Mary F. Cummings v. United States Postal Service

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
MARY F. CUMMINGS,
Plaintiff - Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant - Appellee.
No. 20-7066
(D.C. No. 6:18-CV-00231-RAW)
(E.D. Okla.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and EID, Circuit Judges.
_________________________________
Mary F. Cummings, proceeding pro se, appeals from the district court’s grant
of summary judgment to her former employer, the United States Postal Service
(USPS), in her suit alleging breach of a collective bargaining agreement, employment
discrimination, and violations of due process. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
* After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
October 6, 2021
Christopher M. Wolpert
Clerk of Court
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BACKGROUND
Ms. Cummings is a Native American female who is older than 50. She worked
temporary USPS positions for nearly two years, including a full term as a Postal
Support Employee (PSE). On May 14, 2016, USPS converted her to a career position
in Vian, Oklahoma. The 2015-2018 collective bargaining agreement (the CBA) went
into effect on July 8, 2016, while Ms. Cummings was employed at Vian. It provided
for a 90-day probation period for new employees. Notwithstanding her USPS work
history, in light of the conversion USPS classified and treated Ms. Cummings as a
probationary employee when she started at Vian.
Ms. Cummings had not received any disciplinary reports in her prior positions.
But her supervisor at Vian, Postmaster Carla Milosav, was dissatisfied with her
performance and rated her as “unsatisfactory” in all categories at 30-day and 60-day
reviews. Ultimately, Ms. Milosav terminated Ms. Cummings’ employment on
July 25, 2016. In the termination letter, she stated that Ms. Cummings, as a
probationary employee, did not have access to the CBA’s grievance procedure.
A few days after Ms. Milosav terminated Ms. Cummings’ employment, USPS
and the union signed a document addressing various issues arising out of the CBA.
The “Clerk Craft Questions & Answers Re: POStPlan, Filling Residual Vacancies,
and Travel” (Q&A) answered the question “When converted to career, does a PSE
have to serve a probationary period?” by stating, “Clerk Craft PSEs who have already
served one full term as a PSE will not be required to serve a probationary period . . .
after conversion to career.” R. Vol. II at 28. Ms. Cummings asserts that after the
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Q&A was signed, she filed union grievances regarding the termination of her
employment. The record does not reveal what happened with those grievances.
In 2017, Ms. Cummings unsuccessfully applied for several positions with
Oklahoma post offices. In January, she was not selected for a PSE position in
Whitesboro; in August, she was not selected for a PSE position in Howe; and in
September, she was not selected for a PSE position in Muse.
In July 2018, she filed suit in the district court. As relevant to this appeal, she
alleged violations of the CBA and the Q&A; discrimination on the basis of sex, race,
and age, as well as retaliation, in the termination of her employment at Vian and her
non-selection for the positions in Whitesboro, Howe, and Muse; and deprivation of a
property interest without due process. The district court denied Ms. Cummings’
motion for entry of default and USPS’ motion to dismiss, but then granted USPS’
motion for summary judgment. Ms. Cummings appeals.
DISCUSSION
I. Motion for Entry of Default
Ms. Cummings challenges the district court’s denial of her motion for entry of
default. We review the decision for abuse of discretion. Cf. Harvey v. United States,
685 F.3d 939, 945 (10th Cir. 2012) (reviewing denial of motion for default judgment
for abuse of discretion).
The district court did not abuse its discretion in declining to find a default.
Ms. Cummings alleged that USPS had failed to file an answer. But as the district
court noted, Fed. R. Civ. P. 55(a) allows entry of default where a party “has failed to
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plead or otherwise defend.” Before Ms. Cummings filed her motion, USPS had filed
a motion to dismiss, which qualifies as “otherwise defend[ing]” against the suit.
Ms. Cummings asserts that USPS’ motion to dismiss was untimely, but she did
not make that argument in her motion for entry of default. Moreover, she did not file
her motion for entry of default until four months after the date she alleges USPS
should have filed its answer. By that time, the parties had completely briefed the
motion to dismiss, further undermining any conclusion that USPS had defaulted.
II. Summary Judgment
A. Standard of Review
We review a grant of summary judgment de novo, viewing the facts in the
light most favorable to Ms. Cummings as the non-moving party. See Foster v.
Mountain Coal Co. LLC,830 F.3d 1178, 1186 (10th Cir. 2016). Summary judgment
is appropriate “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.” Fed. R. Civ. P. 56(a).
We read Ms. Cummings’ pro se filings liberally, but she must “follow the same rules
of procedure that govern other litigants.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (internal quotation marks omitted). We “cannot
take on the responsibility of serving as [her] attorney in constructing arguments and
searching the record.” Id.
B. Consideration of Summary Judgment Materials
Ms. Cummings raises several challenges to the district court’s consideration of
the summary judgment materials, including its resolution of evidentiary issues.
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She complains that the district court “did not give [her] an opportunity to
properly support or address the fact[s]” and that she “was not aware or warned of her
obligation to submit reply affidavits in response to a motion for summary judgment.”
Aplt. Opening Br. at CM/ECF p. 24. But Fed. R. Civ. P. 56(c) put her on notice of
the requirements for disputing facts for purposes of summary judgment. Moreover,
when USPS objected that her evidence was not in proper form, the district court
nevertheless considered the evidence. The court was not required to act as her
counsel and advise her how to present her case. See Garrett, 425 F.3d at 840.
She further argues that the district court precluded her from using discovery
responses to establish genuine issues of material fact. She does not explain, however,
which discovery responses the court did not allow her to use. And although USPS
sought exclusion of unauthenticated evidence, its argument did not apply to its own
discovery responses. See R. Vol. IV at 3-4 (“All of Plaintiff’s exhibits attached to
her Response except potentially, Exhibits 7 and 9, Defendant[’]s discovery
responses, should not be considered as they have not been properly supported by
affidavits, they have not been authenticated or identified . . . .” (emphasis added)).
Ms. Cummings also challenges the district court’s denial of her motion in
limine to exclude the declaration of a USPS employee who tracks employment
complaints from the region including Oklahoma. We review decisions regarding
motions in limine for abuse of discretion, see Sundance Energy Okla., LLC v. Dan D.
Drilling Corp., 836 F.3d 1271, 1279 (10th Cir. 2016), and here there was no abuse.
Ms. Cummings contended that the employee was improperly testifying as an expert,
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but as the district court concluded, the employee was a fact witness. She now argues
that the declaration was based on hearsay, but she does not establish how the
testimony constituted hearsay. Contrary to her assertion in her reply brief, the fact
that a declaration is made out of court does not make the declaration itself
inadmissible hearsay.
Finally, Ms. Cummings complains that the district court allowed USPS to use
declarations that were not made on personal knowledge and did not state the
declarants “will testify as a live witness on the matters stated, pursuant to Fed. R.
Civ. P. 56(c)(4).” Aplt. Reply Br. at CM/ECF p. 13. There is no indication,
however, that the witnesses were not competent to testify to the matters discussed in
their declarations. And Rule 56(c)(4) does not require a declaration affirmatively to
state that a witness intends to testify at trial.
C. Claims Arising from the CBA and Q&A
Ms. Cummings alleges that USPS violated the CBA and the Q&A by treating
her as a probationary employee and terminating her employment without just cause
and without affording her the protections granted by the CBA, including the ability to
grieve the discharge. She argues that because she completed a full term as a PSE
before beginning work at Vian, she was not properly subject to a probationary period.
The district court held that she had not established a genuine issue of material
fact as to her probationary status, and under the CBA, a probationary employee was
not entitled to grieve a termination. While recognizing that the Q&A “did away with
the probationary period which had applied to employees such as [Ms. Cummings],”
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R. Vol. IV at 24, the court held that it was not signed until after her employment was
terminated, and she had not established a genuine issue of material fact as to whether
it was effective before the signing.
The CBA provides “[t]he probationary period for a new employee shall be
ninety (90) calendar days.” R. Vol. II at 24. It does not appear that the CBA defines
“new” employee for purposes of the probationary period. We are not persuaded,
however, that a reasonable factfinder could conclude that USPS breached the CBA by
classifying Ms. Cummings as a probationary employee.
USPS had treated converting employees as subject to a 90-day probationary
period before the CBA. See, e.g., Printemps-Herget v. Brennan, No. 3:18-CV-
00476-MO, 2019 WL 4580484, at *1 (D. Or. Sept. 19, 2019); Johnson v. U.S. Postal
Serv., No. 1:17-CV-01385, 2019 WL 3202196, at *1 (M.D. Pa. July 15, 2019);
Bryant v. U.S. Postal Serv., No. 17-2244-CM, 2019 WL 2473787, at *1 (D. Kan.
June 13, 2019). Ms. Cummings started at Vian before the CBA became effective,
and classifying her as a probationary employee under the CBA was consistent with
prior practice. Further, there is no showing that the other party to the CBA (the
union) objected to USPS’ interpretation. It was evident from the beginning of
Ms. Cummings’ employment at Vian that USPS was treating her as a probationary
employee. Yet neither Ms. Cummings nor the union objected at any time before the
signing of the Q&A, when Ms. Cummings filed grievances with the union. But even
then, the record does not show that the union challenged USPS’ handling of
Ms. Cummings’ employment.
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The Q&A explicitly provided that employees such as Ms. Cummings were not
subject to the probationary period. As the district court noted, however, the parties
signed the Q&A after Ms. Cummings’ employment ended. Ms. Cummings argues
that the Q&A was intended to aid in interpreting the CBA, and thus its provisions
should reach back to July 8, 2016, the CBA’s effective date. But there is no
indication that the parties intended the Q&A to apply retroactively to undo an
already-effective termination.
Because Ms. Cummings was a probationary employee, USPS did not breach
the CBA by terminating her employment or by informing her that she was not
eligible to file a grievance regarding the termination. The CBA explicitly provides
that USPS had “the right to separate from its employ any probationary employee at
any time during the probationary period and these probationary employees shall not
be permitted access to the grievance procedure in relation thereto.” R. Vol. II at 24.
Ms. Cummings also cites various provisions of the CBA that offer protections
against layoffs. These provisions do not apply here, however, because USPS
terminated her employment because of her performance, not in a layoff. See R. Vol.
III at 257 (“The term ‘layoff’ . . . refers to the separation of . . . employees . . .
because of lack of work or other legitimate, non-disciplinary reasons.”).
D. Discrimination Claims
Ms. Cummings further alleges that USPS (1) discriminated against her on the
basis of sex, race, and age in terminating her employment, and (2) discriminated
against her on the basis of sex, race, and age and retaliated against her in refusing to
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hire her into the positions in Whitesboro, Howe, and Muse. The district court held
that she had failed to exhaust her administrative remedies.
1. Title VII Claims
“Federal employees alleging discrimination or retaliation prohibited by Title
VII . . . must comply with specific administrative complaint procedures in order to
exhaust their administrative remedies.” Hickey v. Brennan, 969 F.3d 1113, 1118
(10th Cir. 2020) (internal quotation marks omitted). The exhaustion requirement is
not jurisdictional, but is an affirmative defense that the court must enforce if the
employer raises it. See id. Here, USPS raised the affirmative defense. 1
For the Title VII claims, the administrative process required Ms. Cummings to
initiate an informal complaint within 45 days of the alleged discriminatory personnel
action. See 29 C.F.R. § 1614.105(a)(1); Hickey, 969 F.3d at 1119. After completing
informal counseling, she had 15 days to file a formal complaint. 29 C.F.R.
§ 1614.106(b).
With regard to both the termination and the failure to hire her for the open
positions, Ms. Cummings contacted the National Equal Employment Opportunity
Investigative Services Office (NEEOISO) and completed informal counseling forms.
In both instances, NEEOISO responded, informing her it had processed her informal
complaints and, if she wished to proceed with her claims, she should file formal
complaints. But Ms. Cummings never filed formal complaints. Thus, she did not
1 Ms. Cummings asserts exhaustion is not appropriate for decision on summary
judgment, but that is not the rule in this circuit. See, e.g., Hickey, 969 F.3d at 1118.
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exhaust her administrative remedies for her Title VII claims. The district court
correctly enforced the affirmative defense on these claims.
2. Age Discrimination Claims
As with Title VII, failure to exhaust administrative remedies for a claim under
the Age Discrimination in Employment Act (ADEA) is a non-jurisdictional
affirmative defense. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 & n.10
(10th Cir. 2018). Unlike her Title VII claims, however, for her ADEA claims,
Ms. Cummings was not required to file a formal complaint with NEEOISO. Instead,
she could file suit in federal district court after giving the Equal Employment
Opportunity Office at least 30 days’ written notice of her intent to sue. See 29 U.S.C.
§ 633a(d); 29 C.F.R. § 1614.201(a). Notice can be sent by mail, personal delivery, or
facsimile. See 29 C.F.R. § 1614.201(a).
Ms. Cummings produced evidence of two facsimiles she sent to the facsimile
number NEEOISO provided for notices of intent to sue. The facsimiles were timely
sent with regard to the termination and the non-selection for the Howe and Muse
positions, although not the Whitesboro position. See 29 U.S.C. § 633a(d) (requiring
notice to be sent within 180 days of the complained-of action). Affording
Ms. Cummings the benefit of all reasonable inferences, they create a genuine issue of
material fact as to whether she exhausted her administrative remedies regarding the
termination and non-selection for the Howe and Muse positions. Arguably, therefore,
the district court erred in granting summary judgment because of failure to exhaust
administrative remedies on those claims.
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Nevertheless, we may affirm a grant of summary judgment on other grounds
supported by the record, see Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130
(10th Cir. 2011), and we do so here. Ms. Cummings has shown neither a prima facie
case nor pretext under the burden-shifting scheme applicable to ADEA
discrimination claims. See Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261,
1266 (10th Cir. 2015) (describing the burden-shifting framework).
“A prima facie case generally requires a plaintiff to show, by a preponderance
of the evidence, that she is a member of a protected class, she suffered an adverse
employment action, and the challenged action occurred under circumstances giving
rise to an inference of discrimination.” Id.2 Ms. Cummings established she is a
member of a protected class (at least 40 years old) and she suffered an adverse
employment action (termination of her employment and non-selection for other
positions). But she did not create a genuine issue of material fact as to whether the
circumstances give rise to an inference of age discrimination.
Regarding the termination, Ms. Milosav declared that she was not aware of
Ms. Cummings’ age and denied that age played a role in the termination decision. In
response, Ms. Cummings neither identified any evidence to contradict those
statements nor set forth evidence establishing that a reasonable factfinder could
conclude that Ms. Milosav held any animus on the basis of age. To be sure, the
2 The courts have set forth varying, but similar, iterations of the prima facie
case. See Bennett, 792 F.3d at 1266 n.1.
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complaint had alleged certain ageist remarks and stated, without elaboration, that
younger workers were not disciplined. But Ms. Cummings could not avoid summary
judgment by relying on unsupported allegations in her complaint. See Fed. R. Civ. P.
56(c) (requiring a party to support an assertion that a fact is genuinely disputed);
Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177 (10th Cir. 2000) (“[T]he
nonmoving party cannot rely solely on the allegations in the pleadings and must
supply evidence of a question of fact for the case to go to the jury.”).
Regarding the non-selections for the Howe and Muse positions, the record fails
to show the ages of the persons USPS hired. 3 Further, USPS offered evidence
denying that Ms. Cummings’ age was a factor in filling the positions. As with the
termination decision, Ms. Cumming did not offer any contradictory evidence.
Moreover, even if Ms. Cummings had established a prima facie case, USPS
offered legitimate, non-discriminatory and non-retaliatory reasons for its actions—
her performance (for the termination) and the relative qualifications of other
candidates (for the non-selections). For the same reasons discussed above, the record
is insufficient to establish these reasons were pretext for discrimination. See Bennett,
792 F.3d at 1267 (plaintiff can establish pretext by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in proffered
reasons such “that a reasonable factfinder could rationally find them unworthy of
3 In her appellate reply brief, Ms. Cummings states that the persons selected
for the Howe and Muse positions were younger than her. But she does not provide a
record cite to support those assertions.
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credence” (internal quotation marks omitted)). Particularly, a plaintiff’s own
subjective opinion of her performance does not establish pretext. See Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1231 (10th Cir. 2000) (the relevant
pretext inquiry is how facts appeared to the decision maker, not the employee);
Kelley, 220 F.3d at 1178 (employee’s opinion of his interview “is simply irrelevant”).
Accordingly, although we give Ms. Cummings the benefit of favorable
inferences regarding exhaustion of her administrative remedies for her ADEA claims,
we nevertheless affirm the grant of summary judgment to USPS on those claims.
E. Due Process/Property Interest
In two claims, Ms. Cummings asserted that USPS violated her constitutional
rights by depriving her of a property interest without due process. The district court
held it lacked jurisdiction over those claims, in part due to sovereign immunity.
USPS is “an independent establishment of the executive branch of the
Government of the United States.” 39 U.S.C. § 201. As such, it is entitled to
sovereign immunity, except to the extent Congress has waived it. See U.S. Postal
Serv. v. Flamingo Indus. (USA) Ltd., 540 U.S. 736, 744 (2004). In examining
whether USPS is entitled to immunity, “[w]e ask first whether there is a waiver of
sovereign immunity for actions against the Postal Service. If there is, we ask the
second question, which is whether the substantive [provisions of the cause of action]
apply to an independent establishment of the Executive Branch of the United States.”
Id. at 743 (citing FDIC v. Meyer, 510 U.S. 471, 483-84 (1994)).
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We resolve the first question in Ms. Cummings’ favor. USPS is subject to a
sue-and-be-sued clause, found at 39 U.S.C. § 401(1), which “waives immunity, and
makes the Postal Service amenable to suit, as well as to the incidents of judicial
process,” Flamingo Indus., 540 U.S. at 744.
Nevertheless, Ms. Cummings cannot proceed with her constitutional claims.
“An absence of immunity does not result in liability if the substantive law in question
is not intended to reach the federal entity.” Id. The remedy for constitutional
violations committed by federal officials is an action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). But the
Supreme Court has held that a Bivens action is not available against a federal agency.
See Meyer, 510 U.S. at 486. In these circumstances, USPS is not subject to liability
for Ms. Cummings’ constitutional claims. See Flamingo Indus., 540 U.S. at 746-47;
Meyer, 510 U.S. at 486; see also Tapia-Tapia v. Potter, 322 F.3d 742, 746 (1st Cir.
2003) (in light of Meyer, “the appellant cannot rewardingly direct his constitutional
claims against the Postal Service”).
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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