United States District Court, N.D. Florida, Panama City Division
ORDER FOR ENTRY OF JUDGMENT
L. Hinkle United States District Judge
a union grievance masquerading as a Title VII case. At a jury
trial, after the plaintiff rested, the defendant's motion
for judgment as a matter of law was granted. This order
confirms the ruling and directs the clerk to enter judgment.
plaintiff Stacy Burke was and still is an employee of the
United States Postal Service in Panama City, Florida. The
defendant is the Postmaster General- the proper defendant in
a postal employee's Title VII case.
Burke asserted in her complaint that she suffered
discrimination because she is white. In her amended complaint
she changed tack, asserting she suffered discrimination
because she is “Native American Indian.” Am.
Compl., ECF No. 20 at 2. This order uses the shorter phrase
“American Indian.” American Indian is of course a
protected characteristic under Title VII. This order refers
to the characteristic as a race.
trial Ms. Burke said she never intended to claim
discrimination on the ground that she is white. She said the
complaint's contrary assertion was simply a mistake. She
attributed the mistake to her attorney. The mistake was
perhaps understandable because a person observing Ms. Burke
would have no reason to believe her race is anything other
than white. Discrimination based on race is of course
prohibited regardless of a person's appearance. But a
supervisor cannot discriminate against a person based on a
characteristic of which the supervisor is unaware.
attorney's mistake was perhaps understandable for another
reason as well. Any factual account Ms. Burke gave the
attorney of events at the Postal Service could not have
included any reference to being American Indian. Even now,
Ms. Burke has not suggested that anyone at the Postal Service
ever mentioned her race or did or said anything suggesting
bias against American Indians.
Burke also asserted in her complaint and amended complaint
that she suffered retaliation for asserting she was the
victim of racial discrimination.
as here, an employee relies on circumstantial evidence in
support of a Title VII claim, the employee may proceed under
the familiar burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and later cases. Under that framework, an employee
first must present a prima facie case. The employer then must
proffer a legitimate, nondiscriminatory, nonretaliatory
reason for its decision. The employee then must show that the
proffered reason was not the real reason for the decision and
that instead a reason was discrimination or retaliation.
Alternatively, the employee may present other evidence from
which a reasonable factfinder could infer prohibited
discrimination or retaliation. See, e.g.,
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328
(11th Cir. 2011).
plaintiff's discrimination claim addresses discipline
short of termination, a prima facie case ordinarily consists
of a showing that (1) the plaintiff is a member of a
protected class, (2) the plaintiff was qualified for the job,
(3) the plaintiff suffered an adverse employment action, and
(4) the plaintiff was treated less favorably than a similarly
situated person outside the protected class. See,
e.g., Maynard v. Bd. of Regents of Div. of Univ.
of Fla. Dep't of Educ., 342 F.3d 1281, 1289 (11th
formulation assumes, though, that the decision maker knew-or
that there is at least evidence that would support a finding
that the decision maker knew-that the plaintiff is a member
of the protected class. In almost every case, the assumption
is correct. Here, though, the assumption is incorrect.
Nothing in this record would support a finding that at the
times at issue, anyone involved in the disciplinary process
knew or had reason to believe that Ms. Burke was American
Indian. This, without more, is fatal to Ms. Burke's race
sure, Ms. Burke testified that she told a supervisor on one
occasion that she was American Indian. But Ms. Burke could
not remember when this occurred. The record does not indicate
whether the conversation occurred before or after the
disciplinary actions at issue. The record gives no reason to
believe any other Postal Service employee knew Ms. Burke was
Burke has also failed to meet the fourth element of a prima
facie case. She challenges discipline that was proposed or
carried out for three express-mail errors and for leaving
work without her supervisor's approval. The record
includes no evidence that any other employee engaged in
sufficiently similar conduct without being disciplined.
facie case of retaliation consists of a showing that (1) the
plaintiff engaged in statutorily protected activity, (2) the
plaintiff suffered an adverse employment action, and (3)
there is a causal connection between protected activity and
the adverse action. See, e.g., Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
Burke has not established a prima facie case of retaliation
because she has not shown a causal connection between
protected activity and the discipline at issue, even under
the circuit's liberal construction of that concept.
See, e.g., Gupta v. Fla. Bd. of Regents,
212 F.3d 571, 590 (11th Cir. 2000) (stating that causation in
this context means only that the protected activity and
adverse action were not wholly unrelated).
Burke's race and retaliation claims fail for another
reason as well: the Postal Service has shown a legitimate,
nondiscriminatory, nonretaliatory reason for each of the
three challenged disciplinary actions. As it turns out, some
of the information on which the Postal Service relied was
incorrect, but an error unrelated to race or retaliation does
not establish a Title VII claim. See, e.g., Nix
v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187
(11th Cir.1984) (“The employer may fire an employee for
a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not
for a discriminatory reason.”). This record would not
support a finding that the proffered reasons for Ms.
Burke's discipline-even if erroneous-were a pretext
for racial discrimination or for retaliation for
activity protected under Title VII.
Burke was subjected to repeated disciplinary actions. The
first was a letter of warning on April 25, 2013, later
reduced to an official discussion, for a missed delivery of
express mail. Joint Ex. 1; Pl. Ex. 127c. Ms. Burke admits the
charge was true. At the time of the charge, she had never
claimed she was the victim of discrimination of any kind. Ms.
Burke's assertion that her running dispute with
management started with her much later complaint of racial
discrimination is incorrect.
next disciplinary action was a letter of warning for failing
to work in a safe manner, resulting in an injury, on August
27, 2013. Joint Ex. 2. Ms. Burke did not challenge the letter
of warning but says the reason is that she did not receive
it. At the time of this discipline, Ms. Burke had never
claimed she was the victim of discrimination of any kind.
This again shows that Ms. Burke's ...