NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 16, 2018*
Decided January 31, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
Nos. 17‐2378 & 17‐2659
FRANK C. WILSON, SR., Appeals from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 15 C 3377
MEGAN J. BRENNAN,
Postmaster General, Rebecca R. Pallmeyer,
Defendant‐Appellee. Judge.
O R D E R
Frank Wilson sued his former employer, the United States Postal Service,
bringing 20 separate “claims” under the United States Constitution, Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e–e17, contract law (regarding a collective
bargaining agreement), and tort law (including negligence, conspiracy, and infliction of
emotional distress). Nearly all arose from three instances of alleged wrongdoing in
2014, which Wilson largely attributes to racial discrimination. The district court
* We have agreed to decide these consolidated cases without oral argument
because the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
Nos. 17‐2378 & 17‐2659 Page 2
dismissed Wilson’s final pro se complaint primarily because Wilson had not alleged
“adverse actions” within the meaning of Title VII’s anti‐discrimination and
anti‐retaliation provisions. The district court denied Wilson’s two motions for
reconsideration and entered judgment for the Postal Service. We affirm.
Like the district court, we construe Wilson’s allegations in the light most
favorable to him, “accepting all well‐pleaded facts as true, and drawing all reasonable
inferences” in his favor. Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013).
Wilson primarily alleges that he was subjected to racial discrimination,
retaliation for filing charges with the EEOC, and other unlawful conduct three times in
2014. First, a supervisor told him to come into work on a day he had been scheduled to
have off. Second, “the proper procedure was not followed” when he was “issued
discipline” for (admittedly) failing to wear his seatbelt while operating a mail truck.
And third, after he retired, he received a letter warning him that he was in jeopardy of
being considered absent without leave because of his recent pattern of absenteeism.
Wilson also complained about five more situations, mostly disciplinary actions, that
occurred in 2012. All of these incidents, Wilson asserted, provided a basis for his
employment‐discrimination, retaliation, and related claims.
The Postal Service moved to dismiss the complaint. It argued that Wilson’s
seatbelt discipline and cancelled day off were not adverse actions within the meaning of
Title VII, that many of his claims were untimely, and that his post‐retirement claims
about the warning letter were neither administratively exhausted nor based on an
adverse action. Also, Wilson’s tort claims had not been administratively exhausted as
required by the Federal Tort Claims Act. Wilson’s constitutional claims, the defendant
argued, were not cognizable because Title VII is the exclusive judicial remedy for claims
of discrimination in federal employment. The Postal Service also argued that the district
court lacked jurisdiction over Wilson’s breach‐of‐contract claim, which, it said, he
should have brought in the Court of Federal Claims. To the extent that the contract
claim was based upon a collective bargaining agreement, the Postal Service added,
Wilson should have used the internal grievance process before filing in district court.
The district court dismissed the complaint. First, the judge agreed with the Postal
Service that Title VII is the exclusive judicial remedy for Wilson’s discrimination and
retaliation claims. Next, the judge dismissed Wilson’s Title VII racial‐discrimination and
retaliation claims because Wilson had not alleged “adverse actions” within the meaning
of the statute. Last, the judge dismissed all the other claims, including breach of
Nos. 17‐2378 & 17‐2659 Page 3
contract, negligence, conspiracy, harassment, and negligent or intentional infliction of
emotional distress, because they were “state law claims,” and Wilson had not
responded to the Postal Service’s arguments that they were “untimely, insufficiently
pleaded, or beyond the court’s jurisdiction.”
Wilson then moved under Federal Rule of Civil Procedure 59(e) to alter or
amend the judgment. He argued that the district court did not presume his allegations
to be true, that he had alleged conduct that amounted to adverse employment actions,
and that the district court should have exercised jurisdiction over every claim. The
judge denied the motion. Wilson filed a timely notice of appeal on July 5, 2017.
On that same day Wilson filed a motion under Federal Rule of Civil Procedure
60(b) to correct “several mistakes.” He said that the Postal Service’s arguments about
exhausting administrative remedies (which relied upon EEOC documents) could be
addressed only at the summary‐judgment stage, and that he should not have had to
substitute the new Postmaster General as the defendant because her predecessor was in
charge at the time of the alleged unlawful conduct. The judge denied the motion, noting
that “the matter of failure to exhaust administrative remedies appears to be a
non‐issue,” because although the defendant presented the defense, the judge “did not
rely” upon it. The judge also explained that the Postmaster General was properly
named in her official capacity. Wilson filed a second notice of appeal after the judge
entered a separate judgment order denying the Rule 60(b) motion; we consolidated that
appeal with his first.
Although Wilson’s arguments on appeal are confusing, duplicative, and often
not supported by legal authority, we construe pro se filings liberally and address the
discernable arguments. Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir.
2017) (citing Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001)).
First, contrary to Wilson’s undeveloped assertion of error, the judge rightly
dismissed with prejudice his half‐dozen constitutional claims arising out of his
employment with the Postal Service. Title VII is the exclusive remedy. See Bush v. Lucas,
462 U.S. 367, 368 (1983); Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976).
The judge also correctly dismissed Wilson’s Title VII claims—that the canceled
day off, the process for imposing discipline for his seatbelt violation, and the
absenteeism letter were discriminatory and retaliatory. A discriminatory adverse action
is a “significant change in employment status, such as hiring, firing, failing to promote,
Nos. 17‐2378 & 17‐2659 Page 4
reassignment with significantly different responsibility, or a decision causing a
significant change in benefits.” Lewis v. City of Chicago, 496 F.3d 645, 653 (7th Cir. 2007)
(quoting Bell v. E.P.A., 232 F.3d 546, 555 (7th Cir. 2000)). We have more broadly
described discriminatory acts as those involving “the employee’s current wealth, his
career prospects, or changes to work conditions that include humiliating, degrading,
unsafe, unhealthy, or otherwise significant negative alteration in the workplace.” Boss v.
Castro, 816 F.3d 910, 917 (7th Cir. 2016). Retaliatory adverse actions are those “that a
reasonable employee would find to be materially adverse such that the employee
would be dissuaded from engaging in the protected activity.” Poullard v. McDonald, 829
F.3d 844, 856 (7th Cir. 2016). “[N]ot everything that makes an employee unhappy is an
actionable adverse action.” Lapka v. Chertoff, 517 F.3d 974, 986 (7th Cir. 2008) (citing
Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)).
Wilson’s cancelled day off was a temporary change in working hours and is not a
retaliatory or discriminatory adverse action. The “anti‐retaliation provision does not
protect against petty slights, minor annoyances, and bad manners.” Boss, 816 F.3d at
918. The “employee must suffer something ‘more disruptive than a mere inconvenience
or an alteration of job responsibilities.’” Id. at 918–19 (quoting Hobbs v. City of Chi., 573
F.3d 454, 463–64 (7th Cir. 2009)). Wilson did not allege any meaningful injury from his
cancelled day off. This one‐time shift change does not rise to the level of a
discriminatory adverse action either. See Grube v. Lau Indus., Inc., 257 F.3d 723, 728 (7th
Cir. 2001) (“[A] mere change in working hours [transfer to second shift] . . . certainly
does not rise to the level of an adverse employment action.”).
The other two incidents are also not adverse actions within the meaning of Title
VII. Regarding the discipline for violating the seatbelt‐safety regulation, Wilson accuses
the district court of addressing the imposition of disciplinary action while ignoring the
“true controversy”: the failure to follow “proper procedure” in doing so. But we fail to
see how this could be an adverse action, particularly because Wilson admits his
violation. See Griffin v. Potter, 356 F.3d 824, 828–29 (7th Cir. 2004) (employee must prove
he was meeting employer’s legitimate expectations). Similarly, Wilson did not explain
how, after he had already retired, his employment status, benefits, or working
conditions were adversely harmed when he received a clearly inapplicable letter from
the Postal Service that warned he was being considered absent without leave. Indeed,
after his retirement, there were no working conditions to change, nor any possible effect
on an employee’s willingness to complain to the EEOC that could result from the letter.
Nos. 17‐2378 & 17‐2659 Page 5
We turn now to Wilson’s remaining claims, beginning with the tort claims that
include negligence and infliction of emotional distress. Under the Federal Tort Claims
Act, the federal government can be sued in tort “in the same manner and to the same
extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The Postal
Service argued that Wilson failed to follow the pre‐filing exhaustion requirement
because he did not “first present[] the claim to the appropriate Federal agency” and
then wait to sue until his claims were “finally denied by the agency in writing.” 28
U.S.C. § 2675(a). Wilson does not argue to the contrary. Because the statute of
limitations has run on these claims, see Smoke Shop, LLC v. United States, 761 F.3d 779,
782 (7th Cir. 2014), timely exhaustion cannot be accomplished now. So, the tort claims
should have been dismissed with prejudice for failure to exhaust.
Last is Wilson’s breach‐of‐contract claim. The Postal Service argued that only the
Court of Federal Claims has jurisdiction over this claim, but that is incorrect. See 28
U.S.C. § 1346(a)(2) (district court has original jurisdiction, concurrent with the Court of
Federal Claims, of express or implied contract actions against the United States that do
not exceed $10,000), § 1500 (Court of Federal Claims lacks jurisdiction if related claims
are pending in another court). Further, it appears that Wilson’s contract claim pertains
to a collective bargaining agreement, and so Wilson’s first line of recourse was under
the collective bargaining agreement itself; he was required to exhaust the grievance
process before reaching the district court. Vail v. Raybestos Prod. Co., 533 F.3d 904, 908
(7th Cir. 2008). Wilson gives us no reason to believe that he did so, therefore dismissal
was appropriate.
We have considered Wilson’s other arguments and have concluded that none
merits discussion. See Parker, 845 F.3d at 816.
AFFIRMED