# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted January 16, 2018 *

Decided January 31, 2018

Before

FRANK H. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

Nos. 17

‐ 2378 & 17

‐ 2659

FRANK C. WILSON, SR.,

Plaintiff

‐ Appellant

,

v

.

MEGAN J. BRENNAN,

Postmaster General,

Defendant

‐ Appellee

. Appeals from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 15 C 3377

Rebecca R. Pallmeyer,

J udge

.

O R D E R

Frank Wilson sued his former employer, the United States Postal Service,

bringing 20 separate “claims” under the United States Constitution, Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e–e17, contract law (regarding a collective

bargaining agreement), and tort law (including negligence, conspiracy, and infliction of

emotional distress). Nearly all arose from three instances of alleged wrongdoing in

2014, which Wilson largely attributes to racial discrimination. The district court

* We have agreed to decide these consolidated cases without oral argument

because the briefs and record adequately present the facts and legal arguments, and oral

argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1Nos. 17

‐ 2378 & 17

‐ 2659 Page 2

dismissed Wilson’s final pro se complaint primarily because Wilson had not alleged

“adverse actions” within the meaning of Title VII’s anti

‐ discrimination and

anti

‐ retaliation provisions. The district court denied Wilson’s two motions for

reconsideration and entered judgment for the Postal Service. We affirm.

Like the district court, we construe Wilson’s allegations in the light most

favorable to him, “accepting all well

‐ pleaded facts as true, and drawing all reasonable

inferences” in his favor. Mann v. Vogel

, 707 F.3d 872, 877 (7th Cir. 2013).

Wilson primarily alleges that he was subjected to racial discrimination,

retaliation for filing charges with the EEOC, and other unlawful conduct three times in

2014. First, a supervisor told him to come into work on a day he had been scheduled to

have off. Second, “the proper procedure was not followed” when he was “issued

discipline” for (admittedly) failing to wear his seatbelt while operating a mail truck.

And third, after he retired, he received a letter warning him that he was in jeopardy of

being considered absent without leave because of his recent pattern of absenteeism.

Wilson also complained about five more situations, mostly disciplinary actions, that

occurred in 2012. All of these incidents, Wilson asserted, provided a basis for his

employment

‐ discrimination, retaliation, and related claims.

The Postal Service moved to dismiss the complaint. It argued that Wilson’s

seatbelt discipline and cancelled day off were not adverse actions within the meaning of

Title VII, that many of his claims were untimely, and that his post

‐ retirement claims

about the warning letter were neither administratively exhausted nor based on an

adverse action. Also, Wilson’s tort claims had not been administratively exhausted as

required by the Federal Tort Claims Act. Wilson’s constitutional claims, the defendant

argued, were not cognizable because Title VII is the exclusive judicial remedy for claims

of discrimination in federal employment. The Postal Service also argued that the district

court lacked jurisdiction over Wilson’s breach

‐ of

‐ contract claim, which, it said, he

should have brought in the Court of Federal Claims. To the extent that the contract

claim was based upon a collective bargaining agreement, the Postal Service added,

Wilson should have used the internal grievance process before filing in district court.

The district court dismissed the complaint. First, the judge agreed with the Postal

Service that Title VII is the exclusive judicial remedy for Wilson’s discrimination and

retaliation claims. Next, the judge dismissed Wilson’s Title VII racial

‐ discrimination and

retaliation claims because Wilson had not alleged “adverse actions” within the meaning

of the statute. Last, the judge dismissed all the other claims, including breach ofNos. 17

‐ 2378 & 17

‐ 2659 Page 3

contract, negligence, conspiracy, harassment, and negligent or intentional infliction of

emotional distress, because they were “state law claims,” and Wilson had not

responded to the Postal Service’s arguments that they were “untimely, insufficiently

pleaded, or beyond the court’s jurisdiction.”

Wilson then moved under Federal Rule of Civil Procedure 59(e) to alter or

amend the judgment. He argued that the district court did not presume his allegations

to be true, that he had alleged conduct that amounted to adverse employment actions,

and that the district court should have exercised jurisdiction over every claim. The

judge denied the motion. Wilson filed a timely notice of appeal on July 5, 2017.

On that same day Wilson filed a motion under Federal Rule of Civil Procedure

60(b) to correct “several mistakes.” He said that the Postal Service’s arguments about

exhausting administrative remedies (which relied upon EEOC documents) could be

addressed only at the summary

‐ judgment stage, and that he should not have had to

substitute the new Postmaster General as the defendant because her predecessor was in

charge at the time of the alleged unlawful conduct. The judge denied the motion, noting

that “the matter of failure to exhaust administrative remedies appears to be a

non

‐ issue,” because although the defendant presented the defense, the judge “did not

rely” upon it. The judge also explained that the Postmaster General was properly

named in her official capacity. Wilson filed a second notice of appeal after the judge

entered a separate judgment order denying the Rule 60(b) motion; we consolidated that

appeal with his first.

Although Wilson’s arguments on appeal are confusing, duplicative, and often

not supported by legal authority, we construe pro se filings liberally and address the

discernable arguments. Parker v. Four Seasons Hotels, Ltd.

, 845 F.3d 807, 811 (7th Cir.

2017) (citing Anderson v. Hardman

, 241 F.3d 544, 545 (7th Cir. 2001)).

First, contrary to Wilson’s undeveloped assertion of error, the judge rightly

dismissed with prejudice his half

‐ dozen constitutional claims arising out of his

employment with the Postal Service. Title VII is the exclusive remedy. See Bush v. Lucas,

462 U.S. 367, 368 (1983); Brown v. General Serv. Admin., 425 U.S. 820, 835 (1976).

The judge also correctly dismissed Wilson’s Title VII claims—that the canceled

day off, the process for imposing discipline for his seatbelt violation, and the

absenteeism letter were discriminatory and retaliatory. A discriminatory adverse action

is a “significant change in employment status, such as hiring, firing, failing to promote,Nos. 17

‐ 2378 & 17

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reassignment with significantly different responsibility, or a decision causing a

significant change in benefits.” Lewis v. City of Chicago

, 496 F.3d 645, 653 (7th Cir. 2007)

(quoting Bell v. E.P.A., 232 F.3d 546, 555 (7th Cir. 2000)). We have more broadly

described discriminatory acts as those involving “the employee’s current wealth, his

career prospects, or changes to work conditions that include humiliating, degrading,

unsafe, unhealthy, or otherwise significant negative alteration in the workplace.” Boss v.

Castro

, 816 F.3d 910, 917 (7th Cir. 2016). Retaliatory adverse actions are those “that a

reasonable employee would find to be materially adverse such that the employee

would be dissuaded from engaging in the protected activity.” Poullard v. McDonald

, 829

F.3d 844, 856 (7th Cir. 2016). “[N]ot everything that makes an employee unhappy is an

actionable adverse action.” Lapka v. Chertoff

, 517 F.3d 974, 986 (7th Cir. 2008) (citing

Smart v. Ball State Univ.

, 89 F.3d 437, 441 (7th Cir. 1996)).

Wilson’s cancelled day off was a temporary change in working hours and is not a

retaliatory or discriminatory adverse action. The “anti

‐ retaliation provision does not

protect against petty slights, minor annoyances, and bad manners.” Boss

, 816 F.3d at

918. The “employee must suffer something ‘more disruptive than a mere inconvenience

or an alteration of job responsibilities.’” Id

. at 918–19 (quoting Hobbs v. City of Chi., 573

F.3d 454, 463–64 (7th Cir. 2009)). Wilson did not allege any meaningful injury from his

cancelled day off. This one

‐ time shift change does not rise to the level of a

discriminatory adverse action either. See Grube v. Lau Indus., Inc., 257 F.3d 723, 728 (7th

Cir. 2001) (“[A] mere change in working hours [transfer to second shift]

. . . certainly

does not rise to the level of an adverse employment action.”).

The other two incidents are also not adverse actions within the meaning of Title

VII. Regarding the discipline for violating the seatbelt

‐ safety regulation, Wilson accuses

the district court of addressing the imposition of disciplinary action while ignoring the

“true controversy”: the failure to follow “proper procedure” in doing so. But we fail to

see how this could be an adverse action, particularly because Wilson admits his

violation. See Griffin v. Potter

, 356 F.3d 824, 828–29 (7th Cir. 2004) (employee must prove

he was meeting employer’s legitimate expectations). Similarly, Wilson did not explain

how, after he had already retired, his employment status, benefits, or working

conditions were adversely harmed when he received a clearly inapplicable letter from

the Postal Service that warned he was being considered absent without leave. Indeed,

after his retirement, there were no working conditions to change, nor any possible effect

on an employee’s willingness to complain to the EEOC that could result from the letter.Nos. 17

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We turn now to Wilson’s remaining claims, beginning with the tort claims that

include negligence and infliction of emotional distress. Under the Federal Tort Claims

Act, the federal government can be sued in tort “in the same manner and to the same

extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The Postal

Service argued that Wilson failed to follow the pre

‐ filing exhaustion requirement

because he did not “first present[] the claim to the appropriate Federal agency” and

then wait to sue until his claims were “finally denied by the agency in writing.” 28

U.S.C. § 2675(a). Wilson does not argue to the contrary. Because the statute of

limitations has run on these claims, see Smoke Shop, LLC v. United States

, 761 F.3d 779,

782 (7th Cir. 2014), timely exhaustion cannot be accomplished now. So, the tort claims

should have been dismissed with prejudice for failure to exhaust.

Last is Wilson’s breach

‐ of

‐ contract claim. The Postal Service argued that only the

Court of Federal Claims has jurisdiction over this claim, but that is incorrect. See 28

U.S.C. § 1346(a)(2) (district court has original jurisdiction, concurrent with the Court of

Federal Claims, of express or implied contract actions against the United States that do

not exceed $10,000), § 1500 (Court of Federal Claims lacks jurisdiction if related claims

are pending in another court). Further, it appears that Wilson’s contract claim pertains

to a collective bargaining agreement, and so Wilson’s first line of recourse was under

the collective bargaining agreement itself; he was required to exhaust the grievance

process before reaching the district court. Vail v. Raybestos Prod. Co.

, 533 F.3d 904, 908

(7th Cir. 2008). Wilson gives us no reason to believe that he did so, therefore dismissal

was appropriate.

We have considered Wilson’s other arguments and have concluded that none

merits discussion. See Parker

, 845 F.3d at 816.

AFFIRMED