Opinion
No. 00-3028 CRB
February 28, 2001
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Now before the Court is the motion by the defendants United States Postmaster General William J. Henderson and the United States Postal Services (collectively, "the USPS") for summary judgment pursuant to Federal Rule of Civil Procedure 56. Pursuant to Civil Local Rule 7-1 (b). the Court determines that oral argument is unnecessary. After careful review and consideration of the papers submitted, the defendants' motion for summary judgment is GRANTED. and the plaintiffs motion for continuance of the summary judgment motion is DENIED.
BACKGROUND
This is an employment discrimination lawsuit. The plaintiff is a postal supervisor employed by the USPS. In August 1997, a USPS supervisor issued a letter of warning to the plaintiff after a quantity of mail was not dispatched to the loading docks at the USPS San Francisco Distribution Center. The plaintiff filed a union grievance to challenge the issuance of the letter. Pursuant to his grievance, the letter of warning was rescinded and removed from the plaintiff's files and records. Although the plaintiff was granted the remedy he requested by the USPS, he stopped reporting to work as of August 27, 1997 because of an alleged medical condition (anxiety) he claimed resulted from the issuance of the letter of warning. The plaintiff remained on extensive leave until early 1999. While on leave, the plaintiff filed two claims with the Equal Employment Opportunity Commission ("EEOC") alleging that the LISPS had discriminated against him by issuing the letter of warning because he is an African-American and male. The EEOC issued a decision in February 1999 and found no discrimination.
In November 1998, while he was on leave, the plaintiff was denied Economic Value Added ("EVA") pay and a merit bonus because he was on extended leave for almost the entire fiscal year. EVA pay is an incentive program based on an employee's economic value added to the LISPS and the achievement of performance targets. Pursuant to the program, employees that do not contribute to the performance of the organization do not receive the bonus. The plaintiff then appealed the denial of the EVA pay with the USPS even though he had only worked a total of forty hours in all of 1998. In addition to the plaintiff, twelve other employees were also deemed ineligible for EVA pay. The Plaintiff continued appealing the denial of the EVA pay and was eventually given a payout from a reserve account.
On May 20, 1999, the plaintiff then filed a third claim with the EEOC alleging that the denial of the EVA pay was due to retaliation and physical condition discrimination. Again, the EEOC found no discrimination. In its final decision, the EEOC said that the issue was moot because the plaintiff eventually received the pay he requested.
After the EEOC issued its final decision regarding the plaintiffs first two EEOC claims, the plaintiff filed suit in federal court in May 1999 alleging discrimination and negligent supervision arising out of the issuance of the letter of warning. See Despanie v. USPS, Case No. C 99-2493 MMC ("Despanie I"). Near the end of discovery in that case, the USPS moved for summary judgment. The plaintiff immediately moved ex parte for additional time to respond to the motion and for leave to file an amended complaint adding claims of retaliation and physical condition discrimination due to the denial of the EVA pay. The Court, the Honorable Maxine M. Chesney presiding, denied the plaintiffs request for additional time to respond to defendants' motion for summary judgment but took under submission his request to file on shortened time a proposed amended complaint and to continue the trial date.
On August 11, 2000, the Court heard oral arguments on the defendants' motion for summary judgment and the plaintiffs motions to amend his complaint and to continue the trial date. By two orders filed August 16, 2000, the Court denied the plaintiffs motion to amend and to continue the trial date without prejudice to filing said claims in a separate action. At the same time, the Court granted the defendants' motion for summary judgment.
On August 22, 2000, the plaintiff filed the present complaint. which is nearly identical to the complaint dismissed by the Court on August 16, 2000. The present complaint asserts four causes of action: (1) race discrimination under Title VII; (2) negligent supervision; (3) retaliation under Title VII; (4) discrimination on the basis of mental disability under the Americans with Disabilities Act ("ADA"); and (5) discrimination on the basis of age under the Age Discrimination in Employment Act ("ADEA"). Judge Chesney dismissed the first three claims in Despanie I, and she denied the plaintiffs attempted motion to add the fourth claim. On December 29, 2000, the plaintiff filed an appeal from Judge Chesney's order.
On January 26, 2001, the defendants submitted the instant motion for summary judgment. The plaintiff did not tile an opposition. Instead, on February 9, 2001, the plaintiff requested a continuance of the defendants' motion. The defendants have moved to dismiss the plaintiff's complaint in its entirety on res judicata grounds, and, in the alternative, to dismiss on their merits. The defendants have also moved to dismiss the ADA claim on the ground that the USPS is exempt from suit under the ADA.
DISCUSSION
I. STANDARD FOR SUMMARY JUDGMENT
A. The General Rule 56(c) Standard Summary judgment is appropriate when the "pleadings. depositions, answers to interrogatories. and admissions on file, together with the affidavits, if any, show that 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). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party. Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identity and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56 (e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
B. The Specific Title VII Summary Judgment Standard
The Ninth Circuit "has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). When a the plaintiff "seeks to establish a prima facie case [of discrimination] through the submission of actual evidence, very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a fact finder." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985).
To prevail in a Title VII claim for disparate treatment or retaliation, a plaintiff must first establish a prima facie case. For claims of discrimination. a plaintiff must demonstrate that: (1) he belongs to a protected class; (2) he was discharged from a job for which he was qualified or was otherwise subject to an adverse employment action; and (3) others not in his protected class were treated more favorable. For claims of retaliation, a plaintiff must also establish a prima facie case, demonstrating: (1) involvement a protected activity; (2) an adverse employment action; and (3) a causal link between the two. See Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 1999). If the plaintiff is successful in establishing his prima facie case, the "burden of production shifts to the employer to present legitimate reasons for the adverse employment action. Once the employer carries this burden, the plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was pretext. Id., see Bradley v. Harcourt Brace Co., 104 F.3d 267, 270 (9th Cir. 1996).
II. WHETHER THE PLAINTIFF'S CLAIMS ARE BARRED BY RES JUDICATA
A. The Res Judicata Standard
"The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits bars a subsequent action between the same parties or their privies over the same cause of action." In re Imperial Corp. of America, 92 F.3d 1503, 1506 (9th Cir. 1996). Res judicata only applies if the parties had a full and fair opportunity to litigate the claim. See id. To show that res judicata applies to a later suit. a party must show that the earlier decision: (1) involved the same claim as the later suit; (2) involved the same parties or their privies; and (3) resulted in a final judgment on the merits. See id.; Nordhorn v. Ladish Co., Inc., 9 F.3d 1402, 1404 (9th Cir. 1993) (citing Blonder-Tongue Labs. v. University of Ill. Found., 402 U.S. 313, 323-24 (1971)).
The Ninth Circuit has identified four factors to determine whether two claims are the same for purposes of res judicata:
(1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is p resented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts.
Imperial Corp., 92 F.3d at 1506 (quoting Nordhorn, 9 F.3d at 1405 (quoting Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02 (9th Cir. 1982))). The last of these four factors is the most important. See Imperial Corp., 92 F.3d at 1506 (quoting Costantini, 681 F.2d at 1202).
B. The Plaintiff's Race Discrimination and Retaliation Claims
In their motion, the defendants argue correctly that the plaintiff's claims are barred by res judicata. The race discrimination, negligent supervision. and retaliation claims are the exact same claims that were dismissed in Despanie I and involve the same parties. The summary adjudication of those claims was a final judgment on the merits, and the plaintiff thus cannot bring those claims.
The plaintiff argues that the claims in Despanie I were based only on the issuance of the letter of warning and not the denial of the EVA pay because he had not yet received a right-to-sue letter based on the denial of the EVA pay. However, that argument is not persuasive because the plaintiff had the opportunity to base the claims in Despanie I on the denial of EVA pay in addition to the issuance of the letter of warning. The plaintiff was aware of the denial of the EVA pay in November of 1998. and he could have based his suit, which he filed in May of 1999, on that denial. The EEOC gave the plaintiff a right to sue letter based on the discrimination he alleges took place at his place of employment. The plaintiff should have brought whatever evidentiary support he had for those claims at that time.
The plaintiff also claims that his first suit was merely a race discrimination suit but that his second suit is a race. Disability and age discrimination suit. That argument is also not compelling. Because the disability and age discrimination claims involve the same transactional nucleus of' facts and would have required presentation of the same evidence, the plaintiff was required to bring those claims as well. The present suit is not a different claim simply because the plaintiff has worded the complaint different. If the plaintiffs present suit were based on a separate incident of discrimination, the suit would not be precluded by res judicata. However, the plaintiff is merely trying to get another bite at the apple. Finally, the plaintiff argues that he was not allowed to base his present claims on the denial of EVA pay or add claims for disability discrimination because Judge Chesney denied his motion to amend his complaint. This argument has no merit. The denial of the EVA pay was a factual issue in Despanie I. The EVA pay issue was discussed in the parties' briefs in support and opposition to amending of the claim, it was a part of the initial discovery disclosures, and it was discussed in the deposition of the plaintiff when the defendants took the plaintiff through all the claims he intended to allege in his complaint. In a desperate attempt to circumvent the summary judgment motion in Despanie I. the plaintiff tried to bolster his complaint by amending it to add new claims. The plaintiff is trying to do the same thing here.
Thus, the plaintiff could have brought all of his present claims in Despanie I. That suit involved the same claims and the same parties and Judge Chesney's order was a final judgment on the merits. The plaintiffs claims are therefore barred by res judicata. Since the negligent supervision claim is based on the same factual allegations that comprise the discrimination claims under Title VII, the plaintiff has also failed to state a cause of action for negligent supervision. Accordingly, the USPS's motion for summary judgment is GRANTED.
III. THE MERITS OF THE PLAINTIFF'S CLAIMS
In the alternative, the USPS has also moved for summary judgment on the merits of the plaintiffs claims. Although the Court has found that the plaintiffs claims are barred by res judicata. it will consider the merits of the plaintiff's claims as an alternative ground for summary judgment. The defendants assert that the plaintiff has failed to establish a race discrimination claim because he did not suffer an adverse employment action. Moreover, although the parties do not raise the issue, it is not clear that the plaintiff has shown discriminatory intent. Finally, the defendants claim that the plaintiffs disability and age discrimination claims are also defective.
A. Whether the Plaintiff Suffered an Adverse Employment Action
The Ninth Circuit has defined an adverse employment action as "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." Ray v. Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000) (quoting an EEOC standard). Such adverse treatment, however, must be "final." in that actions which are subsequently remedied through the employer's internal appeal process are insufficient to constitute adverse employment actions. See Kortan v. California Youth Authority, 217 F.3d 1104, 1112-13 (9th Cir. 2000) (holding that a poor job evaluation did not constitute an adverse employment action where the evaluation was ultimately revised by another supervisor); Brooks, 214 F.3d at 1094 ("[T]he [negative] evaluation here was not an adverse employment action because it was subject to modification by the city."); Dobbs-Weinstein v. Vanderbilt Univ., 185 F.3d 542, 546 (6th Cir. 1999) ("[The plaintiff] succeeded in the grievance process, and [the defendant's] final decision was to grant her tenure. She has not here suffered a final or lasting adverse employment action sufficient to create a prima facie case of employment discrimination under Title VII."); id. ("To rule otherwise would be to encourage litigation before the employer has the opportunity to correct through internal grievance procedures any wrong it may have committed.").
The defendant argues that the plaintiff has failed to meet his burden of establishing a prima facie case of discrimination or retaliation because he has failed to show that he was subjected to an adverse employment action based on the issuance of the letter or the denial of EVA pay.
As to the discrimination claim, the plaintiff claims that he was discriminated against and suffered an adverse employment action when he was issued a letter of warning. The defendants are correct that the letter did not constitute a final adverse action. The plaintiff took advantage of the USPS grievance procedure and the letter was rescinded and removed from his employment file. As a result, the plaintiff cannot prove that he suffered an adverse employment action from the letter.
As to the negligent supervision claim, it fails also. Since this claim is based on the same factual allegations that comprise the discrimination claims under Title VII. the Court finds that the plaintiff has failed to state a cause of action for neglegent supervision.
As to the retaliation claim, the plaintiff claims that he was retaliated against for: (1) taking off work for more than a year because he suffered anxiety from the issuance of the letter of warning; and (2) filing a discrimination claim with the EEOC. He argues that the adverse employment action was the denial of the EVA pay, denial of sick leave, and a change in work schedule. Like the discrimination claim, the plaintiff has not suffered an adverse employment action. The plaintiff was eventually awarded the amount of sick leave that he requested. As for the EVA pay, the plaintiff took advantage of the USPS grievance procedure and received the maximum amount of bonus pay for which he was eligible. The record is unclear as to why the plaintiff's schedule was changed. but the plaintiff was absent from work for more than a year, so it is reasonable to assume that the plaintiffs change in schedule was simply a result of scheduling changes at the USPS during the time the plaintiff was gone. Furthermore, the plaintiff cannot prove that others not in his protected class were treated more favorably. Anyone who did not work in the previous year was also denied the EVA pay. The record indicates that twelve other workers besides the plaintiff were also denied the EVA pay.
Judge Chesney's previous order supports the Court's conclusion. Judge Chesney found that the plaintiff had failed to establish a prima facie case for discrimination based on the issuance of the letter because it was not an adverse employment action. Judge Chesney found that even if the letter could constitute an adverse employment action, the plaintiff had presented no evidence, either direct or circumstantial. of discriminatory animus.
Thus, the plaintiff cannot demonstrate that he suffered an adverse employment action or that there is a causal link between his protected activity and the adverse employment action. There is no evidence that the defendant's actions were the result of the plaintiff filing an EEOC complaint or his alleged disability.
B. Whether the Plaintiff has Shown Discriminatory Intent
Though the defendants do not make this argument in their brief the plaintiff has also failed to show discriminatory intent. To prevail on a claim for disparate treatment, a plaintiff must prove an intent to discriminate, either by direct proof or by inference under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To make out a prima facie case of intent to discriminate under McDonnell Douglas, the plaintiff must show that: (1) he belongs to a protected class: (2) he was qualified to receive the employment benefits sought; (3) he was denied those benefits despite his qualifications; and (4) his employer gave an employee not of the plaintiffs class the benefits the plaintiff requested. See Tarin v. County of Los Angeles, 123 F.3d 1259, 1264 (9th Cir. 1997). If the plaintiff makes out a prima facie case, the defendant's intent to discriminate is presumed. Id. at 1264.
The plaintiff has not put forth any evidence to make out a prima facie case. The plaintiff was informed by the defendant of its reasons for initially issuing the letter and denying the EVA pay, and those actions were race-neutral. The plaintiff was not qualified to receive the benefits he requested because he was on extended leave. Presumptively, members of the plaintiffs class did receive the EVA pay if they worked during the eligible period. The plaintiff does not present any evidence to the contrary. The plaintiff has presented no evidence of any other motivation behind the defendant's actions besides the one presented by the defendant. Thus, the plaintiff has failed to make out a prima facie case of intent to discriminate for any of the alleged causes of action.
C. Whether the Plaintiff has Stated an ADA Claim
The plaintiff also alleges that he was discriminated against by his employer because of a mental disability that occurred as a result of anxiety brought on by the issuance of the letter of warning. This claim cannot proceed because the ADA expressly exempts the United States and any "corporation wholly owned by the government of the United States" such as the USPS, 42 U.S.C. § 12111(5)(B)(i). Under the ADA, therefore, the USPS does not fall into the category of "employer." 42 U.S.C. § 12111(5)(B)(i). or "covered entity," 42 U.S.C. § 12111 (2).
D. Whether the Plaintiff Exhausted his ADEA Administrative Remedy
Pursuant to 29 U.S.C. § 626 (d). the plaintiff cannot commence an age discrimination lawsuit in federal court without having exhausted his remedies with the EEOC. In his complaint, the plaintiff alleges that the USPS discriminated against him because of his age. The record does not indicate that he brought this age discrimination charge before the EEOC. Furthermore, there is no evidence in the record that the USPS discriminated against the plaintiff because of his age.
Thus, the Court finds that the defendant has shown that there is no genuine issue of material fact for the Court to decide as to the plaintiffs Title VII discrimination claims, ADA claim, or ADEA claim. The Court also finds that the plaintiff has failed to present any evidence that precludes summary judgment. The defendants motion for summary judgment is therefore GRANTED on the merits of the plaintiffs claims as well.
IV. WHETHER THE PLAINTIFF SHOULD RECEIVE MORE TIME UNDER RULE 56(f)
The plaintiff argues that he has not had the opportunity to conduct discovery since his right-to-sue letter dated June 2000 and that he should therefore be granted a denial or continuance of the summary judgment motion pursuant to Rule 56(f) in order to conduct more discovery. This argument has no merit. First, the plaintiff was given a right to sue letter from the EEOC three times involving this same incident. The first two were dated February 25, 1999, and the third was dated May 19, 2000. In all three cases, the EEOC found that the plaintiff had not made a prima facie case of discrimination because he failed to show an adverse employment action.
Second, the plaintiff originally filed suit regarding this incident in district court in May 1999. The plaintiff has had ample time to conduct discovery and should not be granted any extensions to conduct more discovered. Much of the discovery that he is requesting here was either already available to him in Despanie I or could have been requested in that suit. For instance, the plaintiff seeks to depose Harriet J. White. Ms. White is the USPS' Senior Personnel Services Specialist who evaluated the defendants eligibility for the EVA pay and wrote the letters to the plaintiff regarding his EVA benefits. The plaintiff could have but did not depose Ms. White regarding the denial of the EVA pay in Despanie I. The plaintiff is also requesting to depose Mr. Kenneth Sloan, a Distribution Operations manager at the USPS, but Mr. Sloan was already deposed in Despanie I. Thus, the plaintiff's request for additional time is DENIED.
V. CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is GRANTED, both because the plaintiffs claims are barred by res judicata and because they are defective on the merits. The plaintiffs motion for more time is DENIED.
IT IS SO ORDERED.
JUDGMENT
The Court having granted the defendant's motion for summary judgment, it is hereby ORDERED that judgment be entered in Favor of the defendant William J. Henderson, Postmaster General, United States Postal Service, and against the plaintiff Cornelius Despanie.
IT IS SO ORDERED.