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Ng v. Brennan

United States District Court, M.D. Florida, Tampa Division

June 11, 2019

DAVID NG, Plaintiffs,



         This 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).[1] 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.


         Plaintiff 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, [3] Ex. 5; Doc. 62-7;[4] Doc. 66[5] at ¶ 2.

         The 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. Id.

         a. Factual Background

         David 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.

         In 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.

         In May 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.

         In 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.

         On 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.

         In the 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. [6]


         Summary 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.

         When 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).


         a. Claim Exhaustion

         The 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[7] at 8:10-10:13; Doc. 65[8] at 5:12-8:25, 16: 4-25. And the complained-of disparate workload began in 2013. Doc. 63-14 at 13.

         The 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.

         A 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).

         This 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)).

         Here, 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.

         The 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).

         It 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 Doc. 72-2.[9]

         Thus, 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.

         The 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).

         Even if the Court considered the acts as part of Ng's claims, they are insufficient to defeat summary judgment, as discussed below.

         b. Counts I & II: Violations of Title VII-National Origin and Race

         Ng 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.

         i. Title VII Disparate Treatment Claims

         Title 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 ...

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