F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 26 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RENNE L. SHOATE,
Plaintiff-Appellant,
v. No. 98-5121
(D.C. No. 97-CV-376-B)
UNITED STATES POSTAL (N.D. Okla.)
SERVICE, separately and
Marvin T. Runyon,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , BARRETT , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff Renne Shoate brought this action against defendant United States
Postal Service (USPS) alleging employment discrimination violations under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and a state law
claim for retaliatory discharge. In her complaint, plaintiff asserted that during her
short tenure as a mail carrier in Tulsa, Oklahoma, she was subjected to a racially
hostile and abusive work environment which led to her termination. In addition,
plaintiff asserted a public policy violation claim under the Oklahoma Workers’
Compensation Act, alleging that she was discharged in retaliation for filing
a claim for an on-the-job injury.
The district court granted defendants’ motion to dismiss plaintiff’s state
law claim under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction,
agreeing that plaintiff’s claim was preempted by the Civil Service Reform Act
(CSRA), 5 U.S.C. §§ 7501-7543, which was incorporated into the Postal
Reorganization Act of 1971 (PRA), 39 U.S.C. §§ 1001-1011, 1201-1209. 1
In the
alternative, the district court determined that, even if plaintiff’s claim was not
preempted, she could not maintain a cause of action against a federal employer
under the state statute. In a separate order, the court granted defendant’s
summary judgment motion on plaintiff’s Title VII claim, concluding
1
The PRA provides that Chapter 75 of the CSRA “shall apply to officers and
employees of the Postal Service.” 39 U.S.C. § 1005(a)(1). Thus the CSRA
applies to plaintiff.
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that plaintiff failed to raise a disputed issue of material fact as to whether she
was the victim of a hostile work environment. Plaintiff appeals. We exercise
jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review the district court’s dismissal order de novo. See Steele v. United
States , 19 F.3d 531, 532 (10th Cir. 1994). We review the grant of summary
judgment de novo, applying the same standard as the district court. See Applied
Genetics Int’l, Inc. v. First Affiliated Secs., Inc. , 912 F.2d 1238, 1241 (10th Cir.
1990). “Summary judgment is appropriate when there is no genuine dispute over
a material fact and the moving party is entitled to judgment as a matter of law.”
Russillo v. Scarborough , 935 F.2d 1167, 1170 (10th Cir. 1991).
Background
Plaintiff worked for the USPS from June 26, 1995, until her termination
on June 26, 1996. Plaintiff, at her own request, transferred from a casual clerk to
a temporary transitional employee letter carrier for the USPS on May 4, 1996.
She was placed on ninety days probation at that time. On June 4, 1996, she
suffered an on-the-job injury to her ankle requiring her to be absent from her
duties in excess of four days. She was reprimanded for not following the rules
regarding reporting the injury incident and the procedures for obtaining treatment
for her injury. In addition, plaintiff was reprimanded for ignoring her
supervisor’s instructions not to confer with the union shop steward during
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working hours. On June 26, 1996, she was terminated for these and certain other
violations of the rules and procedures.
Title VII Claim
Plaintiff, an African-American, alleges that upon requesting this transfer to
mail carrier, she was told by her prior supervisor, also an African-American, that
racial discrimination would be a problem for her as a mail carrier. In her
complaint, plaintiff asserted that during the short time she worked as a mail
carrier, she was subjected to the hostile and prejudicial attitude of her supervisors
and that her termination was because of racial animus.
For plaintiff’s hostile work environment claim to survive summary
judgment, she must establish “that a rational jury could find that the workplace
is permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the [plaintiff’s]
employment and create an abusive working environment.” Penry v. Federal
Home Loan Bank , 155 F.3d 1257, 1261 (10th Cir. 1998) (quotation omitted),
petition for cert. filed , (U.S. Jan. 14, 1999) (No. 98-1191). Moreover, in this
instance, plaintiff must show that the harassment was due to her race. See id.
The court noted that, during a deposition, plaintiff stated that no racial
remarks were made to her and that she had never witnessed any racial remark
being made by a supervisor. The court found that although plaintiff referred to
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her immediate supervisor as “nasty,” none of the incidents she cited had any
racial implications whatsoever. Therefore, we agree with the district court
that the nature of plaintiff’s working environment, no matter how unpleasant
and demeaning, was not due to her race. See Trujillo v. University of Colo.
Health Sciences Ctr. , 157 F.3d 1211, 1214 (10th Cir. 1998) (stating that normal
job monitoring and stress, even where employee is often at odds with supervisor,
does not constitute a hostile or abusive work environment).
State Law Claim
Plaintiff also challenges the district court’s conclusion that her state law
claim for retaliatory discharge was preempted by the CSRA, or in the alternative,
that she could not maintain a retaliatory discharge claim against a federal
employer under Oklahoma law. Plaintiff alleges that her claim of “[r]etaliatory
discharge based on absence from work following an on-the-job injury is not a
prohibited employment activity under the CSRA.” Appellant’s Br. at 28. We do
not agree.
“The CSRA provides a comprehensive claims procedure for most
government employees, including a provision for judicial review of final
determinations of the Merit Systems Protection Board, where there is an
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allegation of prohibited personnel practices.” Steele 19 F.3d at 532. 2
In this
comprehensive system, “prohibited personnel practice” is broadly defined, see
5 U.S.C. § 2302, encompassing “substantive provisions forbidding arbitrary
action by supervisors and procedures–administrative and judicial–by which
improper action may be redressed,” Bush v. Lucas , 462 U.S. 367, 385 (1983).
We have held that “state law challenges to federal personnel actions within
the scope of the CSRA are ‘preempted’ by the CSRA,” and “that the CSRA was
intended to provide the exclusive procedure for challenging federal personnel
decisions.” Petrini v. Howard , 918 F.2d 1482, 1484, 1485 (10th Cir. 1990).
Contrary to plaintiff’s contention, her retaliatory discharge claim easily falls into
CSRA’s prohibition against taking any discriminatory personnel action “against
any employee . . . on the basis of conduct which does not adversely affect the
performance of the employee . . . or the performance of others.” 5 U.S.C.
§ 2302(b)(10). Her claim would also be cognizable under § 2302(b)(9)(A)
prohibiting any personnel action against an employee for the “exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation.”
2
Plaintiff could have availed herself of the procedures and remedies
offered by the CSRA by submitting a claim of prohibited employment practice
to the Office of the Special Counsel. See 5 U.S.C. § 1214. Because plaintiff
did not avail herself of the CSRA claims procedure, any case she may have had
under 5 U.S.C. § 1214(c) is not properly before this court. See Steele , 19 F.3d
at 533 n.2.
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The actions of which plaintiff complains arose directly out of her
employment relationship with the USPS. In view of the comprehensive system
in the CSRA for seeking remedies for questionable employment practices by
federal agencies, to permit state law claims such as plaintiff’s to survive would
serve to undermine the purpose of the CSRA and to cause unnecessary confusion.
See Petrini , 918 F.2d at 1485. Therefore, the district court was correct in finding
plaintiff’s state law retaliation claim to be preempted. 3
Conclusion
Following careful review of the record on appeal, the parties’ briefs, and
the applicable law, we agree with the district court that plaintiff failed to meet her
burden of proof as to a racially hostile work environment. We also agree with the
district court’s findings and analysis as to its dismissal of plaintiff’s state law
claim. The district court thoroughly considered plaintiff’s claims in two lengthy
well-reasoned orders. We therefore affirm for the reasons discussed above,
and for substantially the same reasons stated in the district court’s orders dated
April 13, 1998, and May 22, 1998.
3
Due to our decision on the preemption claim in this case, we need not
address plaintiff’s challenge to the district court’s alternate ruling that, even if
plaintiff’s claim was not preempted, she could not maintain a retaliatory discharge
claim against the USPS under Oklahoma law.
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The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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Shoate v. USPS
Combined Opinion