United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT
matter comes before the Court upon Defendant Megan J.
Brennan, Postmaster, United States Postal Service's
Motion for Summary Judgment (Doc. 62), Plaintiffs response
(Doc. 72), the Stipulation of Undisputed Facts (Doc. 73), and
the parties' Stipulation (Doc. 85). The Court,
having considered the parties' written submissions,
declarations, depositions and attachments, and being fully
advised in the premises, will now grant the Defendant's
Motion for Summary Judgment.
BACKGROUND AND STATEMENT OF FACTS
David Ng alleges retaliation and hostile work environment
claims under Title VII of the Civil Rights Act of 1964
("Title VII") while working for the United States
Postal Service (the "Postal Service"). Doc. 26.
Ng's claims relate to Equal Employment Opportunity
("EEO") complaints he filed with the Postal
Service, some of which he settled. See Id. at¶
2; Doc. 63,  Ex. 5; Doc. 62-7; Doc. 66 at ¶ 2.
Fourth Amended Complaint ("FAC") alleges these
claims based on Title VII: Count I-disparate treatment based
on national origin (Chinese); Count II- disparate treatment
based on race (Asian); Count III-disparate treatment in
retaliation for engaging in protected activity; and Count
IV-retaliatory hostile work environment based on engaging in
protected activity. Doc. 26. Plaintiff seeks compensatory
damages, punitive damages, attorneys' fees and costs.
Ng was born in Hong Kong and immigrated to the United States
several years ago. Doc. 63 at 9:5-8. He identifies as Chinese
(national origin) and Asian (race). Id. at 74:1-9.
He began working for the Postal Service in 2004. Id.
at 10:9-12; Doc. 62-1. Since 2009, he has worked as a mail
handler at the Ybor Processing & Distribution Center
("P&DC"). Id. at 16:23-25, 17:1-14.
2013, Ng put in a bid to become an equipment operator which
requires moving mail throughout the postal facility.
Id. at 17:15-20, 24:12-25, 25:1-25, 26:1-4; Doc.
63-2; 63-3. The position requires training, a test, and a
license to operate the equipment. Doc. 62-2. Ng's
colleagues, Jean Max Clairjeune and Dean Coleman, trained Ng
on the tow motor. Doc. 63 at 25:22-26:4. In December 2013,
the Postal Service temporarily revoked Ng's tow motor
license due to a motor collision with stationary equipment.
See Doc. 62-3.
2014, Ng received a letter of warning due to reports from
different managers that Ng's load hit stationary
equipment along his route. Doc. 62-4; Doc. 63 at 56:21-62:14;
Doc. 66 at ¶ 2. Ng contacted an EEO counselor and filed
an informal complaint alleging discrimination based on race,
sex, and age. Doc. 62-5. The parties settled the dispute.
Doc. 63 at 61:25, 62: 1-14; Doc. 63-5, Doc. 66 at ¶ 2.
April 2015, Ng filed another informal EEO complaint alleging
race discrimination because the Postal Service denied him a
forklift license. Doc. 62-6; Doc. 63 at 62:15-25, 63:1-25,
64:1-19. The parties settled the dispute. Doc. 63 at
64:15-67:1, Doc. 62-7, Doc. 63- 7.
March 31, 2016, Ng contacted an EEO counselor and filed a
formal complaint on April 24, 2016. Doc. 63-8; Doc. 63
at70:16-25, 71:1-3, 72: 9-13, 73:16-25, 74:l-25. The EEO
complaint alleged discrimination based on race, national
origin, sex, age, and religion; it also alleged retaliation
for his previous EEO activity. Id. The alleged
discrimination and retaliation claims derived from the
following. Between December 13, 2015, and April 14, 2016,
managers prohibited Ng from driving. On April 6, 2016, a
manager called Ng over the intercom. On June 1, 2012, and
February 10, 2013, managers denied Ng's request for leave
based on religious activities. Ng also included conduct from
his 2014 EEO complaint and the 2012 letter of warning he
received for allegedly calling a fellow employee the
"N" word. Doc. 63-8. The agency dismissed those
claims under 29 C.F.R. § 1614.107(a)(1)-(2). Doc. 62-11.
Ng sued after the agency issued its final decision in favor
of the Postal Service and informed him of his right to sue.
Doc. 62-12; Doc. 1.
parties' Stipulation, Ng withdrew his claims for
retaliation and discrimination based on: the alleged lack of
training to operate the forklift, the suspension of his tow
motor license between December 13, 2015, and April 14, 2016,
any warnings, suspensions, or discipline related to his
driving a tow motor, and the denial of a forklift license.
Doc. 85 at 1. Ng will not testify or introduce any other
evidence of these events to support his claims for
discrimination or retaliation. Id. 
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, show there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of stating the basis for its
motion and identifying those portions of the record
demonstrating the absence of genuine issues of material fact.
Celotex, 477 U.S. at 323; Hickson Corp. v. N.
Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004).
That burden can be discharged if the moving party can show
the court that there is "an absence of evidence to
support the nonmoving party's case."
Celotex, 477 U.S. at 325.
the moving party has discharged its burden, the nonmoving
party must then designate specific facts showing that there
is a genuine issue of material fact. Id. at 324.
Issues of fact are "genuine only if a reasonable jury,
considering the evidence present, could find for the
nonmoving party," and a fact is "material" if
it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986). In determining whether a genuine issue of
material fact exists, the court must consider all the
evidence in the light most favorable to the nonmoving party.
Celotex, 477 U.S. at 323. However, a party cannot
defeat summary judgment by relying upon conclusory
allegations. See Hill v. Oil Dri Corp. of Ga., 198
Fed.Appx. 852, 858 (11th Cir. 2006).
Postal Service argues that Ng did not exhaust his
administrative claims on several discrete discriminatory acts
that occurred before March 31, 2016, including the following.
Lewis and Matuszewski denied his leave request based on
religious observation on June 1, 2012, and February 10, 2013.
Doc. 63-8. Dan Wozniak denied leave on October 25, 2012. Doc.
63-13. He received alerter of warning for allegedly calling
his co-worker the "N" word on December 24, 2012,
id.; Doc. 62-13, and management did not remove the
letter from his personnel file until September 2015. Doc.
63-8. The FAC alludes to, but does not explicitly mention,
these acts. See Doc. 26 at ¶¶ 8, 9, 12. Ng
also complained about cleaning duties between 2011 and 2013.
Doc. 63 at 124:6-125:18, 126:19-127:4, 128:2-130:5; Doc.
63-14 at 16. Wilkerson's comments began in 2010 and
continued through 2015 or 2016. Doc. 64 at 8:10-10:13;
Doc. 65 at 5:12-8:25, 16: 4-25. And the
complained-of disparate workload began in 2013. Doc. 63-14 at
Postal Service argues these acts occurred over 45 days prior
to Ng contacting an EEO counselor on March 31, 2016; and they
are not actionable here. Ng does not address this argument in
his response in opposition to the Motion.
federal employee must exhaust administrative remedies before
suing under Title VII. Crawford v Babbitt, 186 F.3d
1322, 1326 (11th Cir. 1999). The employee must initiate
contact with an EEO counselor within forty-five days after
the alleged discriminatory action. 29 C.F.R. §
1614.105(a)(1). But a plaintiff need not exhaust
administrative remedies prior to filing a judicial claim of
retaliation if that claim grew out of an earlier charge. The
district court has ancillary jurisdiction to hear claims that
grow out of an administrative charge. Baker v. Buckeye
Cellubse Corp. , 856 F.2d 167, 169 (11th Cir. 1988).
See also Litman v. Sec'y, of the Navy, 703
Fed.Appx. 766, 771 (11th Cir. 2017).
exception generally applies to retaliation claims but not if
the plaintiff has no other properly raised judicial claim to
which the retaliation claim may attach. See Baker,
856 F.2d at 169. Courts are nonetheless extremely reluctant
to allow procedural technicalities to bar claims brought
under Title VII. The Eleventh Circuit has noted that courts
should not strictly interpret the scope of an EEOC complaint.
Litman, 703 Fed.Appx. at 771 (11th Cir. 2017)
(citing Gregory v. Georgia Dep't of Human Res.,
355 F.3d 1277, 1280 (11th Cir. 2004)).
the Court agrees with the Postal Service that Nghas not
exhausted his administrative remedies as to: the June and
October 2012 leave requests; the December 2012 letter of
warning; the delay in removing the letter from his personnel
file; the assignment of cleaning duties; the allegedly
disparate workloads; and Wilkerson's comments. Also, Ng
released one claim through a previous settlement. Ng did not
timely raise these issues either with the EEO counselor or
during the administrative process. Thus, he did not properly
exhaust these claims.
Postal Service also argues that Ng has not exhausted his
racially hostile work environment claims, to the extent that
it is the basis for his disparate treatment claims in Counts
I and II. Doc. 62 at 10 (citing Reeves v. C.H. Robinson
Worldwide, Inc., 594 F.3d 798, 807-08 (11th Cir. 2010)
(explaining that disparate treatment can mean a tangible
employment action or a hostile work environment).
argues that the acts described in the EEO complaint do not
correspond to the alleged acts described in the FAC and
Ng's responses to discovery. Ng's EEO complaint deals
with religious leave and disciplinary action. See Doc. 63-8
and Doc. 62-14 (citing events taking place on May 27, 2012;
February 2, 2013; and April 13, 2016; which respectively
correspond to the denial of religious leave and reinstatement
of his driving privileges). But the FAC and Ng's
testimony identify racially discriminatory acts including:
Wilkerson calling Ng "No Good," "Fucking No
Good," and "God Damn it No Good"; Lewis saying
"Chinese people are stupid," other comments about
his race and national origin overheard by management who took
no corrective action; and disparate workload and cleaning
duties. Doc. 26 at ¶¶8, 11. Ng also testified that
Will Hoyte called him "shrimp fried rice" and
Clairjeune call him "Kim Il-sung (the North Korean
dictator) between 2015 and 2016. Doc. 63 at 136:1-141:5.
Latosha Gullette, Ng's co-worker witnessed Wilkerson
calling Ng"no good" and heard him imitate Ng's
accent several times throughout 2015 and 2016. See
the Postal Service argues these claims were not exhausted and
are not properly before the Court. And, it argues, these
allegations do not amplify, clarify, or more clearly focus
the allegations in the EEO complaint.
Court agrees that Nghas not administratively exhausted these
claims for his disparate treatment and hostile environment
claims. See Green v. Elixir Industries, Inc., 152
Fed.Appx. 838, 840 (11th Cir. 2005) (affirming summary
judgment for employer in Title VII action where EEOC charge
merely alleged termination and complaint alleged hostile work
environment). See also Bridges v. Stand. P. of Tampa GP,
Inc., 8:06-CV-1937-T-23TGW, 2007 WL 177688, at *2 (M.D.
Fla. Jan. 19, 2007) (dismissing sexual harassment and
retaliation claims because plaintiff did not list them
"by label, by factual allegation, by temporal scope, or
otherwise" in her EEO complaint and thus did not
administratively exhaust those claims).
the Court considered the acts as part of Ng's claims,
they are insufficient to defeat summary judgment, as
Counts I & II: Violations of Title VII-National Origin
alleges that he suffered from disparate treatment based on
his national origin, which he identifies as Chinese, and his
race, which he identifies as Asian, while working with the
Postal Service. Doc. 26 at ¶¶ 15, 24. Because the
FAC does not distinguish between a tangible employment action
or hostile work environment theory, the Court will analyze
the claims under both theories.
Title VII Disparate Treatment Claims
VII prohibits discrimination in the workplace based on an
individual's "race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a). This
discrimination falls into two categories. Disparate treatment