Watson v. Brennan ( 2023 )

Case: 23-10131 Document: 00516906585 Page: 1 Date Filed: 09/25/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10131
Summary Calendar FILED
____________ September 25, 2023
Lyle W. Cayce
Phile Andra Watson, Clerk
Plaintiff—Appellant,
versus
Megan J. Brennan, Postmaster General United States Postal Service,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CV-181
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Pro se plaintiff Phile Andra Watson (“Watson”) is a sixty-year-old
African American man (At the time of the original Complaint, Watson was
fifty-six years old). Watson sued Megan J. Brennan, his former employer, in
her official capacity as Postmaster General of the United States Postal Ser-
vice (“USPS”). In the operative complaint, Watson alleges four claims: 1)
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10131
discrimination and retaliation based on his sex and age in violation of Title
VII of the Civil Rights Act and The American Discrimination in Employ-
ment Act; 2) hostile work environment; and 3) intentional infliction of emo-
tional distress. USPS filed a motion for summary judgment on all claims on
May 2, 2022. Watson filed a motion for summary judgment on May 3,
2022. The district court granted the motion for summary judgment in favor
of USPS on January 26, 2023. We AFFIRM.
BACKGROUND
In October 2017, Watson began employment with USPS at the
North Carrier Annex in Fort Worth, Texas. He began a three-month proba-
tionary period ending on January 21, 2018. As a Rural Carrier Associate
(“RCA”), Watson sorted mail, delivered mail, and returned collected mail
to the post office. He was responsible for successfully completing his deliv-
eries within an “evaluated time,” the time allotted for each RCA to com-
plete his or her route.
Watson received formal training in the same manner as other new
RCAs. Between his start date and the end of his probationary period, how-
ever, Watson failed to timely sort mail, deliver mail, and complete any
routes within the evaluated time. To improve his efficiency, Watson re-
ceived more training and tips. Yet, other RCAs had to retrieve and deliver
some of his mail and work excess hours to complete his tasks. Watson
acknowledges that he would deliver mail later than other carriers and that
his supervisor complained to him about timeliness. Because Watson could
not complete his work in a timely fashion, Susan Knudsen, one of his super-
visors, assigned him to a static route to deliver a limited number of parcels.
At the thirty-day performance evaluation, Watson was rated “unsat-
isfactory” in three performance areas—work quantity, work quality, and
dependability. At the sixty-day performance evaluation, Watson had not
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improved and received “unsatisfactory” in the same performance areas.
During his second performance evaluation, Watson justified his inadequate
performance by expressing that he was not properly trained. Ester Wilson,
his supervisor, prepared a report recommending Watson be separated from
service due to his failure to deliver express mail and his failure to complete
his route within the evaluated time. Donna Dunker, USPS Human Re-
sources manager, agreed with this recommendation and notified Watson of
his termination on January 18, 2018.
On January 18, 2018, Watson filed a discrimination charge with
USPS and filed a formal Equal Employment Opportunity Commission com-
plaint alleging discrimination and harassment. The EEOC administrative
judge granted summary judgment in favor of USPS. Subsequently, USPS is-
sued a final decision denying Watson’s claims.
On January 24, 2020, Watson filed his original Complaint against
Megan J. Brennan, in her official capacity as Postmaster General of the
United States Postal Service. Watson alleged 1) wrongful termination, 2)
sex and color discrimination, 3) age and sex discrimination, 4) harassment
and bullying, 5) quid pro quo, 6) intentional infliction of emotional distress,
7) mental anguish, and 8) emotional distress. The district court dismissed
the case without prejudice on June 2, 2020, due to Watson’s failure to ef-
fect service of process on the defendant. Watson filed a motion to reopen
the case on June 23, 2020, and the district court reinstated the case on No-
vember 19, 2020. Watson amended the original complaint on March 10,
2021. Watson amended the second complaint on May 7, 2021. The second
amended complaint, the operative complaint, alleges 1) unlawful discrimi-
nation and retaliation based on his sex and age, 2) hostile work environ-
ment, and 3) intentional infliction of emotional distress.
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On January 9, 2023, the magistrate judge submitted a report recom-
mending that Defendant’s motion for summary judgment be granted and
Plaintiff’s cross-motion be denied. The district judge reviewed the magis-
trate judge’s report and Watson’s objections, and, after conducting a de
novo review, adopted the magistrate judge’s report as the findings and con-
clusions of the court and granted the Defendant’s motion.
Watson now files this pro se appeal challenging the district court’s
grant of Defendant’s motion for summary judgment.
STANDARD OF REVIEW
This court reviews a grant of summary judgement de novo, applying
the same legal standard as the district court. Sierra Club, Inc. v. Sandy Creek
Energy Associates, L.P., 627 F.3d 134, 139 (5th Cir. 2009)(quotations omit-
ted). Summary judgment should be rendered if the record demonstrates
that “there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). To determine
whether there is a fact issue, this court views the facts and the inferences to
be drawn therefrom in the light most favorable to the nonmoving party.
Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001).
DISCUSSION
We first address Watson’s discrimination claim based on his sex and
age in violation of Title VII and the ADEA. The district court concluded that
Watson (a) was not qualified for the position considering his performance
issues, (b) did not establish that his proffered comparators were similarly
situated or treated more favorably, and (c) did not establish that he was
otherwise discharged because of his age. On appeal, Watson’s brief does not
adequately address where the district court erred. “[A] party forfeits an
argument by failing to raise it in the first instance in the district court—thus
raising it for the first time on appeal—or by failing to adequately brief the
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argument on appeal.” Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir.
2021)(citation omitted). To the extent that Watson’s brief is adequate, the
district court properly dismissed Watson’s discrimination claims because he
failed to establish a prima facie case of discrimination based on sex or age.
To establish a prima facie case of discrimination under both Title VII
and the ADEA, an employee must demonstrate that (1) he is a member of a
protected class, (2) he was qualified for the position he sought, (3) he suffered
an adverse employment action, and (4) other similarly situated employees
outside the protected class were treated more favorably. Saketto v. Admin of
Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022). To satisfy the fourth
prong, a plaintiff must engage in a “comparator analysis” to establish he was
treated less favorably than a similarly situated employee outside his protected
class under nearly identical circumstances. Id.First, Watson does not provide competent evidence that he was
qualified for the job. Watson contends that he was not properly trained and
that he was not in the RCA position during the full duration of his
employment. While Watson acknowledged that he had performance
deficiencies, he blamed them on his lack of training. But the record reflects
that “[Watson] received the same training as other RCAs, if not more.”
After receiving more training, Watson was unable to complete his rural route
and was moved to a static route to deliver parcels. This change in duties “did
not alter his status as an RCA.” At both the 30-day and 60-day evaluations,
Watson received “unsatisfactory” in three categories—work quantity, work
quality, and dependability. Given his performance deficiencies, the district
court properly concluded that Watson was not qualified for the RCA
position.
Second, Watson had no evidence that his comparators were similarly
situated. Watson proffers Robin Mott as a comparator for his sex
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discrimination claim. Yet, Mott and Watson were not similarly situated
employees. Mott, a white female, is five years older than Watson and
received similar training. Moreover, unlike Watson, Mott had completed her
probationary period prior to Watson being hired at USPS. Additionally, Mott
did not have any recorded performance deficiencies in her file. As the district
court explains, “Mott even assisted [Watson] on his route once.”
Similarly, Watson proffers Prosperine Chirashagasha as a comparator
for his age discrimination claim. Yet, Chirashagasha and Watson are not
similarly situated employees. Chirashagasha, a 30-year-old African-
American woman, was hired the same day as Watson. Chirashagasha did not
have any recorded performance deficiencies in her file and was “more
successful in performing her job duties than Mr. Watson.” While it is unclear
whether Watson argues that Chirashagasha was a comparator for his sex
discrimination claim, the district court correctly concluded that this claim “is
unavailing because one USPS central scheduler assigns RCAs to particular
facilities and routes based on the needs of the organization and the applicable
collective bargaining agreement.” Because Watson failed to establish the
prima facie case for discrimination based on age or sex, his Title VII and
ADEA discrimination claims fail.
We now turn to Watson’s hostile work environment claim. Watson’s
operative complaint does not include an allegation of a hostile work
environment. This claim is only made during the EEOC proceedings, where
he alleged “derogatory” remarks directed towards him by a USPS
supervisor. On review, the district court properly found that Watson failed
to establish an actionable hostile work environment claim.
To establish a prima facie case of harassment alleging hostile work
environment, the employee must establish that (1) [he] belongs to a protected
group; (2) [he] was subject to unwelcome harassment; (3) the harassment
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was based on a protected characteristic; (4) the harassment affected a term,
condition, or privilege of his employment; and (5) his employer knew or
should have known of the harassment and failed to promptly take remedial
action. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). “Simple
teasing, offhand comments, and isolated incidents (unless extremely
serious)” do not “amount to discriminatory changes in the “terms and
conditions of employment.” Faragher v. City of Boca Rotan, 542 U.S. 775, 789
(5th Cir. 1998).
The record only includes comments about Watson that were
assessments of his work product. As the district court noted, the only
statement that can be construed to be related to Watson’s gender is from a
supervisor who claimed that “he should be wearing Cowgirls Pink.”
Although this comment can be construed as improper, offhand comments
along those lines do not establish an actionable hostile work environment
claim. Thus, the district court properly granted summary judgment to USPS
on this claim.
We now turn to Watson’s retaliation claim. The district court found
that Watson did not administratively exhaust the retaliation claim, which is
required by Title VII, and that Watson’s retaliation claim does not “grow out
of” a filed EEOC charge.
“To establish a prima facie case of retaliation, the employee must
establish that: (1) he participated in an activity protected by Title VII; (2) his
employer took an adverse employment action against him; and (3) a causal
connection exists between the protected activity and the adverse
employment action.” McCoy v. City of Shreveport, 492 F .3d 551, 556-57 (5th
Cir. 2007). Title VII mandates that discriminatory retaliation claims are
administratively exhausted prior to filing a discriminatory suit. However, “a
district court has ancillary jurisdiction to hear a claim of retaliation, even
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though not filed with the EEOC, when it grows out of an administrative
charge that is properly before the court.” Barrow v. New Orleans S.S. Ass’n,
932 F .2d 473, 479 (5th Cir. 191).
On review, the district court correctly concluded that Watson did not
exhaust the retaliation claim and that the claim does not “grow out of” a filed
EEOC charge. First, Watson’s filed complaint with the EEOC does not
include a retaliation claim. Watson contends that he filed a retaliation claim
with the EEOC and that the EEOC closed this claim in April 2022. However,
as the district court explained: “There is no record to support this
proposition.” Second, Watson’s retaliation claim does not “grow out of” the
previously filed EEOC charges. Watson’s brief does not clearly articulate the
specific action that is retaliatory. Watson’s employment was permanently
terminated on January 18, 2018, prior to the filing of the EEOC charges.
Because USPS was no longer his employer after he was terminated, USPS
could not retaliate against him, for example, by failing to renew his contract.
See Gupta v. East Texas State University, 654 F.2d 411,413 (5th Cir.
1981)(“After Gupta instituted this lawsuit, he was notified that his teaching
contract would not be renewed for the following year. Gupta contends that
his nonrenewal was in retaliation for his filing charges with the EEOC.”).
We now turn to Watson’s pursuit of an intentional infliction of
emotional distress claim. The availability of remedies under Title VII and
ADEA foreclose the pursuit of an intentional infliction of emotional distress
claim based on the same conduct. Stelly v. Duriso, 982 F.3d 403, 409 (5th Cir.
2020). The remedies provided by an intentional infliction of emotional
distress claim are intended to fill the “gap” when other remedies are
insufficient. Id.The district court properly dismissed Watson’s tort claim because it
fails as a matter of law. Watson’s Title VII and ADEA claims are based on
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the same alleged facts used to substantiate his intentional infliction of
emotional distress claim. Given the available remedies, the pursuit of the
intentional infliction of emotional distress claim is foreclosed.
For these reasons, we AFFIRM the judgement of the district court.
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