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Cabral v. Brennan

United States Court of Appeals, Fifth Circuit

April 10, 2017

JAVIER CABRAL, Plaintiff-Appellant,
MEGAN J. BRENNAN, United States Postmaster General, Defendant-Appellee.

         Appeal from the United States District Court for the Western District of Texas

          Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge. [*]

          JERRY E. SMITH, Circuit Judge.

         Javier Cabral appeals the dismissal of his Title VII retaliation claim. According to Cabral, his employer suspended him for two days because he complained of workplace discrimination and harassment. Because the district court's procedural error was harmless, and Cabral's two-day suspension did not constitute a materially adverse action, we affirm.


         Cabral is a letter carrier for the United States Postal Service (the "Postal Service"). In 2012 and 2013, he complained repeatedly of discrimination, harassment, and retaliation at the hands of his supervisors, filing three Equal Employment Opportunity ("EEO") complaints and numerous union grievances. The Postal Service portrays Cabral as a difficult employee and alleges that he struck one of his supervisors with a postal vehicle and engaged in various acts of insubordination.

         Cabral sued the Postal Service under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. See 42 U.S.C. § 2000e; 29 U.S.C. § 621 et seq. Cabral alleged that the Postal Service created a hostile work environment, harassed him, retaliated against him, and discriminated against him on the basis of his race, national origin, and age, though he later withdrew some of those claims. Cabral is Mexican-American and was in his mid-40s when the alleged misconduct occurred.

         The district court granted summary judgment for the Postal Service on all remaining claims except for one: that the Postal Service had retaliated against Cabral by placing him on unpaid leave on September 9, 2013. That retaliation claim is the subject of this appeal.[1]

         Most of the relevant conduct occurred in September 2013. On September 3, Cabral returned to work after a suspension related to the incident in which he allegedly struck a supervisor with a postal vehicle. Cabral contends that upon his return, a supervisor began "badgering" him with questions. On September 9, Cabral was placed on unpaid leave after a supervisor asked him to produce a valid driver's license and he failed to do so. After two days, he was allowed to return to work. A few weeks later, he was reimbursed for any lost pay.

         Although Cabral claims that he was placed on leave in retaliation for filing complaints, the Postal Service claims it was because his supervisors believed he was operating his postal vehicle with a suspended driver's license. Cabral admits that his license had been suspended for a DWI conviction and that he failed to notify his supervisors of the suspension, in violation of Postal Service rules. Though Cabral did have an occupational license, which would have permitted him to drive postal vehicles despite the suspension, his occupational license may have been invalid at the time because of his failure to pay an administrative fee. In any event, when Cabral was asked to produce a valid license, he failed to do so.

         After the court had denied summary judgment on the retaliation claim, the Postal Service moved for reconsideration. It challenged the ruling on the ground that Cabral had failed to present sufficient evidence that the two-day suspension amounted to a "materially adverse action" under Title VII. The court granted the motion and dismissed the retaliation claim. Cabral appeals that order.


         Cabral raises two issues. First, he claims that the district court erred by analyzing the Postal Service's motion for reconsideration under Federal Rule of Civil Procedure 59(e) instead of Rule 54(b), which allows district courts to revise interlocutory orders. Cabral is correct: Because the order granting partial summary judgment was interlocutory, the court should have analyzed the motion for reconsideration under Rule 54(b)[2] instead of Rule 59(e), which applies to final judgments.

         The Postal Service agrees that this was error. It was, however, harmless. The court acted within its authority to revise interlocutory orders. Though it applied the wrong rule of procedure, the rule it applied carried with it a standard more exacting than the one that the court should have applied.[3] Cabral does not explain how he could ...

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