United States District Court, S.D. Texas, Houston Division
THELMA M. JOHNSON, Plaintiff,
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, Defendant.
MEMORANDUM AND ORDER
F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE.
Thelma M. Johnson brings this suit claiming age
discrimination and a hostile work environment. Defendant has
filed a Motion for Summary Judgment [Doc. # 22]
(“Motion”) seeking dismissal of all
Plaintiff's claims. Plaintiff has filed a Response [Doc.
# 31], Defendant filed a Reply [Doc. # 35], and Plaintiff
filed a Surreply [Doc. # 39]. The Motion is ripe for
decision. Having now considered the parties' briefing,
applicable legal authorities, and all matters of record, the
Court determines that Defendant's Motion should be
granted and that Plaintiff's claims
should be dismissed with prejudice.
is a former employee of Defendant United States Postal
Service (“USPS”). Plaintiff was hired by USPS as a
mail carrier in 1995. In 1999 she became Supervisor of
Customer Service at the La Marque Post Office in La Marque,
Texas. In 2010, Plaintiff left the La Marque Post Office and
served consecutive details at other work stations through
August 2015. Plaintiff's Exh. # 9 (Plaintiff's
Deposition), at 22-27.
August 15, 2015, Teresa Brady, the Manager of Post Office
Operations for seventy-two post offices including La Marque,
instructed Plaintiff to return to La Marque as a 204B
Supervisor of Customer Service. At the time, Plaintiff was
sixty-six years old. Response, at 19. Defendant states that
Brady returned Plaintiff to the La Marque station as a 204B
supervisor because the station lacked sufficient coverage for
Plaintiff's position. Motion, at 3 (citing record).
Plaintiff's supervisor was Aimee Policano, the Postmaster
at the La Marque station.
and 2015, which was during the five-year period that
Plaintiff was not working as supervisor at the La Marque Post
Office, the supervisor position was filled by Adam Dixon, a
white male who was thirty-five years old in 2015. Response,
at 19-20 (citing record). In 2015, Dixon was transferred away
from the La Marque station. Cheryl Cappa, a white female who
was thirty-nine years old in 2015 and worked as a mail
carrier at the La Marque station, volunteered for training as
a 204B acting supervisor. Policano selected Cappa to fill in
when Policano and Plaintiff were out of the office. When not
serving as acting 204B supervisor, Cappa continued with her
carrier duties. See Response, at 20; Plaintiff's
Exh. # 12 (Policano Deposition), at 99-100.
alleges that, after she returned to the La Marque station in
August 2015, Policano repeatedly changed her work schedule.
Defendant agrees that Plaintiff's schedule was changed
and explains that adjustments were made in October 2015
because medical restrictions prevented Plaintiff from working
more than eight hours; in December 2015 because of staffing
shortages; and sometime after December 2015 because the
office received additional staffing and Policano no longer
needed Plaintiff to work late hours. Defendant maintains that
Policano also changed the schedules of Dixon and Cappa when
they served as acting supervisors. Motion, at 5-6 (citing,
inter alia, documents from EEO investigative file).
Plaintiff disputes Defendant's version of the facts but
provides no record citations in support of her position.
See Response, at 16, 18-19.
also alleges that Policano treated Dixon, Cappa, and others
more favorably than Plaintiff. She claims that Policano
trusted Dixon and Cappa with keys to Policano's office
and with Policano's computer password. See Id.
at 20-22 (citing, inter alia, deposition testimony
of Policano, Dixon, and Cappa). She alleges that Policano
never gave Plaintiff a key “because Postmaster Policano
testified during her deposition that she did not trust
Plaintiff.” Id. at 21 (citing deposition
testimony of Plaintiff and Policano).
alleges that Policano asked her “on several
occasions” in 2015 and 2016 why she did not retire.
Complaint [Doc. # 1], at 20-21, ¶ 34. At deposition,
Plaintiff testified that Policano commented to her “If
you want to be off, you need to retire. You can be off any
day you want to.” Plaintiff's Exh. # 9
(Plaintiff's Deposition), at 47. She also testified that
Policano told her “I hope that when I reach your age, I
don't have to work.” Id. at 77. Plaintiff
also alleges that Dixon, a man younger than Plaintiff, asked
her when she was retiring. Id. at 94. Plaintiff
testified that she contemplated leaving employment because of
“all of this embarrassment and treating me like I'm
nobody.” Id. See Plaintiff's Exh.
# 23 (Plaintiff's Declaration) (undated), at 4,
¶¶ 7-8 (Policano falsely accused Plaintiff of
stealing $80 from a cash drawer and “totally
embarrassed and humiliated” Plaintiff by taking away
job duties and responsibilities).
August 28, 2015, Plaintiff filed an informal complaint with
an EEO counselor. See Defendant's Exh. # 11 (EEO
Investigative File). The counselor interviewed Plaintiff and
Policano, and subsequently issued a notice of Plaintiff's
right to file a formal complaint. On November 30, 2015,
Plaintiff filed her formal EEO complaint alleging
discrimination based on race, color, religion, sex, age, and
disability, in addition to retaliation and harassment.
Id. The EEO's investigation of Plaintiff's
claims was completed on March 8, 2016. On May 26, 2016, the
USPS issued a final agency decision finding no
discrimination. Defendant's Exh. # 14 (Final Agency
filed this suit on August 28, 2016. She brings claims for age
discrimination and hostile work environment. In August 2017,
Plaintiff retired from the Post Office. Response, at 38.
SUMMARY JUDGMENT STANDARD
of the Federal Rules of Civil Procedure mandates the entry of
summary judgment who fails to make a sufficient showing of
the existence of an element essential to the party's
case, and on which that party will bear the burden at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc); see also Baton Rouge Oil
and Chem. Workers Union v. ExxonMobil Corp.,
289 F.3d 373, 375 (5th Cir. 2002). Summary judgment
“should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 322-23;
Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th
summary judgment, the initial burden falls on the movant to
identify areas essential to the non-movant's claim in
which there is an “absence of a genuine issue of
material fact.” Lincoln Gen. Ins. Co. v.
Reyna, 401 F.3d 347, 349 (5th Cir. 2005). The moving
party, however, need not negate the elements of the
non-movant's case. See Boudreaux v. Swift Transp.
Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving party
may meet its burden by pointing out “‘the absence
of evidence supporting the nonmoving party's
case.'” Duffy v. Leading Edge Prods.,
Inc., 44 F.3d 308, 312 (5th Cir. 1995) (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913
(5th Cir. 1992)).
moving party meets its initial burden, the non-movant must go
beyond the pleadings and designate specific facts showing
that there is a genuine issue of material fact for trial.
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d
275, 282 (5th Cir. 2001) (internal citation omitted).
“An issue is material if its resolution could affect
the outcome of the action. A dispute as to a material fact is
genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” DIRECTV
Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006)
(internal citations omitted).
deciding whether a genuine and material fact issue has been
created, the court reviews the facts and inferences to be
drawn from them in the light most favorable to the nonmoving
party. Reaves Brokerage Co. v. Sunbelt Fruit &
Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). A
genuine issue of material fact exists when the evidence is
such that a reasonable jury could return a verdict for the
non-movant. Tamez v. Manthey, 589 F.3d 764, 769 (5th
Cir. 2009) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). The non-movant's burden is not
met by mere reliance on the allegations or denials in the
non-movant's pleadings. S e e Diamond Offshore Co. v.
A&B Builders, Inc., 302 F.3d 531, 545 n.13 (5th Cir.
2002), overruled in part on other grounds by Grand Isle
Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778 (5th
Cir. 2009). Likewise, “conclusory allegations” or
“unsubstantiated assertions” do not meet the
non-movant's burden. Delta & Pine Land Co. v.
Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th
Cir. 2008). Instead, the nonmoving party must present
specific facts which show “the existence of a genuine
issue concerning every essential component of its
case.” Am. Eagle Airlines, Inc. v. Air Line Pilots
Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir. 2003)
(citation and internal quotation marks omitted). In the
absence of any proof, the court will not assume that the
non-movant could or would prove the necessary facts.
Little, 37 F.3d at 1075 (citing Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Court may make no credibility determinations or weigh any
evidence. See Chaney v. Dreyfus Serv. Corp., 595
F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage
Co., 336 F.3d at 412-413). The Court is not required to
accept the nonmovant's conclusory allegations,
speculation, and unsubstantiated assertions which are either
entirely unsupported, or supported by a mere scintilla of
evidence. Id. (citing Reaves Brokerage, 336
F.3d at 413).
cannot preclude summary judgment unless they contain
competent and otherwise admissible evidence. See
Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated”); Love v.
Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir.
2000); Hunter-Reed v. City of Houston, 244 F.Supp.2d
733, 745 (S.D. Tex. 2003). A party's self-serving and
unsupported statement ...