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Burke v. Brennan

United States District Court, N.D. Florida, Panama City Division

February 6, 2017

STACY BURKE, Plaintiff,
v.
MEGAN J. BRENNAN, in her official capacity as POSTMASTER GENERAL, Defendant.

          ORDER FOR ENTRY OF JUDGMENT

          Robert L. Hinkle United States District Judge

         This is 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.

         I

         The 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.

         Ms. 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.

         At 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.

         The 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.

         Ms. Burke also asserted in her complaint and amended complaint that she suffered retaliation for asserting she was the victim of racial discrimination.

         II

         When, 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).

         III

         When a 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 Cir. 2003).

         This 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 claim.

         To be 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 American Indian.

         Ms. 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.

         A prima 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).

         Ms. 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).

         Ms. 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.

         IV

         A Ms. 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.

         The 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 ...


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