Employment – Discrimination – Jurisdiction – USPS

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Where the plaintiff former employee alleged that the Postal Service engaged in race and gender discrimination in violation of Title VII, the defendant’s motion to dismiss for lack of subject-matter jurisdiction must be denied, but its motion for summary judgment should be granted on both claims, as the plaintiff failed to put forth sufficient facts for ‘a reasonable fact finder to infer that the employer’s decision was motivated by racial or gender animus.

“Defendant contends that the complaint should be dismissed for lack of subject-matter jurisdiction because plaintiff’s case is a collateral attack on the [Department of Labor’s Office of Workers Compensation Program (‘OWCP’)] decision concerning her [Federal Employees’ Compensation Act (‘FECA’)] benefits. FECA provides that ‘[t]he United States shall pay compensation … for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty.’ … OWCP’s decisions in granting or denying FECA benefits are ‘not subject to review . . . by a court by mandamus or otherwise.’ …

“In support, defendant relies heavily on Stone v. Chao, 284 F. Supp. 2d 241 (D. Mass. 2003), where another judge in this district found that the plaintiff’s Rehabilitation Act and constitutional claims were ‘impermissible backdoor attempts’ to challenge an OWCP decision. … However, in Stone, the plaintiff was substantively challenging the termination of his FECA benefits. … By contrast, the complaint in this suit stated a claim for sex and race discrimination in violation of Title VII stemming from conduct unrelated to the OWCP decision. In addition, plaintiff was in fact awarded some FECA benefits; she received $4,507.18 in compensation for the period between October 8 and December 29, 2010. … In short, the complaint is not a collateral attack on a FECA benefits decision, and the motion to dismiss for lack of subject-matter jurisdiction will be denied. …

“There is no dispute that plaintiff is a member of at least two protected classes, that she was dismissed, and that the position was filled by others. Defendant contends, however, that plaintiff has not put forth any evidence that she has met the second prong of that test — that she adequately performed her job. In support, defendant notes that plaintiff worked an average of 31 hours per week in the four-month period preceding the October 8, 2010 accident, 9 hours below the 40-hour minimum expected of all [transitional employee letter carriers (TEs)]. … While working low hours is certainly evidence of failure to ‘adequately perform’ a job, the Court will assume, without deciding, that by itself working low hours is not enough to show inadequate performance. The Court will thus assume she has made a prima facie case of discrimination.

“Defendant has articulated three non-discriminatory reasons for deciding not to reappoint plaintiff to another one-year term. First, she worked low hours and was not a cost-effective employee, undermining the primary purpose of having TEs. … Second, she did not come into the office when instructed, and failed to notify her supervisors beforehand that she would not attend meetings. … Third, she did not voice any concern about injuries stemming from the October 8, 2010 accident until weeks afterwards, giving defendant reason to suspect that she had fabricated the injuries. …

“Here, plaintiff has provided no evidence whatsoever, direct or indirect, that racial animus was the motivating factor behind the decision not to rehire her. Therefore, defendant’s motion for summary judgment will be granted as to the race-based discrimination claim.

“Plaintiff has a marginally stronger argument for her sex-based discrimination claim. In her deposition, she testified that on November 2, 2010, [Christopher] Porfert told her that her ‘injuries were due to pregnancy.’ …

“Even assuming that Porfert made that statement, it was an ambiguous stray remark. That is not sufficient, standing alone, to show pretext. …

“In the absence of any other evidence, plaintiff has failed to put forth sufficient facts for ‘a reasonable fact finder to infer that the employer’s decision was motivated by [gender] animus.’ … Accordingly, defendant’s motion for summary judgment will be granted as to the sex-based discrimination claim.”

Young v. Brennan (Lawyers Weekly No. 02-247-18) (14 pages) (Saylor, J.) (Civil Action No. 16-12001-FDS) (May 9, 2018).

Click here for the full-text opinion.