Gosvenor v. United States Postmaster General

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SARAH GOSVENER,
Plaintiff,
v.
DOUG TULINO, in his official capacity as
Acting Postmaster General of the United States,
Defendant.
Case No. 24-2578-JAR-TJJ
MEMORANDUM AND ORDER
Plaintiff Sarah Gosvener1 brings this action against her employer, Doug Tulino, in his
official capacity as Acting Postmaster General of the United States, alleging claims of hostile
work environment, discrimination, and retaliation on the basis of sex under Title VII of the Civil
Rights Act of 1964. Before the Court is Defendant’s Motion to Dismiss or Summary Judgment
(Doc. 8). The motion is fully briefed and the Court is prepared to rule. For the reasons
explained below, the Court grants Defendant’s motion to dismiss for failure to state a claim.
I. Standard
Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim
upon which relief can be granted, or in the alternative, for summary judgment under Rule 56.
Under Rule 12(d), if “matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56. All parties must
be given a reasonable opportunity to present all the material that is pertinent to the motion.”
1 Plaintiff’s last name is spelled “Gosvenor” in the original Complaint, and thus, on the Court’s docket
sheet. Doc. 1. It is spelled “Gosvener” in the Amended Complaint and in all subsequent filings. See, e.g., Docs. 4,
14. It is also spelled “Gosvener” in the administrative filings Plaintiff herself completed. See, e.g., Doc. 9-2.
Therefore, the Court uses this spelling throughout this Memorandum and Order.
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Although “[t]he ‘usual rule’ is ‘that a court should consider no evidence beyond the pleadings on
a Rule 12(b)(6) motion to dismiss,’ . . . ‘the district court may consider documents referred to in
the complaint if the documents are central to the plaintiff’s claim and the parties do not dispute
the documents’ authenticity.’”2 Here, Defendant presents several exhibits that are outside the
pleadings in support of its motion. Not all of them are necessary to resolve this motion,
however. The Court considers the administrative charge documents attached to Defendant’s
motion to dismiss that are referred to in the Amended Complaint.3 These documents are referred
to in the Amended Complaint, they are central to the claims, and Plaintiff does not dispute their
authenticity. The Court declines to consider the other exhibits attached to Defendant’s motion.
The Court therefore proceeds under the standard that applies to a motion to dismiss
brought under Fed. R. Civ. P. 12(b)(6): a complaint must contain factual allegations that,
assumed to be true, “raise a right to relief above the speculative level”4 and must include
“enough facts to state a claim for relief that is plausible on its face.”5 Under this standard, “the
complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.”6
The plausibility standard does not require a showing of probability that a defendant has
acted unlawfully, but it requires more than “a sheer possibility.”7 “[M]ere ‘labels and
2 Waller v. City & Cnty. of Denv., 932 F.3d 1277, 1282 (10th Cir. 2019) (alteration omitted) (first quoting
Alvarado v. KOB-TV, LLC, 493 F.3d 1201, 1215 (10th Cir. 2007); and then quoting Jacobsen v. Deseret Book Co.,
287 F.3d 936, 941 (10th Cir. 2002)).
3 Docs. 9-2, 9-7, 9-8, 9-9.
4 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1216, at 235–36 (3d ed. 2004)).
5 Id. at 570.
6 Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a
plaintiff must offer specific factual allegations to support each claim.”8 Finally, the Court must
accept the plaintiff’s factual allegations as true, view those facts in the light most favorable to the
plaintiff, and assess whether they give rise to a reasonable inference that the defendant is liable
in light of the applicable law.9
II. Factual Background
The following facts, assumed to be true and viewed in the light most favorable to
Plaintiff, are included either in the administrative charging documents or the Amended
Complaint.
Plaintiff is employed by the United States Postal Service (“USPS”) as a Clerk in Kansas
City, Kansas. She filed an informal complaint on July 19, 2023, alleging transgender
discrimination based on disability and sex. That matter was closed on September 20, 2023.
On October 11, 2023, Plaintiff participated in an investigative interview and Supervisor
of Customer Services (“SCS”) Jonnae Stevenson told Plaintiff she was under investigation for
missing money from the Edwardsville Post Office that day. Manager of Customer Service
(“MCS”) Marilyn Edwards was also present; she was part of the previous Equal Opportunity
Office (“EEO”) complaint, but did not recuse herself from this investigation.
On November 17, 2023, Plaintiff had a surgical procedure. She returned to work on
November 24, 2023, with lifting restrictions requiring light duty. During the month of
December, Plaintiff worked at the Edwardsville station. Plaintiff alleges this was outside of her
8 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
9 See Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
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work restrictions because it required her to work alone; no other employee would be there to
perform the heavy lifting required.
During the month of December, “Edwards . . . removed Plaintiff from her scheduled
work on Saturdays instead of assigning Plaintiff other light work as required by Plaintiff’s
accommodation for her medical restrictions.”10
On December 4, 2023, Plaintiff submitted a request for leave under the Family and
Medical Leave Act (“FMLA”) for December 8, 2023. Edwards initially denied the request, but
Plaintiff went to the Postmaster and obtained approval. When Plaintiff raised concerns about
working outside her restrictions, Edwards and/or Stevenson responded that they did not have to
schedule her at all.
On December 27, 2023, Edwards sent Plaintiff to work at the Edwardsville Post Office
after she reported to work at the Wyandotte West main office.
On January 4, 2024, Plaintiff was denied a request to have a signing witness of her
choice.
On January 16, 2024, management disclosed Plaintiff’s medical information to another
employee. When Plaintiff confronted Edwards about the disclosure, Edwards brought the
coworker into the conversation and berated Plaintiff about her clock-in time, despite Plaintiff
following the clock-in directions of another MCS.
10 Doc. 4 ¶ 37. Defendant submitted evidence in support of its motion showing that Plaintiff in fact was
scheduled to work on Saturdays, but she opted to take sick leave for part of each Saturday in December. The Court
does not consider this evidence because it constitutes matters outside the pleadings. In the response brief, Plaintiff
asserts that “[a]fter Edwards refused to observe Plaintiff’s medical limitations and removed her from the Saturday
schedule in December, Plaintiff worked limited hours in combination with accrued leave in an effort to
accommodate her own medical limitations.” Doc. 14 at 3 ¶ 8. She cites paragraphs 36–37 of the Amended
Complaint for this assertion, but the pleading does not support this fact. Paragraph 36 does not reference her
Saturday schedule, and the Court quotes from paragraph 37 in the text above.
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On March 15, 2024, Plaintiff participated in training. Plaintiff does not believe any other
employee participated in this training.
Stevenson initiated an investigative interview with Plaintiff on March 18, 2024, related to
excessive absences. Plaintiff believes that other employees who used more sick days during the
same time period were not investigated. That same day, Plaintiff was permanently reassigned to
the Edwardsville Post Office.
On March 25, 2024, Edwards alleged Plaintiff was wearing inappropriate footwear in the
work room; Plaintiff had just clocked out and was wearing her civilian clothing.
On April 10, 2024, management told Plaintiff she was not being singled out. Plaintiff
alleges this occurred in front of customers and co-workers.
On April 18, 2024, Edwards accused Plaintiff of being rude to customers. She often
accused Plaintiff of misconduct and attributed the misconduct of others to Plaintiff.
On April 19, 2024, management posted a sign on the door of the Edwardsville and
Muncie Post Office stations, informing patrons that if they had concerns, they could call
management.
Plaintiff initiated contact with the EEO Office on February 4, 2024. Her formal EEO
complaint was received on March 25, 2024.11 Plaintiff marked “Sex (LGBT)” on the EEO
complaint in the section for “Type of Discrimination.” She did not mark “Retaliation.” She
provided a lengthy list of events and dates on which the alleged discrimination occurred:
• September 26, 2023: Plaintiff was told that she could not use FMLA for court
appearances for her name change.
11 Doc. 9-7.
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• October 11, 2023: Plaintiff participated in an investigative interview for missing
money.
• November 17, 2023: Plaintiff had surgery. Plaintiff was forced to work outside of
her restrictions after surgery.
• December 2, 2023; Plaintiff was “forced off” her schedule because she could not
do parcel distribution and management did not find alternative work hours. An
FMLA form was denied and Edwards refused to discuss it with Plaintiff.
• December 5, 2023: Plaintiff spoke to Edwards about working alone, which caused
her to violate work restrictions.
• December 9, 2023: management failed to find an alternative to Saturdays for
Plaintiff’s hours, causing her to use paid leave.
• December 27, 2023: Plaintiff was directed to work alone at the Edwardsville Post
Office.
• January 2024: management refused to allow Plaintiff to use the designated
witness she preferred to sign an envelope that would give them access to
Plaintiff’s money drawer and online accounts.
• January 16, 2024: management disclosed Plaintiff’s medical information to
another employee. After Plaintiff confronted her supervisor with the issue, she
the other employee was brought into the conversation.
• January 17, 2024: Plaintiff worked at the Civic Center Post Office and was
counseled by management that she clocked in at the wrong station.
• March 25, 2024: Plaintiff was counseled for wearing inappropriate shoes on the
workroom floor.
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On April 19, 2024, Plaintiff amended her EEO complaint to add the following:
• April 10, 2024: Plaintiff’s supervisor made a comment that Plaintiff believed
disclosed her EEO activity.
• April 18, 2024: Plaintiff was accused of being rude to a customer.
• April 19, 2024: Plaintiff’s supervisor placed a note on the doors of Edwardsville
and Muncie stations requesting patrons contact management if they have any
concerns.
On July 12, 2024, Plaintiff was notified that the EEO Office had completed its
investigation and that she had the right to request a hearing before an administrative judge or,
alternatively, a right to a Final Agency Determination (“FAD”). On July 26, 2024, she requested
a FAD. Plaintiff received a notice of the FAD and her right to sue on September 16, 2024.
III. Discussion
Defendant moves to dismiss based on failure to exhaust administrative remedies and on
the merits. The Court considers Defendant’s failure-to-exhaust affirmative defense before
proceeding to the merits.
A. Exhaustion
Title VII requires a plaintiff employed by the federal government to exhaust her
administrative remedies by filing an administrative charge.12 Federal employees such as Plaintiff
must comply with “specific administrative complaint procedures in order to exhaust their
administrative remedies,” which are set forth in Part 1614 of Chapter 29 of the Code of Federal
Regulations.13 Under 29 C.F.R. § 1614.105(a), “[a]n aggrieved person must initiate contact with
12 42 U.S.C. § 2000e-16.
13 Hickey v. Brennan, 969 F.3d 1113, 1118 (10th Cir. 2020) (quoting Showalter v. Weinstein, 233 F. App’x
803, 804 (10th Cir. 2007)).
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a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case
of personnel action, within 45 days of the effective date of the action.” A plaintiff’s failure to
exhaust administrative remedies is no longer a jurisdictional bar to suit, but instead “merely
permits the employer to raise an affirmative defense.”14
Here, Defendant argues that Plaintiff only exhausted her discrete claims of discrimination
and retaliation that occurred on or after November 6, 2023—45 days before she initiated contact
with her EEO counselor on February 4, 2024. Thus, to the extent Plaintiff alleges a discrete act
of discrimination when her managers interviewed her on October 11, 2023, Defendant argues
that claim was not timely exhausted.
The Court agrees with Defendant that on the face of the Amended Complaint, any
discrete claim based on the October 11, 2023 interview was not exhausted. Without addressing
any particular claim, Plaintiff generally argues in the response brief that the continuing violation
doctrine applies. But the extent to which Plaintiff has exhausted her claims depends on whether
they are construed as discrete discriminatory and retaliatory acts, or instead part of her hostile
work environment claim. The United States Supreme Court has explained that discrete
discriminatory and retaliatory acts “such as termination, failure to promote, denial of transfer, or
refusal to hire are easy to identify.”15 This type of “discrete retaliatory or discriminatory act
‘occur[s]’ on the day that it ‘happen[s],’” and “discrete discriminatory acts are not actionable if
14 Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018).
15 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
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time barred, even when they are related to acts alleged in timely filed charges.”16 Hostile work
environment claims are different because they inherently involve repeated conduct.17
Defendant does not assert that Plaintiff failed to exhaust her hostile work environment
claim and the Court finds that under the precedent cited above, that claim has been exhausted.
The Court can consider the October 11, 2023 interview as part of that claim. But Defendant is
correct that any discrete employment action that occurred before November 6, 2023, was not
administratively exhausted. Thus, Defendant’s motion to dismiss any discrete discrimination
and retaliation claim that occurred before November 6, 2023, is granted. The Court proceeds to
consider Defendant’s motion to dismiss on the merits of the remaining claims below.
B. Discrimination Claims
Discrimination claims under Title VII can either be proved by direct evidence of
discrimination, or by following the burden-shifting framework of McDonnell Douglas Corp. v.
Green.18 Direct evidence of discrimination includes “[s]tatements showing ‘an existing policy
which itself constitutes discrimination.’”19 But statements that require an inferential step that
discrimination was the motivating cause of the action “are at most circumstantial evidence of
discriminatory intent.”20 When a plaintiff relies on circumstantial evidence to prove
discrimination, the McDonnell Douglas burden-shifting framework does not create the pleading
16 Id. at 110, 113; Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1178 (10th Cir. 2011) (explaining
that the Supreme Court’s ruling in Morgan does not alter the rule that discrete acts of discrimination “trigger the
statute of limitations when announced to the claimant” (quoting Morgan, 536 U.S. at 114)).
17 Morgan, 536 U.S. at 115, 117 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
18 411 U.S. 792 (1973).
19 McNellis v. Douglas Cnty. Sch. Dist., 116 F.4th 1122, 1137 (10th Cir. 2024) (quoting Heim v. Utah, 8
F.3d 1541, 1546 (10th Cir. 1993)).
20 Id. (quoting EEOC v. Wiltel, Inc., 81 F.3d 1508, 1514 (10th Cir. 1996)).
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standard.21 Instead, at the motion-to-dismiss stage, the Court considers the first step of
McDonnell Douglas—whether Plaintiff has alleged a prima facie case of discrimination.22
Although “the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her
complaint, the elements of each alleged cause of action help to determine whether Plaintiff has
set forth a plausible claim.”23
Generally, an employment discrimination plaintiff may establish a prima facie case of
discrimination under Title VII by demonstrating: (1) membership in protected class; (2) an
adverse employment action; and (3) the adverse employment action occurred under
circumstances giving rise to an inference of discrimination.24 While Plaintiff is not required to
plead “any specific facts in particular” to nudge her claim from possible to plausible, “[t]he
critical prima facie inquiry in all [discrimination] cases is whether the plaintiff has [alleged] that
[an] adverse employment action occurred under circumstances which give rise to an inference of
unlawful discrimination.”25 Defendant moves to dismiss on the basis that Plaintiff failed to
allege an actionable employment action.
In considering the second element of the prima facie case, Defendants asks the Court to
require Plaintiff, as a federal sector employee, to show that she suffered a “personnel action”
rather than an “adverse employment action,” as private employees must show. Defendant relies
on Babb v. Wilkie, a 2020 Supreme Court decision that considered the appropriate causation
21 Id.
22 Id. at 1139.
23 Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
24 McNellis, 116 F.4th at 1139 (discussing how elements of prima facie case in discrimination cases vary
depending on context but that this is the general formulation); Bennett v. Windstream Commc’ns, Inc., 792 F.3d
1261, 1266 n.1 (10th Cir. 2015) (acknowledging that the Tenth Circuit has used different versions of the prima facie
test, but stating that it has “express[ed] a preference for more concise formulations.” (citations omitted)).
25 McNellis, 116 F.4th at 1139 (second and third alterations in original) (quoting Barlow v. C.R. Eng., Inc.,
703 F.3d 497, 505 (10th Cir. 2012)).
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standard for federal-sector claims under the Age Discrimination in Employment Act
(“ADEA”).26 In that case, the Court referenced the ADEA federal-sector provision, which states
that “‘personnel actions’ affecting individuals aged 40 and older ‘shall be made free from any
discrimination based on age.’”27 The Court stated that “personnel actions” under the ADEA is
not defined, but is consistent with the definition provided under the Civil Service Reform Act of
1978: “most employment-related decisions, such as appointment, promotion, work assignment,
compensation, and performance reviews.”28 The Court then proceeded to hold that a federal-
sector ADEA plaintiff need not show that age was the but-for cause of the personnel action to
demonstrate age discrimination.29 Defendant urges that Plaintiff here must demonstrate a
“personnel decision” because Title VII’s federal-sector provision uses the same language as the
ADEA.30 Plaintiff does not address this argument.
As Defendant recognizes, the Supreme Court’s reference to the “personnel action”
requirement is dicta in Babb, and after that case was decided the Tenth Circuit continued to
apply the “adverse employment action” formulation to the second element of federal-sector
discrimination claims.31 This Court declines to deviate from this authority absent a binding
directive from the Supreme Court or the Tenth Circuit. Thus, the Court considers whether
Plaintiff alleges facts to support an adverse employment action.
26 589 U.S. 399 (2020).
27 Id. at 402 (quoting 29 U.S.C. § 633a(a)).
28 Id. at 405 (citing 5 U.S.C. § 2302(a)(2)(A)).
29 Id. at 413.
30 See 42 U.S.C. § 2000e-16(a) (“All personnel actions affecting employees or applicants for employment
(except with regard to aliens employed outside the limits of the United States) . . . in the United States Postal Service
. . . shall be made free from any discrimination based on race, color, religion, sex, or national origin.”).
31 See Mauldin v. Driscoll, 136 F.4th 984, 996 (10th Cir. 2025); Nelson v. DeJoy, No. 23-1227, 2024 WL
3507723, at *4–5 (10th Cir. July 23, 2024).
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The Supreme Court recently clarified that a plaintiff demonstrates an adverse
employment action if she experienced “some harm respecting an identifiable term or condition of
employment” as a result of that action.32 The Court explained that the employer’s action “must
have left [the plaintiff] worse off, but need not have left her significantly so.”33 Defendant urges
the Court not to apply this standard here because it only applies to private-sector discrimination
cases. But, as the Court explained above, even after Babb, the Tenth Circuit has applied the
adverse-employment-action element of the prima facie case to public-sector employment
discrimination claims. The Court declines to apply a different formulation here without clear
guidance from the Tenth Circuit or Supreme Court. Thus, the Court applies the holding in
Muldrow.
Plaintiff alleges a litany of dates and events in her Amended Complaint, but she does not
state which events pertain to which claims. Her response to the motion to dismiss does not add
any clarity. She addresses only one adverse employment action in her response: that in
December 2023, she was required to work on Saturdays alone, which forced her to use her sick
leave to mitigate the impact of those work requirements on her health. The problem with this
claim is that it is not alleged in the Amended Complaint, which instead states that she was
“removed . . . from her scheduled work on Saturdays instead of assigning Plaintiff other light
work.”34 The Amended Complaint and response are therefore at odds, and Plaintiff cannot
amend her pleading by alleging different facts in the response.35 The Court must assume as true
the allegations in the Amended Complaint on a motion to dismiss. Because Plaintiff fails to
32 Muldrow v. City of St. Louis, 601 U.S. 346, 354–55 (2024).
33 Id. at 359.
34 Doc. 4 ¶ 37.
35 See Larson v. Safeguard Props., Inc., 379 F. Supp. 2d 1149, 1152 (D. Kan. 2005).
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allege facts upon which the Court may infer that removing her from the Saturday schedule
caused some harm to an identifiable condition of her employment, the Court grants the motion to
dismiss based on the Saturday scheduling allegations.
Plaintiff fails to address any of the other employment actions she recites in the Amended
Complaint in response to the motion to dismiss. Because she failed to do so, she has waived the
right to respond.36 The Court therefore grants Defendant’s motion to dismiss the remaining
grounds for her discrimination claims for failure to allege adverse employment actions.
B. Retaliation and Hostile Work Environment Claims
Defendant moves to dismiss the remaining claims of retaliation and hostile work
environment for failure to state a claim upon which relief can be granted. Plaintiff wholly failed
to address either claim in her response brief. Under District of Kansas Rule 7.1, if a party does
not timely respond to a motion to dismiss, the Court ordinarily will grant the motion as
uncontested without further notice.37 Likewise, when a party fails to respond to a substantive
argument raised by a motion to dismiss, it is deemed waived or abandoned.38 Accordingly, the
Court grants Defendant’s motion to dismiss Plaintiff’s claims for retaliation and hostile work
environment.
IT IS THEREFORE ORDERED BY THE COURT that Defendant’s Motion to
Dismiss or Summary Judgment (Doc. 8) is granted. The Court dismisses Plaintiff’s Amended
36 C1.G ex rel. C.G. v. Siegfried, 38 F.4th 1270, 1282 (10th Cir. 2022) (finding the district court correctly
dismissed plaintiff’s claim because he did not address it in response to defendants’ motion to dismiss); Brown v.
Nationwide Ins., No. 21-4122, 2023 WL 4174064, at *8–9 (10th Cir. June 26, 2023) (finding district court properly
concluded that plaintiff abandoned her claim by ignoring arguments on that claim in the response to the motion to
dismiss); Lancaster v. Sprint/United Mgmt. Co., 670 F. App’x 984, 984–85 (10th Cir. 2016) (finding the plaintiff
waived her retaliation claim because she did not respond to defendant’s summary judgment argument); Jackson v.
United States, No. 22-CV-02357-KHV, 2023 WL 2631528, at *5 (D. Kan. Mar. 24, 2023) (finding argument waived
when not addressed in reply).
37 See D. Kan. R. 7.1(c).
38 See supra note 36.
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Complaint for failure to state a claim upon which relief can be granted. The Clerk is directed to
enter judgment in favor of Defendant.
IT IS SO ORDERED.
Dated: November 14, 2025
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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