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McCraney v. Brennan

United States District Court, E.D. Louisiana

April 17, 2017


         SECTION: "B"(5)



         Before the Court are the Rule 56 motions for summary judgment of Defendant, Megan J. Brennan, Postmaster General of the U.S. Postal Service (“USPS”). (Rec. docs. 23, 24).[1] Those motions, accompanied by supporting memoranda and by separate statements of undisputed facts as respectively required by Local Rules 7.4 and 56.1, were previously noticed for submission in conformity with Local Rule 7.2. (Id.). Also before the Court is a filing from pro se Plaintiff, Danny K. McCraney, denominated “Motion for Reconsideration” (rec. doc. 28), which reads in part as a request for reconsideration of the Court's prior order dismissing Defendant's motion to compel as moot. (Rec. doc. 26). As so construed, Plaintiff's filing was not noticed for submission as required by Local Rule 7.2 or accompanied by a proposed order as provided for by Local Rule 7.3, was unaccompanied by a separate supporting memorandum as mandated by Local Rule 7.4, and does not even bear a certificate of service as Local Rule 5.4 requires. Otherwise, Plaintiff's filing appears to be a response to one or both of Defendant's motions for summary judgment which contains no separate statement of material facts under Local Rule 56.2 and was filed untimely under Local Rule 7.5 without leave of court being first obtained. The foregoing rules violations notwithstanding, it is ordered, for the reasons that follow, that Defendant's motions be granted and that this consolidated matter be dismissed.

         The above-captioned matter had its genesis on August 7, 2015 when Plaintiff tendered to the Clerk of Court two separate pro se complaints. In the lower-numbered of the two complaints, Plaintiff alleged that his employer, the USPS, had violated his “… rights … [against] constant on the job harassment and discrimination after returning to work on a last chance agreement, ” for which he sought $300, 000 in damages. (Rec. doc. 1 in No. 15-CV-3368). Plaintiff attached to his complaint a copy of a decision of the U.S. Equal Employment Opportunity Commission, Office of Federal Operations (“EEOC-OFO”), denying his request for reconsideration of the previous denial of an EEO complaint wherein McCraney alleged that his employer had discriminated against him on the basis of reprisal by subjecting him to a hostile work environment. (Rec. doc. 1-1 in No. 15-CV-3368). Examples of such a hostile work environment included Plaintiff being given a schedule for his breaks and lunch; being given an investigative interview on February 25, 2012; being threatened with an investigative interview on April 11, 2012 if he missed the appointed dispatch time; being threatened with an investigative interview and the summoning of Postal Police on April 12, 2012 if Plaintiff drove by a management official again on his tow motor without blowing his horn; being falsely accused of threatening a co-worker on April 18, 2012; and, being given an investigative interview, denied union representation, and being subjected to management delay in the awarding of a detail assignment on April 25, 2012. (Id.).

         In the higher-numbered of the two complaints that he filed, Plaintiff charged his employer with violating his rights “… by not following appropriate policy and procedures which includes the ‘Zero [T]olerance Policy.'” (Rec. doc. 1, p. 1 in No. 15-CV-3369). Plaintiff alleged that he had been placed on non-pay status at the USPS for 14 months after being falsely accused of threatening a supervisor, an accusation that was not borne out by the evidence. (Id.). Plaintiff further alleged that management staff failed to conduct an investigation, failed to make a threat assessment, and failed to obtain a statement from him on the night of the incident, resulting in him having no income for 14 months while management investigated the incident, which was never validated. (Id.). Damages were approximated to be $250, 000. (Id. at p. 2). Plaintiff attached to his complaint a copy of an administrative decision of the EEOC-OFO denying his request for reconsideration in that separate matter. (Rec. doc. 1-1 in No. 15-CV-3369). In that decision, the EEOC-OFO summarized Plaintiff's EEO complaint as “… alleging that the Agency discriminated against him on the basis of race (African American) when, on August 25, 2010, he was placed off the clock in a non-pay status; and on September 13, 2010, he was issued a notice of removal, effective October 22, 2010.” (Id.).[2] Before turning to the standards governing the review of Plaintiff's substantive claims, the specific instances of discrimination alleged by him, and the arguments advanced by Defendant in her motions, the Court first recalls the law applicable to Rule 56 motions.

         Under Rule 56(a), summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). ‘”Procedurally, the party moving for summary judgment bears the initial burden of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.'” Langlinais v. Coleman, No. 13-CV-3003, 2015 WL 225222 at *1 (E.D. La. Jan. 15, 2005)(citing Taita Chemical Co., Ltd. v. Westlake Styrene Corp., 246 F.3d 377, 385 (5th Cir. 2001)). The party opposing summary judgment must then “… go beyond the pleadings and by[his or] her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. “The Court has no duty to search the record for evidence to support a party's opposition to summary judgment; rather, ‘[t]he party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim.'” Langlinais, 2015 WL 225222 at *1 (quoting Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998)). That burden is not satisfied by “…'some metaphysical doubt as to the material facts, ' … by ‘conclusory allegations, ' … by ‘unsubstantiated assertions, ' … or by only a ‘scintilla' of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(citations omitted). The nonmovant “… must adduce admissible evidence which creates a fact issue concerning the existence of every essential component of that party's case; naked assertions of an actual dispute will not suffice.” Matter of Lewisville Properties, Inc., 849 F.2d 946, 950 (5th Cir. 1998).

         In Rowe v. Jewell, 88 F.Supp.3d 647, 671-73 (E.D. La. 2016), Chief Magistrate Judge Wilkinson of this Court noted the distinction between causes of action premised on a hostile work environment and those based on retaliation and the different frameworks under which those causes of action are analyzed. The court in Rowe went on to observe, as did the Fifth Circuit in Bryan v. Chertoff, 217 Fed.Appx. 289, 293 (5th Cir. 2007), that various other circuits had previously recognized a Title VII cause of action for retaliatory hostile work environment. Id. In the absence of a more definitive decision from the Fifth Circuit on the subject, the court in Rowe, just as other district courts in this circuit had done, assumed the existence of a cause of action for retaliatory hostile work environment to which was applicable a modified version of the standard governing traditional hostile work environment claims. Id. Accordingly, in order to make out a successful retaliatory hostile work environment claim, a plaintiff would need to establish that: 1) he engaged in protected activity; 2) he was a victim of harassment; 3) a causal connection exists between the harassment and the protected activity; 4) the harassment affected a “term, condition, or privilege” of his employment (i.e., the harassment was so severe or pervasive as to alter the conditions of his employment and to create an abusive working environment); and 5) the employer knew or should have known of the harassment and failed to take prompt remedial action.[3]

         In adopting the modified framework to be applied to retaliatory hostile work environment claims, the Rowe court cited with approval Growski v. Peake, 682 F.3d 1299, 1312-13 (11th Cir. 2012), which equated the “severe or pervasive” element of the test with the “adverse employment action” prong of a prima facie case of retaliation: “'the actions complained of were sufficiently severe or pervasive to alter the terms and conditions of employment, thus constituting an adverse employment action.'” Rowe, 88 F.3d at 674 (quoting Gowski, 682 F.3d at 1312). The Gowski Court had also held that “but-for causation, ” which is the third, pretext element of a retaliation claim, “… still ‘matters in a retaliatory hostile work environment claim - that is, the severe and pervasive accumulation of actions that would not have occurred but-for the retaliatory reason, even if each action alone was justifiable.'” Id. (quoting Gowski, 682 F.3d at 1313)(footnote omitted).[4]

         With the foregoing standards in mind, the Court turns to the specific incidents of alleged harassment complained of by Plaintiff. He first complained that he was given a schedule within which to take breaks and lunch. According to the 28 U.S.C. §1746 declaration of Yvette Bradley, an attorney with the Southern Area Law Department of the USPS whose duties include representing the interests of the USPS in EEO proceedings and maintaining the records of such proceedings, on November 1, 2011, Plaintiff had returned to work pursuant to a “Last Chance Agreement” after a 14-month absence. (Rec. doc. 24-2). As part of the inquiry into Plaintiff's charge of discrimination, investigative affidavits were obtained from various USPS employees whom Plaintiff had identified as the responding management officials. (Id. at pp. 1-2). Among those officials was Orlando Reed (“Reed”), Manager of Distribution and Operations (“MDO”) at the New Orleans Processing & Distribution Center (“PD&C”) and one of Plaintiff's second-line supervisors. (Id.). In his affidavit, Reed explained that prior to November 17, 2011, Plaintiff had no break/lunch schedule at all and that he had complained of working all night and not getting a break or lunch. (Rec. doc. 24-3, p. 3). Accordingly, Plaintiff was given a set schedule for lunch and two breaks. (Id. at p. 23). This accommodation, made in response to Plaintiff's specific complaint, can hardly satisfy the “severe or pervasive” element of the retaliatory hostile work environment test.

         Next, Plaintiff complained that on February 25, 2012, he was given an investigative interview. As established by Defendant's summary judgment materials, Andrew Lea (“Lea”), Plaintiff's supervisor, was instructed by Reed to conduct an investigative interview of Plaintiff in connection with the Reed's belief that Plaintiff was delaying the dispatch of mail. (Rec. doc. 24-3 at p. 41). After conducting the interview, Lea explained to Reed that at that time, the docks were congested and that Plaintiff had to drive with greater care so as not to hit anyone. (Id.). Lea further attested to the fact that all information pertaining to the incident had been destroyed and that no further action was taken. (Id.). An internal investigation of an employee's conduct is not sufficiently severe to alter a term, condition, or privilege of his employment. McGarry v. Univ. of Miss. Med. Ctr., 355 Fed.Appx. 853, 858 (5th Cir. 2009)(citing Shepherd v. Comptrollers of Pub. Accounts, 168 F.3d 871, 872-74 (5th Cir.), cert. denied, 528 U.S. 963, 120 S.Ct. 395 (1999)).

         Plaintiff next complained in his EEO complaint that on April 11, 2012, he was threatened with an investigative interview if he missed the dispatch time. In his investigative affidavit of October 12, 2012, Reed attested to having no knowledge of Plaintiff's accusation or of any counseling or discipline being meted out in connection with the missing of dispatch time. As noted above, even if an investigative interview had occurred, it would not be actionable under Title VII. McGarry, 355 Fed.Appx. at 858.

         In his next specification of reported discrimination, Plaintiff alleged that on April 12, 2012, that he was subjected to an investigative interview and that “management” threatened to summon the Postal Police if Plaintiff drove by a certain official again on his motor tow without blowing his horn. A review of the exhibits attached to Defendant's motion reveals that on the aforementioned date at 5:10 a.m., Rosia Thomas (“Thomas”), a Distribution Operations Supervisor at the New Orleans PD&C, conducted a 20-minute interview of Plaintiff, in the presence of a union representative, in connection with a complaint of willfully delaying the mail the previous day. (Rec. doc. 24-3, pp. 26-27, 37-38). At the interview, Plaintiff was asked if he knew that the mail had not been dispatched from the small parcel bundle sorter the day before when the mail had been ready, thus causing delayed mail distribution for the New Orleans PD&C. (Id.). Plaintiff responded that dispatching the mail was not his responsibility when he was on a scheduled break and that Reed had caused the delay by not assigning another employee to dispatch the mail while he was so indisposed. (Rec. doc. 24-3 at p. 37).

         Approximately one hour following Thomas' interview, Plaintiff was observed to drive his motor tow within 2.5 inches of Reed's backside, almost hitting him, at a time when the aisle was clear and there was no congestion or anyone else driving or in the way. (Rec. doc. 24-3 at p. 20). Plaintiff was notified of the occurrence by Reed and was told that he must have a tow motor with a working horn and that he was expected to obey all safety rules. (Id. at pp. 20, 21). Reed also placed Plaintiff “on notice” with respect to his provocative actions and advised him that such behavior would not be tolerated in the future. (Id.). In his investigative affidavit, Reed denied threatening to call Postal Police if Plaintiff drove by him again without blowing his horn. (Id. at p. 9).

         As set forth in the USPS' “Postal Employee's Guide to Safety, ” workers are prohibited from operating vehicles such as tow motors “in a reckless manner” and are specifically directed to “[s]ound your horn to warn pedestrians of your approach.” (Rec. doc. 24-3, pp. 93-94). The Agency's “Postal Service Policy on Workplace Harassment” further provides that “[a]llegations involving any possible criminal misconduct should be reported to the appropriate law enforcement authorities as follows: any physical misconduct relating to workplace harassment (i.e., any physical assault, threat of a physical assault, or striking) should be reported to the Postal Inspection Service, …” (Id. at pp. 96-97). Here, again, the conducting of an ...

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