Neither rain, nor shine, nor discrimination lawsuits…
The Southern District of New York recently granted summary judgment in favor of the U.S. Postal Service in a discrimination and retaliation lawsuit. The decision is Jimenez v. Donahoe, decided September 11, 2013.
Plaintiff Carlos Jimenez, a mail handler (and musician) alleged that he was subjected to discrimination based on his race and national origin, and in retaliation for his Equal Employment Opportunity complaints.
First, the court held that plaintiff, a federal employee, failed to timely assert his Title VII claim.
“[A] federal employee asserting a Title VII claim must contact an agency counselor within 45 days of the matter alleged to be discriminatory.” Plaintiff complained that his supervisor did not allow him to be interviewed by an internal USPS magazine (in connection with his musical career), but he didn’t bring the matter to the attention of an EEO counselor until eight months later.
The court noted that “even if Jimenez had timely contacted an EEO counselor, the proposed interview related to Jimenez’s alternative career as a musician, not the terms or conditions of his employment at the USPS” and therefore “any wrong that may have occurred did not affect a “privilege of employment” that is entitled to protection under Title VII.”
Second, the court held that plaintiff did not establish an “adverse employment action” sufficient to establish a prima facie case of discrimination.
The law provides:
A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment. … To be materially adverse, the change must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of materially adverse changes include “a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.
Plaintiff failed to meet this standard:
Several of Jimenez’s allegations involve circumstances that do not constitute materially adverse changes in the terms and conditions of his employment. For example, Jimenez complains about his reassignment from particular weekend work sections for a period of months. Notably, it does not appear that his work hours changed; he simply was required to perform other work that was less to his liking. However, a plaintiff’s subjective dissatisfaction with assignments does not constitute adverse employment action. … Jimenez’s reassignment to a different work section therefore does not give rise to a Title VII violation.
Similarly, Jimenez complains about harassment by supervisor Garrett on a single occasion in 2007. The Second Circuit has recognized that a single extraordinarily severe” event may alter the conditions of an employee’s working environment and therefore constitute a materially adverse action. … Thus, a worksite rape in a suit alleging sex-based discrimination clearly would qualify. … To be actionable, however, the single incident must give rise to an intolerable alteration of the plaintiff’s working conditions that substantially interfere[s] with or impair[s] his ability to do his job. … A directive that an employee return to his work, no matter how harshly delivered, is not the sort of extraordinary event that could fairly be characterized as a materially adverse employment action.
The court therefore concluded that “Jimenez’s harassment claim arising out of his interaction with Garrett in 2007 consequently fails to state a prima facie claim of discrimination or retaliation.”
Third, the court held that plaintiff failed to show that the actions taken against him – even assuming they were “adverse employment actions” – were “taken under circumstances giving rise to an inference of discrimination” in connection with his prima facie case.
For example, when asked whether his supervisor “had done or said anything that led him to believe that her directive to return to work was based on his race or national origin,” plaintiff responded equivocally by saying:
None of the supervisors will ever put themselves in a position where they, you know, they can get written up for something that they say. Like who is going to say, you know, “I don’t like you because your [sic] Latino.” Who is going to say that? So they do little things that go — that make you feel that way. But words, it’s impossible for them to say something like that. Even if they say it, will I be able to prove it?
He also claimed that he was paged constantly when he went to the restroom. But when asked whether this paging had a discriminatory motive, plaintiff responded:
I can’t really be sure of that. I have to find out once this case is being reviewed by the court. That’s something that I’m not a professional attorney or I don’t know, you know. I can’t really say. That’s what I feel.
The court held that this was insufficient, since “[s]peculation … is not a substitute for admissible evidence.” In sum, the court held that plaintiff failed to establish a prima facie case of discrimination.
Finally, the court rejected plaintiff’s retaliation claims. Plaintiff alleged that the USPS took various actions against him because of his EEO activity.
Specifically, he claimed that the USPS: “(a) paged him every time he went to the bathroom; (b) failed to remove certain disciplinary actions from his personnel file; (c) wrongfully rejected his medical documentation; and (d) suspended him for fourteen days in 2007 without cause.”
The court evaluated each alleged adverse action, finding that none supported a retaliation claim under the “but for” causation standard of Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533, 2534 (2013).