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United States District Court, N.D. California

April 12, 2004.

JOHN E. POTTER, United States Postmaster General, Defendant

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Defendant's motion for summary judgment against plaintiff on the merits of her claims has been granted. Accordingly, judgment is entered against plaintiff Geneva Welbon and in favor of defendant.

  Now before the Court is defendant's motion for summary judgment based on plaintiff's failure to present sufficient evidence to sustain her claim of employment discrimination. Having considered the arguments of plaintiff, who is appearing pro se, and defendant's counsel, the Court hereby GRANTS defendant's motion for summary judgment.


  Plaintiff Geneva Welbon began working for the United States Postal Service ("USPS") in 1988 as a casual employee.*fn1 Decl. of Cormier, Ex. A at 21:23-23:2. On August 19, 1997, plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that defendant United States Postal Service ("USPS") discriminated against her on the basis of race, sex and age. Plaintiff is an African — American woman over the age of forty. In this first EEO claim, EEOC No. 1 F-946-0097-97, plaintiff alleged that discrimination occurred when she passed the clerk carrier examination with a basic rating of 94.5 yet was never promoted to the position of a career clerk. See Order Den. Def.'s Mot. for Summ. J. and Granting PL Leave to Amend Compl. at 1:23-27. That claim was fully adjudicated and on May 5, 2000, the Office of Federal Operations affirmed the Final Agency decision against plaintiff on EEOC No. 1F-946-0097-97. Plaintiff was notified that she had the right to file an action in Federal District Court within ninety days of receiving the decision. Id. 2: 4-6. Plaintiff did not file an action until September 16, 2002, some two and one half years later. Because plaintiff did not file the action within the ninety — day time limit that is specified by 42 U.S.C.S. § 2000e-16(c), her complaint in this Court, to the extent that it was based on her first EEO claim, was barred by the statute of limitation. See Order Den. Def.'s Mot. for Summ. J. and Granting PL Leave to Amend Compl.

  Plaintiff's second EEO claim, EEOC No. 1F946-0021-99, alleging that she was terminated from her position with the USPS because of her race, sex and age, was originally filed with the EEOC on February 25, 1999. All of plaintiff's appeals and requests for reconsideration of the EEOC's decision in the second matter were timely. In a letter dated July 9, 2002, the EEOC issued its final decision denying plaintiff's request for reconsideration, and plaintiff filed a complaint with this Court on September 16, 2002, which was timely.

  Defendant filed a motion for summary judgment on April 9, 2003, seeking dismissal of all claims. At that time, the Court granted defendant's motion with respect to claims based on plaintiff's first EEO claim, but granted plaintiff leave to amend her complaint to allege discrimination solely on the basis of those incidents that were the subject of her second EEO claim. Plaintiff filed her first amended complaint on July 31, 2003.

  In her first amended complaint, plaintiff reasserted her claims that on December 30, 1998, she was terminated without just cause from her position as a casual processing clerk at a post office in Oakland. First Am. Compl. at ¶ 3. Plaintiff also claimed that she was denied a "$500 gift certificate and a letter of appreciation by the Plaint [sic] Manager" and was not given temporary employment, "for which she was clearly qualified." Id. at ¶¶ 7 and 9.

  At the time of her 1998 termination, plaintiff was 56 years old and was allegedly "legally disabled" with post — traumatic stress disorder. Id. at ¶ 4. As a result, plaintiff now alleges in her amended complaint — although it was not alleged in the either EEO complaint — that she was a qualified disabled person and claims that defendant USPS violated her right to reasonable accommodation under the Rehabilitation Act of 1997, thereby violating her rights under 29 C.F.R. § 1614.203. Id. at ¶ 10. Plaintiff makes two other claims in her amended complaint that were not made in her 1999 EEO complaint. She claims that the agency discriminated against her because of her age in violation of the Age Discrimination Act of 1975; and that the Office of Worker's Compensation conspired with the USPS by "purposely holding up her mail so that she would not be able to file claim [sic] and answer documents required by the OWCP in a timely manner, thereby putting the plaintiff's claim for worker's compensation in jeopardy." Id. at 3:22-28 and 6:1-7.

  Defendant now moves this Court to grant summary judgment on plaintiff's claims, arguing that plaintiff has not presented sufficient evidence to support her allegations of employment discrimination and that plaintiff has not exhausted her administrative remedies for all additional claims.


  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." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) The moving party, however, has no burden to negate or disprove matters on which the non — moving party will have the burden of proof at trial. The moving party need only point out to the Court that there is an absence of evidence to support the non — moving party's case. See id. at 325.

  The burden then shifts to the non — moving party to "designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed.R.Civ.P. 56(e)). To carry this burden, the non — moving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 586(1986). "The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non — moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

  In deciding a motion for summary judgment, the evidence is viewed in the light most favorable to the non — moving party, and all justifiable inferences are to be drawn in its favor. Id. at 255. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when she] is ruling on a motion for summary judgment." Id.


 1. The United States Postal Service is not a proper defendant

  Firstly, plaintiff brings her claims against John Potter, Postmaster General and the United States Postal Service. The proper defendant in a Title VII case involving a federal employee is the head of the agency or department. 42 U.S.C. § 2000e-16(c). Accordingly, John Potter, in his capacity as Postmaster General, is the sole proper defendant.

 2. Plaintiff has not exhausted her administrative remedies

  Plaintiff includes allegation in her amended complaint that were not stated in her 1999 EEO complaint, including allegations of violations of the Rehabilitation Act and unlawful collusion between USPS managers and the Office of Worker's Compensation.*fn2 Plaintiff is required to exhaust her administrative remedies with respect to these claims. "Under Title VII, a plaintiff is required to exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge." B.K.B. v. Maui Police Dept. 276 F.3d 1091, 1099 (9th Cir. 2002). Exhaustion of remedies is also required for cases brought under the Rehabilitation Act. See Tanious v. I.R.S., 915 F.2d 410, 411; Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985). Further, claims made under the Age Discrimination in Employment Act ("ADEA"), allow an aggrieved party the option of pursuing the administrative process or filing a civil action against the head of an alleged discriminating agency; however, the party pursuing the second option must give the Commission at least 30 days notice of the intent to file such action and file the action within 180 days of the alleged unlawful practice. 29 C.F.R. § 1614.201.

  Plaintiff's allegations under the Rehabilitation Act and allegations of a conspiracy with the Office of Worker's Compensation were not included in her 1999 EEO complaint and were not "reasonably related" to the wrongful termination claims in that complaint. See Freeman v. Oakland Unified School Dist. 291 F.3d 632, 636 (9th Cir. 2002). Plaintiff's claims under the Rehabilitation Act are based on allegations that the USPS refused to give plaintiff light duty or to provide documentation of lost wages after she was in a non — work related accident that occurred in November 1999. Decl. of Cormier, Ex. A at 149:2-153:24. Plaintiff's workers compensation claim is based on plaintiff's application for workers compensation in July 2001, after she stopped working for the USPS for the last time. Id. at 164:11-23. An aggrieved party must initiate contact with an EEO counselor within 45 days of the date of the alleged discriminatory action. 29 C.F.R. § 1614.105(a)(1). Plaintiff has failed to do so. Further, plaintiff has failed to bring claims under the ADEA within the appropriate statutory period. See 29 C.F.R. § 1614.201.

  The Court agrees with defendant's assertion that plaintiff failed to exhaust her administrative remedies as to these claims, effectively limiting the Court's subject matter jurisdiction. There is no evidence that plaintiff filed a subsequent EEO complaint relating to the events alleged in her first amended complaint; therefore, summary judgment as to these claims is GRANTED.

 3. Plaintiff has presented no facts demonstrating differential treatment in the three incidents alleged in her 1999 EEO complaint

  Plaintiff has presented no genuine issues of material fact to show that any of the actions she alleges were done with discriminatory intent. A complainant in a Title VII case must carry the initial burden of establishing a prima facie case of racial discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 82, 93 S.Ct. 1817, 1824 (1973). To meet this burden plaintiff must show (i) that she belongs to a protected class; (ii) she was qualified for the position; (iii) she was subject to an adverse employment action; and (iv) similarly situated individuals outside her protected class were treated more favorably. Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000). A retaliation claim requires a similar showing: "To make out a prima facie case of retaliation, an employee must show that (1) [s]he engaged in a protected activity; (2) [her] employer subjected [her] to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action." Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).

  In order to survive summary judgment, plaintiff "must tender a genuine issue of material fact as to pretext" for discrimination. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994), quoting Steckl v. Motorola, Inc. 703 F.2d 392, 393 (9th Cir. 1983). The Ninth Circuit has held that "[t]o withstand an employer's motion for summary judgment in a discrimination suit, the employee must do more than establish a prima facie case and deny the credibility of the employer's witnesses. The plaintiff must also offer specific and significantly probative evidence that the employer's alleged purpose is a pretext for discrimination." Schuler v. Chronicle Broadcasting Co. Inc., 793 F.2d 1010, 1011 (9th Cir. 1986) (citation omitted).

  With regard to her termination, plaintiff has not demonstrated any facts suggesting a discriminatory motive or pretext. Plaintiff's "termination" as a casual employee was, by definition, routine. Casual appointment is an appointment for a limited time and plaintiff was subject to this throughout her employment with USPS. Further, plaintiff was let go shortly after the Christmas holiday, which, according to USPS, is not uncommon for USPS casual employees. Further, plaintiff was among the employees that were let go because they were not willing to transfer to the USPS's airport location. Plaintiff acknowledges that others from her unit were let go and, most importantly, she does not know the races of the others. Decl. of Cormier, Ex. A at 201:6-13. Accordingly, the Court agrees that "plaintiff cannot show that other similarly situated employees were treated more favorably than plaintiff, or that she was treated differently because of her race, sex, age or prior EEO activity." Def.'s Mot. for Summ. J. at 12:9-11.

  Plaintiff's claims of discriminatory motive with regard to her not receiving a gift certificate or letter of appreciation similarly fail. Firstly, there is no indication that plaintiff was entitled to a $500 gift certificate or letter of appreciation. Plaintiff admits that no supervisor or manager told her that she would be receiving a certificate. Decl. of Cormier, Ex. A at 59:6-8. Further, plaintiff herself provides non — discriminatory reasons for not receiving the certificate. When asked if it was her perception that one of the plant managers was interfering with her getting the certificate because she had refused to go to the airport location, plaintiff responded, stating "Yes. Because I don't think [the plant manager] was a racist or anything like that." Id. at 60:8-15. Plaintiff provides no evidence that there was a discriminatory reason for her not to receive a certificate or letter of appreciation. In fact, she proffers the alternative, non — discriminatory reason.

  Finally, plaintiff cannot prove that she was entitled to a TE position. A TE position, according to plaintiff, is "a transitional position that comes with a little more than a casual position where you work year round and you get a vacation and you get some incentive, like a vacation pay." Id. at 223:1-4. Plaintiff alleges that she was not given a TE position while two others with less experience were given these positions instead. Id. at 124:11-125:9. Both of these less experienced women were black, and one was "probably in her late forties" and had recently filed an EEO complaint. Id. at 125:10-126:23. Defendant argues: "Given that someone who matches plaintiff in all of her protected categories — sex, race, approximate age, and prior EEO activity — received the type of position that plaintiff thinks she should have gotten, plaintiff cannot prove that discrimination was the reason why she did not get a TE position in late 1998." Mot. for Summ. J. at 13:13-16. The Court agrees. "[W]hen evidence to refute the defendant's legitimate explanation is totally lacking, summary judgment is appropriate." Wallis. 26 F.3d at 890. Accordingly, this Court GRANTS summary judgment on Plaintiff's discrimination claims.


  For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendant's motion for summary judgment [# 57],


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