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Foster v. Brennan

United States District Court, S.D. Indiana, Indianapolis Division

July 17, 2018




         Pro se Plaintiff La Verne Foster brought this lawsuit in November 2017, alleging that her former employer, the U.S. Postal Service (“USPS”), discriminated against her in several ways. Presently pending before the Court are several motions: Ms. Foster's Motion to Amend the Agenc[y's] Final Decision Received Untimely, [Filing No. 48], USPS's Motion for Partial Summary Judgment, [Filing No. 49], Ms. Foster's three Motions for Assistance with Recruiting Counsel, [Filing No. 60; Filing No. 61; Filing No. 65], and Ms. Foster's Motion to Proceed In Forma Pauperis, [Filing No. 66]. For the reasons set forth below, the Court GRANTS USPS's Motion and DENIES Ms. Foster's Motions.


         Procedural History

         On November 15, 2017, Ms. Foster filed her pro se Complaint against a variety of defendants. [Filing No. 1.] The Court screened Ms. Foster's Complaint and held that her lawsuit could proceed against the USPS, her former employer. [Filing No. 4.] After numerous attempts to amend her Complaint, [see Filing No. 15 (denying motions to amend); Filing No. 24 (same); Filing No. 32 (same)], the Court recruited counsel for the limited purpose of assisting Ms. Foster in preparing a legally-sufficient Amended Complaint, [Filing No. 33]. With assistance of recruited counsel, Ms. Foster filed her currently-operative Amended Complaint, alleging employment discrimination and retaliation claims under Title VII and the Rehabilitation Act, an unpaid wage claim, and breach of contract. [Filing No. 41.] Following the filing of Ms. Foster's Amended Complaint, recruited counsel sought and were granted leave to withdraw on May 1, 2018. [Filing No. 47.]

         Since Ms. Foster's recruited counsel ended their limited representation, Ms. Foster has filed a Motion to Amend the Agenc[y's] Final Decision Received Untimely, [Filing No. 48], three Motions for Assistance with Recruiting Counsel, [Filing No. 60; Filing No. 61; Filing No. 65], a Motion to Proceed In Forma Pauperis, [Filing No. 66], and a newly-submitted proposed complaint, [Filing No. 67], among other things. The USPS has filed a Motion for Partial Summary Judgment. [Filing No. 49.] These filings are ripe for review, and the Court begins by addressing USPS's Motion before turning to Ms. Foster's filings.


         Motion for Partial Summary Judgment

         A. Legal Standard

         The USPS styled their Motion in the alternative, as either a Partial Motion to Dismiss or a Motion for Partial Summary Judgment. The basis for the USPS's Motion is Ms. Foster's alleged failure to exhaust administrative remedies with respect to some of her claims. But failure to exhaust is an affirmative defense, inappropriate for determination under Rule 12(b)(6) unless “the allegations of the complaint in the light most favorable to the plaintiff show that there is no way that any amendment could salvage the claim.” Mosely v. Bd. of Educ. of City of Chi., 434 F.3d 527, 533 (7th Cir. 2006). Moreover, the USPS does not rely solely upon judicially noticeable documents in support of its Motion, but cites to an affidavit of someone with knowledge of the administrative dockets at issue. [See Filing No. 49-1.] The Court may treat USPS's Motion as a Motion for Summary Judgment if all parties have received “a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Here, the USPS's Motion and brief set forth the appropriate summary judgment standard and expressly seek summary judgment as an alternative to dismissal. Most importantly, the USPS served on Ms. Foster the notice required by Local Rule 56-1(k), advising her that their factual assertions “will be accepted by the Court as being true unless you submit your own affidavits or other admissible evidence disputing those facts.” [Filing No. 51.] But cf. Dirig v. Wilson, 609 Fed.Appx. 857, 859-60 (7th Cir. 2015) (reversing grant of summary judgment against pro se plaintiff where district court negated defendant's notice by issuing order advising plaintiff that he could rely solely upon the pleadings). Ms. Foster also appeared to be aware of the need to submit evidence because, while not responsive to the USPS's evidence, Ms. Foster submitted hundreds of pages of exhibits with her response brief. Ms. Foster had the required notice and opportunity to respond to USPS's evidence. The Court therefore treats Ms. Foster's motion as a Motion for Partial Summary Judgment.

         A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed.R.Civ.P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed.R.Civ.P. 56(c)(4). Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment. Fed.R.Civ.P. 56(e).

         In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Hampton v. Ford Motor Co., 561 F.3d 709, 713 (7th Cir. 2009). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative. Harper v. Vigilant Ins. Co., 433 F.3d 521, 525 (7th Cir. 2005). Fact disputes that are irrelevant to the legal question will not suffice to defeat summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Johnson v. Cambridge Indus., 325 F.3d 892, 901 (7th Cir. 2003). The moving party is entitled to summary judgment if no reasonable factfinder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Darst v. Interstate Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011). The Court need only consider the cited materials, Fed.R.Civ.P. 56(c)(3), and the Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them, ” Johnson, 325 F.3d at 898. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).

         B. Facts for Summary Judgment

         The following factual background is set forth pursuant to the standards detailed above. The facts stated are not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light most favorable to “the party against whom the motion under consideration is made.” Premcor USA, Inc. v. American Home Assurance Co., 400 F.3d 523, 526-27 (7th Cir. 2005). Where, as here, the nonmoving party fails to controvert the moving party's factual assertions, the Court takes the moving party's assertions as true to the extent the assertions are supported by admissible evidence. See S.D. Ind. L.R. 56-1(f) (“In deciding a summary judgment motion, the court will assume that[] the facts as claimed and supported by admissible evidence by the movant are admitted without controversy except to the extent that[] the non-movant specifically controverts the facts . . . with admissible evidence . . . .”). This rule applies in this case despite Ms. Foster's pro se status. While the Court must “construe pro se filings liberally, ” Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017), “even pro se litigants must follow rules of civil procedure, ” Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006).

         As relevant to USPS's Motion for Summary Judgment, three of the EEO complaints out of which Ms. Foster's claims arise remained under administrative review at the time she filed this lawsuit.

         1. Agency No. 1J-461-0013-02

         The first such proceeding concerns Agency Number 1J-461-0013-02.[1] The matter arises out of a settlement agreement dated December 3, 2001 between the USPS and Ms. Foster. [SeeFiling No. 49-2 at 1.] As part of the agreement, “Management agrees to abide by the Permanent Rehabilitation Job Offer-IOD dated November 6, 2001, ” and “Ms. Smithson will speak to the supervisors in order to attempt to locate Ms. Foster in a permanent ...

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