Opinion
CIVIL NO. H-00-3315
July 17, 2001
ORDER
For the reasons stated in the Court's Memorandum Opinion of today, it is this 17th day of July, 2001 by the United States District Court for the District of Maryland,
ORDERED:
1. That defendant's motion for summary judgment is hereby granted; and
2. That judgment is hereby entered in favor of defendant, with costs.
MEMORANDUM OPINION
Plaintiff Sandra R. Copes ("Copes") was formerly employed by the United States Postal Service (the "Postal Service"). In this civil action, Copes has sued the Postal Service under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), and under the Rehabilitation Act of 1973, 29 U.S.C.A. § 701 et seq. ("Rehabilitation Act").Claims of disparate treatment, disparate impact and unlawful retaliation have been asserted under Title VII, and claims of failure to accommodate and wrongful discharge have been asserted under the Rehabilitation Act. Plaintiff is seeking reinstatement by the Postal Service, back pay, compensatory and punitive damages, as well as attorney's fees, costs and other relief.
Presently pending before the Court is defendant's motion to dismiss or for summary judgment. The parties have submitted lengthy memoranda and numerous exhibits in support of and in opposition to the pending motion. There have previously been extensive administrative proceedings relating to plaintiff's claims. In support of its pending motion, defendant has submitted numerous documents which formed a part of the prior administrative record, including pleadings, affidavits and rulings made by an Administrative Judge of the Equal Employment Opportunity Commission ("EEOC").
Following its review of the parties' submissions, the Court has concluded that no hearing is necessary for a decision on the pending motion. See Local Rule 105.6. For the reasons stated herein, defendant's pending motion for summary judgment will be granted.
I Background Facts
Plaintiff Copes is an African-American female and a Baptist minister. In April 1986, Copes began her employment with the Postal Service as the operator of a letter sorting machine at its Salisbury, Maryland Post Office. In May 1993, the Postal Service eliminated plaintiff's position and transferred her to the position of window distribution clerk at its Post Office in St. Michaels, Maryland. Paul Alexander ("Alexander") was the manager of Postal Service operations in the Salisbury station during all relevant times, and Richard Hastings ("Hastings") was the postmaster at the St. Michael's location and plaintiff's direct supervisor during her active employment at that location from August 1993 through December 1996.
In general, the amended complaint alleges that Hastings, Alexander and other Postal Service personnel caused substantial harm to plaintiff by harassing and discriminating against her because of her race (Count I), color (Count II), sex (Count III) and religion (Count IV). In Count VI, Copes alleges that her employment with the Postal Service was terminated in retaliation for the filing by her of a complaint of discrimination with the Postal Service, with the EEOC and with this Court. In Count V, it is asserted that plaintiff is disabled within the meaning of the Rehabilitation Act, and that the Postal Service refused to reasonably accommodate her disability and then discharged her "solely because of her disability."
In support of her claims of discrimination asserted in Counts I through IV, Copes alleges that, as an African-American female Baptist minister, she was treated differently from other employees at the St. Michael's Post Office who were non-African-American, non-black, male, and/or non-Baptist. In particular, Copes claims that she was discriminatorily denied various listed opportunities and benefits granted to other employees. Plaintiff also asserts that she was given increased responsibilities due to her race, color, gender and religion, and that the Postal Service's overall policies, practices and procedures favor non-African-American, non-black, male, and/or non-Baptist employees.
Plaintiff sought Equal Employment Opportunity ("EEO") counseling for the first time on January 15, 1997 as a result of an incident which occurred on December 5, 1996. On that day, Copes reported to work as usual at 8:15 a.m. Around 9:45 a.m. she asked Hastings if she could take sick leave in order to care for her ailing mother. Hastings denied this request and then left the St. Michael's Post Office in order to attend a Postal Service meeting in Cambridge, Maryland. While Hastings was gone, plaintiff claims that she became so upset that she could no longer perform her duties as a window clerk. Plaintiff thereupon left her position and drove straight to the office of her doctor, who diagnosed her as suffering from work-related stress and anxiety. Copes contends that as a result of this condition, she has not returned to work for the Postal Service since December 5, 1996. On December 30, 1996, Copes was granted retroactive sick leave for part of her workday on Thursday, December 5, 1996 and all of her workday on Friday, December 6, 1996. She failed to report to work on Monday, December 9, 1996 and was placed on Leave Without Pay ("LWOP") status at that time. Copes later filed with the Postal Service an injury compensation claim. This claim was later denied.
The amended complaint alleges that plaintiff also sought EEO counseling in November 1996. However, there is no evidence of such a request in the record presently before the Court.
The parties dispute whether the incident in question occurred on December 4 or December 5, 1996. This Court agrees with defendant's assertion that the particular date of this incident is not material to either plaintiff's claims or defendant's responses. The Court will therefore assume that the event in question occurred on December 5, 1996, as claimed by plaintiff.
Having been advised by an EEO counselor of her right to do so, plaintiff on April 17, 1997 filed with the Postal Service a formal complaint of discrimination, setting forth twenty different acts or incidents of discrimination. This complaint did not allege any acts of discrimination based upon plaintiff's disability. In a written opinion dated October 8, 1997, the Postal Service accepted in part for investigation and dismissed in part various claims asserted by plaintiff. Four alleged acts of discrimination were dismissed in toto as untimely, and three other incidents were dismissed because plaintiff had failed to provide any evidence which would suggest that she suffered a personal loss or harm with respect to a term, condition or privilege of her employment.
According to EEOC regulations, "[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105 (a). Therefore, any discriminatory actions which occurred prior to December 1, 1996 were dismissed by the Postal Service as untimely, since Copes never requested EEO counseling until January 15, 1997.
Pursuant to this October 8, 1997 opinion, the Postal Service then investigated plaintiff's remaining claims of discrimination and issued a report dated March 10, 1998. On July 13, 1998, Copes requested a hearing before an administrative judge of the EEOC. On December 16, 1998 and January 26, 1999, counsel for both parties participated in pre-hearing conference calls with Administrative Law Judge Mary Palmer. Comprehensive pre-hearing statements were submitted by the parties, as well as memoranda of law relating to plaintiff's reliance on the theory of "continuing violation" in contending that her claims were not barred by limitations. After considering these submissions and the Postal Service's investigative file, Judge Palmer issued a written decision without a hearing on July 10, 2000. Judge Palmer concluded that Copes had failed to establish that she had been subjected to discrimination on any basis when she was denied the use of sick leave on December 5, 1996. Judge Palmer also determined that Copes' other allegations of harassment had not been timely raised and were not part of a general pattern of discrimination which would warrant the application of the continuing violation theory.
Plaintiff did not seek to return to work during 1997, 1998 or 1999 but remained during the administrative proceedings on LWOP status. On July 31, 2000, J.R. Roe ("Roe"), the new St. Michael's postmaster, sent Copes an "options" letter. Pursuant to established Postal Service policy, Copes was given fifteen days to choose one of the following options: (1) apply for permanent light duty, (2) request a transfer of crafts, (3) apply for disability retirement, or (4) resign from the Postal Service. On August 9, 2000, the Postal Service issued a Notice of Final Action which indicated that it would "implement the decision" of Judge Palmer. In a letter to Roe dated August 29, 2000, Copes stated that "I am in no condition to make any decisions I'm leaving it up to my attorney to handle any/all the necessary paperwork concerning me."
On November 7, 2000, plaintiff filed her original complaint in this Court. Later, on December 26, 2000, Roe sent plaintiff a "notice of separation" letter. This letter explained that effective January 30, 2001, Copes' employment with the Postal Service would be terminated because she had not availed herself of any of the options set forth in the "options" letter of July 31, 2000. On March 22, 2001, before defendant had answered the original complaint, plaintiff filed an amended complaint which added Counts V and VI, alleging claims of discrimination based upon disability and unlawful retaliation.
II Summary Judgment Principles
Both plaintiff and defendant have submitted evidentiary materials in support of the arguments advanced in their memoranda. Since affidavits and numerous exhibits have been made a part of the record before the Court, defendant's pending motion will be treated as a motion for summary judgment under Rule 56, F.R.Civ.P.
It is well established that a defendant moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
One of the purposes of Rule 56 of the Federal Rules of Civil Procedure is to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed and properly supported, to come forward with some minimal facts to show that the defendant may be liable under the claims alleged. See F.R.Civ.P. 56(e). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof," then "the plain language of Rule 56(c) mandates the entry of summary judgment." Catrett, 477 U.S. at 323.
While the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion, Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). ""A mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely."" Barwick, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627, 640 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). Moreover, only disputed issues of material fact, determined by reference to the applicable substantive law, will preclude the entry of summary judgment. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In the absence of the necessary minimal showing by the plaintiff that the defendant may be liable under the claims alleged, the defendant should not be required to undergo the considerable expense of preparing for and participating in a trial. See Catrett, 477 U.S. at 323-24; Anderson, 477 U.S. at 256-57. Indeed, the Fourth Circuit has stated that, with regard to motions for summary judgment, the district courts have "an affirmative obligation . . . to prevent `factually unsupported claims and defenses' from proceeding to trial." Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Catrett, 477 U.S. at 323-24).
Applying these principles to the facts of record here, this Court has concluded that defendant's motion for summary judgment must be granted.
III The Parties' Contentions
In support of its pending motion for summary judgment, defendant advances four arguments. First, it is asserted that plaintiff has not presented sufficient facts to proceed to trial under a cognizable legal theory on any of her disparate impact claims alleged in Counts I through IV of the amended complaint and her disability discrimination claim alleged in Count V. Second, defendant contends that all of the claims set fourth in Counts I though V, except for the alleged denial of plaintiff's sick leave on December 5, 1996, are barred by limitations. According to defendant, plaintiff failed to initiate contact with an EEOC counselor within 45 days of the date that each of these allegedly discriminatory incidents occurred, as required by Title VII and the Rehabilitation Act. Third, defendant also challenges claims asserted in Counts I through IV on the ground that plaintiff has failed to identify acts of discrimination with respect to "personnel actions" taken by the Postal Service as required by 42 U.S.C. § 2000e-16 (a). Lastly, defendant maintains that plaintiff's retaliation claim alleged in Count VI must fail (1) because there is no causal link between plaintiff's protected EEO activity and her termination, and (2) because the Postal Service made a valid business decision to terminate plaintiff because she had been on LWOP status for more than four years.
In her opposition to the pending motion, plaintiff does little more than reiterate that her supervisors subjected her to a pattern and practice of discrimination from May 1993 until December 5, 1996. As evidence of discriminatory motive during this time period, plaintiff asserts that Hastings treated her differently from white, male and/or non-Baptist employees. Plaintiff argues that since the December 5, 1996 incident of allegedly disparate treatment was timely, then all of the previous incidents of allegedly disparate treatment should be considered timely as well under a continuing violation theory.
Plaintiff's opposition does not discuss her claim of disability discrimination under the Rehabilitation Act, but plaintiff does present arguments in support of her Title VII claim of retaliation. Plaintiff asserts that defendant purposely withheld its July 31, 2000 options letter until after Judge Palmer had rejected plaintiff's claims in her July 10, 2000 opinion rendered in the administrative proceedings. Plaintiff maintains that a causal link therefore exists between Judge Palmer's decision, the options letter, defendant's August 9, 2000 Notice of Final Action and, ultimately, defendant's December 26, 2000 notice of separation letter.
IV Applicable Principles of Law
Before a federal court may assume jurisdiction over an employment discrimination claim asserted under Title VII, a federal employee must first exhaust all available administrative remedies. See 42 U.S.C. § 2000 (e)-16(c); 29 C.F.R. § 1614.408; Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976); Zografov v. Veterans Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir. 1985); Blount v. Shalala, 32 F. Supp.2d 339, 341 (D. Md. 1999). These remedies include, inter alia, the filing of an administrative charge with an EEO counselor, subsequent participation in an interview with an EEO counselor, and if informal resolution fails, the filing of an administrative complaint with the EEO counselor. See, 29 C.F.R. § 1614.105 (a)-(d); see also Dachman v. Shalala, 46 F. Supp.2d 419, 434 (D. Md. 1999), aff'd, Dachman v. Shalala, No. 00-1641 (4th Cir. May 18, 2001)).
It should be noted that "Rehabilitation Act claims against government employers utilize Title VII's procedural scheme," Radin v. Runyon, No. 95-2007, 1997 WL 210859, at **1 n. 1 (4th Cir. April 30, 1997). Therefore, a "federal employee seeking to file an action based on the Rehabilitation Act must first exhaust his administrative remedies promulgated pursuant to Title VII and set forth in EEOC regulations."Emmert v. Runyon, No. 98-2027, 1999 WL 253632, at **2 (4th Cir. Apr. 29, 1999); see also 29 U.S.C. § 794a (a)(1) ("The remedies, procedures, and rights set forth in [Title VII] shall be available, with respect to any complaint under section 791 of this title. . . .") Accordingly, the disability claim alleged by plaintiff in Count V is subject to the same administrative requirements as her Title VII claims asserted in Counts I through IV.
Pursuant to Title VII, "[a]ll personnel actions affecting employees . . . in the United States Postal Service . . . shall be made free from any discrimination based on race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-16(a). In determining whether there has been discrimination with respect to a "personnel action," a court should focus on the question whether there has been discrimination "in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating." Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981)); Von Gunten v. State of Maryland, 243 F.3d 858, 866 (4th Cir. 2001). There are "many interlocutory or mediate decisions" which have no immediate effect upon employment conditions and which were not intended to fall within the proscriptions of Title VII. Page, 645 F.2d at 233. For instance, the mere transfer of an employee or an alteration in her job responsibilities does not constitute adverse employment action. Nichols v. Comcast Cablevision of Maryland, 84 F. Supp.2d 642, 654 (D. Md. 2000) (citation omitted); Burger v. Central Apartment Management, Inc., 168 F.3d 875, 879 (5th Cir. 1999).
Although a federal employee's complaint may be dismissed as untimely for failing to consult with an EEO counselor within the required time,Zografov, 779 F.2d at 970, the doctrine of continuing violation permits a plaintiff to recover for discriminatory acts which, although untimely by themselves, can be related to a timely incident as a "series of separate but related acts" amounting to a continuing violation. See Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997) (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980)). In other words, if an actual violation has occurred within the requisite time period and if the untimely claims can be related to the timely incident, all the claims may be considered as timely. Id.
There are two categories of continuing violations. The first is a pattern of ongoing or continuous discrimination, sometimes referred to as a "serial" violation, which consists of "a number of discriminatory acts emanating from the same discriminatory animus, each of which constitutes a separate wrong actionable under Title VII." Pilgrim v. Trustees of Tufts College, 118 F.3d 864, 869 (1st Cir. 1997); see also Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990); Redding v. Anne Arundel County, 996 F. Supp. 488, 490 (D. Md. 1998), In contending that her Title VII claims are not barred by limitations, plaintiff is here relying on a "serial" violation theory.
The second type of continuing violation encompasses "systemic" violations where an express policy of unlawful discrimination exists, requiring the plaintiff to prove that the policy manifests itself over time. Redding, 996 F. Supp. at 490. Plaintiff has neither alleged nor proved that an express policy of unlawful discrimination existed at the Post Offices where she was employed.
Although the Fourth Circuit has never adopted a specific test for what constitutes a continuing violation, the Fourth Circuit has determined that in evaluating either type of continuing violation, "the `critical question' is `whether any present violation exists.'" Sloane v. Shalala, No. 97-2295, 1998 WL 801499,, at **2 (4th Cir. Nov. 18, 1998) (quotingUnited Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (emphasis in original)). "A discrete act of discrimination which is not made the target of a timely charge `is merely an unfortunate event in history which has no present legal consequences.'" Dachman, 46 F. Supp. at 435 (quoting United Air Lines, 341 U.S. at 558). Therefore, to proceed under a serial violation theory, the series of discriminatory acts must contain a specific "beachhead violation" occurring within the limitations period. Pilgrim, 118 F.3d at 869. At least one timely discriminatory act must be identified before earlier untimely acts may be considered by the Court. Id.
To prevail on a timely claim of disparate treatment under Title VII, a plaintiff must establish a four-element prima facie case: (1) that the employee is a member of a protected class; (2) that the employee was qualified for the job and that her performance was satisfactory; (3) that in spite of her qualifications and performance, the employee suffered adverse employment action; and (4) that the employee was treated differently from similarly situated employees. McDonnell Douglas Corp., v. Green, 411 U.S. 792, 802 (1973); Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989); Raley v. Board of St. Mary's County Commissioners, 753 F. Supp. 1272, 1278 (D. Md. 1990). "[A] plaintiff's own assertions of discrimination in and of themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory reasons for an adverse employment action." Williams, 871 F. Supp. at 456.
To state a prima facie case of retaliation, a plaintiff must show (1) that she engaged in a protected activity, such as filing an EEO complaint; (2) that the employer acted adversely against the plaintiff; and (3) that the protected activity was causally connected to the employer's adverse action. Tinsley v. Fist Union Nat'1 Bank, 155 F.3d 435, 443 (4th Cir. 1998); Beall, 130 F.3d at 619; Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).
V Discussion
Following its review of the pleadings, memoranda, affidavits and the prior administrative record in a light most favorable to plaintiff, this Court concludes that plaintiff has failed to present even minimal facts indicating that defendant may be liable under any of the claims alleged.See Rule 56(e). Accordingly, this Court will grant summary judgment in favor of defendant as to all six counts of plaintiff's amended complaint because "there is an absence of evidence to support the nonmoving party's case." Catrett, 477 U.S. at 325.
It is well established that a district court must dismiss a Title VII claim if the plaintiff fails to request EEO counseling within the prescribed time period. Sloane, 1998 WL 801499, at **2 (citing Nealon, 958 F.2d at 589-90); Zografov, 779 F.2d at 970 (holding that a federal employee's failure to consult with an EEO counselor within the specified time after an alleged act of discrimination is grounds for dismissing the employee's Title VII claim in federal court). As a federal employee who believed she had "been discriminated against on the basis of race, color, religion [and] sex," plaintiff Copes was required to "initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, or in the case of personnel action, within 45 days of the effective date of the action." See 29 C.F.R. § 1614.105 (a)(1).
Plaintiff relies on a lengthy laundry list of incidents which allegedly constituted discriminatory actions taken by defendant during the period of her employment. She claims that the Postal Service between May 22, 1993 and December 5, 1996 treated her in a most shameful and discriminatory manner when it (1) took possession and control of her time cards resulting in her losing pay; (2) required plaintiff to remain outside for unreasonable lengths of time for someone to open the door; (3) denied plaintiff's participation in safety talks or the opportunity to apply for a cellular telephone during the discount period; (4) denied plaintiff the opportunity to use emergency, annual and sick leave and a uniform allowance; (5) accused plaintiff of being a fraud, of stealing and of lying and lied about plaintiff and disgraced her in the presence of her coworkers and customers; (6) denied plaintiff the opportunity to transfer to another post office; (7) changed plaintiff's job description and required that plaintiff assume additional duties and responsibilities; (8) refused plaintiff the right to participate in a count of her drawer; (9) required plaintiff to submit medical documentation when she was out sick and (10) sought to have plaintiff fired for no reason. (Plaintiff's Memorandum in Opposition at 7). In her papers, plaintiff does not explain why she did not seek EEO counseling during this 3-1/2 year period when she was allegedly subjected to so many discriminatory actions of her employer. In any event, most of the incidents listed do not constitute "personnel actions" taken by the defendant which may be characterized as ultimate employment decisions. See Page, 645 F.2d at 233; Von Gunten, 243 F.3d at 866-67. But, even if one or more of the incidents listed by plaintiff could be held to fall within the proscriptions of Title VII, plaintiff is barred by limitations from seeking recovery from defendant based on any of these allegedly discriminatory acts.
Although plaintiff claims that she was subjected to various acts of disparate treatment from May of 1993 until December of 1996, the record here establishes that Copes made her first and only request for EEO counseling on January 15, 1997. As a result, plaintiff may not in this case rely on any discriminatory act which occurred before December 1, 1996. Except for defendant's denial of plaintiff's request for "sick leave" on December 5, 1996, there is in this record simply no evidence that any alleged acts of discrimination occurred between December 1, 1996 and December 5, 1996, which was plaintiff's last day of active employment with the Postal Service. Accordingly, all of the claims alleged in Counts I through V must be dismissed because they arose out of incidents that occurred prior to December 1, 1996.
Even though the amended complaint alleges that plaintiff sought EEO counseling in November of 1996, there is no evidence in the record to support this claim. In fact, as an exhibit to her memorandum filed in opposition to the pending motion, plaintiff submitted an "EEO Counselor's Inquiry Report" which indicates that January 15, 1997 was the date of plaintiff's initial contact with the EEO Office.
There is no merit to plaintiff's attempt to circumvent the administrative requirements mandated by Title VII by arguing that she was subjected to a "continuing violation" at the time that she finally requested EEO counseling. Plaintiff has not on this record established the existence of a "beachhead violation," which is the occurrence of a discriminatory act within the limitations period. See Pilgrim, 118 F.3d at 869. Hastings' denial of plaintiff's request for sick leave on December 5, 1996 is the only allegedly discriminatory event which took place within 45 days of plaintiff's initial contact with an EEC counselor. However, there is no evidence that Hastings' action was based upon plaintiff's sex, racer color or religion. Since there was no discriminatory animus connected with the alleged beachhead violation on December 5, 1996, Copes is not entitled to rely on that event under a continuing violation theory as evidence of prior discriminatory acts. Because no beachhead violation can be proved, plaintiff must be barred by limitations from seeking a recovery for any discriminatory events or practices which occurred prior to December 5, 1996. See Tinsley, 155 F.3d at 442-43.
A defendant's discriminatory animus cannot be inferred from the conduct of a supervisor which a plaintiff may find to be inconsiderate. Settle v. Baltimore County, 34 F. Supp.2d 969, 961 (D. Md. 1999). Courts must be careful not to transform Title VII into "a general civility code for the American workplace," inasmuch as "Title VII does not prohibit all verbal or physical harassment in the workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998).
As disclosed by the record, the relationship between Hastings and plaintiff was bitterly acrimonious. While under his supervision, plaintiff had charged Hastings with stealing money and stamps, and Hastings had accused plaintiff of stealing, lying and being a fraud. However, evidence does not exist that Hastings' hostility towards plaintiff was motivated by a discriminatory animus.
There is no evidence that, in denying plaintiff's request for leave on December 5, 1996, Hastings was motivated by a discriminatory animus. No objectively offensive conduct occurred, nor did Hastings make offensive statements. Evidence of record does not indicate that there were any comments or slurs made at the time of the confrontation or prior thereto concerning plaintiff's racer sex or religion. See Nichols v. Caroline County Bd. of Educ., 123 F. Supp.2d 320, 327 (D. Md. 2000). The only evidence of discrimination is that presented by plaintiff in her affidavit in which she maintains that Hastings denied her request for leave because of her race, sex and religion. However, a plaintiff's own conclusory assertions of discrimination in and of themselves are insufficient in a Title VII case to prove discriminatory animus and counter substantial evidence of legitimate, nondiscriminatory reasons for an adverse employment action. Williams, 841 F.2d at 456; Gairola v. Commonwealth of Va., Dept. of General Servs., 753 F.2d 1281, 1288 (4th Cir. 1985).
As disclosed by plaintiff's own affidavit, she did not, as claimed, request "sick leave" on December 5, 1996. Plaintiff did not at the time advise Hastings that she was ill and wished to go home. Rather, she requested that she be permitted "to leave early to check on my mother." Her mother had been admitted to the hospital the previous evening and had been treated by hospital personnel. It does not appear that there was any immediate emergency existing on December 5, 1996 which required the presence of plaintiff to care for her injured mother.
In this case, the record indicates that Copes was unhappy with Hastings' denial of her request to visit her mother and with the manner in which Hastings informed her of his decision. Hastings has articulated the following legitimate nondiscriminatory reasons for denying plaintiff's request: (1) the Post Office needed as many employees as possible to handle the increased activity resulting from the upcoming holiday season; (2) one of the other window clerks was already scheduled to assume Hastings' responsibilities during his attendance at the Postal Service meeting; and (3) none of the remaining employees were willing to work additional overtime to cover for Copes. As established by the affidavit of Hastings, Copes had been granted more emergency annual leave than any other employee at the St. Michael's Post Office, and many of her reasons for making such requests were often questionable in nature.
For instance, Copes had been granted leave on two separate occasions in order to repair the windshield wipers on her BMW, and on another occasion Copes remained on leave for an entire week after the death of a family member.
Plaintiff contends that white, male and non-Baptist employees were routinely granted sick leave "under similar circumstances." Once again, these assertions are conclusory and do not establish that plaintiff was subjected to disparate treatment. No names or other details have been furnished by plaintiff indicating that other employees received favorable treatment under similar circumstances. In particular, plaintiff has not alleged or shown that these other individuals were granted leave to visit a hospitalized parent even though other Postal Service employees were not available to perform their duties.
In sum, this Court concludes that plaintiff has not presented evidence that defendant's proffered explanation for denying her leave was a pretext for unlawful discrimination. Plaintiff has therefore not shown that the action taken by Hastings on December 5, 1996 was motivated by a discriminatory animus. Since there has been no showing here of the occurrence of either disparate treatment or any other type of discriminatory act within the limitations period, there has been no "beachhead violation" and plaintiff may not in this case rely on a "serial" violation theory in order to avoid the bar of limitations applicable to Counts I, II, III, IV and V of the amended complaint.
Moreover, plaintiff was not actually denied compensation for leave taken by her on December 5 and December 6, 1996. She was later compensated for both of those days.
Finally, this Court will reject the claim asserted by plaintiff in Count VI that the termination of her employment was in retaliation for engaging in protected EEO activity. Although plaintiff has satisfied the first two elements of a claim of retaliation, she cannot satisfy the third prong because she has not presented evidence showing that there was a causal connection between the protected activity and the adverse action taken by defendant.
This civil action was filed on November 7, 2000, and plaintiff was discharged effective January 30, 2001. There has been no showing of a causal connection between these two events. After plaintiff left work in the middle of her shift on December 5, 1996, she remained out of work for the rest of the week and never returned to work for the Postal Service in any capacity during the four years before her discharge. At all times during this four year period, she remained on LWOP status.
Defendant was eventually compelled to terminate plaintiff pursuant to valid nondiscriminatory Postal Service procedures. In accordance with defendant's established policy, all Postal Service employees who claimed to be unable to perform their duties and who had been on LWOP status for more than one year were sent a standard "options" letter. This letter informed employees on LWOP status that they had to choose one of four options within fifteen days of their receipt of the letter or else "appropriate administrative action, including separation, may be initiated." On July 18, 2000, plaintiff received an options letter because she had been on LWOP status for more than a year. No such letter was sent earlier because there were ongoing administrative proceedings which were not concluded until Administrative Law Judge Palmer issued her written decision on July 10, 2000. Although plaintiff received the options letter, she never timely responded to it. Some months later, a "notice of separation" letter was sent to plaintiff on December 26, 2000. That letter stated that it was "necessary to separate you for your inability to perform the duties of your position," because "[y]ou have elected not to avail yourself of the options for which you are eligible to apply." Thereafter, plaintiff's employment with defendant was finally terminated effective January 30, 2001.
The options were (1) to apply for permanent light duty, (2) to request a transfer of crafts, (3) to apply for disability retirement, or (4) to resign from the Postal Service.
Defendant had every right to discharge plaintiff when, after she had been on LWOP status for many years and after she had received an options letter sent to her pursuant to a long-standing policy of the Postal Service, she declined to respond. No satisfactory reason has been given by plaintiff for her failure to elect one of the options offered to her. It is specious for her to suggest in her letter of August 29, 2000 that she was "in no condition to make any decisions" and that her attorney "is better suit [sic] for handling this situation." No timely response to defendant's options letter was ever received from plaintiff's attorney. After sending the options letter and receiving no response to the questions posed, defendant was under no obligation to continue after so many years plaintiff's LWOP status. That defendant did not send the options letter to plaintiff until after Judge Palmer's decision is hardly evidence of a discriminatory animus.
On the record here, this Court concludes that plaintiff has failed to satisfy her burden of establishing a prima facie case of retaliation under Title VII. She was finally discharged after some four years of being on LWOP status because she did not respond to the options letter sent to her. Accordingly, summary judgment will also be entered in favor of the defendant as to Count VI of the amended complaint.