United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal, Chief United States District Judge
Matthews sued the United States Postal Service, alleging that
it discriminated against her on the basis of disability and
retaliated against her for filing civil-rights complaints.
The Postal Service has moved for summary judgment on some
claims and asked the court to stay the remaining claims until
a class action pending in another forum is resolved. Ms.
Matthews responded, and the Postal Service replied. (Docket
Entries No. 98, 103, 109). Based on the motions, the summary
judgment record, and the applicable law, the Postal
Service's motion for partial summary judgment and to stay
the remaining claims, (Docket Entry No. 98), is granted. The
reasons for these rulings are set out in detail below.
Matthews has worked for the Postal Service since 1982.
(Docket Entry No. 98-3 at 6). She characterizes herself as a
“Protector of Civil Rights” who has filed
“more than 200” complaints with the Post Office
Equal Employment Opportunity Office and “more than
300” grievances under the letter carrier's union
dispute-resolution process. (Docket Entry No. 103 at 16, 24).
and again in 2004, Ms. Matthews injured her back and hand
while working. She was also diagnosed with work-related
depression. (Id. at 1). After partially recovering
from these maladies, Ms. Matthews worked in a limited-duty
capacity on a four-hour shift dictated by her medical
requirements. (Docket Entry No. 103-1 at 7). In 2006, she
began working at the Postal Service's James Griffith
Station in northwest Houston. In 2007, as part of the Postal
Service's “National Reassessment Process, ”
Postal Service Area Manager Jose Ayala reassigned all
limited-duty letter carriers at the James Griffith Station,
including Ms. Matthews, to the Houston General Post Office.
(Docket Entry No. 98-8 at 4-5).
April 18, 2007, the Postal Service notified Ms. Matthews
that, effective April 21, 2007, she was among those assigned
to the General Post Office. (Docket Entry No. 98-8 at 6). On
April 30, the Postal Service presented her with an official
modified job offer for her new General Post Office
assignment. The offer was for an eight-hour shift rather than
the four-hour shift permitted by her medical restrictions.
(Id. at 1). Sheila Thomas, the Acting Manager for
Customer Services at the General Post Office, told Ms.
Matthews that there was no other job available. Ms. Thomas
sent Ms. Matthews home for the day without putting her in a
pay status for that day. (Docket Entry No. 98-6 at 5). Ms.
Thomas testified that she did not have authority to reassign
Ms. Matthews to the James Griffith Station. (Id.).
3, 2007, Ms. Thomas sent Postal Service employee Bob Sutkoff,
who was the Injury Compensation Specialist for Ms.
Matthews's case, a corrected modified job offer for Ms.
Matthews. This offer correctly reflected her four-hour shift
restriction. Mr. Sutkoff called Ms. Matthews and told her
about the corrected offer, but Ms. Matthews demanded written
confirmation that the offer tracked her medical limits. The
Postal Service mailed her a copy of the offer, which she
received on June 15, 2007.
10, 2007-after Ms. Matthews's conversation with Mr.
Sutkoff but before she received a written copy of the
modified job offer-her treating psychiatrist, Dr. Rahn
Bailey, sent the Postal Service a medical evaluation note
stating that Ms. “Matthews is unable to return to
gainful work due to general medical condition and/or
psychological well-being.” (Docket Entry No. 98-3 at
1). When Ms. Matthews received the modified job offer on June
15, 2007, she checked the box to indicate that she accepted
the offer, but, in a note, stated that she did so
“under protest and distress” because she could
not report for work at all without her doctor giving her a
medical release. (Docket Entry No. 98-8 at 2).
May 2007 and November 2011, Ms. Matthews provided a series of
doctor's notes stating that she was unable to work.
(Docket Entries No. 98-3 at 3, 98-5 at 1-2). The November
2011 note stated that the doctor could not determine when Ms.
Matthews would be able to return to work, that in no event
could her return be sooner than May 31, 2012, and that she
would be reevaluated regularly in the interim. (Docket Entry
No. 98-5 at 1).
December 2011, Mr. Sutkoff initiated “administrative
separation” proceedings under the Postal Service's
Employee and Labor Relations Manual. (Id. at 13).
Under the Manual's guidelines, the Postal Service may
administratively separate employees who have been unable to
work for more than a year and are not likely to return to
work in the near future. (Docket Entry No. 98-8 at 22). The
Postal Service's headquarters approved the separation.
Houston District Labor Relations Manager Rodney Thomas
decided that Ms. Matthews should be administratively
separated because she had been unable to work for more than
four years and was not released to return to work in the near
future, making separation proper under Postal Service rules.
He notified Ms. Matthews of the separation decision in a
letter dated January 26, 2012. (Docket Entry No. 98-4 at 20).
September 2007, Ms. Matthews filed the first of the two
formal complaints that are the basis of the current lawsuit.
(Docket Entry No. 98-5 at 2). This complaint claimed
disability discrimination and retaliation for protected
activity based on: (1) the April 2007 cancellation of Ms.
Matthews's modified assignment at the James Griffith
Station; (2) the April 2007 refusal to allow Ms. Matthews to
“get on the clock” for the day and to give her a
job offer that met her medical restrictions; (3) the May 30
job offer, which Ms. Matthews characterizes as
“bogus” because it did not include certain job
details; and (4) the June 2007 cancellation of a meeting
between Ms. Matthews and her Equal Employment Opportunity
Office representative. The Post Office Equal Employment
Opportunity Office accepted the first three claims for
investigation and rejected the fourth. (Id. at 6).
another case, an administrative law judge at the Equal
Employment Opportunity Commission, in May 2008, certified a
class of “all permanent rehabilitation employees and
limited duty employees” of the Postal Service who were
“subjected to the [National Reassessment Plan], ”
allegedly in violation of the Rehabilitation Act. Because Ms.
Matthews's disability-discrimination claim was subsumed
in the class action, the EEOC held those claims in abeyance
and addressed only her retaliation claims. The administrative
law judge rejected those claims and the EEOC Office of
Federal Operations affirmed that decision. (Id. at
Matthews filed a second complaint in 2012. That complaint
charged that the decision to administratively separate her
and many of the actions related to that decision were
discriminatory and retaliatory. (Docket Entry No. 98-1 at
17). The Postal Service accepted the complaint for
investigation. (Id. at 16). The EEOC administrative
law judge's investigation found no evidence of
discrimination and rejected the claim. The Office of Federal
Operations affirmed that decision. (Docket Entry No. 98-5 at
Matthews filed two separate suits based on the administrative
complaints. The lawsuits were consolidated into this action.
After discovery, the Postal Service filed this motion for
partial summary judgment and to stay the remaining claims.
The Legal Standards
The Summary Judgment Standard
judgment is required when ‘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.'”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)
(quoting Fed.R.Civ.P. 56(a)). “A genuine dispute of
material fact exists when the ‘evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.'” Nola Spice Designs, LLC v. Haydel
Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015)
(quoting Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986)). “The moving party ‘bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.'” Id.
(quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
the non-movant bears the burden of proof at trial, the movant
may merely point to the absence of evidence and thereby shift
to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material
fact warranting trial.” Id. (quotation marks
omitted); see also Celotex, 477 U.S. at 325.
Although the party moving for summary judgment must
demonstrate the absence of a genuine issue of material fact,
it does not need to negate the elements of the
nonmovant's case. Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). “A fact is
‘material' if its resolution in favor of one party
might affect the outcome of the lawsuit under governing
law.” Sossamon v. Lone Star State of Texas,
560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted).
“If the moving party fails to meet [its] initial
burden, the motion [for summary judgment] must be denied,
regardless of the nonmovant's response.” United
States v. $92, 203.00 in U.S. Currency, 537 F.3d 504,
507 (5th Cir. 2008) (quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per
the moving party [meets its initial burden], the nonmoving
party must ‘go beyond the pleadings and by her own
affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for
trial.'” Nola Spice, 783 F.3d at 536
(quoting LHC Grp., 773 F.3d at 694). The nonmovant
must identify specific evidence in the record and articulate
how that evidence supports that party's claim.
Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.
2007). “This burden will not be satisfied by
‘some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by
only a scintilla of evidence.'” Boudreaux,
402 F.3d at 540 (quoting Little, 37 F.3d at 1075).
In deciding a summary-judgment motion, the court draws all
reasonable inferences in the light most favorable to the
nonmoving party. Connors v. Graves, 538 F.3d 373,
376 (5th Cir. 2008); see also Nola Spice, 783 F.3d
federal courts “construe pro se filings liberally, we
still require pro se parties to fundamentally ‘abide by
the rules that govern the federal courts.'”
E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 484 (5th
Cir. 2014), as revised (Sept. 18, 2014) (quoting
Frazier v. Wells Fargo Bank, N.A., 541 F. App'x.
419, 421 (5th Cir. 2013). Even if evidence exists in the
summary judgment record, if the plaintiff (whether pro se or
not) does not explicitly reference the evidence in her brief
in opposition to summary judgment, “that evidence is
not properly before the district court.” Outley v.
Luke & Assocs., Inc., 840 F.3d 212, 217 (5th Cir.
2016) (quoting Malacara v. Garber, 353 F.3d 393, 405
(5th Cir. 2003)).
Disability Discrimination and Retaliation Under the
federal employee's remedy for employment-related
disability discrimination or retaliation is a suit under the
Rehabilitation Act, rather than the Americans With Disability
Act or Title VII. Washburn v. Harvey, 504 F.3d 505,
508 (5th Cir. 2007) (the ADA does not apply to the federal
government and Title VII does not prohibit disability
discrimination). That difference is minor, because
disability-discrimination and retaliation claims under the
Rehabilitation Act are evaluated using the same standards as
claims under the Americans With Disabilities Act. See
Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir.
2011); Hainze v. Richards, 207 F.3d 795, 799 (5th
Cir. 2000). Disability-discrimination and retaliation claims
under the ADA are analyzed using a modified version of the
same framework used to evaluate employment-discrimination
claims under Title VII. McInnis v. Alamo Cmty. Coll.
Dist., 207 F.3d 276, 279 (5th Cir. 2000).
plaintiff uses indirect or circumstantial evidence to prove
discrimination or retaliation, the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), as 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), applies. See
also E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d
606, 615 (5th Cir. 2009). Under the modified McDonnell
Douglas approach, the plaintiff has the initial burden
of making a prima facie showing of discrimination or
retaliation. Abarca v. Metro. Transit Auth., 404
F.3d 938, 941 (5th Cir. 2005); Rachid, 376 F.3d at
312. The elements of a prima facie showing of discrimination
are that the plaintiff: (1) is disabled, has a record of
having a disability, or is regarded as disabled, (2) is
qualified for her job, (3) was subjected to an adverse
employment action on account of her disability or the
perception of her disability, and (4) was replaced by or
treated less favorably than similarly situated nondisabled
employees. Chevron, 570 F.3d at 615 (citing
McInnis, 570 F.3d at 615). A similarly situated
employee-a comparator-is one who is in all respects similar
to the plaintiff, save for the comparator's nonmembership
in the plaintiff's protected class. The comparator must
have “nearly identical” characteristics to the
plaintiff, including job title and duties, supervisors, and
comparable work histories of rule violations or discipline.
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