Petition for Writ of Certiorari — Phile Andra Watson, Petitioner v. Louis DeJoy, Postmaster General

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Appendix and Exhibits as follows:

United States

Court of

Appeals Fifth

Circuit

App’x A

la-2a

Judgement IT IS ORDERED and

ADJUDGED that the judgment of the

District Court is Affirmed

United States

Court of

Appeals Fifth

Circuit

United States

District Court

Northern

District of

Dallas Division

App’x B

OPINION

United States

District Court

Norther District

of Dallas

Division

App’x D

R.E.A.T. Rural

Employees

Academy

Carrier Training

Time Cards

App’x E

Watson ‘s

PS form 1234

3a-12a

App’x C

13a

14a-27a

Exhibit 1 pg 28a

App'x

F

Exhibit 2 pg 29a

ORDER ACCEPTING, FINDINGS,

CONCLUSIONS, AND

RECOMMEDATION OF THE

UNITED STATES MAGISTRATE

JUDGE.

Judgement, and Findings, Conclusions,

and Recommendation Plaintiff Motion

Denied.

Comparator Prosperine Chirahagasha

and Petitioner ,Phile Andra Watson

Similar

1. November 13-14, 2017 Exhibit 2

reported harassment. Noticed the

favorable treatment to comparator.

P. Chirashagasha.

2. November 16, 2017 Watson’s first

time solo on primary Rt 96.

3 days later received 30 day evaluation.

3. Time cards will also provide

Watson’s schedules on 60 day

evaluation as Parcel Runner, Not RCA.

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®niteb States Court of Appeals

for tfje Jftftl) Circuit

United States Court of Appeals

Fifth Circuit

No. 23-10131

Summary Calendar

FILED

September 25, 2023

Lyle W. Cayce

Clerk

Phile Andra Watson,

Plaintiff—Appellant,

versus

Megan J. Brennan, Postmaster General United States Postal Service,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CV-181

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam:*

Pro se plaintiff Phile Andra Watson (“Watson”) is a sixty-year-old

African American man (At the time of the original Complaint, Watson was

fifty-six years old). Watson sued Megan J. Brennan, his former employer, in

her official capacity as Postmaster General of the United States Postal Ser­

vice (“USPS”). In the operative complaint, Watson alleges four claims: 1)

This opinion is not designated for publication. See 5th Cir. R. 47.5.

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No. 23-10131

discrimination and retaliation based on his sex and age in violation of Title

YD of the Civil Rights Act and The American Discrimination in Employ­

ment Act; 2) hostile work environment; and 3) intentional infliction of emo­

tional distress. USPS filed a motion for summary judgment on all claims on

May 2,2022. Watson filed a motion for summary judgment on May 3,

2022. The district court granted the motion for summary judgment in favor

of USPS on January 26, 2023. We AFFIRM.

BACKGROUND

In October 2017, Watson began employment with USPS at the

North Carrier Annex in Fort Worth, Texas. He began a three-month proba­

tionary period ending on January 21,2018. As a Rural Carrier Associate

(“RCA”), Watson sorted mail, delivered mail, and returned collected mail

to the post office. He was responsible for successfully completing his deliv­

eries within an “evaluated time,” the time allotted for each RCA to complete his or her route.

Watson received formal training in the same manner as other new

RCAs. Between his start date and the end of his probationary period, how­

ever, Watson failed to timely sort mail, deliver mail, and complete any

routes within the evaluated time. To improve his efficiency, Watson re­

ceived more training and tips. Yet, other RCAs had to retrieve and deliver

some of his mail and work excess hours to complete his tasks. Watson

acknowledges that he would deliver mail later than other carriers and that

his supervisor complained to him about timeliness. Because Watson could

not complete his work in a timely fashion, Susan Knudsen, one of his super­

visors, assigned him to a static route to deliver a limited number of parcels.

At the thirty-day performance evaluation, Watson was rated “unsat­

isfactory” in three performance areas—work quantity, work quality, and

dependability. At the sixty-day performance evaluation, Watson had not

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No. 23-10131

improved and received “unsatisfactory” in the same performance areas.

During his second performance evaluation, Watson justified his inadequate

performance by expressing that he was not properly trained. Ester Wilson,

his supervisor, prepared a report recommending Watson be separated from

service due to his failure to deliver express mail and his failure to complete

his route within the evaluated time. Donna Dunker, USPS Human Re­

sources manager, agreed with this recommendation and notified Watson of

his termination on January 18,2018.

On January 18, 2018, Watson filed a discrimination charge with

USPS and filed a formal Equal Employment Opportunity Commission com­

plaint alleging discrimination and harassment. The EEOC administrative

judge granted summary judgment in favor of USPS. Subsequently, USPS is­

sued a final decision denying Watson’s claims.

On January 24,2020, Watson filed his original Complaint against

Megan J. Brennan, in her official capacity as Postmaster General of the

United States Postal Service. Watson alleged 1) wrongful termination, 2)

sex and color discrimination, 3) age and sex discrimination, 4) harassment

and bullying, 5) quid pro quo, 6) intentional infliction of emotional distress,

7) mental anguish, and 8) emotional distress. The district court dismissed

the case without prejudice on June 2,2020, due to Watson’s failure to ef­

fect service of process on the defendant. Watson filed a motion to reopen

the case on June 23, 2020, and the district court reinstated the case on No­

vember 19, 2020. Watson amended the original complaint on March 10,

2021. Watson amended the second complaint on May 7, 2021. The second

amended complaint, the operative complaint, alleges 1) unlawful discrimi­

nation and retaliation based on his sex and age, 2) hostile work environ­

ment, and 3) intentional infliction of emotional distress.

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On January 9,2023, the magistrate judge submitted a report recom­

mending that Defendant’s motion for summary judgment be granted and

Plaintiff’s cross-motion be denied. The district judge reviewed the magis­

trate judge s report and Watson’s objections, and, after conducting a de

novo review, adopted the magistrate judge’s report as the findings and con­

clusions of the court and granted the Defendant’s motion.

Watson now files this pro se appeal challenging the district court’s

grant of Defendant’s motion for summary judgment.

STANDARD OF REVIEW

This court reviews a grant of summary judgement de novo, applying

the same legal standard as the district court Sierra Club, Inc. v. Sandy Creek

Energy Associates, L.P., 627 F.3d 134,139 (5th Cir. 2009) (quotations omit­

ted). Summary judgment should be rendered if the record demonstrates

that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law. ” Fed.R.Civ.P. 56(c). To determine

whether there is a fact issue, this court views the facts and the inferences to

be drawn therefrom in the light most favorable to the nonmoving party.

Daniels v. City ofArlington, Tex., 246 F.3d 500,502 (5th Cir. 2001).

DISCUSSION

We first address Watson’s discrimination claim based on his sex and

age in violation of Title VII and the ADEA. The district court concluded that

Watson (a) was not qualified for the position considering his performance

issues, (b) did not establish that his proffered comparators were similarly

situated or treated more favorably, and (c) did not establish that he was

otherwise discharged because of his age. On appeal, Watson’s brief does not

adequately address where the district court erred. “[A] party forfeits an

argument by failing to raise it in the first instance in the district court—thus

raising it for the first time on appeal—or by failing to adequately brief the

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argument on appeal.” Rollins v. Home Depot USA, 8 F.4th 393,397 (5th Cir.

2021)(citation omitted). To the extent that Watson’s brief is adequate, the

district court properly dismissed Watson’s discrimination claims because he

failed to establish a prima facie case of discrimination based on sex or age.

To establish a prima facie case of discrimination under both Title VII

and the ADEA, an employee must demonstrate that (1) he is a member of a

protected class, (2) he was qualified for the position he sought, (3) he suffered

an adverse employment action, and (4) other similarly situated employees

outside the protected class were treated more favorably. Saketto v. Admin of

Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022). To satisfy the fourth

prong, a plaintiff must engage in a “comparator analysis” to establish he was

treated less favorably than a similarly situated employee outside his protected

class under nearly identical circumstances. Id.

First, Watson does not provide competent evidence that he was

qualified for the job. Watson contends that he was not properly trained and

that he was not in the RCA position during the full duration of his

employment. While Watson acknowledged that he had performance

deficiencies, he blamed them on his lack of training. But the record reflects

that “[Watson] received the same training as other RCAs, if not more.”

After receiving more training, Watson was unable to complete his rural route

and was moved to a static route to deliver parcels. This change in duties “did

not alter his status as an RCA.” At both the 30-day and 60-day evaluations,

Watson received “unsatisfactory” in three categories—work quantity, work

quality, and dependability. Given his performance deficiencies, the district

court properly concluded that Watson was not qualified for the RCA

position.

Second, Watson had no evidence that his comparators were similarly

situated. Watson proffers Robin Mott as a comparator for his sex

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discrimination claim. Yet, Mott and Watson were not similarly situated

employees. Mott, a white female, is five years older than Watson and

received similar training. Moreover, unlike Watson, Mott had completed her

probationary period prior to Watson being hired at USPS. Additionally, Mott

did not have any recorded performance deficiencies in her file. As the district

court explains, Mott even assisted [Watson] on his route once.”

Similarly, Watson proffers Prosperine Chirashagasha as a comparator

for his age discrimination claim. Yet, Chirashagasha and Watson are not

similarly situated employees. Chirashagasha, a 30-year-old AfricanAmerican woman, was hired the same day as Watson. Chirashagasha did not

have any recorded performance deficiencies in her file and was “more

successful in performing her job duties than Mr. Watson. ” While it is unclear

whether Watson argues that Chirashagasha was a comparator for his sex

discrimination claim, the district court correctly concluded that this claim “is

unavailing because one USPS central scheduler assigns RCAs to particular

facilities and routes based on the needs of the organization and the applicable

collective bargaining agreement.” Because Watson failed to establish the

prima facie case for discrimination based on age or sex, his Title VII and

ADEA discrimination claims fail.

We now turn to Watson’s hostile work environment claim. Watson’s

operative complaint does not include an allegation of a hostile work

environment. This claim is only made during the EEOC proceedings, where

he alleged “derogatory” remarks directed towards him by a USPS

supervisor. On review, the district court properly found that Watson failed

to establish an actionable hostile work environment claim.

To establish a prima facie case of harassment alleging hostile work

environment, the employee must establish that (1) [he] belongs to a protected

group; (2) [he] was subject to unwelcome harassment; (3) the harassment

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was based on a protected characteristic; (4) the harassment affected a term,

condition, or privilege of his employment; and (5) his employer knew or

should have known of the harassment and failed to promptly take remedial

action. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). “Simple

teasing, offhand comments, and isolated incidents (unless extremely

serious)” do not “amount to discriminatory changes in the “terms and

conditions of employment. ” Faragher v. City ofBoca Rotan, 542 U.S. 775,789

(5th Cir. 1998).

The record only includes comments about Watson that were

assessments of his work product. As the district court noted, the only

statement that can be construed to be related to Watson’s gender is from a

supervisor who claimed that “he should be wearing Cowgirls Pink.”

Although this comment can be construed as improper, offhand comments

along those lines do not establish an actionable hostile work environment

claim. Thus, the district court properly granted summary judgment to USPS

on this claim.

We now turn to Watson’s retaliation claim. The district court found

that Watson did not administratively exhaust the retaliation claim, which is

required by Title VII, and that Watson’s retaliation claim does not “grow out

of” a filed EEOC charge.

“To establish a prima facie case of retaliation, the employee must

establish that: (1) he participated in an activity protected by Title VII; (2) his

employer took an adverse employment action against him; and (3) a causal

connection exists between the protected activity and the adverse

employment action.” McCoy v. City ofShreveport, 492 F .3d 551,556-57 (5th

Cir. 2007). Title VII mandates that discriminatory retaliation claims are

administratively exhausted prior to filing a discriminatory suit. However, “a

district court has ancillary jurisdiction to hear a claim of retaliation, even

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though not filed with the EEOC, when it grows out of an administrative

charge that is properly before the court.” Barrow v. New Orleans S.S. Ass}n,

932 F .2d 473, 479 (5th Cir. 191).

On review, the district court correctly concluded that Watson did not

exhaust the retaliation claim and that the claim does not “grow out of” a filed

EEOC charge. First, Watson’s filed complaint with the EEOC does not

include a retaliation claim. Watson contends that he filed a retaliation claim

with the EEOC and that the EEOC closed this claim in April 2022. However,

as the district court explained: “There is no record to support this

proposition. ” Second, Watson ’ s retaliation claim does not “ grow out oF’ the

previously filed EEOC charges. Watson’s brief does not clearly articulate the

specific action that is retaliatory. Watson’s employment was permanently

terminated on Januaiy 18, 2018, prior to the filing of the EEOC charges.

Because USPS was no longer his employer after he was terminated, USPS

could not retaliate against him, for example, by failing to renew his contract.

See Gupta v. East Texas State University, 654 F.2d 411,413 (5th Cir.

1981)(“After Gupta instituted this lawsuit, he was notified that his teaching

contract would not be renewed for the following year. Gupta contends that

his nonrenewal was in retaliation for his filing charges with the EEOC. ”).

We now turn to Watson’s pursuit of an intentional infliction of

emotional distress claim. The availability of remedies under Title VII and

ADEA foreclose the pursuit of an intentional infliction of emotional distress

claim based on the same conduct. Stelly v. Duriso, 982 F.3d 403,409 (5th Cir.

2020). The remedies provided by an intentional infliction of emotional

distress claim are intended to fill the “gap” when other remedies are

insufficient. Id.

The district court properly dismissed Watson’s tort claim because it

fails as a matter of law. Watson’s Title VII and ADEA claims are based on

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the same alleged facts used to substantiate his intentional infliction of

emotional distress claim. Given the available remedies, the pursuit of the

intentional infliction of emotional distress claim is foreclosed.

For these reasons, we AFFIRM the judgement of the district court.

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Case 3:20-cv-00181-G-BK Document 70 Filed 01/09/23 Page 1 of 13 PagelD 2186

In the United States District Court

For the Northern District of Texas

Dallas Division

Phile Andra Watson,

Plaintiff,

v.

§

§

§

§

§ Case No. 3:20-CV- 181-G-BK

Megan J. Brennan, Postmaster

General United States Postal

Service,

Defendant.

§

§

§

§

§

§

Findings, Conclusions, and Recommendation

of the United States Magistrate Judge

< Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this case has been referred to the

United States magistrate judge for pretrial management. Currently before the Court are the

parties’ cross-motions for summary judgment. Doc. 52; Doc. 55. For the reasons that follow,

Defendant’s motion should be GRANTED, Plaintiffs motion should be DENIED, and this case

should be DISMISSED.

I.

Background

Plaintiff, proceeding pro se, alleges in the operative complaint that Defendant, his former

employer, discriminated and retaliated against him based on his sex and age in violation of Title

VII and the Age Discrimination in Employment Act (“ADEA”).1 Doc. 34 at 2-4. Plaintiff also

While Plaintiff initially claimed discrimination based on his race as well, he abandoned that

claim in his response to Defendant’s summary judgment motion. See Doc. 65 at 17-19 (“Race

Discrimination was amended and no longer a part of this Lawsuit.”).

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asserts a cause of action for intentional infliction of emotional distress. Doc. 34 at 3. In due

course, the parties cross-moved for summary judgment.2 Doc. 52; Doc. 55.

II.

Applicable Law

A. Summary Judgment Standard

Summary judgment is appropriate “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); Celotex Corp. v. Catrett, All U.S. 317, 322 (1986). A

party moving for summary judgment has the initial burden of “informing the district court of the

basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (citation

omitted).

Once the moving party has properly supported its motion for summary judgment, the

burden shifts to the nonmoving party to “come forward with specific facts showing that there is a

genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (internal quotes omitted). “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id.

(citation omitted). The Court “must view the evidence introduced and all factual inferences from

the evidence in the light most favorable to the party opposing summary judgment, but a party

2 Because Plaintiffs Motion for Summary Judgment is largely redundant of his response to

Defendant’s summary judgment motion, the Court does not separately reference it.

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opposing summary judgment may not rest on mere conclusory allegations or denials in its

pleadings.” Smith v. Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016) (internal alterations

omitted) (quoting Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 447 (5th Cir. 1995)). Further,

unsubstantiated beliefs are not competent summary judgment evidence, de la O v. Housing

Authority of City of El Paso, 417 F.3d 495, 502 (5th Cir. 2005).

B. McDonnell Douglas Framework

Title VII and the ADEA provide, in relevant part, that an employer may not “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” sex or age. 42 U.S.C. § 2000e-2(a)(l) (sex); 29 U.S.C. § 623(a)(1) (age).

Title VII was the model for the ADEA, so the same general law applies to claims under either

statute. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 & n.6 (5th Cir. 2009).

The McDonnell Douglas framework involves three steps. First, a plaintiff must make a

prima facie showing of discrimination. Lcocton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If the plaintiff does so, the

burden shifts to his employer to show a legitimate, non-discriminatory reason for any adverse

employment action. Id. An actionable adverse employment action must be an “ultimate

employment decision,” which includes termination. McCoy v. City ofShreveport, 492 F.3d 551,

559 (5th Cir. 2007). If the employer successfully demonstrates a legitimate, non-discriminatory

reason for such action, the burden shifts back to the plaintiff to provide substantial evidence that

the employer’s proffered reason was merely a pretext for the discrimination. Laxton, 333 F.3d at

578.

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C. Title VII and ADEA

Title VII and the ADEA permit plaintiffs to pursue discrimination claims under two

distinct theories: disparate impact and disparate treatment. See Gross v. FBI Fin. Services, Inc.,

557 U.S. 167, 176 (2009) (discussing showing required for ADEA claim based on a disparate

treatment theory); Munoz v. Orr, 200 F.3d 291, 299 (5th Cir. 2000) (holding that both disparate

treatment and disparate impact theories are cognizable in Title VII cases). As relevant here,

“[d]isparate-treatment cases present the most easily understood type of discrimination . . . and

occur where an employer has treated a particular person less favorably than others because of a

protected trait.” Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (cleaned up).

To set forth a prima facie case of disparate treatment discrimination, a plaintiff must

establish that (1) he is a member of a protected class; (2) he was qualified for the position at

issue; (3) he suffered an adverse employment action; and (4) other similarly-situated employees

outside the plaintiff s protected class were treated more favorably. Saketkoo v. Admin. ofTulane

Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022) (citation omitted); see also Nasti v. CIBA

Specialty Chems. Corp., 492 F.3d 589, 593 (5th Cir. 2007) (sex discrimination); Sandstad v. CB

Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002) (age discrimination). To satisfy the fourth

prong, a plaintiff must engage in a “comparator analysis” to establish he was treated less

favorably than a similarly situated employee outside his protected class under nearly identical

circumstances. See Saketkoo, 31 F.4th at 998 (citation omitted). “A variety of factors are

considered when determining whether a comparator is similarly situated, including job

responsibility, experience, and qualifications.” Herster v. Bd. of Super, of La. State Univ., 887

F.3d 177, 185 (5th Cir. 2018).

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D. Hostile Work Environment

If a plaintiff alleges that discrimination took the form of harassment which created a

hostile work environment, he must show that: (1) he belongs to a protected class; (2) he was

subject to unwelcome harassment; (3) the harassment was based on a protected characteristic; (4)

the harassment affected a term, condition, or privilege of his employment; and (5) his employer

knew or should have known of the harassment and failed to promptly take remedial action.

Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). Nevertheless, federal antidiscrimination statutes do not create a “general civility code” in the workplace. Lauderdale v.

Tex. Dept, of Crim. Justice, 512 F.3d 157, 163 (5th Cir. 2007). “[Sjimple teasing, offhand

comments, and isolated incidents (unless extremely serious)” do not suffice. Faragher v. City of

Boca Raton, 524 U.S. 775, 788 (1998) (citations and internal quotation marks omitted). Rather,

to be actionable, the work environment must be “both objectively and subjectively offensive, one

that a reasonable person would find hostile or abusive, and one that the victim in fact did

perceive to be so. Id. at 787; see also McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558,

564 (5th Cir. 1998) (“It is a simple fact that in a workplace, some workers will not get along with

one another, and this Court will not elevate a few harsh words or ‘cold-shouldering’ to the level

of an actionable offense.”).

E. Retaliation

To establish a claim for retaliation under both Title VII and the ADEA, a plaintiff must

show: (1) that he engaged in an activity protected by the particular statute; (2) an adverse

employment action; and (3) a causal link between the two. Goudeau v. Nat’l Oilwell Varco,

L.P., 793 F.3d 470, 478 (5th Cir. 2015). Nevertheless, discriminatory retaliation claims must be

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administratively exhausted prior to filing suit unless the claim “grows out of an [EEOC] charge

that is properly before the court.” Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 479 (5th Cir.

1991).

III.

Factual Support For Summary Judgment Motion

Defendant has submitted authenticated documents in support of her motion which

demonstrate the following: On October 21, 2017, Plaintiff began a probationary term of

employment as a Rural Carrier Associate (RCA) for the United States Postal Service (“USPS”).

Doc. 54-1 (Richard G. Saliba Decl.); Doc. 54-2 at 230 (USPS Notification of Personnel Action).

RCAs are tasked with sorting mail, delivering and collecting mail along their assigned route,

returning collected mail to the USPS facility, preparing daily trip reports, and the like. Doc. 54-2

at 232. These duties are to be performed according to an “evaluated time” which factors in the

needs of the route and a reasonable time for the RCA to complete it. Doc. 54-3 at 47 (Pltf.

Dep.); Doc. 54-4 at 5-6 (Theophane Best Deck); Doc. 54-5 at 2 (Esther Wilson Deck).

Upon being hired as an RCA, Plaintiff received several days of formal training in the

same manner as other new RCAs, as well as specific training with an experienced carrier on

several occasions. Doc. 54-2 at 278 (EEOC Summary Decision); Doc. 54-3 at 36-38, 48, 62, 85

(Pltf. Dep.); Doc. 54-5 at 4 (Wilson Deck). Plaintiff was then assigned to the North Carrier

Annex (the “Annex”) in Fort Worth, Texas, and given a primary route. Doc. 54-2 at 230 (USPS

Notification of Personnel Action); Doc. 54-3 at 39 (Pltf. Dep.).

During Plaintiffs 90-working-day probationary period, he struggled to timely sort and

deliver the mail, failing to meet any route’s evaluated time. Doc. 54-4 at 5-6 (Best Deck); Doc.

54-5 at 4 (Wilson Deck); see also Doc. 54-6 at 3-4 (April Shelton Deck) (averring Plaintiff

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would spend eight to ten hours just to sort mail, needed help every day, and there was a concern

he might not complete his work until midnight). Plaintiff himself acknowledged that he left the

Annex to deliver mail later than other carriers and several supervisors complained about his lack

of timeliness. Doc. 54-3 at 52-60, 82-85; Doc. 54-3 at 55 (Q: “[D]o you agree that you left the

station later after the regulars after casing the mail?” A: “Yes.”); Doc. 54-3 at 57 (acknowledging

that he was supposed to return to the Annex by 6:00 p.m., but was returning at “around 8:30,

9:00, somewhere around there, p.m.”); Doc. 54-3 at 58-59 (acknowledging that as many as three

other carriers had to come deliver part of the mail on his route every time during peak season).

As a result of these problems, Plaintiff received additional training and tips to improve

his efficiency. Doc. 54-3 at 85 (Pltf. Dep.); Doc. 54-6 at 3 (Shelton Decl.). Nevertheless, other

carriers often had to retrieve and deliver some of Plaintiff s mail, working excess hours to do so,

because Plaintiff could not complete his work in a timely fashion. Doc. 54-6 at 4 (Shelton

Decl.); Doc. 54-7 at 2 (Susan Knudsen Decl.) (averring Plaintiff could not “deliver the route in a

timely manner, not according to any standard of the Postal Service for that route” and “never ran

a single route from beginning to end by himself,” so she had other carriers work on part of his

route); see also Doc. 54-4 at 6 (Best Decl.) (averring it was not uncommon for Plaintiff to return

to the Annex after the outgoing mail truck had left, resulting in mail delays). One employee,

who supervised Plaintiff for several weeks in December 2017, avers she compensated for

Plaintiffs performance deficiencies by altering his work duties as often as possible, so she did

not need to send other carriers to assist him. Doc. 54-7 at 2-3 (Knudsen Decl.) (“I felt that it was

a disaster to put Mr. Watson on a rural route, so instead I compensated by putting him on a

‘static route with parcels rather than a rural route. A static route is a route that delivers only a

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limited number of parcels. I put Mr, Watson on a static route as often as possible because he

could not perform his assigned duties on any rural route.”).

During Plaintiff s 30-day performance evaluation, he was rated “unsatisfactory” in three

categories. Doc. 54-2 at 243 (Emp. Eval.); Doc. 54-3 (Pltf. Dep.); Doc. 54-5 at 5 (Wilson Decl.)

(noting unsatisfactory performance in areas of quantity, work quality, and dependability). By the

time of his 60-day review in January 2018, Plaintiffs performance had not improved, and he

received a score of unsatisfactory in the same categories. Doc. 54-2 at 244 (Emp. Eval.); Doc.

54-5 at 5 (Wilson Decl.) (App’x 52, 255-57, 385). During this evaluation, Plaintiff attempted to

justify his unsatisfactory performance, stating that he had not been properly trained. Doc. 54-2 at

244 (Emp. Eval.). Nevertheless, USPS supervisor Esther Wilson prepared a report

recommending that Plaintiff be separated from service, noting he exceeded his hours, failed to

timely deliver express mail, and was unable to complete his route within the evaluated time.

Doc. 54-5 at 6 (Wilson Decl.); see also Doc. 54-2 at 97 (Wilson Affid.) (noting that Plaintiff

brought mail back undelivered on more than one occasion).

The USPS human resources manager concurred with Wilson’s recommendation and

Plaintiff was notified of his termination on January 18, 2018, which was confirmed in writing

shortly thereafter.3 Doc. 54-2 at 256 (Wilson Letter); Doc. 54-3 at 73 (Pltf. Dep.). Plaintiff filed

a charge of discrimination with the USPS the same day, alleging discriminatory harassment and

termination based on his race, sex, and age, and filed a formal EEO complaint thereafter. Doc.

54-2 at 1-2; Doc. 54-2 at 6-7. Following an investigation, an EEOC administrative judge granted

While Plaintiff also argues at length about events which took place in 2021 surrounding his

allegedly continued employment with USPS, those allegations are not pertinent to the instant

dispute which involves events that occurred between November 2017 and January 2018.

8

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summary judgment in favor of the USPS, which then issued a final decision denying Plaintiffs

claims. Doc. 54-2 at 277-78, 281-82.

In support of his own summary judgment motion, Plaintiff submitted controverting

evidence in the form of unsigned declarations and unauthenticated evidence such as USPS

business records, text messages, emails, letters, timecards, photographs. See Doc. 65. Defendant

objects to the documents, asserting they do not constitute competent summary judgment

evidence. Doc. 67 at 3 n.4. The Court concurs. See Kingv. Dogan, 31 F.3d 344, 346 (5th Cir.

1994) (“Unauthenticated documents are improper as summary judgment evidence.”).

Thus, the Court does not consider that evidence in addressing the parties’ cross-motions.

IV.

Analysis

A. Discrimination

Defendant alleges Plaintiff cannot establish a prima facie case of discrimination based on

either his sex or age because (1) he was not qualified for his position as evidenced by his

performance issues; (2) he cannot establish that his proposed comparators, Robin Mott and

Proserpine Chirashagasha, were either similarly situated to him or that they received more

favorable treatment then he did; and (3) he cannot establish that he was otherwise discharged

because of his age for purposes of the ADEA. Doc. 53 at 20-26 & n.16.

Liberally construing his response, Plaintiff contends that any performance problems he

exhibited stemmed from Defendant’s failure to properly train him for peak season on a busy

route and refusal to transfer him to another route as he requested. Doc. 65 at 9-16, 22.

Additionally, Plaintiff maintains he was not employed as an RCA for the entirety of his

employment because he worked as a parcel runner in December 2017, such that his performance

9

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in that role should have been evaluated as well. Doc. 65 at 10, 12-14, 19.

Critically, Plaintiff s arguments undercut any possibility that he was qualified for the

RCA position. During his deposition, he acknowledged his performance deficiencies, though he

blamed them on his lack of training. But the evidence of record reflects Plaintiff received the

same training as other RCAs, if not more. and his speculative assertions to the contrary are both

inapposite and insufficient to avoid summary judgment on his discrimination claims, de la O

417 F.3d at 502. Plaintiffs December 2017 change of duties to running parcels did not alter his

status as an RCA. The accommodation was made to avoid further problems caused by Plaintiffs

inability to timely complete his route.

Further, Plaintiffs proposed comparators for his sex discrimination claims, Mott and

Chirashagasha, are not similarly situated to him. According to USPS’s then-human resources

manager, there were no disciplinary actions on file related to Mott’s performance, and Mott even

assisted Plaintiff on his route once. Doc. 54-8 at 13 (Donna Dunker Deck); see also Doc. 54-5

(Wilson Deck) (“[Mott] was more proficient in carrying a route than [Plaintiff].”). Moreover,

Mott was not a probationary employee when Plaintiff began working at the Annex and was, thus,

presumably not under an equivalent level of scrutiny. Doc. 54-2 at 133 (Best EEO Investigative

Affidavit).

Chirashagasha, who is also Plaintiffs proposed comparator for his ADEA claims,

likewise had no disciplinary actions on file with respect to her performance, and there is no

evidence she required assistance from other carriers on her route. Doc. 54-8 at 14 (Dunker

Deck), Doc. 54-5 (Wilson Deck) ( Ms, Chirashagasha . . . did not have the same performance

deficiencies as [Plaintiff], and she showed improvement as she learned the skills needed to carry

10

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the routes to which she was assigned.”)- To the extent Plaintiff argues Chirashagasha was

assigned a lighter route due to her sex, his contention is unavailing because one USPS “central

scheduler” assigns RCAs to particular facilities and routes based on the needs of the organization

and the applicable collective bargaining agreement. Doc. 54-8 at 7 (Dunker Deck). Because

Plaintiff has not made the requisite prima facie showing, his Title VII and ADEA discrimination

claims fail. Saketkoo, 31 F.4th at 998.

B. Hostile Work Environment

Plaintiffs hostile work environment claim fares no better. While Plaintiff did not

enumerate any instances of hostility in the operative complaint, during the EEO proceedings and

his deposition, he described several “derogatory” remarks one USPS supervisor directed at him.

Doc. 54-3 at 12; Doc. 54-2 at 39. The statements, however, pertained to Plaintiff s job

performance and did not allude to his age or sex. See, e.g., Doc. 54-2 at 39 (“I can’t do you.

You suppose [sic] to been back by 6:00 p.m.”; “What are you doing? This is just a mess!”;

“Look at him, who is training him”; “Damn, what is the problem?). The only potential comment

relevant to Plaintiffs sex is that “he should be wearing Cowgirls Pink.” Doc. 54-2 at 39. But

teasing and offhand comments cannot establish an actionable hostile work environment claim.

Faragher, 524 U.S. at 788. Defendant is thus entitled to summary judgment on this claim.

C. Retaliation

Plaintiff alleges in his complaint that Defendant retaliated against him when he

complained about being harassed. Doc. 34 at 13. As Defendant correctly asserts, however,

Plaintiff did not exhaust that claim as he was statutorily obligated to do. Plaintiff alleged in his

EEO complaint and supporting declaration only discrimination and harassment based on his race,

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sex, and age. Doc. 54-2 at 1-2 (EEO Complaint); see also Doc. 54-2 at 6-8 (EEO Dispute

Resolution Specialist’s Inquiry Report) (same); Doc. 54-2 at 9-12 (USPS Information for PreComplaint Counseling) (same). While Plaintiff asserts that the EEOC “closed” his retaliation

claim in April 2022, Doc. 65 at 22, there is no record support for this proposition. Because

Plaintiff did not exhaust his retaliation claim and it did not “grow out of’ a previously filed EEO

charge, it must be dismissed. See Barrow, 932 F.2d at 479.

D. Intentional Infliction of Emotional Distress

Although Defendant does not address Plaintiffs tort claim, the Court nevertheless

determines that it fails as a matter of law because the availability of Title VII and ADEA

remedies forecloses that cause of action. See Stelly v. Duriso, 982 F.3d 403, 409 (5th Cir. 2020)

(upholding dismissal of intentional infliction claim which was based on the same facts that

supported, inter alia, the plaintiffs Title VII claim).

V.

Conclusion

For the foregoing reasons, Defendant’s Motion for Summary Judgment, Doc. 52, should

be GRANTED, Plaintiffs cross-motion, Doc. 55, should be DENIED, and this case should be

DISMISSED WITH PREJUDICE.

SO RECOMMENDED on January 9, 2023.

RENEE HARRIS TOLIVER

UNKTED/STATES MAGISTRATE JUDGE

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by

law. Any party who objects to any part of this report and recommendation must file specific

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b). An objection must identify the finding or recommendation to which objection is

made, the basis for the • objection, and the place in the magistrate judge’s report and

recommendation the disputed determination is found. An objection that merely incorporates by

reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1417

(5th Cir. 1996), modified by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time

to file objections to 14 days).

13

Case 3:20-cv-00181-G-BK Document 73 Filed 01/26/23

Page 1 of 1 PagelD 2225

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

PHILE ANDRA WATSON,

)

)

Plaintiff,

)

)

VS.

)

CIVIL ACTION NO.

)

MEGAN J. BRENNAN, POSTMASTER

GENERAL UNITED STATES POSTAL

SERVICE,

Defendant.

)

)

3:20-CV-0181 -G-BK

)

)

)

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The United States Magistrate ludge made Findings, Conclusions and a

Recommendation in this case. The plaintiff filed objections, and the District Court has

made a,de novo review of those portions of the proposed Findings and Recommendation

to which objection was made. The objections are overruled, and the court ACCEPTS

the Findings, Conclusions and Recommendation of the United States Magistrate Judge.

SO ORDERED.

January 26, 2023.

A. JOE FISH

Senior United States District Judge

Case: 23-10131

Document: 62-1

Page: 1

Date Filed: 01/17/2024

Qttntfeb States! Court of Appeal#

for tfje jftftj) Circuit

No. 23-10131

Phile Andra Watson,

Plaintiff—Appellant,

versus

Megan J. Brennan, Postmaster General United States Postal Service,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CV-181

ON PETITION FOR REHEARING EN BANC

Before King, Haynes , and Graves , Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel

rehearing (5th Cir. R. 35 I.O.P.), the petition for panel rehearing is

DENIED. Because no member of the panel or judge in regular active

service requested that the court be polled on rehearing en banc (Fed. R.

App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is

DENIED.

Additional material

from this filing is

available in the

Clerk's Office.