United States District Court, E.D. Wisconsin
ERNEST J. PAGELS, Plaintiff,
UNITED STATES POSTAL SERVICE, Defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT (DKT. NO.
PAMELA PEPPER United States District Judge
August 21, 2015, plaintiff Ernest J. Pagels Jr., who is
representing himself, filed a complaint against the United
States Postal Service (“USPS”). Dkt. No. 1. The
plaintiff appears to make two distinct claims. He alleges
that the USPS (1) did not hire him and, instead, “hired
Hispanics, African Americans and Women who have never served
in the military, ” which sounds like a reverse
discrimination claim, and (2) “put a restraining order
on [him] not to enter any U.S. Postal Service [building] for
the next three years;” he would like to enter a USPS
office without restrictions. Id. at 1. The court
construes the complaint as a request that the court enter an
order directing the USPS to award the plaintiff a job, and
modifying or vacating the state court restraining order. The
USPS filed a motion for summary judgment as to both claims.
The court will grant the motion.
plaintiff is a United States Air Force veteran who has served
all over the world. Dkt. No. 17. He applied for employment
with the USPS, but the USPS did not hire him. Id.
The plaintiff also is subject to a restraining order that
prevents him from entering a USPS office. Id. In
response to the plaintiff’s complaint, Jennifer L.
Jarvie, an EEOC Data Analyst, searched the USPS’s
national database of information and formal EEOC complaints
of discrimination filed by applicants for employment with the
USPS. Dkt. No. 13 at 4, ¶¶2, 5. Her search
identified “no record of any discrimination complaints,
formal or informal, and no record of any calls to the USPS
EEOC Contact Center” relating to the plaintiff.
Id. at ¶7. The USPS also attached a certified
copy of an “Injunction - Harassment” filed in the
case United States Postal Service Lakeland District v.
Ernest John Pagels, Case. No. 2015CV006603, along with a
copy of the docket sheet in that case. Id. at 5,
¶¶8-9. The docket sheet reflects that the plaintiff
did not appeal the entry of that injunction. Id.,
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when there is no genuine dispute
as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548
(1986). A court appropriately grants summary judgment
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party’s case, and on which that party will bear the
burden of proof at trial.” Id. The
“purpose of summary judgment is to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348 (1986) (internal quotation marks omitted) (citation
omitted). “A party will be successful in opposing
summary judgment only when they present definite, competent
evidence to rebut the motion.” EEOC v. Sears,
Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000).
facts” are those facts which “might affect the
outcome of the suit, ” and a dispute about a material
fact is “genuine” if a reasonable finder of fact
could find in favor of the nonmoving party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505 (1986). The party opposing summary judgment cannot
simply rest on allegations or denials in its pleadings; it
must also introduce affidavits or other evidence setting
forth specific facts showing a genuine issue for trial.
Anders v. Waste Mgm’t of Wisconsin, 463 F.3d
670, 675 (7th Cir. 2006). The court views all facts and draws
all reasonable inferences in favor of the nonmoving party,
Tanner v. Jupiter Realty Corp., 433 F.3d 913, 915
(7th Cir. 2006), but “inferences that are supported by
only speculation or conjecture will not defeat a summary
judgment motion, ” Herzog v. Graphic Packaging
Int’l, Inc., 742 F.3d 802, 806 (7th Cir. 2014)
(quoting Tubergen v. St. Vincent Hosp. & Health Care
Ctr., Inc., 517 F.3d 470, 473 (7th Cir. 2008)).
on the undisputed facts, the court must grant the
government’s motion for summary judgment. First, the
court cannot give the plaintiff any relief on his
discrimination claim at this time, because there is no
evidence that he attempted to resolve his discrimination
claim through the government’s administrative
procedures. In other words, there is no evidence that before
filing his lawsuit, the plaintiff filed a claim with the
Equal Employment Opportunity Commission. That is a necessary
step before a plaintiff can file a discrimination claim in
federal court. Second, this court does not have the authority
to modify the Milwaukee County Circuit Court’s
restraining order, so it cannot give him any relief on that
Mr. the plaintiff was an applicant for federal employment, he
was required to follow Title VII’s administrative
grievance process before filing a complaint in this court
based on his discrimination claim. Brown v. Gen. Servs.
Admin., 425 U.S. 820, 831 (1976); Doe v. Oberweis
Dairy, 456 F.3d 704, 712-13 (7th Cir. 2006). Title VII
authorized the Equal Employment Opportunity Commission to set
forth regulations governing the administrative process that
an unsuccessful applicant for federal employment must follow
before filing a complaint in court. 42 U.S.C.
applicant for federal employment who believes he “may
have been discriminated against on the basis of race, color,
religion, sex, national origin, age, disability, or genetic
information must consult [an EEOC] Counselor within 45 days
of the date the matter alleged to be discriminatory or, in
the case of personnel action, within 45 days of the effective
date of the action.” 29 C.F.R. §1614.105(a)(1).
“The purpose of this section is to allow the government
and the employee involved an opportunity to informally
resolve the matter before formal action is taken, either
through the EEOC or in the courts.” Smith v.
Potter, 445 F.3d 1000, 1006-07 n. 15 (7th Cir. 2006)
(internal citation and quotation omitted).
case, the undisputed facts show that the plaintiff filed his
complaint before he made either a formal or an informal
complaint of discrimination to the EEOC. In response to the
USPS’s motion, the plaintiff stated that he
“thought only the Court’s deal with
discrimination issues.” Dkt. No. 17 at 1. The court
does not question the plaintiff’s explanation, but
unfortunately, the plaintiff’s belief was wrong. The
law does not relieve him from the requirement that he pursue
administrative procedures before filing a complaint in
court-even if he didn’t understand the requirements of
the law. As an unsuccessful applicant for federal employment,
the plaintiff must exhaust his administrative remedies before
he can file a complaint “against the government for
violation of Title VII of the Civil Rights Act of 1964 . . .
.” Smith, 445 F.3d at 1007. His failure to
exhaust his administrative remedies is not a jurisdictional
defect, and he still may be able to raise his claim with the
agency. The court will grant the USPS’s motion summary
judgment as to the reverse discrimination claim, and dismiss
that claim without prejudice.