Meyer v. Brennan

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jesse R Meyer, No. CV-17-00524-PHX-ROS 10 Plaintiff, ORDER 11 v. 12 Megan J Brennan, 13 Defendant. [14] 15 The parties have completed briefing Defendant’s dispositive motion. That briefing 16 does not address crucial aspects of Plaintiff Jesse Meyers’s claims in a clear or coherent 17 manner. In particular, Meyer’s filings do not present meaningful arguments regarding 18 administrative exhaustion nor do they point to evidence supporting the merits of her 19 exhausted claims. Therefore, Plaintiff’s claims fail as a matter of law and Defendant’s 20 motion will be granted in full. 21 BACKGROUND 22 As best as the Court can decipher from the filings, the relevant facts are as follows. 23 Plaintiff Jesse Meyer began working for the Postal Service in 2004. (Doc. 121 at 1). As 24 of November 2014, she was working as a City Letter Carrier at the Peoria Main Post Office. 25 (Doc. 121 at 2). Her supervisor at that time was Gregorio Valenzuela and Peoria’s 26 Postmaster was Tina Sweeney. On November 19, 2014, Plaintiff injured her shoulder 27 while working. That injury resulted in Meyer having “medical restrictions/limitations” 28 such that she was unable to perform certain tasks. (Doc. 121-2 at 2). It is unclear what 1 happened immediately after the injury, but Meyer believes the Postal Service, Valenzuela 2 and Sweeney in particular, began discriminating against her based on her inability to 3 perform particular tasks. Based on that alleged discrimination, in May 2016, Meyer began 4 an incredibly complicated journey through the Postal Service’s administrative regimes 5 regarding discrimination claims.1 6 Meyer was required to administratively exhaust her claims before filing her 7 complaint in district court. Green v. Brennan, 136 S. Ct. 1769, 1775 (2016). To do so, 8 Meyer had to choose between two paths. Vinieratos v. U.S., Dep’t of Air Force, 939 F.2d 9 762, 768 (9th Cir. 1991). Meyer could pursue a claim through the Equal Employment 10 Opportunity office. Alternatively, Meyer could pursue a grievance claim with her union. 11 Meyer chose to do both. 12 A. EEO Complaints 13 In May 2016, Meyer filed an “EEO Complaint of Discrimination.” (Doc. 121-2 at 14 2). That document alleged that from January 2016 through May 2016, Meyer had been 15 required “to perform work task[s] that exceed medical restriction/limitations.” (Doc. 12116 2 at 2). The document further alleged “[h]arassment . . . concerning limitations,” “threats 17 by [management],” and the “continued denial of 45 days of pay for time off due to work 18 injury.” (Doc. 121-2 at 2). While that complaint was pending, Meyer filed a second “EEO 19 Complaint of Discrimination.” 20 Meyer’s second complaint, filed in December 2016, incorporated a letter that listed 21 a total of twenty-four claims. The letter alleged “discrimination based on Physical 22 Disability and Retaliation” based on events such as individuals speaking with Meyer about 23 an accident and her allegedly being absent from work without permission. (Doc. 121-2 at 24 60). The letter included unexplained references to events such that it is not possible to read 25 the letter and understand what, precisely, Meyer was claiming. But the letter did include 26 allegations about an interaction in September 2016 where Meyer was not assigned as the 27 carrier for “route 8139.” (Doc. 121-2 at 61). 28 1 This is a highly truncated version of events. Meyer filed a variety of other complaints, both with the Equal Employment Office and her union. 1 On November 16, 2016, the Postal Service issued a Final Agency Decision on the 2 first EEO Complaint. That decision concluded Meyer had not been “subjected to 3 discrimination.” (Doc. 121-2 at 54). Meyer was informed she could either appeal to the 4 EEOC or file a civil action in district court. (Doc. 121-2 at 55). As for the second EEO 5 Complaint, Meyer repeatedly amended that complaint but in November 2017, the Postal 6 Service issued another Final Agency Decision that concluded the evidence did not “support 7 a finding that [Meyer] was subjected to discrimination.” (Doc. 121-5 at 15). 8 B. Union Grievance 9 In between Meyer’s first and second EEO Complaints she filed a union grievance. 10 That grievance, filed on September 29, 2016, centered on Meyer’s attempt to be named the 11 postal carrier for route 8139. (Doc. 121-6 at 64). Meyer had applied for that position, but 12 she had refused to comply with the requirement to submit a doctor’s note stating she would 13 be capable of performing the duties of the job. Such a statement was required by the 14 “National Agreement,” apparently a reference to the governing collective bargaining 15 agreement for postal workers. (Doc. 121-6 at 60). On November 16, 2016, Meyer’s 16 grievance was resolved in favor of the Postal Service based on the lack of a doctor’s note. 17 (Doc. 121-6 at 60). Meyer did not seek review of that decision. 18 C. Meyer Files Suit 19 Meyer filed the present suit in 2017 and it eventually came to include all the claims 20 from her two EEO Complaints as well as her union grievance. Meyer alleged claims for 21 disability discrimination, retaliation, and hostile work environment. (Doc. 26 at 12-13). 22 During litigation, however, Defendant struggled to identify the precise basis for Meyer’s 23 claims. After discovery ended, Defendant filed a lengthy dispositive motion arguing some 24 of Meyer’s claims were not administratively exhausted and other claims failed on their 25 merits. The motion contains nine pages of argument regarding administrative exhaustion. 26 In opposing Defendant’s motion, Meyer identified “the heart” of her claims as 27 consisting of four events: 1) the denial of her request to be the letter carrier for route 8139; 28 2) the denial of a reasonable accommodation that would allow her to be the letter carrier 1 for route 8139; 3) the creation of a hostile work environment “based on her disability”; and 2 4) “numerous adverse actions . . . that resulted in discrete acts of discrimination and 3 retaliation.” (Doc. 131 at 10-11). Meyer’s opposition did not provide any meaningful 4 argument regarding her alleged failure to exhaust administrative remedies. (Doc. 131 at 5 28). Instead, Meyer merely argued Defendant had “conflate[d] relevant facts with what 6 constitutes the liability period.” (Doc. 131 at 28). The Court is unable to understand the 7 meaning of Meyer’s argument. 8 Defendant’s reply pointed out Meyer’s failure to substantively address the issue of 9 administrative exhaustion. Defendant argued that failure meant the Court should deem 10 unexhausted all the claims identified in the original motion. (Doc. 133 at 2). As for the 11 particular issue of Meyer’s attempt to become the letter carrier for route 8139, or that the 12 Post Office should have somehow accommodated Meyer regarding that position, the reply 13 argued Meyer had opted to pursue that issue through the union grievance route and had not 14 completed the process. Therefore, all claims involving those events were unexhausted. 15 Then, with Meyer’s own identification of the factual basis for her claims in mind, 16 Defendant argued there is insufficient evidence to support those claims. 17 ANALYSIS 18 I. Administrative Exhaustion 19 Administrative exhaustion is a threshold question that should be resolved before 20 reaching the merits of the underlying claims. Cf. Albino v. Baca, 747 F.3d 1162, 1170 (9th 21 Cir. 2014) (“Exhaustion should be decided, if feasible, before reaching the merits of a 22 prisoner’s claim.). “[A] federal employee who alleges employment discrimination must 23 elect to pursue his claim under either a statutory procedure or a union-assisted negotiated 24 grievance procedure; he cannot pursue both avenues, and his election is irrevocable.” 25 Vinieratos v. U.S., Dep’t of Air Force Through Aldridge, 939 F.2d 762, 768 (9th Cir. 1991). 26 See also Heimrich v. Dep’t of the Army, 947 F.3d 574 , 581 (9th Cir. 2020) (same). The 27 referenced “statutory procedure” involves making a “formal EEO complaint.” Vinieratos, 28 939 F.2d at 768. Only “after a final disposition of such a formal complaint,” can the 1 employee “seek judicial review.” Id. at 768-69. Alternatively, the “union-assisted 2 negotiated grievance procedure” requires compliance with those procedures “prescribed in 3 the collective bargaining agreement between [an employee’s] union and his employing 4 agency.” Fernandez v. Chertoff, 471 F.3d 45, 52 (2d Cir. 2006). After following those 5 procedures, the employee must appeal “to the EEOC before bringing suit.” Id. at 54 . Only 6 after the EEOC issues a final decision may the employee bring suit in district court. Id. 7 The statute dictating this dual-track exhaustion regime, 5 U.S.C. § 7121 (d), states 8 an employee alleging discrimination “may raise the matter” either through a formal EEO 9 complaint or through her union. The Ninth Circuit recently held “the term ‘matter’ in 5 10 U.S.C. § 7121 (d) refers to the ‘underlying action’ in the [union] grievance or the EEO 11 complaint.” Heimrich v. Dep’t of the Army, 947 F.3d 574 , 580 (9th Cir. 2020). In other 12 words, the term “matter” “is broader than ‘legal theory’: it refers to the factual basis of the 13 employee’s adverse action.” Id. Once an employee challenges a particular “underlying 14 government action” through a formal EEO complaint or through her union, she must 15 exhaust the administrative remedies through her chosen procedure. Id. 16 In the present case, Meyer elected to bring the “matter” of the denial of route 8139, 17 and accommodations regarding route 8139, through the union grievance process. Her 18 union grievance stated, in relevant part, 19 Is Management in the wrong by not allowing Carrier Jesse Meyer to be the successful bidder of route 8139, after an on the 20 job injury? Also, is Carrier Meyer being discriminated against for being injured on the job? [21] 22 (Doc. 121-6 at 64). That grievance requested as a “remedy” that Meyer be 23 [a]llow[ed] . . . the successful bid on route [8139]. Accommodate her on that route with whatever needs are 24 necessary. Stop discriminating against Carrier Meyer due to her on the job injury. [25] 26 (Doc. 121-6 at 64). Thus, the undisputed facts show Meyer chose the union grievance 27 route to address the denial of route 8139 as well as the failure to provide accommodations 28 regarding route 8139. 1 Having elected the union grievance route, Meyer’s election was “irrevocable.” 2 Vinieratos, 939 F.2d at 762 (9th Cir. 1991). Meyer was required to complete the union 3 process, and appeal to the EEOC, before filing suit. Meyer did not do so. Therefore, 4 Meyer’s disparate treatment claim involving the denial of route 8139, and the alleged 5 failure to provide her with accommodations regarding route 8139, were not exhausted and 6 Defendant is entitled to summary judgment on that claim.2 7 II. Retaliation 8 Meyer’s first exhausted claim is for retaliation. “The elements of a prima facie 9 retaliation claim are, (1) the employee engaged in a protected activity, (2) she suffered an 10 adverse employment action, and (3) there was a causal link between the protected activity 11 and the adverse employment action.” Davis v. Team Elec. Co., 520 F.3d 1080 , 1093–94 12 (9th Cir. 2008). The parties agree Meyer engaged in protected activity when she made her 13 complaints to the Equal Employment Office. But Defendant argues Meyer cannot satisfy 14 the second or third elements because she has not identified the adverse employment action 15 at issue nor has she shown a causal link between protected activity and the adverse action. 16 In opposing Defendant’s motion, Meyer made practically no effort to respond to 17 either argument. Starting first with the adverse employment action element, Meyer claims 18 “It is clear what happened to Ms. Meyer, when it happened and who on behalf of the Postal 19 Service did it.” (Doc. 131 at 27). Meyer did not provide a single cite to the record to 20 support this statement. Contrary to Meyer’s belief, it is not enough to assert “[i]t is clear 21 what happened.” A party seeking to create a dispute of material fact must “cit[e] to 22 particular parts of materials in the record” and those facts must be admissible. Fed. R. Civ. 23 P. 56 (c)(1), (2). The Ninth Circuit has repeatedly warned litigants “[t]he district court need 24 not examine the entire file for evidence establishing a genuine issue of fact, where the [25] 2 Defendant describes its arguments regarding exhaustion as brought pursuant to Federal 26 Rule of Civil Procedure 12(b)(6). But a Rule 12(b)(6) motion must be brought before pleading. Fed. R. Civ. P. 12(b). More importantly, however, Defendant cites evidence, in 27 the form of the union grievances, that was not referenced in the complaint. Thus, it appears the proper characterization of Defendant’s motion is one for summary judgment. See 28 Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (ruling “failure to exhaust” should normally be analyzed through summary judgment procedures). 1 evidence is not set forth in the opposing papers with adequate references so that it could 2 conveniently be found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026 , 1031 3 (9th Cir. 2001). See also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (holding 4 district court is not required “to scour the record in search of a genuine issue of triable 5 fact”). The Court will not manufacture arguments for Meyer nor will it search the record 6 for admissible facts for her. Because Meyer has not identified the adverse employment 7 action that serves as the basis for her retaliation claim, Defendant is entitled to summary 8 judgment. 9 Even if the Court were to ignore Meyer’s failure to identify the adverse employment 10 action at issue, Meyer also failed to address the third element of her retaliation claim 11 involving but-for causation. Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 , 362 12 (2013) (requiring but-for causation in retaliation context). Meyer’s argument section in 13 her brief regarding causation consists of incoherent or irrelevant statements. Meyer argues 14 causation can be established solely by timing and “[i]n this instance the time provided by 15 defendant’s responsible manager is set ‘at less then [sic] five minutes.’” (Doc. 131 at 28). 16 In support of this statement Meyer cites a portion of her statement of facts. That portion, 17 however, does not reference a five-minute period. Meyer also argues there is a causal 18 nexus between her activity and the adverse employment action because Defendant failed 19 “to admit singling out of Ms. Schroeder for scrutiny and discipline.” (Doc. 131 at 28). 20 There is no explanation who Ms. Schroeder is. Only upon investigation was the Court able 21 to understand why Meyer’s argument was so difficult to understand. 22 Meyer’s argument section regarding causation was copied and pasted from another 23 filing in an unrelated case. See Schroeder v. Brennan, CV-17-1301, Doc. 81 at 9. That 24 case involved adverse acts allegedly taken by a supervisor within five minutes of protected 25 activity and the plaintiff was Sonja Schroeder. But determining why Meyer’s brief 26 contained the particular statements does not excuse Meyer’s failure to offer some evidence 27 that might support causation. With no evidence of causation, Defendant is entitled to 28 summary judgment on the retaliation claim. 1 III. Hostile Work Environment 2 Meyer’s final exhausted claim is for hostile work environment under the 3 Rehabilitation Act based on her disability. 29 U.S.C. § 791 . Assuming such a cause of 4 action exists, Defendant argues Meyer has no evidence “her work environment was 5 objectively hostile based on her disability.”3 (Doc. 123 at 28). Meyer disagrees but appears 6 to misunderstand the very nature of such a claim. 7 A hostile work environment claim requires a plaintiff “demonstrate: (1) that he was 8 subjected to verbal or physical conduct [based on his disability]; (2) that the conduct was 9 unwelcome; and (3) that the conduct was sufficiently severe or pervasive to alter the 10 conditions of the plaintiff’s employment and create an abusive work environment.” 11 Reynaga v. Roseburg Forest Prod., 847 F.3d 678, 686 (9th Cir. 2017). Here, Meyer has 12 not identified evidence supporting the first or third element. 13 Starting with the first element, Meyer needed to point to evidence showing she was 14 subjected to verbal or physical conduct because of her disability. See Manatt v. Bank of 15 Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (holding hostile work environment requires 16 conduct “because of” the protected characteristic). Instead of doing so, Meyer identifies 17 evidence that her supervisor, Valenzuela, treated all employees poorly. In fact, Meyer’s 18 own briefing argues “[t]he notion that Supervisor Valenzuela treats everyone badly is no 19 defense. What the record shows is a workplace that allows a bully to intimidate and 20 mistreat employees at will.” (Doc. 131 at 25). For purposes of establishing a hostile work 21 environment, it is a defense that Meyer treats all disabled and non-disabled employees the 22 same, i.e. “badly.” With no clear argument or admissible evidence that Valenzuela’s 23 behavior was because of her disability, Meyer’s claim of hostile work environment fails at 24 the outset. [25] 3 The Ninth Circuit has not yet recognized a hostile work environment claim in these 26 circumstances. See, e.g., Denning v. Cty. of Washoe, 799 F. App’x 547 (9th Cir. 2020) (address claim after “[a]ssuming that hostile work environment claims are cognizable 27 under the ADA”). But if one were recognized, presumably it would mirror how other courts have handled ADA-based claims. See also Zukle v. Regents of Univ. of California, [28] 166 F.3d 1041, 1045 (9th Cir. 1999) (“There is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act.”). 1 Next, even assuming some of Valenzuela’s actions were because of Meyer’s 2 disability, the admissible evidence shows they were not severe or pervasive enough to alter 3 the conditions of her employment. The Supreme Court has “made it clear that conduct 4 must be extreme to amount to a change in the terms and conditions of employment.” 5 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). A hostile work environment 6 does not exist merely because an employer engages in “sporadic use of abusive language, 7 [disability]-related jokes, and occasional teasing.” Id. The Ninth Circuit has outlined “the 8 factors to be considered” when assessing whether a work environment can meet this 9 demanding standard: “the frequency of discriminatory conduct; its severity; whether it is 10 physically threatening or humiliating, or a mere offensive utterance; and whether it 11 unreasonably interferes with an employee’s work performance.”4 McGinest v. GTE Serv. 12 Corp., 360 F.3d 1103, 1113 (9th Cir. 2004). 13 Meyer cites a variety of events that allegedly support her hostile work environment 14 claim but those events are difficult to understand and do not present a clear picture of the 15 situation faced by Meyer. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 , 81 16 (1998) (requiring evaluation of “constellation of surrounding circumstances”). More 17 importantly, however, many of the events described by Meyer are not supported by the 18 underlying evidence. For example, Meyer argues her union steward testified Valenzuela 19 was a “bully” who often targeted Meyer. (Doc. 128-3 at 18). But the union steward also 20 testified Valenzuela treated other employees the same way and that Valenzuela was “[t]he 21 bullying type.” (Doc. 128-3 at 18, 26). When asked in particular about an incident where 22 Meyer was required to sit at the gate into the parking lot, the union steward stated only 23 individuals with limitations are required to perform that task and it is “humiliating.” (Doc. 24 128-3 at 30). But the union steward then admitted he had never complained about the 25 practice, no one else had ever complained about the practice, “a lot of rural carriers” are 26 required to do it, and he thought of it as a way for employees with limitations to have 27 4 “A plaintiff must show that the work environment was both subjectively and objectively hostile.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1113 (9th Cir. 2004). There is no 28 question that Meyer perceived the environment as hostile, meaning the Court need only address the objective nature of the workplace. 1 something to do so they can be paid. (Doc. 128-3 at 31). The union steward also stated 2 Meyer had been assigned to work in a small room that was usually used for the completion 3 of paperwork. (Doc. 128-3 at 32). The union steward did not know of any other employee 4 who had been assigned to work in that room, but it is not clear why Meyer believes working 5 in a small room created a hostile work environment. Her own summary judgment briefing 6 merely describes this assignment as “questionable.” (Doc. 128 at 15). Thus, these events, 7 even viewed cumulatively, do not establish Meyer was subject to an “extreme” 8 environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). 9 In addition to the testimony of her union steward, Meyer cites to the testimony of 10 another coworker who stated “from the management side” of the Post Office “there are a 11 number of opinions or biases that are out there about employees being injured on the job.” 12 (Doc. 128-1 at 46). The coworker also stated she heard “comment[s]” about individuals 13 faking injuries. (Doc. 128-1 at 46). But the coworker did not identify the “comments” at 14 issue, did not state the comments were aimed at Meyer, or even that the comments were 15 made in Meyer’s presence. See Kortan v. California Youth Auth., 217 F.3d 1104 , 1110 16 (9th Cir. 2000) (refusing to find hostile work environment when many of the offensive 17 comments “were about other people”). Upon further questioning, the coworker stated the 18 “biases” she was referencing are “in every workplace.” (Doc. 128-1 at 47). While it is not 19 clear what this coworker was referencing in particular, behavior that is found “in every 20 workplace” is not a solid basis for a hostile work environment claim. What is more, it is 21 not clear the statements are admissible because they appear to be inadmissible opinions or 22 hearsay. Viewed as a whole, there is insufficient evidence that Meyer’s workplace was 23 objectively hostile. Therefore, Meyer cannot satisfy the third element of her hostile work 24 environment claim and Defendants are entitled to summary judgment on this claim. 25 Accordingly, 26 … 27 … 28 … 1 IT IS ORDERED the Motion to Dismiss in Part and Motion for Summary 2|| Judgment (Doc. 123) is GRANTED. The Clerk of Court is directed to enter a judgment || in favor of Defendant. 4 Dated this 20th day of August, 2020. 5 fo . 6 —— . g Senior United States District Judge [28] -ll-