Opinion
SA-20-CV-129-FB (HJB)
01-30-2023
RICHARD SERNA, Plaintiff, v. LOUIS DEJOY, U.S. POSTMASTER GENERAL Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable United States District Judge Fred Biery:
Before the Court is Defendant's Motion for Summary Judgment. (Docket Entry 59.) This case has been referred to the undersigned for the consideration of pretrial matters pursuant to 28 U.S.C. § 636(b). (See Docket Entry 3.) For the reasons set out below, I recommend that Defendant's motion (Docket Entry 59) be GRANTED.
I. Jurisdiction.
Plaintiff's pro se Amended Complaint alleges violations of the Rehabilitation Act, 29 U.S.C. § 794, and Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (See Docket Entry 45, at 1.) The District Court has jurisdiction to consider federal-law claims pursuant to 28 U.S.C. § 1331. The undersigned has authority to issue this Report and Recommendation pursuant to 28 U.S.C. § 636(b).
II. Factual Background.
Plaintiff worked for the United States Postal Service (“USPS”) as a mail processor for approximately 18 years before an injury and subsequent medical disability led to a long series of disputes involving the USPS, postal workers' unions, and the EEOC. (See Docket Entry 59-1, at 4-5; Docket Entry 59-4, at 2.) Plaintiff previously filed two federal lawsuits relating to these disputes: Serna v. Brennan, No. SA-15-CV-198-XR, which was dismissed on January 2016; and Serna v. Nat'l Am. Postal Workers Union AFL-CIO, et al., No. SA-17-CV-1231-JKP, which was dismissed on June 30, 2020. This case was filed on February 11, 2020. (See Docket Entry 1.)
Plaintiff was placed on leave without pay status in June of 2014. (Docket Entry 59-4, at 2.) On April 11, 2016, Plaintiff filed an EEO complaint alleging race, national origin, age, and disability discrimination against USPS for failing to provide him reasonable accommodations, as it had to other employees. (Docket Entry 45, at 9.) This EEO complaint was dismissed, but Plaintiff appealed the decision to the Office of Federal Operations, which reversed and remanded the decision on September 1, 2016. (Id. at 10.)
On January 25, 2017, Plaintiff was determined to be the senior bidder on a new job posting. (Docket Entry 59-3, at 3.) Approximately one week later, his doctor advised he was not ready to fulfill the duties of the new position, but that he would “be able to fully perform the duties ... in approximately 6 months.” (Id. at 4.)
On February 7, 2017, the day after Plaintiff was awarded the new position, Defendant issued a Notice of Separation advising Plaintiff that he was “being separated from [his] employment with the Postal Service effective immediately” based on his inability “to perform the essential functions of the position.” (Docket Entry 59-4, at 2.) Plaintiff filed a union grievance two weeks later, based on his not being allowed to return to work for the new position. (Docket Entry 59-1, at 7.) Later that year, Plaintiff amended his 2016 EEO complaint to include his termination as a basis for a retaliation charge. (Docket Entry 59-7, at 2.)
On February 20, 2022, Plaintiff won the union grievance as a contractual matter. (Docket Entry 59-3, at 2.) The arbitrator concluded that the job posting permitted Plaintiff to attempt to perform the new job duties for at least six months before any determination regarding his performance was to be made. (Id. at 6.) As a result, the Postal Service was directed to rescind the Notice of Separation and expunge any mention of it from Plaintiff's employment records, return Plaintiff back to work in the new position, and make Plaintiff “whole in all respects including seniority, benefits and backpay for the period February 18, 2017 to one day before” he returned to work. (Docket Entry 59-3, at 7.)
III. Procedural History.
On February 11, 2020, while the grievance was still pending, Plaintiff filed this suit against Defendant, alleging violations of the ADEA, the federal Rehabilitation Act, and the antidiscrimination and anti-retaliation provisions of Title VII of the Civil Rights Act. (Docket Entry 5, at 9-10.) Defendant moved to dismiss all claims, and the undersigned issued a Report and Recommendation recommending that the motion be granted in part and denied without prejudice in part. (Docket Entries 20 and 32.) The District Court overruled Plaintiff's objections to the Report and adopted the undersigned's recommendations (see Docket Entry 46); in the meantime, Plaintiff filed an amended complaint (Docket Entry 45).
Plaintiff's amended complaint alleges violations of the Rehabilitation Act and race and national origin discrimination and retaliation under Title VII. (Docket Entry 45.) Defendant again moved to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of jurisdiction, and additionally pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a plausible claim for relief. (Docket Entry 47.) On May 31, 2022, the undersigned issued another Report and Recommendation recommending that (1) Plaintiff's Rehabilitation Act and Title VII discrimination claims be dismissed with prejudice, and (2) Plaintiff's Title VII retaliation claim be allowed to proceed but be limited to allegations not addressed by the Court in Serna v. Brennan, No. SA-15-CA-198-XR. (Docket Entry 55, at 9.) Plaintiff did not file objections and the District Court adopted the Report and Recommendation. (Docket Entry 58.)
Defendant has now moved for summary judgment on the remaining allegations. (Docket Entry 59.) Plaintiff responded in opposition (Docket Entry 61), and Defendant replied (Docket Entry 62).
IV. Legal Standard.
A party is entitled to summary judgment under Federal Rule of Civil Procedure 56 if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if it might affect the outcome of the suit under the governing law, while a dispute about that fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Owens v. Circassia Pharms., Inc., 33 F.4th 814, 824 (5th Cir. 2022) (internal quotation marks omitted).
The moving party “always bears the initial responsibility of demonstrating the absence of a genuine issue of material fact.” Jones v. United States, 936 F.3d 318, 321 (5th Cir. 2019) (alterations omitted). When the movant would not bear the burden of persuasion at trial, he may satisfy his initial summary judgment burden “by pointing out that the record contains no support for the non-moving party's claim.” Wease v. Ocwen Loan Serv., L.L.C., 915 F.3d 987, 997 (5th Cir. 2019). If the moving party satisfies his initial burden, the nonmovant “must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial.” Jones, 936 F.3d at 321.
V. Analysis.
Plaintiff's Title VII retaliation claim is the only claim that survived Defendant's motion to dismiss.(See Docket Entry 55, at 9.) As to that claim, Defendant seeks summary judgment on exhaustion grounds and on the merits. (See Docket Entry 59.) Because Defendant's argument on the merits is well-taken and because exhaustion is not jurisdictional, this Report and Recommendation does not address exhaustion. See Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1851 (2019) (holding Title VII's exhaustion requirement is not jurisdictional).
Plaintiff's response to the motion summary judgment mainly addresses issues that were resolved in the May 31, 2022, Report and Recommendation and adopted by the District Court. (See Docket Entry 61, at 14-18.) As these issues have already been addressed without objection from Plaintiff, this Report and Recommendation will focus only on the remaining retaliation claim.
Where, as here, the plaintiff seeks to prove retaliation by circumstantial evidence, the claim is analyzed under a McDonnell Douglas burden-shifting framework. Saketkoo v. Adm'rs of Tulane Educ. Fund, 31 F.4th 990, 1000 (5th Cir. 2022) (quoting Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003)). This framework requires the plaintiff to establish a prima facie retaliation claim; the burden then shifts to the defendant to state a legitimate, non-retaliatory reason for its actions. Wallace v. Performance Contractors, Inc., 57 F.4th 209 (5th Cir. 2023). If the employer provides such a reason, “the burden shifts back to the employee to demonstrate that the employer's reason is actually a pretext for retaliation, which the employee accomplishes by showing that the adverse action would not have occurred ‘but for' the employer's retaliatory motive.” Id.
A. Prima Facie Claim.
To establish a prima facie Title VII retaliation claim, “a plaintiff must prove by a preponderance of the evidence that: (i) he engaged in a protected activity; (ii) an adverse employment action occurred; and (iii) a causal link exists between the protected activity and the adverse employment action.” Wantou v. Wal-Mart Stores Tex., L.L.C., 23 F.4th 422, 436-37 (5th Cir. 2022) (citing Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007)). Defendant takes issue with the latter two requirements.
1. Adverse action.
For a retaliation claim, an adverse employment action “need not rise to the level of ultimate employment decisions” as in a discrimination claim. Welsh v. Fort Bend Indep. Sch. Dist., 941 F.3d 818, 827 (5th Cir. 2019) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 6768 (2006)). The standard for an adverse employment action in the context of a retaliation claim is whether an employment action is “materially adverse, such that it would dissuade a reasonable employee from making a discrimination complaint.” Newbury v. City of Windcrest, Tex., 991 F.3d 672, 678 (5th Cir. 2021).
Defendant argues that Plaintiff's termination is not an adverse action because it has since been rescinded and expunged. (Docket Entry 59, at 9.) This argument fails: “[T]ermination is a classic example of adverse employment action under [5th Circuit] caselaw.” Hassen v. Ruston La. Hosp. Co., 932 F.3d 353m 358 (5th Cir. 2019). Even if it is later rescinded and backpay is issued, a termination may well dissuade a worker from making a charge of discrimination. See White, 548 U.S. at 72-73 (“A reasonable employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint might well choose the former. That is to say, an indefinite suspension without pay could well act as a deterrent, even if the suspended employee eventually received backpay.”) Accordingly, the Court should find that notwithstanding its rescission, Plaintiff's termination constituted an adverse action.
2. Causation.
With regard to causation, “[i]f an adverse employment action occurs within close temporal proximity to protected activity known to the employer, a plaintiff will have met his burden to establish a prima facie case of retaliation.” Badgerow v. REJ Props., Inc., 974 F.3d 610, 619 (5th Cir. 2020). However, “the evidence must demonstrate that the decision maker had knowledge of the protected activity.” Standley v. Rogers, 202 F.Supp.3d 655, 668 (W.D. Tex. 2016), aff'd, 680 Fed.Appx. 326 (5th Cir. 2017) (citing Tureaud v. Grambling State Univ., 294 Fed.Appx. 909, 91415 (5th Cir. 2008)).
Defendant raises both temporal proximity and knowledge in challenging the causation prong of Plaintiff's prima facie case. Defendant argues that Plaintiff has not established temporal proximity between his protected activity and the adverse action because “he did not commit any protected act within the months leading up to his termination,” and because, even if he had, Plaintiff presented no evidence of knowledge on the part of the decision maker. (Docket Entry 59, at 8-9.) Plaintiff responds that Defendant had a historical pattern of retaliating against him for opposing unlawful employment practices, and he points out that he was terminated while his April 2016 EEO complaint was still ongoing, just ten months after filing it. (Docket Entry 61, at 19.)
When temporal proximity is the only evidence of causation, the proximity must be “very close.” Feist v. La., Dep't of Just., Off. of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013). The Fifth Circuit has found, “for example, that ‘a lapse of up to four months' may be sufficiently close, while a five-month lapse is not close enough without other evidence of retaliation.” Id. at 455 (collecting cases). In this case, Plaintiff's ten-month gap is not the “very close” temporal proximity sufficient to infer causation.
Further, Plaintiff's February 7, 2017, Notice of Separation was signed by Lisa Costantino and Kim Calderon. (Docket Entry 59-4, at 3.) Defendant argues that Plaintiff has not shown that either Costantino or Calderon were aware of his protected activity when he was terminated-they were not identified as witnesses in his 2016 EEO complaint, they did not give statements in that investigation, and they were not identified by Plaintiff as responsible parties. (See Docket Entry 59, at 9.) Plaintiff's response does not address his failure to show that Costantino or Calderon knew of his protected activity. And his conclusory claim of a historical practice of retaliation does not suffice to provide the required proof. See Jones v. Gulf Coast Rest. Grp., Inc., 8 F.4th 363, 368 (5th Cir. 2021) (conclusory allegations insufficient to withstand summary judgment motion). In such circumstances, Plaintiff has failed to establish causation, and he accordingly has not established a prima facie retaliation claim. See Washington v. Nat'l Oilwell Varco, L.P., ___ F.Supp.3d ___, 2022 WL 6250690, at *6 (N.D. Tex. Oct. 7, 2022) (finding plaintiff did not establish causation at prima facie stage where she adduced no evidence that employer who ultimately decided to fire her knew about the protected activity or that he harbored any discriminatory animus toward plaintiff).
B. Legitimate Reason and Pretext.
Even if Plaintiff had established a prima facie case, Defendant offers a legitimate, non-discriminatory reason for its decision and Plaintiff provides no evidence of pretext.
Defendant argues that Plaintiff was legitimately terminated “for his inability to perform the essential elements of his position” pursuant to a contract between USPS and the union. (Docket Entry 59, at 10.) Under the contract, a regular employee can be separated after “the expiration of 1 year of continuous absence without pay;” but if “there is reason to believe the employee will recover within a reasonable length of time beyond the 1-year period,” up to an additional 90 days is available. (Docket Entry 59-4, at 3.)
At the time of his termination on February 7, 2017, Plaintiff had been on leave without pay status and had not worked since June 2014. (Docket Entry 59-2, at 14.) The 1-year period and the additional 90 days afforded under the contract had lapsed when Plaintiff was terminated. Accordingly, Defendant has provided a legitimate reason for the termination and the burden shifts back to Plaintiff to establish that Defendant's reason was pretext. Badgerow, 974 F.3d at 619 (citing Septimus v. Univ. of Houston, 399 F.3d 601, 607 (5th Cir. 2005)).
Plaintiff has not shown pretext. The fact that Defendant's decision to terminate Plaintiff was later found to be improper in the grievance process, based on the new job posting, does not itself support a pretext finding. This is because the issue in Title VII cases “is not whether the [employer] made an erroneous decision, but whether the [employer's] decision was made with discriminatory motive.” See Bisong v. Univ. of Hous., 493 F.Supp.2d 896, 905 (S.D. Tex. 2007) (citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1091 (5th Cir. 1995)). In the retaliation context, that motive must be the but-for cause of the employer's action. See Brown v. Wal-Mart Stores E., L.P., 969 F.3d 571, 577 (5th Cir. 2020). Here, Plaintiff raises no genuine dispute on the issue: the only response he provides to the Defendant's argument is that “Defendant has failed to present a non-discriminatory explanation of why [he] was terminated, other than arguing he could not perform the essential elements of his job.” (Docket Entry 61, at 18.) Because Plaintiff does not cite any evidence-or provide substantive argument-related to the reason for his termination and whether the reason was pretextual, summary judgment must be granted. See Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 304 (5th Cir. 2020) (finding plaintiff “failed to meet her summary judgment burden of pointing to evidence demonstrating that the legitimate, non-discriminatory reasons proffered by the [defendant] for its actions were pretextual”).
VI. Conclusion.
Based on the foregoing, I recommend that Defendant's Motion for Summary Judgment (Docket Entry 59) should be GRANTED.
VII. Instructions for Service and Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested.
Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
The party shall file the objections with the clerk of the court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections.
A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).