Opinion
Case No: 6:11-cv-40-Orl-36KRS
2013-09-24
OPAL M. SIMMONDS, Plaintiff, v. POSTMASTER GENERAL, Defendant.
ORDER
This cause comes before the Court upon Defendant Postmaster General's ("Defendant") Motion for Summary Judgment (Doc. 58). Pro se Plaintiff Opal M. Simmonds ("Plaintiff") filed a response in opposition to Defendant's Motion for Summary Judgment ("Response") (Doc. 80), to which Defendant replied (Doc. 87). Upon consideration of the parties' submissions, including memoranda and accompanying exhibits, and for the reasons that follow, Defendant's Motion for Summary Judgment will be granted.
I. BACKGROUND
As the parties in this case submitted a Statement of Admitted Facts ("SAF") in their Joint Pretrial Statement (Doc. 71), the Court cites this document where facts are undisputed, and otherwise determines facts based on the parties' submissions, affidavits, declarations, and deposition testimony.
This action arises from alleged race-based and sex-based discrimination and retaliation against Plaintiff, an employee of the U.S. Postal Service ("Postal Service"), by her Postal Service supervisors. See Docs. 1, 53. Plaintiff is an African-Jamaican female and a U.S. citizen. SAF, ¶ 1. In November 1989, Plaintiff began working for the Postal Service, and in 1996, she became a mail processing clerk in the Postal Service's Mid-Florida Processing and Distribution Center in Lake Mary, Florida. Id.; Deposition of Opal Simmonds, Docs. 58-1, 58-2 (collectively, "Simmonds Dep."), 5:5-7. Mail processing clerks are responsible for operating Delivery Bar Code Sorter ("DBCS") machines, which sort mail into the proper delivery sequence for the letter carrier at the local post office. Declaration of David Gusty, Doc. 58-4 ("Gusty Dec."), ¶ 4. Two clerks are assigned to each DBCS machine, and the clerks are responsible for loading the correct program into the machine and then feeding the mail into it. Id. Each night, the mail is run through a DBCS machine in two passes. Id. As the mail is sorted by the machine during the first pass, the clerks are responsible for pulling the mail down from the machine and placing it into numbered bins. Id. The mail in those bins is then re-fed back into the machine for the second pass. Id. The mail must be re-fed back into the machine in numerical order; improper feeding of the machine results in out-of-order sequencing of the mail. Id. Since 1995, Plaintiff has been assigned to Tour 1, which lasts from 10:00 p.m. to 6:30 a.m., although the starting and ending times for Tour 1 have changed slightly over the years. SAF, ¶ 1; Simmonds Dep., 6:20-8:1.
These allegations are derived from both the original Complaint (Doc. 1) and the Amended Complaint (Doc. 53). Ordinarily, the Amended Complaint supersedes the Complaint and becomes the operative pleading. Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir. 2007). Additionally, Local Rule 4.01(a) requires that an Amended Complaint incorporate all amendments therein. Thus, the Amended Complaint should not reference any part of the original Complaint. Nonetheless, due to Plaintiff's pro se status, and given that Defendant's Response addresses the allegations in both the original Complaint and the Amended Complaint, the Court will consider the allegations in the original Complaint in conjunction with those in the Amended Complaint. See Robinson v. Sec'y, Dep't of Corr., No. 2:08-cv-200, 2010 WL 2431843, at *1 n.1 (M.D. Fla. June 15, 2010).
Mail processing clerks report to Supervisors of Distribution Operations ("SDOs"). SAF, ¶ 2. SDOs are responsible for supervising the employees on each shift. Gusty Dec., ¶ 2. On Tour 1, the SDOs include David Gusty ("Gusty"), Saverio Marchese ("Marchese"), and James Richmond ("Richmond"). SAF, ¶ 2. Gusty, Marchese, and Richmond became SDOs for Tour 1 in 2002, 2006, and 2007, respectively. Simmonds Dep., 9:19-23, 10:17-18; Declaration of James Richmond, Doc. 58-7 ("Richmond Dec."), ¶ 2. SDOs report to a Manager of Distribution Operations ("MDO"). SAF, ¶ 2. Paul Daly ("Daly") was the MDO for Tour 1 until his retirement in December 2010, at which time Gusty became Acting MDO. Id.
Mail processing clerks may be disciplined for unsatisfactory performance, such as when a clerk loads the wrong sorting plan into a DBCS machine or improperly feeds mail into the machine. Gusty Dec., ¶ 6. Employees may also be disciplined for attendance issues, such as when an employee fails to follow proper leave procedures. Declaration of Paul Daly, Doc. 58-5 ("Daly Dec."), ¶ 7. When considering discipline, a supervisor first conducts an Investigative Interview with the employee to gather facts. Gusty Dec., ¶ 7. The supervisor then completes a request for discipline form, which is sent, along with the notes from the Investigative Interview, to Labor Relations for review. Id. at ¶ 8. Sometimes, an MDO will review the SDO's request for discipline form and the notes from the Investigative Interview, and sign the form as a concurring official before it is sent to Labor Relations. Daly Dec., ¶ 5. The Postal Service follows a "progressive" disciplinary policy, with lesser discipline (e.g., a letter of warning) for a first offense and increasingly severe discipline for succeeding offenses (e.g., short suspension, long suspension, discharge). Pl.'s Ex. 155 to Doc. 80, p. 3. Pursuant to the Collective Bargaining Agreement between the American Postal Workers Union and the U.S. Postal Service, employees have the right to challenge disciplinary actions through the union grievance process. See Pl.'s Ex. 157 to Doc. 80, p. 1.
Between June 2007 and October 2011, Plaintiff was disciplined by her Postal Service supervisors a number of times for various instances of unsatisfactory performance or attendance. In response to these disciplinary actions, Plaintiff often filed a formal or informal Equal Employment Opportunity ("EEO") complaint, alleging discrimination or retaliation by her supervisors, or Plaintiff challenged the disciplinary action through the union grievance process. The disciplinary actions beginning in June 2009 form the basis for her claims in this case, and are set forth below along with Plaintiff's response to each disciplinary action.
1. Plaintiff's Pre-June 2009 EEO Complaints
On June 22, 2007, Plaintiff filed an informal EEO complaint on a Pre-Complaint Counseling ("Pre-Complaint") form in connection with a Letter of Warning she received for unsatisfactory performance. SAF, ¶ 3; see Doc. 58-3, pp. 2-3. In the Pre-Complaint form, Plaintiff claimed that Marchese treated her differently from a black male co-worker after an incident where the mail had not gotten to the delivery truck on time. See Doc. 58-3, p. 2; Simmonds Dep., 27:5-32:23. Plaintiff testified that days before this incident, she completed a voluntary employment survey, giving Marchese an unsatisfactory rating because he would chastise Plaintiff every time something went wrong with her DBCS machine; meanwhile, Marchese allegedly complimented her co-worker when something went right. Simmonds Dep., 29:8-32:23. On August 9, 2007, Plaintiff submitted a form withdrawing her informal complaint, although she testified that the issue was not fully resolved to her satisfaction at the redress stage. Id. at 34:4-36:9; see Doc. 58-3, pp. 5-6.
On September 17, 2007, Plaintiff filed another informal EEO complaint on a Pre-Complaint form, claiming that Marchese retaliated and discriminated against her based on her age, race, nationality, and sex after he issued her a seven-day suspension letter for leaving mail on the DBCS machine. SAF, ¶ 3; Simmonds Dep., 36:10-39:12; see Doc. 58-3, pp. 8-10. Plaintiff alleges that Marchese issued the suspension letter in retaliation for her filing the previous informal EEO complaint against him. Doc. 58-3, p. 9. Plaintiff's informal complaint was settled the following month through mediation, which resulted in withdrawal of the complaint and reduction of the suspension to five days. See id. at 12-14; SAF, ¶ 3; Simmonds Dep., 39:12-42:15.
2. June 25, 2009 Letter of Warning and June 29, 2009 Letter of Demand
On the night of June 13, 2009, Plaintiff worked the Oviedo DBCS machine with Robert John ("John"), a white male. SAF, ¶ 4; Simmonds Dep., 74:9-10. Earlier in the shift, Plaintiff had been working the Longwood DBCS machine, but Gusty moved her to the Oviedo DBCS machine, which was double the workload. Simmonds Dep., 61:10-23, 64:7-12. John's usual partner on the Oviedo DBCS machine was absent, and Gusty chose to send Plaintiff to assist John, rather than sending the relief clerk, Karla Hernandez. Id. at 61:25-62:25. When Plaintiff attempted to question Gusty about his choice to move her, he yelled at her and told her to go back to the Oviedo DBCS machine. Id. at 62:25-63:15. Gusty also prevented her from speaking to a union steward, and he and Daly watched over her until the end of her shift. Id. at 63:5-64:6.
On June 25, 2009, Marchese issued Plaintiff a Letter of Warning, alleging that after her June 13, 2009 shift with John, she left three trays of mail on the Oviedo DBCS machine. SAF, ¶ 4; see Doc. 58-3, pp. 22-23. Plaintiff denies leaving mail on the machine. Simmonds Dep., 59:16-19. When Marchese presented her with photographs of the three trays of mail left on the machine, Plaintiff stated that she could not recognize them. Id. at 70:12-72:6. At her deposition, Plaintiff testified that she believes that Daly, who took the photographs, "falsified" the evidence against her because of her prior EEO filings. Id. at 72:7-73:2. Plaintiff also claims that the Letter of Warning was issued in retaliation for her filing multiple union grievances against Gusty, Daly, and Marchese, accusing them of harassing and retaliating against her. Id. at 86:13-109:12; see Doc. 58-3, p. 31; Pl.'s Exs. 75-81 to Doc. 80. John, her partner on the Oviedo DBCS machine during the June 13, 2009 shift, was not disciplined in connection with the mail left on the machine. SAF, ¶ 4.
On June 29, 2009, Plaintiff was issued a Letter of Demand from the plant manager, requesting that she reimburse the Postal Service in the amount of $507.87, because she had been paid while out on medical leave without providing documentation for part of the leave. Id. at ¶ 5; see Doc. 58-3, p. 25. Plaintiff testified that another clerk, John Hoff ("Hoff"), a white male, had also called out of work by using medical leave and failed to provide documentation, but that he was treated more favorably because he was not issued a Letter of Demand. Simmonds Dep., 47:9-12, 53:6-20; Doc. 58-3, p. 19.
On September 3, 2009, Plaintiff filed a formal EEO complaint against Gusty, alleging that the June 25, 2009 Letter of Warning and the June 29, 2009 Letter of Demand were issued on the grounds of discrimination based on race, color, sex, and age. SAF, ¶ 6; see Doc. 58-3, p. 16. The Letter of Warning was eventually settled through the union grievance process and Plaintiff did not lose any pay as a result of it. SAF, ¶ 4; see Pl.'s Ex. 17 to Doc. 80. The Letter of Demand was also settled through the union grievance process, without Plaintiff reimbursing the Postal Service, and she did not lose any pay as a result. SAF, ¶ 5; Simmonds Dep., 51:7-22; see Pl.'s Ex. 10 to Doc. 80, p. 1.
3. October 29, 2009 Notice of 7-Day Suspension
On October 29, 2009, Gusty and Daly issued Plaintiff a Notice of 7-Day Suspension, alleging that on October 20, 2009, she left her DBCS machine while on duty, thereby leaving her partner to pull down the mail by himself. SAF, ¶ 7; see Doc. 58-3, pp. 54-55. The Notice of 7-Day Suspension also alleged that when Gusty checked on Plaintiff, she told him to "get the hell out of here," and that she left mail on the machine. See Doc. 58-3, p. 54. However, Plaintiff denied leaving mail on the machine and testified that Gusty had been harassing her all day. Simmonds Dep., 127:4-134:8. Plaintiff did not contact an EEO counselor or file a formal or informal EEO complaint in connection with the Notice of 7-Day Suspension. Id. at 123:12-20, 126:6-24; SAF, ¶ 7. Ultimately, the seven-day suspension was settled through the union grievance process and was expunged on December 10, 2010. Simmonds Dep., 135:12-14; see Doc. 58-3, p. 60.
4. December 7, 2009 Letter of Warning
On December 7, 2009, Marchese issued Plaintiff a Letter of Warning, alleging that she was absent from work without leave ("AWOL") on one occasion in October 2009 and failed to follow proper leave reporting procedures on several occasions in November of 2009. See Doc. 58-3, pp. 88-89. Plaintiff claimed that she was marked down as AWOL for the October 2009 incident because the automated call-in line at her mail facility, which allows employees to call in and advise that they will be out sick, was not functioning. Pl.'s Ex. 36 to Doc. 80, p. 2; see Marchese Dec., ¶ 15. She further asserted that she had a medical condition which caused her to miss work on several occasions in November 2009, and that her failure to follow proper leave reporting procedures was due to the automated call-in line's failure to notify her that she had exhausted her leave time under the Family and Medical Leave Act ("FMLA"). Id. Plaintiff did not file a formal or informal EEO complaint in connection with the Letter of Warning, which was ultimately settled through the union grievance process. Simmonds Dep., 192:21-193:6; see Pl.'s Ex. 37 to Doc. 80, p. 2.
5. January 19, 2010 Notice of 14-Day Suspension
On January 19, 2010, Marchese and Daly issued Plaintiff a Notice of 14-Day Suspension, alleging that on December 18, 2009, she improperly swept the bins from her DBCS machine, resulting in out-of-sequence mail, and that she also failed to notify her supervisors that she lost her identification badge. SAF, ¶ 8; see Doc. 58-3, pp. 57-58. Plaintiff admitted that the mail had been improperly processed, but claimed that she had been working with a partner, Michelle Zipperer ("Zipperer"), and therefore there was no way for management to know who made the error. Simmonds Dep., 155:24-157:14. However, during the Investigative Interview regarding the incident, Zipperer, a white female, told Marchese that she and Plaintiff split the sweeping of the bins in half. Declaration of Saverio Marchese, Doc. 58-6 ("Marchese Dec."), ¶ 10; see Doc. 58-6, p. 27. Zipperer swept racks A, B, and C, while Plaintiff swept racks D, E, and F, which contained Bins 72 and 76, the improperly-processed bins. Marchese Dec., ¶ 10; see Doc. 58-6, p. 27. Marchese determined that the error was Plaintiff's fault, and Zipperer was not disciplined. SAF, ¶ 9; Marchese Dec., ¶ 11. Plaintiff also admitted that she lost her badge and failed to notify her supervisors, but claimed that other employees, such as Bob Valenski ("Valenski"), a white male, also worked without their badges and did not face discipline. Simmonds Dep., 166:18-177:16.
After she was issued the Notice of 14-Day Suspension, Plaintiff filed formal and informal EEO complaints, alleging retaliation and discrimination due to race, color, national origin, sex, age, and an unspecified disability, because her supervisors treated her differently from Zipperer and Valenski. SAF, ¶ 8; see Doc. 58-3, pp. 47-49, 51-52. The Notice of 14-Day Suspension was ultimately rescinded through the union grievance process and Plaintiff did not lose any pay as a result of it. Simmonds Dep., 154:7-155:10; SAF, ¶ 8; see Doc. 58-3, p. 62.
6. May 14, 2010 Notice of 7-Day Suspension
On May 14, 2010, Marchese and Daly issued Plaintiff a Notice of 7-Day Suspension for failing to report to work on April 17, 2010 without prior notification to her supervisors, and for failing to follow proper leave procedures on 33 occasions between February 26, 2010 and April 30, 2010 by failing to timely notify her supervisors that she was not reporting to work. SAF, ¶ 10; see Doc. 58-3, pp. 75-80. Employees who wish to take leave due to illness are required to call the mail facility's automated line and report an absence before the beginning of their shift. Marchese Dec., ¶ 15. On each of the 33 unscheduled absences described in the Notice of 7-Day Suspension, Plaintiff called the automated line after her shift had already started and, in some cases, she did not call until after her shift had ended the following morning at 6:00 a.m. Id. Plaintiff admitted that she failed to timely call the automated line on those occasions, claiming that medications she was taking caused her to oversleep. Simmonds Dep., 180:1-187:18. However, Plaintiff contends that she did nothing wrong by calling in late because Postal Service policy only requires the individual to call in "as soon as possible." Id. at 187:1-10.
On June 28, 2010, in response to the Notice of 7-Day Suspension, Plaintiff filed an informal EEO complaint, alleging discrimination based on disability and retaliation based on her prior EEO activity. SAF, ¶ 10; see Doc. 58-3, pp. 71-73. The seven-day suspension ultimately went to arbitration, and the arbitrator vacated the suspension because Plaintiff was in fact taking medication for a condition she had during her period of absences. Simmonds Dep., 185:20-186:10.
7. October 26, 2010 Notice of 7-Day Suspension
On October 26, 2010, Richmond and Daly issued Plaintiff a Notice of 7-Day Suspension for failing to follow instructions given by Gusty on the morning of October 16, 2010. SAF, ¶ 11; see Doc. 58-3, pp. 93-95. That morning, Gusty instructed Plaintiff to take her lunch break, at which point Gusty saw her walk to the break room without clocking out. Gusty Dec., ¶ 10; Doc. 58-3, p. 93. When Gusty confronted her in the break room, Plaintiff claimed to be on wash-up time, even though she was not washing up and Gusty had seen her bypass the lavatory. Gusty Dec., ¶ 10; Doc. 58-3, p. 93. Gusty claimed that when he further questioned her, Plaintiff yelled at him. Gusty Dec., ¶ 10; Doc. 58-3, p. 93. Daly heard Plaintiff yelling at Gusty over his supervisor's radio and went to the break room to deal with the situation. Daly Dec., ¶ 6. Plaintiff, however, denies yelling at Gusty. Simmonds Dep., 213:19-24. Plaintiff further claims that employees are given a reasonable amount of time for washing up before taking their lunch break, that they do not have to clock out for this period of time, and that employees commonly use this time for things other than washing up, such as heating up food, taking a nap, or going to their car. Id. at 214:3-220:19. Plaintiff testified that there is no Postal Service rule regarding what an employee may do during wash-up time, and that no other employee has been disciplined for misusing wash-up time. Id. at 216:5-8, 217:4-8.
On February 9, 2011, Plaintiff filed a formal EEO complaint, alleging that Richmond, Daly, and Gusty retaliated against her for her previous EEO complaints by issuing the Notice of 7-Day Suspension. SAF, ¶ 11; see Doc. 58-3, p. 91. The Notice of 7-Day Suspension was ultimately expunged through the union grievance process. Simmonds Dep., 221:13-222:3; see Pl.'s Ex. 53 to Doc. 80.
8. January 20, 2011 Letter of Warning
On January 20, 2011, Richmond issued Plaintiff a Letter of Warning for an incident on January 18, 2011, where she failed to change the sorting program on her DBCS machine—resulting in 1,600 pieces of mail being run on the wrong program—and failed to report the error to her supervisor. SAF, ¶ 12; Richmond Dec., ¶ 10; see Doc. 58-7, pp. 21-22. Plaintiff's partner that night, Michael Tarayos ("Tarayos"), a white male, was also issued a Letter of Warning. Richmond Dec., ¶ 11; see Doc. 58-7, pp. 25-26. Plaintiff admits that the error was made, but complains that her Letter of Warning stayed in her discipline file for two months, while Tarayos's was pulled after two weeks. Simmonds Dep., 240:5-242:2. Plaintiff did not contact an EEO counselor or file a formal or informal EEO complaint in connection with the Letter of Warning, which was ultimately expunged through the union grievance process. Id. at 239:17-240:4; SAF, ¶ 12; Richmond Dec., ¶ 10; see Doc. 58-7, p. 23.
9. August 21, 2011 Letter of Warning
On August 21, 2011, Richmond issued Plaintiff a Letter of Warning for unsatisfactory performance, specifically for an incident on August 11, 2011 where she ran the mail on her DBCS machine out of sequence and failed to put in the correct program after the first pass. SAF, ¶ 13; Richmond Dec., ¶ 7; see Doc. 58-3, pp. 99-100. Plaintiff admits the errors, but claims that she should not have been disciplined because the errors did not cause any problems, and that other employees were not disciplined for similar errors. Simmonds Dep., 222:15-227:10. Plaintiff did not contact an EEO counselor or file a formal or informal EEO complaint in connection with the Letter of Warning. SAF, ¶ 13.
10. October 28, 2011 Letter of Warning
On October 28, 2011, Richmond issued Plaintiff a Letter of Warning for an incident on October 19, 2011 where she left her DBCS machine and clocked out without informing her supervisors, and then returned and clocked back in after 1.81 hours without informing her supervisors. Id. at ¶ 14; Richmond Dec., ¶ 9; see Doc. 58-7, pp. 105-06. Richmond averred that Plaintiff placed a leave slip requesting sick leave on a computer in the supervisors' office, but that the slip was not found until the following day and therefore no supervisor approved the sick leave. Richmond Dec., ¶ 9. Plaintiff testified that she felt sick and filled out the leave slip to give to Richmond, but could not find any supervisor and instead left the slip on top of Richmond's computer keyboard. Simmonds Dep., 227:16-231:17. She further testified that after she went home and took her medicine, she felt better and reported back to work. Id. at 231:18-232:23. Plaintiff claims that Postal Service employees are not required to verbally receive permission for sick leave from a supervisor, as long as the employee provides the leave slip. Id. at 232:24-234:6. Plaintiff also alleges that Robert Forrester ("Forrester"), a white male, was not disciplined when he took sick leave without notifying a supervisor or providing a leave slip. Id. at 235:10-236:12.
On March 14, 2012, Plaintiff filed a formal EEO complaint, alleging that Richmond discriminated against her on the basis of race, color, national origin, and sex, and that he retaliated against her for her prior EEO activity. SAF, ¶ 14; see Doc. 58-3, pp. 102-03.
B. Procedural History
On December 3, 2009, Plaintiff, represented at the time by counsel, filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"). Doc. 1, ¶ 8. After receiving her notice of right to sue from the EEOC, Plaintiff filed the Complaint in this action on January 12, 2011, alleging: (1) Count I - retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) Count II - race discrimination in violation of Title VII; (3) Count III - Violation of the Florida Civil Rights Act ("FCRA"), Chapter 760; (4) Count IV - sex discrimination in violation of Title VII; and (5) Count V - sex discrimination in violation of Fla. Stat. § 760.10. See Doc. 1. On August 31, 2011, the Court dismissed Counts III and V of the Complaint pursuant to a joint stipulation of the parties. See Docs. 16, 17. Subsequently, the Court granted a motion by Plaintiff's counsel to withdraw from the case. See Docs. 20, 21.
On November 16, 2012, after receiving leave from the Court to amend her Complaint, see Doc. 52, Plaintiff, proceeding pro se, filed an Amended Complaint, purporting to add six additional "cases" of race and sex discrimination and retaliation under Title VII and the FCRA. See Doc. 53. As explained supra, note 2, the Court is considering the allegations in the original Complaint and the Amended Complaint together.
On December 13, 2012, Defendant filed the instant Motion for Summary Judgment on all of Plaintiff's claims. Doc. 58.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court that there is "an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323.
When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues of fact are "genuine only if a reasonable jury, considering the evidence present, could find for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Id. at 248-49 (emphasis in original). A fact is "material" if it may affect the outcome of the suit under governing law. Id. at 248. In determining whether a genuine issue of material fact exists, the court must consider all the evidence in the light most favorable to the nonmoving party. Celotex, 477 U.S. at 323.
III. DISCUSSION
A. Legal Framework of Title VII
After the Court dismissed the FCRA claims in the original Complaint pursuant to a joint stipulation of the parties, see Doc. 21, Plaintiff asserted a claim of race discrimination under the FCRA in her Amended Complaint, see Doc. 53, p. 1. Because claims under Title VII and the FCRA are analyzed under the same framework, the Court's analysis of Plaintiff's Title VII claims applies equally to her FCRA claim. See Gamboa v. Am. Airlines, 170 F. App'x 610, 612 (11th Cir. 2006). Accordingly, the Court's holdings as to Plaintiff's Title VII claims also resolve her FCRA claim.
1. Discrimination under Title VII
Title VII requires that personnel actions affecting employees of the Federal Government, including Postal Service employees, "be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16(a); Clark v. Potter, 232 F. App'x 895, 896 (11th Cir. 2007). A plaintiff in a Title VII action may attempt to show discrimination by offering either direct or circumstantial evidence. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). "Direct evidence of discrimination is evidence, that, if believed, proves the existence of a fact in issue without inference or presumption." Id. (internal punctuation and quotations omitted). Indeed, "direct evidence is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor." Id.
The protections afforded by 42 U.S.C. § 2000e-16(a) are equivalent to those granted by the more well-known discrimination provision of Title VII, 42 U.S.C. § 2000e-2(a), which covers private employers. See Putman v. Sec'y, Dep't of Veterans Affairs, 510 F. App'x 827, 829 (11th Cir. 2013); Clark, 232 F. App'x at 896.
When a plaintiff attempts to prove disparate treatment in violation of Title VII using circumstantial evidence rather than direct evidence, courts apply the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). Under this framework:
[T]he plaintiff first has the burden of establishing a prima facie case of discrimination, which creates a rebuttable presumption that the employer acted illegally. A plaintiff establishes a prima facie case of disparate treatment by showing that she was a qualified member of a protected class and was subjected to an adverse employment action in contrast with similarly situated employees outside the protected class . . . .Id. at 1087-88 (internal citations and quotations omitted).
When the plaintiff establishes a prima facie case, which creates the presumption of discrimination, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. The employer need not persuade the court that it was actually motivated by the proffered reasons. If the employer satisfies its burden by articulating one or more reasons, then the presumption of discrimination is rebutted, and the burden of production shifts to the plaintiff to offer evidence that the alleged reason of the employer is a pretext for illegal discrimination.
If the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it. Quarreling with that reason is not sufficient. The evidence of pretext may include, however, the same evidence offered initially to establish the prima facie case.
Despite the shifting of the burden of production between the plaintiff and the defendant under the McDonnell Douglas framework, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. A plaintiff may prevail on an employment discrimination claim by either proving that intentional discrimination motivated the employer or producing sufficient evidence to allow a rational trier of fact to disbelieve the legitimate reason proffered by the employer, which permits, but does not compel, the trier of fact to find illegal discrimination.
2. Retaliation under Title VII
Title VII's anti-retaliation provision makes it unlawful for an employer to discriminate against an employee "because [s]he has opposed any practice made an unlawful employment practice by [Title VII], or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a); Alvarez v. RoyalAtl. Developers, Inc., 610 F.3d 1253, 1268 (11th Cir. 2010). The protections of 42 U.S.C. § 2000e-3(a), which covers private employers, apply equally to employees of the Federal Government, including the Postal Service, pursuant to 42 U.S.C. § 2000e-16(a). Wiggins v. Sec'y, Dep't of Army, No. 12-15432, 2013 WL 2321410, at *1 (11th Cir. May 29, 2013); Porter v. Adams, 639 F.2d 273, 278 (5th Cir. Mar. 13, 1981). As with a Title VII discrimination claim, a plaintiff may attempt to show retaliation using direct or circumstantial evidence. See Clark v. Alabama, 141 F. App'x 777, 784-86 (11th Cir. 2005).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to October 1, 1981.
When a plaintiff in a Title VII retaliation case attempts to make her case using circumstantial evidence, courts apply the McDonnell Douglas burden-shifting framework used in Title VII discrimination claims. See McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). Thus, a plaintiff in a Title VII retaliation case must make a prima facie case of retaliation by showing that: (1) she engaged in statutorily protected conduct; (2) she suffered adverse employment action; and (3) there is "some causal relation" between the two events. Alvarez, 610 F.3d at 1268 (quoting McCann, 526 F.3d at 1375). The plaintiff may discharge its burden by demonstrating that the employer's decision-makers were aware of the protected conduct, and that the protected activity and the adverse action were not "wholly unrelated." McCann, 526 F.3d at 1376. "[C]lose temporal proximity may be sufficient to show that the protected activity and the adverse action were not wholly unrelated." Id. (internal quotations omitted). If the defendant then articulates a legitimate reason for its actions, the burden shifts back to the plaintiff to "show that the employer's proffered reasons for taking the adverse action were actually a pretext for prohibited retaliatory conduct. In order to do so, [the plaintiff] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Id. at 1375 (internal citations and quotations omitted).
3. Exhaustion of Administrative Remedies under Title VII
Before bringing a Title VII claim in federal court, a Federal Government employee must exhaust her administrative remedies. See 42 U.S.C. § 2000e-16(c); Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976); Brown v. Snow, 440 F.3d 1259, 1262 (11th Cir. 2006). One such requirement is that an aggrieved Federal Government employee must file a formal complaint with the agency that allegedly discriminated against her. Snow, 440 F.3d at 1262; 29 C.F.R. § 1614.106. An additional requirement is that, prior to filing the formal complaint with the agency, the employee must initiate contact with an EEO counselor within 45 days of the alleged discriminatory act in an attempt to informally resolve the matter. Robinson v. Jojanns, 147 F. App'x 922, 924 (11th Cir. 2005); Foxx v. Dalton, 46 F. Supp. 2d 1268, 1274 (M.D. Fla. 1999); 29 C.F.R. § 1614.105(a)(1). "An employee who fails to do so suffers the dismissal of [her] complaint." Robinson, 147 F. App'x at 924.
The requirement to contact an EEO counselor is subject to the doctrines of equitable tolling, waiver, and estoppel. Id.; see 29 C.F.R. § 1614.604(c). However, relief under these doctrines is granted "sparingly" and is appropriate primarily "in situations where a claimant has been induced or tricked by [her] adversary's misconduct." Jarvis v. Griffin, No. 6-08-cv-138, 2008 WL 5111242, at *3 (M.D. Fla. 2008) (internal citations and quotations omitted). "Equitable tolling applies when the defendant misleads plaintiff into allowing the statutory period to lapse, when plaintiff has no reasonable way of discovering the wrong perpetrated against [her], or when plaintiff files a technically defective pleading and in all other respects acts with the proper diligence which statutes of limitations were intended to insure." Robinson, 147 F. App'x at 924 (internal punctuation omitted) (citing Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993)).
B. Title VII's Application to Plaintiff's Claims
The Court discerns nine instances of alleged race- and sex-based discrimination and retaliation against Plaintiff from the original Complaint and Amended Complaint: (1) the June 25, 2009 Letter of Warning and June 29, 2009 Letter of Demand; (2) the October 29, 2009 Notice of 7-Day Suspension; (3) the December 7, 2009 Letter of Warning; (4) the January 19, 2010 Notice of 14-Day Suspension; (5) the May 14, 2010 Notice of 7-Day Suspension; (6) the October 26, 2010 Notice of 7-Day Suspension; (7) the January 20, 2011 Letter of Warning; (8) the August 21, 2011 Letter of Warning; and (9) the October 28, 2011 Letter of Warning. See Docs. 1, 53. The Court addresses each instance below.
1. June 25, 2009 Letter of Warning and June 29, 2009 Letter of Demand
Plaintiff's September 3, 2009 formal EEO complaint alleged that the June 25, 2009 Letter of Warning and the June 29, 2009 Letter of Demand (the "June 2009 Letters") were issued on the grounds of discrimination based on race and sex. SAF, ¶ 6; see Doc. 58-3, p. 16. In its Motion for Summary Judgment, Defendant argues that since Plaintiff's EEO complaint did not also raise retaliation, she failed to exhaust her administrative remedies and her claim is barred with respect to this instance of retaliation. See Doc. 58, p. 11.
The EEO complaint also alleged age and color discrimination. SAF, ¶ 6; see Doc. 58-3, p. 16. However, since neither the original Complaint nor the Amended Complaint allege age or color discrimination, the Court need not address such allegations in the EEO complaint. See Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004) (holding that any Title VII discrimination claims not raised in the plaintiff's complaint are properly dismissed).
With respect to the requirement that a claimant exhaust her administrative remedies, the Eleventh Circuit has explained:
The purpose of exhaustion is to permit the department the first opportunity to investigate the alleged discriminatory or retaliatory practices, and a plaintiff's judicial complaint is thereby limited by the scope of the investigation that can reasonably be expected to grow out of the administrative charge of discrimination or retaliation. See Gregory v. Georgia Dep't of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004). The proper inquiry is, therefore, whether the plaintiff's judicial complaint was like or related to, or grew out of, the administrative allegations. See id. at 1280. Judicial claims are allowed if they "amplify, clarify, or more clearly focus" the charges made before the agency, and, given that we are reluctant to allow procedural technicalities to bar Title VII claims, the scope of the administrative charges should not be strictly construed. See id. at 1279-80 (quotation omitted).Basel v. Sec'y of Def., 507 F. App'x 873, 875 (11th Cir. 2013).
Although Plaintiff's September 3, 2009 EEO complaint did not specify retaliation, her narrative attached to the Investigative Interview form in connection with the June 25, 2009 Letter of Warning indicates that she believed she was being retaliated against for filing previous EEO complaints. See Doc. 58-3, p. 31. As such, the Postal Service's investigation of her race and sex discrimination complaints would have also reasonably uncovered any evidence of retaliation. Given this evidence, as well as the strict construction accorded to procedural bars to Title VII claims, the Court finds that Plaintiff's retaliation claim reasonably grew out of her EEO complaint and is not barred for failure to exhaust administrative remedies. See Gregory, 355 F.3d at 1280 (holding that a claimant's retaliation claim was not administratively barred for failure to mark the retaliation space on the EEOC charge where "[a]n EEOC investigation of her race and sex discrimination complaints leading to her termination would have reasonably uncovered any evidence of retaliation."). Thus, the Court will address Plaintiff's retaliation claim, as well as her race and sex discrimination claims, with respect to the June 2009 Letters.
a. Race and Sex Discrimination
Plaintiff has not offered any remarks by her Postal Service supervisors which rise to the level of direct evidence of race or sex discrimination. Remarks that are subject to more than one interpretation do not constitute direct evidence. Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997). Moreover, "[t]o be direct evidence, the remark must indicate that the employment decision in question was motivated by race." Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-28 (11th Cir. 2002). Here, the only statement offered by Plaintiff which can even arguably be interpreted as discriminatory was Marchese's alleged comment that he "[didn't] care for that Puerto Rican" when referring to a male employee from Puerto Rico. See Simmonds Dep., 113:14-116:13. This comment was not directed at Plaintiff, was not directed at blacks or women, had no relation to an employment decision made by Marchese, and is clearly open to multiple interpretations. Therefore, the comment falls far short of being direct evidence of discrimination and is, at best, circumstantial evidence.
Because Plaintiff has offered no direct evidence of discrimination, she must establish a prima facie case of discrimination using circumstantial evidence by showing that: (1) she was a member of a protected class; (2) she was qualified to do the job; (3) she was subjected to an adverse employment action by her employer; and (4) similarly situated employees outside of the protected class were treated more favorably. Oliver v. Nat'l Beef Packing Co., LLC, 294 F. App'x 455, 457 (11th Cir. 2008) (citing Wilson, 376 F.3d at 1087). Of these four prongs, Defendant only disputes that Plaintiff suffered an adverse employment action, arguing that she did not lose any pay as a result of the June 2009 Letters. See Doc. 58, p. 12. For the reasons discussed below, the Court finds Defendant's argument to be well-taken.
To establish an adverse employment action in a Title VII discrimination claim, an employee "must show a serious and material change in the terms, conditions, or privileges of employment. Moreover, the employee's subjective view of the significance and adversity of the employer's action is not controlling; the employment action must be materially adverse as viewed by a reasonable person in the circumstances." Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). "Although [Title VII] does not require proof of direct economic consequences in all cases, the asserted impact cannot be speculative and must at least have a tangible adverse effect on the plaintiff's employment." Id. Put simply, "the protections of Title VII simply do not extend to everything that makes an employee unhappy." Id. at 1242. Thus, a Title VII discrimination claim "rarely may be predicated merely on [an] employer's allegedly unfounded criticism of an employee's job performance, where that criticism has no tangible impact on the terms, conditions, or privileges of employment." Id.
In Clark, the Eleventh Circuit considered whether a letter of warning issued to a Postal Service employee was an adverse employment action for purposes of a Title VII discrimination claim. 232 F. App'x at 896-97. In that case, the plaintiff, a black female, had been issued a letter of warning for disrespecting her supervisor by using profanity. Id. at 897. The plaintiff brought a Title VII discrimination claim against the Postmaster General, arguing that the letter of warning was evidence that her supervisors treated white employees more favorably. Id. at 896. The plaintiff admitted that she did not lose pay or suffer a loss of grade or employment benefits as a result of the letter of warning. Id. at 897. After the district court granted summary judgment to the Postmaster General, the Eleventh Circuit affirmed, holding that the issuance of the letter of warning was not an adverse employment action because the plaintiff did not lose any pay or other employment benefits, and there was no evidence of other tangible effects. Id.
Similarly here, Plaintiff has admitted that the June 2009 Letters were settled through the union grievance process and that she did not have to reimburse the Postal Service or lose any pay as a result. SAF, ¶¶ 4-5. Plaintiff has failed to present evidence of any other tangible effects that the June 2009 Letters had on the terms, conditions, or privileges of her employment. As such, the June 2009 Letters did not constitute adverse employment actions for purposes of a Title VII discrimination claim, and Plaintiff has failed to establish a prima facie case of discrimination. See Clark, 232 F. App'x at 897; Johnson v. Potter, 732 F. Supp. 2d 1264, 1279 (M.D. Fla. 2010) (holding that warning letters and suspensions issued to a Postal Service employee did not constitute adverse employment actions where they did not alter her pay or benefits or other conditions of employment).
Even assuming arguendo that Plaintiff had established her prima facie case, that would merely shift the burden to Defendant to articulate a legitimate, nondiscriminatory reason for issuing the June 2009 Letters. See Wilson, 376 F.3d at 1087. Defendant has easily met this burden, pointing to evidence that Plaintiff failed to perform her job by leaving three trays of mail on the Oviedo DBCS machine and that she failed to provide medical documentation for her absences from work. See Doc. 58-3, pp. 22, 25, 37-38, 43-45; Simmonds Dep., 52:9-53:5. Thus, the burden shifts back to Plaintiff to offer evidence that Defendant's justifications are pretextual. See Wilson, 376 F.3d at 1087. Plaintiff cannot recast these justifications; rather, she must meet them head on and rebut them. Id. at 1088. Quarreling with the justifications is not sufficient. Id. Ultimately, she may prevail by "either proving that intentional discrimination motivated the employer or producing sufficient evidence to allow a rational trier of fact to disbelieve the legitimate reason proffered by the employer, which permits, but does not compel, the trier of fact to find illegal discrimination." Id.
The only circumstantial evidence offered by Plaintiff to show discriminatory animus is Marchese's alleged remark that he "[didn't] care" for a Puerto Rican employee. See supra. For the reasons explained previously, this isolated remark—not even directed at Plaintiff or blacks or women, and unrelated to any employment decision—is far too attenuated to be persuasive circumstantial evidence of discriminatory intent in this case. Even giving Plaintiff the benefit of the doubt, the Court must read the statement in conjunction with the entire record and determine whether the statement, along with other evidence, might lead a reasonable jury to disbelieve Defendant's asserted justifications. Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1292 (11th Cir. 1998). For the reasons discussed below, the Court finds that Marchese's statement, together with Plaintiff's other proffered evidence, falls well short of creating a triable issue of material fact as to the discipline issued in the June 2009 Letters or any other discipline which is the subject of Plaintiff's claims.
Plaintiff contends that Daly "falsified" the evidence of the three trays of mail that were left on the Oviedo DBCS machine. Simmonds Dep., 71:6-73:2. She claims that her partner that night, John, was not disciplined because he is a white male. Simmonds Dep., 73:19-74:6. However, Plaintiff offers no evidence to support her assertion that Daly manufactured the evidence of the leftover trays of mail. Her conclusory allegations are insufficient to raise an inference of pretext. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987). As to the fact that John was not disciplined, Marchese stated that on the night in question, John was responsible for pulling down the mail from the back of the DBCS machine, while Plaintiff pulled down the mail from the front, where the leftover trays were found. Marchese Dec., ¶ 6. Moreover, John was not on the voluntary overtime list and, therefore, left work before Plaintiff, who was then responsible for clearing the DBCS machine before she left. Id. Plaintiff has failed to produce sufficient evidence to rebut this justification. Accordingly, she has failed to establish that Defendant's justification for issuing the June 25, 2009 Letter of Warning was pretext. As to the June 29, 2009 Letter of Demand, Plaintiff merely offers the vague, unsubstantiated assertion that her co-worker, Hoff, a white male, had also called out of work by using medical leave and failed to provide documentation, but was not issued a Letter of Demand. Simmonds Dep., 47:9-12, 53:6-20. This conclusory allegation is also insufficient evidence of pretext. See Grigsby, 821 F.2d at 597.
In sum, Plaintiff has failed to produce sufficient evidence from which a reasonable jury could conclude that Defendant's legitimate justifications for issuing the June 2009 Letters were pretextual. See Scott, 295 F.3d at 1230. Accordingly, Plaintiff's claims of age and sex discrimination with respect to the June 2009 Letters must fail.
b. Retaliation
To establish a prima facie case of retaliation under Title VII, Plaintiff must show that: (1) she engaged in statutorily protected conduct; (2) she suffered adverse employment action; and (3) there is "some causal relation" between the two events. Alvarez, 610 F.3d at 1268. Defendant does not dispute that Plaintiff engaged in protected conduct by filing the prior EEO complaints. Rather, Defendant argues that the issuance of the June 2009 Letters did not constitute an adverse employment action, and that there was no causal connection between her previous EEO complaints and the issuance of the June 2009 Letters. See Doc. 58, p. 12.
In the past, the Eleventh Circuit's standard for determining whether an employee suffered an adverse employment action was the same for Title VII discrimination claims and Title VII retaliation claims. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Thus, a plaintiff pursuing a Title VII retaliation claim had to show an "ultimate employment decision" resulting in a serious and material change in the terms, conditions, or privileges of employment. Id. However, following the Supreme Court's decision in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), the type of employer conduct considered to be an "adverse employment action" has been broadened for Title VII retaliation claims. Crawford, 529 F.3d at 973. Under the new standard, a plaintiff pursuing a retaliation claim must show that a reasonable employee would have found the challenged action to be materially adverse, regardless of whether the harm is employment- or workplace-related. Burlington, 548 U.S. at 68; Crawford, 529 F.3d at 973. A materially adverse action is one which "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington, 548 U.S. at 68; Crawford, 529 F.3d at 974.
The Eleventh Circuit has held that the Burlington standard for Title VII retaliation claims has no application to Title VII discrimination claims, and that the prior standard remains applicable for such claims. Crawford, 529 F.3d at 974 n.14.
Applied here, the Court finds that a reasonable employee would have found the issuance of the June 2009 Letters to be materially adverse. While these disciplinary letters did not have an ultimate effect on Plaintiff's pay or other conditions of employment, they would serve to dissuade a reasonable worker from making a discrimination charge and, as such, they constitute adverse employment actions for purposes of a Title VII retaliation claim under Burlington's broad standard.
While Plaintiff has established an adverse employment action with respect to her retaliation claim, the Court agrees with Defendant that Plaintiff has failed to establish a causal connection between her previous EEO complaints and the issuance of the June 2009 Letters. "The burden of causation can be met by showing close temporal proximity between the statutorily protected activity and the adverse employment action. But mere temporal proximity, without more, must be very close." Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (internal citations and quotations omitted). The Eleventh Circuit has repeatedly held that a three-to-four month disparity between the statutorily protected activity and the adverse employment action is not enough. Id. Here, the June 2009 Letters were issued almost two years after Plaintiff's previous EEO complaints were filed. See supra, Parts I.A.1 & 2. This temporal disparity falls well outside the range deemed necessary to establish causation, see Thomas, 506 F.3d at 1364, and Plaintiff has failed to present any other evidence tending to show causation. As such, her retaliation claim fails as a matter of law. See id.
Even if Plaintiff had established a prima facie case of retaliation with respect to the June 2009 Letters, the Court has already found that Defendant articulated legitimate reasons for issuing those disciplinary letters, and that Plaintiff has not put forth sufficient evidence of pretext. See supra, Part III.B.1.a. Therefore, Defendant is entitled to summary judgment on Plaintiff's retaliation claim with respect to those letters.
2. October 29, 2009 Notice of 7-Day Suspension
Defendant correctly argues that Plaintiff failed to exhaust her administrative remedies with respect to the October 29, 2009 Notice of 7-Day Suspension because she did not initiate contact with an EEO counselor within 45 days of receiving the Notice. See Doc. 58, pp. 14-15; Simmonds Dep., 123:12-20, 126:6-24; SAF, ¶ 7. While the requirement of timely contact with an EEO counselor is subject to the doctrines of equitable tolling, waiver, and estoppel, see Robinson, 147 F. App'x at 924, Plaintiff has not raised this argument and it is therefore waived. In any event, relief under these doctrines is granted "sparingly" and is appropriate primarily in situations where a claimant has been induced or tricked by her employer's misconduct. Jarvis, 2008 WL 5111242, at *3. Here, Plaintiff has failed to put forth any evidence that Defendant interfered with her attempts to initiate contact with an EEO counselor or file an EEO complaint. Indeed, the evidence shows that Plaintiff successfully initiated several EEO complaints, that she was well aware of the 45-day deadline, and that she simply "missed the deadline" in this instance. See Simmonds Dep., 126:22-24, 129:10-12. Nor has Plaintiff shown that she had no reasonable way of discovering the wrong perpetrated against her, or that she merely filed a technically defective pleading. See Robinson, 147 F. App'x at 924. Accordingly, dismissal of Plaintiff's claims with respect to the October 29, 2009 Notice of 7-Day Suspension is appropriate due to her failure to exhaust her administrative remedies. See id. (affirming the district court's dismissal of the plaintiff's Title VII discrimination claim where the plaintiff contacted an EEO counselor after the 45-day time limit had expired and the plaintiff did not meet the equitable tolling test).
3. December 7, 2009 Letter of Warning
Plaintiff also failed to exhaust her administrative remedies with respect to the December 7, 2009 Letter of Warning because she failed to file an EEO complaint in response to that discipline. See Simmonds Dep., 192:21-193:6. Moreover, there is no reason that equitable tolling should apply. See supra, Part III.B.2. Accordingly, the Court will dismiss Plaintiff's claims with respect to the December 7, 2009 Letter of Warning.
4. January 19, 2010 Notice of 14-Day Suspension
After Plaintiff was issued the January 19, 2010 Notice of 14-Day Suspension, she filed formal and informal EEO complaints, alleging retaliation and race and sex discrimination. SAF, ¶ 8; see Doc. 58-3, pp. 47-49, 51-52. Plaintiff's claims are addressed below.
The formal EEO complaint also alleged discrimination due to age, national origin, color, and disability. SAF, ¶ 8; see Doc. 58-3, p. 47. However, since neither the original Complaint nor the Amended Complaint raised those claims, the Court need not address such allegations in the EEO complaint. See supra, n.6.
a. Race and Sex Discrimination
Plaintiff has admitted that the January 19, 2010 Notice of 14-Day Suspension was rescinded through the union grievance process and that she did not lose any pay as a result. SAF, ¶ 8; Simmonds Dep., 154:7-155:10. As Plaintiff has failed to present evidence of any other tangible effects that the Notice of 14-Day Suspension had on the terms, conditions, or privileges of her employment, the issuance of the Notice did not constitute an adverse employment action for purposes of a Title VII discrimination claim, and she has failed to establish a prima facie case of discrimination. See supra, Part III.B.1.a.
Even assuming arguendo that Plaintiff had established a prima facie case, Defendant has articulated legitimate, nondiscriminatory reasons for issuing the Notice of 14-Day Suspension. Defendant points to evidence that Plaintiff failed to perform her job by improperly sweeping the bins from her DBCS machine, resulting in out-of-sequence mail, and that she violated Postal Service policy by failing to notify her supervisors that she lost her identification badge. See Doc. 58, pp. 16-17; Doc. 58-3, pp. 57-58. Therefore, the burden shifts back to Plaintiff to show that Defendant's asserted reasons are mere pretext.
Plaintiff contends that she was treated differently from Zipperer, a white female, because Plaintiff was disciplined for improperly sweeping the mail from her DBCS machine on December 18, 2009, while Zipperer, her partner on the machine that night, was not disciplined. See Simmonds Dep., 156:19-157:14, 162:21-163:18. However, Defendant presented evidence of the ensuing Investigative Interview, during which Zipperer informed Marchese that she and Plaintiff had split the sweeping of the bins in half, and that the bins with the errors were Plaintiff's bins. See Marchese Dec., ¶ 10; Doc. 58-6, p. 27. Based on this Investigative Interview, Marchese determined that the mail processing error was Plaintiff's fault. See Marchese Dec., ¶ 11. Even if Marchese was mistaken in his determination, such a mistake would not be a sufficient basis for a reasonable jury to conclude that Defendant's asserted justification was pretext in the absence of evidence of fabrication by Marchese. See Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1261 (11th Cir. 2001) ("[A]n employer who treats two employees differently because of a mistaken belief in the existence of a neutral reason does not violate Title VII.").
As to Plaintiff's failure to notify her supervisors about her lost identification badge, she claims that Valenski, a white male, also forgot to wear his badge but was told to simply go to the office and get a new badge, while she was disciplined. Simmonds Dep., 167:13-173:6. However, Defendant has presented evidence that Plaintiff was told by the office clerk to report back to the office to get a temporary badge after the clerk's shift ended and the next clerk's shift started, and that Plaintiff failed to report back to the office. Marchese Dec., ¶¶ 12-13. Based on her failure to report back, and on her refusal to answer Daly's questions about the incident, Marchese issued Plaintiff the discipline. Id. Plaintiff has not produced sufficient evidence to allow a reasonable jury to disbelieve Defendant's justification.
As a result, Plaintiff has failed to show that Defendant's asserted reasons for issuing the Notice of 14-Day Suspension were pretextual, and Defendant is entitled to summary judgment on her race and sex discrimination claims with respect to the discipline issued in the Notice.
b. Retaliation
Defendant does not dispute that Plaintiff has established a prima facie case of retaliation with respect to the January 19, 2010 Notice of 14-Day Suspension. Rather, Defendant argues that it had a legitimate reason for issuing the suspension, and that Plaintiff has failed to proffer sufficient evidence of pretext. See Doc. 58, pp. 16-18. Indeed, the Court has already determined that Defendant articulated legitimate reasons for issuing the suspension, and that Plaintiff has not put forth sufficient evidence of pretext. See supra, Part III.B.4.a. Therefore, Defendant is entitled to summary judgment on Plaintiff's retaliation claim with respect to the Notice of 14-Day Suspension.
5. May 14, 2010 Notice of 7-Day Suspension
Plaintiff's June 28, 2010 informal EEO complaint alleged that the May 14, 2010 Notice of 7-Day Suspension was issued in retaliation for her prior EEO activities. SAF, ¶ 10; see Doc. 58-3, p. 71. Plaintiff concedes that she has pursued this complaint on a retaliation theory. Simmonds Dep., 179:2-25. In any event, there is nothing in her informal EEO complaint that could be interpreted as alleging race or sex discrimination. See Doc. 58-3, pp. 71-73. Accordingly, no administrative investigation into race or sex discrimination could reasonably be expected to grow out of the complaint, and those claims are barred for failure to exhaust administrative remedies. See supra, Part III.B.1. Thus, the Court need only address retaliation with respect to the May 14, 2010 Notice of 7-Day Suspension.
The informal EEO complaint also alleged disability discrimination. SAF, ¶ 10; see Doc. 58-3, p. 71. However, since neither the original Complaint nor the Amended Complaint raised this claim, the Court need not address such allegations in the EEO complaint. See supra, n.6.
Even if the discrimination claims were not barred, they would be dismissed for the same reason as Plaintiff's retaliation claim with respect to the May 14, 2010 Notice of 7-Day Suspension—that is, failure to demonstrate pretext. See infra.
Defendant does not dispute that Plaintiff has established a prima facie case of retaliation with respect to the May 14, 2010 Notice of 7-Day Suspension. However, Defendant has articulated legitimate, nondiscriminatory reasons for issuing the Notice of 7-Day Suspension. Plaintiff failed to report to work on April 17, 2010 without prior notification to her supervisors, and failed to follow proper leave procedures on 33 occasions between February 26, 2010 and April 30, 2010 by failing to timely notify her supervisors that she was not reporting to work. See Doc. 58-3, pp. 75-80. Therefore, the burden shifts back to Plaintiff to show that Defendant's asserted reasons are mere pretext.
Plaintiff admits that she failed to timely call the automated line during her absences, but she claims that Postal Service policy only requires the individual to call in "as soon as possible." Simmonds Dep., 180:1-187:18. Her argument is misplaced. While Postal Service employee regulations do require the employee to notify a supervisor about an emergency absence "as soon as possible," the regulations also provide that such absences may be the basis for disciplinary action if the employee fails to provide satisfactory evidence of an actual emergency. See Doc. 58-3, p. 80. Plaintiff told Marchese that she called in late because she overslept due to her medication, which Marchese found to be an unsatisfactory excuse. Marchese Dec., ¶ 16. There is no evidence to suggest that Marchese's asserted justification for issuing the Notice of 7-Day Suspension is unworthy of credence, particularly in light of Plaintiff's high number of improperly-reported absences during the relevant time period. Plaintiff also argues that the Notice of 7-Day Suspension charged her with "unsatisfactory performance" with respect to the 33 absences, but that the absences were not a "performance" issue, and that she should have been charged with "unsatisfactory attendance" instead. Simmonds Dep., 188:11-25. However, the mere wording of the Notice is utterly insufficient evidence that Marchese's justification should be disbelieved. Plaintiff has failed to carry her burden of establishing pretext with respect to the discipline issued in the May 14, 2010 Notice of 7-Day Suspension. Therefore, Defendant is entitled to summary judgment on her corresponding retaliation claim.
6. October 26, 2010 Notice of 7-Day Suspension
Plaintiff's February 9, 2011 formal EEO complaint alleged that the October 26, 2010 Notice of 7-Day Suspension was issued in retaliation for her prior EEO activities. SAF, ¶ 11; see Doc. 58-3, p. 91. There is nothing in her formal EEO complaint that could be interpreted as alleging race or sex discrimination. See Doc. 58-3, p. 91. Accordingly, no administrative investigation into race or sex discrimination could reasonably be expected to grow out of the complaint, and those claims are barred for failure to exhaust administrative remedies. See supra, Part III.B.1. Thus, the Court need only address retaliation with respect to the October 26, 2010 Notice of 7-Day Suspension.
Even if the discrimination claims were not barred, they would be dismissed for the same reason as Plaintiff's retaliation claim with respect to the October 26, 2010 Notice of 7-Day Suspension—that is, failure to demonstrate pretext. See infra.
Defendant does not dispute that Plaintiff has established a prima facie case of retaliation with respect to the October 26, 2010 Notice of 7-Day Suspension. However, Defendant has articulated legitimate, nondiscriminatory reasons for issuing the Notice of 7-Day Suspension. Plaintiff did not follow Gusty's instruction to clock out for her lunch break, and she yelled at him when he questioned her about it. See Doc. 58-3, p. 93. Therefore, the burden shifts back to Plaintiff to show that Defendant's asserted reasons are mere pretext.
Plaintiff contends that other employees take wash-up time to do various activities, and that they do not clock out for this time. Simmonds Dep., 214:3-220:19. However, this does not erase the fact that she ignored Gusty's instruction to clock out. In any event, Plaintiff's unsupported assertion is insufficient evidence of pretext. See Grigsby, 821 F.2d at 597. Moreover, while Plaintiff denies yelling at Gusty, Daly heard Plaintiff yelling at Gusty over his supervisor's radio and went to the break room to deal with the situation. Daly Dec., ¶ 6. Plaintiff has failed to introduce sufficient evidence for a reasonable factfinder to find Defendant's asserted reasons for issuing the Notice of 7-Day Suspension unworthy of credence. Therefore, Defendant is entitled to summary judgment on her corresponding retaliation claim.
7. January 20, 2011 Letter of Warning
Defendant correctly argues that Plaintiff failed to exhaust her administrative remedies with respect to the January 20, 2011 Letter of Warning because she failed to initiate contact with an EEO counselor within 45 days of receiving the Letter. See Doc. 58, p. 21; SAF, ¶ 12; Simmonds Dep., 239:17-240:4. Moreover, there is no reason that equitable tolling should apply. See supra, Part III.B.2. Accordingly, the Court will dismiss Plaintiff's claims with respect to the January 20, 2011 Letter of Warning.
8. August 21, 2011 Letter of Warning
Defendant correctly argues that Plaintiff also failed to exhaust her administrative remedies with respect to the August 21, 2011 Letter of Warning because she failed to initiate contact with an EEO counselor within 45 days of receiving the Letter. See Doc. 58, p. 22; SAF, ¶ 13. Moreover, there is no reason that equitable tolling should apply. See supra, Part III.B.2. Accordingly, the Court will dismiss Plaintiff's claims with respect to the August 21, 2011 Letter of Warning.
9. October 28, 2011 Letter of Warning
After Plaintiff was issued the October 28, 2011 Letter of Warning, she filed a formal EEO complaint, alleging retaliation and race and sex discrimination. SAF, ¶ 14; see Doc. 58-3, pp. 102-03. Plaintiff's claims are addressed below.
The formal EEO complaint also alleged discrimination due to national origin and color. SAF, ¶ 14; see Doc. 58-3, p. 102. However, since neither the original Complaint nor the Amended Complaint raised those claims, the Court need not address such allegations in the EEO complaint. See supra, n.6.
--------
a. Race and Sex Discrimination
Defendant does not dispute that Plaintiff has established a prima facie case of race and sex discrimination with respect to the October 28, 2011 Letter of Warning. However, Defendant has articulated a legitimate, nondiscriminatory reason for issuing the Letter of Warning. Plaintiff left her DBCS machine and clocked out without informing her supervisors, and then returned and clocked back in after 1.81 hours without informing her supervisors. See Richmond Dec., ¶ 9; Doc. 58-7, p. 105. Therefore, the burden shifts back to Plaintiff to show that Defendant's asserted reason is mere pretext.
Plaintiff contends that she left a leave slip on Richmond's computer keyboard because she could not find a supervisor. See Simmonds Dep., 230:16-231:17. However, the evidence indicates, and Plaintiff does not dispute, that the leave slip was not found until the following day and, therefore, the leave was not approved. See Richmond Dec., ¶ 9. Accordingly, Plaintiff has not discredited Richmond's asserted reason for issuing the Letter of Warning. Plaintiff also offers vague, unsupported allegations that Forrester, a white male, was not disciplined when he took sick leave without notifying a supervisor or providing a leave slip. See Simmonds Dep., 235:10-236:12. However, these are the sort of conclusory allegations which are insufficient evidence of pretext. See Grigsby, 821 F.2d at 597. Plaintiff has failed to introduce sufficient evidence for a rational factfinder to disbelieve Defendant's justification for issuing the Letter of Warning. Therefore, Defendant is entitled to summary judgment on Plaintiff's corresponding race and sex discrimination claims.
b. Retaliation
Defendant does not dispute that Plaintiff has established a prima facie case of retaliation with respect to the October 28, 2011 Letter of Warning. However, as the Court has already determined, Defendant articulated a legitimate reason for issuing the Letter of Warning, and Plaintiff has not put forth sufficient evidence of pretext. See supra, Part III.B.9.a. Therefore, Defendant is entitled to summary judgment on Plaintiff's retaliation claim with respect to the Letter of Warning.
IV. CONCLUSION
For the aforementioned reasons, the Court will grant Defendant's Motion for Summary Judgment, as no genuine issues of material fact exist and there is an absence of evidence to support the causes of action in Plaintiff's original Complaint and Amended Complaint. Defendant is entitled to judgment in its favor as a matter of law.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. Defendant Postmaster General's Motion for Summary Judgment (Doc. 58) is GRANTED.
2. The Clerk is directed to terminate any pending motions and deadlines as moot, enter judgment in favor of Defendant, and close this case.
DONE and ORDERED in Orlando, Florida on September 24, 2013.
____________
Charlene Edwards Honeywell
United States District Judge
Copies furnished to: Counsel of Record
Unrepresented Parties