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McMillian v. Donahoe

United States District Court, S.D. Alabama, Southern Division

July 28, 2014

ANLANDO McMILLIAN, pro se, Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General Defendant.

REPORT AND RECOMMENDATION

KATHERINE P. NELSON, Magistrate Judge.

Dueling motions for summary judgment (Doc. 37 (filed by Defendant) and Doc. 39 (filed by Plaintiff)) have been referred to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2, for entry of a report and recommendation.[1] Both sides have filed responses and replies ( see Docs. 42 and 43). And, for all the reasons explained herein, it is RECOMMENDED that Plaintiff's motion (Doc. 39) be DENIED, Defendant's motion (Doc. 37) be GRANTED, and Plaintiff's complaint be DISMISSED with PREJUDICE.

I. Background Facts and Plaintiff's Claims

The parties' submissions establish the following facts as to the event that led Plaintiff to file his lawsuit:[2]

On July 21, 2012, Plaintiff, a letter carrier with the United States Postal Service (the "USPS" or "Postal Service"), was approached by Leander Harris, a manager with the USPS. At the time of the confrontation with Harris, Plaintiff was on his break and talking to a female friend at-and his Postal Service vehicle was parked in front of-the former Tiny Diny restaurant, on Halls Mill Road, in Mobile, Alabama. Plaintiff did not recognize Harris as he approached. According to Plaintiff, Harris, in front of the female friend, told Plaintiff to "pop your trunk, " which Plaintiff took to have a sexual connotation.[3] Plaintiff asked Harris to identify himself, and Harris produced a badge showing that he was a Postal Service manager. The sum of Plaintiff's claims is that Harris[4] used a sexually charged term to harass Plaintiff; embarrass Plaintiff in front of his female friend; and retaliate against Plaintiff for representing fellow USPS employees pursue sexual (and other) harassment complaints against Harris. ( See, e.g., Doc. 40 (affidavit filed by Plaintiff in support of summary judgment); Doc. 7, operative compl., at 2-5.)

II. Law and Analysis

A. Title VII is Plaintiff's exclusive remedy

Plaintiff's claims are before the Court on his amended complaint (Doc. 7), filed September 23, 2013. ( See Doc. 27, ¶ 5.) Liberally construed, that complaint states a claim for sexual harassment and one for retaliation.[5] Plaintiff filed his complaint in this Court following issuance of an order by the EEOC's Office of Federal Operations, affirming the dismissal of his complaint of unlawful discrimination in violation of Title VII. ( See Doc. 7 at 15-19.) Although Plaintiff fails to reference Title VII in the operative complaint (or any law for that matter), because Plaintiff is an employee of the Postal Service, his claims for sexual harassment and retaliation must be considered pursuant to Title VII and the myriad case law interpreting it. See McCloud v. Potter, 506 F.Supp.2d 1031, 1046 (S.D. Ala. 2007) ("It is now well settled, Title VII is the exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.'" (quoting Newbold v. U.S. Postal Serv., 614 F.2d 46, 47 (5th Cir. 1980) (in turn quoting Brown v. General Servs. Admin., 425 U.S. 820, 829 (1976)))); accord Carter v. Secretary of Navy, 492 Fed.App'x 50, 53 (11th Cir. Oct. 11, 2012) (per curiam); Mays v. U.S. Postal Serv., 122 F.3d 43, 45 n.2 (11th Cir. 1997).[6]

Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). And "under the anti-retaliation clause of Title VII, it is an unlawful employment practice for an employer to, inter alia, discriminate against an employee (1) because she has opposed any practice made an unlawful employment practice by this subchapter, or (2) because she has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.'" Anderson v. Dunbar Armored, Inc., 678 F.Supp.2d 1280, 1321 (N.D.Ga. 2009) (quoting 42 U.S.C. § 2000e-3(a)).[7] "The entire thrust of Title VII is directed against discrimination -disparate treatment on the basis of race or sex that intentionally or arbitrarily affects an individual." Arizona Governing Comm. for Tax Deferral Annuity & Deferred Comp. Plans v. Norris, 463 U.S. 1073, 1104 (1983) (Powell, J., concurring and dissenting) (emphasis in original).

B. Summary Judgment Standard

It is well-established that, pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). And this "rule is to be applied in employment discrimination cases as in any other case." Archie v. Home-Towne Suites, LLC, 749 F.Supp.2d 1308, 1312 (M.D. Ala. 2010) (citing Chapman v. A1 Transp., 229 F.3d 1012, 1026 (11th Cir. 2000) (en banc)). "No thumb is to be placed on either side of the scale." Champman, 229 F.2d at 1026. That is, just because "questions of fact in job discrimination cases are both sensitive and difficult and there will seldom be eyewitness' testimony as to the employer's mental processes" does not mean "that trial courts or reviewing courts should treat discrimination differently from other ultimate questions of fact." Id. (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993)) (internal quotation marks and some punctuation omitted); accord Hill v. Guyoungtech USA, Inc., Civil Action No. 07-0750-KD-M, 2008 WL 4073638, at *5 (S.D. Ala. Aug. 26, 2008); Leatherwood v. Mobile Hous. Bd., Civil Action No. 09-00410-CB-N, 2010 WL 3039598, at *2 (S.D. Ala. Aug. 4, 2010).

The party asking for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing, or pointing out to, the district court that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24.
Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). After the nonmoving party has responded to the motion ...

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