work eight hours a day, while the other took the form of a command. I hoped that the additional light duty documentation completed by Mr. Callies and his doctor, would help resolve this ambiguity and formalize any request for accommodation. Mr. Callies, however, did not complete the light duty paperwork, as requested.") . l l 16 unreasonable, especially given that one doctor's note provided no information as to why Plaintiff was limited to eight hours of work per day, and the second doctor's note--which provides a diagnosis-rather ambiguously states, "If possible no more than 8 hours shifts could help the condition." Plaintiff interactive summarily rej ected entering process' to determine an into the 'informal, appropriate reasonable accommodation, responding that he could not fill out the requested paperwork because under his interpretation of the union agreement, he was not an "ill or injured" employee. 64 that time information offer to regarding provide his USPS with condition or Plaintiff did not at any further explanation medical of its limitations upon him, nor is there any evidence of record that he later provided such information. When Plaintiff was subsequently asked to work overtime, he walked off the job in violation of the Employee and Labor Relations Manual, resulting in his termination. 65 Because Plaintiff refused to provide the requested clarifying and explanatory information, and because his termination for failure to follow the Employee and Labor Relations Manual effectively ended the accommodation failing 64 to provide discussion, reasonable USPS cannot be accommodations. held See liable for Griffin v. Id., ex. 1 at 259. As explained above, Plaintiff concedes that he evidence that his disability was a factor in his removal. 65 17 has no United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011) (no reasonable juror could conclude defendant was unwilling to, in good faith, participate in interactive process to reasonably accommodate plaintiff where, after defendant informed plaintiff that based on the information he provided it was entitled to retired the unable requested accommodation, rather than provide additional to conclude he was plaintiff voluntarily information about his illness) C. Section 1981 Plaintiff's claim of discrimination under 42 U.S.C. § 1981 fails, as Title VII and the ADEA provide the exclusive remedies for employment discrimination claims brought by federal employees. Sapp v. Potter, 413 F. App'x 750, dismissal of postal employee's preempted by Title VII) (5th Cir. 1981) 753 (the i § (5th Cir. 2011) 1981 claim See (affirming because it was Paterson v. Weinberger, 644 F.2d 521, 524 ADEA is the exclusive remedy for age discrimination in federal employment) . D. Title VII Discrimination and Retaliation Plaintiff alleges in his Complaint that USPS retaliated against him for his EEO activity with acts ranging "from overtime work to suspensions,u66 and that Defendant disciplined Plaintiff 66 Document No. 1 at 2. 18 more harshly than other employees in retaliation for his EEO activity.67 Plaintiff further alleges that Defendant "scrutiniz [ed] plaintiff more closely other than comparable employees r ostraciz[ed) plaintiff, while attempting to construct a pre textual reason for firing plaintiff, verbally abus [ed) and accost [ed) plaintiff while attempting to provoke plaintiff enough to create a pretext for firing plaintiff," and ultimately terminated Plaintiff, all because of Plaintiff's race and in retaliation for his prior EEO acti vi ty. 68 retaliation However, based only on Plaintiff's his 2009 EEO complaints suspension, 69 discrimination and retaliation based only on his Because Title VII plaintiffs must exhaust allege and race termination. 70 their administrative remedies before filing suit in federal court, and Plaintiff does not argue that any additional claims of retaliation or race discrimination could "reasonably be expected to grow out of" his EEO complaints, the Court may properly consider only Plaintiff's claim of retaliation based on his 2009 suspension, and his claims 67 Id. at 6. 68 Id. at 7. 69 Document No. 21, ex. 1 at 00043. 70 Id., ex. 1 at 00068. Plaintiff's EEO complaints do not specify whether his retaliation claims are brought under Title VII or the ADEA. Because Plaintiff failed to exhaust his administrative remedies on his ADEA claims, the Court will examine his retaliation claims under Title VII. 19 of race discrimination and retaliation based on his termination. See Pacheco v. Mineta 1. l 448 F.3d 783 discharging VII proscribes an employer from refusing to hire, or otherwise discriminating against any individual I "wi th respect to his compensation § 788-89 (5th Cir. 2006). Title VII Standard Ti tle of 1 employment because II 2000e-2 (a) (1) of I that terms conditions I individual s I I or privileges race. 42 U.S.C. The statute also provides that it is "an unlawful employment practice for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter he has made a charge, testified, assisted manner in an subchapter. II investigation Id. § l proceeding l or because or participated in any l or hearing under I this 2000e-3. "The Title VII inquiry is whether the defendant intentionally discriminated against the plaintiff. Servs., 373 F.3d 647,651 (5th Cir. Roberson v. 1I 2004) Alltel Info. (quotations omitted). Intentional discrimination can be established through either direct or circumstantial evidence. F.3d 212, 219 (5th Cir. 2001) the claims must be Wallace v. Methodist Hosp. Sys., 271 If no direct evidence is presented, analyzed using the framework set McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973). McKinsey & Co., Inc., 375 F.3d 358, 360 (5th Cir. 2004). 20 forth in Bryan v. Under this framework, a plaintiff must first create presumption of intentional discrimination by establishing, preponderance of discrimination. the evidence, a prima facie See Wallace, 271 F.3d at 219. establishes a prima case, facie a by a case of Once the plaintiff the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. If the employer sustains its burden, the presumption of discrimination is dissolved and the burden shifts back to the plaintiff to establish either: proffered reason is not true, but is (1) that the employer's instead a pretext for discrimination (pretext alternative); or (2) the employer's reason, while true, is not the only reason for its conduct, and another "motivating factor" (mixed-motive is the plaintiff's protected characteristic alternative). Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc.,_482 F.3d 408, 411-12 (5th Cir. 2007). 2. 2009 Suspension To demonstrate a prima facie case of retaliation, Plaintiff must show that suffered an (1) adverse he engaged in a protected activity, employment action, and (3) a (2) causal existed between the protected activity and the adverse action. he link Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002). Plaintiff has not demonstrated a prima facie case because his 2009 suspension was not an adverse employment action. 21 In the retaliation context, an adverse employment action is one that is "materially adverse," meaning that the action "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. (2006) 2405, 2415 omitted). (internal quotation marks citation Plaintiff's 2009 suspension was a "paper suspension" and involved no time off and no loss of pay.71 evidence and that he suffered any negative Plaintiff provides no consequence from this suspension of such a nature as to deter a reasonable worker from making a charge. Plaintiff, to discrimination. that his action. F. 2009 To be sure, the suspension was of no deterrence who subsequently made multiple charges of In sum, Plaintiff has failed to present evidence suspension was a materially adverse employment See DeHart v. Baker Hughes Oilfield Operations, Inc., 214 App'x 437, 442 (5th Cir. 2007) (written warning was not materially adverse employment action where there were colorable grounds for the warning and it "did not in fact dissuade a charge of discrimination") 2008 MTP, WL i Stewart v. Loftin, Civ. A. No. 2:06cv137-KS- 3086760, at *7 (N.D. Miss. Aug. 4, 2008) (administrative leave with pay was not materially adverse action where plaintiff did not claim that she suffered harm due to the leave) . 71 Document No. 21, ex. 1 at 00066-67. 22 Because Plaintiff has case, failed to demonstrate a prima facie it is not necessary to reach the remaining steps of McDonnell Douglas inquiry. the However, the Court observes that USPS has provided a legitimate non-discriminatory reason for the 2009 suspension--Plaintiff took an unauthorized break while on overtime. In his Response to the Motion for Summary Judgment, Plaintiff does not advance any argument that USPS's reason was pretextual. 3. Removal Plaintiff alleges that his removal was issued on the basis of retaliation and racial discrimination. Given that removal is generally an adverse employment action (although here USPS argues to the contrary because Plaintiff was reinstated by the arbitrator), the Court will assume without deciding that Plaintiff has demonstrated a prima facie case, and will turn to the second step of the McDonnell-Douglas burden-shifting framework. USPS has demonstrated a legitimate, non-discriminatory reason for terminating Plaintiff, namely, that he refused to obey management's instructions to work overtime, and instead clocked out and went home. USPS cited this failure to follow instructions, along with Plaintiff's previous suspensions in 2008 and 2009, as the legitimate and non-discriminatory reason for his removal.72 72 See id., ex. 1 at 00253-54. 23 In Response to the Motion for Summary Judgment, Plaintiff argues that Debra Sardelich, who is white, was not asked to work overtime on September 8, 2009, even though she had less seniority than Plaintiff. 73 However, the uncontroverted summary judgment evidence is that Felder believed that Sardelich was not available for overtime work that day because she had thirty minutes of preapproved annual leave. 74 Plaintiff has failed to raise a genuine issue of material fact that USPS's reasons for his removal were pretextual. E. ERISA Plaintiff alleges that USPS terminated him with the intent to deprive him of his retirement benefits in violation of ERISA. 29 U.S.C. § 1140. See ERISA does not apply to employee benefit plans that are governmental plans, such as USPS's retirement plan. id. §§ 1002(32), 2003(b). See Accordingly, Plaintiff's ERISA claim is dismissed. IV. Order For the foregoing reasons, it is 73 74 5 Document No. 29 at 7 of 22. Document No. 21, ex. 1 at 00232j id., ex. 4 at 140j id., ex. 4. 24 ORDERED that Defendant United States Postal Service's Motion for Summary Judgment (Document No. 21) is GRANTED. Plaintiff Larry Callies's age discrimination claim is dismissed without prejudice for failure to exhaust administrative remedies, and his remaining claims are dismissed on the merits. The Clerk will enter this Order, providing a correct copy to all parties of record. "c:W' SIGNED at Houston, Texas, on this ____ day of August, 2014. L-v-", NG WERLEIN, JR. UNITED STATES DISTRICT JUDGE 25 ·
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