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Johnson v. Brennan

United States District Court, S.D. Texas, Houston Division

November 27, 2017




         Plaintiff 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.

         I. BACKGROUND

         Plaintiff is a former employee of Defendant United States Postal Service (“USPS”).[1] 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.

         On 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.

         In 2014 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.

         Plaintiff 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.

         Plaintiff 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).

         Plaintiff 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).

         On 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 Decision).

         Plaintiff filed this suit on August 28, 2016. She brings claims for age discrimination and hostile work environment.[2] In August 2017, Plaintiff retired from the Post Office. Response, at 38.


         Rule 56 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 Cir. 2008).

         For 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)).

         If the 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).

         In 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)).

         The 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).

         Affidavits 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 ...

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