Watson v. Brennan

Case: 23-10131         Document: 00516906585             Page: 1      Date Filed: 09/25/2023




              United States Court of Appeals
                   for the Fifth Circuit
                                      ____________
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit
                                       No. 23-10131
                                     Summary Calendar                                  FILED
                                     ____________                             September 25, 2023
                                                                                  Lyle W. Cayce
   Phile Andra Watson,                                                                 Clerk

                                                                     Plaintiff—Appellant,

                                             versus

   Megan J. Brennan, Postmaster General United States Postal Service,

                                                Defendant—Appellee.
                      ______________________________

                      Appeal from the United States District Court
                          for the Northern District of Texas
                                USDC No. 3:20-CV-181
                      ______________________________

   Before King, Haynes, and Graves, Circuit Judges.
   Per Curiam: *
          Pro se plaintiff Phile Andra Watson (“Watson”) is a sixty-year-old
   African American man (At the time of the original Complaint, Watson was
   fifty-six years old). Watson sued Megan J. Brennan, his former employer, in
   her official capacity as Postmaster General of the United States Postal Ser-
   vice (“USPS”). In the operative complaint, Watson alleges four claims: 1)

          _____________________
          *
              This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10131      Document: 00516906585           Page: 2   Date Filed: 09/25/2023




                                     No. 23-10131


   discrimination and retaliation based on his sex and age in violation of Title
   VII of the Civil Rights Act and The American Discrimination in Employ-
   ment Act; 2) hostile work environment; and 3) intentional infliction of emo-
   tional distress. USPS filed a motion for summary judgment on all claims on
   May 2, 2022. Watson filed a motion for summary judgment on May 3,
   2022. The district court granted the motion for summary judgment in favor
   of USPS on January 26, 2023. We AFFIRM.
                                    BACKGROUND
          In October 2017, Watson began employment with USPS at the
   North Carrier Annex in Fort Worth, Texas. He began a three-month proba-
   tionary period ending on January 21, 2018. As a Rural Carrier Associate
   (“RCA”), Watson sorted mail, delivered mail, and returned collected mail
   to the post office. He was responsible for successfully completing his deliv-
   eries within an “evaluated time,” the time allotted for each RCA to com-
   plete his or her route.
          Watson received formal training in the same manner as other new
   RCAs. Between his start date and the end of his probationary period, how-
   ever, Watson failed to timely sort mail, deliver mail, and complete any
   routes within the evaluated time. To improve his efficiency, Watson re-
   ceived more training and tips. Yet, other RCAs had to retrieve and deliver
   some of his mail and work excess hours to complete his tasks. Watson
   acknowledges that he would deliver mail later than other carriers and that
   his supervisor complained to him about timeliness. Because Watson could
   not complete his work in a timely fashion, Susan Knudsen, one of his super-
   visors, assigned him to a static route to deliver a limited number of parcels.
          At the thirty-day performance evaluation, Watson was rated “unsat-
   isfactory” in three performance areas—work quantity, work quality, and
   dependability. At the sixty-day performance evaluation, Watson had not




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   improved and received “unsatisfactory” in the same performance areas.
   During his second performance evaluation, Watson justified his inadequate
   performance by expressing that he was not properly trained. Ester Wilson,
   his supervisor, prepared a report recommending Watson be separated from
   service due to his failure to deliver express mail and his failure to complete
   his route within the evaluated time. Donna Dunker, USPS Human Re-
   sources manager, agreed with this recommendation and notified Watson of
   his termination on January 18, 2018.
          On January 18, 2018, Watson filed a discrimination charge with
   USPS and filed a formal Equal Employment Opportunity Commission com-
   plaint alleging discrimination and harassment. The EEOC administrative
   judge granted summary judgment in favor of USPS. Subsequently, USPS is-
   sued a final decision denying Watson’s claims.
          On January 24, 2020, Watson filed his original Complaint against
   Megan J. Brennan, in her official capacity as Postmaster General of the
   United States Postal Service. Watson alleged 1) wrongful termination, 2)
   sex and color discrimination, 3) age and sex discrimination, 4) harassment
   and bullying, 5) quid pro quo, 6) intentional infliction of emotional distress,
   7) mental anguish, and 8) emotional distress. The district court dismissed
   the case without prejudice on June 2, 2020, due to Watson’s failure to ef-
   fect service of process on the defendant. Watson filed a motion to reopen
   the case on June 23, 2020, and the district court reinstated the case on No-
   vember 19, 2020. Watson amended the original complaint on March 10,
   2021. Watson amended the second complaint on May 7, 2021. The second
   amended complaint, the operative complaint, alleges 1) unlawful discrimi-
   nation and retaliation based on his sex and age, 2) hostile work environ-
   ment, and 3) intentional infliction of emotional distress.




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                                     No. 23-10131


          On January 9, 2023, the magistrate judge submitted a report recom-
   mending that Defendant’s motion for summary judgment be granted and
   Plaintiff’s cross-motion be denied. The district judge reviewed the magis-
   trate judge’s report and Watson’s objections, and, after conducting a de
   novo review, adopted the magistrate judge’s report as the findings and con-
   clusions of the court and granted the Defendant’s motion.
          Watson now files this pro se appeal challenging the district court’s
   grant of Defendant’s motion for summary judgment.
                               STANDARD OF REVIEW
          This court reviews a grant of summary judgement de novo, applying
   the same legal standard as the district court. Sierra Club, Inc. v. Sandy Creek
   Energy Associates, L.P., 627 F.3d 134, 139 (5th Cir. 2009)(quotations omit-
   ted). Summary judgment should be rendered if the record demonstrates
   that “there is no genuine issue as to any material fact and that the movant is
   entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). To determine
   whether there is a fact issue, this court views the facts and the inferences to
   be drawn therefrom in the light most favorable to the nonmoving party.
   Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001).
                                      DISCUSSION
          We first address Watson’s discrimination claim based on his sex and
   age in violation of Title VII and the ADEA. The district court concluded that
   Watson (a) was not qualified for the position considering his performance
   issues, (b) did not establish that his proffered comparators were similarly
   situated or treated more favorably, and (c) did not establish that he was
   otherwise discharged because of his age. On appeal, Watson’s brief does not
   adequately address where the district court erred. “[A] party forfeits an
   argument by failing to raise it in the first instance in the district court—thus
   raising it for the first time on appeal—or by failing to adequately brief the




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   argument on appeal.” Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir.
   2021)(citation omitted). To the extent that Watson’s brief is adequate, the
   district court properly dismissed Watson’s discrimination claims because he
   failed to establish a prima facie case of discrimination based on sex or age.
          To establish a prima facie case of discrimination under both Title VII
   and the ADEA, an employee must demonstrate that (1) he is a member of a
   protected class, (2) he was qualified for the position he sought, (3) he suffered
   an adverse employment action, and (4) other similarly situated employees
   outside the protected class were treated more favorably. Saketto v. Admin of
   Tulane Educ. Fund, 31 F.4th 990, 998 (5th Cir. 2022). To satisfy the fourth
   prong, a plaintiff must engage in a “comparator analysis” to establish he was
   treated less favorably than a similarly situated employee outside his protected
   class under nearly identical circumstances. Id.
          First, Watson does not provide competent evidence that he was
   qualified for the job. Watson contends that he was not properly trained and
   that he was not in the RCA position during the full duration of his
   employment. While Watson acknowledged that he had performance
   deficiencies, he blamed them on his lack of training. But the record reflects
   that “[Watson] received the same training as other RCAs, if not more.”
   After receiving more training, Watson was unable to complete his rural route
   and was moved to a static route to deliver parcels. This change in duties “did
   not alter his status as an RCA.” At both the 30-day and 60-day evaluations,
   Watson received “unsatisfactory” in three categories—work quantity, work
   quality, and dependability. Given his performance deficiencies, the district
   court properly concluded that Watson was not qualified for the RCA
   position.
          Second, Watson had no evidence that his comparators were similarly
   situated. Watson proffers Robin Mott as a comparator for his sex




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   discrimination claim. Yet, Mott and Watson were not similarly situated
   employees. Mott, a white female, is five years older than Watson and
   received similar training. Moreover, unlike Watson, Mott had completed her
   probationary period prior to Watson being hired at USPS. Additionally, Mott
   did not have any recorded performance deficiencies in her file. As the district
   court explains, “Mott even assisted [Watson] on his route once.”
          Similarly, Watson proffers Prosperine Chirashagasha as a comparator
   for his age discrimination claim. Yet, Chirashagasha and Watson are not
   similarly situated employees. Chirashagasha, a 30-year-old African-
   American woman, was hired the same day as Watson. Chirashagasha did not
   have any recorded performance deficiencies in her file and was “more
   successful in performing her job duties than Mr. Watson.” While it is unclear
   whether Watson argues that Chirashagasha was a comparator for his sex
   discrimination claim, the district court correctly concluded that this claim “is
   unavailing because one USPS central scheduler assigns RCAs to particular
   facilities and routes based on the needs of the organization and the applicable
   collective bargaining agreement.” Because Watson failed to establish the
   prima facie case for discrimination based on age or sex, his Title VII and
   ADEA discrimination claims fail.
          We now turn to Watson’s hostile work environment claim. Watson’s
   operative complaint does not include an allegation of a hostile work
   environment. This claim is only made during the EEOC proceedings, where
   he alleged “derogatory” remarks directed towards him by a USPS
   supervisor. On review, the district court properly found that Watson failed
   to establish an actionable hostile work environment claim.
          To establish a prima facie case of harassment alleging hostile work
   environment, the employee must establish that (1) [he] belongs to a protected
   group; (2) [he] was subject to unwelcome harassment; (3) the harassment




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   was based on a protected characteristic; (4) the harassment affected a term,
   condition, or privilege of his employment; and (5) his employer knew or
   should have known of the harassment and failed to promptly take remedial
   action. Watts v. Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999). “Simple
   teasing, offhand comments, and isolated incidents (unless extremely
   serious)” do not “amount to discriminatory changes in the “terms and
   conditions of employment.” Faragher v. City of Boca Rotan, 542 U.S. 775, 789
   (5th Cir. 1998).
          The record only includes comments about Watson that were
   assessments of his work product. As the district court noted, the only
   statement that can be construed to be related to Watson’s gender is from a
   supervisor who claimed that “he should be wearing Cowgirls Pink.”
   Although this comment can be construed as improper, offhand comments
   along those lines do not establish an actionable hostile work environment
   claim. Thus, the district court properly granted summary judgment to USPS
   on this claim.
          We now turn to Watson’s retaliation claim. The district court found
   that Watson did not administratively exhaust the retaliation claim, which is
   required by Title VII, and that Watson’s retaliation claim does not “grow out
   of” a filed EEOC charge.
          “To establish a prima facie case of retaliation, the employee must
   establish that: (1) he participated in an activity protected by Title VII; (2) his
   employer took an adverse employment action against him; and (3) a causal
   connection exists between the protected activity and the adverse
   employment action.” McCoy v. City of Shreveport, 492 F .3d 551, 556-57 (5th
   Cir. 2007). Title VII mandates that discriminatory retaliation claims are
   administratively exhausted prior to filing a discriminatory suit. However, “a
   district court has ancillary jurisdiction to hear a claim of retaliation, even




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   though not filed with the EEOC, when it grows out of an administrative
   charge that is properly before the court.” Barrow v. New Orleans S.S. Ass’n,
   932 F .2d 473, 479 (5th Cir. 191).
          On review, the district court correctly concluded that Watson did not
   exhaust the retaliation claim and that the claim does not “grow out of” a filed
   EEOC charge. First, Watson’s filed complaint with the EEOC does not
   include a retaliation claim. Watson contends that he filed a retaliation claim
   with the EEOC and that the EEOC closed this claim in April 2022. However,
   as the district court explained: “There is no record to support this
   proposition.” Second, Watson’s retaliation claim does not “grow out of” the
   previously filed EEOC charges. Watson’s brief does not clearly articulate the
   specific action that is retaliatory. Watson’s employment was permanently
   terminated on January 18, 2018, prior to the filing of the EEOC charges.
   Because USPS was no longer his employer after he was terminated, USPS
   could not retaliate against him, for example, by failing to renew his contract.
   See Gupta v. East Texas State University, 654 F.2d 411,413 (5th Cir.
   1981)(“After Gupta instituted this lawsuit, he was notified that his teaching
   contract would not be renewed for the following year. Gupta contends that
   his nonrenewal was in retaliation for his filing charges with the EEOC.”).
          We now turn to Watson’s pursuit of an intentional infliction of
   emotional distress claim. The availability of remedies under Title VII and
   ADEA foreclose the pursuit of an intentional infliction of emotional distress
   claim based on the same conduct. Stelly v. Duriso, 982 F.3d 403, 409 (5th Cir.
   2020). The remedies provided by an intentional infliction of emotional
   distress claim are intended to fill the “gap” when other remedies are
   insufficient. Id.
          The district court properly dismissed Watson’s tort claim because it
   fails as a matter of law. Watson’s Title VII and ADEA claims are based on




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   the same alleged facts used to substantiate his intentional infliction of
   emotional distress claim. Given the available remedies, the pursuit of the
   intentional infliction of emotional distress claim is foreclosed.
          For these reasons, we AFFIRM the judgement of the district court.




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