                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 13a0109p.06

                  UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                              X
                                               -
 DEXTER WAYNE DODD,
                                               -
                                 Plaintiff-Appellant,
                                               -
                                               -
                                                   No. 11-5509
          v.
                                               ,
                                                >
                                               -
 PATRICK R. DONAHOE and UNITED STATES OF -
                                               -
                                               -
 AMERICA,
                      Defendants-Appellees, -
                                               -
                                               -
                                               -
 DON CARTWRIGHT, VICKI COX, FRED
                                               -
 JOHNSON, RAY WHITE, and MARCUS MILLS,
                               Defendants. N
                 Appeal from the United States District Court
               for the Western District of Tennessee at Jackson.
              No. 1:09-cv-1148—J. Daniel Breen, District Judge.
                                    Argued: October 2, 2012
                              Decided and Filed: April 19, 2013
             Before: MOORE and COLE, Circuit Judges; ROSE, District Judge.*

                                       _________________

                                            COUNSEL
ARGUED: Jon A. York, PENTECOST & GLENN, PLLC, Jackson, Tennessee, for
Appellant. Melissa N. Patterson, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellees. ON BRIEF: Jon A. York, Melissa K. Van Pelt,
PENTECOST & GLENN, PLLC, Jackson, Tennessee, for Appellant. Melissa N.
Patterson, Marleigh D. Dover, Stephanie R. Marcus, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.




         *
           The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio,
sitting by designation.


                                                   1
No. 11-5509                 Dodd v. Donahoe et al.                                                    Page 2


                                             _________________

                                                   OPINION
                                             _________________

            KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant, Dexter Wayne
Dodd, works as a mail carrier for the United States Postal Service (“USPS”).
Defendants-Appellees are Patrick R. Donahoe, Postmaster General of the USPS,1 and
the United States of America. Dodd filed a lawsuit against defendants, alleging claims
of false imprisonment, false arrest, abuse of process, and malicious prosecution under
the Federal Tort Claims Act (“FTCA”) as well as a claim of race discrimination under
Title VII of the Civil Rights Act of 1964 (“Title VII”). The district court dismissed
Dodd’s FTCA claim because it determined that the claim was preempted by the Civil
Service Reform Act (“CSRA”), specifically, 5 U.S.C. § 2301 et seq. (“Chapter 23”).
The district court granted summary judgment in favor of defendants on Dodd’s Title VII
claim because Dodd failed to make a prima facie showing of discrimination.

            On appeal, Dodd argues that the district court erred by dismissing his FTCA
claim and granting summary judgment in favor of defendants on his Title VII claim. We
agree with Dodd that the district court erred in dismissing his claim under the FTCA
because Chapter 23 does not apply to postal employees; therefore, we REVERSE the
dismissal of that claim and REMAND the case for further proceedings. We do not agree
with Dodd, however, that the district court erred with respect to his Title VII claim; thus,
we AFFIRM the grant of summary judgment in favor of defendants on that claim.

                                             I. BACKGROUND

A. Facts

            Dodd, an African American, was employed as a USPS letter carrier for all times
relevant to this matter. On March 7, 2008, Vicki Cox, Dodd’s immediate supervisor at



            1
                Patrick R. Donahoe has replaced John E. Potter pursuant to Federal Rule of Appellate Procedure
43(b)(2).
No. 11-5509        Dodd v. Donahoe et al.                                          Page 3


USPS, forwarded complaints from postal customers on Dodd’s route to the USPS Office
of the Inspector General (“OIG”). Dodd alleges that Cox referred the complaints to the
OIG “based upon her racial animus to Mr. Dodd, to retaliate against him for his
involvement in the USPS Letter Carrier’s union, and as a means of securing the
termination of his employment from the USPS.” R. 15 (Am. Compl. ¶ 18) (Page ID
#58–59).

       OIG Special Agents Ray White and Marcus Mills (“OIG Agents”) “commenced
a criminal investigation of Mr. Dodd” after receiving the complaints from Cox. Id. at
¶ 19 (Page ID #59). The OIG Agents found that Dodd had “completed an Employee
Generated Change of Address order” and “had failed to deliver some mail that [the OIG
Agents] believed to be deliverable.” Id. at ¶ 21 (Page ID #59). White and Mills reported
the findings to their superior, Special Agent Fred Johnson, and also “recommended that
state criminal charges be pursued against Mr. Dodd.” Id. at ¶ 22 (Page ID #59). On
August 5, 2008, Johnson sent a letter to the District Attorney General of the Twenty-
Sixth Judicial District of Tennessee, requesting that charges be pursued against Dodd.

       “[T]he Madison County Grand Jury indicted Mr. Dodd on charges of forgery,
identity theft and theft of property.” Id. at ¶ 26 (Page ID #60). Dodd claims that these
charges were the result of the “Defendants’ false and misleading grand jury testimony,
or alternatively, the knowingly and maliciously caused false and misleading testimony.”
Id. After Dodd was arrested on those charges, he “was forced to remain in custody at
the Madison County jail in Jackson, Tennessee for seven (7) days” before posting bond.
Id. at ¶ 27 (Page ID #61). “Shortly after the prosecution commenced,” the state issued
a superseding indictment that dropped several of the original charges but added “a series
of non-specific misdemeanor theft[] charges arising from mail articles that Mr. Dodd
processed as being undeliverable . . . at the behest of Defendants.” Id. ¶ 28. Thereafter,
the state dismissed all criminal charges against Dodd.
No. 11-5509            Dodd v. Donahoe et al.                                                     Page 4


B. Procedure

       On December 15, 2008, Dodd filed a formal complaint with the USPS National
Equal Employment Opportunity Investigative Services Office for discrimination on the
basis of race. On December 29, 2008, Dodd’s complaint was dismissed for failure to
state a claim. Dodd timely appealed to the Equal Employment Opportunity Commission
(“EEOC”), which affirmed the dismissal of Dodd’s claim on April 10, 2009.

       Dodd filed suit in the U.S. District Court for the Western District of Tennessee
on July 3, 2009. In his initial complaint, Dodd asserted two claims: (1) USPS officials
engaged in a “practice of prosecuting African-American letter carriers without just
cause,” constituting race discrimination in violation of Title VII, 42 U.S.C. § 2000e et
seq., and (2) a Bivens action against Cox and the OIG Agents for their deprivation of
Dodd’s constitutional rights.2 R. 1 (Compl. at ¶¶ 30–31) (Page ID #8–9).

       On December 1, 2009, Dodd filed an amended complaint that added a claim
under the FTCA, 28 U.S.C. §§ 2671–80. In his FTCA claim, Dodd alleged that the
actions taken by OIG Agents Johnson, White, and Mills constitute false imprisonment,
false arrest, abuse of process, and/or malicious prosecution under the laws of the State
of Tennessee. Pursuant to the FTCA, the United States could be liable for those actions
because they were allegedly committed by its investigative and law-enforcement
officers, the OIG Agents. Id. § 2680. Dodd’s amended complaint also states that he
filed his FTCA claim with the Chief Counsel of the USPS National Tort Center on May
29, 2009, pursuant to 39 C.F.R. § 912.4. He notes that this fulfills the FTCA’s
exhaustion requirement because he has not heard back from the USPS National Tort
Center for more than six months.

       The district court granted defendants’ Rule 12(b)(6) motion to dismiss with
regard to Dodd’s FTCA claim and granted Rule 56 summary judgment in defendants’
favor with regard to Dodd’s Tittle VII claim. The district court reasoned that “Dodd’s
tort claims are preempted by the CSRA” because the claim “clearly arose in the context


       2
           The Bivens claim was dismissed, and that dismissal is not challenged on this appeal.
No. 11-5509         Dodd v. Donahoe et al.                                            Page 5


of employee discipline and therefore constitutes ‘personnel action’ in the form of
‘disciplinary or corrective action’” for which the CSRA provides Dodd’s sole remedy.
R. 62 (3/31/2011 Dist. Ct. Order at 11) (Page ID #534). Important to the district court
was the fact that Dodd was a federal employee and that the CSRA provides a broad
comprehensive scheme for remedying claims stemming from the federal employment
relationship. Id. at 5–11 (Page ID #528–34). The district court granted summary
judgment on Dodd’s Title VII claim in favor of defendants because Dodd “failed to
identify any white mail carrier who was treated differently than he, that is, in this
context, who stole mail but was not prosecuted,” a necessary element in Dodd’s Title VII
claim. Id. at 13 (Page ID #536). Dodd timely appealed.

                                   II. FTCA CLAIM

        The focus of the parties’ arguments on appeal is whether the OIG Agents’ actions
constitute “personnel action” under the CSRA, 5 U.S.C. § 2302(a)(2)(A). Defendants
agree with the district court that this was “personnel action” and therefore Dodd must
pursue his claim under Chapter 23 of Title 5. Dodd disagrees, arguing that this was not
“personnel action” under Chapter 23. The parties’ briefs make clear that the Postal
Reorganization Act (“PRA”) incorporates certain provisions of the CSRA. Less clear,
however, is which portions of the CSRA are actually incorporated into the PRA.

        The PRA states that unless a law is explicitly incorporated into Title 39 or
remains in force as a rule or regulation of the Postal Service, “no Federal law dealing
with public or Federal . . . employees . . . shall apply to the exercise of the powers of the
Postal Service.” 39 U.S.C. § 410(a). Chapter 75 of Title 5, 5 U.S.C. §§ 7501 et seq., is
incorporated into the PRA at 39 U.S.C. § 1005. Chapter 75 is similar to Chapter 23 in
that it is a provision of the CSRA that provides employees a mechanism through which
they can challenge certain “adverse actions”; however, Chapter 75 does not use the term
“personnel action.” In Harper v. Frank, this court noted that “[m]any . . . provisions of
the CSRA that apply generally to federal employees were not incorporated into the
PRA.” 985 F.2d 285, 289 (6th Cir. 1993).
No. 11-5509           Dodd v. Donahoe et al.                                                    Page 6


         The combination of 39 U.S.C. § 410(a) and our prior decision in Harper leads
us to the conclusion that Chapter 23 was not incorporated into the PRA and therefore
does not govern the terms of Dodd’s employment.3 In light of this conclusion, the panel
requested that the parties submit letter briefs as to whether § 2302 applies to Dodd. The
parties agree that the statute is not incorporated into the PRA and therefore does not
apply in the case at hand. Given that the district court’s sole reason for dismissing
Dodd’s claim under the FTCA was that the claim was “preempted by the CSRA”
because the OIG Agents’ actions constitute “personnel action” under Chapter 23, we
reverse the dismissal of that claim and remand for further proceedings.

                                    III. TITLE VII CLAIM

         Dodd argues that the district court erred in granting summary judgment in favor
of defendants because, contrary to the district court’s conclusion, he asserts that he made
a prima facie showing of discrimination under Title VII. We review de novo a district
court’s grant of summary judgment. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361
(6th Cir. 2010). Summary judgment is appropriate when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). “In reviewing the district court’s decision to
grant summary judgment, we must view all evidence in the light most favorable to the
non-moving party.” Upshaw v. Ford Motor Co., 576 F.3d 576, 584 (6th Cir. 2009)
(citing Matsushita Elec. Indus. Co.v. Zenith Radio Corp. 475 U.S. 574, 587 (1986)).

         Title VII prohibits employers from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). Dodd seeks to establish his claim
of discrimination based on circumstantial evidence. To do so, he must make a prima


         3
           Of the cases cited by the parties, only one deals with applying 5 U.S.C. § 2302 to postal
employees: Sarullo v. United States Postal Service, 352 F.3d 789 (3d Cir. 2003). The Sarullo decision
offers no explanation of how § 2302 applies to postal employees but proceeds to analyze whether actions
taken against a postal employee constitute “personnel actions” under § 2302(a)(2)(A). Interestingly, the
Sarullo decision notes that the district court held that Sarullo’s Bivens claim was not preempted by the
CSRA because “Sarullo had alleged a Bivens action that ‘does not constitute an adverse employment action
under the CSRA.’” Sarullo, 352 F.3d at 794. The Sarullo district court’s language apparently mirrors
Chapter 75, not Chapter 23.
No. 11-5509        Dodd v. Donahoe et al.                                         Page 7


facie showing of discrimination under Title VII by demonstrating “(1) that he is a
member of a protected class; (2) that he suffered an adverse employment action; (3) that
he was qualified for the position; and (4) that a similarly-situated employee outside the
protected class or classes was treated more favorably than he.” Younis, 610 F.3d at 363
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

       The district court determined that Dodd did not meet the fourth element of the
prima facie showing because he “failed to identify any white mail carrier who was
treated differently than he, that is, in this context, who stole mail but was not
prosecuted.” R. 62 (3/31/2011 Dist. Ct. Order at 13) (Page ID #536). Dodd argues the
district court’s reasoning is flawed because it assumed that Dodd did in fact steal mail,
“which finds absolutely no support in the record.” Appellant Br. at 18. Dodd is right
to the extent that the district court wrongly stated that Dodd needed to point to a white
employee who actually stole mail; however, the district court’s conclusion is correct
nonetheless because Dodd failed to make a prima facie showing of discrimination.

       Regardless of whether Dodd did or did not “steal mail,” Dodd simply failed to
allege that a white employee was treated more favorably than he. Dodd argues that two
statements he made fulfill the fourth element for the prima facie showing:

       I am not aware of any non African-American City Carriers employed at
       the Jackson Main Facility who were prosecuted for theft-type charges
       concerning their performance in delivering mail prior to or after my
       prosecution.
       The only City Carriers assigned to the Jackson Main Facility that I am
       aware of who have been prosecuted for theft-type charges concerning
       their performance in delivering mail are Mr. Burruss and myself, both of
       whom are African-Americans.

R. 26-2 (Dodd Decl. ¶¶ 11–12) (Page ID #278). Dodd asserts that the “logical”
conclusion from these statements is that if only African-American mail carriers were
prosecuted, then non-African-American mail carriers were treated more favorably.
Dodd’s argument skips one logical step: to conclude that non-African-American mail
carriers were treated more favorably because they were not prosecuted on criminal
No. 11-5509             Dodd v. Donahoe et al.                                                       Page 8


charges, Dodd must have first shown that non-African-American mail carriers received
similar complaints that generally gave rise to such prosecutions.

         Dodd has not met the prima facie requirement because he failed to allege that any
mail carrier outside the protected class was treated more favorably than he was by not
being subjected to criminal prosecution after receiving similar customer complaints. See
Younis, 610 F.3d at 363–64.4 Therefore, the fact that the district court wrongly stated
that Dodd needed to identify a white employee who actually stole mail does not change
the logic of the district court’s proper conclusion because Dodd failed to identify any
non-protected employee who was investigated for either stealing mail or any matter
concerning that employee’s duties. We affirm the district court’s grant of summary
judgment in favor of defendants on the Title VII claim because Dodd did not make a
prima facie showing of discrimination.

                                         IV. CONCLUSION

         For the foregoing reasons, we REVERSE the district court’s dismissal of Dodd’s
claim under the FTCA and REMAND the case for further proceedings; however, we
AFFIRM the grant of defendants’ motion for summary judgment on Dodd’s Title VII
claim.




         4
            In Younis, the plaintiff relied on a former employee’s affidavit to establish the fourth element
of his Title VII claim. The court determined that the affidavit was “insufficient to satisfy the fourth prong”
because the employee’s statement “did not identify any particular white [employee] as having received
more favorable treatment than he or [the plaintiff] did.” 610 F.3d at 364.
