IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LORI BARTON, pro se, )

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Plaintiff,

vs. CIVIL ACTION NO. 13-0642-CG-C

PATRICK R. DONAHUE, ERIC 

HOLDER, LEANDER HARRIS, 

Defendants.

MEMORANDUM OPINION AND ORDER

This matter is before the court on Defendants’ motion for summary judgment 

(Doc. 31), Plaintiff’s opposition (Doc. 33), Defendants’ reply (Doc. 34), and Plaintiff’s 

sur-reply (Doc. 35). For the reasons explained below, the court finds that 

Defendants’ motion is due to be GRANTED.

FACTS

Plaintiff filed this action pro se on December 27, 2013, alleging that she was 

sexually harassed by her manager, Defendant Leander Harris, while she was 

employed as a letter carrier for the United States Postal Service (“the Agency”). 

(Docs. 1, 4). The Amended Complaint asserts that the sexual harassment started in 

2007 and eventually led to her latest EEOC matter which is based on Plaintiff being 

“put off the clock” on December 9, 2011, while an investigation was conducted 

concerning mail delivered to a complex on Plaintiff’s route. (Doc. 4, pp. 2-4). 

Plaintiff had been delivering mail to a housing project that had been closed for more 

than two months, in violation of Postal regulations. (Doc. 31-5, ¶¶ 3-9). On 

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December 9, 2011, Plaintiff’s supervisor discovered that Plaintiff had been 

delivering the mail to the closed housing project and Plaintiff was placed on off-duty 

status without pay at the close of business that day. (Doc. 31-5, p. 22).

Plaintiff initiated contact with the EEOC about her claim in March 2012 and 

filed a formal complaint on May 19, 2012. (Doc. 4, p. 9, Doc. 31-3, p. 70). On the 

complaint form the Plaintiff checked boxes for discrimination on the basis of sex and 

retaliation. (Doc. 33-3, p. 70). In the EEOC complaint she described the specific 

actions that resulted in her believing she was discriminated against as follows:

MGMT. GAVE FALSE STATEMENTS. THE ATTACKS ON ME ARE 

BECAUSE OF OTHER EEO’S FILED PREVIOUSLY ON LEANDER 

HARRIS. THESE ATTACKS ARE ON-GOING.

(Doc. 33-3, p. 70). By letter dated June 8, 2012, the EEOC acknowledged receipt of 

Plaintiff’s formal complaint and stated that the investigation would include only the 

issue of discrimination based on retaliation. (Doc. 33-3, pp. 70-74). The letter also 

stated that if she did not agree with the defined accepted issues, she must provide a 

written response specifying the nature of her disagreement within seven calendar 

days of receipt of the letter. (Doc. 33-3, p. 72-74). The Administrative Law Judge 

found that Plaintiff did not establish a prima facie case of reprisal discrimination 

and that the Agency had articulated legitimate nondiscriminatory reasons for its 

actions which Plaintiff failed to show were a pretext. (Doc. 4, pp. 9-10). Plaintiff 

appealed the decision and the EEOC affirmed the decision. (Doc. 4. pp. 9-14). The 

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Plaintiff attached a copy of the EEOC’s decision to her original and amended 

complaint in this matter. (Docs. 1, 4). The EEOC noted in its decision that on 

appeal Plaintiff had attempted to raise a claim of sexual harassment, but that it 

was inappropriate for her to raise the claim for the first time on appeal. (Doc. 4, p. 

13).1 

At her deposition, Plaintiff testified that the last incident of sexual 

harassment was in 2008. (Doc. 31-1, p. 5). Plaintiff appears to be confused about 

her claims, as she apparently believes she has been subjected to other harassment 

“stemming from sexual harassment.” (See Doc. 31-1, p. 5 : “That’s not sexual 

harassment. That’s harassment stemming from sexual harassment. Because like I 

said, if I had had sex with him, I probably wouldn’t have had no other problem.” –

The full context of these statements was not provided to the court.).

Plaintiff initiated numerous other EEOC claims in the past. Since the 

alleged sexual harassment started in 2007, Plaintiff has initiated a total of five 

EEOC complaints: the complaint described above and four prior complaints.2 The 

first complaint, dated July 1, 2009, alleged sexual harassment and reprisal. (Doc. 

 

1 The EEOC’s decision also informed Plaintiff that she could file a civil action within 

ninety calendar days from receiving the decision. (Doc. 4, p. 14). Plaintiff states in 

her Amended Complaint that she received the notice of right to sue on September 

29, 2013. (Doc. 4., p. 7). Plaintiff filed the current action 90 days later, on December 

27, 2013. (Doc. 1).

2 Plaintiff initiated four EEOC actions, from 1998 through 2006, which asserted 

claims of discrimination on the basis of race, sex and disability. 

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31-3, pp. 18-21). The 2009 complaint was not resolved and Plaintiff was informed of 

her right to file a formal complaint, but Plaintiff took no further action. (Doc. 33-3, 

p. 20). The second complaint, dated October 25, 2010, alleged disability and sexual 

harassment. (Doc. 31-3, pp. 27-33). The 2010 matter was settled by the parties. 

(Doc. 33-3, pp. 31-33). The third complaint, dated September 30, 2011, alleged

sexual harassment and reprisal. (Doc. 31-3, pp. 34- 39). The September 30, 2011,

complaint was not settled and Plaintiff filed a formal complaint with the Agency

which was later dismissed by the Agency. (Doc. 31-3, pp. 36-37). Plaintiff appealed 

the dismissal and the decision was affirmed by the EEOC. (Doc. 33-3, p. 37). The 

fourth complaint, dated December 21, 2011, alleged reprisal only. (Doc. 33-3, pp. 22-

26). The December 21, 2011, complaint was withdrawn by Plaintiff. (Doc. 33-3, p. 

26).

DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) provides that summary judgment shall 

be granted: “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.” The trial court’s 

function is not “to weigh the evidence and determine the truth of the matter but to 

determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 249 (1986). “The mere existence of some evidence to support the 

non-moving party is not sufficient for denial of summary judgment; there must be 

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‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for 

that party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting 

Anderson, 477 U.S. at 249). "If the evidence is merely colorable, or is not 

significantly probative, summary judgment may be granted." Anderson, at 249-250. 

(internal citations omitted).

The basic issue before the court on a motion for summary judgment is 

“whether the evidence presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail as a matter of law.”

See Anderson, 477 U.S. at 251-252. The moving party bears the burden of proving 

that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 

1257, 1265 (11th Cir. 2001). In evaluating the argument of the moving party, the 

court must view all evidence in the light most favorable to the non-moving party, 

and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle 

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds could differ on 

the inferences arising from undisputed facts, then a court should deny summary 

judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th 

Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 

841 (11th Cir. 1985)).

Once the movant satisfies his initial burden under Rule 56(c), the nonmoving party "must make a sufficient showing to establish the existence of 

each essential element to that party's case, and on which that party will bear 

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the burden of proof at trial." Howard v. BP Oil Company, 32 F.3d 520, 524 

(11th Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). 

Otherwise stated, the non-movant must “demonstrate that there is indeed a 

material issue of fact that precludes summary judgment.” See Clark v. Coats 

& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party 

“may not rely merely on allegations or denials in its own pleading; rather, its

response .... must be by affidavits or as otherwise provided in this rule be set

out specific facts showing a genuine issue for trial.” Vega v. Invsco Group, 

Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere ‘scintilla’ of evidence 

supporting the [non-moving] party’s position will not suffice; there must be 

enough of a showing that the jury could reasonably find for that party.” 

Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).

“[T]he nonmoving party may avail itself of all facts and justifiable inferences 

in the record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 

994, 998 (11th Cir. 1992). “Where the record taken as a whole could not lead 

a rational trier of fact to find for the non-moving party, there is no genuine 

issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574 at 587 (1986) (internal quotation and citation omitted).

B. Plaintiff’s Claims

The claims asserted by Plaintiff in her Amended Complaint are not 

clear. The court notes that Plaintiff is proceeding pro se and this court will 

attempt to give her Complaint a very lenient reading. 

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Courts do and should show a leniency to pro se litigants not 

enjoyed by those with the benefit of a legal education. See, e.g., 

Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Yet even 

in the case of pro se litigants this leniency does not give a court 

license to serve as de facto counsel for a party, see Hall v. 

Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991), or to rewrite an 

otherwise deficient pleading in order to sustain an action, see 

Pontier v. City of Clearwater, 881 F.Supp. 1565, 1568 

(M.D.Fla.1995). 

GJR Investments Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 

1998). Plaintiff “is subject to the relevant law and rules of court, including the 

Federal Rules of Civil Procedure,” the same as any other litigant. Moon v. Newsome, 

863 F.2d 835, 837 (11th Cir. 1989). The court concludes from reading Plaintiff’s 

Amended Complaint and other filings that she may be attempting to assert claims of 

discrimination based on: 1) sexual harassment, 2) disability, and 3) retaliation.

1. Sexual Harassment

Defendants assert that Plaintiff’s sexual harassment claims are time barred 

because she admits that the most recent alleged incident of sexual harassment 

occurred in 2008. To timely exhaust administrative remedies, federal-sector 

employees must initiate contact with an EEOC Counselor prior to filing a complaint 

and must do so within 45 days of the date the alleged discriminatory act occurred. 29 

C.F.R. § 1614.105(a)(1). The complainant must then file a formal complaint of 

discrimination with the agency so that the agency can conduct an investigation and 

attempt to resolve the matter. 29 C.F.R. §§ 1614.106, 1614.108. Plaintiff testified that 

the most recent sexual harassment incident occurred in 2008, more than three years 

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before she initiated contact with an EEOC counselor, in March 2012. To the extent 

Plaintiff is attempting to assert claims based on conduct that occurred in 2008 or 

before, those claims are clearly time-barred. However, the court notes that the 

Plaintiff appears to be confused about what constitutes sexual harassment. She 

stated in her deposition that other actions were not sexual harassment, but instead 

“harassment stemming from sexual harassment.” If Plaintiff’s rejection of her 

manager’s advances was the basis for later employment decisions regarding Plaintiff, 

then such actions could constitute sexual harassment.3 Although Plaintiff is 

experienced in asserting EEOC complaints, she is not an attorney, has not been 

represented by or counseled by an attorney, and may not fully understand the legal 

definition of sexual harassment. As such, the court will not accept Plaintiff’s legal 

 

3 The EEOC defines “sexual harassment” as:

Unwelcome sexual advances, requests for sexual favors, and other verbal 

or physical conduct of a sexual nature constitute sexual harassment when 

(1) submission to such conduct is made either explicitly or implicitly a term 

or condition of an individual's employment, (2) submission to or rejection of 

such conduct by an individual is used as the basis for employment 

decisions affecting such individual, or (3) such conduct has the purpose or 

effect of unreasonably interfering with an individual's work performance or 

creating an intimidating, hostile, or offensive working environment.

29 CFR § 1604.11(a). The above EEOC guidelines, “while not controlling upon the 

courts by reason of their authority, do constitute a body of experience and informed 

judgment to which courts and litigants may properly resort for guidance.” General 

Electric Co. v. Gilbert, 429 U.S. 125, 141–142, 97 S.Ct. 401, 410–11, 50 L.Ed.2d 343 

(1976) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 

L.Ed.124 (1944)).

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conclusion by itself as a factual admission that she was not subjected to sexual 

harassment after 2008. Thus, the court finds that Plaintiff’s testimony does not 

necessarily demonstrate that all sexual harassment occurred in 2008 or before. 

Defendants also assert that to the extent the Agency’s December 9, 2011, action 

of putting Plaintiff off the clock could constitute sexual harassment, Plaintiff failed to 

exhaust her remedies because she did not properly raise a sexual harassment claim in 

her administrative proceeding. Prior to filing a Title VII action, “a plaintiff first must 

file a charge of discrimination with the EEOC.” Gregory v. Georgia Dept. of Human 

Resources, 355 F.3d 1277, 1279 (11th Cir. 2004). “A plaintiff’s judicial complaint is 

limited by the scope of the EEOC investigation which can reasonably be expected to 

grow out of the charge of discrimination.” Mulhall v. Advance Sec. Inc., 19 F.3d 586, 

589 n.8 (11th Cir. 1994). “In other words, judicial claims are allowed if they amplify, 

clarify or more clearly focus the allegations in the EEOC complaint, while allegations 

of new acts of discrimination are inappropriate.” Russell v. City of Mobile, 2013 WL 

1567372, *2 (S.D. Ala. April 12, 2013) (internal quotations omitted). “The purpose of 

this exhaustion requirement is that the [EEOC] should have the first opportunity to 

investigate the alleged discriminatory practices to permit it to perform its role in 

obtaining voluntary compliance and promoting conciliation efforts.” Gregory, 1277 

F.3d at 1279 (citations and internal quotations omitted).

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In the instant case, the Plaintiff checked boxes in her form complaint indicating 

that she suffered discrimination on the basis of both sex and retaliation, but then 

described the basis of her complaint as attacks against her because she had previously 

filed EEOC complaints. There were no factual allegations in Plaintiff’s formal EEOC

complaint that would support a claim for sex discrimination. Plaintiff was also 

notified that the only basis her discrimination complaint was being investigated for 

was retaliation. Plaintiff was given time to object to the scope of the investigation, but 

did not do so. Although Plaintiff attempted to raise a claim for sexual harassment 

during the appeal process of her complaint, as the Administrative Law Judge correctly 

determined, Plaintiff cannot raise a new claim for the first time on appeal and she has 

now waived that claim. See Marathon Oil Co. v. U.S., 807 F.2d 759, 767 -768 (9th Cir. 

1986) (“As a general rule, we will not consider issues not presented before an 

administrative proceeding at the appropriate time.” citation omitted); Bechtold v. 

Massanari, 152 F.Supp.2d 1340, 1346–47 (M.D. Fla. 2001) (social security case finding 

that failure to raise issue before ALJ results in waiver of the issue before the district 

court). The court notes that Plaintiff is experienced in making EEOC claims and has 

asserted sexual harassment claims in the past. Any claim she has arising from these 

prior claims is time-barred for the reasons discussed above.4 Plaintiff has not 

 

4 Any conduct that occurred more that 45 days before Plaintiff initiated contact with 

an EEOC Counselor in March 2012 cannot be the basis of a claim here. 29 C.F.R. § 

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exhausted her remedies as to her non-time-barred claims and thus, the court finds 

that plaintiff has failed to assert a viable claim of sexual harassment. Accordingly, 

summary judgment is due to be granted in favor of Defendants on Plaintiff’s sexual 

harassment claim.

2. Disability

Plaintiff’s Amended Complaint lists mental disability and the Americans with 

Disabilities Act (ADA), 42 U.S.C. § 12117, as a basis for her claim. (Doc. 4, p. 6). 

However, Plaintiff has not supported such a claim with any factual allegations and did 

not include the claim in her most recent EEOC complaint. Thus, the court finds 

Plaintiff has not stated a viable ADA claim and has failed to exhaust her 

administrative remedies as to any ADA claim she might have. 

3. Retaliation

The Amended Complaint does not appear to assert a retaliation claim, but the 

court notes that retaliation was the basis for her most recent EEOC proceeding and 

that Plaintiff attached a copy of the EEOC’s decision in that proceeding to her 

Complaint and Amended Complaint. To the extent Plaintiff is attempting to assert a 

claim of retaliation, the claim would not be barred as to conduct she complains of that 

occurred within 45 days of her initial contact with the EEOC. To make out a prima 

facie case of retaliation, Plaintiff “must establish that (1) she engaged in statutorily 

 

1614.105(a)(1).

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protected activity, (2) she suffered a materially adverse action, and (3) there exists a 

causal link between the two.” Smith v. City of Fort Pierce, Fla., 565 Fed.Appx. 774, 

776-777 (11th Cir. 2014) (citations omitted). “If a plaintiff establishes a prima facie 

case, the burden shifts to the employer to proffer a legitimate, non-retaliatory reason 

for the adverse employment action.” Id. at 777 (citation omitted). “If an employer 

provides a legitimate non-discriminatory reason, the burden shifts to the plaintiff to 

show that the employer's given reason is a pretext designed to mask retaliation.” Id.

A plaintiff shows pretext by “demonstrat[ing] that the proffered reason was not the 

true reason for the employment decision[,]” and by “introduc[ing] significantly 

probative evidence . . . that the asserted reason is merely pretext for discrimination.” 

Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006) 

(internal quotation marks and citation omitted). An employer’s reason is not pretext 

for discrimination “unless it is shown both that the reason was false, and that 

discrimination was the real reason.” Id. at 1163 (emphasis in original) (quoting St. 

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). As part of the pretext inquiry, 

the court “must evaluate whether the Plaintiff has demonstrated such weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s 

proffered legitimate reasons for its action that a reasonable fact finder could find them 

unworthy of credence.” Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 

1289 (11th Cir. 2005) (internal quotation marks and citations omitted). 

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A plaintiff is not allowed to recast an employer’s proffered 

nondiscriminatory reasons or substitute his business judgment for that of 

the employer. Provided that the proffered reason is one that might 

motivate a reasonable employer, an employee must meet that reason head 

on and rebut it, and the employee cannot succeed by simply quarreling 

with the wisdom of that reason.

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).

Defendants assert that Plaintiff has not shown a prima facie case because she 

has not provided any facts to support a causal link between her prior EEOC

complaints and the discipline she received. Even if Plaintiff could show a prima facie

case, she has offered nothing to show that Defendants’ proffered reasons for taking her 

off-duty was merely pretext. Defendants contend that Plaintiff was placed on off-duty 

status because it was discovered that she had been delivering mail to a housing 

project that had been closed for more than two months, in violation of Postal 

regulations. Though Plaintiff filed a response and a sur-reply to Defendants’ motion 

for summary judgment, she has not contested Defendants’ version of the facts with 

any facts of her own. Defendants have offered a legitimate, non-retaliatory reason for

the action and Plaintiff has offered no facts to demonstrate any weaknesses, 

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered reasons. In her response to Defendants’ motion, Plaintiff points to the fact 

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that in the declaration of Frank Carstarphen submitted by Defendants, the Edit Book5

of October 16 2011 was cited to and attached rather than the updated Edit Book from 

December 2011. (Doc. 33, p. 2). However, the October 2011 Edit Book was in effect for 

the months of October, November and early December 2011, when the housing project 

in question had closed and Plaintiff allegedly continued to deliver mail to the closed 

housing project and failed to update the Edit Book. Thus, Defendants submitted the 

appropriate document to show the status of the Edit Book at the time relevant to this 

case. In Plaintiff’s sur-reply, she is adamant that the Defendants and their counsel 

are deceptive and gave false statements, but in support of her contention Plaintiff only 

offers a news article that reports of other postal workers who claim they were sexually 

assaulted and retaliated against by their manager in Albany, New York. (Doc. 35, pp. 

4-8). The news article does not mention any of the parties in this case. Plaintiff has 

offered nothing to show that what allegedly occurred in Albany, New York to other 

individuals has anything to do with Plaintiff’s claims here. Nothing in the article 

 

5 Mr. Carstarphen explained in his affidavit that: 

An Edit Book contains a list of every address assigned to the carrier’s route 

and which is in the carrier’s line of travel. The carrier is required to keep 

this book updated with current information so that vacancies and inactive 

addresses are properly updated in the Address Management System. 

When the Edit Book is updated, mail for those vacant and inactive 

addresses are taken out of the carrier’s route, thus making delivery to 

those addresses unnecessary.

(Doc. 31-6, ¶ 11).

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demonstrates that the legitimate non-discriminatory reason proffered by the 

Defendants in this case should not be believed. Thus, the court finds that summary 

judgment is due to be granted in favor of Defendants to the extent Plaintiff has 

asserted a claim of retaliation. 

CONCLUSION

For the reasons stated above, Defendants’ motion for summary judgment (Doc. 

31), is GRANTED.

DONE and ORDERED this 6th day of February, 2015. 

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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