Rodolo Perez v. Megan Brennan

CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 26, 2019
Docket18-40520
StatusUnpublished

This text of Rodolo Perez v. Megan Brennan (Rodolo Perez v. Megan Brennan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodolo Perez v. Megan Brennan, (5th Cir. 2019).

Opinion

Case: 18-40520 Document: 00514888841 Page: 1 Date Filed: 03/26/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 18-40520 FILED March 26, 2019 Lyle W. Cayce RODOLFO PEREZ, Clerk

Plaintiff - Appellant

v.

MEGAN J. BRENNAN, Postmaster General of the United States, United States Postal Services,

Defendant - Appellee

Appeal from the United States District Court for the Southern District of Texas USDC No. 1:17-CV-43

Before CLEMENT, OWEN, and HO, Circuit Judges. PER CURIAM:* Rodolfo Perez was a letter carrier for the United States Postal Service (USPS) who sued for racial discrimination, retaliation, and hostile work environment. The district court denied all of Perez’s claims. Perez appeals, and we affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 18-40520 Document: 00514888841 Page: 2 Date Filed: 03/26/2019

No. 18-40520 FACTS AND PROCEEDINGS Perez, who is Hispanic and of Mexican-American heritage, worked for the USPS at the Brownsville Post Office. In 2007, a new postmaster arrived and, according to Perez, called Hispanic employees “lazy.” On December 26, 2012, Perez’s supervisor accused him of smelling of alcohol and ordered him to go home. On January 9, 2013, Perez gave written notice that he intended to retire effective February 1, 2013. Perez stopped coming to work on January 13, 2013. On January 22, 2013, Perez was issued a letter of warning admonishing him for unacceptable attendance. That same day, Perez’s supervisor and union steward agreed to “hold off on all pending discipline.” On January 24, Perez was issued a “Notice of Suspension” for his alleged on-duty impairment. The USPS later agreed to expunge the notice. In March 2013, Perez filed an equal employment opportunity complaint with the USPS, alleging racial discrimination, retaliation, and a hostile work environment. Perez received an acceptance letter, notifying him that his claims of discrimination and retaliation were accepted for investigation, but dismissing his hostile work environment claim. The letter informed Perez that if he disagreed with the defined accepted issues, he could respond in writing within seven days. He did not. The investigation resulted in a denial of Perez’s claims, and he requested a hearing before an administrative judge (AJ) at the Equal Employment Opportunity Commission (EEOC). The AJ issued a summary judgment decision against Perez on his discrimination and retaliation claims, noting that claims of a hostile work environment were not before her. Perez appealed that decision, which was upheld by the EEOC. The EEOC also stated that it did not have jurisdiction to address Perez’s hostile work environment claim because he had not responded to the acceptance letter. 2 Case: 18-40520 Document: 00514888841 Page: 3 Date Filed: 03/26/2019

No. 18-40520 Perez subsequently filed suit in federal court, alleging racial discrimination, retaliation, and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964. The district court dismissed Perez’s discrimination claim because he had not plausibly stated a claim. The court dismissed Perez’s retaliation claim premised on the letter of warning because the letter was not an adverse employment action, but allowed the claim based on the suspension notice to proceed. The court also dismissed Perez’s hostile work environment claim for lack of subject matter jurisdiction, or alternatively for failure to state a claim, because he had not exhausted his administrative remedies. The court later denied the remaining retaliation claim on summary judgment, holding that the suspension notice was not an adverse employment action because Perez had stopped working and retired before receiving it. The court alternatively held that Perez had not shown a genuine fact issue as to whether the USPS’s legitimate articulated reason for the notice—Perez’s on- duty impairment—was pretextual. The court also dismissed as moot other pending motions, including Perez’s motion to amend his complaint, filed after the court’s ruling on the USPS’s motion to dismiss. Perez timely appealed the district court’s rulings. DISCUSSION I. Motion to Dismiss A district court’s order on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018). A plaintiff “must ‘plead enough facts to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We may affirm a 12(b)(6) dismissal on any basis supported by the record. Ferrer v. Chevron Corp., 484 F.3d 776, 780–81 (5th Cir. 2007).

3 Case: 18-40520 Document: 00514888841 Page: 4 Date Filed: 03/26/2019

No. 18-40520 A. Discrimination claim The district court held that Perez did not plead sufficient facts to state a plausible discrimination claim. Perez’s only allegation with respect to this claim is that the postmaster called Hispanic and Mexican-American employees “lazy,” without specifying when this occurred or how often. The “ultimate question” in a Title VII discrimination action is “whether a defendant took [an] adverse employment action against a plaintiff because of [his] protected status.” Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 576 (5th Cir. 2004). Perez’s lone allegation is insufficient to state a claim of discrimination. See Boyd v. State Farm Ins. Cos., 158 F.3d 326, 329 (5th Cir. 1998) (“The mere utterance of a racial epithet is not indicia of discrimination under Title VII.”). The court correctly dismissed Perez’s discrimination claim. B. Letter-of-warning retaliation claim Perez argues the district court erroneously used the “ultimate employment decision” standard in deciding this claim, which was rejected by the Supreme Court in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). To state a Title VII retaliation claim, “a plaintiff must allege 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.” Leal v. McHugh, 731 F.3d 405, 416–17 (5th Cir. 2013) (quotation omitted). An adverse employment action is one that a “reasonable employee would have found . . . materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68 (quotations omitted). The district court used the correct standard in dismissing Perez’s letter- of-warning retaliation claim. The court held that a reasonable employee would 4 Case: 18-40520 Document: 00514888841 Page: 5 Date Filed: 03/26/2019

No.

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Rodolo Perez v. Megan Brennan, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodolo-perez-v-megan-brennan-ca5-2019.