UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) HOWARD T. TYSON, SR., ) ) Plaintiff, ) ) v. ) Civil Action No. 16-1678 (FYP) ) LOUIS DEJOY, Postmaster General, 1 ) ) Defendant. ) )
MEMORANDUM OPINION
Plaintiff Howard T. Tyson, Sr., is a former employee of the United States Postal Service
(“USPS”). He initiated this action, pro se and in forma pauperis, against the Postmaster General
of the USPS, alleging that the USPS discriminated against him based on his religion, in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. See ECF No. 26
(Second Amended Complaint), ¶¶ 1–2. He seeks monetary relief, including lost wages and
compensatory damages for emotional distress. 2 See id., ¶ 5. Currently before the Court is
USPS’s motion for summary judgment. See ECF No. 41. Upon review, the Court agrees with
USPS that most of the actions allegedly taken against Tyson were not materially adverse, and
1 Mr. DeJoy is automatically substituted as defendant for his predecessor, pursuant to Fed. R. Civ. P. 25(d). 2 Tyson also seeks punitive damages, see Sec. Am. Compl. at “Relief” ¶ 4. But Title VII allows only the award of compensatory damages against the federal government. See 42 U.S.C. § 1981a(b)(1) (“A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if [he] demonstrates that the respondent engaged in a discriminatory practice[.]”) (emphasis added); see also McAlister v. Potter, 733 F. Supp. 2d 134, 146 (D.D.C. 2010) (noting that Title VII “preclude[s] punitive damages against government agencies”). Tyson’s claim for punitive damages is therefore dismissed. Tyson also seeks attorney’s fees. See Sec. Am. Compl. at “Relief” ¶ 5. Generally, pro se litigants cannot recover attorney’s fees. See Lawrence v. Bowsher, 931 F.2d 1579, 1581 (D.C. Cir. 1991) (finding that pro se litigant was not entitled to attorney’s fees in discrimination suit). To the extent that he seeks fees arising from the representation of his prior counsel, Tyson has submitted no information to support such an award and that claim is also denied.
1 even where such actions may have been materially adverse, there is no evidence of
discriminatory animus on the part of USPS. As explained in more detail below, the motion for
summary judgment will be granted.
FACTUAL BACKGROUND
Tyson was employed by USPS from November 1992 until his retirement in September
2015. See ECF No. 41-7 (Declaration of Ronald A. Ramos), ¶¶ 4–10; ECF No. 46 (Plaintiff’s
Opposition) at 4. 3 In either late 2009 or early 2010, Tyson began working as a mail handler at
the Government Mails Facility (“GMF”) in Washington, D.C. See Ramos Decl., ¶¶ 5–6. At
GMF, Tyson’s first-level supervisor was Osha Davis, and his second-level supervisor was Cecil
Harriston, the GMF Plant Manager. See ECF No. 41-9 (Exhibits to the Declaration of Richard
G. Saliba), Ex. 9 (EEO Investigative Affidavit signed by Cecil Harriston) at 1–2; Pl. Opp. at 11.
Tyson asserts that Harriston harbored religious discriminatory animus against him. See Sec. Am.
Compl., ¶ 74–77. Harriston, who has since passed away, formally denied those allegations. See
Sec. Am. Compl., ¶ 66; ECF No. 49 (Defendant’s Reply) at 7 n.5; USPS Ex. 1 (Information for
Pre-EEO Complaint) at 3; USPS Ex. 9.
Tyson alleges that when he played gospel music at work, Harriston discriminated against
him. See Sec. Am. Compl. ¶¶ 6–7, 13; ECF No. 46-2 (Plaintiff’s Opposition Exhibits), at 9.
According to Tyson, Harriston “told [Tyson] to turn down” his music on June 9, 2010. See Sec.
Am. Compl., ¶ 6, 13, 15; USPS Ex. 2 (EEO Complaint of Discrimination). Tyson’s co-worker,
Sharon D. Nelson stated in a declaration that she listened to gospel music with Tyson, and that
Harriston removed their radio because they listened to Christian music. See Pl. Opp. Exs. at 22.
Nelson also noted that other employees listened to secular music with no incident. See id.
3 Hereinafter, reference to any page numbers from Tyson’s pro se filings refer to those that the Court’s electronic case filing system automatically assigns.
2 Another co-worker, Chris Tate, stated in another declaration that he and others had no issues
playing secular music on the job, and that Harriston “bothered Tyson.” See id. at 9. 4
Tyson identified with the Christian denominations of Pentecostal and Holiness. See
USPS Ex. D at 52–55. Harriston testified that he was unaware of Tyson’s religious affiliations,
and that Harriston asked Tyson to turn the music down because it was too loud. Id. at 56–57;
USPS Ex. 9 at 4. At one point, Tyson attempted to “anoint” Harriston with holy oil because he
“wanted to see [Harriston] blessed.” See USPS Ex. D at 41. According to Tyson, Harriston
responded by saying “[d]on’t come at me with that stuff.” Id. 5
On March 25, 2011, Tyson received a letter from Gerald A. Roane, who was then the
Postmaster of Washington, D.C., stating that Tyson’s job would “become excess to the needs” of
his section at GMF, and that he would be reassigned to a different position, effective April 2,
2011. See USPS Ex. C (Mar. 25, 2011 Roane Letter); see also ECF No. 41-6 (Declaration of
Gerald A. Roane), ¶ 1. The letter advised Tyson that he would have “retreat rights,” which
would entitle him to be rehired at GMF if a vacancy opened at that facility. 6 See USPS Ex. C.
USPS avers that, during this period, mail handlers were being reassigned from GMF to other
facilities in the region due to declining mail volume. See Roane Decl., ¶¶ 2–6; ECF No. 41-5
(Declaration of Christopher B. Cole 7), ¶ 6.
4 Tyson also alleges that Harriston breached agency and/or National Postal Mail Handlers Union (“Union”) protocol by confronting him about the music, asserting that only his immediate supervisor, Davis, was authorized to directly address him regarding this issue. See Sec. Am. Compl., ¶¶ 9–12; ECF No. 41-4 (USPS Exhibits), Ex. D (Pl. Deposition Excerpts) at 42, 44. Because Tyson did not feel obligated to take orders from Harriston, Tyson admittedly felt comfortable openly disagreeing with Harriston about his directives. See ECF No. 41-1 (Defendant’s Memorandum) at 4; USPS Ex. D at 43–4. 5 Tyson acknowledged that he did not know what Harriston thought about Tyson’s Christian beliefs. See USPS Ex. D at 49, 53. 6 The later stated that Tyson would “retain the right to retreat to the section upon the occurrence of the first residual vacancy in the salary level after employees in the section have completed bidding. Failure to bid for the first available vacancy w[ould] end such retreat right.” See USPS Ex. C. 7 Christopher B. Cole is a former Supervisor of Customer Services in Washington D.C., from April 2006 to December 2011, and a current Program Training Administrator. See Cole Decl., ¶¶ 1-5.
3 On March 26, 2011, Tyson’s position at GMF was formally eliminated, and he was
reassigned to work as a mail handler at the Curseen-Morris Processing and Distribution Center
(“Curseen-Morris”), also in Washington, D.C. See Ramos Decl., ¶ 6. Although Tyson implies
that his reassignment was the result of his friction with Harriston, he does not allege that the
transfer was an adverse action. See Sec. Am. Compl., ¶ 15; ECF No. 57 (Plaintiff’s
Supplemental Memorandum) at 6. In October 2012, Tyson was promoted to the position of
Group Leader Mail Handler. See Ramos Decl., ¶ 7. 8
In May 2014, a mail handler position became vacant at GMF. See Cole Decl., ¶ 9. Cole
assumed that the vacancy would be filled and posted a job announcement for the position. Id., ¶
9; USPS Ex. 4 (GMF Job Posting). On May 19, 2014, Cole determined that Tyson had retreat
rights to fill the position, and he issued an Offer of Retreat Rights letter to Tyson for the vacant
position. See Cole Decl., ¶ 9; USPS Ex. 5 (May 19, 2014 Offer Letter). Tyson advised Cole that
he wished to exercise his retreat rights and accepted the job “on the spot.” See Cole Decl., ¶ 10;
Sec. Am. Compl., ¶ 27.
Approximately one week later, however, Cole learned at a management meeting that he
should not have issued the Offer of Retreat Rights to Tyson because USPS management had
chosen to “revert” or eliminate the vacant mail handler position, due to the decreasing need for
mail handlers at GMF and other facilities. See Cole Decl., ¶ 11. The decision to “revert” the
position was made by Roane, who attests that he was unaware of and made no decisions based
on Tyson’s religion. See USPS Ex. 10 (EEO Investigative Affidavit signed by Roane) at 4.
8 On October 17, 2012, Tyson was injured while transferring mail from a dolly. See USPS Ex. D at 19. Shortly thereafter, he filed a claim with the Department of Labor’s Office of Workers’ Compensation Programs for a traumatic injury, described as “a lumbar sprain, an aggravation of lumbar stenosis, and a displacement of a lumbar intervertebral disc without myelopathy.” See USPS Ex. E (Nov. 16, 2015 Dep’t of Labor Worker’s Compensation Decision) at 1. On December 27, 2013, Tyson returned to work as a Group Leader Mail Handler at Curseen-Morris and was assigned limited-duty work based on his needs request. See Ramos Decl., ¶ 9.
4 Because the position was eliminated, no one could exercise retreat rights for the position. 9 See
Cole Decl., ¶ 11.
On May 21, 2014, Tyson states that he was called into the office of Curseen-Morris
Senior Manager Yolanda Sanders, who informed him that the mail handler position at GMF had
been reverted and the offer of that position to Tyson was rescinded. See Sec. Am. Compl., ¶¶
28–29. She did not provide him with documentation but indicated that the Union would provide
him with a letter confirming the reversion. Id., ¶¶ 29–31; ECF No. 63 (Plaintiff’s Supplemental
Memorandum VI) at 2–3. Tyson contacted his Union representative, Lamar Grigsby, who stated
that he did not have such a letter. See Sec. Am. Compl., ¶ 32. Tyson then called the Union’s
main office and reached a “Mr. Dick.” Id., ¶ 33. Dick allegedly stated that if Grigsby did not
have a letter of reversion, then Tyson should report to GMF to fill the mail handler position. Id.,
¶ 36.
On May 29, 2014, Cole sent a letter to Grigsby, advising him that the vacant GMF
position had been eliminated. See Cole Decl., ¶ 12; USPS Ex. 6 (May 29, 2014 Letter). The
letter notes that “[t]he reason for this action is the change in mail volume and retail revenue
which has resulted in the need to identify staffing efficiencies and changes at the Government
Mails.” See USPS Ex. 6. 10
On June 4, 2014, Sanders provided Tyson with a letter confirming that the retreat position
was “rescinded due to Management rights to revert the position.” See USPS Ex. 7 (Jun. 4, 3014
9 Tyson also alleges that USPS failed to comply with the Union’s waiting period and notice requirements, which allow eligible existing USPS employees to “bid” on a vacant duty position during a ten-day holding period, but also provides that no “bids” should be posted if a retreat offer is made. See Sec. Am. Compl., ¶¶ 18–24. Tyson reads this provision to mean that he should have been preliminarily offered the position outright before it was inadvertently posted. See id. USPS, however, maintains that the position should not have existed in the first place. See Cole Decl., ¶ 11; USPS Ex. 10. 10 Although Tyson argues that he should have received a copy of the May 29, 2014, letter, it is unclear why he believes that he was entitled to receive a copy of a formal communication between USPS and the Union. See Pl. Opp. at 20; Pl. Supp. Mem. VI at 2.
5 Letter); Sec. Am. Compl., ¶ 39. The notification letter was signed by Cole 11 and sent under
cover of the typed signature of Postmaster Roane. See USPS Ex. 7. Roane avers that Cole had
full authority to independently send the document under Roane’s signature block. 12 See Roane
Decl., ¶ 8; Cole Decl., ¶ 13.
Tyson contends that he spoke with Roane, either in passing or by phone, approximately
four times in the first part of June, and at none of those times did Roane state that the position at
GMF was reverted. See Pl. Opp. at 7; Pl. Opp. Exs. at 8; Pl. Supp. Mem. VI at 3–4. According
to Tyson, on June 6, 2014, Roane said that he did not recall issuing the letter, had not rescinded
the position, and stated that if his signature was not on the letter, it was invalid. See USPS Ex. F
(Excerpts from Pl.’s Answers to Interrogatories) at 1. Tyson asserts that, at Roane’s request,
Tyson brought the letter to Roane’s office for review, leaving it with his secretary. See id.; Sec.
Am. Compl., ¶¶ 47–48. Tyson alleges that on June 13, 2014, Roane instructed him to report to
GMF to fill the retreat position. See USPS Ex. F at 1; Sec. Am. Compl., ¶ 49. Roane denies that
he ever instructed Tyson to report to GMF, and further denies that he interacted with Tyson more
than once. See USPS Ex. 9 at 2; USPS Ex. 10 at 2.
On June 16, 2014, at 11:30 a.m., Tyson clocked in at GMF and met with Harriston. See
USPS Ex. F at 1; Sec. Am. Compl., ¶ 50. Tyson alleges that Harriston was hostile to him in
front of others upon his arrival. See Sec. Am. Compl., ¶ 51. According to Tyson, Harriston
11 Cole also attests that, between June 4, 2014 and June 16, 2014, he encountered Tyson and personally informed him again that the vacant mail handler retreat position “was not going to be filled by anyone because management was eliminating the position[,]” and that no mail handlers would be transferred from Curseen-Morris to GMF because there was not enough work available. See Cole Decl., ¶ 14. 12 Tyson argues, without evidentiary basis, that Roane never offered his approval for this notification letter, and that it was, essentially, forged. See Pl. Supp. Mem. VI at 4. In support, he attaches USPS’s answers to his requests for admissions, claiming that therein, USPS “admitted that Gerald Roane was not the person who instructed Christopher Cole to draft the revert letter.” Id. He misinterprets this admissions response, however; the attached admission reads as a double-negative, attesting that Roane did, in fact, offer such approval. See id. at Ex. 1 (Response No. 14.)
6 initially informed him that there was no position for him at GMF. See id., ¶ 54. Tyson
responded that he was reporting to GMF under Roane’s instructions and that the reversion letter
was “in question.” See id., ¶ 55. Thereafter, Harriston instructed Tyson to report to a group
leader temporarily, for a limited-duty assignment. See USPS Ex. F at 1. Harriston did not have
authority to offer Tyson a permanent position at GMF, see id., and Harriston contends that he
was confused because he had no notice that Tyson would be reporting to GMF. See USPS Ex. 9
at 2. Harriston then contacted Roane, who stated that he had not instructed Tyson to report to
GMF. See id. In the meantime, Tyson worked at GMF for three hours. See USPS Ex. F at 1.;
Sec. Am. Compl., ¶¶ 59–60. Shortly thereafter, Harriston instructed Tyson to report back to
Curseen-Morris. See USPS Ex. F at 1; Sec. Am. Compl., ¶¶ 61–62. Tyson reported to Curseen-
Morris at 3:30 p.m. that same afternoon. See Sec. Am. Compl., ¶ 63.
On June 20, 2014, Tyson filed a pre-complaint with the Equal Employment Opportunity
Commission (“EEOC”) (Case No. lk-206-0049-14). Id., ¶ 64; USPS Ex. 1. On July 21, 2014,
Tyson filed a formal complaint with the EEOC, alleging that Harriston (1) discriminated against
him in 2011 by asking him to turn down his gospel music; and (2) allowed the vacant GMF
position to be posted “and said nothing about not needing help until [Harriston] was told that
[Tyson] was accepting [his] retreat rights.” See USPS Ex. 2 at 1. In other words, Tyson
contended that the GMF position was eliminated because Harriston did not want him to return to
GMF. See id. On April 21, 2016, the EEOC entered judgment in favor of USPS. See Def.
Mem. at 8. Tyson continued working as a mail handler at Curseen-Morris until his retirement
based on disability on September 8, 2015. See Ramos Decl., ¶ 10; Pl. Opp. at 1–2. The mail
handler position at GMF was never filled, and no mail handlers retreated to GMF in 2014. See
Cole Decl., ¶ 17; Reardon Decl., ¶ 3.
7 PROCEDURAL HISTORY
On October 24, 2016, USPS filed a preliminary motion to dismiss, ECF No. 9. Tyson,
proceeding pro se at the time, filed an opposition, ECF No. 13; but he also filed a first amended
complaint, ECF No. 14, rendering the pending motion to dismiss moot, see Dec. 22, 2016 Min.
Ord. On December 15, 2016, USPS filed another motion to dismiss and/or for summary
judgment, ECF No. 15, in response to the first amended complaint. On September 27, 2017, and
after considering briefing by all parties, the Court denied the motion, see Sept. 27, 2017 Mem.
Op. & Ord., ECF No. 24, finding that the allegations contained in Tyson’s amended complaint
were sufficient to state a plausible claim for discrimination, and that consideration of summary
judgment was premature, see id. Tyson filed a second amended complaint on February 8, 2018,
ECF No. 26.
After discovery closed on May 31, 2019, USPS filed its pending motion for summary
judgment and memorandum in support on June 28, 2019. In the motion, USPS argued that: (1)
the reversion of the GMF mail handler position did not constitute a materially adverse
employment action, and (2) in any event, USPS proffered legitimate and non-discriminatory
reasons for the reversion. See Def. Mem. at 12–18. In response, Tyson filed an opposition and
USPS filed a reply. Tyson then filed an “addendum” to his opposition, ECF No. 50 (Plaintiff’s
Addendum), and a “reply,” ECF No. 51 (Plaintiff’s Surreply). 13
On May 30, 2020, the Court entered an order directing both parties to submit
supplemental briefing on the motion for summary judgment. See ECF No. 54. The Court
13 Tyson did not seek leave to file the addendum, but he filed a motion for leave to file the reply, ECF No. 52. USPS declined to take a position regarding the two documents. See ECF No. 53, USPS Response. Given Tyson’s pro se status, the Court will grant Tyson leave to file these documents and has considered the contents of both filings.
8 ordered supplemental briefing on whether USPS is entitled to summary judgment with respect to
Plaintiff’s claims regarding: (1) the withholding of permission to play gospel music in the
workplace and the alleged scrutiny and monitoring of Plaintiff based on his religion; (2) his 2011
transfer to Curseen-Morris, and (3) retaliation. Id. at 2.
On June 30, 2020, USPS filed its supplemental memorandum, ECF No. 55 (USPS
Supplemental Memorandum), and Tyson filed his supplemental memorandum on August 30,
2020, ECF No. 57 (Plaintiff’s Supplemental Memorandum I). On October 8, 2020, Tyson filed,
without leave of Court, a second supplemental memorandum, ECF No. 58 (Plaintiff’s
Supplemental Memorandum II). He then filed a third supplemental brief, ECF No. 60
(Plaintiff’s Supplemental Memorandum III), on October 22, 2020; a fourth supplemental brief,
ECF No. 61 (Plaintiff’s Supplemental Memorandum IV), on November 10, 2020; a fifth
supplemental brief on November 23, 2020; a sixth supplemental brief on November 25, 2020;
and a seventh and final supplemental brief on December 24, 2020. 14
In his supplemental briefing, Tyson presents arguments in support of his claim of
religious discrimination based on Harriston’s restriction of Tyson’s playing of Christian music at
his workstation. See Pl. Supp. Mem. at 5–6. Without leave of Court, Tyson also includes
additional arguments in support of his discrimination claim based on the reversion of the GMF
14 Tyson raises several concerns regarding his former counsel in this supplemental briefing. See Pl. Supp. Mem. II at 1–5; Pl. Supp. Mem. III at 1–3. He suggests that counsel filed a “first amended complaint” instead of a second amended complaint, and that this “first amended complaint” was mistitled, untimely, and contained various other misnomers and spelling errors. See Pl. Supp. Mem. II at 1–5; Pl. Supp. Mem. III at 1–3; Pl. Supp. Mem. IV at 1–2. The Court notes that, despite Tyson’s belief, counsel filed a timely second amended complaint, and the second amended complaint does not contain the misnomers, misspellings, or other errors, that are noted by Tyson. See generally Sec. Am. Compl. Tyson also states that he did not approve the contents of this pleading, including an additional claim for retaliation. See Pl. Supp. Mem. III at 3. The Court notes that the second amended complaint does not contain a formal claim for retaliation, though the word “retaliation” is mentioned. See Sec. Am. Compl. ¶¶ 74, 83. He also alleges that the pleading (1) failed to include a claim of religious discrimination, and (2) omitted the facts regarding the reversion. See Pl. Supp. Mem. V at 1; id. at Ex. 1; Pl. Supp. Mem. VI at 1; id. at Ex. 1. The Court notes that the pleading does in fact contain such information, as well as an explicit cause of action for religious discrimination. See generally Sec. Am. Compl.
9 mail handler position. See Pl. Supp. Mem. V at 1–3; Pl. Supp. Mem. VI at 1–4; id. at Ex. 1; Pl.
Supp. Mem. VII at 1; id. at Ex. 1.
LEGAL STANDARD
I. Standard of Review – Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be
granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a); accord Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly
granted against a party who “after adequate time for discovery and upon motion . . . 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 Corp. v. Catrett, 477 U.S. 317,
322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable
inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true.
Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere
existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the
nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that
would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477
U.S. at 249–50 (citations omitted).
II. Discrimination under Title VII
Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment
Opportunity Act of 1972, prohibits status-based discrimination in federal and District of
10 Columbia workplaces. See 42 U.S.C. § 2006; see also Equal Employment Opportunity Act of
1972, Pub. L. 92-261, sec. 10, § 715, 86 Stat. 103, 111, codified as amended at 41 U.S.C. §
2000e-16 (extending Title VII to the federal government and the District of Columbia). It
prohibits a federal employer or the District of Columbia from making any personnel decisions
based on an employee's race, color, sex, religion, or nationality. See 42 U.S.C. § 2000e–16;
Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015). The “two essential elements of a
discrimination claim” under Title VII are “that (i) the plaintiff suffered an adverse employment
action (ii) because of the plaintiff’s race, color, religion, sex, [or] national origin.” Baloch v.
Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (collecting cases).
The first element, an “adverse employment action,” is an established legal term. See
generally, Douglas v. Donovan, 559 F.3d 549, 551–52 (D.C. Cir. 2009); Ginger v. Dist. of
Columbia, 527 F.3d 1340, 1343 (D.C. Cir. 2008). It means “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d
1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998)). An employee must “experience[] materially adverse consequences affecting the terms,
conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1131 (D.C. Cir. 2002); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)
(distinguishing between non-actionable “purely subjective injuries” and actionable “objectively
tangible harm”). An actionable adverse action “in most cases inflicts direct economic harm.”
Burlington Indus., 524 U.S. at 762.
If a plaintiff can summon direct evidence of discriminatory intent, such evidence will
11 “generally entitle plaintiff to a jury trial” and defeat a defendant's motion for summary judgment.
See Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (quoting Vatel
v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)). But if a plaintiff can only
adduce circumstantial evidence of discrimination, courts must then apply the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
To establish a prima facie case of discrimination under this framework, a plaintiff bears
the burden of showing that (1) she “is a member of a protected class;” (2) she “suffered an
adverse employment action;” and (3) “the unfavorable action gives rise to an inference of
discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (citation omitted). If a
plaintiff establishes a prima facie case, the burden then shifts to the employer “to articulate some
legitimate, nondiscriminatory reason” for its actions. McDonnell Douglas, 411 U.S. at 802.
While this framework generally requires a plaintiff to bear the initial burden of making
out a prima facie case of discrimination, the D.C. Circuit has clarified that courts “need not—and
should not—decide whether the plaintiff actually made out a prima facie case under McDonnell
Douglas,” where (1) “an employee has suffered an adverse employment action” and (2) “an
employer has asserted a legitimate, non-discriminatory reason for the decision.” Brady v. Office
of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). Thus, where an
employer asserts a legitimate, nondiscriminatory reason for an adverse employment action, “the
burden-shifting framework disappears, and a court reviewing summary judgment looks to
whether a reasonable jury could infer intentional discrimination . . . from all the evidence.”
Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).
To do so, at the summary judgment stage, courts may consider the following evidence:
(1) a plaintiff’s prima facie case; (2) any evidence plaintiff presents to rebut the employer's
12 explanations for its actions, and; (3) any additional “evidence of discrimination that may be
available to the plaintiff (such as independent evidence of discriminatory statements or attitudes
on the part of the employer).” Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012);
Carter, 387 F.3d at 878. A plaintiff’s own disagreement with, or disbelief of, the employer's
explanation cannot alone “satisfy the burden of showing that a reasonable jury could find that the
employer's asserted reason was not the actual reason and that the employer intentionally
discriminated against the plaintiff on a prohibited basis.” Burton v. District of Columbia, 153 F.
Supp. 3d 13, 58 (D.D.C. 2015).
To demonstrate that the employer's stated reasons were pretextual, a plaintiff may cite
“the employer's better treatment of similarly situated employees outside the plaintiff’s protected
group, its inconsistent or dishonest explanations, its deviation from established procedures or
criteria, or the employer's pattern of poor treatment of other employees in the same protected
group as the plaintiff[.]” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (citing
Brady, 520 F.3d at 495 & n. 3). If relying solely on evidence of pretext, however, a plaintiff
seeking to survive summary judgment must demonstrate that a “reasonable jury not only could
disbelieve the employer's reasons, but also could conclude that the employer acted, at least in
part, for a prohibited reason.” Id. at 1096. Thus, in considering such evidence, the D.C. Circuit
has emphasized that a court “does not sit as a super-personnel department that reexamines an
employer's business decisions and may not second-guess an employer's personnel decision
absent demonstrably discriminatory motive.” Wheeler v. Georgetown Univ. Hosp., 812 F.3d
1109, 1114 (D.C. Cir. 2016) (internal quotation marks and citations omitted).
ANALYSIS
I. Restrictions on Gospel Music
13 In his supplemental briefing, Tyson stresses that his religious discrimination claim is
solely predicated on Harriston’s demands that Tyson turn his gospel music down or off. See Pl.
Supp. Mem. at 5–6; Pl. Supp. Mem. II at 4. Tyson maintains that these actions constituted
disparate treatment because other employees who listened to secular music were not subjected to
similar restrictions. See id. USPS disagrees, contending that Tyson was never fully prevented
from listening to gospel music, but instead was asked on certain occasions to lower the volume
because it was too loud. See USPS Supp. Mem. at 5 (citing USPS Ex. 2; USPS Ex. D at 57; Sec.
Am. Compl., ¶ 6; USPS Ex. 9) (other citations omitted.)
Assuming, arguendo, that Tyson’s version of events is accurate, and drawing all
reasonable inferences in his favor, Harriston’s alleged behaviors “though annoying and
inconvenient, do not constitute materially adverse action[s].” Lewis v. District of Columbia, 885
F. Supp. 2d 421, 428 (D.D.C. 2012) (citation and quotation omitted); see also Burlington
Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (explaining that Title VII requires
material adversity because “it is important to separate significant from trivial harms”); Taylor v.
Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (holding that minor “inconveniences and alteration
of job responsibilities do not rise to the level of [an] adverse action”). Although Tyson was
unhappy about the allegedly unfair treatment, “not everything that makes an employee unhappy
is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (citation
omitted); Broderick v. Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006) (same).
The Court is not aware of any authority to support Tyson’s claim that a mere constraint
on his ability to play music of his preference in his work area constitutes an adverse employment
action. To the contrary, courts have held that “an employee’s complaints about his or her
workstation do not involve a significant change in employment status required to be an adverse
14 action under Title VII[.]” Coakley-Simelton v. Georgetown Univ., No. 18-cv-2014, 2020 WL
4569423, at *18 (D.D.C. Aug. 7, 2020) (citing Brodetski v. Duffey, 141 F. Supp. 2d 35, 45
(D.D.C. 2001)); see also Lester v. Nastios, 290 F. Supp. 2d 11, 27–30 (D.D.C. 2003) (concluding
that close supervision or being “watched” does not constitute an adverse employment action that
can support a Title VII claim). While the alleged restriction on his music likely felt unfair,
“[i]nconvenience and loss of enjoyment of life, while certainly meaningful to [Tyson], are not
cognizable under Title VII[.]” See Gunning v. Runyon, 3 F. Supp. 2d 1423, 1429 (S.D. Fla.
1998).
For these reasons, Tyson’s allegations of religious discrimination based on disparate
treatment, arising from restrictions placed on his ability to play religious music at his
workstation, cannot constitute an adverse action under Title VII, and USPS is therefore entitled
to summary judgment on that claim.
II. Reversion 15 of Position at GMF
Tyson claims that the rescission of his offer to fill the mail handler position at GMF was
discriminatory because Harriston, motivated by animus, somehow caused the position to be
eliminated after he learned that Tyson would be selected to fill it. See Pl. Opp. at 11; Pl. Surrp.
at 6; USPS Ex. D at 44. A discriminatory denial of a lateral transfer can be actionable under
Title VII, provided there exists an adverse impact on the employee’s potential for career
advancement. See Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). But “[a] court
second-guessing an employer's decision not to create a position in order to transfer an employee .
15 In his supplemental briefing, Tyson discusses the meaning of the word “revert,” implying that it should logically mean the “return” of a mail handler position at GMF to him. See Pl. Supp. Mem. VI. This interpretation lacks merit because the term “revert” is a term of art at USPS that is widely understood to mean “eliminate” and the elimination of the position in question was approved by several USPS supervisors. See Def. Mem. at 5–6; Cole Decl., ¶ 11; See USPS Ex. 10.
15 . . [can] threaten[] impermissible judicial micromanagement of business practices . . . allowing
any perceived workplace slight to be the subject of a Title VII action.” Morrison v. Mills, 928 F.
Supp. 2d 241, 247 (D.D.C. 2013) (citing Baloch, 550 F.3d at 1197) (internal quotation marks
omitted).
Even assuming, arguendo, that Tyson experienced a denial of transfer or a lateral
transfer, 16 and that USPS’s actions caused him materially adverse consequences, 17 USPS has
provided legitimate business reasons for its actions and there is no evidence of pretext or
discriminatory animus. USPS relies on evidence that the announcement of the mail handler
position at GMF was posted mistakenly and offered to Plaintiff in error. See Def. Mem. at 1–2,
12, 14, 16; Cole Decl., ¶ 11; Roane Decl., ¶ 8; USPS Ex. 9 at 2; USPS Ex. 10 at 2. USPS attests
that the position was eliminated and never filled because decreased mail volume “resulted in
insufficient work to justify [mail hander] positions” at some facilities, including GMF. See
Roane Decl., ¶¶ 2–6; Cole Decl., ¶¶ 11, 14, 17; Reardon Decl., ¶ 3; USPS Ex. 9 at 3. Tyson
disbelieves USPS’s representations because, he asserts, “employees junior to [him]” in another
building were transferred to GMF to “do work.” See USPS Ex. D at 31. Tyson offers no other
evidence to support that vague and conclusory statement, and such a statement alone is
insufficient to create a genuine dispute of a material fact.
16 USPS argues first that Tyson was not denied a lateral transfer to GMF because the vacancy posting was a simple mistake, evidenced by its swift rescission and the fact that it was never filled. See Cole Decl., ¶ 14; Def. Mem. at 12–14. USPS also disagrees with Tyson that his acceptance of this non-existent position and his presence and clock-in at GMF for approximately three hours provided him with status as a GMF employee such that his return to Curseen-Morris constituted a lateral transfer. See USPS Ex. F at 1–2. 17 As noted, a material adverse consequence consists of a considerable change in benefits, significantly different responsibilities, a lost promotion, or a termination. See Johnson v. Maddox, 230 F. Supp. 2d 1 (D.D.C. 2002). Tyson claims that he experienced a loss in benefits because a position at GMF would have resulted in “less stress, less harassment, having to deal with less people[,]” namely avoiding occasional friction with Curseen-Morris co-workers and working preferable shifts. See USPS Ex. D. at 78–80; USPS Ex. F at 2; Pl. Opp. at 16. Tyson also claims that he lost the potential for increased overtime pay at GMF. See Pl. Opp. at 1–2; ECF No. 46-1 (Plaintiff Declaration), at 56–57. Finally, he claims that he is entitled to out-of-schedule pay for the inconvenience of working at hours considerably less advantageous than those he would have worked at GMF. See Pl. Opp. at 2; Pl. Decl. at 13; Pl. Surrp. at 1, 7.
16 Tyson insists that the elimination of the vacant position was entirely personal and
motivated by Harriston’s animus against Tyson’s religious expression. See Pl. Opp. at 11; Pl.
Decl., ¶¶ 49–50, 53; Pl. Surrp. at 6; USPS Ex. D at 44. But although Tyson vaguely alleges that
Harriston “had a part” in composing the reversion letter sent by Cole and Roane, see Sec. Am.
Compl., ¶ 65; Pl. Decl., ¶ 52, he fails to explain what this “part” was and offers no evidence of
Harriston’s actual involvement. See Pl. Opp. at 6, 8, 11–12, 15, 17; Pl. Opp. Add. at 3; Pl. Surrp.
at 4. Cole, Roane, and Harriston all averred in sworn statements that Harriston did not
participate in the reversion decision. See Cole Decl., ¶ 15; Roane Decl., ¶ 9; USPS Ex. 9 at 2.
Beyond Tyson’s own conjecture, he has failed to offer any admissible evidence controverting
those sworn statements. Absent any connection between Harriston and the decision to revert the
GMF mail handler position, there is no evidence that the reversion had anything to do with
Tyson’s religion.
At bottom, Tyson’s arguments are supported only by his own unsubstantiated beliefs, 18
which are insufficient grounds for a reasonable juror to conclude that USPS’s decision-making
was “was so far off base as to suggest that [it] acted with a [discriminatory] motive.” Burley v.
Nat'l Passenger Rail Corp., 801 F.3d 290, 299 (D.C. Cir. 2015). A plaintiff's allegations that are
“generalized, conclusory and uncorroborated by any evidence other than the plaintiff’s own
deposition testimony” are “insufficient to establish a triable issue of fact”— at least where the
nature of the purported factual dispute reasonably suggests that corroborating evidence should be
available. See Akridge v. Gallaudet Univ., 729 F. Supp. 2d 172, 183 (D.D.C. 2010); see also
Gen. Elec. Co. v. Jackson, 595 F. Supp. 2d 8, 36 (D.D.C. 2009) (observing that when a
18 Tyson also attaches an unsworn and unauthenticated document, which contains statements of unknown origin and whose author is unidentified. See Pl. Opp. Exs. at 27. The document alleges that USPS could not revert a position after it was posted or offered. See id. No other argument, authority, or information is provided to support of this contention, and even if this were true, it does not create a dispute regarding discriminatory animus.
17 “declaration is self-serving and uncorroborated” it is “of little value at the summary judgment
stage”). 19
USPS admits that it erred, both in posting the position and in failing to communicate
effectively with Tyson and the Union. Those administrative failures fueled Tyson’s suspicions,
and caused him frustration and disappointment. But the Court’s careful review of the record
reveals no evidence to suggest illicit coordination among USPS employees and management to
deny Tyson his earned right of first refusal, and certainly not based on his religion. Although
Tyson provides a detailed breakdown of his alleged communications with Roane, Grigsby, and
Sanders, even the most generous interpretation of those events fails to raise a material dispute
about whether the position at GMF was reverted for nefarious reasons. Thus, Tyson fails to cast
any doubt on the legitimate business reason offered by USPS, and USPS is entitled to summary
judgment on Tyson’s claim based on the reversion of the GMS mail handler position.
III. Constructive Discharge
Tyson’s claim for “indirect” constructive discharge also must fail. See Sec. Am. Compl.,
¶ 83. He alleges that the reversion of the position at GMF caused him to continue working at
Curseen-Morris, where he suffered emotional distress and loss of enjoyment due to his fear of
being injured on the job. See id.; USPS Ex. D at 79; USPS Ex. F. at 3–4. He testified that he
sought psychological treatment for three years and was forced to retire early in September 2015
19 The Court is also unpersuaded by Tyson’s reliance on his own personal overtime records to rebut USPS’s assertions about declining mail volume and staffing needs. First, Tyson’s paystubs are, in part, from the time that Tyson worked at Curseen-Morris, not GMF. Second, and more importantly, the Court agrees with USPS that “the payroll records of a single employee, or even a small subset of employees, are not sufficient to assess” USPS’s mail levels or its complex employment needs or lack thereof. See Def. Reply at 5. Nor may the Court consider an unauthenticated email, purportedly between Grigsby and his former attorney. See Pl. Opp. Exs. at 5. In the email, Grigsby attempts to recall a conversation with Harriston, where the latter explained to him that Harriston “had the job reverted because Tyson could not perform all of the duties that c[a]me with the job.” See id. This document plainly contains hearsay and is inadmissible. See Bortell v. Eli Lilly and Co., 406 F. Supp. 2d 1, 11 (D.D.C. 2005). In any event, the email, on its face, does not support Tyson’s theory of religious discrimination.
18 due to this stress. See USPS Ex. D at 73; USPS Ex. F at 4. According to Tyson, if he had
worked at GMF instead, he would not have retired early and the GMF position “would have
extended [his] tenure through 2023.” See Pl. Surrp. at 6.
To prevail on a constructive discharge claim, Tyson would need to convince a jury that
(1) USPS discriminated against him; (2) USPS deliberately made working conditions intolerable;
and (3) aggravating factors justified his conclusion that he had no option but to end his
employment. See Clark v. Marsh, 665 F.2d 1168, 1173–74 (D.C. Cir. 1981). “The test for
constructive discharge is an objective one: whether a reasonable person in the employee's
position would have felt compelled to resign under the circumstances.” Aliotta v. Blair, 614 F.3d
556, 566 (D.C. Cir. 2010). “[C]ourts have agreed that the standard for constructive discharge is
quite high.” Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006) (Rogers, J., concurring).
The Court’s ruling, supra, that Tyson has failed to offer any evidence of USPS’s
discriminatory intent is fatal to Tyson’s constructive discharge claim. The Court is “left without
any discriminatory acts upon which [Tyson] could rest his constructive discharge claim[s].”
Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C. Cir. 1997). Thus, USPS is
entitled to summary judgment with respect to that claim as well.
CONCLUSION
For the foregoing reasons, the Court will grant USPS’s motion for summary judgment,
and will enter judgment in favor of Defendant. A separate Order will issue this day.
Date: November 19, 2021
_______________________________ Florence Y. Pan United States District Judge