Opinion
1: 00CV00964
April 21, 2003
MEMORANDUM OPINION
Plaintiff Ealnor J. Grey ("Plaintiff") filed an action against Defendant John E. Potter, Postmaster General, United States Postal Service ("Postal Service"), alleging race and disability discrimination and harassment during her employment with the Postal Service. The matter is currently before the court on Defendant's motion for summary judgment and motion to strike the exhibits attached to Plaintiff's response to the summary judgment motion. For the reasons stated herein, the court will grant in part and deny in part Defendant's motion to strike. Because Plaintiff has failed to exhaust the administrative remedies with respect to several of her allegations, Defendant's motion for summary judgment will be granted. As to the remaining allegation, Defendant's motion for summary judgment will be granted because Plaintiff has failed to establish prima facie cases for race and disability discrimination.
Defendant filed a motion to dismiss and for summary judgment. Because the court reviewed documents and affidavits submitted by the parties in considering Defendant's motion to dismiss, the court will convert this motion into one for summary judgment. Fed.R.Civ.P. 12(b).
I. BACKGROUND
Plaintiff, a black female, began her employment as a purchasing specialist at the Greensboro Purchasing and Materials Service Center ("Greensboro PMSC") of the Postal Service in January 1993. Less than one month after starting work at the Greensboro PMSC, Plaintiff was involved in a serious automobile accident unrelated to her employment. As a result of the accident, Plaintiff required the use of a cane because she "was rendered incapable of walking great distances or standing for prolonged periods of time. She has a severe limp with continuous pain in her right knee, hip[,] buttock and leg areas." (Compl. ¶ 8(b).) Plaintiff was placed on leave status for over a year to recover from her injuries.
Prior to returning to work, Plaintiff participated in a fitness-for-duty examination in which it was determined that Plaintiff was capable of returning to her duties as a purchasing specialist, essentially a sedentary position. Neither the doctor nor the Postal Service provided any restrictions or accommodations except that the doctor recommended that Plaintiff physically get up from her workstation every one to two hours to change positions. Plaintiff returned to duty in the same position as prior to the accident, "Purchasing Specialist, EAS-16." (Turner Aff. ¶ 3.)
Approximately one year later, Plaintiff was moved to a new workstation within the Greensboro PMSC. Plaintiff's immediate supervisor, Ms. LaVerne Turner, attested that Plaintiff was moved twenty-seven feet away from her former cubicle because of office policy mandating that "purchasing specialists who function together as partners are located side by side." (Turner Aff. ¶ 6.) Ms. Betty Elsass was Plaintiff's new mentor and Ms. Turner asked Plaintiff to change offices so that they could work more efficiently together. (Id.) Plaintiff complained about the office change by emailing Ms. Turner that she was "centrally located" to office equipment and the restroom prior to the change, and that her physical condition was "a long way from being normal." (Turner Aff. ¶ 7 Ex. 6.) Shortly thereafter, the Postal Service requested from Plaintiff's treating orthopedist Plaintiff's updated medical status with regard to potential permanent restrictions and/or accommodations. (Turner Aff. ¶ 8 Ex. 7.) The Postal Service did not receive a response from Plaintiff's treating orthopedist. (Turner Aff. ¶ 8.)
Plaintiff complained through a letter by her attorney that the Postal Service was not reasonably accommodating her need to go to the restroom seven to 10 times daily, and her physical pain in walking short distances by changing her office location. (Turner Aff. Ex. 9.) The Postal Service's management continued to assert that Plaintiff's new workstation was warranted because of the close proximity to her partner, the fact that the distance between the original office and the new office was insignificant, (nine paces farther from the restroom), Plaintiff did not provide medical documentation for her accommodation request, and the office equipment could be placed closer to Plaintiff by modifying office practices. (Turner Aff. ¶ 10.) For a second time, Plaintiff was placed on administrative leave pending receipt of medical information related to her medical restrictions and/or accommodations.
Plaintiff further alleges that she was denied a promotion because of her race and disability. Plaintiff applied for and was denied a purchasing specialist promotion from level EAS-16 to level EAS-18. (Compl. ¶ 8(e).) The Postal Service's rationale for denying Plaintiff's promotion request was that she could produce neither acceptable work nor work without supervision. One criterion for EAS-18 promotion is "to process simplified purchases and structured solicitations/contracts without any supervision." (Turner Aff. ¶ 18.) The record reflects Plaintiff's repeated performance problems: frequent inaccuracies and sloppiness in preparing written documents, such as purchase orders and memoranda and an inability to complete work without supervision. (Turner Aff. ¶¶ 14, 15 Exs. 14-28.)
The record reflects that Plaintiff had considerable difficulty cooperating with her trainer and her team leader following her promotion denial. (Turner Aff. ¶ 22.)
Ms. Turner outlined the requirements for promotion to the next level (EAS-18) in a written memorandum to Plaintiff. (Turner Aff. ¶ 19 Ex. 31.) Completion of a Negotiations Strategies and Techniques training course was listed as a prerequisite to promotion, as well as "COMPASS and DOS training," an enriched understanding of structured contracts, the ability to process purchase and delivery orders without supervision, improved written and oral communication skills, a demonstrated understanding of contract administration, and a possible assignment to a district office. (Turner Aff. Ex. 31.)
Plaintiff applied to participate in the Negotiations Strategies and Techniques training course but was denied permission by Ms. Turner. Ms. Turner's explanation for preventing Plaintiff's attendance and for subsequently denying her promotion request was that Plaintiff
needed to focus on developing her proficiency at completing routine contract types rather than attempting to tackle complex purchasing concepts such as negotiation strategies. At the time she requested to attend such course, Plaintiff was not able to complete simple purchase and delivery orders without considerable oversight, and the Manager of the PMSC and I felt that the advanced training would add to the confusion already being exhibited by Plaintiff. Therefore, we asked Plaintiff to postpone taking the course. Plaintiff was permitted to attend the class . . . the next time the class was offered. Had Plaintiff attended the course [which she requested permission to attend], this would not have changed my decision in February 1995 that she was not ready for promotion.
(Turner Aff. ¶ 20.) Despite Ms. Turner's work-related explanation, Plaintiff contends that she was denied permission to attend the advanced training course because of her race and disability.
Plaintiff further alleges that she was harassed after filing her complaint because the Postal Service "restricted her communication and consultation with co-workers on purchasing issues." (Compl. ¶ 8(g).) It is undisputed that management restricted Plaintiff's communication about her work to Ms. Turner and Plaintiff's personal trainer, Ms. Yvonne Andrews, a senior purchasing specialist. The Postal Service's rationale for this restriction was that because Plaintiff consulted former colleagues at the Columbus postal facility (where Plaintiff was formerly employed), whose practices varied from the Greensboro office's practices, to complete her assignments, and Plaintiff exhibited consistent difficulty in completing her work accurately, Plaintiff should consult only a few knowledgeable individuals in the Greensboro office about her work product. Both parties agree that no other purchasing specialists in the Greensboro PMSC were placed under similar communication restrictions about their work.
Approximately three years after Plaintiff began working as a purchasing specialist at the Greensboro PMSC, the Postal Service outplaced Plaintiff from the position. In a written memorandum, Mr. Raymond Thompson, Plaintiff's manager, explained that because Plaintiff neither demonstrated satisfactory performance at her current job nor exhibited potential satisfactory performance at the next level, she would be placed noncompetitively in a comparable position outside the Career Ladder Program. (Turner Aff. Ex. 33.) Plaintiff was eligible to return to her position as a distribution clerk, but because the position was more physically demanding than the purchasing specialist position, she was unable to satisfy the essential functions of the job.
The Career Ladder Program is a structured advancement program within the Greensboro PMSC that only certain employees are placed upon beginning employment. Employees may be outplaced if, within three years of appointment to their current position, they do not exhibit potential promotion.
Approximately six months later, Plaintiff received written notification of her discharge from the Postal Service. In his September 4, 1996, letter, Mr. Thompson explained that
the physical requirements with or without reasonable accommodation for [the distribution clerk position] and all other similar positions (Mail Handler and Clerk) at the mail processing facility, are far beyond the limitations recommended for you by the Postal medical staff and based on the medical information provided by your doctors.
(Turner Aff. Ex. 34.) A subsequent discharge letter sent to Plaintiff indicated her right to appeal the Postal Service's decision in accordance with the Employee and Labor Relations Manual within 15 days of receipt of the letter. Despite the work-related justification given for Plaintiff's outplacement and the lack of other Postal Service positions available meeting her physical restrictions, Plaintiff alleges that she was demoted and discharged because of her race and disability.
Plaintiff filed eight complaints with the Equal Employment Opportunity Commission ("EEOC") alleging race, national origin, disability and age discrimination and retaliation for past EEOC activity. The agency issued a finding of no discrimination on each of the allegations raised in Plaintiff's complaint except for whether the Postal Service discriminated against Plaintiff by failing to accommodate her alleged disability. Plaintiff timely filed an appeal with the EEOC's Office of Federal Operations ("OFO") as to each of her allegations except for the outplacement and removal claims. The record reflects that despite notification of her rights, Plaintiff failed to file a motion for reconsideration with the OFO within 30 days, or a civil action within 90 days of the date of receipt of the OFO's denial of her appeal on the outplacement and removal claims.
The basis of Plaintiff's national origin discrimination claim was that she is "from the north." In describing such discrimination, Plaintiff alleged that because she transferred from the Columbus postal facility to the Greensboro PMSC, she was "reminded that [she] must learn how to do things the Greensboro way." (Boylan Aff. Ex. 1.)
The record indicates that this issue was not raised directly with an EEO counselor and was not accepted for investigation by the agency. (Boylan Aff. ¶ 11.)
The OFO dismissed Plaintiff's appeal as to the outplacement and demotion claims on February 27, 1998. Plaintiff's civil action was filed in this court on September 25, 2000. Although the complaint was filed more than 90 days after the EEOC issued its right-to-sue letter for her claims (which did not include her outplacement and demotion claims), this court equitably tolled the filing of the complaint because "the EEOC's letter to Plaintiff reasonably led her to rely on the five-day presumption in filing the current complaint. . . ." Grey v. Henderson, No. 1:00CV964 (M.D.N.C. Sept. 24, 2001).
II. DISCUSSION
A. Defendant's Motion to Strike Exhibits 1-12
The court will first consider the Postal Service's motion to strike Plaintiff's Exhibits 1-12 attached to Plaintiff's response to the summary judgment motion. The Postal Service argues that Plaintiff's Exhibits 1-12 should be stricken because they are not properly authenticated, they lack specific facts and, therefore, are inadmissable evidence. Plaintiff further argues that because Exhibits 1-4, 8, 9, and 11 contain inadmissible hearsay, and Exhibits 1-4 and 10 contain irrelevant material, these exhibits should be stricken.
In considering a motion for summary judgment, the court can evaluate the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits in making its determination. Fed.R.Civ.P. 56(c). Exhibits, in the form of written documents, which are attached to an affidavit and properly authenticated, may be considered on summary judgment if the affiant is a competent witness through whom the document can be received into evidence at trial. See Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993); Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, 10A Federal Practice and Procedure: Civil 3d § 2722 (2002)
According to Rule 56(e) of the Federal Rules of Civil Procedure ("Rule 56(e)"), affidavits filed in support of a summary judgment motion
shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers . . . referred to in an affidavit shall be attached thereto or served therewith . . . the adverse party's response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial.
In the absence of an affirmative showing of personal knowledge of specific facts, a court cannot consider such an affidavit in making its summary judgment determination. See Antonio v. Barnes, 464 F.2d 584, 585 (4th Cir. 1972). Rather, an affidavit submitted on summary judgment "must present evidence in substantially the same form as if the affiant were testifying in court." Evans v. Technologies Applications Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996). Summary judgment affidavits cannot be based on inadmissible hearsay. Maryland Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1251-52 (4th Cir. 1991); Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 973-74 n. 8 (4th Cir. 1990)
Here, Plaintiff has offered 12 exhibits in its response to the Postal Service's motion for summary judgment. Because the Postal Service has objected to each exhibit, the court will consider each one separately. The court evaluates the Postal Service's motion to strike while being mindful that "the papers of a party opposing summary judgment are usually held to a less exacting standard than those of the moving party." Lodge Hall Music Inc. v. Waco Wrangler Club Inc., 831 F.2d 77, 80 (5th Cir. 1987); Volumetrics Med. Imaging, Inc. v. ATL Ultrasound, Inc., ___ F. Supp.2d ___, 2003 WL 231309, at *9 (M.D.N.C. Jan. 29, 2003)
Plaintiff's Exhibit 1 is a 14-page-typewritten document containing notes regarding her case. It is unclear who obtained the information and how it was compiled. Plaintiff verifies the exhibit as "true of her knowledge, except such matters and things as are therein set out upon information and belief. . . ." (Pl.'s Resp. Summ. J. Mot. Ex. 1 at 15.) Because the exhibit is not properly authenticated, contains conclusory statements, information not based on Plaintiff's personal knowledge and inadmissible hearsay, the court will strike Plaintiff's Exhibit 1 in its entirety.
For example, Plaintiff includes a "special note" on page three of Exhibit 1 indicating that "[a]ll the above comments regarding Yvonne, came from LaVERNE."
The Postal Service objects to Plaintiff's Exhibit 2 because it allegedly contains hearsay, conclusory statements, and many statements not based on the affiant's personal knowledge. In addition, the Postal Service argues that Attachment A to Exhibit 2, a letter written by the affiant, is hearsay and not properly authenticated. Plaintiff's Exhibit 2 is an EEO Investigative Affidavit by Donald E. Grantz, a purchasing specialist employed by the Postal Service. The court will strike some portions of Plaintiff's Exhibit 2 but will consider other portions of the exhibit for summary judgment purposes.
Paragraph 2 of Plaintiff's Exhibit 2 contains inadmissible hearsay and several conclusory statements about purchasing specialists' abilities to answer questions about the Procurement Manual when considered for promotion. Because Mr. Grantz is not a member of management, it is unclear how he would have personal knowledge of how "most (if not all)" purchasing specialists would answer questions posed by management, or how additional evaluation material would affect the promotion of a particular purchasing specialist. The court will strike paragraph 2 of Mr. Grantz's affidavit (Plaintiff's Exhibit 2) in considering the Postal Service's summary judgment motion.
Paragraph 3 of Plaintiff's Exhibit 2 also contains inadmissible hearsay but only with regard to one particular sentence. The last sentence, "She was told by Ms. Turner not to come to me, so she was very reluctant to even ask me a question for fear of getting in trouble," will be stricken because it is inadmissible double hearsay. The remainder of paragraph 3 will be considered on summary judgment because it relates to Mr. Grantz's personal knowledge of Plaintiff's progress as her team leader and training officer at the Columbus postal facility and his knowledge of Plaintiff's training at the Greensboro PMSC facility.
The court will treat paragraph 4 of Exhibit 2 in the same manner as paragraph 3 because Mr. Grantz's response in paragraph 4 is "Same as 3. above."
With regard to paragraph 5 of Plaintiff's Exhibit 2, the entire last subparagraph (beginning with "No! quantity over quality should not determine performance") will be stricken because it is not based on the affiant's personal knowledge; it is based on information or belief. Statements in an affidavit based on information or belief are not the equivalent of personal knowledge of specific facts and should not be considered on summary judgment. Cottom v. Town of Seven Devils, 2002 WL 369961, at *3 (4th Cir. Mar. 8, 2002); Minnesota Mining Mfg. Co. v. United States Rubber Co., 279 F.2d 409, 415 (4th Cir. 1960). Because Mr. Grantz's statements about Plaintiff's work performance are not factually specific, and only concern his speculation as to why Plaintiff was assigned more work than other purchasing specialists, the last subparagraph of paragraph 5 will be stricken from the record.
Portions of paragraph 6 of Plaintiff's Exhibit 2 contain irrelevant statements to Plaintiff's claim, statements not based on Mr. Grantz's personal knowledge, and inadmissible hearsay. The court will strike portions of paragraph 6 of Mr. Grantz's affidavit.
When these statements are stricken from the record, paragraph 6 reads as follows:
There was a long period of time where Betty Elsass and Wanda Bost very seldom reported to work as scheduled . . . since Management never made them fill out a PS 3871 at that time, I'm sure there is no record of their tardiness. As far as Sue Hartsook, I know she was out for 12 weeks under the Family and Medical Leave Act . . . I do no have access to the attendance records All I know is that Ms. Grey was never tardy for work like Betty Elsass and Wanda Bost . . . only Wanda Bost was at the time under the program. . . .
Paragraphs 8 and 10 of Plaintiff's Exhibit 2 will be stricken because they are based on information or belief, as opposed to the affiant's personal knowledge of specific facts. Cottom, 2002 WL 369961, at *3;Minnesota Mining Mfg. Co., 279 F.2d at 415. Paragraph 9 will be stricken for the same reason except for the first three sentences regarding the announcement at the staff meeting about Plaintiff's outplacement.
Attachment A to Plaintiff's Exhibit 2, a letter allegedly written by the affiant, is not properly authenticated. The letter is dated March 1, 1996, approximately six months prior to the date of Mr. Grantz's affidavit, September 19, 1996. The letter is addressed "To Whom It May Concern," it lacks a letterhead, postmark, return address, and it does not disclose knowledge particular to the purported signer. See United States v. Jacobs, 1995 WL 434827, at *2 (4th Cir. July 25, 1995) Although the letter is attached to Mr. Grantz's affidavit, the affiant does not authenticate the letter in any portion not stricken already by the court. Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993). Therefore, the court will strike Attachment A to Plaintiff's Exhibit 2.
Plaintiff's Exhibit 3 is an EEO Investigative Affidavit by Susan J. Noe, a white purchasing specialist employed by the Greensboro PMSC. Ms. Noe's affidavit is relevant to Plaintiff's race discrimination claim because Ms. Noe relates specific facts regarding her own promotion and training. Ms. Noe also relates specific facts about Plaintiff's work-related restrictions. Because Ms. Noe's affidavit is based on her personal knowledge of specific facts and does not contain inadmissible hearsay, the court will not strike Plaintiff's Exhibit 3 in assessing the Postal Service's summary judgment motion.
Plaintiff's Exhibit 4 is an EEO Investigative Affidavit by Sandra K. Snow, a black purchasing specialist employed by the Greensboro PMSC. Ms. Snow's affidavit is based on her personal knowledge of specific facts that are relevant to Plaintiff's disability discrimination claim. Despite the Postal Service's contention that the entire exhibit should be stricken, the court will strike only three sentences. In paragraph 5, the statement that "[t]he third time she was scheduled, she told me that her team leader, Laverne[,] had told her she had been canceled out of the class because her presence was needed in the office" will be stricken because it is inadmissible double hearsay. In paragraph 8, the statement that "Ealnor was told she could not attend the Negotiating Strategies class because her presence was needed in the office" will be stricken because it is inadmissible double hearsay. The last sentence of paragraph 8, "If the above is not considered harassment, then I believe it is a sign of restraints that have made Ealnor uncomfortable with being tree to communicate with her co-workers," is a conclusory statement not based on personal knowledge of specific facts, and thus, it will be stricken for summary judgment purposes.
Plaintiff's Exhibits 5 and 6 are memoranda from Plaintiff to members of the Postal Service's management concerning her attendance at a training course and request for promotion. The Postal Service argues that the exhibits are not properly authenticated, and the court agrees. Neither memorandum is attached to an affidavit and the court cannot determine authenticity from any other source. The court will strike Plaintiff's Exhibits 5 and 6 because they do not meet the requirements of Rule 56(e).
Plaintiff's Exhibits 7 (Plaintiff's performance evaluations), 8 (letter), 9 (unsigned letter), 10 (typewritten document), 11 (inter-office memorandum), and 12 (typewritten document) will all be stricken because they are not properly authenticated. None of these exhibits are attached to affidavits, and thus, the court will strike them in its summary judgment determination.
In sum, the court will grant the Postal Service's motion to strike Plaintiff's Exhibit 1, portions of Exhibits 2 and 4, and Exhibits 5-12. The court will deny the Postal Service's motion to strike Plaintiff's Exhibit 3.
B. Defendant's Motion for Summary Judgment
Summary judgment is appropriate if an examination of the pleadings, affidavits and other proper discovery materials, viewed in the light most favorable to the non-moving party, indicates that there exists no genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). The essential question for the court's determination is whether the evidence "is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512 (1986). Unless the non-moving party comes forward with specific facts demonstrating a genuine issue for trial, summary judgment is proper as a matter of law.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986)
The Postal Service asserts the following argument in its motion to dismiss (subsequently converted by the court into a motion for summary judgment): Plaintiff's complaint about moving to a new office and the problems it posed to her alleged disability, her allegation that she was denied enrollment in a training course to prevent advancement because of her race and disability, and her harassment allegation based on the communication restrictions instituted by management should all be dismissed for failure to fully and timely exhaust administrative remedies.
A federal employee is required to exhaust all administrative remedies before bringing an action in federal court. Brown v. General Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967 (1976); Long v. Ringling Bros.-Barnum Bailey Combined Shows. Inc., 9 F.3d 340, 343 (4th Cir. 1993); 42 U.S.C. § 2000e-16 (c). According to one of the 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. . . ." 29 C.F.R. § 1614.105 (a) (1.). The 45-day rule may be waived if the individual can show that he or she did not receive notice of the time limit, did not know or reasonably should not have known that the discriminatory action had occurred, despite due diligence, was prevented by circumstances beyond his or her control from contacting the counselor within the prescribed time period, or for other reasons deemed sufficient by the agency. Id. § 1614.105(a)(2). Compliance with the regulation requiring allegations to be brought to an EEO counselor's attention within 45 days of the discriminatory action, and filing a timely charge of discrimination with the EEOC are not jurisdictional prerequisites to filing a civil action. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132 (1982);Foote v. Stone, 1991 WL 278793, at *3 (4th Cir. Dec. 31, 1991) Rather, they are requirements, like statutes of limitations, subject to equitable tolling, waiver, and estoppel. Zipes, 455 U.S. at 393, 102 S.Ct. at 1132.
Because Plaintiff was an employee of the United States Postal Service, a federal agency, when she instituted this action, she was required to exhaust all administrative remedies before bringing this suit. The Postal Service asserts that Plaintiff tailed to bring directly to an EEO counselor's attention her failure to accommodate claim, and thus, the claim was never accepted for investigation by the agency as required by regulation. Plaintiff does not provide any evidence in opposition to this contention (i.e., showing that Plaintiff did not receive sufficient notice about how to conduct a proper EEO investigation). No argument in support of waiver, estoppel or equitable tolling of the EEOC's regulations has been offered by Plaintiff. Therefore, the court will dismiss Plaintiff's failure to accommodate claim because she failed to exhaust the administrative remedies set out by the EEOC regulations.
With regard to Plaintiff's claim that the Postal Service discriminated against her by denying her attendance at a training course, the record reflects that this allegation was not accepted by the agency for investigation because Plaintiff failed to timely contact an EEO counselor. (Boylan Aff. Ex. 5.) After Plaintiff's timely appeal of the final agency decision to the EEOC, the EEOC affirmed the agency in holding that "complainant did not contact an EEO Counselor regarding the denial of this training until well beyond the 45-day limit specified by the regulation. Complainant has offered no excuse for her lateness which would justify agency acceptance of this issue under EEOC Regulation 29 C.F.R. § 1614.604 (c)." (Boylan Aff. Ex. 6.) Plaintiff has not offered to the court any evidence that she did not know or should not have known of the 45-day time limit in bringing her allegation to an EEO counselor's attention. Because Plaintiff failed to comply with the administrative remedies and has not offered any evidence supporting waiver, estoppel, or equitable tolling of the regulation, the court will dismiss Plaintiff's claim that she was discriminated against on the basis at her race and/or disability when the Postal Service denied her attendance in the training course.
Moreover, Plaintiff has failed to respond at all to the Postal Service's argument that many of Plaintiff's claims are barred on procedural grounds.
With respect to Plaintiff's claim that she was harassed by the Postal Service's management because they restricted her communication and consultation with co-workers, the Postal Service also argues that Plaintiff failed to raise this issue with an EEO counselor within 45 days of the alleged harassment. Yet, the agency did investigate the issue and denied Plaintiff relief in its final agency decision because Plaintiff failed to show how the alleged actions "negatively impacted her terms of employment." (Boylan Aft. Ex. 5.) The EEOC affirmed the agency's decision in holding that Plaintiff was not "aggrieved" by the agency's alleged actions. (Boylan Aff. Ex. 6.) The record reveals that Plaintiff did not raise this issue with an EEO counselor until well after 45 days of the alleged harassment; the alleged harassment occurred in early September 1994, see Turner Aff. ¶ 21, and the allegation first appeared in EEOC documents in early June 1995. (Boylan Aff. ¶ 4.)
A court is not required to consider a complaint whose allegations are not raised with an EEO counselor within 45 days of the alleged discriminatory action even if the agency investigates the claim. Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992) (holding that an EEO counselor's decision to investigate does not create an automatic claim for equitable estoppel of the 45-day deadline); Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985) ("The mere receipt and investigation off a complaint does not waive objection to a complainant's failure to comply with the original tiling time limit when the later investigation does not result in an administrative finding of discrimination."); see also Blount v. Shalala, 1999 WL 978892, at *1 (4th Cir. Oct. 28, 1999) (holding that an agency does not waive a timeliness defense by accepting and investigating an employment discrimination claim filed after the 15-day deadline). The fact that the agency commenced an investigation is not sufficient to equitably estop a plaintiff's failure to bring timely the allegation to an EEO counselor's attention. The Fourth Circuit has held that equitable estoppel. is established by showing affirmative misconduct on behalf of the agency (i.e., by inducing or manipulating the complainant into thinking compliance with the filing deadline is waived). See, e.g., Olson v. Mobil Oil Corp., 904 F.2d 198, 201 (4th Cir. 1990).
In the case at bar, there is no evidence that Plaintiff was manipulated or induced by the Postal Service into believing that the filing requirement with the EEO counselor had been waived. Mere investigation of her harassment allegation does not rise to the level of affirmative misconduct so as to waive the Postal Service's current timeliness objection. See Kannapel v. Hudson, 1993 WL 498234, at *10 (4th Cir. Dec. 3, 1993) Therefore, the court will dismiss Plaintiff's harassment allegation for failure to exhaust the administrative remedies.
As to Plaintiff's claims that she was demoted and discharged because of her race and disability, the Postal Service argues that these claims should be dismissed for failure to timely file a civil action. Plaintiff timely contacted an EEO counselor with respect to both of these claims and the agency launched an investigation. (Boylan Aft. ¶ 5.) The agency issued a finding of no discrimination and Plaintiff did not file a timely appeal with the OFO. (Boylan Aff. Ex. 13.) Although Plaintiff was notified of her right to file a civil action within 90 days from the date of receipt of the OFO decision, she failed to do so. (Id.) The record reflects that Plaintiff's first filing of a civil action with regard to her allegedly discriminatory demotion and discharge occurred on September 25, 2000, over two years after the OFO's final decision.
Regardless of whether Plaintiff timely filed a civil action with respect to these claims, Plaintiff has dismissed voluntarily these claims because she stated in her response to the summary judgment motion that "[a]rguments not addressed are abandoned as a part of plaintiff's EEO complaint and civil complaint." (Pl.'s Resp. Summ. J. Mot. at 8.) Plaintiff failed to address either the demotion or the discharge claims in her response to the Postal Service's motion for summary judgement. Therefore, the court will dismiss Plaintiff's claims that she was demoted and discharged because of her race and disability.
In the alternative, the Postal Service argues that summary judgment should be granted with respect to the aforementioned claims because Plaintiff cannot establish a prima facie case for race discrimination, disability discrimination, or harassment. Because the court has disposed of all of Plaintiff's claims except the allegation that she was denied a promotion because of her race and disability, the court will focus its analysis on the allegations surrounding Plaintiff's promotion denial. The Postal Service argues that even if Plaintiff could establish a prima facie case of race or disability discrimination, the Postal Service has legitimate non-discriminatory reasons for not promoting Plaintiff, and Plaintiff has not presented any evidence of pretext.
For a plaintiff to prevail on a race discrimination claim based on indirect proof, he or she must satisfy the three-step proof scheme established by McDonnell Douglas v. Green: (1) the plaintiff has the burden of establishing a prima facie case by a preponderance of the evidence, (2) if the plaintiff is successful, the burden of production shifts to the defendant to offer a legitimate, non-discriminatory reason for the action to rebut the plaintiff's prima facie case, and (3) if the defendant meets this burden of production, the plaintiff must show that the defendant's proffered reason is a pretext for discrimination. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94 (1981). At all times, the plaintiff bears the burden of persuasion in showing that he or she was victimized by the defendant's intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747 (1993)
411 U.S. 792 (1973).
The first prong of the analysis, establishing a prima facie case of failure to promote because of race discrimination, requires proof of four additional elements: (1) plaintiff is a member of a protected group, (2) plaintiff's job performance was satisfactory and/or plaintiff was qualified for the promotion, (3) plaintiff was not promoted despite his or her job performance and/or qualifications, and (4) similarly situated employees outside the protected group were treated more favorably. See Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989).
The second prong of the prima facie case, whether Plaintiff was performing her job duties satisfactorily and/or whether she was qualified for the promotion, is disputed by the parties. The Postal Service has presented a voluminous amount of evidence indicating that Plaintiff was not able to perform her work unsupervised, she consistently made grammatical, spelling, and substantive errors in her memoranda, placement orders, and other documents, and she did not perform her duties in accordance with Greensboro PMSC policies and procedures. In terms of her promotion qualifications, the Postal Service argues that Plaintiff did not meet the criteria for a level EAS-18 promotion set out in a written memorandum by Plaintiff's group leader and according to the career progression program guide.
Plaintiff argues that she met all the requirements for promotion to a level EAS-18 purchasing specialist before she left the Columbus postal facility. (Pl.'s Resp. Summ. J. Mot. Ex. 2.) Plaintiff contends that her work with the Columbus postal facility should have been considered by the Greensboro PMSC's management in determining her promotion. Despite this allegation, however, Plaintiff does not offer any evidence to support the fact that she was qualified for a level EAS-18 promotion.
Plaintiff also is unable to show that the management of the Greensboro PMSC should have taken into consideration her work at the Columbus postal facility in deciding on her promotion. To the contrary, the Postal Service has presented evidence that the qualifications for promotion within the Career Ladder Program Plaintiff was placed in at the Greensboro PMSC were somewhat different from the "career progression program package" of the Columbus postal facility. (Boylan Aff. Ex. 5.; Thompson Aff. Ex. D.) According to the career progression program guide of the Greensboro PMSC, promotions are "not automatic," employees may take more than 12 months to qualify for a promotion, and the ultimate decision must be made by the manager of the purchasing service center. (Turner Aff. Ex. 13.) In addition, because of the Postal Service's reorganization between the time that Plaintiff left the Columbus postal facility and entered the Greensboro PMSC, many of the purchasing procedures had changed and the environment was much different. (Id.) The substantial weight of the evidence shows that Plaintiff was unable to perform her job in a satisfactory manner, and that she was not qualified for a level EAS-18 promotion.
Plaintiff was only employed with the Greensboro PMSC for one month before her automobile accident in February 1993. Plaintiff returned to work in May 1994 and she was denied a promotion in February 1995, less than 12 months later.
Even if Plaintiff were able to convince the court that her work with the Columbus facility should have determined whether she deserved a promotion at the Greensboro PMSC, the parties also dispute whether Plaintiff was treated differently from similarly situated employees outside Plaintiff's protected group. Although the Fourth Circuit has provided little direct guidance in identifying similarly situated employees, other circuits have held that a plaintiff must show he or she was similarly situated to other employees from outside his or her protected class in all relevant aspects. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000); Mungin v. Katten, Muchin Zavis, 116 F.3d 1549, 1554 (D.C. Cir. 1997); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). One essential factor a plaintiff must show is a common supervisor offered one of these similarly situated employees the promotion for which the plaintiff was qualified. Radue, 219 F.3d at 619. "Other relevant factors include whether the employees were subject to the same standards, and whether they engaged in similar conduct without mitigating circumstances that would differentiate their conduct from that of other employees." Truesdale v. Potter, 2003 WL 1522945, at *5 (M.D.N.C. Mar. 24, 2003)
Here, Plaintiff has presented an affidavit of a white purchasing specialist whose promotion qualifications were different from Plaintiff's in that she did not have to answer questions from the procurement manual, she was not denied any training courses, she was not required to take Compass or DGS training courses, and she was not restricted in her communications with others about her work. (Pl.'s Resp. Summ. J. Mot. Ex. 3.) The white purchasing specialist is employed at level EAS-20. Because this purchasing specialist was not considered for the same grade level as Plaintiff, and because there is no indication that she was promoted by the same supervisor who denied Plaintiff's promotion, such evidence is insufficient to support Plaintiff's claim that similarly situated employees were treated differently.
In addition, Plaintiff's evidence that a black purchasing specialist completed different requirements for promotion from level EAS-16 to EAS-18 than Plaintiff is insufficient to support her claim that similarly situated employees were treated differently. Although this purchasing specialist's affidavit indicates that he had the same group leader as Plaintiff (Ms. Turner) and that Ms. Turner gave him different requirements for promotion, the affiant is also a member of Plaintiff's protected class. (Pl.'s Resp. Summ. J. Mot. Ex. 4). One of the essential elements of proving the "similarly situated employee" prong of a race discrimination prima facie case is that the "other employee" must not be a member of the plaintiff's protected class. See, e.g., Brown v. Runyon, 1998 U.S. App. LEXIS 3237, at *3 (4th Cir. Feb. 27, 1998). Because both this purchasing specialist and Plaintiff are black, the purchasing specialist's affidavit does not support Plaintiff's contention that similarly situated employees were treated differently.
The record reflects that Plaintiff was the only level EAS-16 purchasing specialist in the Career Ladder Program at the time of her employment. (Boylan Aff. Ex. 12 at 7.) It is undisputed that no other employee, black or otherwise, was absent from the Career Ladder Program for approximately 15 months, exhibited consistent work performance problems, and was promoted to a level EAS-18 purchasing specialist by either Ms. Turner or Mr. Thompson in less than a year after his or her return. Because Plaintiff has failed first to identify similarly situated employees outside her protected class, and second, to show that they were treated differently, this court holds that Plaintiff has failed to establish aprima facie case of race discrimination. The court will grant the Postal Service's summary judgment motion with respect to the race discrimination claim arising out of Plaintiff's denied promotion.
Even if Plaintiff were successful in establishing a prima facie case, the uncontested evidence in the record of Plaintiff's poor job performance and failure to comply with the qualifications for promotion constitutes a legitimate, nondiscriminatory reason for its action. Further, Plaintiff has not offered any evidence of pretext in refuting the Postal Service's legitimate, non-discriminatory rationale.
For a plaintiff to prevail on a disability discrimination claim, he or she must follow the three-step proof scheme set up in McDonnell Douglas v. Green. To establish a prima facie case for disability discrimination under the Americans with Disabilities Act ("ADA"), a plaintiff must prove the following elements: (1) plaintiff has a disability, (2) plaintiff is otherwise qualified for the position, and (3) plaintiff has suffered an adverse employment action solely because of his or her disability. Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997)
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94 (1981).
For a plaintiff to be considered "disabled" under the ADA, a permanent physical or mental impairment must substantially limit a major life activity. 42 U.S.C. § 12102 (A). The EEOC's regulations guide this court's analysis of both aspects of this definition. "Permanent physical or mental impairment" have been interpreted by the EEOC to mean
The Fourth Circuit and this court have relied upon the EEOC's regulations in interpreting the ADA although the regulations are not binding authority. See Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 349 n. 2 (4th Cir. 1996); Terry v. City of Greensboro, North Carolina, 2003 WL 151851, at *2 n. 1 (M.D.N.C. Jan. 17, 2003).
[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory . . . cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or . . . [a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.29 C.F.R. § 1630.2 (h). The EEOC has interpreted "substantially limits" to mean "[s]ignificantly restricted as to condition, manner or duration under which an individual can perform a particular life activity as compared to the condition[, I manner, or duration under which the person in the average population can perform that same major life activity." Id. § 1630.2(j)(1) (ii). Examples of major life activities include walking, caring for oneself, performing manual tasks, and working. Id. § 1630.2(i). The inability to perform a single job does not equate with a substantial limitation on the life activity of working. Haulbrook v. Michelin North America, Inc., 252 F.3d 696, 703-04 (4th Cir. 2001); Terry v. City of Greensboro, North Carolina, 2003 WL 151851, at *2 (M.D.N.C. Jan. 17, 2003). A court must also consider the nature and severity of the impairment, its duration or expected duration, and any permanent or long-term impact. 29 C.F.R. § 1630.2 (j)(2).
Here, the major life activity that Plaintiff alleges is substantially limited is "working." In her response to the summary judgment motion, Plaintiff contends that she was actually disabled because her condition (characterized by severe limping, lower body pain, and need to use the restroom frequently) was not temporary. Plaintiff does not, however, offer any medical records to support this contention, To the contrary, the medical documents indicate that Plaintiff was returned to her sedentary position as a purchasing specialist with the sole restriction that she get up from her workstation every one to two hours to change positions. On her own admission, Plaintiff and her doctors believed that her condition was temporary. (Def.'s Mem. Supp. Mot. Dismiss and for Summ. J. Ex. C.)
An individual who is absent from work for an extended period of time is usually not considered disabled if the impairment is of a temporary nature with little or no long term or permanent impact. See, e.g., Halperin, 128 F.3d at 199; McDonald v. Commonwealth of Pennsylvania, Dep't of Public Welfare, Polk Ctr., 62 F.3d 92, 95-96 (3d Cir. 1995). Neither the medical records nor Plaintiff's own statements about her condition indicate that the status of her injuries was likely to become permanent so as to qualify her as disabled under the ADA.
Even if Plaintiff could establish her disability under the ADA, the record does not support that she was "otherwise qualified" for the promotion. Under the ADA, an individual is "otherwise qualified" if he or she "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111 (8). An individual must be able to comply with the program's requirements despite the existence of the disability.Halperin, 128 F.3d at 197. As the court has already discussed with regard to the race discrimination claim, Plaintiff cannot refute the Postal Service's evidence of her poor work performance and inability to work without supervision as the legitimate, non-discriminatory reason for denying her a promotion. Without any evidence of compliance with the program's requirements, the court holds that Plaintiff was not "otherwise qualified" for the promotion. Thus, there is no genuine issue of material fact that Plaintiff cannot satisfy the prima facie case for disability discrimination under 42 U.S.C. § 12102 (2)(A). The court will grant the Postal Service's summary judgment motion with respect to the disability discrimination claim arising out of Plaintiff's denied promotion.
III. CONCLUSION
For the reasons set forth above, the court will grant in part and deny in part Defendant John E. Potter's Motion to Strike and will grant Defendant's Motion for Summary Judgment.
A judgment in accordance with this memorandum opinion shall be filed contemporaneously herewith.
JUDGMENT
For the reasons set forth in the memorandum opinion entered contemporaneously herewith.
IT IS ORDERED AND ADJUDGED that Defendant John E. Potter's Motion to Strike [33] is granted in part and denied in part as set out in the court's opinion.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment [25] is granted.