Opinion
CIVIL ACTION NO. 02-3323; SECTION "K" (2)
October 27, 2003
ORDER AND REASONS
Plaintiff, Lisa Guarino, sued her employer, John E. Potter, Postmaster General of the United States Postal Service (the "Postal Service"), under Title VII, as amended by the Pregnancy Discrimination Act (the "Act"). 42 U.S.C. § 2000e(k), 2000e-2(a). This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 12.
Guarino alleges that defendant violated the Act when she was pregnant by making her employment more difficult; refusing her light duty and rejecting the light duty forms she submitted; cutting her work hours and deducting leave hours wrongfully; scrutinizing her work, harassing her and treating her more harshly than other employees; and establishing an agency-wide policy that employees on "limited duty" because of work-related injuries were treated more favorably than employees with similar abilities or inabilities to work who were pregnant or suffered non-work-related absences and who could only get "light duty." Complaint, Record Doc. No. 1. Thus, plaintiff basically asserts three discrimination claims: (1) she suffered an adverse employment action when defendant cut her work hours or refused to let her work, (2) the Postal Service's policy that distinguishes between limited and light duty discriminates against women on the basis of pregnancy, and (3) she was subjected to a hostile work environment.
Defendant raises affirmative defenses that plaintiff failed to exhaust her administrative remedies on a timely basis and that the court lacks subject matter jurisdiction over her untimely claims. Defendant also denies that any of the Postal Service's policies or actions were discriminatory or violated the Act.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion to dismiss for lack of subject matter jurisdiction is DENIED. IT IS FURTHER ORDERED that plaintiffs motion for summary judgment is DENIED. IT IS FURTHER ORDERED that defendant's motion for summary judgment is GRANTED.
I. PROCEDURAL STATUS
During a preliminary conference with the court, the parties stipulated that the case would be submitted on cross-motions for summary judgment, in lieu of trial. That stipulation was memorialized in the court's order entered pursuant to Fed.R.Civ.P. 16. Record Doc. No. 11. The administrative record was filed into the court's record along with another stipulation of the parties that it comprised the record upon which the parties would base their respective cross-motions for summary judgment in accordance with the court's prior order. Record Doc. No. 13.
Defendant filed a timely motion to dismiss and/or for summary judgment, Record Doc. No. 15. Defendant argues that some of plaintiff s claims, which allegedly were not administratively exhausted on a timely basis, should be dismissed for lack of subject matter jurisdiction and/or for failure to state a claim on which relief can be granted. As to plaintiffs timely exhausted claims, defendant argues that Guarino cannot establish a prima facie case of pregnancy discrimination on some of those claims because she suffered no adverse employment action and that these claims should be dismissed for failure to state a claim.
Defendant further contends that he is entitled to summary judgment on plaintiffs timely claims. He argues that other Postal Service employees who received "light duty" assignments and were thus admittedly treated differently from plaintiff were not similarly situated to her. Therefore, defendant contends, plaintiff cannot make out a prima facie case that the policy distinguishing between light and limited duty was discriminatory. Alternatively, if Guarino can establish a prima facie case, defendant asserts that the Postal Service has proffered legitimate, nondiscriminatory reasons for its actions and that plaintiffs evidence fails to create a material fact issue that those reasons were pretextual or that defendant's actions rose to the level of a hostile work environment.
Plaintiff filed a timely motion for summary judgment solely on the issue whether the Postal Service's policy of granting "limited duty" to employees who had been injured on the job, while only providing discretionary "light duty" for pregnant employees with similar medical conditions, violated the Act. Guarino argues that the policy discriminates against and adversely affects pregnant women. Record Doc. No. 16.
Each party filed a timely memorandum in opposition to the other party's motion. Record Doc. Nos. 17, 18. Defendant responds to plaintiffs motion that she has waived all of her theories of recovery except that the Postal Service's limited/light duty policy violates the Act. Defendant asserts that Guarino's arguments on that theory rely on cases from other circuits that are foreclosed by binding Fifth Circuit law.
Plaintiff responds to defendant's motion that she timely exhausted her administrative remedies either because the Postal Service failed to post appropriate notices about the EEO process at her location and the time limits were equitably tolled or because the actions complained of were a continuing violation. Alternatively, Guarino argues that defendant waived its timeliness argument by failing to raise it at the administrative hearing, Guarino contends that her supervisor's refusal to allow her to work, refusal to give her light duty and deduction of leave hours were adverse personnel actions, and that the Postal Service's policy discriminated against pregnant women on its face by treating limited duty personnel differently than pregnant employees who requested light duty, which also resulted in an adverse personnel action by reducing the hours she worked. Finally, she argues that the court can infer a pretext for discrimination from defendant's actions, despite his proffered nondiscriminatory reasons.
In her memorandum in support of her motion for summary judgment, Guarino also states that she has reconsidered her stipulation to try the entire case by cross-motions for summary judgment. She contends that her harassment claim involves material issues of disputed fact. She states that she will not file a summary judgment motion on that claim because it would be fruitless. Record Doc. No. 16 at p. 2 n.l.
Rule 16 of the Federal Rules of Civil Procedure encourages stipulations, The parties are bound by stipulations into which they have voluntarily entered and the court is bound to enforce such stipulations,Mobil Exploration Producing U.S., Inc. v. National Labor Relations Bd., 200 F.3d 230.234 (5th Cir 1999): In re El Paso Refinery. LP. 171 F.3d 249, 255 (5th Cir. 1999); Quest Medical. Inc. v. Appril 90 F.3d 1080, 1087 (5th Cir. 1996), unless manifest injustice would result from enforcement. Id.
Guarino may not unilaterally renounce her stipulation. Morgan v. Sun Life, 229 F.3d 1153, 2000 WL 1182717, at *2 (6th Cir. Aug. 16, 2000) (unpubl. opin.); Jackson v. Louisiana, 980 F.2d 1009, 1011 n. 7 (5th Cir. 1993). Defendant has not consented to plaintiffs attempted withdrawal of the stipulation, Record Doc. No. 17, at p. 2 n.l, and plaintiff has not moved for relief from the stipulation.
Having examined the record and applied the standards for summary judgment to the evidence, it appears that there are no genuine issues of material fact in dispute as to plaintiffs harassment/hostile environment claim. Rather, Guarino disputes only the inferences to be reasonably drawn from the undisputed facts. As discussed below, the applicable summary judgment legal standard requires that I consider all evidence in the light most favorable to the non-moving party. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698.712-13 (5th Cir. 1994). Accordingly, I find that no manifest injustice will occur from enforcing the parties' stipulation to try this case on cross-motions for summary judgment and the administrative record in lieu of a trial.
II. FACTUAL BACKGROUND
The following facts are considered undisputed for purposes of the pending motions for summary judgment. Guarino had been employed by the Postal Service since 1985 and had been employed as a part-time flexible distribution clerk at the post office in Bogalusa, Louisiana since June 1994. After having a miscarriage in 1994, she learned in January 1995 that she was pregnant again.
Part-time flexible employees are defined by the Postal Service's Employee and Labor Manual as "career hourly rate employees available to work flexible hours as assigned by the Postal Service during the course of a service week." Part-time flexible employees are not guaranteed any set schedule or number of hours, other than a minimum of two hours of work per week. Part-time flexible employees may apply for light duty. No employee who applies for light duty is guaranteed any number of hours of work per day or per week. Record Doc. No. 15, Defendant's List of Undisputed Material Facts, ¶¶ 3-5 (citing Postal Service's Employee and Labor Manual; Tr. at 40, 65-67).
"Tr." refers to the transcript of the hearing conducted by an Administrative Law Judge (" ALJ").
Plaintiff is a union member subject to a collective bargaining agreement between the Postal Service and the American Postal Workers' Union. The collective bargaining agreement provides that reassignment of any employee to a temporary or permanent light duty assignment shall not be made to the detriment of any full-time regular employee on a scheduled assignment, nor shall reassignment give a reassigned part-time flexible employee preference over other part-time flexible employees.Id. ¶ 7 (citing Admin. Rec. at 132).
" Admin. Rec." refers to the consecutively numbered pages of the EEOC investigative file.
Guarino's physician placed restrictions on the work she could perform during her 1995 pregnancy. Plaintiff orally told Bogalusa Postmaster Harvey Shoemake that she was pregnant and had medical restrictions, and she requested a light duty form from him around January 17, 1995. Shoemake told her he did not have any forms. She obtained one from another post office, had it completed by her doctor and submitted it to Shoemake on January 30, 1995. Admin. Rec. at 71; Tr. at 138-40, 161-62; Record Doc. No. 16, Plaintiffs Statement of Uncontested Material Facts, ¶ 4; Record Doc. No. 15, Defendant's List of Undisputed Material Facts, ¶ 9.
Shoemake then advised plaintiff that she had used the wrong form and gave her the correct form. Tr. at 17-18, 144; Record Doc. No. 16, Plaintiffs Statement of Uncontested Material Facts, ¶ 5; Record Doc. No. 15, Defendant's List of Undisputed Material Facts, ¶ 10. He would not let her work until she had submitted the correct form. Tr, at 145.
When plaintiff submitted the second completed form, Shoemake approved her light duty request on February 17, 1995. At Shoemake's instructions, Guarino did not work between January 30 and February 17, 1995. Tr.at 145. According to the approved request form, Guarino was medically restricted to lifting no more than 15 pounds continuously, standing for no more than 2 hours per day intermittently and reaching above her shoulder intermittently for up to 8 hours. Admin. Rec. at 72.
Guarino renewed her request for light duty in March 1995. According to the form completed by her doctor, she could then carry or lift 15 pounds and stand or walk for only one hour per day and she could not climb, kneel, bend, stoop, push or pull. Shoemake approved this light duty request on March 7, 1995. Admin. Rec. at 73.
Plaintiff was given a light duty assignment of driving a Postal Service vehicle to deliver express mail on Sundays. Tr. at 23. When she reapplied for light duty in April 1995, her doctor continued the same restrictions as in March but additionally restricted her from driving a postal vehicle. Admin. Rec. at 74. Subsequent light duty forms were submitted that contained the same restrictions as the April form, but were not signed by Shoemake. Admin. Rec. at 76, 79-81.
Guarino contacted an attorney, Elizabeth E. Alien. On May 8, 1995, Alien sent a letter to Shoemake, stating that plaintiff had consulted her "about discriminatory labor practices against her because of her pregnancy" and requesting that Shoemake reinstate Guarino to her "normal hours." Admin. Rec. at 77. Plaintiff never complained to her immediate supervisor, Robert Terrell, about Shoemake harassing her. Tr. at 228.
From January 1 to May 15, 1995, plaintiff was scheduled to work on 96 days. She was absent on 41 of those days. Admin. Rec. at 82-103, 108.
Shoemake informed Guarino in a letter dated May 15, 1995 that her light duty assignment was rescinded because of her "numerous absences" over the last three weeks and until her condition improved enough that she could report to work as scheduled. Admin. Rec. at 78; Tr. at 38, 41-46. The rescission of light duty resulted in plaintiffs absence from work from May 15 to May 23, 1995. Upon receiving assurances from Guarino's supervisor and her union steward that she would come to work as scheduled, Shoemake reinstated her light duty assignment. Tr. at 46-47. Subsequent light duty reapplication forms were submitted to, but not signed by, Shoemake. However, plaintiff continued to be scheduled to work light duty until she stopped working because of medical problems on August 14, 1995. Tr. at 48-49, 150, 158, 207; Admin. Rec. at 103.
Plaintiff was assigned work within her medical restrictions when such work was available. She was sent home when there was no more available work within her limitations. The Postal Service would not take work away from a full-time employee who was already performing that work to provide Guarino with work within her restrictions, nor would the Postal Service order other employees who were working at the same time to stop what they were doing to help her so that she could have more hours. Tr. at 40, 63-65, 97, 223-25, 228, 245-46, 254.
From January through July 1995, plaintiff was scheduled to work, on average, five days per week. On occasion, she was scheduled to work six days per week and on other occasions, she was scheduled to work three days per week. Admin. Rec. at 82-103, 108.
Employees were normally paid for sick leave only when they requested such leave. Guarino was paid for 30 hours of sick leave that she did not request during the pay period of January 7 through January 20, 1995, when Shoemake would not let her work until she had submitted a light duty request form. Tr. at 161-66. Although she complained to her shop steward that she had not requested any sick leave, she did not make any further efforts, such as contacting her supervisor or the payroll department, to have the error corrected. Tr. at 196-98, 201, 223. She was paid for 22 hours of sick leave that she actually took during the next pay period, again while Shoemake would not permit her to work until he received her medical restrictions. Tr. at 168, 198-99.
The Postal Service offers "limited duty" to full-time employees who are injured on the job. The Postal Service offers "light duty" to full-time employees who are injured off the job and to part-time flexible employees who are injured, sick or pregnant. Tr. at 15-16, 24-26, 33, 35-36, 70-74, 244.
On July 5, 1995, Guarino contacted an EEO counselor and initiated an informal complaint against Shoemake, alleging pregnancy discrimination based on incidents that had occurred between January and July 5, 1995. Admin. Rec. at 174, 177, 180-83, 191. Plaintiff filed a formal complaint on September 25, 1995 and, after years of administrative denials, appeals and reversals, eventually had a hearing before an EEOC ALJ on June 17, 2002. On July 18, 2002, the ALJ found that plaintiff had not suffered any pregnancy discrimination.
III. ANALYSIS
A. Subject Matter Jurisdiction
Defendant argues that some of plaintiffs discrimination claims should be dismissed because this court lacks subject matter jurisdiction and/or for failure to state a claim because, defendant asserts, plaintiff did not timely bring those claims before the EEOC.
The standard for review of a motion to dismiss for lack of subject matter jurisdiction is as follows.
Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a party to challenge the subject matter jurisdiction of the district court to hear a case. Lack of subject matter jurisdiction may be found in any one of three instances, through: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.
There are two ways to use a Rule 12(b)(1) motion to attack a complaint or cross-claim: a "facial attack" and a "factual attack." A facial attack requires the court merely to decide if the plaintiff has correctly alleged a basis for subject matter jurisdiction. A facial attack is valid if from the face of the pleadings, the court can determine it lacks subject matter jurisdiction. For the purposes of the motion, the allegations in the complaint are taken as true.
By contrast, if the defendant had challenged the facts that-formed the basis for the plaintiffs claim of subject matter jurisdiction, the attack would be factual and the court would therefore treat the motion differently. A factual attack challenges the existence of subject matter jurisdiction by looking beyond the pleadings. In reviewing a factual attack the court may consider matters outside the pleadings, such as testimony and affidavits. . . . The plaintiff constantly bears the burden of proof that jurisdiction does in fact exist. . . .
When a Rule 12(b)(1) motion is filed with a Rule 12(b)(6) motion, the court should consider the jurisdictional attack before addressing the attack on the merits.Rodrieuez v. Texas Comm'n on the Arts, 992 F. Supp. 876, 878-79 (N.D. Tex. 1998) (quotations omitted) (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996); Saraw P'ship v. United States, 67 F.3d 567, 569 (5th Cir. 1995); Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980); Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977); 1995 Venture I. Inc. v. Orange County, 947 F. Supp. 271, 276 n. 7 (E.D. Tex. 1996); McDaniel v. United States, 899 F. Supp. 305, 307 (E.D. Tex. 1995), affd. 102 F.3d 551 (5th Cir. 1996)), affd, 199 F.3d 279 (5th Cir. 2000): accord Den Norske Stats Olieselskap As v. HeereMac Vof. 241 F.3d 420, 424 (5th Cir. 2001); Barrera-Montenegro. 74 F.3d at 659. In the instant case, defendant brings a factual attack on the court's subject matter jurisdiction based on the evidence in the administrative record. I find, as explained below, that the court has subject matter jurisdiction.
In addition, defendant argues that plaintiffs allegedly time-barred claims should be dismissed under Fed.R.Civ.P. 12(b)(6). Because defendant's arguments in this motion rely on evidence outside the pleadings, which converts it to a summary judgment motion, Fed.R.Civ.P. 12(b), and because defendant brings such a motion in the alternative, I need not address the motion to dismiss under Rule 12(b)(6).
EEOC regulations establish a 45-day deadline within which a federal employee must make an informal complaint to an EEO Counselor.
(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.29C.F.R. § 1614.105(a)(1). Guarino made her first contact with the EEO Counselor on July 5, 1995, when she complained of specific incidents from the date when she first requested light duty in January 1995 through Shoemake's May 15, 1995 letter rescinding her light duty status, and of harassment from May 15 through July 5, 1995. Admin. Rec. at 174, 177, 180-83, 191. This contact, which was made 5 7 days after plaintiffs attorney complained to Shoemake of pregnancy discrimination on May 8, 1995 and 51 days after Shoemake's May 15, 1995 letter, was untimely on its face.
The Postal Service argues in this case, as it has in other cases before this court, that Guarino's failure to exhaust her administrative remedies deprives the court of subject matter jurisdiction over her claims. Defendant contends that sovereign immunity is jurisdictional in nature, and that Title VII, as a limited waiver of that immunity, must be strictly construed. I remain unconvinced that the time limits for administrative exhaustion are jurisdictional.
It is clear in the context of suits against private employers that an administrative time limit is not jurisdictional in nature but is similar to a statute of limitations and may be modified through equitable tolling. Zipes v. Trans World Airlines. Inc., 455 U.S. 385, 398 (1982);Hood v. Sears Roebuck Co., 168 F.3d 231, 232 (5th Cir. 1999);Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991),abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The Supreme Court stated in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 94-95 (1990), that the equitable tolling rule applies "to suits against the Government, in the same way that it is applicable" to Title VII suits against private employers (emphasis added).
It is well settled that a federal employee may sue her employer under Title VII only after she has exhausted her administrative remedies. Brown v. General Servs. Admin., 425 U.S. 820, 835(1976); Fitzeerald v. United States Dep't of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997);Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992). The Fifth Circuit has often stated that a federal employee's pursuit of appropriate administrative procedures is a jurisdictional prerequisite to filing a civil action. See, e.g., Sanders v. Reno, 186 F.3d 684, 685 (5th Cir. 1999); Randel v. United States Dep't of Navy, 157 F.3d 392, 395 (5th Cir. 1998); Barnes v. Levitt 118 F.3d 404, 409 (5th Cir. 1997); Dollis v. Rubin, 77 F.3d 777, 781 (5th Cir. 1995).
"Federal employees must seek informal counseling before they file an EEOC complaint. If the employee fails to do so [within 45 days of the alleged discriminatory act], his claim is barred. The employee must establish waiver, estoppel, or equitable tolling to circumvent this requirement." Teemac v. Henderson, 298 F.3d 452, 454, 457 (5th Cir. 2002) (citing 29 C.F.R. § 1614.105(a); Pacheco, 966 F.2d at 905).
The record establishes that Guarino suspected she had been the subject of prior discriminatory acts no later than May 8, 1995, when her attorney wrote to Shoemake. Admin. Rec. at 77. Guarino testified that she consulted her attorney, Alien, and asked Alien to write the letter after Shoemake had cut her hours because she was pregnant. Tr. at 151. The 45-day limitations period for contacting an EEO Counselor concerning all prior acts thus began to run no later than May 8, 1995, when plaintiff knew that some discriminatory acts had occurred. Ramirez v. City of San Antonio, 312 F.3d 178, 181 (5th Cir. 2002). Guarino's first contact with the EEO Counselor was not until 57 days later, which was untimely. As to the allegedly discriminatory action taken by Shoemake's letter dated May 15, 1995, the limitations period began to run the next day and expired 45 days later on June 29, 1995. Plaintiffs EEOC contact on July 5, 1995 therefore was untimely as to that action. Her complaint to the EEOC was timely only as to allegedly discriminatory acts that occurred within 45 days before July 5, 1995, i.e., after May 21, 1995. However, plaintiff asserts either that equitable tolling excuses her failure to complain earlier or that the violations were continuing and created a hostile work environment, such that her initial contact was timely.
Despite the Fifth Circuit's pronouncements that the statute of limitations is jurisdictional in the cases cited above (none of which involved claims of equitable tolling), it remains unclear whether, when an employee asserts equitable tolling, the time limit for filing an informal EEO complaint is jurisdictional or is merely a statute of limitations in the nature of an affirmative defense. The confusion in the case law arises from the Supreme Court's decision in Irwin. Although theIrwin Court squarely held that equitable tolling applies to the time limitation for filing Title VII suits against the United States, the Court did not expressly state whether the limitations period was jurisdictional. Irwin, 498 U.S. at 95-96; Perez v. United States, 167 F.3d 913, 915 (5th Or. 1999); Pacheco, 966 F.2d at 907 n. 3.
Although the Supreme Court affirmed the judgment of the Fifth Circuit that plaintiff Irwin's Title VII claims were properly dismissed, it arguably did so on different grounds than the lower courts had. The district court had held that it lacked subject matter jurisdiction because the statute of limitations was "an absolute jurisdictional limit" not subject to equitable tolling, and the Fifth Circuit affirmed based on its established precedents. Irwin, 498 U.S. at 92. The Supreme Court granted certiorari to resolve a conflict among the circuit courts "over whether late-filed claims are jurisdictionally barred." Id.
The Court never expressly answered that question. However, it held that the limitations period for filing a Title VII action could be equitably tolled without expanding the congressional waiver of sovereign immunity.Id. at 95-96. The Court then found that the Fifth Circuit's judgment should be affirmed because plaintiff had failed to establish his entitlement to equitable relief. Id, at 96. Thus, any contention that the Supreme Court affirmed the dismissal in Irwin on subject matter jurisdiction grounds has little persuasive force.
In interpreting Irwin and applying it to claims of equitable toiling, the Fifth Circuit has stated that various federal limitations periods are not jurisdictional bars and should be treated like any other statute of limitations, subject to equitable tolling. See Lambert v. United States, 44 F.3d 296, 298 (5th Cir. 1995) ("The Irwin Court thus overturned the established precedent of many circuits that equitable tolling is not available against the government because the statutory time limits that apply to suits against the government are jurisdictional.") (emphasis added); Ynclan v. Department of the Air Force, 943 F.2d 1388, 1391, 1393 (5th Cir. 1991) (same).
Since Irwin was decided, the federal courts have been split over whether various federal limitations statutes are jurisdictional in nature. Calhoun County v. United States, 132 F.3d 1100, 1105 (5th Cir. 1998) (citing, on the jurisdictional side, Richmond. Fredericksburg Potomac R.R. Co. v. United States, 945 F.2d 765, 769 (4th Cir. 1991); Vintilla v. United States, 931 F.2d 1444 (11th Cir. 1991); Dillard v. Runvon, 928 F. Supp. 1316, 1323-24 (S.D.N.Y. 1996), affd. 108 F.3d 1369 (2d Cir. 1997); and citing, on the non-jurisdictional side, Fadem v. United States, 52 F.3d 202 (9th Cir. 1995), vacated, 520 U.S. 1101 (1997), orig. opinion reinstated, 113 F.3d 167 (9th Cir. 1997); Krueeer v. Saiki. 19 F.3d 1285.1286 (8th Cir. 1994): Schmidt v. United States. 933 F.2d 639, 640 (8th Cir. 1991)); see also Johnson v. Runvon, 47 F.3d 911, 917 (7th Cir. 1995) (45-day limit to initiate contact with Postal Service EEO counselor "is construed as a statute of limitations and not as a jurisdictional prerequisite") (citing Rennie v. Garrett, 896 F.2d 1057, 1062-63 (7th Cir. 1990)).
In 1998, the Fifth Circuit revisited Irwin's holding and implied that statutes of limitation, post-Irwin, are still jurisdictional.
When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court's jurisdiction. Under this line of cases, a statute of limitations constitutes a condition on the waiver of sovereign immunity, and thus, defines jurisdiction. The Supreme Court has not overruled these decisions, but did, in Irwin, . . . relax the underlying maxim that courts must strictly construe waivers of sovereign immunity in favor of the government.Calhoun County, 132 F.3d at 1104 n.l (quotation omitted).
In 1999, in discussing Irwin's effect, the Fifth Circuit held that
whether the limitations provisions of the FTCA [Federal Tort Claims Act] are jurisdictional-in which case equitable tolling could not apply — remains an open question in this circuit. . . . Irwin, a Title VII case, undid the old rule that equitable tolling was never available against the government, and thus placed the jurisdictional nature of the FTCA statute of limitations into doubt.Perez, 167 F.3d at 915-16 (emphasis added). If, as the Fifth Circuit has said, equitable tolling cannot apply to jurisdictional statutes of limitation, then the Title VII limitations period for federal employees cannot be jurisdictional because Irwin held that it can be equitably tolled. Based on this reasoning, the Fifth Circuit held in Perez that the FTCA statute of limitations was not jurisdictional and could be equitably tolled. Id. at 916-17; see also Clymore v. United States, 217 F.3d 370, 374 (5th Cir. 2000) (six-year statute of limitations for suits against the United States, 28 U.S.C. § 2401 (a), can be equitably tolled) (citing Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 770 (9th Cir. 1997) ("earlier statements that statutes of limitations are jurisdictional in nature have no continuing validity after the Court's decision in Irwin": Section 2401(a) may be waived because it is not jurisdictional) (quotation omitted)).
Defendant in the instant case has cited no cases decided since Perez that would undermine this court's reasoning that the regulations which require federal employees to take certain administrative steps within very short deadlines are not jurisdictional.
However, this court need not decide whether Guarino's failure to contact the EEO Counselor within 45 days after either the May 8 or the May 15, 1995 letters implicates the court's subject matter jurisdiction. It is clear that, regardless whether the time limit is jurisdictional or merely a statute of limitations, it can be equitably tolled. Irwin, 498 U.S. at 95-96; Pacheco, 966 F.2d at 907 n. 3. The court considers plaintiffs equitable tolling argument below.
B. Summary Judgment Standards
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427.431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett. 477 U.S. 317.323 (1986)),
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted,"Thomas v. Barton Lodge II Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex, 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986)).
A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248; Hamilton v. Segue Software Inc., 232 F.3d 473, 477 (5th Cir. 2000). An issue is "genuine" if the evidence is sufficient for a rational trier of fact to return a verdict for the nonmoving party. Id.
The court must consider all evidence in the light most favorable to the nonmoving party. National Ass'n of Gov't Employees, 40 F.3d at 712-13. "Conclusory allegations unsupported by specific facts, however, will not prevent the award of summary judgment. . . ." Id. at 713.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards, 148 F.3d at 432: accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en bane). "We do not, however, in the absence of any proof, assume that the nonrnoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
C. Plaintiffs Claims Based on Acts That Occurred On or Before May 21, 1995 Are Time-Barred
Defendant argues that plaintiffs claims concerning discriminatory acts that occurred before May 8, 1995 are time-barred because Guarino did not contact the EEO Counselor concerning those acts within the 45-day limitations period established by 29 C.F.R. § 1614.105(a)(1). The undisputed facts establish that Guarino believed she had been the subject of discrimination no later than May 8, 1995, when her attorney wrote to Shoemake complaining of pregnancy discrimination. Admin. Rec. at 77. The time period for contacting an EEO Counselor concerning any acts that occurred before May 8, 1995 began to run no later than that date, when plaintiff knew that some discriminatory acts had occurred. Ramirez, 312 F.3d at 181. Guarino did not contact the EEO Counselor until July 5, 1995, 57 days later. As to the allegedly discriminatory action taken by Shoemake's letter dated May 15, 1995, the limitations period expired 45 days later on June 29, 1995. Plaintiffs complaint was untimely as to all of these actions.
Plaintiff argues that equitable tolling excuses her failure to complain earlier, which would make her initial contact timely as to all discriminatory actions that occurred between January 17 and May 21, 1995 (45 days before July 5, 1995). Once defendant has shown that Guarino's claims are time-barred on their face, she bears the burden to establish equitable tolling of the time limit for contacting an EEO Counselor.Teemac, 298 F.3d at 454, 457; Hood, 168 F.3d at 232. In the Fifth Circuit, equitable tolling "is permissible only in rare and exceptional circumstances." Teemac, 298 F.3d at 457 (quotation and citation omitted). "Courts grant requests for equitable tolling most frequently where the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his rights." Id. (quotation omitted). "[The courts] have generally been much less forgiving . . . where the claimant failed to exercise due diligence in preserving his legal rights." Irwin, 498 U.S. at 96.
Plaintiff alleges in her memorandum in opposition to defendant's motion for summary judgment that the Postal Service failed to post appropriate notices concerning the requirement to contact an EEO Counselor within 45 days of any discriminatory act. However, she cites no evidence to support this conclusory allegation. "[T]he burden is on [plaintiff] to demonstrate a factual basis to toll the limitations period." Ramirez, 312 F.3d at 184 (internal quotations, brackets and citation omitted) (emphasis added). Furthermore, Guarino cites no evidence to demonstrate when and how she supposedly became aware of the requirement, which would bolster her contention that she was previously unaware of the process.
On the other hand, defendant has provided uncontroverted evidence that, during the relevant time period, posters and notices concerning the regulatory requirements were prominently posted in the Bogalusa post office where employees would see them. Admin. Rec. at 55-57, 120-25. Such notification is sufficient to give plaintiff notice of her obligations under the EEO process. Teemac, 298 F.3d at 457-58; Clark v. Runvon, 116 F.3d 275, 277-78 (7th Cir. 1997). It is inconceivable that a postal worker who had worked for the Postal Service for 10 years was not aware of the EEO complaint procedure. "Once the [Postal Service] notified its employees about the informal counseling requirement, [plaintiff] had the obligation to investigate terms and conditions" of the process. Teemac, 298 F.3d at 458. If Guarino was capable of contacting an attorney in early May 1995, she was equally capable of contacting an EEO Counselor within 45 days of the allegedly discriminatory acts.
Accordingly, plaintiffs equitable tolling argument fails and her claims concerning incidents that occurred on or before May 21, 1995 (45 days before she first contacted an EEO Counselor on July 5, 1995) are time-barred and must be dismissed, unless she can prove that the incidents of which she complains were continuing violations that constituted a hostile work environment. That contention is addressed below.
D. The Title VII and Pregnancy Act Standards
The Pregnancy Act amended Title VII, which prohibits discrimination on the basis of sex, to provide that women affected by pregnancy, childbirth or related medical conditions "shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k). A discrimination claim under the Act is analyzed like any other Title VII claim under the familiar McDonnell Douglas evidentiary framework. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (Pregnancy Act case) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (Title VTI race discrimination case); Urbano v. Continental Airlines, 138 F.3d 204, 206 (5th Cir. 1998) (Pregnancy Act case)).
Thus, to establish a prima facie case of discrimination as to any action that constituted an adverse personnel action, Guarino must show that (1) she was a member of a protected class (pregnant women), (2) she was qualified for the position, (3) she suffered an adverse employment action and (4) others similarly situated were more favorably treated. Urbano, 138 F.3d at 206.
If plaintiff makes out a prima facie case of discrimination, a presumption of discrimination arises.
The burden then shifts to the employer to produce a legitimate, nondiscriminatory reason for her termination. This causes the presumption of discrimination to dissipate. The plaintiff then bears the ultimate burden of persuading the trier of fact by a preponderance of the evidence that the employer intentionally discriminated against her because of her protected status.
To carry this burden, the plaintiff must produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination. The plaintiff must rebut each nondiscriminatory reason articulated by the employer. A plaintiff may establish pretext either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or "unworthy of credence." An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action.Laxton. 333 F.3d at 578 (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (2000)) (additional citations omitted).
Plaintiff also makes a claim that Shoemake's harassment, based on her pregnancy, created a hostile work environment. "[A] plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57. 66 (1986). "For sexual harassment to be actionable, it must be sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" Id. at 67. "Incidental, occasional or merely playful sexual utterances will rarely poison the employee's working conditions to the extent demanded for liability." Indest v. Freeman Decorating. Inc., 164 F.3d 258, 264 (5th Cir. 1999).
The factfinder should consider four factors in deciding whether harassment objectively altered an employee's terms or conditions of employment: (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's job performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23(1993).
These standards "will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing. We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment. . . . The plaintiff bears the burden of showing that the harassment was severe or pervasive." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quotation omitted) (emphasis added).
The Fifth Circuit has explained that a "hostile environment claim embodies a series of criteria that express extremely insensitive conduct against women, conduct so egregious as to alter the conditions of employment and destroy their equal opportunity in the workplace. Any lesser standard of liability, couched in terms of conduct that sporadically wounds or offends but does not hinder a female employee's performance, would not serve the goal of equality." DeAneelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593 (5th Cir. 1995) (emphasis added).
E. Plaintiff Fails to Establish a Prima Facie Case of Discrimination Based on Adverse Personnel Actions
Federal employees have a right under Title VII to be free from discriminatory, adverse "personnel actions." 42 U.S.C. § 2000e-16. The Fifth Circuit in Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995), held that the term adverse "personnel actions" refers only to "ultimate employment decisions." Subsequent Fifth Circuit cases have cited Dollis and used the interchangeable terminology of "adverse employment actions," which was established by the Supreme Court inMcDonnell Douglas for claims brought by private individuals.
Thus, to establish a prima facie case of discrimination, Guarino must show that (1) she was a member of a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment actionand (4) others similarly situated were more favorably treated. Urbano, 138 F.3d at 206. If she cannot produce evidence to create a genuine issue of material fact as to any one of those prongs, she cannot establish a prima facie case and the court must enter summary judgment in defendant's favor on those claims. Defendant argues that plaintiff cannot meet the third and fourth prongs of this standard.
1. Some Actions Were Not Adverse Employment Actions
Plaintiffs allegations that Shoemake made her employment more difficult, rejected the light duty forms she submitted, watched everything she did, refused to speak to her and treated her more harshly than other employees do not allege adverse employment action. The Fifth Circuit has explained the adverse employment action prong as follows:
Title VII was only designed to address "ultimate employment decisions, not to address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." "`Ultimate employment decisions' include acts `such as hiring, granting leave, discharging, promoting, and compensating.'
. . .
Thus, a [discrimination] claim cannot be based solely on a defendant's act of "limit[ing]lf an employee "in any way which would deprive [that employee] of employment opportunities or otherwise adversely affect his status as an employee." 42 U.S.C. § 2000e-2(a)(2). We have read [Title VII] "to exclude such vague harms, and to include only ultimate employment decisions."Burger v. Central Apt. Mgmt., Inc., 168 F.3d 875, 878-79 (5th Cir. 1999) (footnote omitted) (quoting Mattern v. Eastman Kodak Co., 104 F.3d 702, 707, 709 (5th Cir. 1997) (quoting Dollis v, Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995))); accord Ackel v. National Communications. Inc., 339 F.3d 376, 385 (5th Cir. 2003): see also Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999) ("employment actions are not adverse where pay, benefits, and level of responsibility remain the same").
It is well established that "[n]ot every negative employment decision or event is an adverse employment action that can give rise to a discrimination or retaliation cause of action. . . . " Southard v. Texas Bd. of Grim. Justice, 114 F.3d 539, 555 (5th Cir. 1997). The Fifth Circuit has held that "the verbal threat of being fired, the reprimand . . . and being placed on `final warning,' do not constitute `adverse employment actions' because of their lack of consequence." Mattern, 104 F.3d at 707. The court also held that "[h]ostility from fellow employees . . . and resulting anxiety, without more, do not constitute ultimate employment decisions." Id.; see also Green v. Administrators of the TulaneEduc.Fund, 284 F.3d 642, 657-58 (5th Cir. 2002) ("changing locks, restructuring office procedures, clarifying job duties, and taking disciplinary actions in the form of reprimands" are not ultimate employment decisions).
Despite Shoemake's failure to sign some of her light duty request forms, Guarino remained on light duty status (other than during the eight days when Shoemake rescinded the status because of her excessive absenteeism, which is discussed below) until she stopped working. She testified that, although she did not like Shoemake's scrutiny and refusal to speak to her, it did not affect her ability to work and she continued to do her job despite his conduct. Tr. at 182. These actions are not adverse employment actions.
As to plaintiffs claim that the Postal Service deducted leave hours wrongfully because of her pregnancy, this relates to the 30 hours of sick leave for which Guarino was paid during the period of January 7 through January 20, 1995. Tr. at 161-66. Guarino had wanted to save her sick leave so that she could use it during her maternity leave later in the year. Tr. at 166. When she saw the paid sick leave notation on her pay stub, she complained to her union shop steward that she had not requested any sick leave. However, she did not make any further efforts, such as contacting management or the payroll department, to have the error corrected. Tr. at 196-98, 201. If the error had been corrected and the hours restored, she would have been required to reimburse the Postal Service for the wages she had erroneously received. She then would have been able to use the restored hours and be paid for them during her maternity leave. Guarino suffered no loss because she would have used and been paid for the same number of hours, regardless of when she took the sick leave.
Thus, Guarino's complaints that Shoemake made her employment more difficult by scrutinizing her, refusing to speak to her, treating her more harshly than other employees, refusing to sign some of her forms and erroneously deducting sick leave hours fail to establish a prima facie case of discrimination because she suffered no adverse employment action.
2. Although Reductions in Work Hours Are Adverse Employment Actions, Plaintiff Has Failed to Show that Defendant's Reasons Were a Pretext for Discrimination
As to the alleged deductions in her work hours, Guarino arguably suffered an adverse employment action. She testified that she had regularly worked about 60 hours per two-week pay period before January 1995 and that, after she went on light duty, her actual hours worked ranged from 21 to 45 hours per pay period. Tr. 142, 170-78. At Shoemake's instructions, Guarino did not work between January 30 and February 17, 1995, and she did not work during the eight days after Shoemake's May 15, 1995 letter rescinding her light duty status. For purposes of these motions for summary judgment, the court assumes without deciding that these allegations establish a prima facie case of discrimination.
Defendant has met his burden to proffer legitimate, nondiscriminatory reasons for these reductions in plaintiffs hours. As apart-time flexible employee, Guarino was only guaranteed work for two hours per pay period. Regardless of past practices, she was not entitled to more than two hours and her hours could be reduced at any time for any reason, or no reason at all, absent discrimination.
The evidence shows that Guarino was scheduled to work, on average, five days per week from late January 1995 through July 1995. Her doctor initially prohibited her in January 1995 from lifting more than 15 pounds continuously and standing for more than 2 hours per day intermittently. After March 7, 1995, her restrictions were increased to allow her to lift 15 pounds for only one hour per day, to stand or walk for only one hour per day and to preclude her from climbing, kneeling, bending, stooping, pushing and pulling, In April 1995, her doctor further restricted her from driving a postal vehicle, which had previously been within her capabilities. The evidence establishes that Shoemake and plaintiff s supervisor, Terrell, gave plaintiff whatever work was available within her medical limitations and that the reduced hours resulted from her medical limitations.
In addition, it was a legitimate, nondiscriminatory business reason to preclude plaintiff from working, for her own safety, from the time when she told Shoemake that she needed light duty for medical reasons until she submitted the completed, correct form from her doctor that advised Shoemake of her specific medical restrictions. Shoemake1 s decision to rescind Guarino's light duty status for excessive absenteeism was a facially legitimate business decision; she had been absent on 41 of 96 scheduled work days from January 1 to May 15, 1995. "[A]nti-discrimination laws are not vehicles for judicial second-guessing of business decisions." Mato v. Baldauf, 267 F.3d 444, 453 (5th Cir. 2001) (quotation omitted).
Moreover, it is irrelevant whether the Postal Service's decision may have been based on incorrect facts, so long as its decision was not motivated by discriminatory or retaliatory animus. Scales v. Slater 181 F.3d 703, 711 (5th Cir. 1999), "The fact that the employers' [sic] reasonable belief [in its reason for adverse employment action] eventually proves to be incorrect . . . would not change the conclusion that the [action] had been non-discriminatory." Moore v. Eli Lilly Co., 990 F.2d 812, 816 (5th Cir. 1993).
Thus, defendant has proffered competent evidence that the reductions in Guarino's hours were the result of her medical restrictions and excessive absenteeism. Guarino therefore "must produce substantial evidence indicating that the proffered legitimate nondiscriminatory reason is a pretext for discrimination. The plaintiff must rebut each nondiscriminatory reason articulated by the employer," Laxton, 333 F.3d at 578.
Guarino has produced only speculation and her subjective belief that defendant's proffered reasons were a pretext for discrimination. "[C]onclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden in a motion for summary judgment." Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (quotation omitted). Plaintiffs mere subjective belief that she has been the subject of discrimination, unsupported by any specific factual evidence, cannot be the basis of judicial relief and is insufficient to rebut the employer's evidence of legitimate, nondiscriminatory reasons for its actions. Vance v. Union Planters Corp., 209 F.3d 438, 444 (5th Cir. 2000); Lawrence v. University of Tex., 163 F.3d 309, 313 (5th Cir. 1999).
Accordingly, defendant is entitled to summary judgment on these claims.
F. The Postal Service's Light Duty Policy Is Not Discriminatory
Guarino moves for summary judgment solely on the issue whether the Postal Service violated the Pregnancy Discrimination Act through its policy of treating pregnant employees differently from other employees who had on-the-job, short-term, medical conditions with similar work restrictions. Defendant cross-moves for summary judgment that the policy does not violate the Act.
The record establishes that some postal workers with medical conditions were admittedly treated differently than plaintiff in their work assignments. However, defendant asserts that these other workers were not similarly situated to plaintiff in their abilities or inabilities to work and that, even if they were similarly situated, the Postal Service had bona fide business reasons for the difference in treatment.
Assuming without deciding that Guarino could make out a prima facie case of pregnancy discrimination based on this policy, defendant has proffered legitimate, nondiscriminatory reasons for its decision to offer virtually automatic "limited duty" to full-time regular employees who are injured on the job while offering only discretionary "light duty" to full-time employees who are injured off the job and to part-time flexible employees who are injured, sick or pregnant.
The Postal Service distinguishes between limited duty, which is offered to employees who have suffered injuries on the job, and light duty, which is offered to those who have suffered injuries off the job or illnesses unrelated to work. The reason for the distinction is that the Postal Service is required to continue to pay full-time employees who have suffered on-the-job injuries. Therefore, it tries to keep those employees fully occupied with work within their limitations. If there is any work left to be performed after all full-time employees, including those on limited duty, have received job assignments, the Postal Service will offer light duty to employees who are not injured on the job but who otherwise have medical restrictions.
The Fifth Circuit has already considered such a distinction and held that it does not violate the Act. In Urbano, the pregnant plaintiff was medically restricted from lifting more than 20 pounds, which prevented her from continuing in her position as a ticketing agent who lifted baggage at Continental Airlines, She requested light duty. Continental denied her request because it offered mandatory light duty only to employees who suffered occupational injuries. Plaintiff had the option of bidding for a light duty position through the airline's usual, seniority-based bidding system. Although she tried that option, no light duty jobs were available to her and she was forced to use sick leave, family medical leave and unpaid leave to continue as an employee without working. She sued the airline, alleging that she suffered discriminatory, disparate treatment based on her pregnancy.Urbano, 138 F.3d at 206.
The Fifth Circuit held that there was no discrimination because
Continental treated Urbano in exactly the same manner as it would have treated any other worker who was injured off the job. Urbano was not denied a light-duty assignment because of her pregnancy, but because her back troubles were not work related, Under the [Act], an employer is obliged to ignore a woman's pregnancy and to treat the employee as well as it would have if she were not pregnant. Thus, Continental was entitled to deny Urbano a light-duty assignment as long as it treat[s] similarly affected but nonpregnant employees the same. Without a showing that Continental adhered to the requirements of the light-duty policy only in cases involving its pregnant workers, Urbano cannot maintain that she was a victim of discrimination under the [Act].Id. (citing California Fed. Sav. Loan Ass'n v. Guerra, 479 U.S. 272, 285-86 (1987)) (quotations and additional citations omitted) (emphasis added).
Guarino urges this court to ignore the clear holding of Urbano, which is plainly applicable in the instant case and binding upon me, and adopt instead the reasoning of the Sixth Circuit in Ensley-Gaines v. Runvon, 100 F.3d 1220 (6th Cir. 1996), which addressed the same Postal Service policy that is at issue in the instant case. "The Sixth Circuit held that a plaintiff establishes a prima facie case of discrimination when she can demonstrate that her employer's policy treats pregnant women differently than workers who are injured on the job." Urbano, 138 F.3d at 207.
However, the Fifth Circuit in Urbano expressly rejected the reasoning of Ensley-Gaines, "On the contrary, the rule advocated by Urbano and the Sixth Circuit effectuates discrimination contrary to the [Act] — in favor of pregnant employees." Id.
The impact of Ensley-Gaines is unequivocally to treat pregnant employees who need light duty work better than other employees with a similar medical need whose conditions arose off-the-job. This is contrary to Guerra . . . (holding that while the [Act] does not mandate better treatment for pregnant than non-pregnant employees, it does not pre-empt a state law that "establishes benefits that employers must, at a minimum, provide to pregnant women").Id. at 208 (quoting Guerra, 479 U.S. at 291).
The Fifth Circuit concluded:
In this case, Continental treated Urbano the same as it treats any other worker who suffered an injury off duty. There is no probative evidence that Continental's distinction between occupational and off-the-job injuries was a pretext for discrimination against pregnant women or that it had a disparate impact on them. Urbano's claim is thus not a request for relief from discrimination, but rather a demand for preferential treatment; it is a demand not satisfied by the [Act]. As long as pregnant employees are treated the same as other employees injured off duty, the [Act] docs not entitle pregnant employees with non-work related infirmities to be treated the same under Continental's light-duty policy as employees with occupational injuries.Id. (emphasis added); See also Stout v. Baxter Healthcare Corp., 282 F.3d 856, 861 (5th Cir. 2002) (pregnant, discharged plaintiff challenged attendance policy for probationary employees that made termination mandatory after missing three days of work; "the [Act] does not require preferential treatment of pregnant employees and does not require employers to treat pregnancy related absences more leniently than other absences."). This court is bound by the Fifth Circuit precedent inUrbano, which is on all fours with Guarino's case.
In the instant case, the evidence creates no genuine issue of disputed fact that the Postal Service's distinction between occupational and non-work-related injuries was a pretext for discrimination against pregnant women or that plaintiff was treated differently than any other worker who suffered an off-duty injury or illness. All of the workers whom plaintiff cited as comparisons were full-time workers who received limited duty because of on-the-job injuries. The evidence establishes that the Postal Service had legitimate, nondiscriminatory reasons for its policy and the Fifth Circuit has expressly upheld that type of distinction. Guarino has failed to come forward with any evidence to show that the policy was a pretext for discrimination against pregnant women in general or against her specifically because she was pregnant.
Accordingly, plaintiffs motion for summary judgment in her favor is DENIED and defendant's motion for summary judgment is GRANTED as to plaintiffs' claim that the policy violated the Act.
G. Defendant Is Entitled to Summary Judgment on Plaintiffs Hostile Environment Claim
Guarino complains that Shoemake made her employment more difficult, refused her light duty, rejected the light duty forms she submitted, cut her work hours, deducted leave hours wrongfully, scrutinized her work, watched everything she did, refused to speak to her and treated her more harshly than other employees. She alleges that these actions were a continuing violation of Title VII and, taken together, constituted a hostile environment based on her pregnancy. These claims fail on the merits, as explained below. Because the claims fail on the merits, it is unnecessary to address whether the actions constituted continuing violations so as to excuse plaintiffs untimely contact with the EEO Counselor concerning acts that occurred on or before May 21, 1995.
As previously noted, the conditions of a hostile work environment must be sufficiently severe or pervasive `to alter the conditions of [the victim's] employment and create an abusive working environment.'" Meritor Sav. Bank, 477 U.S. at 67. The factors to be considered in determining whether harassment objectively altered an employee's terms or conditions of employment are (1) the frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee's job performance. Harris, 510 U.S. at 23.
Guarino fails to produce evidence to create a genuine issue of disputed material fact that defendant's conduct met this test. Shoemake's actions in allegedly making her employment more difficult, rejecting the light duty forms she submitted, scrutinizing her work, watching everything she did, refusing to speak to her and treating her more harshly than other employees were not physically threatening or humiliating and were not severe enough to alter the conditions of her employment. Although Shoemake did not sign any light duty forms after April 1995, plaintiff continued in light duty status until she quit working in August 1995. She testified that, although she did not like Shoemake's scrutiny and refusal to speak to her, it did not affect her ability to work, and she continued to do her job despite his actions. Tr. at 182. She never complained to her immediate supervisor about Shoemake harassing her. Tr. at 228. It cannot be said that Shoemake's conduct was so egregious as to alter the conditions of employment and destroy plaintiffs equal opportunity in the workplace.DeAngelis, 51 F.3d at 593.
Accordingly, no genuine issues of material fact remain in dispute and defendant is entitled to summary judgment in its favor on all of plaintiff s claims as a matter of law.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendant's motion to dismiss for lack of subject matter jurisdiction is DENIED. IT IS FURTHER ORDERED that plaintiffs motion for summary judgment is DENIED. IT IS FURTHER ORDERED that defendant's motion for summary judgment is GRANTED and that plaintiffs complaint is DISMISSED WITH PREJUDICE. Judgment will be entered accordingly,