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Smith v. Brennan

United States District Court, E.D. Virginia, Alexandria Division

November 4, 2019

KENNETH SMITH, Plaintiff,
v.
MEGAN BRENNAN, Defendant.

          MEMORANDUM OPINION

          CLAUDE M. HILTON UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56.

         Plaintiff, a male employee of the United States Postal Service ("USPS"), initiated this suit for discrimination on September 29, 2017. In 1993, Plaintiff was hired by USPS as a mechanic and was moved, a few years later, to position as an electronics engineering technician at the Dulles Processing and Distribution Center ("Dulles P&DC") in Loudon County. After his move and during the relevant time period, Plaintiff's first level supervisor was Clement Jackson, and his second level supervisor was Gloria Luna.

         Plaintiff has self-published two books on his studies of genetics. In approximately 2010, Plaintiff began posting advertisements for these books in USPS facilities, including the employee bulletin board at Dulles P&DC and community bulletin boards in the public lobbies of several USPS Post Offices.

         These notices were removed. Plaintiff was informed that certain individuals found the notices to be offensive and that he was not authorized to post things for sale on the employee bulletin board. Two supervisors in particular were responsible for the removal of the book advertisements. Ms. Luna removed one book advertisement some time in 2010 or 2011, as instructed by a higher-level USPS supervisor; and Vincent Carter instructed Plaintiff to cease posting such advertisements. Plaintiff continued to do so, posting up to four times a day, and at least 1, 000 times in total on one community bulletin board location.

         Four years later, on September 3, 2014, Plaintiff left his personal vehicle parked in the Agency's parking lot. After that time, the vehicle, while unoccupied and in neutral gear, began rolling from the parking space. The vehicle traveled nearly 100 feet, crossing over the employee walkway and struck a curb before stopping. Plaintiff's vehicle was not placed in the park position, which was cited as cause for the incident.

         Concerned for the safety of employees on the premises, Ms. Luna initiated a pre-disciplinary interview, at which Plaintiff was represented by a union representative. Following that interview, Ms. Luna and Mr. Carter recommended Plaintiff's employment be terminated because of the car incident. On October 6, Plaintiff received a thirty-day termination letter. Through the union grievance process, the termination was reduced to a seven-day "paper suspension" to be removed from Plaintiff s personnel file after three months. For this reason, Plaintiff never served a formal suspension and never lost pay as a result of the disciplinary action.

         In November, 2014, Plaintiff was denied overtime pay for time he spent working as the Equal Employment Opportunity ("EEO") representative at his workplace. Plaintiff spent numerous hours counseling a co-worker through the EEO process and attended a deposition for the related case.

         Plaintiff remains employed at USPS. Plaintiffs supervisor, Ms. Luna, retired in 2015. His other supervisor, Mr. Carter, remains with USPS but Plaintiff has had no difficulties with Carter since the 2014 discipline for the rollaway incident.

         On December 15, 2014, Plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC"). In January, 2015, the EEO Office informed Plaintiff that it would investigate his discrimination and retaliation claim with respect to the single notice of removal issued in October, 2014. The letter instructed Plaintiff that, if he did not agree with the determined scope, he must provide a written response within seven days of the receipt of the letter. Plaintiff never identified any disagreement. The EEOC judge concluded Plaintiff failed to demonstrate that USPS' rationale was a mere pretext for unlawful discriminatory animus. On July 3, 2017, the EEOC provided Plaintiff with a Right to Sue Letter. Later that same year, Plaintiff filed the Complaint initiating this action.

         In his Second Amended Complaint, . Plaintiff alleged Illegal Termination and Failure to Pay Overtime under Title VII (Counts I and II), First Amendment Retaliation under 42 U.S.C. § 1983 (Count III), Free Speech Violation under 42. U.S.C. § 1983 (Count IV), Violation of Plaintiff's Fourteenth Amendment Right to Equal Protection of the Law under 42 U.S.C. § 1983 (Count V), Religious Discrimination and Genetic Discrimination under Title VII (Counts VI and VII). On January 22, 2019, the Court granted Defendant's Motion to Dismiss on Counts V, VI, and VII. Discovery is now complete and Defendant's case is ripe for summary judgment.

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When reviewing a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court may enter summary judgment when a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The “mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient" to find an issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

         To initiate a lawsuit for discrimination, a plaintiff must first exhaust his administrative remedies by filing a complaint with the EEOC and receive a Notice of Right to Sue. See Laber v. Harvey, 438 F.3d 404, 415-17 (4th Cir. 2006). In that complaint, the plaintiff must raise any claim that "reasonably relate[s]" to those raised within the later judicial complaint. Chacko v. Paxutent Inst., 429 F.3d 505, 509 (4th Cir. 2005)(quoting Evans v. Techs. Apps. & Servs. Co., 80 F.3d 954, 962-63 (4th Cir. 1996)) . Thus, the scope of a private action is limited by “the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." Chisolm v. United States Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981). Only those claims stated in, those that reasonably relate to, and those developed by a reasonable investigation of the original complaint may be maintained in a subsequent lawsuit. See Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996}.

         Here, Plaintiff failed to fully exhaust his failure to pay overtime claim with the EEOC. His formal administrative complaint does not mention USPS's decision to not pay him overtime for assistance he provided to another USPS employee. Plaintiff received a letter informing him that the agency had construed his administrative complaint to include only a claim based on the notice of removal and so, consequently, would not investigate any other claim. The letter instructed Plaintiff to provide, within seven days, a written response specifying any disagreement with the defined scope. Plaintiff did not. He also did not attempt to amend his administrative complaint, although after failing to respond to this notice, it is unlikely that he would have been allowed to do so. See Black v. Potter, 2008 WL 509475, at *14 (D.S.C. Feb. 21), aff'd on other grounds, 286 Fed.Appx. 841 (4th Cir. 2008). Raising this claim in federal court, without fully exhausting the available administrative remedies, is ...


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