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Jackson v. Brennan

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

November 13, 2019

SANDRA JACKSON, Plaintiff,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE Defendant.

          MEMORANDUM OPINION

          NANCY K. JOHNSON, UNITED STATES MAGISTRATE JUDGE

         Pending before the court[1] is Defendant's Motion for Summary Judgment (Doc. 19). The court has considered the motion, the response, all other relevant filings, and the applicable law. For the reasons set forth below, the court GRANTS Defendant's motion.

         I. Case Background

         Plaintiff filed this lawsuit alleging violations of the Americans with Disabilities Act (“ADA”), [2] the Rehabilitation Act, [3]the Age Discrimination in Employment Act (“ADEA”), [4] Title VII of the Civil Rights Act of 1964 (“Title VII”), and 42 U.S.C. § 1981 (“Section 1981").

         A. Factual Background

         Plaintiff is a Hispanic female who was born in 1960.[5]Plaintiff began working for the United States Postal Service (“USPS”) in 1985 as a City Carrier.[6]

         1. City Carrier Position

         City Carriers are responsible for delivering and collecting mail along prescribed routes.[7] The delivery component of the City Carrier position involves two essential functions - casing mail and delivering mail.[8] Casing mail is the process of manually sorting various pieces of mail into a case in the order of delivery along a prescribed route.[9] Delivering mail involves removing the mail from a case and preparing it for efficient delivery, then actually delivering the mail along a prescribed route.[10] Collecting mail simply involves picking up mail along the prescribed route.[11]

         A City Carrier can be assigned to a mounted or unmounted route.[12] A mounted route is where delivery is made via a postal vehicle and an unmounted route is where delivery is made by foot.[13]Regardless of which type of route is assigned, a City Carrier must be able to: (1) lift up to thirty-five pounds, intermittently, for up to eight hours per day; and (2) kneel, bend, twist, stoop, pull, and grasp for up to eight hours per day.[14] City Carriers assigned to mounted routes must be capable of: (1) “driving a vehicle for approximately six hours, more or less, per workday;” (2) “standing, intermittently, for up to two hours per workday;” and (3) “walking, intermittently, for up to two hours per workday.”[15] City Carriers assigned to unmounted routes must be capable of: (1) “standing, intermittently, for up to eight hours per workday;” and (2) walking, intermittently, for up to eight hours per day.”[16]

         2. Limited Duty Assignments

         The USPS provides limited duty assignments to employees who are injured while on duty.[17] Limited duty assignments “generally consist of tasks that are not being performed by another employee, but that, at the same time, are within the injured employee's medical restrictions.”[18] The USPS's duty to provide limited duty assignments arises from its Employee and Labor Relations Manual.[19]

         3. Plaintiff's Employment

         Upon beginning her employment for the USPS as a City Carrier, Plaintiff drove a postal vehicle to her routes and then delivered mail on foot.[20] Plaintiff originally worked at the Harwin station.[21]After two years, Plaintiff became a permanent employee, gained full employment benefits, and started working at the Annison Jones Station.[22] Eventually, due to dogs on her route, Plaintiff moved to the Astrodome Station, where she continued to work as a City Carrier, and collected, cased, and delivered mail.[23]

         4. Plaintiff's Injuries

         In 1989, Plaintiff's back “popped” while she was casing mail at the Astrodome Station.[24] As a result of her injury, Plaintiff missed six months of work and was permanently prohibited from carrying, collecting, or delivering mail, or driving a postal vehicle.[25] The USPS gave Plaintiff a limited duty assignment that consisted of performing administrative and customer-service related tasks at the Astrodome Station.[26]

         In 2014, Plaintiff slipped and fell on her hip while leaving the Astrodome Station.[27] As a result, Plaintiff was unable to do repetitive work, drive a postal vehicle, or lift over ten pounds.[28]The USPS provided Plaintiff a conforming limited duty assignment.[29]

         5. Conversation with McCoy

         On March 28, 2017, Plaintiff was called into the office of Ms. Maranda McCoy (“McCoy”), the acting manager at the time, for a meeting.[30] Plaintiff claims that during the conversation, McCoy told Plaintiff that she was tired of the other employees complaining about Plaintiff's limited capabilities.[31] According to Plaintiff, an employee named Gloria later admitted that she was the person who complained and apologized to Plaintiff.[32]

         6. The Melcher Station

         Subsequent to the March 28, 2017 meeting, Plaintiff was asked to train a worker at the Melcher Station.[33] However, when Plaintiff arrived at the Melcher Station, she found that the station did not have the machine necessary for the training, and the worker Plaintiff was supposed to train was not there.[34] Plaintiff returned to the Astrodome Station.[35]

         Plaintiff was sent to the Melcher Station a second time to train a worker, but, again, the trainee was not present.[36] On this second visit, Plaintiff was asked to help a customer at the “dutch door, ” but Plaintiff refused and stated that she was at the Melcher Station to train someone, not for the “dutch door, ” and that she could answer the “dutch door” at the Astrodome Station.[37] The area manager, Ms. Courtney McKelvey (“McKelvey”), later asked Plaintiff if there was a problem and told Plaintiff that she should be thankful to have a job.[38]

         7. USPS Station Budgets

         Nationally, the USPS is divided into management areas.[39] “The Southern Area of the [USPS] contains the State of Texas[, ]” which is divided up into multiple individual districts.[40] One of these districts is the Houston District, which contains the Astrodome Station.[41] “The Finance Department of the Houston District provides each reporting office with a weekly budget.”[42] Within each station, there are multiple functional components, which are each budgeted a certain number of work hours per week.[43] The City Delivery function is one of these functional components.[44] Work performed by City Carriers counts toward the City Delivery function's budgeted hours.[45]

         8. Employee Transfers

         In April 2017, there were two City Carriers working limited duty assignments at the Astrodome Station, Plaintiff and Stacy Carter (“Carter”).[46] Although Plaintiff was unable to deliver mail and Carter was limited in his ability to deliver mail, their hours worked counted towards the City Delivery function's budgeted hours for the Astrodome Station.[47] Other employees had to absorb the work that Plaintiff and Carter were unable to complete.[48] As a result, the Astrodome Station exceeded its number of budgeted hours for the City Delivery function in April 2017.[49]

         Also in April 2017, the Melcher Station needed an employee for administrative tasks and was below its budgeted hours for administrative tasks. Accordingly, Plaintiff was given a limited duty assignment at the Melcher Station to perform administrative duties.[50] At the same time, the Houston District Safety Department needed an employee to fill a Driving Instructor position and was under its budgeted hours for that functional component.[51] Carter's medical restrictions did not prevent him from working as a Driving Instructor.[52] Accordingly, Carter was given a limited duty assignment as a Driving Instructor at the Houston District Safety Department.[53] These assignments allowed all three offices to complete necessary tasks while remaining within their budgeted hours.[54]

         On April 22, 2017, Plaintiff began working her limited duty assignment at the Melcher Station.[55] Plaintiff's official duty station remained at the Astrodome Station while she temporarily worked at the Melcher Station.[56] Plaintiff did not lose her seniority when she worked at the Melcher Station.[57] On October 25, 2017, Plaintiff was transferred back to her previous limited duty assignment at the Astrodome Station.[58]

         B. Procedural Background

         Plaintiff filed a formal equal employment opportunity (“EEO”) complaint on July 12, 2017.[59] On January 25, 2018, pursuant to Equal Employment Opportunity Commission regulations, the USPS issued a final agency decision finding that Plaintiff was not discriminated against.[60] Plaintiff filed her original complaint on April 24, 2018.[61] On May 30, 2019, Defendant filed its pending motion for summary judgment.[62] On June 20, 2019, Plaintiff filed a response to Defendant's motion for summary judgment.[63] On June 27, 2019, Defendant filed a reply in support of its motion for summary judgment.[64]

         II. Summary Judgment Standard

         Summary judgment is warranted when the evidence reveals that no genuine dispute exists regarding any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 504 (5th Cir. 2014). A material fact is a fact that is identified by applicable substantive law as critical to the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ameristar Jet Charter, Inc. v. Signal Composites, Inc., 271 F.3d 624, 626 (5th Cir. 2001). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Coastal Agricultural Supply, Inc., 759 F.3d at 504 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. See id. at 505 (quoting Celotex Corp., 477 U.S. at 323). If the movant carries its burden, the nonmovant may not rest on the allegations or denials in the pleading but must respond with evidence showing a genuine factual dispute. See id. The court must accept all of the nonmovant's evidence as true and draw all justifiable inferences in her favor. Coastal Agric. Supply, Inc. v. JP Morgan Chase Bank, N.A., 759 F.3d 498, 505 (5th Cir. 2014)(quoting Anderson, 477 U.S. at 255).

         III. Analysis

         Plaintiff pled the following causes of action against Defendant: (1) disability discrimination in violation of the ADA and Rehabilitation Act; (2) failure to accommodate in violation of the ADA and Rehabilitation Act; (3) retaliation in violation of the Rehabilitation Act and the ADA; (4) age discrimination in violation of the ADEA; (5) retaliation in violation of the ADEA; (6) Title VII race discrimination; (7) Title VII retaliation; (8) Section 1981 race discrimination; and (9) Section 1981 retaliation. Defendant argues that summary judgment is appropriate as to all of Plaintiff's claims.

         A. Preliminary Issues

         The lackluster briefing of Plaintiff and Defendant's incomplete arguments necessitates consideration of multiple preliminary issues before delving into the parties' briefing.

         1. Exclusive Remedies

         Plaintiff brought multiple claims that are not available to her. Firstly, “Title VII is the exclusive judicial remedy for claims of [racial] discrimination in federal employment.” Rowe v. Sullivan, 967 F.2d 186, 189 (5th Cir. 1992)(internal quotation marks omitted)(citing Watkins v. Lujan, 922 F.2d 261, 263 (5th Cir. 1991)). Secondly, the Rehabilitation Act is the exclusive remedy for federal employees claiming disability discrimination. See Flynn v. Distinctive Home Care, Inc., 812 F.3d 422, 425-26 (5th Cir. 2016); Pinkerton v. Spellings, 529 F.3d 513, 515 (5th Cir. 2008).[65]Accordingly, Plaintiff's Section 1981 and ADA claims are improper.

         2. Adverse Employment Action

         The court doubts Plaintiff's ability to show that she suffered an adverse employment action as required by her race and age discrimination claims.[66] In the Fifth Circuit, “[a]dverse employment actions include only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.” McCoy v. City of Shreveport, 492 F.3d 551, 559 (5thCir. 2007).

         In her pleadings, Plaintiff does not specifically state what she believes constituted an adverse employment action. From Plaintiff's pleadings the court gleans that Plaintiff believes her transfer to the Melcher Station and the statements made by McCoy and McKelvey were adverse employment actions.

         Criticism, oral threats, abusive remarks, and false accusations do not constitute adverse employment actions. See Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000). McCoy expressed frustration over fielding complaints about Plaintiff's limited capabilities and McKelvey told Plaintiff she was lucky to have a job. At worst, these statements could be characterized as oral threats or abusive remarks. Accordingly, the statements made by McCoy and McKelvey are not adverse employment actions.

         Regarding Plaintiff's transfer, “an employment transfer may qualify as an adverse employment action if the change makes the job objectively worse.” Pegram v. Honeywell, Inc., 361 F.3d 272, 283 (5th Cir. 2004)(internal quotation marks omitted)(quoting Hunt v. Rapides Healthcare Sys. LLC, 277 F.3d 757, 770 (5th Cir. 2001)). A plaintiff's subjective preference alone is insufficient to show an adverse employment action. See id. Plaintiff claims that her transfer to the Melcher Station required her to perform work that was prohibited by her medical restrictions.[67] Plaintiff does not support this allegation with citation to any evidence.[68] Further, Plaintiff was transferred back to her subjectively preferable location approximately six months after her transfer to the Melcher Station.

         The court questions whether Plaintiff suffered an adverse employment action. Nonetheless, as Defendant failed to make this argument and Plaintiff has not briefed the issue, the court will proceed to the issues actually addressed by the parties. The court will focus its analysis on Plaintiff's transfer because that is the only employment action that could possibly constitute an adverse employment action.

         3. Federal Rule of Civil Procedure (“Rule”) 56

         “ A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . .” Fed.R.Civ.P. 56(c)(1). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3). “The court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.” RSR Corp. v. Int'l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010)(internal citations omitted) (citing Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). Under Rule 56(e):

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that ...

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