Lopez v. Henderson ( 1999 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-40686
Summary Calendar
CAROLYN C. LOPEZ,
Plaintiff-Appellant,
VERSUS
WILLIAM J. HENDERSON, Postmaster General,
United States Postal Service; ET AL.,
Defendants,
WILLIAM J. HENDERSON, Postmaster General,
United States Postal Service,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
M-95-CV-13
M-95-CV-96
July 27, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Carolyn C. Lopez appeals the district
court’s grant of summary judgment in favor of Defendant-Appellee
William J. Henderson, Postmaster General of the United States
Postal Service. The district court rejected Lopez’s allegations
of racial and sex discrimination in violation of Title VII of the
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.
Agreeing de novo with the district court, we affirm.
I.
FACTS AND PROCEEDINGS
Lopez is a white woman who was employed by the United States
Postal Service as a rural letter carrier with the Mercedes, Texas
post office. Lopez claims that the Postal Service treated her
differently on the bases of her race and her sex. She further
asserts that the Postal Service retaliated against her for filing
charges of discrimination based on these alleged incidents. Lopez
grounds these claims on the incidents described below.
A. Lopez’s Disparate Treatment Claims
1. Denial of auxiliary assistance and breach of settlement
agreement
Lopez states that she was denied auxiliary assistance2 on
three occasions over several years because she is a white woman.
Lopez first made, and was denied, a request for auxiliary
assistance in October of 1988. In August of 1990, Lopez filed an
EEO complaint, alleging discriminatory treatment because a male
letter carrier had, under similar circumstances, requested
assistance in January of 1990, and, unlike her, had received it.
This particular dispute was resolved in a settlement agreement
entered into between Lopez, her supervisor, Antonio Echavarria, and
2
On days when a mail carrier has an excessive volume of
mail to deliver, the carrier may request assistance before
departing on his route. In the Postal Service, this is called a
request for auxiliary assistance.
2
the Mercedes Postmaster, Robert Pantoja.
In September of 1993, Lopez again asked for auxiliary
assistance, and again her request was denied. Alleging that the
Postal Service was in breach of the settlement agreement, Lopez
filed a notice of the breach with the Postal Service in October of
1993, claiming discriminatory treatment. The Postal Service, in
November of 1993, declined to reinstate her original August 1990
complaint. On Lopez’s appeal, the EEOC, in February of 1994,
ordered that the Postal Service comply with the settlement
agreement.
In February of 1995, Lopez once again requested, and was again
denied, auxiliary assistance. She requested EEO counseling, and
received notice of right to file in April of 1995. She filed an
EEO complaint that same month, and the Postal Service dismissed the
complaint in June of 1995, noting that Lopez had already made this
complaint the subject matter of a district court action.
2. Letters concerning attendance
Lopez also claims that the Postal Service’s placing in her
personnel file of warning letters concerning her attendance
constituted discriminatory treatment on the bases of her race and
her sex. In September of 1993, the Postal Service placed Lopez on
restricted sick leave, meaning that if she took sick leave she was
required to provide proof that she had visited a doctor. According
to the Postal Service, Lopez regularly took sick leave just before
and just after weekends and holidays. In October of 1993, Pantoja
issued Lopez a warning concerning her irregular attendance because,
3
despite the restriction, she had continued to take sick leave
immediately preceding and following weekends. Lopez sought EEO
counseling in November of 1993, and, in December of 1993, the EEO
issued Lopez a notice of right to file, which she did. In
accordance with a settlement agreement between the Postal Service
and the National Rural Letter Carriers Association, the Postal
Service removed the warning letter from Lopez’s personnel file.
After the removal of the letter, the Postal Service dismissed the
EEO complaint on the basis of mootness. Lopez did not appeal to
the EEOC.
According to the Postal Service, Lopez continued to take sick
leave immediately before and after weekends and holidays. Pantoja
issued Lopez another warning letter in April of 1994, and Lopez
again sought EEO counseling. In June of 1994, she received notice
of her right to file an EEO complaint. She did so, and in
response, the Postal Service removed the letter from her personnel
file. The Postal Service subsequently dismissed the EEO complaint,
and again Lopez did not appeal to the EEOC.
3. Payment of compensation to a substitute carrier following
vehicular breakdown
Lopez also contends that she was treated differently from
other employees when she had a vehicular breakdown. Specifically,
Lopez claims that the Postal Service did not inform her that she
need not compensate a substitute carrier directly when her own
vehicle broke down, as the substitute would be paid through the
payroll system. When Lopez’s vehicle broke down in October of
4
1993, a substitute was called in to complete the route. The Postal
Service paid the substitute for the day, and deducted a day of
annual leave for Lopez. She claims that she paid the substitute
directly for the day. Lopez sought EEO counseling later that
month, claiming that a male letter carrier had suffered a vehicular
breakdown in September of 1993 but had not been required to
compensate his substitute. Lopez received notice of her right to
file a complaint, and did so with the Postal Service in December of
1993. The Postal Service denied the claim in April of 1995, and
Lopez did not appeal to the EEOC.
B. Lopez’s Retaliation Claims
1. Four-mile mileage reduction
Lopez alleges that the Postal Service reduced her daily
mileage by four miles in retaliation against her for filing the
foregoing EEO complaints. As compensation for rural route carriers
is determined by a formula that includes mileage, this reduction
adversely affected Lopez’s pay.
Before the spring of 1995, the Postal Service required all
Mercedes rural carriers to return to the station during the noon
hour to drop off the outgoing mail that they had picked up during
the morning. This outgoing morning mail was then forwarded to the
McAllen, Texas station during the noon hour so that the mail
processing machinery at the McAllen station would have a sufficient
volume of mail to keep those machines operating throughout the day.
According to the Postal Service, however, in the spring of
1995, the mail volume in McAllen proper had grown sufficiently
5
large that noon forwarding of the Mercedes morning mail was no
longer needed to keep the McAllen machines in constant use.
Accordingly, the Postal Service stopped requiring Mercedes rural
carriers to return to the station at noon to drop off outgoing
mail, and this resulted in a reduction in mileage for all such
carriers. As an exception, the Postal Service did permit one
carrier to continue making a noon drop-off during the winter season
because the volume of outgoing mail he picked up in the morning
during that season was so great that he could not see out of the
rear of his vehicle. Despite the Postal Service’s contention that,
except for that single carrier, the mileage reduction affected all
rural carriers equally, Lopez insists that she was the only
employee who suffered a loss of mileage or reduction in pay. Lopez
did not file an EEO complaint concerning this matter.
2. Communications with physician
Lopez also claims that, in retaliation for her filing of the
EEO complaints, Pantoja and Echavarria called her doctor without
her permission. She alleges that these calls prompted her doctor
to discontinue treating her.3
C. Procedural History
The facts underlying this matter produced two separate
lawsuits in the district court, which were later consolidated.
Lopez first filed suit in the United States District Court for the
3
In 1996, Lopez was allegedly diagnosed with lateral
epicondylitis, a soreness in her right arm. Lopez went through the
worker’s compensation process and received documentation showing
she could not perform repetitive motions.
6
Southern District of Texas, McAllen Division, in January, 1995.
She filed a second suit in the same district court in April of that
year. That court consolidated these two cases in July. The Postal
Service moved for summary judgment. The district court granted the
motion and entered a judgment dismissing Lopez’s case in April,
1998. Lopez timely filed a notice of appeal.
II.
ANALYSIS
A. Standard of Review
We review a district court’s grant of summary judgment de
novo.4 Summary judgment is appropriate if the record, when viewed
in the light most favorable to the non-moving party, “show[s] that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”5 In this
employment discrimination case, our focus is on whether there
exists a genuine issue of material fact regarding intentional
discrimination by the Postal Service against Lopez.6
B. Merits
We determine whether a genuine issue of material fact exists
as to Lopez’s disparate treatment and retaliation claims by
4
Lawrence v. University of Texas Medical Branch at
Galveston, 163 F.3d 309, 311 (5th Cir. 1999).
5
FED. R. CIV. P. 56(c).
6
See Lawrence, 163 F.3d at 312; Long v. Eastfield College,
88 F.3d 300, 304 (5th Cir. 1996).
7
resorting to the same evidentiary framework.7 The burden-shifting
structure applicable to Title VII disparate treatment is equally
applicable to Title VII unlawful retaliation cases.8 As Lopez has
not proffered any direct evidence of discrimination, she must show
such discrimination indirectly.9 First, Lopez must establish a
prima facie case.10 To establish a prima facie case of disparate
treatment, Lopez must show that (1) she was a member of a protected
class under Title VII; (2) her performance of the elements
necessary for her job was satisfactory; (3) she was subjected to an
adverse employment action; and (4) others similarly situated were
more favorably treated.11 To establish a prima facie case of
retaliation, Lopez must demonstrate that (1) she engaged in an
activity protected by Title VII; (2) she was subject to an adverse
employment action; and (3) there is a causal link between the
7
Because we subject this case to this form of analysis,
and conclude that Lopez did not raise a genuine issue of material
fact as to her disparate treatment and retaliation claims, we need
not address the Postal Service’s contention that summary judgment
was proper because, as to each of her claims, Lopez had either
failed to exhaust her administrative remedies or the claim was
moot. Although the Postal Service raised this issue in the
district court in its motion for summary judgment, the district
court did not grant the motion on these grounds. For purposes of
our analysis, we assume, arguendo, that, as to each of her claims,
Lopez exhausted her administrative remedies and that none of her
claims was moot.
8
Long, 88 F.3d at 304.
9
See Lawrence, 163 F.3d at 312.
10
Id.; Long, 88 F.3d at 304.
11
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802,
802 n.13 (1973); Urbano v. Continental Airlines, 138 F.3d 204, 206
(5th Cir. 1998).
8
adverse employment action and the protected activity.12
If Lopez successfully establishes a prima facie case, the
defendant -- the Postal Service -- must articulate legitimate, non-
discriminatory or non-retaliatory reasons for the challenged
employment actions.13 If the Postal Service successfully
articulates such reasons, the inference of discrimination raised by
the prima facie case disappears, and Lopez must prove, by a
preponderance of the evidence, that the reasons articulated by the
Postal Service are pretextual and that the Service intentionally
discriminated.14
In the instant case, all but one of Lopez’s claims clearly do
not involve occurences that rise to the level of “adverse
employment actions.” Therefore, Lopez could not establish a prima
facie case on these claims. “Title VII was designed to address
ultimate employment decisions, not to address every decision made
by employers that arguably might have some tangential effect upon
those ultimate decisions.”15 “[E]mployment actions are not adverse
where pay, benefits, and level of responsibility remain the same.”16
We have previously noted that “[u]ltimate employment decisions
include acts such as hiring, granting leave, discharging,
12
Burger v. Central Apartment Management, Inc., 168 F.3d
875, 878 (5th Cir. 1999).
13
See Lawrence, 163 F.3d at 312; Long, 88 F.3d at 304-305.
14
See Lawrence, 163 F.3d at 312; Long, 88 F.3d at 305.
15
Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995).
16
Watts v. Kroger Co., 170 F.3d 505, 512 (5th Cir. 1999).
9
promoting, and compensating”.17 Here, all of the Postal Service’s
alleged transgressions relating to Lopez’s disparate treatment
claims -- its refusal to grant Lopez’s requests for auxiliary
assistance, its alleged breach of the 1991 settlement agreement,
its decision to issue letters of warning concerning Lopez’s
attendance, and its treatment of Lopez in relation to her vehicular
breakdown -- were not adverse employment actions. Neither was the
placement of telephone calls to Lopez’s doctor by her supervisors,
allegedly in retaliation for her filing of discrimination
complaints. As such, Lopez could not establish a prima facie case
on these claims, so summary judgment was proper.18
We thus need only address Lopez’s one remaining claim, that
the Postal Service reduced her mileage in retaliation for filing
discrimination complaints. Even assuming, without deciding, that
the Postal Service’s reduction of Lopez’s mileage constituted an
adverse employment action and that Lopez properly established a
17
Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.
1997) (citation and internal quotation omitted).
18
Lopez contends that the district court erred in
determining that she had not established a prima facie case because
it employed a standard rendered obsolete in light of the Supreme
Court’s decision in Burlington Industries, Inc. v. Ellerth, 118 S.
Ct. 2257 (1998), a sexual harassment case. In Ellerth, the Supreme
Court noted that “[a] tangible employment action constitutes a
significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits.” Id. at 2268. We need not reach this issue in the
instant case, however. Even if Ellerth “lowers the bar” regarding
that which qualifies as an adverse employment action, Lopez’s
disparate treatment claims and retaliation claim regarding the
placement of telephone calls to her doctor do not, in any event,
satisfy the Ellerth definition of a tangible employment action.
See Watts, 170 F.3d at 512 n.5.
10
prima facie case of retaliation on this claim, the Postal Service
proffered a legitimate, non-retaliatory reason for the action that
it took, and Lopez failed to create a genuine issue of fact that
the Postal Service’s reason was pretextual or that the Service
unlawfully retaliated against her.19 According to the Postal
Service, it eliminated the noon hour dispatch for all rural
carriers (except for the one who collected so much mail in the
morning during the winter season that he could not see out the back
of his vehicle) because it was no longer necessary. The non-
retaliatory reason advanced by the Postal Service is that, by 1995,
there was such a volume of mail generated in McAllen proper that
additional mail from Mercedes was no longer needed just to keep the
McAllen machines running full time.
In light of the Postal Service’s proffered legitimate, non-
retaliatory reason, Lopez had to raise a genuine issue of fact as
to whether the Postal Service unlawfully retaliated against her.20
This she has not done. Even if Lopez had shown that the Postal
Service’s proffered reason was pretextual, (which she has not
shown), she would still have to show that the Postal Service
intentionally discriminated against her on the basis of her race or
sex.21 A plaintiff’s evidence of pretext must create an inference
19
See Long, 88 F.3d at 308.
20
Long, 88 F.3d at 308.
21
See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 514-
16, 519 (1993). In Hicks, the Supreme Court noted that “[i]t is
not enough . . . to disbelieve the employer; the factfinder must
believe the plaintiff’s explanation of intentional discrimination.”
Id. at 519.
11
of discrimination.22 To create a jury question, Lopez’s evidence
must be “substantial”.23 In the instant case, Lopez has proffered
no evidence that raises even an inference of pretext or of
retaliatory motive on the part of the Postal Service. Alone,
Lopez’s subjective belief that she was retaliated against because
she is a white female is not sufficient to raise such an
inference.24 Absent evidence of retaliatory motive, Lopez has
failed to raise the requisite material issues of fact concerning
Postal Service retaliation against her to warrant a trial.
Consequently, summary judgment for the defendant on this
retaliation claim was proper.
III.
CONCLUSION
On the strength of our de novo review of the summary judgment
record, we agree with the district court and conclude that it did
not commit error by granting the Postal Service’s motion for
summary judgment. For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
22
See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994-95
(5th Cir. 1996) (en banc).
23
See id. at 993.
24
See Lawrence, 163 F.3d at 313 (quoting Elliott v. Group
Medical & Surgical Service, 714 F.2d 556, 567 (5th Cir. 1983) (“[A]
subjective belief of discrimination, however genuine, [may not] be
the basis of judicial relief.”).
12