Opinion
Civil Action No. SA-05-CA-0219-XR.
September 18, 2006
ORDER
On this date, the Court considered Defendant's motion for summary judgment. After careful consideration of the motion, the response, the reply, and the applicable law, the Court GRANTS Defendant's motion for summary judgment (Docket No. 37).
I. FACTUAL AND PROCEDURAL BACKGROUND
This case was brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Plaintiff, Khonsovanh Phongsanavane, ("Plaintiff") worked for the United States Postal Service ("Postal Service") as a mail processing clerk in San Antonio, Texas. Plaintiff is an Asian female who was born in Laos and immigrated to the United States in 1981. Trial Dep., 40:20-24. Plaintiff was the only Asian female working at her location.
On September 2003, Plaintiff was "pitching mail" on her "scheme" — Thousand Oaks, Routes 58 through 61. Pitching mail is the process whereby mail is sent to a mail processing clerk by conveyor belt. The clerk retrieves a bundle of mail and sorts it according to the delivery sequence within the routes assigned to the particular clerk. The mail is then cased and given to a letter carrier for delivery to the address on an assigned route. Mail processing clerks are required to become "qualified" for the sorting routes (or "schemes") to which they are permanently assigned. Plaintiff was only qualified for the scheme to which she was assigned. Plaintiff's scheme — Thousand Oaks, Routes 58 through 61 — was one of many schemes that comprised Unit 160.
Plaintiff alleges that she was consistently denied overtime from September 12, 2003 through January 10, 2004 because of race discrimination, sex discrimination, and retaliation for engaging in protected activities under Title VII. Plaintiff alleged that this discrimination began on September 12, 2003, when Manager of Distribution Operations Sheila Speirs ("Speirs"), a female African-American, denied Plaintiff overtime because of her race. Specifically, Plaintiff alleged that Speirs discriminated against her and denied her overtime by assigning Pam Williams ("Williams"), a female Caucasian, to work on Plaintiff's scheme on September 12, 2003.
Defendant argued that the Court should only consider whether Plaintiff was illegally denied overtime on September 13, 2003. MSJ, Docket No. 37, Page 6. Defendant relied on the fact that during the deposition, Plaintiff stated during cross-examination that she sought economic damages for lost overtime on September 13, 2003 only. Trial Dep., 98:22-25, 99:1-8. The Court rejects Defendant's argument. Both before and after she made that statement in her deposition, Plaintiff stated that she is seeking economic damages for the "loss of my overtimes." Trial Dep., 98:18, 99:24. "Overtimes" is plural, indicating that Plaintiff is seeking recovery for multiple days of lost overtime. In her EEO Complaint, Plaintiff clearly wrote that the alleged discrimination took place from "September 12, 2003 to the present time." In the Postal Service's Acceptance of Complaint, it states that the discrimination occurred "on 9/13/2003 and ongoing." In Plaintiff's Complaint filed with the Court, it states that the discrimination occurred "on or about September 12, 2003 and continuously thereafter." Complaint, Docket No. 1, ¶¶ 18-19. In Plaintiff's response to Defendant's motion for summary judgment, it states that the retaliation occurred from September 12, 2003 to January 10, 2004.
There is some confusion about the exact date when Plaintiff claims she was denied overtime. Throughout the record, references are made to both September 12, 2003 and September 13, 2003 as the alleged date of the initial discriminatory act. This discrepancy is probably due to the fact that Plaintiff worked the night shift (from 10:30 p.m. to 7:00 a.m.).
Williams was an "unassigned regular" or "floater." As a floater, Williams rotated between schemes as needed to cover for employees who were sick or on leave in order to reduce payroll costs and cover for employees who would otherwise be eligible for overtime. Although Williams was not qualified for Plaintiff's scheme, Williams was able to pitch Plaintiff's scheme as a floater by looking up street names and numbers while she was working. In contrast, Debbie Aguirre was fully qualified to work on Plaintiff's scheme. Aguirre is Hispanic. Plaintiff alleges that both Williams and Aguirre worked "regular hours" (i.e. non-overtime hours), on September 12, 2003, which prevented Plaintiff from working any overtime hours that night. EEO Admin. Hearing Dep., 10:16-25, 11:1-3.
Debbie Aguirre is a "Part-Time Flex" employee and Pam Williams is an "Unassigned Regular" employee. Both positions are characterized as "floater" positions. Apparently, the only difference is that "Part-Time Flex" means that the employee is a part-time "floater" and "Unassigned Regular" means that the employee is full-time "floater." EEO Admin. Hearing Dep., 20:20-25; Trial Dep., 64:11-19.
See EEO Admin. Hearing Dep., 6:18-25 (Williams not qualified but could do the work), 24:8-12 (Williams not qualified but could do the work); see Trial Dep., 45:6-22 (Williams not qualified but could do the work by looking up street names and numbers).
Plaintiff gave conflicting testimony as to whether Aguirre was qualified for Plaintiff's scheme. See EEO Admin. Hearing Dep., 7:1-7 (Aguirre not qualified but could do the work), 39:17-21 (Aguirre qualified); see Trial Dep., 45:1-3 (Aguirre not qualified). The Court finds that Aguirre was qualified to work Plaintiff's scheme. Lovelady Dec. ¶ 2. The Court also finds that Aguirre, not Williams, worked on Plaintiff's scheme on September 12, 2003. Lovelady Dec. ¶ 2. However, the Court believes that after September 12, 2003, Williams did work on Plaintiff's scheme as a "floater" even though she was unqualified. The Postal Service used "floaters" like Williams to reduce payroll costs because the floaters were not paid overtime and were available to process mail on their regularly scheduled workday. Thus, the Court believes that the Postal Service exercised its discretion after September 12, 2003 to reduce overtime opportunities on Plaintiff's scheme through the use of unqualified "floaters" like Williams.
Plaintiff further testified that she was not sure whether Williams or Aguirre ever worked overtime (as opposed to regular hours) on her scheme from September 12, 2003 through January 10, 2004. EEO Admin. Hearing Dep., 13:21-25, 14:1-9. The evidence indicates that Williams never worked overtime hours on Plaintiff's scheme from September 12, 2003 through January 10, 2004 and that Aguirre worked approximately as many overtime hours as Plaintiff. Although Williams did not work any regular hours on Plaintiff's scheme on September 12, 2003, she did work regular hours on Plaintiff's scheme after that date, resulting in a loss of overtime opportunities for Plaintiff. Thus, the Postal Service consistently used floaters working regular hours between September 12, 2003 and January 10, 2004 in order to reduce overtime costs on Plaintiff's scheme. Every employee on Plaintiff's scheme, including Aguirre (female Hispanic), worked reduced overtime hours during this time period.
After September 12, 2003, Plaintiff alleges that she was continuously denied overtime opportunities while fellow employees Ray Villanueva, Carla Perkins, and Elsa Platt (all non-Asian) were permitted to work overtime on different schemes within Unit 160. Plaintiff alleges that because she is the only qualified employee for her scheme within Unit 160, the denial of overtime opportunities to her in favor of other, non-Asian employees was the result of race discrimination. Plaintiff claims that she was the only Asian on the "Overtime Desired" list between September 13, 2003 and January 10, 2004. Plaintiff acknowledges that Villanueva, Perkins, and Platt were not qualified on Plaintiff's scheme and that they worked their overtime on different schemes. EEO Admin. Hearing Dep., 10:7-11. However, Plaintiff claims that Speirs chose to assign unqualified floaters like Williams to her scheme instead of other schemes within Unit 160 because of race discrimination. Plaintiff also insinuates that (1) Speirs allowed Villanueva to work extra overtime on his scheme because Speirs and Villanueva were involved in a personal relationship and (2) Speirs gave preferential treatment regarding overtime to union employees (Plaintiff was not a member of the union). EEO Admin. Hearing Dep. 17:25, 18:1, 26:24-25, 27:9-13.
Plaintiff also compared herself to Gary Sugar and Roger Foster. The undisputed evidence reveals that Sugar and Foster, like Villanueva, Perkins, and Platt, worked on different schemes than Plaintiff. Speirs Dec. ¶ 4.
Plaintiff testified that Villanueva and Perkins are pitching clerks on Nimitz, Route 16, and Elsa Platt is a pitching clerk on Thousand Oaks, Routes 32 through 47. EEO Admin. Hearing Dep., 9:19-25, 10:1-6. Plaintiff also acknowledged that she was not qualified to work on any other scheme within Unit 160. EEO Admin. Hearing Dep., 14:10-12. The Postal Service argues that Plaintiff "was denied overtime [between September 12, 2003 and January 10, 2004] only when mail volume on her routes did not justify overtime or when an employee [i.e. a "floater"] was available to process the mail during a regularly scheduled work day." Lovelady Dec. ¶ 4.
Plaintiff testified that during the year and a half prior to September 12, 2003, she worked overtime an average of sixteen hours per week on her scheme with the permission and under the supervision of Speirs. EEO Admin. Hearing Dep., 27:21-25, 28:1-3. Nevertheless, Plaintiff alleges that Speirs suddenly decided to cut off her overtime work after September 12, 2003 because Plaintiff was Asian. EEO Admin. Hearing Dep., 28:12-23. Plaintiff had never heard Speirs make any kind of comment that made Plaintiff think that Speirs harbored any racial bias against Asians. EEO Admin. Hearing Dep., 39:22-25.
It is undisputed that Plaintiff worked overtime between September 12, 2003 and January 10, 2004. In 2003, Plaintiff worked overtime on September 16 (1.92 hours), 25 (1.86 hours), 27 (1.92 hours) 30 (1.74 hours), and December 19 (0.8 hours). In 2004, Plaintiff worked overtime on January 10, 13, 15, 17, 20, 21, 22, 23, 26, 27, 28, 29, and 31. Trial Dep., 66-76. Plaintiff also worked overtime during 2004 on February 13, 14, 16, 17, 18, 21, 23, 24, 25, and 28. Since Plaintiff filed her EEO Complaint on December 22, 2003, the evidence clearly shows that Plaintiff worked overtime before and after she filed her EEO Complaint. Plaintiff alleges that although she worked 8.24 hours of overtime between September 12, 2003 and January 10, 2004, it was not nearly as much overtime as the sixteen hours of overtime per week that she averaged before September 12, 2003.
Plaintiff initiated the EEOC administrative process on September 26, 2003 by filing a "Walk-In Precomplaint Counseling Request." Plaintiff complained of denial of overtime due to race discrimination. On December 22, 2003, Plaintiff filed an EEO Complaint of Discrimination ("Complaint") alleging that she had been denied overtime due to race discrimination beginning on September 12, 2003 and continuing thereafter. Plaintiff's EEO Complaint only alleged race discrimination. The specific issue that was certified in the Postal Service's Acceptance of Complaint was as follows: "Specific Claim(s): On 9/13/2003 and ongoing, she has been denied overtime. Type(s) of Discrimination: Race (Asian)." The Postal Service's Acceptance of Complaint further stated: "If you do not agree with the defined issue(s), you must provide us with sufficient reasons to substantiate your objection, in writing, within seven (7) calendar days of receipt of this letter." Plaintiff never objected to the issues that were defined in the Postal Service's Acceptance of Complaint. On January 6, 2005, the EEOC Administrative Law Judge ("ALJ") issued a decision granting the Postal Service's motion for summary judgment. Plaintiff received her "Right to Sue Letter" on January 18, 2005.
There is some confusion as to this date. The actual EEO complaint is dated December 22, 2003 and stamped "Received" January 5, 2004. The Postal Service, Office of EEO Compliance and Appeals, sent Plaintiff a letter entitled "Acceptance of Complaint," dated January 30, 2004, which states that Plaintiff's complaint of discrimination was filed on December 31, 2003. It may be that this discrepancy in dates is due to holiday closures. Resolving all inferences in favor of Plaintiff, the Court will assume that the EEO Complaint was filed on December 22, 2003.
The ALJ concluded, inter alia, the following: (1) Debbie Aguirre was similarly situated to Plaintiff because both Aguirre and Plaintiff were qualified to work on the same scheme within Unit 160; (2) Ray Villanueva, Carla Perkins, and Elsa Platt were not similarly situated to Plaintiff because they were qualified to work on different schemes within Unit 160; (3) Plaintiff cannot rely on comparisons in overtime assignments with non-similarly situated employees who worked on different schemes within Unit 160 in order to establish her race discrimination claim; (4) the disparity in overtime granted to Plaintiff and Aguirre within Plaintiff's scheme is not significant enough to create an inference of discrimination; (5) Plaintiff must show that she was denied overtime on her scheme and that someone else outside Plaintiff's protected class was granted overtime on that scheme instead of Plaintiff in order to establish a prima facie case of race discrimination; (6) the fact that certain individuals were granted overtime on their schemes within Unit 160 does not indicate that overtime was warranted on Plaintiff's scheme because different schemes have different mail volumes; (7) although management might have violated the union collective bargaining agreement by selectively choosing to reduce overtime opportunities on Plaintiff's scheme (through the use of "floaters") instead of on other schemes within Unit 160, no evidence suggests that those decisions were motivated by discriminatory animus because all employees on Plaintiff's scheme had reduced overtime opportunities; and (8) the Postal Service provided a legitimate, non-discriminatory reason for reducing Plaintiff's overtime opportunities — lack of mail volume or the availability of floaters to work regular hours on her scheme.
Plaintiff filed her lawsuit on March 21, 2005 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging race discrimination, sex discrimination, retaliation, and hostile work environment (Complaint, ¶¶ 28-38). The Court previously granted Defendant's motion to dismiss Plaintiff's hostile work environment claim under Fed.R.Civ.P. 12(b)(6) because Plaintiff failed to allege that her workplace was so permeated with discriminatory intimidation, ridicule, and insult that created an abusive working environment. See Docket No. 16, Page 9. Therefore, the Court will now consider Defendant's motion for summary judgment in regard to Plaintiff's race discrimination, sex discrimination, and retaliation claims.
The Complaint is less than clear regarding the exact time period when the alleged retaliation occurred. This piece of information is critical for the Court to determine whether Plaintiff exhausted administrative remedies on her retaliation claim. Paragraph 18 of the Complaint states that the acts occurred "on or about September 12, 2003 and continuously thereafter." Paragraph 19 states that the acts occurred "from September 2003 to January 2004." During discovery, no evidence was produced by either Plaintiff or Defendant regarding denial of overtime after February 28, 2004. In fact, after Plaintiff filed her EEO Complaint on December 22, 2003, Plaintiff worked 13 days of overtime during January 2004 and 10 days of overtime during February 2004. In her response to Defendant's motion for summary judgment, Plaintiff stated in her "Retaliation" section that she "was continuously denied overtime after she filed her EEO Complaint and denied monetary compensation from September 12, 2003 to January 10, 2004." Response to MSJ, Docket No. 39, Page 6. This statement leads the Court to the conclusion that September 12, 2003 to January 10, 2004 is the operative time period for purposes of Plaintiff's retaliation claim.
II. LEGAL ANALYSIS
A. The summary judgment standard.
Defendant has moved for summary judgment. Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Colson v. Grohman, 174 F.3d 498, 506 (5th Cir. 1999); Marshall v. East Carroll Parish Hosp. Serv. Dist., 134 F.3d 319, 321 (5th Cir. 1998); Wenner v. Texas Lottery Comm'n, 123 F.3d 321, 324 (5th Cir. 1997), cert. denied, 523 U.S. 1073 (1998).
A material fact is one that might affect the outcome of the suit under governing law. See Burgos v. Southwestern Bell Tel. Co., 20 F.3d 633, 635 (5th Cir. 1994). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Once a proper motion has been made, the nonmoving party may not rest upon mere allegations or denials in the pleadings but must present affirmative evidence, setting forth specific facts, to show the existence of a genuine issue for trial. See Celotex Corp., 477 U.S. at 322-23; Anderson, 477 U.S. at 257; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "[T]he court must review the record `taken as a whole.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 587). All the evidence must be construed "in the light most favorable to the non-moving party without weighing the evidence, assessing its probative value, or resolving any factual disputes." Williams v. Time Warner Operation, Inc., 98 F.3d 179, 181 (5th Cir. 1996) (citing Lindsey v. Prive Corp., 987 F.2d 324, 327 n. 14 (5th Cir. 1993)); Messer v. Meno, 130 F.3d 130, 134 (5th Cir. 1997), cert. denied, 525 U.S. 1067 (1999). "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Anderson, 477 U.S. at 255; Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5 (1990); see Christopher Vill. Ltd. P'ship v. Retsinas, 190 F.3d 310, 314 (5th Cir. 1999); Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998). The evidence is construed "in favor of the nonmoving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999); accord Little, 37 F.3d at 1075 (" [w]e do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.") (citing Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888 (1990)).
Only reasonable inferences can be drawn from the evidence in favor of the nonmoving party. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n. 14 (1992) (quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1012 (2nd Cir. 1989)). The nonmovant's burden is not satisfied by "some metaphysical doubt as to material facts," conclusory allegations, unsubstantiated assertions, speculation, the mere existence of some alleged factual dispute, or "only a scintilla of evidence." Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990) (citing Anderson, 477 U.S. at 247-48). Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. See Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp., 477 U.S. at 322; Wenner, 123 F.3d at 324. "In such a situation, there can be `no genuine issue as to any material fact' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 322-23.
B. Plaintiffs race discrimination claim is dismissed on the merits under the appropriate summary judgment standard.
1. Title VII claims generally.
Plaintiff contends that she was denied overtime because of her race. Plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5th Cir. 2000); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied, 525 U.S. 1000 (1998). "Direct evidence" is "evidence which if believed, proves the fact [in question] without inference or presumption." Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5th Cir. 2003). Plaintiff has presented no direct evidence of race discrimination; therefore, she must rely on the burden-shifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 792 (1973), to create a presumption of intentional race discrimination. See Russell, 235 F.3d at 222; see also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5th Cir. 2000).
To create such a presumption, Plaintiff must establish a prima facie case of race discrimination. McDonnell Douglas Corp., 411 U.S. at 802. Plaintiff may establish a prima facie case of race discrimination by providing evidence that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or in the case of disparate treatment, show that others similarly situated were treated more favorably. Okoye v. The University of Texas Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001). If she succeeds, Defendant must then articulate a legitimate, nondiscriminatory reason for its action. Id. Finally, if the parties satisfy their initial burdens, the case reaches the "pretext stage," and Plaintiff must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. Id. 2. Plaintiff has failed to establish a prima facie case of race discrimination. Alternatively, the Postal Service has proffered a legitimate, non-discriminatory reason for the denial of overtime, and Plaintiff has failed to adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination.
Plaintiff has no direct evidence to support her claim of race discrimination. Plaintiff's subjective belief that she was denied overtime because of her race does not establish a material question of fact regarding the Postal Service's motives. See Ray v. Tandem Computers, Inc., 63 F.3d 429, 434-35 (5th Cir. 1995) (stating that subjective belief of sex discrimination did not create a material question of fact and affirming summary judgment on the sex discrimination claim). Generalized testimony by an employee regarding her subjective belief is insufficient to make an issue for the jury. Todd v. Waste Management of Texas, Inc., No. SA-03-CV-314-XR, 2004 U.S. Dist. LEXIS 11942, at *9 (citing Marks v. St. Landry Parish Sch. Bd., 75 Fed. Appx. 233 (5th Cir. 2003)). In her deposition, Plaintiff acknowledged that she had never heard Speirs make any comments suggesting that Speirs was biased against Asians. Since Plaintiff has no direct evidence of race discrimination, she must establish her claim based on circumstantial evidence.
The facts demonstrate that Plaintiff (1) was a member of a protected class (Asian), (2) was qualified for her mail processing clerk position, and (3) was subject to an adverse employment action. In ruling on Defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6), The Court previously held that an allegation of denial of overtime opportunities is sufficient to show an ultimate employment decision and therefore an adverse employment action. Docket No. 16, Page 5. Therefore, in order to establish her prima facie case, Plaintiff must establish that she was replaced by someone outside her protected class or that other similarly situated employees were treated more favorably.
Plaintiff produced no evidence indicating that she was "replaced" by someone outside her protected class (Asian). Plaintiff failed to produce any evidence that the Postal Service replaced Plaintiff by reassigning Plaintiff's overtime hours to another non-Asian employee on the same scheme. Plaintiff might argue that Williams and Aguirre "replaced" Plaintiff by working regular hours on Plaintiff's scheme when Plaintiff was available to work overtime hours. However, the Court finds, for purposes of establishing a prima facie case of race discrimination, that floater employees who work regular hours (thus reducing available overtime hours) do not "replace" regular employees who were otherwise available to work overtime hours. The employee who works regular hours is in a different position than an employee who works overtime hours on the same scheme. Plaintiff claims that she was denied overtime hours, not regular hours, because of her race. Thus, the issue is whether the Postal Service replaced Plaintiff by reassigning Plaintiff's overtime hours to another non-Asian employee on the same scheme. By assigning floaters who worked regular hours to Plaintiff's scheme, the Postal Service significantly reduced the overall number of overtime hours available on Plaintiff's scheme. However, reducing the number of overtime hours for all employees on Plaintiff's scheme is not the same as redistributing available overtime hours from Plaintiff to another non-Asian employee working on Plaintiff's scheme.
The undisputed evidence indicates that Williams only worked regular hours on Plaintiff's scheme from September 12, 2003 to January 10, 2004. Thus, Williams did not replace Plaintiff by working her overtime hours; she simply reduced the number of available overtime hours available on Plaintiff's scheme. The undisputed evidence also indicates that Aguirre worked approximately the same amount of overtime hours as Plaintiff from September 12, 2003 to December 31, 2003. In 2003, Plaintiff worked overtime on September 16 (1.92 hours), 25 (1.86 hours), 27 (1.92 hours) 30 (1.74 hours), and December 19 (0.8 hours), for a total of 8.24 hours. In 2003, Aguirre worked overtime on September 12 (0.01 hours), 19 (0.075 hours), 23 (0.01 hours), 24 (1.65 hours), 27 (1.23 hours), October 1 (0.02 hours), October 2 (2 hours), October 4 (0.21 hours), for a total of 5.205 hours. Since Plaintiff worked more overtime hours than Aguirre from September 12, 2003 to December 31, 2003, the Court agrees with the ALJ's conclusion that no disparity between overtime granted to Plaintiff and Aguirre (a non-Asian, scheme-qualified employee) creates an inference of discrimination. Aguirre did not replace Plaintiff by working her overtime hours. Indeed, the evidence suggests that the Postal Service limited overtime available to all employees on Plaintiff's scheme, including Aguirre (female Hispanic), through the use of floaters. Since the Court finds that Plaintiff was not replaced by someone outside her protected class, Plaintiff must rely on her allegations of disparate treatment in order to establish her prima facie case.
Plaintiff's race discrimination claim centers on allegations of disparate treatment. In cases alleging disparate treatment, Plaintiff must establish that other similarly-situated employees were treated more favorably. Plaintiff must show that (1) an employee outside of her protected class was similarly situated; and (2) this employee was treated differently under circumstances "nearly identical" to hers. Wheeler v. BL Dev. Cor., 415 F.3d 399, 406 (5th Cir. 2005). When assessing whether employees are similarly situated, courts consider whether the employees were employed in the same job position, whether the employees had different job responsibilities, and whether the same supervisor was involved in the decision making. Williams v. Gonzales, No. 1:04-CV-342, 2005 U.S. Dist. LEXIS 38838, at *35-36 (E.D. Tex. Dec. 14, 2005); Coleman v. Exxon Chem. Corp., 162 F. Supp. 2d 593, 608 (S.D. Tex. 2001).
In Cedillos, Plaintiff, a supervisory attorney, was demoted and suspended without pay for violating the employer's sexual harassment policy. Cedillos v. Tex. Dep't of Pub. Safety, No. SA-03-CV-0427-XR, 2005 U.S. Dist. LEXIS 3846, at *10 (W.D. Tex. March 10, 2005). Plaintiff argued that a State Trooper had been treated more favorably because the State Trooper was allowed to retire after being reprimanded for sexual harassment. Id. This Court found no evidence that Plaintiff, as a supervisory attorney, was similarly situated to someone in the different position of State Trooper. Id; see Coleman, 162 F. Supp. 2d at 608 (stating that "[e]mployees with different responsibilities, different supervisors, different capabilities, different work rule violation, or different disciplinary records are not considered `nearly identical'")
The Court finds that Ray Villanueva, Carla Perkins, Elsa Platt, Gary Sugar, and Roger Foster are not similarly situated to Plaintiff and that their circumstances were not "nearly identical" to Plaintiff's. With the exception of Aguirre, every other employee to whom Plaintiff compared herself was qualified to work on a different scheme than Plaintiff. The Court finds that these employees were not similarly situated to Plaintiff because they were qualified to work (and actually did work) on different schemes. Additionally, these other employees were not similarly situated to Plaintiff because each scheme required a different test to qualify and had a different mail volume on any given day. Thus, Plaintiff cannot establish a prima facie case of race discrimination based on disparate treatment because she cannot demonstrate that other similarly situated employees were treated more favorably.
Even assuming, arguendo, that Plaintiff could establish her prima facie case, the Court finds that Defendant has proffered a legitimate, non-discriminatory reason for the denial of overtime and that Plaintiff has failed to adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. The Postal Service stated that Plaintiff "was denied overtime [between September 12, 2003 and January 10, 2004] only when mail volume on her routes did not justify overtime or when an employee [i.e. a "floater"] was available to process the mail during a regularly scheduled work day." Lovelady Dec. ¶ 4. Plaintiff produced no evidence comparing the mail volumes of the different schemes within Unit 160 between September 12, 2003 and January 10, 2004. Plaintiff never challenged or produced evidence contradicting the Postal Service's sworn assertion that Plaintiff was denied overtime because of lack of mail volume or the availability of floaters to work regular hours on Plaintiff's scheme. The Postal Service was particularly attuned to its overtime costs because it had not been managed well in the past. To stay within budget, the Postal Service processed mail by utilizing floaters working on regular time and by assigning overtime only as the "last alternative." Additionally, Plaintiff acknowledged that the Postal Service used floaters to reduce payroll costs by covering for employees who would otherwise be eligible for overtime. The Court finds that these reasons for denial of overtime were legitimate, uncontradicted, and non-discriminatory.
Title VII protects Plaintiff against discrimination on the basis of race. See 42 U.S.C. § 2000e-2(a)(1). Plaintiff opined at length that the Postal Service violated the union collective bargaining agreement when it selectively targeted Plaintiff's scheme for overtime reduction. The Court finds that this argument is plausible. Plaintiff alleged that Speirs might have been motivated by pro-union bias or a personal relationship with Villanueva when she selectively targeted Plaintiff s scheme for overtime reduction. The Court finds that this argument is also plausible. Nevertheless, Title VII does not strip the Postal Service of its discretion to reduce overtime hours on some schemes and not others, so long as that decision is not motivated by race discrimination. Even if the decision to reduce overtime on Plaintiff's scheme was arbitrary or unfair, that does not necessarily mean that it was illegal. If the Postal Service violated the union collective bargaining agreement governing allocation of overtime to employees, then Plaintiff might be entitled to recovery under other federal labor laws; however, Title VII is not the proper vehicle for vindicating that right. In conclusion, the Court finds that race discrimination did not play any role in the Postal Service's decision to reduce overtime opportunities on Plaintiff's scheme from September 12, 2003 to the present. Plaintiff's race discrimination claim based on alleged discriminatory acts occurring from September 12, 2003 to the present is dismissed on the merits.
Plaintiff only presented evidence regarding denial of overtime between September 12, 2003 and January 10, 2004. However, Plaintiff's EEO Complaint states that she was discriminated against from September 12, 2003 to the present. The Court finds that Plaintiff failed to establish a prima facie case of race discrimination based on conduct occurring from September 12, 2003 to the present. Alternatively, the Court finds that Postal Service has proffered a legitimate, non-discriminatory reason for the denial of overtime from September 12, 2003 to the present, and Plaintiff has failed to adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination.
C. Plaintiffs sex discrimination claim is dismissed for failure to exhaust administrative remedies.
Plaintiff's sex discrimination claim must be dismissed for failure to exhaust administrative remedies. The timely filing of a Charge of Discrimination with the EEOC is a "condition precedent to any Title VII suit." Young v. City of Houston, 906 F.2d 177, 179 (5th Cir. 1990); see also 42 U.S.C. § 2000e-5(e)(1). A Title VII claim may only be based on the specific complaints in the charge submitted to the EEOC and claims that are "like or related to the [C]harge's allegations," limited by the "scope of the EEOC investigation which can reasonably be expected to grow out of the [C]harge of Discrimination." Young, 906 F.2d at 179.
Plaintiff only alleged race discrimination (Asian) in her EEO Complaint of Discrimination signed on December 22, 2003; the boxes next to sex discrimination and retaliation are left blank. The Postal Service's Acceptance of Complaint states that the investigation of the EEO Complaint "will involve the following claim(s) only: . . . Type(s) of Discrimination: Race (Asian)." Plaintiff did not seek to amend her Complaint or file an additional Complaint alleging sex discrimination. In her Complaint filed with the Court, under "Count One — Title VII Violation — Race Discrimination," Plaintiff includes one sentence regarding sex discrimination: "In addition, Plaintiff was treated dissimilarly because of her sex."
Plaintiff's sex discrimination claim is not like or related to her race discrimination claim and clearly, was not within the scope of the EEOC's investigation of Plaintiff's Charge. See Wallace v. Medical Ctr. Of La. At New Orleans, No. 01-0579, 2002 U.S. Dist. LEXIS 23831, at *16-17 (E.D. La. Dec. 11, 2002) (stating that an investigation into sex discrimination was not likely to grown out of an EEOC Charge alleging only race discrimination and, therefore, dismissing the sex discrimination claim for failure to exhaust administrative remedies was appropriate). Plaintiff's first allegation of discrimination on the basis of sex was made in her Complaint. Plaintiff has failed to exhaust her administrative remedies on her sex discrimination claim, and the Court holds that it must be dismissed as a matter of law. Young, 906 F.2d at 179.
Aside from that one sentence in Plaintiff's Complaint, sex discrimination is never again discussed in any materials submitted to the Court.
D. Plaintiffs pre-charge retaliation claim is dismissed for failure to exhaust administrative remedies, and Plaintiff's post-charge retaliation claim is dismissed on the merits under the appropriate summary judgment standard.
Plaintiff's pre-charge retaliation claim must be dismissed for failure to exhaust administrative remedies. Plaintiff alleges that she "was continuously denied overtime after she filed her EEO complaint and denied monetary compensation from September 12, 2003 to January 10, 2004." Resp. to MSJ, Docket No. 39, Page 6. Plaintiff further alleges that "Defendant retaliated against Ms. Phongsavane by repeatedly denying her overtime from September 12, 2003 to January 10, 2004, except for five (5) days." Therefore, Plaintiff believes that the Postal Service retaliated against her through denial of overtime after she filed her "Walk-In Precomplaint Counseling Request" on September 26, 2003 and after she filed her formal EEO Complaint on December 22, 2003.
The Court finds that the retaliation claim based on alleged retaliatory acts occurring before Plaintiff signed her formal EEO Complaint on December 22, 2003 must be dismissed for failure to exhaust administrative remedies. Gupta v. East Texas State University held that district courts have ancillary jurisdiction to hear post-charge retaliation claims when the retaliation claim grows out of an earlier charge that has been properly exhausted. 654 F.2d 411, 414 (5th Cir. 1981). The formal EEO Complaint that Plaintiff signed on December 22, 2003 is the same as the "charge" referred to in Gupta. The allegations of retaliation occurring between September 26, 2003 and December 22, 2003 are pre-charge allegations that are subject to the administrative exhaustion requirement, not post-charge allegations that may fall within the Gupta exception. The Court finds that the retaliation claim based on alleged retaliatory acts occurring after the counseling request was made (September 26, 2003) but before the formal charge of discrimination was signed (December 22, 2003) should have been addressed in Plaintiff's EEO Complaint. Therefore, Plaintiff's retaliation claim based on alleged retaliatory acts occurring prior to December 22, 2003 (the signing of the EEO Charge) is dismissed for failure to exhaust administrative remedies. See McCray v. DPC Industries, Inc., 942 F. Supp. 288, 294-95 (E.D.Tex. 1996) (stating that the exhaustion requirement applies to claims of retaliation based on events that occurred prior to filing an EEOC charge);. See Narasirisinlapa v. Communications Workers of America, No. 3-04-CV-1643-BD, 2005 WL 1586590, *1, *3 (N.D. Tex. July 6, 2005) (granting summary judgment for failure to exhaust administrative remedies on Plaintiff's retaliation claim based on alleged retaliatory acts occurring before the filing of the charge but denying summary judgment on Plaintiff's retaliation claim based on alleged retaliatory acts occurring after the filing of the charge). Where the alleged retaliation occurs before the initial EEOC charge is filed, a plaintiff must exhaust her administrative remedies on that claim. See, e.g., Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 545 n. 2 (7th Cir. 1988), cert. denied, 491 U.S. 907 (1989). To hold otherwise would effectively exempt all retaliation claims from Title VII's requirements regarding exhaustion of administrative remedies. See Miller v. Southwestern Bell Telephone Co., 51 Fed.Appx. 928, 2002 WL 31415083, * 8 (5th Cir. Oct. 7, 2002) (distinguishing Gutpa and dismissing claim of retaliation under the ADA based on alleged retaliatory acts occurring before the filing of the EEO charge based on disability); Riojas v. Unicco Service Co., No. SA-04-CA-084-XR, 2005 WL 589419, *2 (W.D. Tex. March 14, 2005).
The Court will dismiss on the merits Plaintiff's retaliation claim based on alleged retaliatory acts occurring post-charge, between December 22, 2003 and January 10, 2004. To state a prima facie case of retaliation, Plaintiff must prove that she (1) was engaged in activity protected by Title VII; (2) was subject to an adverse employment action that a reasonable employee would have found materially adverse, which in this context means it might have dissuaded a reasonable worker from making or supporting a charge of discrimination; and (3) there was a causal connection between the participation in the protected activity and the adverse employment action. Burlington Northern Santa Fe Railway Co. v. White, No. 05-259, 2006 WL 1698953, *10 (U.S. Supreme Ct. June 22, 2006) (modifying second element); Hockman v. Westward Communications, LLC, 407 F.3d 317, 330 (5th Cir. 2004) (first and third element). Speirs knew that Plaintiff had contacted the EEOC because she was asked to attend a mediation some time in November 2003, and the evidence clearly shows that Plaintiff did not work any overtime during those twenty days from December 22, 2003 to January 10, 2004.
The Court reject's Defendant's argument that the United States Supreme Court decision in National Railroad Passenger Corp. v. Morgan overruled the Gupta line of cases in the Fifth Circuit. See 536 U.S. 101, 113-115, 122 (2002). The Court notes that at least one other district court has held, after discussing Gupta, that the "pre- Morgan judicially created exception to the exhaustion doctrine" is not good law. Adams v. Mineta, No. 04-856 (RBW), 2006 WL 367895, *3-4 (D.D.C. Feb. 16, 2006). The Court could not find any Fifth Circuit case that discussed Morgan's effect on Gupta. However, the Court could find several recent district court opinions from the Fifth Circuit, including an opinion from this Court, that accepted and relied upon the Gupta holding concerning post-charge retaliation claims. See Breech v. Depuy Spine, Inc., No. H-05-0025, 2006 WL 2401097, *5 (S.D. Tex. Aug. 18, 2006); Dixon v. Moore Wallace, Inc., No. 3:04-CV-1532-D, 2006 WL 1949501, *5 (N.D. Tex. July 13, 2006); Hall v. Principi, No. L-03-CV-90, 2006 WL 870190, *7 (S.D. Tex. April 3, 2006); Brown v. Peterson, No. 7:03 CV 0205, 2006 WL 349805, *10 (N.D. Tex. February 3, 2006); Fisher v. Sisters of Charity of Incarnate Word, No. 1:04-CV-297, 2005 WL 1630829, *6 (E.D. Tex. July 11, 2005); Riojas v. Unicco Service Co., No. SA-04-CA-084-XR, 2005 WL 589419, *2 (W.D. Tex. March 14, 2005) (discussing Gupta exception but ultimately deciding that claim was dismissed for failure to exhaust administrative remedies because the retaliation claim was based on pre-charge retaliatory acts). Morgan held that discrete, discriminatory acts not actionable if time-barred, even when such acts are related to acts alleged in timely-filed charge of discrimination. 536 U.S. at 112. Thus, Morgan dealt with the application of Title VII statute of limitations to pre-charge retaliatory acts, not exhaustion of remedies for post-charge retaliatory acts. The Tenth Circuit held, after Morgan, that "unexhausted claims involving discrete employment actions are no longer viable" because retaliation claims were included within the Supreme Court's list of discrete discriminatory acts. Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003); see also Coleman-Adebayo v. Leavitt, 326 F. Supp.2d 132, 137-39 (D.D.C. 2004). Since the Fifth Circuit has chosen not to address this issue, and multiple district courts within the Fifth Circuit continue to apply the Gupta exception to post-charge retaliation claims, the Court refuses to hold that Morgan overruled Gutpa.
The Court finds that Plaintiff engaged in protected activity and that the denial of overtime would dissuade a reasonable worker from filing a charge of discrimination with the EEOC. However, the Court finds that there was no causal connection between Plaintiff's participation in the protected activity and the adverse employment action. The undisputed evidence indicates that Plaintiff worked a significant amount of overtime between January 10, 2004 and February 28, 2004. In 2004, Plaintiff worked overtime on January 10, 13, 15, 17, 20, 21, 22, 23, 26, 27, 28, 29, and 31. Plaintiff also worked overtime on February 13, 14, 16, 17, 18, 21, 23, 24, 25, and 28. Plaintiff makes no allegations of retaliation occurring after January 10, 2004. Considering the fact that Plaintiff worked so much overtime post-charge, no reasonable fact-finder could reach the conclusion that Plaintiff was subject to a denial of benefits post-charge because she engaged in protected activity. The Court finds that the "cause" of Plaintiff's post-charge overtime schedule was the same as the "cause" of Plaintiff's pre-charge overtime schedule: mail volume on her routes did not justify overtime or a floater was available to process mail on Plaintiff's scheme during a regularly scheduled work day. Thus, Plaintiff's post-charge retaliation claim is dismissed on the merits.
III. CONCLUSION
Plaintiff's race discrimination claim is dismissed on the merits. Plaintiff's sex discrimination claim is dismissed for failure to exhaust administrative remedies. Plaintiff's pre-charge retaliation claim is dismissed for failure to exhaust administrative remedies. Plaintiff's post-charge retaliation claim is dismissed on the merits. The Court GRANTS Defendant's motion for summary judgment (Docket No. 37).