Coleman v. Donahoe
Coleman v. Donahoe
Opinion of the Court
ORDER RE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
This is an action for employment discrimination that George Coleman initiated in January 2011. Defendant Patrick R. Donahoe has moved for summary judgment on all claims that Mr. Coleman has brought against him.
FACTUAL BACKGROUND
George Coleman is an African American male who was employed by the United States Postal Service (“USPS”) for approximately thirty years. Mr. Donahoe is the Postmaster General of the USPS and is named in this action in his official capacity. In February 2008, Mr. Coleman, who had been in a management position, was demoted to a clerk position and assigned to the USPS’ Muldoon Station location. Mr. Coleman’s claims arise from the circumstances surrounding that demotion, his subsequent employment at the Muldoon Station, and his early retirement from the USPS in December 2008.
The facts, presented in the light most favorable to the plaintiff for purposes of this summary judgment motion, are as follows: Mr. Coleman began working for the USPS as a clerk in October 1978 and was employed by that agency until December 31, 2008.
In approximately 1991, Mr. Coleman unsuccessfully applied for the position of Transportation Requirements Specialist (EAS-15).
Between 2004 and 2007, Mr. Coleman was the subject of three EEO complaints that alleged he had engaged in inappropriate conduct toward women.
As a result of the last of these incidents, Mr. Coleman received a Notice of Proposed Removal from the USPS on December 28, 2007 informing him that his termination had been recommended.
The parties reached a settlement at that meeting. The terms of that settlement provided that the Notice of Proposed Removal would be converted to a “Final Written Warning in Lieu of Termination” and that Mr. Coleman would be demoted to a PS-05 position, with seniority “one day less than the junior unassigned regular” employee.
After his demotion, Mr. Coleman worked as an unassigned regular employee at a PS-05 position at the Muldoon Station from February 2008 until he went on medical leave on August 4, 2008. While employed at the Muldoon Station, Mr. Coleman has testified that postal management made him exceed his physical work restrictions, forced him to sort mail without assistance, required him to travel from station to station during the workday, micromanaged his work, and assigned him allegedly humiliating duties.
On July 1, 2008, Mr. Coleman applied for another position, a Small Business Specialist.
On August 4, 2008, Mr. Coleman went on approved FMLA leave.
On August 23, 2008, 38 days after being notified of his non-selection for the Retail Specialist position, Mr. Coleman requested a meeting with a Dispute Resolution Specialist with the USPS EEO Office.
While at the USPS, Mr. Coleman had physical work restrictions that ranged at various times from 10 to 70 pounds.
On August 28, 2008, Mr. Coleman applied for Voluntary Early Retirement with an effective date of December 31, 2008.
On September 7, 2008, Mr. Coleman submitted to the USPS EEO Office the Information for Pre-Complaint Counseling form that was sent to him after his August 23, 2008 appointment request.
Mr. Coleman did not withdraw his early retirement application, so it became irrevocable at the end of September 2008, when the thirty-day withdrawal period expired.
On October 18, 2008, Mr. Coleman made another request for an appointment with a Dispute Resolution Specialist.
On October 31, 2008, Mr. Coleman and his attorney attended a mediation to address his pending EEO claims, but no resolution was achieved.
Mr. Coleman retired from the USPS on December 31, 2008.
PROCEDURAL HISTORY
I. Mr. Coleman’s Formal EEO Complaint.
On December 3, 2008, prior to his retirement, Mr. Coleman filed a formal complaint of discrimination with the USPS' EEO Office.
• improper demotion,
• breach of the demotion settlement agreement,
• failure to promote with regard to two Small Business Specialist (EAS-16) positions and one Retail Specialist (EAS-16) position,
• harassment at the Muldoon Station,
• retaliation for prior EEO activity, and
• constructive discharge (forced retirement).56
On January 6, 2009 the USPS EEO Office partially accepted for review and partially dismissed Mr. Coleman’s complaint as follows:
• Forced retirement based on retaliatory and discriminatory actions beginning on or around September 6, 2008: accepted.58
• Hostile work environment beginning in 2008: dismissed after finding that Mr. Coleman had “only provided a vague and ambiguous account of the alleged harassment” and that his allegation did “not assert a pattern of conduct showing harassment and did not result in direct or personal déprivation in*925 [his] employment sufficient to render [him] aggrieved.”59
• Allegations of improper demotion and breach of the demotion settlement agreement: not accepted for review because allegations of breach of the settlement agreement relate to the pri- or EEO case and are to be raised with the Regional EEO Manager.60
• Non-selection for Retail Specialist (EAS-16) position: dismissed as untimely based on a finding that Mr. Coleman had failed to contact an EEO counselor within 45 days of his failure to receive the position and had not provided “a credible explanation” to justify his untimely filing.61
The EEO Office then conducted an investigation of the claims it had accepted.
In August 2009, the Administrative Judge granted Mr. Coleman’s request to reinstate his hostile work environment claim.
II. Mr. Coleman’s Complaint in this Action.
Mr. Coleman, now representing himself, filed the Complaint that initiated this action on January 18, 2011.
Mr. Coleman claims that as a result of these discriminatory actions, he has suffered “financial hardships, mental anguish, medical issues, and loss of credit rating.”
DISCUSSION
I. Jurisdiction.
The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1343.
II. Summary Judgment Standard.
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The burden of showing the absence of a genuine dispute of material fact lies with the moving party.
When considering a motion for summary judgment, a court must accept as true all evidence presented by the non-moving party, and draw “all justifiable inferences” in the non-moving party’s favor.
A party asserting that a fact cannot be or is genuinely disputed must support that assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.86
This Court reviews the facts of this case de novo.
In evaluating summary judgment motions on employment discrimination claims, the Ninth Circuit has “emphasized the importance of zealously guarding an employee’s right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses.”
III. Analysis.
Mr. Coleman has asserted that the USPS subjected him to both racial and retaliatory discrimination by demoting him, failing to promote him, harassing him, ultimately resulting in his constructive discharge from the USPS.
Because Mr. Coleman is self-represented, the Court liberally construes his claims and affords him the benefit of any doubt.
A. Disparate Treatment under Title VIL
Title VII of the Civil Rights Act of 1964 provides, in relevant part:
It shall be an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise 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[.]91
42 U.S.C. § 2000e-16 prohibits discriminatory practices in the United States Postal Service, and other federal agencies and departments, and provides that the head of the' agency shall be named as the defendant in civil actions brought after an employee’s EEOC remedies have been exhausted.
When an individual is “singled out and treated less favorably than others similarly situated on account of race,” that constitutes disparate treatment under Title VIL
As an alternative to the process outlined in McDonnell Douglas, the plaintiff may begin by meeting his ultimate burden of presenting “direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the employer].”
“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.”
B. Demotion and Breach of Settlement Agreement.
Mr. Coleman has testified that he agreed to accept a demotion in the February 2008 settlement in lieu of removal because he did not want to lose his retirement benefits.
The settlement agreement is on a typewritten form, with additional specific terms written in by hand.
As a complete and final settlement of the subject matter, and without prejudice to the position of the parties in this or any other case, and with the understanding that this settlement will not be cited in other proceedings, by the appellant, the appellant’s representative (if any) and/or any representative organization, the following resolution has been entered into by the parties.
It is understood that this agreement is final and binding therefore, no Letter of Decision will be issued. Further, this document is confidential however, a copy of this agreement will be furnished to those parties necessary to implement its terms[.]111
The written settlement agreement contains no assurances relating to future promotions or management positions.
Mr. Coleman has stated that during his time with the USPS he “observed many supervisors and managers accept demotion and in a year or two receive promotions.”
The settlement agreement also provided that “[a]ny alleged breach arising out of the implementation of, or compliance with this settlement agreement must be reported in writing to the District Manager, Human Resources within 30 days of the alleged breach.”
To the extent that Mr. Coleman is alleging that his demotion in February 2008 was discriminatory, the undisputed facts
C. Failure to Promote.
i. Retail Specialist Position (EAS-16).
In April 2008, Mr. Coleman applied for the position of Retail Specialist (EAS-16). He was interviewed for this position on June 18, 2008.
In order to proceed with a race discrimination claim, “[a]n aggrieved person must initiate contact with a [EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory!.]”
The precise content of Mr. Coleman’s August 23, 2008 EEO contact is not included in the record. Although Mr. Coleman later, in connection with that contact, filed his September 7, 2008 Information for Pre-Complaint Counseling form, that form discusses only what it terms “the latest incident” that occurred on September 6, 2008.
The Defendant asserts that Mr. Coleman did not initiate contact with the EEO counselor within the requisite 45 days with respect to the Retail Specialist claim so that this claim is not properly before the Court.
“Whether a plaintiff in a Title VII action has timely exhausted [his] administrative remedies is an affirmative defense, so the Defendant bears the burden of pleading and proving it.”
ii Small Business Specialist Position (EAS-16).
On July 1, 2008, Mr. Coleman applied for a Small Business Specialist position that had been posted in June 2008.
In McGinest v. GTE Service Corp., the Ninth Circuit addressed an employer’s as
Here, in contrast to McGinest, the Defendant has provided sworn testimony that the Small Business Specialist position had still not been filled over a year after Mr. Coleman’s non-selection.
At oral argument, the Court specifically asked Mr. Coleman to explain how his non-selection for an interview constituted an adverse employment action when he had no evidence that the position was ever filled.
D. Hostile Work Environment.
Title VII guarantees “the right to work in an environment free from discriminatory intimidation, ridicule, and insult.”
The Ninth Circuit has held that to make a prima facie case for a race-based hostile work environment under Title VII, a plaintiff must demonstrate that “(1) he was subjected to verbal or physical conduct because of his race; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment.”
i. Harassment after Mr. Coleman’s August 4 2008 Departure on Sick Leave.
Mr. Coleman asserts that the USPS’ requests that he complete scheme training, meet the physical requirements of his position, and pass a fitness for duty exam or risk termination contributed to a
It is undisputed that for the entire period between August 4, 2008 and Mr. Coleman’s retirement on December 81, 2008, Mr. Coleman was on leave. Even assuming, without deciding, that the letters sent to Mr. Coleman after August 4, 2008 would be sufficient to satisfy the first two elements of the Ninth Circuit’s hostile work environment test, the letters fail to satisfy the third element because they do not constitute conduct “sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment”
ii. Harassment during Mr. Coleman’s Employment at the Muldoon Station.
Mr. Coleman has asserted hostile work environment claims arising from conduct that occurred while he was working at the Muldoon Station, beginning shortly after his demotion in February 2008 until August 4, 2008. He alleges that while assigned to the Muldoon Station, USPS management harassed him in the following ways:
(a) Disregarded Work Restrictions.
Mr. Coleman has alleged that despite having documented work restrictions that limited the amount of weight he could lift, he was assigned tasks at the Muldoon Station that required him to lift objects heavier than his restrictions permitted.
Mr. Coleman has testified that he was made to sort mail without assistance. However, he has also testified that he was the only clerk at the Muldoon Station assigned to that task, and that it was a necessary one.
(c) Required to Travel from, Station to Station.
In early September 2008, Mr. Coleman was informed that his new work responsibilities required him to work at the Muldoon Station for the first part of the day, then drive to Eastchester Station for the remainder of the day.
(d) Micromanagement.
Mr. Coleman has testified that one of his Muldoon Station supervisors regularly harassed him by engaging in micro-managing techniques, such as following him around and waiting for him at the end of his breaks.
(e) Assigned Humiliating Duties.
At his EEO deposition, Mr. Coleman testified that one of his Muldoon Station supervisors made him perform demeaning and harassing tasks, and expressed a demeaning manner toward him, but could not recall any specific instances of either.
(f) Interference with Typing Test.
Mr. Coleman states that as part of his application for a position as a secretary in Marketing, he was required to take a typing test. He has testified that the test was administered to him in a discriminatory
Applying the Ninth Circuit’s test to all of these factual allegations, the Court finds that Mr. Coleman’s hostile work environment claim fails on the first element.
E. Constructive Discharge.
Mr. Coleman claims that the hostile work environment constituted a construc
CONCLUSION
For the foregoing reasons, the Defendant’s Motion for Summary Judgment is:
1. DENIED with respect to Mr. Coleman’s failure to promote claim arising from his non-selection for the Retail Specialist position, and
2. GRANTED with respect to all other claims in Mr. Coleman’s Complaint. Dated at Anchorage, Alaska this 29th day of October, 2012.
. Docket 25 (Mot.).
. Opp. (Docket 41); Reply (Docket 42).
. Dep. of George M. Coleman at 10, Feb. 1, 2012 (Docket 25-1) [hereinafter Coleman Dep.].
. EEO Dep. of George M. Coleman at 14-16, Aug. 19, 2009 (Docket 25-2) [hereinafter EEO Dep.].
. See, e.g., Evaluations (Docket 44, EEO File) [Bates # 00058-69],
. EEO Dep. at 16; Coleman Dep. at 12; Opp. at 3, 15 (Docket 41). In some areas of the record, this position is referred to as Manager of CISCO Systems, which appears to be the result of a transcription error made by the reporter at Mr. Coleman’s EEO deposition.
. Coleman Aff. No. 3 at 2 (Docket 37). See also EEO Dep. at 10-11.
. Id. at 2.
. Id. at 2-3.
. Coleman Dep. at 12-14, 83-84; Coleman Aff. No. 5 at 2 (Docket 39).
. Exs. T, U to Mot. (Docket 28-20, 28-21).
. Ex. S to Mot. (Docket 25-22).
. Opp. at 15 (Docket 41).
. Coleman Dep. at 15; Withdrawal of ELM 650 Appeal (Docket 44, EEO File) [Bates #00170],
. Investigative Summary at 11 and Ex. 2 (Docket 44, EEO file) [Bates #00016, 00503-504],
. Opp. at 2 (Docket 41).
. Formal Compl. at 4 (Docket 44, EEO file) [Bates # 00038].
. Settlement Agreement (Docket 44, EEO file) [Bates # 00507-508],
. Coleman Dep. at 56, 49-50, 66; Opp. at 11 (Docket 41); EEO Dep. at 67.
. Application (Docket 44, EEO file) [Bates #00115].
. Coleman Dep. at 71.
. Letter of July 16, 2008 (Docket 44, EEO file) [Bates # 00072].
. Formal Compl. at 10 (Docket 44, EEO file) [Bates # 00045]; Interview Questionnaire (Docket 44, EEO file) [Bates # 00113],
. Coleman Dep. at 70; Opp. at 8 (Docket 41). Mr. Coleman has repeatedly asserted that he applied for one of two Small Business Specialist positions posted at the EAS-16 level. See, e.g., Opp. at 18 (Docket 41). The Defendant refers to a single posting for an EAS-16 position and a single posting for an EAS-18 position. Mot. at 6, n.3 (Docket 25). As there is no evidence that anyone was ultimately hired as a Small Business Specialist at the EAS-16 level, the number of positions originally available at that level is immaterial. The Court will refer to a single position in its discussion, solely for the sake of simplicity.
. Decl. of Darus Macy ¶ 5, Ex. P to Mot. (Docket 28-16).
. EEO Dep. at 64-65, 80.
. Ex. 8 to Opp. (Docket 34-8).
. Id.
. Information for Pre-Complaint Counseling (Docket 44, EEO file) [Bates # 00098].
. Id.
. EEO Aff. H at 6 (Docket 44, EEO file) (Robert Ward) [Bates # 00392].
. Letter of Aug. 25, 2008 (Docket 44, EEO file) [Bates # 00073],
. Id.
. Opp. at 10 (Docket 41); Ex. 11 to Opp. (Docket 34-11).
. Id.
. Letter of Sept. 3, 2008 (Docket 44, EEO file) [Bates # 00511], It appears that residual vacancy employees were floating employees who could bid on open positions.
. Id.
. EEO Aff. F at 22-26 (Docket 44, EEO file) [Bates #00351-355],
. Id. at 23 [Bates # 00352],
. Id. at 37 [Bates # 00366],
. Id. at 23 [Bates # 00352],
. Scheme training involves learning the system for assigning mail to carriers in specific regions. This is now largely done by automation, but occasionally requires human involvement for mis-sent or stray mail. EEO Dep. at 60-62.
. EEO Aff. F at 37 (Docket 44, EEO file) [Bates # 00366].
. Information for Pre-Complaint Counseling (Docket 44, EEO file) [Bates # 00098],
. Id. at 2 [Bates # 00099].
. Information for Pre-Complaint Counseling (Docket 44, EEO file) [Bates # 00094],
. Id.
. Id.
. Id. at 2 [Bates # 00095].
. Opp. at 13 (Docket 41); No Agreement Letter (Docket 44, EEO file) [Bates # 00215]. Mr. Coleman's claims were combined into one case, Agency Case No. 4E-995-0031-08.
. Ex. C to Mot. (Docket 25-6).
. EEO Dep. at 65.
. Mr. Coleman's FMLA leave was exhausted on October 2, 2008. EEO Dep. at 80. He did not return to work afterward. Id. at 65.
. EEO Formal Compl. (Docket 44, EEO file) [Bates # 00035-47],
. See EEO Dispute Resolution Specialist's Inquiry Report (Docket 44, EEO File) [Bates #00211] (describing October 2008 interview with Mr. Coleman and documentation indieating that he had counsel as of at least August 23, 2008).
. See EEO Formal Compl. (Docket 44, EEO file) [Bates # 00035-47],
. This was a revision of the EEO Office’s previous Partial Acceptance/Partial Dismissal of December 15, 2008, which did not include Mr. Coleman's settlement breach claim. See Partial Acceptance/Partial Dismissal (Docket 44, EEO file) [Bates # 0199-00207]; Letter of Jan. 7, 2009 (Docket 44, EEO file) [Bates #00143].
. Partial Acceptance/Partial Dismissal of Formal EEO Compl. (Revised) at 2, (Docket 44, EEO file) [Bates #00157]. This portion of the complaint that was accepted included “assignment to a residual vacancy, non-selection of two Small Business Specialist positions, and a Fitness-for-Duty examination.”
. Id. at 4 [Bates # 00159],
. Id. at 1, n. 1 [Bates #00156],
. Id. at 5-6 [Bates #00160-161]. But see discussion on pages 931-32 below.
. Investigative Summary (Docket 44, EEO file) [Bates # 00006-00034],
. Id.
. Request for Hearing Form (Docket 44, EEO file) [Bates # 00003],
. EEOC Decision without a Hearing, Ex. K to Mot. at 1-2 (Docket 28-11)
. Id.
. Id.
. Compl. (Docket 1).
. Id. at 5-6.
. Id. at 5.
. Id. at 6.
. Mr. Coleman also asserted a claim for compensation for IDEAS suggestions he submitted to USPS. elDEAS is a USPS program
. Mot. (Docket 25).
. Opp. (Docket 41).
. Reply (Docket 42).
. Order Scheduling Oral Argument (Docket 45).
. Oral Argument Tr. (Docket 47).
. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id. at 248-49, 106 S.Ct. 2505.
. Id. (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)).
. Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
. Id. at 248, 106 S.Ct. 2505.
. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
. Fed.R.Civ.P. 56(c)(1).
. Congress "selected trial de novo as the proper means for resolving the claims of federal employees,” rather than traditional appellate record review. Chandler v. Roudebush, 425 U.S. 840, 861, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976). Thus, although the EEOC’s Decision without a Hearing is part of the record in this case, this Court considers Mr. Coleman's claims de novo — that is, this Court reviews the facts and law of the case as if they were being examined for the first time and had not already been determined by the EEOC.
. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (citations omitted).
. Id. at 1112.
. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) ("[O]ur ‘obligation’ remains [after Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)], ‘where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt.' ”) (citation omitted); Pagayon v. Holder, 675 F.3d 1182, 1188 (9th Cir. 2011) ("We are particularly careful to give claims raised by pro se petitioners their most liberal construction.”) (citation omitted).
. 42 U.S.C. § 2000e-2(a)(1).
. McGinest, 360 F.3d at 1121 (citations omitted).
. Chuang v. U. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003) (citing Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir. 1997)); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McGinest, 360 F.3d at 1136.
. Texas Dep’t of Cmty. Affairs, 450 U.S. at 256, 101 S.Ct. 1089.
. Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998).
. Id. at 1222 (internal quotations and citations omitted).
. Hernandez v. Arizona, 702 F.Supp.2d 1119, 1126 (D.Ariz. 2010).
. Dept. of Fair Empl. and Hous. v. Lucent Technologies, Inc., 642 F.3d 728, 746 (9th Cir. 2011) (citing Morgan v. Regents of the Univ. of Cal., 88 Cal.App.4th 52, 105 Cal.
. See, e.g., Hernandez v. Arizona, 702 F.Supp.2d 1119, 1124 (D.Ariz. 2010) ("While Hernandez has sufficiently established a prima facie case of retaliation, he has not presented sufficient evidence of pretext to survive summary judgment on this claim.”)
. McGinest, 360 F.3d at 1122; id. at 1137 (citing Texas Dep’t of Cmty. Affairs, 450 U.S. at 256, 101 S.Ct. 1089).
. Burlington Industries v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
. Id. at 762, 118 S.Ct. 2257.
. Coleman Dep. at 16.
. Id. at 17.
. Opp. at 16 (Docket 41); Coleman Dep. at 23-24.
. Coleman Dep. at 23.
. Settlement Agreement (Docket 44, EEO file) [Bates # 00507-509],
. As noted above, Mr. Coleman had been in an EAS level 21 position.
. Settlement Agreement (Docket 44, EEO file) [Bates # 00507-508],
. Id.
. Formal EEO Complaint at 5 (Docket 44, EEO file) [Bates # 00040]; Coleman Dep. at 17-18.
. Compl. at 5 (Docket 1).
. See Lipscomb v. Winter, 577 F.Supp.2d 258, 273 (D.D.C. 2008) ("Nothing on the face of the cited statements suggests a promise to grant the promotion — they indicate, at most, that he will be "considered” for promotions in the future.”), off d in part, remanded in part on other grounds, 2009 WL 1153442 (D.C.Cir. 2009); Reply at 3 (Docket 42).
. The extent to which either party may be able to refer to the agreement if this case proceeds to trial is not addressed by this order; rather, that issue may be the subject of pretrial motion in limine practice as warranted.
. Settlement Agreement Continuation Sheet (Docket 44, EEO file) [Bates # 00509]
. EEO Complaint (Docket 44, EEO file) [Bates # 00035]; Oral Argument Tr. at 25 (Docket 47).
. Coleman Dep. at 71; Application (Docket 44, EEO Hie) [Bates #00115]; Interview Questionnaire (Docket 44, EEO file) [Bates #00113].
. Letter of July 16, 2008 (Docket 44, EEO file) [Bates # 00072].
. Formal Compl. at 10 (Docket 44, EEO file) [Bates # 00045].
. 29 C.F.R. § 1614.105(a)(1). See also Kraus v. Presidio Trust Facilities Div./Residential Mgt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009).
. Partial Acceptance/Partial Dismissal (Revised) (Docket 44, EEO file) [Bates #00161-62],
. Partial Dismissal Reinstatement Request at 3, Ex. I to Mot. (Docket 25-12).
. Notice and Order: MOTIONS at 1-2, Ex. J to Mot. (Docket 25-13).
. Information for Pre-Complaint Counseling (Docket 44, EEO file) [Bates # 00098].
. EEO Dispute Resolution Specialist’s Inquiry Report at 1 (Docket 44, EEO file) [Bates # 00079] (identifying date of initial contact as August 23, 2008).
. Letter of Nov. 19, 2008 (Docket 44, EEO file) (discussing claim initiated on August 23, 2008 that included non-selection for the Retail Specialist position on July 16, 2008) [Bates # 00085].
. Mot. at 16 (Docket 25). Mr. Coleman asserts that he did not expressly identify the Retail Specialist position in his September 7, 2008 written filing because he had an application pending for the Small Business Specialist position at that time and he was concerned about retaliation. Opp. at 9 (Docket 41). The Defendant argues that Mr. Coleman's "fears do not obviate the need to timely contact a counselor.” Reply at 6 (Docket 42) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 806-07, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)). However, as the record indicates that Mr. Coleman may have timely contacted an EEO counselor on August 23, 2008, this line of inquiry is moot.
. Kraus, 572 F.3d at 1046 (internal quotation marks and citations omitted).
. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004) (citations omitted).
. At oral argument, counsel for the Defendant candidly acknowledged that the record could be interpreted as supporting timely contact on this claim. Oral Argument Tr. at 30 (Docket 47) (Defendant’s counsel on Mr. Coleman’s EEO contact regarding the Retail Specialist position: "And so I think the Court could read it as a timely contact.”)
. Coleman Dep. at 70; Opp. at 8.
. Opp. at 12 (Docket 41).
. Decl. of Darus Macy dated Sept. 11, 2009, Ex. P to Mot. (Docket 28-16) (“Before I could complete the interviews of the three applicants recommended by the screening committee, I was advised by the District Manager that there was a hiring freeze and I could not fill the position.”)
. McGinest, 360 F.3d at 1111.
. Id.
. Id. at 1123.
. Id.
. Id. at 1124.
. Id. at 1123.
. Id. at 1111.
. Decl. of Darus Macy dated Sept. 11, 2009, Ex. P to Mot. (Docket 28-16) ("To this date, the position has never been filled.”)
. Id. ("Before I could complete the interviews of the three applicants recommended by the screening committee, I was advised by the District Manager that there was a hiring freeze and I could not fill the position.”)
. Mr. Coleman has also asserted that one of the hiring committee members for the position did not interview him because the member’s spouse was named in Mr. Coleman's 1991 EEO Complaint. Coleman Aff. No. 3 at 1-2 (Docket 37). There is very little in the record to support this assertion. Moreover, as the Court determines that Mr. Coleman has failed to allege an adverse employment action, as discussed below, it need not address the merits of Mr. Coleman’s allegations regarding the committee’s motives.
. Oral Argument Tr. at 21 (Docket 47). See also Order Scheduling Oral Argument at 3
. Oral Argument Tr. at 21 (Docket 47) (In response to the Court’s question, Mr. Coleman responded "I’m saying that the discrimination took place when they did not grant me an interview ... for a position I was qualified for.”)
. While a screening process that artificially filters out members of a protected class may be grounds for a disparate impact claim, see, e.g., Connecticut v. Teal, 457 U.S. 440, 451, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982); Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir. 2002), the Court has been presented with no authority supporting an individual's non-selection for an interview for an ultimately non-existent promotion as meeting the definition of “adverse employment action" under Ninth Circuit precedent.
. McGinest, 360 F.3d at 1112.
. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995) (citing Harris, 510 U.S. at 21-22, 114 S.Ct. 367).
. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (internal substitutions omitted) (citing Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003)).
. McGinest, 360 F.3d at 1112 (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1462-63 (9th Cir. 1994); Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
. Letter of Aug. 25, 2008 (Docket 44, EEO file) [Bates # 00073].
. EEO Aff. F at 37 (Docket 44, EEO file) [Bates # 00366].
. EEO Dep. at 105-106.
. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (internal substitutions omitted) (citing Manatt, 339 F.3d at 798).
. McGinest, 360 F.3d at 1112 (citing Steiner, 25 F.3d at 1462-63); Faragher, 524 U.S. at 787, 118 S.Ct. 2275.
. Coleman Dep. at 56.
. Id. at 57-58.
. Id. at 57-58.
. EEO Dep. at 64. Mr. Coleman later testified, in the course of this litigation, that he was required to exceed his work restrictions. He testified that his restrictions permitted him to "lift up to 20 pounds intermittent,” but that he was made to pass mail around “at over 10 to 20 pounds,” although he "didn’t weigh [the packages] individually.” See Coleman Dep. at 56. The Court finds that this later inconsistent testimony, paired with the fact that lifting 10 to 20 pounds was not a clear violation of Mr. Coleman’s restrictions as he described them, does not overcome Mr. Coleman’s earlier testimony that he never knowingly exceeded his restrictions.
. Coleman Dep. at 49-50.
. Id. at 51.
. Id. at 49-50.
. Id. at 52.
. Opp. at 11 (Docket 41).
. Coleman Dep. at 66. One of Mr. Coleman’s supervisors has testified that at least one other employee, a female clerk of Hawaiian descent, was also required to drive to various stations around town to work. EEO Aff. G at 6 (Docket 44, EEO file) [Bates # 00378], And another supervisor has testified that Mr. Coleman's position as an unassigned regular, not his race, would have been the factor that determined where he was sent and that other unassigned clerks, as well as carriers, routinely moved between stations. EEO Aff. B at 5, 7 (Docket 44, EEO file) [Bates # 00242, 00244],
. EEO Dep. at 66; Opp. at 4 (Docket 41).
. Coleman Dep. at 52-53; Opp. at 4 (Docket 41). One of Mr. Coleman’s supervisor has testified that the nature of Mr. Coleman's position required close supervision, as Mr. Coleman "would be directed to perform work within his restrictions daily and the operational needs change[d] daily.” EEO Aff. B at 13 (Docket 44, EEO file) [Bates # 00250], Another supervisor testified that she directed Mr. Coleman as well as the other clerks under her supervision as to what to do and in what order, and that all employees are monitored and moved around based on need. Investigative Summary at 10 (Docket 44, EEO file) [Bates # 00015]; EEO Aff. G at 8 (Docket 44, EEO file) [Bates # 00380].
. EEO Dep. at 67.
. Id. at 68.
. Id. at 68.
. Id. at 106-107; Opp. at 6 (Docket 41).
. Opp. at 6 (Docket 41).
. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (citing Manatt, 339 F.3d at 798).
. Id. (internal substitutions omitted).
. McGinest, 360 F.3d at 1115.
. See, e.g., id. at 1112 (explicit racial slurs and graffiti); Kortan v. California Youth Authority, 217 F.3d 1104, 1114-5 (9th Cir. 2000) (Fisher, J. dissenting in part) (surveying cases involving specific offensive language); Faragher v. City of Boca Raton, 524 U.S. 775, 780-83, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (physical harassment).
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
. See, e.g., EEO Dep. at 25-27 (Mr. Coleman testifies that one of his supervisors directly discriminated against him by participating in his harassment, and that she participated by condoning the harassment); id. at 40-41 (Mr. Coleman, when asked how he felt he was discriminated against, refers without specificity to "discriminatory actions" and "general discriminatory practices by Muldoon management.”).
. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (emphasis added).
. McGinest, 360 F.3d at 1112 (citing Steiner v. Showboat Operating Co., 25 F.3d 1459, 1462-63 (9th Cir. 1994); Faragher, 524 U.S. at 787, 118 S.Ct. 2275).
. The Court notes that while it has found the facts alleged by Mr. Coleman insufficient, standing alone, to sustain a hostile work environment claim, this determination does not preclude Mr. Coleman from seeking to offer these facts as evidence of discrimination in the context of his remaining claim.
. Harris, 510 U.S. at 21, 114 S.Ct. 367.
. Pennsylvania State Police v. Suders, 542 U.S. 129, 131, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
Reference
- Full Case Name
- George M. COLEMAN v. Patrick R. DONAHOE, Postmaster General
- Status
- Published