                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2006

Moss v. Postmaster General
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4021




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"Moss v. Postmaster General" (2006). 2006 Decisions. Paper 1261.
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APS-175                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO: 05-4021

                                RONALD LEE MOSS,

                                           Appellant

                                            v.

                         JOHN E. POTTER, POSTMASTER
                         GENERAL, U.S. POSTAL SERVICE
                                _______________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                             (D.C. Civ. No. 04-cv-01566)
                     District Judge: Honorable Arthur J. Schwab
                   _______________________________________

              Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  March 23, 2006

           BEFORE: SLOVITER, McKEE and FISHER, CIRCUIT JUDGES

                               (Filed: April 17, 2006)
                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Appellant Ronald Lee Moss appeals from the District Court’s grant of the

Defendant’s motion for summary judgment on his complaint alleging violations of Title

VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §§ 2000e to 2000e-17. The

Appellee filed a motion for summary affirmance. Because the appeal presents no
substantial question, we will grant the Appellee’s motion. See L.A.R. 27.4.

                                              I.

       The parties are familiar with the facts, thus, we will only briefly recite them here.

Moss was employed by the United States Postal Service in Pittsburgh, Pennsylvania from

1986 until early 2004. In 2000, Moss filed an action with the Equal Employment

Opportunity Commission (EEOC) alleging race and sex discrimination. He also filed a

civil action in the United States District Court for the Western District of Pennsylvania

alleging race and sex discrimination, retaliation for prior EEOC filings, and a number of

other wrongs. The District Court dismissed the complaint for failure to exhaust

administrative remedies. After an appeal here, see Moss v. Henderson, No. 01-4207, slip

op. (3d Cir. Aug. 6, 2003), Moss continued pursuing his claims in the District Court and

through administrative agencies. Specifically, on September 15, 2003, he filed a motion

for discovery on his original complaint and a motion to amend his complaint to allege

violations of the USA PATRIOT Act of 2001. Pub. L. No. 107-56, 115 Stat. 272 (2001).

The District Court denied both motions and Moss filed a notice of appeal on December

12, 2003. We eventually dismissed the appeal for lack of jurisdiction.

       Meanwhile, Customer Relations Manager Michael Cafaro, was assigned to

conduct a routine driving observation. He located Moss’s truck and observed that Moss

failed to set the parking brake. Cafaro notified the local Manager, Bob Roberts, who

issued an immediate suspension of Moss’s government driver’s license pending an

investigation. The investigation was conducted and Jerry Kennedy, Moss’s supervisor,

                                              2
issued Moss a fourteen-day “paper” suspension.1 Moss was transferred to a different

facility and roughly one month later was injured on the job. He eventually left the Post

Office and began receiving permanent worker’s compensation.

       Shortly after his suspension but before suffering his injury, Moss filed a new

action with the EEOC alleging race and sex discrimination, the creation of a hostile work

environment, and retaliation for filing prior EEOC and federal court complaints. The

Defendant moved for summary judgment. The District Court granted the motion finding

that Moss failed to carry his burden on any of the claims. Moss appealed.2

                                             II.

       To prevail under Title VII, Moss must satisfy the three-step burden shifting inquiry

under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). First, he must

establish a prima facie case. If he succeeds, “the burden shifts to the employer to advance

a legitimate, non-retaliatory reason for its adverse employment action.” Id. at 802-03. If

the employer advances such a position, the burden shifts back to the employee to prove

that the non-discriminatory explanation is merely a pretext for discrimination. Id. at 804.

       The District Court determined that even if Moss could establish a prima facie case

for his retaliation and discrimination claims, he could not show that the Post Office’s


       1
         A “paper” suspension is a suspension in name only. The receiving person is still
permitted to report to work and receive pay for his or her time.
       2
          We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review
over the District Court’s grant of a motion for summary judgment. See Wastak v. Lehigh
Valley Health Network, 342 F.3d 281, 285 (3d Cir. 2003).

                                             3
stated reason for the adverse employment action is merely a “pretext” for discriminatory

or retaliatory conduct. We agree. The McDonnell Douglas framework is applicable to

both his retaliation and discrimination claims. See McDonnell Douglas, 411 U.S. at 802

(race); Sarullo v. U.S. Postal Service, 352 F.3d 789, 799-800 (3d Cir. 2003) (retaliation

and discrimination). To establish that the suspension for violating a vehicle safety rule

was a pretext for unlawful conduct, Moss must present evidence showing that the

proffered reason is “weak, incoherent, implausible, or so inconsistent that a reasonable

factfinder could rationally find them unworthy of credence.” See Sarullo, 352 F.3d at

799-800 (internal quotations and citations omitted). He fails to do so.

       Moss provides no reason to believe that the only discipline he has ever received in

the nearly three years of working at the Greentree Post Office was pretextual. First, Moss

has not alleged a hostile or poor relationship with either Roberts or Kennedy. Rather, he

states in his deposition that he and Kennedy get along well. Nor does he present any facts

that would lead to an inference of racial animus. He also fails to establish that either

Roberts or Kennedy were aware that he had filed complaints with the EEOC or the

District Court. Even if we assume that Roberts or Kennedy were aware that Moss filed

an amended complaint alleging USA PATRIOT Act violations only several months prior

to his suspension, we see no connection between the minor discipline in conformity with

Postal Service regulations and the District Court filing. Moss even admits that he

violated Postal Service rules, and the evidence clearly shows that other individuals have

been similarly disciplined for the same violation. Moss simply fails to make any case that

                                              4
the discipline was pretextual.

       Moss also fails to establish a valid hostile work environment claim. To do so, he

must show that discrimination existed and that it was “pervasive and regular.” See

Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001). As discussed above, not only

does Moss fail to show that a pattern of regular discrimination existed, but he fails to

show discrimination at all.

       Thus, no substantial question is presented with respect to whether the District

Court erred in granting the motion for summary judgment. Accordingly, we grant the

Appellee’s motion for summary affirmance.
