                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-26-2009

Neely v. US Postal Service
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1473




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-1473
                                     ___________

                                  KENT W. NEELY,

                                                Plaintiff-Appellant

                                           v.

                                US POSTAL SERVICE

                                           Defendant-Appellee
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 03-cv-06566)
                    District Judge: Honorable Mary A. McLaughlin
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 23, 2009

         Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges.

                               (Filed: January 26, 2009 )
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Kent W. Neely appeals pro se from the entry of summary judgment in favor of the

United States Postal Service (the “USPS”), on his claims of: (i) employment
discrimination, harassment, and retaliation under Title VII of the Civil Rights Act of 1964

(“Title VII”), (ii) violations of the Family and Medical Leave Act (FMLA), (iii) due

process, and (iv) retaliation and discrimination under Merit Systems principles and the

Civil Service Reform Act of 1978 (“CSRA”). For the reasons that follow, we will affirm

the District Court’s judgment.

       We assume the parties’ familiarity with the facts, as fully described by the District

Court in its Memorandum Opinion of December 12, 2007. Neely, a 54-year-old African-

American and a disabled veteran, filed this suit asserting that the USPS discriminated

against him on account of his race and gender by disciplining him from 1999 through

2002 and terminating him for chronic tardiness and absenteeism.1 Neely complained that,

in 1999, two female supervisors (Maria Diaz and Simona Brickers) disciplined him for

chronic lateness and absenteeism because he refused their romantic advances. Neely

asserted that the discipline he received led to his discriminatory removal in 2002 on

account of his gender. As for his racial discrimination claim, Neely asserted that he was

wrongly terminated on account of his race in 2002. He alleged that he was treated less

favorably than two white employees, both of whom held the same type of position as


       1
        Neely began working at the USPS in 1994. His first discipline for tardiness
occurred in 1996. As of January 1999, Neely had already received two letters of warning
and a seven day suspension for “failure to maintain a regular schedule.” He filed a
grievance challenging the seven-day suspension; the arbitrator upheld the discipline.
From 1999 through 2002, Neely was disciplined at least four times for numerous
incidences of tardiness or absenteeism. In 2001 alone, Neely had eighty-three
unscheduled absences.

                                             2
Neely and were disciplined for chronic tardiness and absenteeism. Neely also claims that

USPS created a gender and race-based hostile work environment. He further contends

that supervisors Holmes, Diaz and Brickers, and MDO Bates sought to discipline and

remove him for retaliatory reasons, because he complained about race and gender

discrimination to the EEOC and Congressman Chaka Fattah’s Office, and because he

notified a high-level manager within USPS about gender discrimination.

       Neely claimed that the USPS wrongly denied him FMLA leave because he failed

to obtain re-certification from his doctor to cover the leave requested. Neely’s race and

gender discrimination claims under Merits Systems principles and the CSRA are the same

as those he raised under Title VII. Neely alleged that the USPS retaliated against him for

whistle-blowing when he complained to the EEOC about discrimination and to the

Department of Labor about FMLA violations. He asserted that he was denied sufficient

notice or opportunity to remedy his disciplinary situation at work. Neely sought damages

and backpay.

       The USPS filed a motion for summary judgment, and Neely filed a counseled

response in opposition. On December 12, 2007, the District Court entered summary

judgment for the USPS. The District Court ruled that Neely failed to state a prima facie

case of race discrimination under McDonnell Douglas v. Green, 411 U.S. 792 (1973),

regarding his termination for chronic tardiness and absenteeism in 2002. Next, the

District Court determined that Neely’s gender discrimination claim against supervisors



                                             3
Diaz and Brickers failed under the McDonnell Douglas test because Neely provided no

evidence that Diaz or Brickers were involved in the decision to remove him. Turning to

Neely’s retaliation claim, the District Court ruled that Neely was engaged in protected

activity but determined that he failed to show a causal connection between his protected

activity and his termination. The District Court held that Neely failed to make out prima

facie case of harassment on the basis of race or gender under Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993). The District Court also rejected Neely’s FMLA and Merit

Systems claims. The District Court granted summary judgment and dismissed Neely’s

action on December 12, 2007. Neely filed this timely appeal.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. This

Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a

grant of summary judgment, which (as the District Court explained) is appropriately

entered only when “there is no genuine issue as to any material fact” and “the moving

party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       We find that the District Court’s analysis and entry of summary judgment, are fully

supported by the record. Neely raises no tenable argument in this appeal that the District

Court did not thoughtfully and appropriately reject each of his claims upon proper

application of the applicable legal standards. Neely’s gender discrimination claim fails

based on the undisputed fact that he was late or absent on the days for which he was

disciplined by Diaz and Brickers. We agree with the District Court that he failed to



                                              4
demonstrate a prima facie race-based discrimination claim. Neely’s supervisor, Neel

Holmes, an African-American, issued a notice of removal based on sixteen instances of

tardiness and absenteeism that occurred from 1999 through 2002. The acting Manager of

Distribution Operations (MDO), Ernestine Geary, an African-American female, approved

the notice of removal. MDO Joseph Bates, a caucasian, issued the Letter of Decision,

terminating Neely’s employment at the USPS. The District Court properly held that,

although Neely satisfied the first two prongs of the McDonnell Douglas test, there was no

record evidence of race-based discrimination. The Court noted Neely’s undisputed long

history of chronic lateness and absenteeism leading up to his removal. The court found

that Neely knew that coming to work on time was a job requirement with which he failed

to comply. Moreover, the District Court pointed out that Neely’s supervisor and MDO at

the time of his removal were African-Americans, a fact that, in combination with the

undisputed facts in the case, substantially weakened any inference of race-based

discrimination.

       The District Court correctly held that Neely failed to show that he and his white

colleagues, USPS employees Dever and Masterson, who worked in comparable jobs in a

different part of the bulk mail center, were similarly situated. Neely contended that Dever

and Masterson were similarly situated to him because they had been disciplined by Maria

Diaz in the past and because some of the discipline they facedfor tardiness and

absenteeism over the years had been approved by the same MDO, Joseph Bates. Under



                                             5
USPS’s progressive discipline policy, the front-line supervisors, called “SDOs,” exercised

broad discretion in initiating discipline, deciding the manner of discipline, and settling

grievances with respect to the discipline of the employees under their management. The

MDOs, on the other hand, only became involved at the later stages of the progressive

discipline process. In Neely’s case, the common link between him and his two white

comparators was that a supervisor, Maria Diaz, had been responsible for some of the

disciplines imposed on the three men at different times in their employment. She was not

involved, however, in Neely’s termination or in Masterson’s termination. The District

Court properly found that Neel Holmes, the supervisor who initiated Neely’s fourteen-day

suspension and termination, never supervised Dever and Masterson. Holmes was not

involved in disciplining Devers or Masterson and did not participate in the resolution of

any of their grievances. MDO Bates served as the concurring officer on some of the

disciplinary actions taken against Dever and Masterson throughout their respective

employments at USPS. But he was not the concurring MDO in Neely’s termination.

Thus, we agree with the District Court that Devers and Masterson were not similarly

situated to Neely for Title VII purposes because they did not share the same supervisor.

See Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 802 (6th Cir. 1994) (stating that,

in order to show that comparators are “similarly situated,” all relevant aspects of

employment need to be nearly identical).




                                              6
       For essentially the same reasons that we find no evidence of gender-based or race

based discrimination, we agree with the District Court’s analysis and conclusion

regarding Neely’s hostile work environment claim, as there is no record evidence of

conduct by his supervisors and MDO’s from 1999 through 2002 that is “sufficiently

severe or pervasive to alter the conditions of his employment and create an abusive

working environment.” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

       Turning to Neely’s retaliation claim, in order to make out a prima facie claim of

retaliatory discharge, he must show that (1) he was engaged in a protected activity; (2) the

employer took an adverse employment action against him; and (3) there is a causal

connection between his participation in the protected activity and the adverse employment

action. See Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995). We agree with

the District Court that Neely satisfied the first and second factors. No reasonable juror

could conclude, however, that his engagement in protected activity and his termination

were causally connected. The District Court properly rejected Neely’s contention that the

temporal proximity of his complaints in 1999 and 2002 and his discipline and removal in

2002, demonstrated the necessary causal connection. See Lauren W. ex rel. Jean W. v.

Deflaminis, 480 F.3d 259, 267 (3d Cir. 2007) (to show a causal connection, a plaintiff

must prove “either (1) an unusually suggestive temporal proximity between the protected

activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with

timing to establish a causal link”). The court correctly reasoned that, given Neely’s long



                                             7
history of frequent tardiness and absenteeism, it was not surprising that there were short

spans of time between his filing of EEOC complaints and subsequent disciplinary action.

The District Court noted that the timing of the events could lead to the opposite inference,

that Neely’s chronic lateness triggered discipline, which, in turn, prompted him to file a

complaint or grievance. The District Court also ruled that the e-mail from labor relations

officer Joseph Marquis to MDOs Bates and Brickers in 2000, which said “We need to

deal with [Neely] every time and come away with a progressive step[,] [n]ot get frustrated

and let it pass then try to nail [him] months later,” was irrelevant because it was sent a full

two years before Neely’s removal and there was no record evidence linking Marquis with

Neely’s disciplines or his removal.

       We agree with the District Court that even if Neely established a prima facie case

of retaliation, he failed to show that the reason for his removal was pretextual under

McDonnell Douglas because Neely never denied that he was absent or late on the days for

which he was disciplined and removed. See Moore v. City of Philadelphia, 461 F.3d 331,

342 (3d Cir. 2006) (explaining that Title VII retaliation claims, like discrimination claims,

are similarly analyzed under the McDonnell Douglas framework).

       Neely’s claims of discrimination and retaliation under the Merit Systems principles

and the CSRA are meritless for the substantially the same reasons that his related Title

VII discrimination and retaliation claims lack merit. In particular, we agree with the

District Court that none of Neely’s EEO complaints or grievances played a role in USPS’s



                                              8
decision to remove him; thus, the Administrative Law Judge did not err when he

concluded that the USPS would have taken the same removal action even if Neely had not

complained. Neely’s due process rights were not violated because the progressive nature

of the discipline process at USPS provided Neely more than ample time to remedy his

chronic lateness and absenteeism.

       For the same reasons set forth by the District Court in its opinion, we find no merit

to Neely’s FMLA claims. See D.Ct. Op. at 27-34. Neely argues on appeal that the

District Court erroneously relied on 29 C.F. R. § 825.203(a) of the FMLA regulations

(“FMLA leave may be taken intermittently or on a reduced leave schedule”) in denying

his FMLA claims. He says that the District Court should have analyzed the merits of his

FMLA claims pursuant to § 825.203(d) instead, which governs how intermittent leave

may be taken. Neely relied on 29 U.S.C. § 2612(b)(1) (allowing intermittent leave “for a

serious health condition”) and 29 C.F.R. § 825.203(a) to support his claim in the District

Court. See Memorandum in Opposition to the Defendant’s Motion for Summary

Judgment, at 36. Neely does not point to any evidence, and we find none on this record,

that would change the result in this case had the District Court considered § 825.203(d).

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                             9
