The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KAILYN FLETCHER CIVIL ACTION
VERSUS NUMBER: 23-1344
UNITED STATES POSTAL SERVICE, ET AL. DIVISION “5”
ORDER AND REASONS
Before the Court is the Motion for Summary Judgment (rec. doc. 36) filed by
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Defendant Louis DeJoy, Postmaster General, United States Postal Service. Plaintiff Kailyn
Fletcher filed no opposition to the motion as required by the local rules of this Court.
HI. avingF raecvtieuwale Bd atchke gmrooutinond and the case law, the Court rules as follows.
Fletcher, a gay, African-American female, was formerly a Postal Service employee at
the Covington, Louisiana Post Office, employed as a Sales Services Distribution Associate
(“SSDA”). (ReIcd. .docs. 1, 36-2 at ¶ 3). As an SSDA, Fletcher was considered to be in the
“clerk craft.” ( ).
The Covington Post Office (“CPO”) is a large post office that, during 2019 and 2020,
had approximately 100 employees, 15 of whom were in the clerk craft. (Rec. doc. 36-3 at ¶
4). In 2020, Torrey Harris was the Postmaster of the CPO, and three supervisors who
directly managed the employees at the CPO, Robert Robertson, Cherie Flemmings, and Tar
McMillan, reported to him. (Rec. doc. 36-2 at ¶ 4).
Harris Ifdre. quently walked around the CPO to assist with tasks and mingle with the
employees. ( at ¶ 5). In 2020, while walking around the CPO, Harris encountered a
couple of Fletcher’s coworkers near the post office boxes and asked if they knew of
Id.
Fletcher’s whereabouts. ( at ¶ 6). The employees said Itdh.at they did not know but
suggested that Fletcher could be in the bathroom sleepIidn.g. ( ). Harris started to notice
Fletcher’s frequent absences from the work floor. ( ). On more than one occasion,
Fletcher’s Idc.oworkers suggested that Fletcher behaved “oddly” at times and smelled
“weird.” ( ). Coworkers alsoI dto.ld Harris that, on occasion, Fletcher could barely stand up
and needed to lean on a cart. ( ).
Harris met with Fletcher andI dh.er union representative on two separate occasions to
discuss her workplace behavior. ( at ¶ 7). DurIidn.g these two meetings, Harris offered
Fletcher an Employee Assisted Program (“EAP”). ( ). An EAP is a voluntary, work-based
program that offers free and confidential assessments, short-term counseling, referrals,
aIndd. follow-up services to employIede.s who have personal and/or work-related problems.
( ). Fletcher declined the EAP. ( ).
Concerned about FlIedt.cher’s behavior, Harris contacted Labor Relations to
determine how to proceed. ( at ¶ 8)I.d .Harris was advised to contact the Postal Services’
Office of Inspector General (“OIGI”d)..) ( ). OIG is the entity responsible for investigating
internal Postal Service issues. ( . In May 2020, Harris contacted OIG to explain the
issues related toI dF.letcher, not knowing if Fletcher was sleep deprived or abusing alcohol
and/or drugs. ( at ¶ 9). OIG advised that they would investigate but did not provide
HIadr.ris with details of its impending investigation, such as the dates of any intended visits.
( ).
OIG conducted surveillance at the CoviIndg. ton Post Office on seven separate occasions
between May 11, 2020 and June 29, 2020. ( at p. 7). On each surveillance date, Special
Agents Richard Harlow and/or Melissa Mitchum observed FletchIde.r exiting the post office
and sitting in her 2015 Mercedes Benz sedan during her breaks. ( at pp. 7-8).
On the Imd.orning of June 29, 2020, Fletcher’s vehicle was parked in the rear employee
parking lot. ( at pId. 8. ). Harlow and Mitchum witnessed Fletcher exit the post office and
enter her Ivde.hicle. ( ). Harlow knocked on Fletcher's driver side window and ideIdn.tified
himself. ( ). Both OIG agents presented their badges and credenIdti.als to Fletcher. ( ).
Harlow asked Fletcher to exit her car, and she complied. ( ). When she opened the
car door, HarlowId . immediately smelled the distinct odor of marijuana emitting from
Fletcher’s car. ( ). Harlow also observed two largeI dp.lastic bags on the front passenger
seat that resembled bags used to store marijuana. ( ). Harlow had received narcotics
detection training Iadt. both the Connecticut Police Academy and Federal Law Enforcement
Training Center. ( ). In his report, Harlow noted that he had personally seized significant
amounts of marIijdu.ana while acting in his capacity as a police officer, detective, and Federal
Special Agent. ( ).
Id.Harlow asked Fletcher if she had been smoking marijuana in her car, and she denied
it. ( ). Harlow and Mitchum walked with Fletcher to a posted sign within the PoIsdt.al
Service’s employees’ parking lot to demonstrate their authority to search her vehicle. ( ).
The sign stated: “NOTICE: Vehicle[s] and their contents in NoIdn.-Public areas of Postal
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Property are subject to inspection (39 C.F.R. Part 232.1(B)(2)).” ( ).
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39 C.F.R. Part 232.1(B)(2) reads:
2) Vehicles and their contents brought into, while on, or being removed from restricted
nonpublic areas are subject to inspection. A prominently displayed sign shall advise in
advance that vehicles and their contents are subject to inspection when entering the
restricted nonpublic area, while in the confines of the area, or when leaving the area.
Fletcher consented to a vehicle search that revealed marijuana residue in the
driver’s side door Ijda.m and two plastic bags containing a green leafy substance on the front
passenger seat. ( at pp. 8-9). After obtaining a positive field test result for marijuana,
Laura Aucoin, Covington Police Department Officer, arrived atI dH.arlow’s request and took
possession of and retained the marijuana and packaging. ( ). Aucoin then arrested
FIlde.tcher for a violation of Louisiana Revised Statute § 40:966 – Possession of Narcotics.
( ). Aucoin issued a criminal summons to Fletcher and, after Fletcher sigInde.d the
summons, released her with a promise to appear in court on November 20, 2020. ( ).
As a result of the OIdIG. agents’ fsineed inaglsso, Harris immediately placed Fletcher on
“Emergency Placement.” ( at ¶ 14; rec. doc. 363 at pp. 4-5). Harris then
instructed Supervisor Robert Robertson to conduct investigative interviews of Fletcher and
the three coworkers who had earlier described Fletcher’s workplace behavior. (Rec. doc.
36-2 at ¶ 15).
On July 8, 2020, Robert Robertson conducted an Investigative Interview of Fletcher,
who was accompanied by her union representative, Danny Bergeron. (Rec. doc. 36-3 at pp.
6-10). During the interview, Fletcher advised that several family members and friends
drove anIdd. rode in her car, implying that the marijuana found could have belonged to
others. ( at p. 7).
On July 24, 2020, Robertson conducted interviews with three of Fletcher’s
coworkers regarding her workplace behavior and/or her use of marijuana.I d(.Rec. soc. 36-3
at ¶ 11). A union representative attended each of the three interviews. ( ). One of the
witnesses, Elisa Hurst, reported that she had spoken to a coworker about Fletcher’s
Id.
behavior change after returning from her breaks. ( Iadt. p. 15). Fletcher’s eyes would be
red, and she behaved “real mellow” after her breaks. ( ). Another witness, Irene Brown,
stated that she had discussed with others Fletcher’s behaIvdi.or and weird smell after
returning from break or at other times during the workday. ( at p. 17). Witness Melissa
Hutchinson recalled that she had a coIndv. ersation with colleague Elisa Hurst about Fletcher’s
smell upon returning from breaks. ( at p. 18). Hutchinson noted that Fletcher would be
“mIdo. re calm, mellow, laid back” with red blood-shot eyes after returning from her breaks.
( at p. 19). Finally, Hutchinson noted that Fletcher always toIdo.k her breaks, including
lunch, in her car and would have a different attitude after them. ( at p. 20).
On July 28, 2020, RIdo.bertson issued a Notice of Removal to Fletcher for the cIhda. rge of
Unacceptable Conduct. ( at ¶ 15). Harris concurred in this removal decision. ( ). The
decision to terminate Fletcher from the Postal Service was based on OIG’s findings as set
forth in its Investigative Report, the investigative interviews of Fletcher and three of her
coworkers, and the rules of behavior set forth in the Postal Service Employee and Labor
Relations Manual. (Id. at ¶ 16).
Fletcher, through her union, the American Postal Workers’ Union, challenged her
removal through the grievancIde. process. (Rec. doc. 36-2 at ¶ 18). An arbitration hearing
was held on April 16, 2024. ( ). On June 24, 2024, Fletcher’s grievance was denied based
on the finding that the PostIadl. Service met its burden of proving that the Notice of Removal
wII.a s issPuerodc feodr ujursatl c Baaucske.g r(ou)n. d
Before the grievance process had concluded, on April 21, 2023, Fletcher filed her
Complaint in this Court in which she alleges unlawful retaliation and retaliatory discharge
under Title VII of the Civil Rights Act, 42 U.S.C. §§ 42 U.S.C. § 2000(e)-2 and (e)-3(a). Due to
the vague allegations and the 181 paragraphs in the Complaint, Defendants DeJoy and the
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United States Postal Service filed a Motion to Dismiss and Motion for Partial Summary
Judgment. (Rec. doc. 16). Fletcher opposed the motion. (Rec. doc. 20).
On January 31, 2024, this Court dismissed all claims arising before September 23,
2019, because all such Icdla.ims were barred by a settlement agreement between Fletcher
and the Postal Service. ( at 12). Additionally, this Court found only three of 18 claims set
forth in FletcherI’sd . third EEO administrative complaint were timely exhausted
administratively. ( at 12, 16). Therefore, the Court found that Fletcher’s Title VII claim
of retaliatoryI dd.i scharge was limited to claim numbers 15-17 in her third administrative
complaint. ( at 16). Per the Court’s Order, the following claims are the only viable
claims:
15. On June 29, 2020, your vehicle was searched by the OIG which led to you
being placed on Emergency Placement on July 3, 2020, and subsequently you
were terminated;
16. On numerous occasions in June, you were told to report to management
when you used the restroom and management stood outside until you came
out; and
17. On dates to be specified, the Postmaster made racist comments about
your hair and physical appearance.
(IIRIe. c. DSouc.m 16m-4a rayt J3u4d).g m ent Standard
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 anyC emloatteexr iCaol rfpa. cvt. Caantdr etthtat the moving party is entitled to a
juSdeeg smupernat as a matter of law.” , 477 U.S. 317, 322 (1986) (citing Fed.
R. Civ. P. 56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element eIsds.e ntial to that party's case, and on which the party
will bear the burden of proof at trial.” A party moving for summary judgment bears the
initial burden of demonstrating the basis for summary judgment and identifying those
portions of the record, discovery, aIndd. any affidavits supporting the conclusion that there is
no genuine issue of material fact. at 323. If the moving party meets that burden, then
the nonmoving party must use evidence coIdg.n izable under Rule 56 to demonstrate the
existence of a genuine issue of material fact. at 324.
A genuine issue oSfe em Aantedreiraslo fna cvt. eLxiibsetrst iyf aL orbebays,o Innacb.le jury could return a verdict for
the nonmoving party. Id. , 477 U.S. 242, 248 (1986). The
substantive law identifies which facts are material. Material facts are not genuinely
disputed when a rational trier ofS feaec Mt caotusuldsh nitoat Efilnedc. fIonrd tuhse. Cnoo. nvm. Zoevniinthg Rpaadrtiyo uCporopn. a review
of the record takenE qausa al wEmhopl'et . O pportunity Comm'n v. Simbaki, Ltd. , 475 U.S.
574, 587 (1986); , 767 F.3d 475, 481 (5th
Cir. 2014). “[U]nsubstantiated assertions,” “conclusory allegations,” andS meee Arenldye crsoolonrable
factual bases areH ionpspuefrfi cvi.e Fnrta tnok defeat a motion for summary judgment. , 477
U.S. at 249-50; , 16 F.3d 92, 97 (5th Cir. 1994). In ruling on aS eseu Dmemltaar &y
jPuidneg mLeanntd mCoot. iov.n ,N aa ctioounrwt imdea yA ngoritb ruessionlevses cIrnesd. iCboi.lity issues or weigh evidence.
, 530 F.3d 395, 398-99 (5th Cir. 2008).
Further, a court must assess the evidence, review the facts, and draw any appropriate
inferences based on tSheee eTvoildaenn cve. Ciont ttohne light most favorable to theD apnairetlys vo.p Cpiotsyi nogf
summary judgment. , 572 U.S. 650, 656 (2014);
Arlington
, 246 F.3d 500, 502 (5th Cir. 2001). Yet a court only draws reasonable inferences
in favor of the nonmovant “when there is an actualL ciottnlet rvo.v Leirqsuyi, dt hAaitr iCs,o wrph.en both parties
have submitted evidence ofL cuojanntr va.d Nicatto'lr Wy ifladcltifse.” F ed'n , 37 F.3d 1069,
1075 (5th Cir. 1994) (citing , 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant
must articulate specific facts and pointS teoe Lsuynpcpho rPtrinopgs, .,c Ionmc.p ve. tPeontto emvaidc eInncse. Ctoh. aotf mIlla.y be
presented in a form admissible at trial. , 140
F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(M2)a.t s Suushchit afacts must create
more than “some metaphysical doubt as to the material facts.” , 475 U.S. at 586.
When the nonmovant will bear the burden of proof at trial on the dispositive issue, the
moving party may simply point to insufficient admissible evidence to establish an essenStieael
eCleelmoteenxt of the nonmovant's claim in order to satisfy its summary judgment burden.
, 477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(B). Unless there is a genuine issue for trial
that couldSe seu Lpitptolert a judgment in favor of the nonmovant, summary judgment must be
gIVra. ntedL. a w and An, 3a7ly Fs.i3sd at 1075-76.
Title VII generally prohibits disScereimination against an employee on the basis that
she has engaged in protected activity. 42 U.S.C. § 2000e-3(a). Although the sections of
Title VII that apply to federal employees do not expressly prohibit retaliation, the Fifth
CBirraczuoirt iah aCsn thy.e vld. E t.Eh.aOt. C“.§ 2000e-16 bars retaliation” against federal employees as well.
pri,m 3a9 1fa Fc.i3ed 685, 690 (5th Cir. 2004).
To establish a case for unlawful retaliation, a plaintiff must show (1) that
she engaged in activity protected by Title VII, (2) that an adverse employment action
occurred, and (3) that Lao cnagu sva. l Eliansktf eiexlids tCedol lb.etween the protected activity and the adverse
eMmcMpliollyamn evn. Rt uasctt Cioonll.e g e, Inc. , 88 F.3d 300, 305 (5th Cir. 1996) (quoting
McDonnell Doug, l7a1s 0C Fo.2rpd. 1v1. 1G2r, e1e1n16 (5th Cir. 1983)).
The framework applies to Title VII unlparwimfual
fraectaieliation cases. 411 U.S. 792, 802-04 (1973). As such, if a plaintiff establishes a
case, the burden shifts to the defendant tLoo “nagrticulate a legitimate, non-retaliatory
reason for the adverse employment action.” , 88 F.3d at 305. If the defendant
produces evidence that would “permit the conclusion that the adverse employment action
was nondiscriminatory,” the burden shifts to the plaintiff to show that “bIudt. for” the
protected activity, the adverse employment action would not have occurred. at 305 &
n.4.
DeJoy does not dispute that Fletcher engaged in a protected activity when she filed
her EEO administrative complaints or that she was later terminated. He argues only that
Fletcher cannot establish the causal connection element between the withdrawal of her
third EEO complaint and her termination.
Fletcher contacted an EEO counselor on June 12, 2019, which generated a complaint
designated as Agency No. 4G-700-0137-19. (Rec. Doc. 16-4 at ¶ 9). Fletcher signed a
Withdrawal of Complainant of Discrimination form on SeptemIdb.er 23, 2019, which
withdrew all of the claims raised in Agency No. 4G-700-0137-19. ( ). Fletcher was later
terminated on July 28, 2020. (Rec. doc. 36-3 at pp. 21-23).
DeJoy contends that the temporal proximity between the September 2019
withdrawal of her EEO complaint and her July 2020 termination is too remote to establish
the causal connection element without other evidence of retaliation. The Fifth Circuit has
held that “that a six-and-a-half-week timeframe is sufficiently close, but that a five month
[sic] lapse is not close enLoyuonghs , vw. iKthaotyu tI nodtheper. Secvhid. eDnicste. of retaliation, to establish the ‘causal
connection’ element.” , 964 F.3d 298, 305 (5th Cir. 2020)
(citations omitted). Here, the Court finds thapt rtihmea 1 f0a-cmieo nth lapse is too remote to establish
the causal connection element of Fletcher’s See, e.g., Rceaisne ,v .e Hspoenceiyawllye lgl iIvnetn’l Itnhca.t Fletcher
has provided no other evidence of retaliation. , 362 Fed.
App’x 395, 398 (5th Cir. 2010) (finding that a 10-month differential between the
discrimHianravteiyo nv . cSotmrinpglaeirnt and adverse employment action is insufficient to show a causal
link); , 113 F. App'x 629, 631 (5th Cir. 2004) (“However, a period of 10
months elapsed between Harvey's EEOC charge in January 2001 and his termination in
October 2001. This Court has never held that a 10–month time lapse, on itsG roizwznle, ivs.
sTurfafviceileenrst Htoe aslathti sNfyet wthoer kc,a Iunsca.l connection for summary judgment purposes.”);
, 14 Fed. App’x 261, 268 (5th Cir. 1994) (finding a 10-month
period between protected activity and adverse employment action suggests that a
retaliatory motive is highly unlikely).
To interrupt the 10-month lapse and to support her claims of retaliatory discharge,
Fletcher alleges that she was told to report to management when she used the restroom
and that management stood outside until she came out. (Rec. Doc. 1 at ¶¶ 146-147).
Fletcher also Icdl.aims that Harris made racist comments about her hair and physical
appearance. ( at ¶ 142). The Court notes, however, that these are no more than mere
allegations. Because Fletcher failed to file an opposition to DeJoy’s motion for summary
judgment, she has provided this Court with no proof of any sort that these things ever
occurred.
Even so, DeJoy has submitted to the Court evidence that all clerk craft at the CPO
must advise a supervisor when they need a break. (Rec. doc. 36-3I da.t ¶ 6). This rule was in
place in 2020 and continues to be the policy at the CPO today. ( ; rec. doc. 36-4 at ¶ 4).
Fletcher was thUunss unpopt otrhtee donly employee required to inform her supervisor of her
whereabouts. allegations about a rule indiscriminately applicable to all
clerks at the CPO cannot interrupt the 10-month lapse between the withdrawal of
Fletcher’s third EEO complaint and her termination.
And Harris made only a single comment about Fletcher’s hair seemingly appearing
heavy. (Rec. doc. 36-2 at ¶ 19). As a bald mIda.n, HarJaricsk seoxnp lva. iCnaeld-W th. aPta chkea giminagg Cinoerdp .that
Fletcher’s head would hurt with all that hair. ( ). In , the
Fifth Circuit noted:
We have explained that comments are evidence of discrimination only if they
are 1) related to the protected class of persons of which the plaintiff is a
member; 2) proximate in time to the complained-of adverse employment
decision; 3) made by an individual with authority over the employment
decision at issue; and 4) related to the employment decision at issue.
Comments that do not meet these criteria are considered stray remarks, and
standing alone, are insufficient to defeat summary judgment.
602 F.3d 374, 380 (5th Cir. 2010) (footnotes and quotations omitted). While Harris admits
that he “unthinkingly” made this comment, Fletcher has not provided evidence that the
comment occurred proximately in time to her termination. (Rec. doc. 36-2 at ¶ 19).
Moreovperrim, eav efanc mieo re damning to Fletcher’s claim, and even had she met her burden
to establish a case, DeJoy has produced evidence sufficient to dLeomnognstrate that
Fletcher’s termination was nondiscriminatory and for legitimate reasons. , 88 F.3d at
305 & n.4. As noted above, on more than one occasion, Harris noticed Fletcher’s absence
from the work floor. (Rec. doc. 36-2 at ¶ 6). Three coworkers reported issues with
Fletcher’s workplace behavior including her red eyes, funny smell, and apparent sleepiness
after breaks. Based on theseI dr.eports, Harris contacted OIG who surveilled the CPO on
seven separate occasions. ( at pp. 4-10). OIG’s surveillance ended in a search of
Fletcher’s car that revealed a strong odor of marIdij.uana and two large plastic bags of
marijuana on the front passenger seat of her car. ( at p. 5). On the Isda.me date, Fletcher
was arrested by a Covington Police Officer for possession of narcotics. ( at p. 6).
The Postal Service’s stated reason for terminating her – Fletcher’s charge of
unacceptable conduct due to illegal drug use and possession on postal premises – is
legitimate and nondiscriminatory. The ultimate burden of persuading the trier of fact of
DeJoy’s discriminatory retaliation remains at all times with Fletcher, who ultimately must
show that but for her participation in the prSoetee cLtoendg activity, the Postal Service would not
have taken the adverse employment action. , 88 F.3d at 305 & n. 4 (5th Cir. 1996).
Fletcher cannot do so as the Postal Service would have terminated her for unacceptable
Vco. nducCt odnescpluitsei othne filing of any EEO complaint.
FITo rI Sth OeR foDrEeRgoEiDng reasons, GRANTED
that the Motio3n0 tfhor SummaryS eJupdtegmmebnetr (rec. doc. 36) is .
New Orleans, Louisiana, this day of , 2024.
MICHAEL B. NORTH
UNIT ED ST ATES M AGIST RATE JUDGE