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Glover v. Donahoe

United States District Court, N.D. Alabama, Eastern Division

September 29, 2014

PATRICK R. DONAHOE, et. al., Defendants.


KARON OWEN BOWDRE, District Judge.

This matter comes before the court on "Defendants' Motion to Dismiss Plaintiff's First Amended Complaint." (Doc. 17). Plaintiff Jeffery Glover brought Title VII claims of employment discrimination, retaliation and hostile work environment arising out of his employment with the United States Postal Service ("USPS"). (Doc. 1) Glover also brought § 1983 and § 1981 claims based on alleged violations of his Fifth Amendment due process rights arising out of his termination from employment with the USPS. Finally, Glover brought claims of libel and slander arising out of statements made by the Defendants during the course of their employment with the USPS. ( Id. ) Defendants Patrick Donahoe, Darren Buggs, Derrick King, and Stephanie Johnson filed their motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). (Doc. 17). For the reasons stated in this Memorandum Opinion, the court FINDS the Defendants' motion is due to be GRANTED in its entirety.


On November 6, 2013, the Plaintiff, Jeffrey Glover, filed the original Complaint. The Defendants filed a motion to dismiss (Doc. 11), and after briefing concluded on that motion, Glover filed the current Amended Complaint (Doc. 15). Prior to discovery, the United States Attorney filed a certification pursuant to 28 U.S.C. § 2679(d)(1) stating that all of the individually-named defendants-Patrick Donahoe, Darren Buggs, Derrick King, and Stephanie Johnson-acted within the scope of their employment with the USPS at the time of the alleged libel and slander. (Doc. 16). The certification sought to substitute the United States as a party for the individually-named defendants as to the libel and slander claims only. ( Id. ). The court allowed briefing on the certification because of the potentially dispositive effects certification would have on Glover's libel and slander claims. ( See Doc. 19). Glover challenged the certification and requested preliminary discovery and an evidentiary hearing on the issue (Doc. 18) and briefing ensued on Glover's challenge. ( See Docs. 18, 20, & 22). In an Order dated May 13, 2014, the court denied Glover's request for discovery and an evidentiary hearing, and ordered that the United States be substituted as a defendant for the individually-named defendants only as to the libel and slander claims. (Doc. 24). The individual defendants remain as party defendants for the other claims asserted.

After ruling on the certification issue, the court entered a briefing schedule to proceed with the motion to dismiss, and that motion came under submission as of June 16, 2014.


Glover is a 54-year-old white male, who has been an employee of the USPS for more than 25 years, and remains an employee. (Doc. 15, ¶ 6). On March 4, 2010, Glover was delivering mail in a mail vehicle on Cobb Avenue in Anniston, Alabama when he encountered a van blocking the narrow street. ( Id. ¶ 8). Carolyn Chandler, the driver of the van and an African-American, later complained about Glover to Anniston's USPS facility, claiming that Glover had used the following inappropriate language during the encounter: "Get out of the fucking way" and "Get out of the way black nigger." ( Id. ¶ 9).

In contrast to Chandler's version of the incident, Glover contends that Chandler was the only one yelling that day, and claims that he did not hear what she was saying because the van's windows were up, and the weather was blustery. ( Id. ¶ 8). Glover characterizes his own communications with the van driver as polite: raising his hands in a "what's going on" gesture, holding up mail, motioning that he needed to pass, and eventually leaning out of his vehicle and asking the van driver to stop blocking his way or he would have to call the Anniston Police Department. ( Id. ). After the reference to the police department, the van driver backed up and allowed Glover to pass. ( Id. ). Glover states that at the time of these communications, he remained about twenty-five feet away from the van and both drivers remained in their vehicles. ( Id. ).

On March 8, 2010, Sonya Cobb, the Customer Service Supervisor for the USPS Anniston facility, who is white, conducted an investigative interview of Glover, asking him to give details about the March 4 incident. ( Id. ¶ 11(a)). Cobb did not inform Glover of the allegations against him or the existence of any witness statement. ( Id. ). In the days following the interview, other postal workers began asking Glover about the March 4 incident, indicating that they had heard he had "blessed out" or "cussed out" a customer. ( Id. ¶ 11(b)-(e)). Some co-workers referenced rumors that Glover had used a racial epithet and/or profanity with a customer along his route. ( Id. ¶ 11(b)-(e)).

On March 11, 2010, a week after the incident with Chandler, Cobb filed an Administrative Action Request, relaying Chandler's complaint and charging Glover with inappropriate conduct. ( Id. ¶ 9).

Glover later called the EEOC to complain about the rumors, and the EEOC instructed him to request a meeting with the postmaster and a National Association of Letter Carriers ("NALC") union representative. ( Id. ¶ 11(f)). On March 19, 2010, Glover provided a written request to Cobb asking to speak to Defendant Darren Buggs, the acting Postmaster at the time and a black male. ( Id. ¶ 11(g)). Cobb gave a copy of the request to NALC Branch 448 President, Nat Davis, but took no additional action. ( Id. ). On March 22, 2010, Glover again requested to speak with Buggs, but received no response. ( Id. ¶ 11(h)).

On March 24, 2010, USPS Supervisor Rodney Sturkie took Glover to the postmaster's office where he met with Cobb, Davis and Defendant Derrick King, a black male. ( Id. ¶ 11(i)). They gave Glover a "Notice of Removal" from USPS terminating his employment, effective April 23, 2010.[1] ( Id. ). King then escorted Glover out of the USPS building after taking his badge and allowing him to pick up his personal belongings, which had been gathered and placed at the supervisor's desk. ( Id. ). Glover characterizes this procedure as humiliating. ( Id. ).

On April 9, 2010, NALC Representative Steve Ockay and Cobb met with Glover to commence the grievance process appealing his termination. ( Id. ¶ 11(l)). At the meeting, Glover viewed the evidence against him, but the parties were unable to resolve the dispute. ( Id. ).

On April 28, 2010, five days after the termination effective date, a dispute resolution team overturned Glover's termination, and instructed Glover to report to work on April 29, 2010. ( Id. ¶ 11(o)).

After his reinstatement, Glover points to several incidents that he characterizes as retaliation. Two incidents center around USPS's failure to install Glover's entrance codes to the USPS's back door lock. On May 13, 2010, Glover provided a written request to USPS to install the code to allow him to enter the building without being let in by a co-worker. ( Id. ¶ 11(r)). On May 14, 2010, Glover attempted to access the back door but found that his entrance code was ineffective. ( Id. ). Glover attempted again to access the back door two weeks later and found that his entrance code still had not been installed. ( Id. ). Glover states that as a result, he needed co-worker help to enter the building, and alleges that his co-workers joked and laughed at him, causing him to feel disrespected and embarrassed. ( Id. ). The facts do not reflect any further problems with the back door locks after the two-week period.

Another incident of alleged retaliation relates to the payment of backpay associated with a dispute resolution settlement entered into by Glover and the USPS. The dispute resolution settlement required the USPS to pay Glover $600.00 of backpay within 10 days of the April 28 settlement. ( Id. ¶ 11(p)). On May 14, 2010, Glover's check stub revealed a payment of $10.00 for overtime back pay, instead of the $600.00 due. ( Id. ¶ 11(s)). On May 18, 2010, NALC representative Ockay, requested the Defendants explain their failure to include the correct settlement amount in Glover's check. ( Id. ¶ 11(t)). The Defendants assured Glover that the mistake would be corrected on the next pay period, and on May 27, 2010, Glover received the proper amount of backpay. ( Id. ).

On August 21, 2010, Glover filed his original EEOC Complaint, which the EEOC denied on October 15, 2010. ( Id. ¶ 11(z)). On May 21, 2012, Glover filed an appeal, and on August 9, 2013, the EEOC issued a final denial of the appeal and a right to sue letter. ( Id. ¶ 11(dd)).


A Rule 12(b)(6) motion to dismiss attacks the legal sufficiency of the complaint. Generally, the Federal Rules of Civil Procedure require only that the complaint provide "a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (quoting Fed.R.Civ.P. 8(a)). A plaintiff must provide the grounds of his entitlement, but Rule 8 generally does not require "detailed factual allegations." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. at 47). It does, however, "demand[ ] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal 556 U.S. 662, 678 (2009). Pleadings that contain nothing more than "a formulaic recitation of the elements of a cause of action" do not meet Rule 8 standards nor do pleadings suffice that are based merely upon "labels or conclusions" or "naked assertions" without supporting factual allegations. Twombly, 550 U.S. at 555, 557.

The Supreme Court explained that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting and explaining its decision in Twombly, 550 U.S. at 570). A claim is plausible on its face when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Although "[t]he plausibility standard is not akin to a probability requirement, '" the complaint must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

The Supreme Court has identified "two working principles" for the district court to use in applying the facial plausibility standard. The first principle is that, in evaluating motions to dismiss, the court must assume the veracity of well-pled factual allegations; however, the court does not have to accept as true legal conclusions even when "couched as [] factual allegation[s]" or "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 556 U.S. at 678. The second principle is that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. Thus, under prong one, the court determines the factual allegations that are well-pled and assumes their veracity, and then proceeds, under prong two, to determine the claim's plausibility given the well-pled facts. That task is "context-specific" and, to survive the motion, the allegations must permit the court based on its "judicial experience and common sense... to infer more than the mere possibility of misconduct." Id. If the court determines that well-pleaded facts, accepted as true, do not state a claim that is plausible, the claim must be dismissed. Id.


Glover's Amended Complaint contains eight counts: Count One - Race Discrimination by USPS; Count Two - §1983 and § 1981 Claims For Violation of Glover's Due Process Rights; Count Three - Retaliation; Count Four - Relief from the EEOC; Count Five - An Action Under Bivens v. Six Unknown Fed. Narcotics Agents ; Count Six - Libel; Count Seven - Slander; and Count Eight - Reasserts Claims of Race Discrimination.

For the reasons stated below, this court will GRANT the Defendants' Motion to Dismiss as to all eight counts.

A. Count One - Race Discrimination by USPS

In Count One of his Amended Complaint, Glover alleges that Donahoe, Buggs, King, and Johnson removed him from his position at USPS purely because of his race and gender. (Doc. 15, ¶ 14). Glover does not state the statute under which he is asserting this claim. Nevertheless, 42 U.S.C. § 2000e-16, Title VII, provides the exclusive remedy for federal employees alleging employment discrimination. See, e.g., Brown v. Gen. Serv. Admin., 425 U.S. 820, 829 (1976); Mays v. U.S. Postal Serv., 122 F.3d 43, 45 (11th Cir. 1997). Therefore, the action must be analyzed as a Title VII claim for discrimination.

Individual capacity suits against supervisors or co-employees, however, are inappropriate under Title VII. Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991); Garcia-Cabrera v. Cohen, 81 F.Supp.2d 1272, 1278 (M.D. Ala. 2000) ("Title VII provides aggrieved federal employees no cause of action whatsoever against co-workers or supervisors for alleged employment discrimination."). The only appropriate defendant in a Title VII action against the federal government is the agency head in his official capacity. Canino v. United States E.E.O.C., 707 F.2d 468, 472 (11th Cir. 1983). Therefore, the only properly named defendant in the Title VII claim before the court is the Postmaster General of the United States, Patrick Donahoe, in his official capacity.

Therefore, the court will GRANT the Motion to Dismiss Count One as to Darren Buggs, Derrick King, and Stephanie Johnson in total, and against Patrick Donahoe in his individual capacity. ...

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