Shelia K. Varnedoe v. Postmaster General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 4, 2022
• Docket: 21-11186
• Status: Unpublished

Opinion

USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 1 of 8

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-11186 Non-Argument Calendar ____________________

SHELIA K. VARNEDOE, Plaintiff-Appellant, versus POSTMASTER GENERAL,

Defendant-Appellee,

DENISE HOLGUIN, Postmaster, Savannah GA, et. al.,

Defendants. USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 2 of 8

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Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:18-cv-00067-WTM-CLR ____________________

Before JORDAN, NEWSOM, and GRANT, Circuit Judges. PER CURIAM: Shelia Varnedoe, proceeding pro se, appeals the district court’s entry of summary judgment in favor of the Postmaster General on her employment retaliation claim, in which she alleged that she was given an unfavorable job assignment in retaliation for filing a discrimination complaint with the EEOC. After reviewing the record and the parties’ briefs, we conclude that Varnedoe failed to present sufficient evidence that her protected activity was a fac- tor in her job reassignment to create a genuine issue of material fact for trial. We therefore affirm. I. Varnedoe worked for the United States Postal Service for more than 26 years, initially as a clerk and then, beginning in 2011, as a full-time mail carrier in Savannah, Georgia. Two days after Christmas in 2012, Varnedoe was assaulted while delivering mail. As a result of the assault, she developed Post-Traumatic Stress Dis- order and was medically restricted from working as a mail carrier. USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 3 of 8

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The Postal Service accommodated Varnedoe’s restrictions by assigning her to a modified clerk position in the Savannah office, but despite being cleared to return to work full time, she was only given a few hours of work a day. Varnedoe objected to the part- time work assignment, which she believed was discriminatory based on her sex (female) and race (African American). She filed an informal complaint with the Equal Employment Opportunity Commission in September 2013, alleging that Caucasian males who were injured on the job as mail carriers and returned to work with medical restrictions were given full-time work. Varnedoe and the Postal Service resolved her EEOC com- plaint by agreement. According to Varnedoe, she agreed to with- draw her EEOC complaint in exchange for a permanent full-time work assignment as a clerk in the Hinesville, Georgia post office. But although the Postal Service assigned Varnedoe to the Hines- ville office and she withdrew her complaint as agreed, the Postal Service later stated that the Hinesville assignment had only been temporary. Less than a year after assigning Varnedoe to the job in Hinesville, the Postal Service reassigned her to a position in States- boro, Georgia. The position in the Statesboro office was much less favorable than the Hinesville job, from Varnedoe’s perspective, be- cause it was much further from her home (about a 90-minute drive each way), had split days off (Wednesday and Sunday), and incor- porated a two-hour (unpaid) lunch period that resulted in an ex- tended working day. USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 4 of 8

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Convinced that her work reassignment was in retaliation for her EEOC sex- and race-discrimination charge, Varnedoe initiated a second EEOC charge in March 2014, and eventually filed this law- suit against the Postmaster General alleging employment retalia- tion in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. The district court granted summary judgment for the Postmaster General, finding that Varnedoe failed to present any evidence that her 2013 EEOC complaint caused her work reas- signment. Varnedoe now appeals. II. We review the district court’s grant of summary judgment de novo, construing the facts and drawing all reasonable inferences in favor of the nonmoving party. Jones v. UPS Ground Freight, 683 F.3d 1283, 1291–92 (11th Cir. 2012). Summary judgment is appro- priate when the record evidence shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When the nonmoving party has the burden of proof at trial, the moving party is not required to support its summary judgment motion with evidence; it may meet its initial burden by pointing out to the district court that the nonmoving party lacks evidence supporting her case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving party, who must “go beyond the pleadings and by her own affidavits, or by the ‘dep- ositions, answers to interrogatories, and admissions on file,’ desig- nate ‘specific facts showing that there is a genuine issue for trial.’” USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 5 of 8

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Id. at 324 (quoting Fed. R. Civ. P. 56). A “genuine issue for trial” exists only where the nonmoving party presents sufficient evidence for a jury to return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Id. at 249–50 (citations omitted). To determine which facts are “material” for purposes of a summary judgment motion, we refer to the substantive law under- lying the plaintiff’s complaint. Id. at 248. Varnedoe’s complaint alleged that the Postal Service retaliated against her for submitting an EEOC complaint, in violation of Title VII of the Civil Rights Act of 1964. Title VII provides, in part, that personnel actions affecting federal employees “shall be made free from any discrimination based on” race, color, or sex. 42 U.S.C. § 2000e-16(a). This lan- guage prohibits both discriminatory employment actions and retal- iation for complaining about discrimination; “retaliation for com- plaining about prohibited forms of discrimination is itself ‘discrim- ination’ within the meaning of § 2000e-16(a).” Babb v. Sec’y, Dep’t of Veterans Affairs, 992 F.3d 1193, 1203 (11th Cir. 2021). To succeed on a Title VII retaliation claim, an employee must show that (1) she engaged in protected activity (by, for exam- ple, initiating an EEOC complaint); (2) she suffered an adverse ac- tion; and (3) a causal link exists between the protected activity and the adverse action. Taylor v. Runyon, 175 F.3d 861, 868 (11th Cir. 1999). Varnedoe unquestionably engaged in protected activity by initiating an EEOC complaint alleging discrimination based on race USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 6 of 8

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and sex. See id. at 870. And we will assume for purposes of this appeal that a work reassignment that resulted in a longer working day and a 180-mile round-trip commute with no corresponding in- crease in pay “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” and therefore satisfies the requirement for an adverse action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citation and quo- tation marks omitted); see Babb, 992 F.3d at 1208 (concluding that the Burlington standard applies in federal-sector retaliation cases). 1 But Varnedoe failed to submit any evidence whatsoever establish- ing a causal link between her EEOC complaint and her reassign- ment. In federal-sector cases, of course, the employee is not re- quired to show that her protected activity was the but-for cause of the adverse action; it is sufficient to show that her protected activity played a role in the adverse action. Babb, 992 F.3d at 1199, 1205. Moreover, if the employee makes this showing, the employer can- not escape liability by presenting evidence that it also had nondis- criminatory reasons for its action. Id. at 1204–05. That is because “even when there are non-pretextual reasons for an adverse

1 Contrary to the Postmaster General’s argument, Varnedoe was not required to show a material change in the terms or conditions of her employment to satisfy the “adverse action” element of her retaliation claim. As the Supreme Court explained more than 15 years ago, Title VII’s protection against retalia- tion “is not limited to discriminatory actions that affect the terms and condi- tions of employment.” Burlington, 548 U.S. at 64; see Babb, 992 F.3d at 1208. USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 7 of 8

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employment decision—as the government says there are here— the presence of those reasons doesn’t cancel out the presence, and the taint, of discriminatory considerations.” Id. at 1204. Here, however, Varnedoe failed to present evidence that her protected activity played any role in her work reassignment. Her argument in the district court and on appeal—to the extent that we can discern an argument related to causation—seems to be that no other legitimate reason for the reassignment existed. For example, she attacks her supervisor’s explanation that the Hinesville office did not have enough work meeting her medical restrictions by pointing to internal job postings that she contends undermine the supervisor’s testimony. Arguments in this vein, by which Varne- doe seeks to discredit the evidence presented by the Postal Service, are insufficient to raise a genuine issue for trial in the first instance. See Anderson, 477 U.S. at 256–57 (“discredited testimony is not [normally] considered a sufficient basis for drawing a contrary con- clusion” (alteration in the original)). “Instead, the plaintiff must present affirmative evidence in order to defeat a properly sup- ported motion for summary judgment.” Id. at 257. Varnedoe presented no affirmative evidence of any kind showing that her EEOC complaint was a factor in her work reas- signment—or even that the supervisors responsible for the reas- signment were aware of the EEOC complaint at the time of her reassignment. The district court therefore did not err in granting the Postal Service’s motion for summary judgment on her Title VII USCA11 Case: 21-11186 Date Filed: 01/04/2022 Page: 8 of 8

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retaliation claim. See id. at 256–57; see also Taylor, 175 F.3d at 868– 69. III. Rule 56 “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 essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Because Varnedoe failed to present evidence from which a jury could find a causal link between her protected activity and the adverse employ- ment action—an essential element of her retaliation claim—we AFFIRM the district court’s entry of summary judgment in favor of the Postmaster General. AFFIRMED.