Tyson v. Brennan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
HOWARD T. TYSON, SR., )
)
Plaintiff, )
)
v. ) Civil Action No. 16-1678 (FYP)
)
LOUIS DEJOY, Postmaster General, 1 )
)
Defendant. )
)

MEMORANDUM OPINION

Plaintiff Howard T. Tyson, Sr., is a former employee of the United States Postal Service

(“USPS”). He initiated this action, pro se and in forma pauperis, against the Postmaster General

of the USPS, alleging that the USPS discriminated against him based on his religion, in violation

of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17. See ECF No. 26

(Second Amended Complaint), ¶¶ 1–2. He seeks monetary relief, including lost wages and

compensatory damages for emotional distress. 2 See id., ¶ 5. Currently before the Court is

USPS’s motion for summary judgment. See ECF No. 41. Upon review, the Court agrees with

USPS that most of the actions allegedly taken against Tyson were not materially adverse, and

1
Mr. DeJoy is automatically substituted as defendant for his predecessor, pursuant to Fed. R. Civ. P. 25(d).
2
Tyson also seeks punitive damages, see Sec. Am. Compl. at “Relief” ¶ 4. But Title VII allows only the
award of compensatory damages against the federal government. See 42 U.S.C. § 1981a(b)(1) (“A complaining
party may recover punitive damages under this section against a respondent (other than a government, government
agency or political subdivision) if [he] demonstrates that the respondent engaged in a discriminatory practice[.]”)
(emphasis added); see also McAlister v. Potter, 733 F. Supp. 2d 134, 146 (D.D.C. 2010) (noting that Title VII
“preclude[s] punitive damages against government agencies”). Tyson’s claim for punitive damages is therefore
dismissed. Tyson also seeks attorney’s fees. See Sec. Am. Compl. at “Relief” ¶ 5. Generally, pro se litigants
cannot recover attorney’s fees. See Lawrence v. Bowsher, 931 F.2d 1579, 1581 (D.C. Cir. 1991) (finding that pro se
litigant was not entitled to attorney’s fees in discrimination suit). To the extent that he seeks fees arising from the
representation of his prior counsel, Tyson has submitted no information to support such an award and that claim is
also denied.

1
even where such actions may have been materially adverse, there is no evidence of

discriminatory animus on the part of USPS. As explained in more detail below, the motion for

summary judgment will be granted.

FACTUAL BACKGROUND

Tyson was employed by USPS from November 1992 until his retirement in September

2015. See ECF No. 41-7 (Declaration of Ronald A. Ramos), ¶¶ 4–10; ECF No. 46 (Plaintiff’s

Opposition) at 4. 3 In either late 2009 or early 2010, Tyson began working as a mail handler at

the Government Mails Facility (“GMF”) in Washington, D.C. See Ramos Decl., ¶¶ 5–6. At

GMF, Tyson’s first-level supervisor was Osha Davis, and his second-level supervisor was Cecil

Harriston, the GMF Plant Manager. See ECF No. 41-9 (Exhibits to the Declaration of Richard

G. Saliba), Ex. 9 (EEO Investigative Affidavit signed by Cecil Harriston) at 1–2; Pl. Opp. at 11.

Tyson asserts that Harriston harbored religious discriminatory animus against him. See Sec. Am.

Compl., ¶ 74–77. Harriston, who has since passed away, formally denied those allegations. See

Sec. Am. Compl., ¶ 66; ECF No. 49 (Defendant’s Reply) at 7 n.5; USPS Ex. 1 (Information for

Pre-EEO Complaint) at 3; USPS Ex. 9.

Tyson alleges that when he played gospel music at work, Harriston discriminated against

him. See Sec. Am. Compl. ¶¶ 6–7, 13; ECF No. 46-2 (Plaintiff’s Opposition Exhibits), at 9.

According to Tyson, Harriston “told [Tyson] to turn down” his music on June 9, 2010. See Sec.

Am. Compl., ¶ 6, 13, 15; USPS Ex. 2 (EEO Complaint of Discrimination). Tyson’s co-worker,

Sharon D. Nelson stated in a declaration that she listened to gospel music with Tyson, and that

Harriston removed their radio because they listened to Christian music. See Pl. Opp. Exs. at 22.

Nelson also noted that other employees listened to secular music with no incident. See id.

3
Hereinafter, reference to any page numbers from Tyson’s pro se filings refer to those that the Court’s
electronic case filing system automatically assigns.

2
Another co-worker, Chris Tate, stated in another declaration that he and others had no issues

playing secular music on the job, and that Harriston “bothered Tyson.” See id. at 9. 4

Tyson identified with the Christian denominations of Pentecostal and Holiness. See

USPS Ex. D at 52–55. Harriston testified that he was unaware of Tyson’s religious affiliations,

and that Harriston asked Tyson to turn the music down because it was too loud. Id. at 56–57;

USPS Ex. 9 at 4. At one point, Tyson attempted to “anoint” Harriston with holy oil because he

“wanted to see [Harriston] blessed.” See USPS Ex. D at 41. According to Tyson, Harriston

responded by saying “[d]on’t come at me with that stuff.” Id. 5

On March 25, 2011, Tyson received a letter from Gerald A. Roane, who was then the

Postmaster of Washington, D.C., stating that Tyson’s job would “become excess to the needs” of

his section at GMF, and that he would be reassigned to a different position, effective April 2,

2011. See USPS Ex. C (Mar. 25, 2011 Roane Letter); see also ECF No. 41-6 (Declaration of

Gerald A. Roane), ¶ 1. The letter advised Tyson that he would have “retreat rights,” which

would entitle him to be rehired at GMF if a vacancy opened at that facility. 6 See USPS Ex. C.

USPS avers that, during this period, mail handlers were being reassigned from GMF to other

facilities in the region due to declining mail volume. See Roane Decl., ¶¶ 2–6; ECF No. 41-5

(Declaration of Christopher B. Cole 7), ¶ 6.

4
Tyson also alleges that Harriston breached agency and/or National Postal Mail Handlers Union (“Union”)
protocol by confronting him about the music, asserting that only his immediate supervisor, Davis, was authorized to
directly address him regarding this issue. See Sec. Am. Compl., ¶¶ 9–12; ECF No. 41-4 (USPS Exhibits), Ex. D (Pl.
Deposition Excerpts) at 42, 44. Because Tyson did not feel obligated to take orders from Harriston, Tyson
admittedly felt comfortable openly disagreeing with Harriston about his directives. See ECF No. 41-1 (Defendant’s
Memorandum) at 4; USPS Ex. D at 43–4.
5
Tyson acknowledged that he did not know what Harriston thought about Tyson’s Christian beliefs. See
USPS Ex. D at 49, 53.
6
The later stated that Tyson would “retain the right to retreat to the section upon the occurrence of the first
residual vacancy in the salary level after employees in the section have completed bidding. Failure to bid for the
first available vacancy w[ould] end such retreat right.” See USPS Ex. C.
7
Christopher B. Cole is a former Supervisor of Customer Services in Washington D.C., from April 2006 to
December 2011, and a current Program Training Administrator. See Cole Decl., ¶¶ 1-5.

3
 On March 26, 2011, Tyson’s position at GMF was formally eliminated, and he was

reassigned to work as a mail handler at the Curseen-Morris Processing and Distribution Center

(“Curseen-Morris”), also in Washington, D.C. See Ramos Decl., ¶ 6. Although Tyson implies

that his reassignment was the result of his friction with Harriston, he does not allege that the

transfer was an adverse action. See Sec. Am. Compl., ¶ 15; ECF No. 57 (Plaintiff’s

Supplemental Memorandum) at 6. In October 2012, Tyson was promoted to the position of

Group Leader Mail Handler. See Ramos Decl., ¶ 7. 8

In May 2014, a mail handler position became vacant at GMF. See Cole Decl., ¶ 9. Cole

assumed that the vacancy would be filled and posted a job announcement for the position. Id., ¶

9; USPS Ex. 4 (GMF Job Posting). On May 19, 2014, Cole determined that Tyson had retreat

rights to fill the position, and he issued an Offer of Retreat Rights letter to Tyson for the vacant

position. See Cole Decl., ¶ 9; USPS Ex. 5 (May 19, 2014 Offer Letter). Tyson advised Cole that

he wished to exercise his retreat rights and accepted the job “on the spot.” See Cole Decl., ¶ 10;

Sec. Am. Compl., ¶ 27.

Approximately one week later, however, Cole learned at a management meeting that he

should not have issued the Offer of Retreat Rights to Tyson because USPS management had

chosen to “revert” or eliminate the vacant mail handler position, due to the decreasing need for

mail handlers at GMF and other facilities. See Cole Decl., ¶ 11. The decision to “revert” the

position was made by Roane, who attests that he was unaware of and made no decisions based

on Tyson’s religion. See USPS Ex. 10 (EEO Investigative Affidavit signed by Roane) at 4.

8
On October 17, 2012, Tyson was injured while transferring mail from a dolly. See USPS Ex. D at 19.
Shortly thereafter, he filed a claim with the Department of Labor’s Office of Workers’ Compensation Programs for a
traumatic injury, described as “a lumbar sprain, an aggravation of lumbar stenosis, and a displacement of a lumbar
intervertebral disc without myelopathy.” See USPS Ex. E (Nov. 16, 2015 Dep’t of Labor Worker’s Compensation
Decision) at 1. On December 27, 2013, Tyson returned to work as a Group Leader Mail Handler at Curseen-Morris
and was assigned limited-duty work based on his needs request. See Ramos Decl., ¶ 9.

4
Because the position was eliminated, no one could exercise retreat rights for the position. 9 See

Cole Decl., ¶ 11.

On May 21, 2014, Tyson states that he was called into the office of Curseen-Morris

Senior Manager Yolanda Sanders, who informed him that the mail handler position at GMF had

been reverted and the offer of that position to Tyson was rescinded. See Sec. Am. Compl., ¶¶

28–29. She did not provide him with documentation but indicated that the Union would provide

him with a letter confirming the reversion. Id., ¶¶ 29–31; ECF No. 63 (Plaintiff’s Supplemental

Memorandum VI) at 2–3. Tyson contacted his Union representative, Lamar Grigsby, who stated

that he did not have such a letter. See Sec. Am. Compl., ¶ 32. Tyson then called the Union’s

main office and reached a “Mr. Dick.” Id., ¶ 33. Dick allegedly stated that if Grigsby did not

have a letter of reversion, then Tyson should report to GMF to fill the mail handler position. Id.,

¶ 36.

On May 29, 2014, Cole sent a letter to Grigsby, advising him that the vacant GMF

position had been eliminated. See Cole Decl., ¶ 12; USPS Ex. 6 (May 29, 2014 Letter). The

letter notes that “[t]he reason for this action is the change in mail volume and retail revenue

which has resulted in the need to identify staffing efficiencies and changes at the Government

Mails.” See USPS Ex. 6. 10

On June 4, 2014, Sanders provided Tyson with a letter confirming that the retreat position

was “rescinded due to Management rights to revert the position.” See USPS Ex. 7 (Jun. 4, 3014

9
Tyson also alleges that USPS failed to comply with the Union’s waiting period and notice requirements,
which allow eligible existing USPS employees to “bid” on a vacant duty position during a ten-day holding period,
but also provides that no “bids” should be posted if a retreat offer is made. See Sec. Am. Compl., ¶¶ 18–24. Tyson
reads this provision to mean that he should have been preliminarily offered the position outright before it was
inadvertently posted. See id. USPS, however, maintains that the position should not have existed in the first place.
See Cole Decl., ¶ 11; USPS Ex. 10.
10
Although Tyson argues that he should have received a copy of the May 29, 2014, letter, it is unclear why he
believes that he was entitled to receive a copy of a formal communication between USPS and the Union. See Pl.
Opp. at 20; Pl. Supp. Mem. VI at 2.

5
Letter); Sec. Am. Compl., ¶ 39. The notification letter was signed by Cole 11 and sent under

cover of the typed signature of Postmaster Roane. See USPS Ex. 7. Roane avers that Cole had

full authority to independently send the document under Roane’s signature block. 12 See Roane

Decl., ¶ 8; Cole Decl., ¶ 13.

Tyson contends that he spoke with Roane, either in passing or by phone, approximately

four times in the first part of June, and at none of those times did Roane state that the position at

GMF was reverted. See Pl. Opp. at 7; Pl. Opp. Exs. at 8; Pl. Supp. Mem. VI at 3–4. According

to Tyson, on June 6, 2014, Roane said that he did not recall issuing the letter, had not rescinded

the position, and stated that if his signature was not on the letter, it was invalid. See USPS Ex. F

(Excerpts from Pl.’s Answers to Interrogatories) at 1. Tyson asserts that, at Roane’s request,

Tyson brought the letter to Roane’s office for review, leaving it with his secretary. See id.; Sec.

Am. Compl., ¶¶ 47–48. Tyson alleges that on June 13, 2014, Roane instructed him to report to

GMF to fill the retreat position. See USPS Ex. F at 1; Sec. Am. Compl., ¶ 49. Roane denies that

he ever instructed Tyson to report to GMF, and further denies that he interacted with Tyson more

than once. See USPS Ex. 9 at 2; USPS Ex. 10 at 2.

On June 16, 2014, at 11:30 a.m., Tyson clocked in at GMF and met with Harriston. See

USPS Ex. F at 1; Sec. Am. Compl., ¶ 50. Tyson alleges that Harriston was hostile to him in

front of others upon his arrival. See Sec. Am. Compl., ¶ 51. According to Tyson, Harriston

11
Cole also attests that, between June 4, 2014 and June 16, 2014, he encountered Tyson and personally
informed him again that the vacant mail handler retreat position “was not going to be filled by anyone because
management was eliminating the position[,]” and that no mail handlers would be transferred from Curseen-Morris to
GMF because there was not enough work available. See Cole Decl., ¶ 14.
12
Tyson argues, without evidentiary basis, that Roane never offered his approval for this notification letter,
and that it was, essentially, forged. See Pl. Supp. Mem. VI at 4. In support, he attaches USPS’s answers to his
requests for admissions, claiming that therein, USPS “admitted that Gerald Roane was not the person who instructed
Christopher Cole to draft the revert letter.” Id. He misinterprets this admissions response, however; the attached
admission reads as a double-negative, attesting that Roane did, in fact, offer such approval. See id. at Ex. 1
(Response No. 14.)

6
initially informed him that there was no position for him at GMF. See id., ¶ 54. Tyson

responded that he was reporting to GMF under Roane’s instructions and that the reversion letter

was “in question.” See id., ¶ 55. Thereafter, Harriston instructed Tyson to report to a group

leader temporarily, for a limited-duty assignment. See USPS Ex. F at 1. Harriston did not have

authority to offer Tyson a permanent position at GMF, see id., and Harriston contends that he

was confused because he had no notice that Tyson would be reporting to GMF. See USPS Ex. 9

at 2. Harriston then contacted Roane, who stated that he had not instructed Tyson to report to

GMF. See id. In the meantime, Tyson worked at GMF for three hours. See USPS Ex. F at 1.;

Sec. Am. Compl., ¶¶ 59–60. Shortly thereafter, Harriston instructed Tyson to report back to

Curseen-Morris. See USPS Ex. F at 1; Sec. Am. Compl., ¶¶ 61–62. Tyson reported to Curseen-

Morris at 3:30 p.m. that same afternoon. See Sec. Am. Compl., ¶ 63.

On June 20, 2014, Tyson filed a pre-complaint with the Equal Employment Opportunity

Commission (“EEOC”) (Case No. lk-206-0049-14). Id., ¶ 64; USPS Ex. 1. On July 21, 2014,

Tyson filed a formal complaint with the EEOC, alleging that Harriston (1) discriminated against

him in 2011 by asking him to turn down his gospel music; and (2) allowed the vacant GMF

position to be posted “and said nothing about not needing help until [Harriston] was told that

[Tyson] was accepting [his] retreat rights.” See USPS Ex. 2 at 1. In other words, Tyson

contended that the GMF position was eliminated because Harriston did not want him to return to

GMF. See id. On April 21, 2016, the EEOC entered judgment in favor of USPS. See Def.

Mem. at 8. Tyson continued working as a mail handler at Curseen-Morris until his retirement

based on disability on September 8, 2015. See Ramos Decl., ¶ 10; Pl. Opp. at 1–2. The mail

handler position at GMF was never filled, and no mail handlers retreated to GMF in 2014. See

Cole Decl., ¶ 17; Reardon Decl., ¶ 3.

7
 PROCEDURAL HISTORY

On October 24, 2016, USPS filed a preliminary motion to dismiss, ECF No. 9. Tyson,

proceeding pro se at the time, filed an opposition, ECF No. 13; but he also filed a first amended

complaint, ECF No. 14, rendering the pending motion to dismiss moot, see Dec. 22, 2016 Min.

Ord. On December 15, 2016, USPS filed another motion to dismiss and/or for summary

judgment, ECF No. 15, in response to the first amended complaint. On September 27, 2017, and

after considering briefing by all parties, the Court denied the motion, see Sept. 27, 2017 Mem.

Op. & Ord., ECF No. 24, finding that the allegations contained in Tyson’s amended complaint

were sufficient to state a plausible claim for discrimination, and that consideration of summary

judgment was premature, see id. Tyson filed a second amended complaint on February 8, 2018,

ECF No. 26.

After discovery closed on May 31, 2019, USPS filed its pending motion for summary

judgment and memorandum in support on June 28, 2019. In the motion, USPS argued that: (1)

the reversion of the GMF mail handler position did not constitute a materially adverse

employment action, and (2) in any event, USPS proffered legitimate and non-discriminatory

reasons for the reversion. See Def. Mem. at 12–18. In response, Tyson filed an opposition and

USPS filed a reply. Tyson then filed an “addendum” to his opposition, ECF No. 50 (Plaintiff’s

Addendum), and a “reply,” ECF No. 51 (Plaintiff’s Surreply). 13

On May 30, 2020, the Court entered an order directing both parties to submit

supplemental briefing on the motion for summary judgment. See ECF No. 54. The Court

13
Tyson did not seek leave to file the addendum, but he filed a motion for leave to file the reply, ECF No. 52.
USPS declined to take a position regarding the two documents. See ECF No. 53, USPS Response. Given Tyson’s
pro se status, the Court will grant Tyson leave to file these documents and has considered the contents of both
filings.

8
ordered supplemental briefing on whether USPS is entitled to summary judgment with respect to

Plaintiff’s claims regarding: (1) the withholding of permission to play gospel music in the

workplace and the alleged scrutiny and monitoring of Plaintiff based on his religion; (2) his 2011

transfer to Curseen-Morris, and (3) retaliation. Id. at 2.

On June 30, 2020, USPS filed its supplemental memorandum, ECF No. 55 (USPS

Supplemental Memorandum), and Tyson filed his supplemental memorandum on August 30,

2020, ECF No. 57 (Plaintiff’s Supplemental Memorandum I). On October 8, 2020, Tyson filed,

without leave of Court, a second supplemental memorandum, ECF No. 58 (Plaintiff’s

Supplemental Memorandum II). He then filed a third supplemental brief, ECF No. 60

(Plaintiff’s Supplemental Memorandum III), on October 22, 2020; a fourth supplemental brief,

ECF No. 61 (Plaintiff’s Supplemental Memorandum IV), on November 10, 2020; a fifth

supplemental brief on November 23, 2020; a sixth supplemental brief on November 25, 2020;

and a seventh and final supplemental brief on December 24, 2020. 14

In his supplemental briefing, Tyson presents arguments in support of his claim of

religious discrimination based on Harriston’s restriction of Tyson’s playing of Christian music at

his workstation. See Pl. Supp. Mem. at 5–6. Without leave of Court, Tyson also includes

additional arguments in support of his discrimination claim based on the reversion of the GMF

14
Tyson raises several concerns regarding his former counsel in this supplemental briefing. See Pl. Supp.
Mem. II at 1–5; Pl. Supp. Mem. III at 1–3. He suggests that counsel filed a “first amended complaint” instead of a
second amended complaint, and that this “first amended complaint” was mistitled, untimely, and contained various
other misnomers and spelling errors. See Pl. Supp. Mem. II at 1–5; Pl. Supp. Mem. III at 1–3; Pl. Supp. Mem. IV at
1–2. The Court notes that, despite Tyson’s belief, counsel filed a timely second amended complaint, and the second
amended complaint does not contain the misnomers, misspellings, or other errors, that are noted by Tyson. See
generally Sec. Am. Compl. Tyson also states that he did not approve the contents of this pleading, including an
additional claim for retaliation. See Pl. Supp. Mem. III at 3. The Court notes that the second amended complaint
does not contain a formal claim for retaliation, though the word “retaliation” is mentioned. See Sec. Am. Compl. ¶¶
74, 83. He also alleges that the pleading (1) failed to include a claim of religious discrimination, and (2) omitted the
facts regarding the reversion. See Pl. Supp. Mem. V at 1; id. at Ex. 1; Pl. Supp. Mem. VI at 1; id. at Ex. 1. The
Court notes that the pleading does in fact contain such information, as well as an explicit cause of action for
religious discrimination. See generally Sec. Am. Compl.

9
mail handler position. See Pl. Supp. Mem. V at 1–3; Pl. Supp. Mem. VI at 1–4; id. at Ex. 1; Pl.

Supp. Mem. VII at 1; id. at Ex. 1.

LEGAL STANDARD

I. Standard of Review – Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be

granted “if 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.” See Fed. R. Civ. P. 56(a); accord Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly

granted against a party who “after adequate time for discovery and upon motion . . . fails to make

a showing sufficient to establish the existence of an element essential to that party's case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). In ruling on a motion for summary judgment, a court must draw all justifiable

inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true.

Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than “the mere

existence of a scintilla of evidence” in support of its position. Id. at 252. In addition, the

nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton,

164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that

would enable a reasonable jury to find in its favor. Id. at 675. If the evidence “is merely

colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249–50 (citations omitted).

II. Discrimination under Title VII

Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment

Opportunity Act of 1972, prohibits status-based discrimination in federal and District of

10
Columbia workplaces. See 42 U.S.C. § 2006; see also Equal Employment Opportunity Act of

1972, Pub. L. 92-261, sec. 10, § 715, 86 Stat. 103, 111, codified as amended at 41 U.S.C. §

2000e-16 (extending Title VII to the federal government and the District of Columbia). It

prohibits a federal employer or the District of Columbia from making any personnel decisions

based on an employee's race, color, sex, religion, or nationality. See 42 U.S.C. § 2000e–16;

Baird v. Gotbaum, 792 F.3d 166, 168 (D.C. Cir. 2015). The “two essential elements of a

discrimination claim” under Title VII are “that (i) the plaintiff suffered an adverse employment

action (ii) because of the plaintiff’s race, color, religion, sex, [or] national origin.” Baloch v.

Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008) (collecting cases).

The first element, an “adverse employment action,” is an established legal term. See

generally, Douglas v. Donovan, 559 F.3d 549, 551–52 (D.C. Cir. 2009); Ginger v. Dist. of

Columbia, 527 F.3d 1340, 1343 (D.C. Cir. 2008). It means “a significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly different

responsibilities, or a decision causing significant change in benefits.” Taylor v. Small, 350 F.3d

1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761

(1998)). An employee must “experience[] materially adverse consequences affecting the terms,

conditions, or privileges of employment or future employment opportunities such that a

reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,

1131 (D.C. Cir. 2002); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)

(distinguishing between non-actionable “purely subjective injuries” and actionable “objectively

tangible harm”). An actionable adverse action “in most cases inflicts direct economic harm.”

Burlington Indus., 524 U.S. at 762.

If a plaintiff can summon direct evidence of discriminatory intent, such evidence will

11
“generally entitle plaintiff to a jury trial” and defeat a defendant's motion for summary judgment.

See Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576 (D.C. Cir. 2013) (per curiam) (quoting Vatel

v. Alliance of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)). But if a plaintiff can only

adduce circumstantial evidence of discrimination, courts must then apply the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

To establish a prima facie case of discrimination under this framework, a plaintiff bears

the burden of showing that (1) she “is a member of a protected class;” (2) she “suffered an

adverse employment action;” and (3) “the unfavorable action gives rise to an inference of

discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (citation omitted). If a

plaintiff establishes a prima facie case, the burden then shifts to the employer “to articulate some

legitimate, nondiscriminatory reason” for its actions. McDonnell Douglas, 411 U.S. at 802.

While this framework generally requires a plaintiff to bear the initial burden of making

out a prima facie case of discrimination, the D.C. Circuit has clarified that courts “need not—and

should not—decide whether the plaintiff actually made out a prima facie case under McDonnell

Douglas,” where (1) “an employee has suffered an adverse employment action” and (2) “an

employer has asserted a legitimate, non-discriminatory reason for the decision.” Brady v. Office

of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). Thus, where an

employer asserts a legitimate, nondiscriminatory reason for an adverse employment action, “the

burden-shifting framework disappears, and a court reviewing summary judgment looks to

whether a reasonable jury could infer intentional discrimination . . . from all the evidence.”

Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).

To do so, at the summary judgment stage, courts may consider the following evidence:

(1) a plaintiff’s prima facie case; (2) any evidence plaintiff presents to rebut the employer's

12
explanations for its actions, and; (3) any additional “evidence of discrimination that may be

available to the plaintiff (such as independent evidence of discriminatory statements or attitudes

on the part of the employer).” Hampton v. Vilsack, 685 F.3d 1096, 1100 (D.C. Cir. 2012);

Carter, 387 F.3d at 878. A plaintiff’s own disagreement with, or disbelief of, the employer's

explanation cannot alone “satisfy the burden of showing that a reasonable jury could find that the

employer's asserted reason was not the actual reason and that the employer intentionally

discriminated against the plaintiff on a prohibited basis.” Burton v. District of Columbia, 153 F.

Supp. 3d 13, 58 (D.D.C. 2015).

To demonstrate that the employer's stated reasons were pretextual, a plaintiff may cite

“the employer's better treatment of similarly situated employees outside the plaintiff’s protected

group, its inconsistent or dishonest explanations, its deviation from established procedures or

criteria, or the employer's pattern of poor treatment of other employees in the same protected

group as the plaintiff[.]” Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (citing

Brady, 520 F.3d at 495 & n. 3). If relying solely on evidence of pretext, however, a plaintiff

seeking to survive summary judgment must demonstrate that a “reasonable jury not only could

disbelieve the employer's reasons, but also could conclude that the employer acted, at least in

part, for a prohibited reason.” Id. at 1096. Thus, in considering such evidence, the D.C. Circuit

has emphasized that a court “does not sit as a super-personnel department that reexamines an

employer's business decisions and may not second-guess an employer's personnel decision

absent demonstrably discriminatory motive.” Wheeler v. Georgetown Univ. Hosp., 812 F.3d

1109, 1114 (D.C. Cir. 2016) (internal quotation marks and citations omitted).

ANALYSIS

I. Restrictions on Gospel Music

13
 In his supplemental briefing, Tyson stresses that his religious discrimination claim is

solely predicated on Harriston’s demands that Tyson turn his gospel music down or off. See Pl.

Supp. Mem. at 5–6; Pl. Supp. Mem. II at 4. Tyson maintains that these actions constituted

disparate treatment because other employees who listened to secular music were not subjected to

similar restrictions. See id. USPS disagrees, contending that Tyson was never fully prevented

from listening to gospel music, but instead was asked on certain occasions to lower the volume

because it was too loud. See USPS Supp. Mem. at 5 (citing USPS Ex. 2; USPS Ex. D at 57; Sec.

Am. Compl., ¶ 6; USPS Ex. 9) (other citations omitted.)

Assuming, arguendo, that Tyson’s version of events is accurate, and drawing all

reasonable inferences in his favor, Harriston’s alleged behaviors “though annoying and

inconvenient, do not constitute materially adverse action[s].” Lewis v. District of Columbia, 885

F. Supp. 2d 421, 428 (D.D.C. 2012) (citation and quotation omitted); see also Burlington

Northern & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (explaining that Title VII requires

material adversity because “it is important to separate significant from trivial harms”); Taylor v.

Solis, 571 F.3d 1313, 1321 (D.C. Cir. 2009) (holding that minor “inconveniences and alteration

of job responsibilities do not rise to the level of [an] adverse action”). Although Tyson was

unhappy about the allegedly unfair treatment, “not everything that makes an employee unhappy

is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C. Cir. 2001) (citation

omitted); Broderick v. Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006) (same).

The Court is not aware of any authority to support Tyson’s claim that a mere constraint

on his ability to play music of his preference in his work area constitutes an adverse employment

action. To the contrary, courts have held that “an employee’s complaints about his or her

workstation do not involve a significant change in employment status required to be an adverse

14
action under Title VII[.]” Coakley-Simelton v. Georgetown Univ., No. 18-cv-2014, 2020 WL

4569423, at *18 (D.D.C. Aug. 7, 2020) (citing Brodetski v. Duffey, 141 F. Supp. 2d 35, 45

(D.D.C. 2001)); see also Lester v. Nastios, 290 F. Supp. 2d 11, 27–30 (D.D.C. 2003) (concluding

that close supervision or being “watched” does not constitute an adverse employment action that

can support a Title VII claim). While the alleged restriction on his music likely felt unfair,

“[i]nconvenience and loss of enjoyment of life, while certainly meaningful to [Tyson], are not

cognizable under Title VII[.]” See Gunning v. Runyon, 3 F. Supp. 2d 1423, 1429 (S.D. Fla.

1998).

For these reasons, Tyson’s allegations of religious discrimination based on disparate

treatment, arising from restrictions placed on his ability to play religious music at his

workstation, cannot constitute an adverse action under Title VII, and USPS is therefore entitled

to summary judgment on that claim.

II. Reversion 15 of Position at GMF

Tyson claims that the rescission of his offer to fill the mail handler position at GMF was

discriminatory because Harriston, motivated by animus, somehow caused the position to be

eliminated after he learned that Tyson would be selected to fill it. See Pl. Opp. at 11; Pl. Surrp.

at 6; USPS Ex. D at 44. A discriminatory denial of a lateral transfer can be actionable under

Title VII, provided there exists an adverse impact on the employee’s potential for career

advancement. See Stewart v. Ashcroft, 352 F.3d 422, 426 (D.C. Cir. 2003). But “[a] court

second-guessing an employer's decision not to create a position in order to transfer an employee .

15
In his supplemental briefing, Tyson discusses the meaning of the word “revert,” implying that it should
logically mean the “return” of a mail handler position at GMF to him. See Pl. Supp. Mem. VI. This interpretation
lacks merit because the term “revert” is a term of art at USPS that is widely understood to mean “eliminate” and the
elimination of the position in question was approved by several USPS supervisors. See Def. Mem. at 5–6; Cole
Decl., ¶ 11; See USPS Ex. 10.

15
. . [can] threaten[] impermissible judicial micromanagement of business practices . . . allowing

any perceived workplace slight to be the subject of a Title VII action.” Morrison v. Mills, 928 F.

Supp. 2d 241, 247 (D.D.C. 2013) (citing Baloch, 550 F.3d at 1197) (internal quotation marks

omitted).

Even assuming, arguendo, that Tyson experienced a denial of transfer or a lateral

transfer, 16 and that USPS’s actions caused him materially adverse consequences, 17 USPS has

provided legitimate business reasons for its actions and there is no evidence of pretext or

discriminatory animus. USPS relies on evidence that the announcement of the mail handler

position at GMF was posted mistakenly and offered to Plaintiff in error. See Def. Mem. at 1–2,

12, 14, 16; Cole Decl., ¶ 11; Roane Decl., ¶ 8; USPS Ex. 9 at 2; USPS Ex. 10 at 2. USPS attests

that the position was eliminated and never filled because decreased mail volume “resulted in

insufficient work to justify [mail hander] positions” at some facilities, including GMF. See

Roane Decl., ¶¶ 2–6; Cole Decl., ¶¶ 11, 14, 17; Reardon Decl., ¶ 3; USPS Ex. 9 at 3. Tyson

disbelieves USPS’s representations because, he asserts, “employees junior to [him]” in another

building were transferred to GMF to “do work.” See USPS Ex. D at 31. Tyson offers no other

evidence to support that vague and conclusory statement, and such a statement alone is

insufficient to create a genuine dispute of a material fact.

16
USPS argues first that Tyson was not denied a lateral transfer to GMF because the vacancy posting was a
simple mistake, evidenced by its swift rescission and the fact that it was never filled. See Cole Decl., ¶ 14; Def.
Mem. at 12–14. USPS also disagrees with Tyson that his acceptance of this non-existent position and his presence
and clock-in at GMF for approximately three hours provided him with status as a GMF employee such that his
return to Curseen-Morris constituted a lateral transfer. See USPS Ex. F at 1–2.
17
As noted, a material adverse consequence consists of a considerable change in benefits, significantly
different responsibilities, a lost promotion, or a termination. See Johnson v. Maddox, 230 F. Supp. 2d 1 (D.D.C.
2002). Tyson claims that he experienced a loss in benefits because a position at GMF would have resulted in “less
stress, less harassment, having to deal with less people[,]” namely avoiding occasional friction with Curseen-Morris
co-workers and working preferable shifts. See USPS Ex. D. at 78–80; USPS Ex. F at 2; Pl. Opp. at 16. Tyson also
claims that he lost the potential for increased overtime pay at GMF. See Pl. Opp. at 1–2; ECF No. 46-1 (Plaintiff
Declaration), at 56–57. Finally, he claims that he is entitled to out-of-schedule pay for the inconvenience of working
at hours considerably less advantageous than those he would have worked at GMF. See Pl. Opp. at 2; Pl. Decl. at
13; Pl. Surrp. at 1, 7.

16
 Tyson insists that the elimination of the vacant position was entirely personal and

motivated by Harriston’s animus against Tyson’s religious expression. See Pl. Opp. at 11; Pl.

Decl., ¶¶ 49–50, 53; Pl. Surrp. at 6; USPS Ex. D at 44. But although Tyson vaguely alleges that

Harriston “had a part” in composing the reversion letter sent by Cole and Roane, see Sec. Am.

Compl., ¶ 65; Pl. Decl., ¶ 52, he fails to explain what this “part” was and offers no evidence of

Harriston’s actual involvement. See Pl. Opp. at 6, 8, 11–12, 15, 17; Pl. Opp. Add. at 3; Pl. Surrp.

at 4. Cole, Roane, and Harriston all averred in sworn statements that Harriston did not

participate in the reversion decision. See Cole Decl., ¶ 15; Roane Decl., ¶ 9; USPS Ex. 9 at 2.

Beyond Tyson’s own conjecture, he has failed to offer any admissible evidence controverting

those sworn statements. Absent any connection between Harriston and the decision to revert the

GMF mail handler position, there is no evidence that the reversion had anything to do with

Tyson’s religion.

At bottom, Tyson’s arguments are supported only by his own unsubstantiated beliefs, 18

which are insufficient grounds for a reasonable juror to conclude that USPS’s decision-making

was “was so far off base as to suggest that [it] acted with a [discriminatory] motive.” Burley v.

Nat'l Passenger Rail Corp., 801 F.3d 290, 299 (D.C. Cir. 2015). A plaintiff's allegations that are

“generalized, conclusory and uncorroborated by any evidence other than the plaintiff’s own

deposition testimony” are “insufficient to establish a triable issue of fact”— at least where the

nature of the purported factual dispute reasonably suggests that corroborating evidence should be

available. See Akridge v. Gallaudet Univ., 729 F. Supp. 2d 172, 183 (D.D.C. 2010); see also

Gen. Elec. Co. v. Jackson, 595 F. Supp. 2d 8, 36 (D.D.C. 2009) (observing that when a

18
Tyson also attaches an unsworn and unauthenticated document, which contains statements of unknown
origin and whose author is unidentified. See Pl. Opp. Exs. at 27. The document alleges that USPS could not revert a
position after it was posted or offered. See id. No other argument, authority, or information is provided to support
of this contention, and even if this were true, it does not create a dispute regarding discriminatory animus.

17
“declaration is self-serving and uncorroborated” it is “of little value at the summary judgment

stage”). 19

USPS admits that it erred, both in posting the position and in failing to communicate

effectively with Tyson and the Union. Those administrative failures fueled Tyson’s suspicions,

and caused him frustration and disappointment. But the Court’s careful review of the record

reveals no evidence to suggest illicit coordination among USPS employees and management to

deny Tyson his earned right of first refusal, and certainly not based on his religion. Although

Tyson provides a detailed breakdown of his alleged communications with Roane, Grigsby, and

Sanders, even the most generous interpretation of those events fails to raise a material dispute

about whether the position at GMF was reverted for nefarious reasons. Thus, Tyson fails to cast

any doubt on the legitimate business reason offered by USPS, and USPS is entitled to summary

judgment on Tyson’s claim based on the reversion of the GMS mail handler position.

III. Constructive Discharge

Tyson’s claim for “indirect” constructive discharge also must fail. See Sec. Am. Compl.,

¶ 83. He alleges that the reversion of the position at GMF caused him to continue working at

Curseen-Morris, where he suffered emotional distress and loss of enjoyment due to his fear of

being injured on the job. See id.; USPS Ex. D at 79; USPS Ex. F. at 3–4. He testified that he

sought psychological treatment for three years and was forced to retire early in September 2015

19
The Court is also unpersuaded by Tyson’s reliance on his own personal overtime records to rebut USPS’s
assertions about declining mail volume and staffing needs. First, Tyson’s paystubs are, in part, from the time that
Tyson worked at Curseen-Morris, not GMF. Second, and more importantly, the Court agrees with USPS that “the
payroll records of a single employee, or even a small subset of employees, are not sufficient to assess” USPS’s mail
levels or its complex employment needs or lack thereof. See Def. Reply at 5.
Nor may the Court consider an unauthenticated email, purportedly between Grigsby and his former
attorney. See Pl. Opp. Exs. at 5. In the email, Grigsby attempts to recall a conversation with Harriston, where the
latter explained to him that Harriston “had the job reverted because Tyson could not perform all of the duties that
c[a]me with the job.” See id. This document plainly contains hearsay and is inadmissible. See Bortell v. Eli Lilly
and Co., 406 F. Supp. 2d 1, 11 (D.D.C. 2005). In any event, the email, on its face, does not support Tyson’s theory
of religious discrimination.

18
due to this stress. See USPS Ex. D at 73; USPS Ex. F at 4. According to Tyson, if he had

worked at GMF instead, he would not have retired early and the GMF position “would have

extended [his] tenure through 2023.” See Pl. Surrp. at 6.

To prevail on a constructive discharge claim, Tyson would need to convince a jury that

(1) USPS discriminated against him; (2) USPS deliberately made working conditions intolerable;

and (3) aggravating factors justified his conclusion that he had no option but to end his

employment. See Clark v. Marsh, 665 F.2d 1168, 1173–74 (D.C. Cir. 1981). “The test for

constructive discharge is an objective one: whether a reasonable person in the employee's

position would have felt compelled to resign under the circumstances.” Aliotta v. Blair, 614 F.3d

556, 566 (D.C. Cir. 2010). “[C]ourts have agreed that the standard for constructive discharge is

quite high.” Veitch v. England, 471 F.3d 124, 134 (D.C. Cir. 2006) (Rogers, J., concurring).

The Court’s ruling, supra, that Tyson has failed to offer any evidence of USPS’s

discriminatory intent is fatal to Tyson’s constructive discharge claim. The Court is “left without

any discriminatory acts upon which [Tyson] could rest his constructive discharge claim[s].”

Mungin v. Katten Muchin & Zavis, 116 F.3d 1549, 1558 (D.C. Cir. 1997). Thus, USPS is

entitled to summary judgment with respect to that claim as well.

CONCLUSION

For the foregoing reasons, the Court will grant USPS’s motion for summary judgment,

and will enter judgment in favor of Defendant. A separate Order will issue this day.

Date: November 19, 2021

_______________________________
Florence Y. Pan
United States District Judge

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