Opinion
Case No. 1:03-CV-773.
March 1, 2005
OPINION
Plaintiff, John Briggs ("Briggs"), alleges that the United States Postal Service (the "Postal Service") discriminated against him on the basis of age and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000-e et. seq. and 42 U.S.C.A. § 1981(a), when the Postal Service did not select Briggs for the Area Environmental Compliance Specialist position in the Great Lakes Area. Now before the Court is the Postal Service's motion for summary judgment. For the reasons set forth below, the Court will grant the Postal Service's motion and dismiss the claims with prejudice.
I. Facts
Briggs applied for the Area Environmental Compliance Specialist position (the "position" or the "area position") in the Great Lakes Area sometime between June 15 and June 29, 2001. Before then, Briggs had worked for the Postal Service for twenty-six years. The vacancy of the position was prompted by a nationwide Postal Service reorganization which eliminated approximately eighty-five District Environmental Compliance Coordinator positions and replaced them with four area positions. There were seven applicants for the four area positions, six men and one woman. Five of the applicants, including Briggs, were forty years of age or older at the time of the selection. Three of the four persons selected were male and forty years of age or older. All three persons not selected were male. Two of the three persons not selected were forty years of age or older.
The Promotion Review Committee (the "board") and Phillip E. Pickard, the selecting official, interviewed all seven applicants in a parallel interview process. After the board's interview, the board recommended four of these seven applicants to Pickard for his further consideration, and Pickard made the final selection. The board recommended Jennifer Jendras to Pickard, and Pickard selected her for one of the four positions. Jendras is younger than Briggs and did not work in the Postal Service as long as Briggs. The board did not recommend Briggs, and Pickard did not select Briggs.
Briggs alleges that the board and Pickard rejected him on the basis of his sex and age. Briggs claims that the Postal Service hired Jendras because she had less experience and would have a harder time finding other positions within the Postal Service than Briggs. Briggs alleges that, even though he had more experience in the Postal Service and was much more qualified than Jendras, the board and Pickard ignored the hiring criteria and went out of their way to hire Jendras. Briggs claims that the inconsistencies and irregularities in the selection process are evidence of discrimination.
On the other hand, the Postal Service denies that the board and Pickard selected Jendras because of her age or sex. The Postal Service agrees that Briggs was qualified for the job, but argues that the board unanimously agreed that Briggs was not among the best qualified applicants. In fact, Pickard believed that Briggs' interview went poorly because he was not eager to sell himself and did not appear to be a team player. The Postal Service argues that, rather than years of experience in the Postal Service, the board was looking for a package that included a vibrant interview, highlighted with education, experience in environmental compliance, and the desire to be an energetic team player. The Postal Service claims that Jendras' whole package appeared to be better than Briggs'.
The Postal Service denies that the board and Pickard were predisposed to selecting Jendras. Pickard acknowledged that he had a phone conversation with Briggs, but Pickard claims that he had not pre-selected any candidates at the time of the conversation. Pickard claims that, in the phone conversation, he informed Briggs that the Postal Service would like to find the non-selectees other jobs within the Postal Service, and indicated to Briggs that he may have more choices in the Postal Service than someone who did not have his broad background. The Postal Service argues that Briggs was not "squeezed out" on the basis of his sex and age because Briggs did obtain another position within the Postal Service.
The Postal Service denies any willful deviations (e.g. the board and Pickard coordinated a joint interview process) from its standard selection process, and claims that any deviation was due to the short time frame to complete the reorganization and the need to accommodate travel expenses and schedules.
II. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).
III. Discussion
The plaintiff must carry the initial burden to establish a prima facie case of employment discrimination. The plaintiff may establish his prima facie case by introducing either credible, direct evidence of discriminatory intent or through the McDonnell Douglas burden-shifting framework. Herendeen v. Michigan State Police, 39 F. Supp. 2d 899, 906 (W.D. Mich. 1999).
A. Direct Evidence
1. The Law
"In discrimination cases, direct evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions." Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). "Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact ( i.e., unlawful discrimination) without any inferences or presumptions." Lautner v. Am. Tel. Tel. Co., No. 95-3756, 1997 WL 26467, at *3 (6th Cir. Jan. 22, 1997). "With direct evidence, the existence of unlawful discrimination is `patent.'" Herendeen, 39 F. Supp. 2d at 906. Isolated and ambiguous comments are not direct evidence because they are "too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination." Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025 (6th Cir. 1993) (internal quotation marks omitted).
In Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994), Manzer, the plaintiff, alleged that the employer terminated him before he reached age 55 in order to avoid the cost of additional benefits. Manzer provided as direct evidence his supervisor's testimony regarding his firing. Because a reasonable factfinder had to infer from the testimony that Manzer's age was the motiving factor to terminate him, the court held that the testimony was not direct evidence.
Q. Had Edwin Manzer been 55 [years old], you wouldn't have had to terminate him, would you?
A. If Ed Manzer had been 55, he would have been offered the same program, I presume, of voluntarily [sic] retirement, early retirement. I presume he would have been included in that group, if he had been 55.
This is not direct evidence of age discrimination. It is merely a statement of fact that, had Manzer been older, he would have qualified for the same benefits as others. The relevance of this statement to Manzer's case, if any, is provided by inference. Manzer would have the jury infer from the "timing" of his termination that not only was age the motivating factor in terminating him but also that his imminent qualification for additional benefits forced the company to terminate him before he got any older . . . this evidence is, at most, circumstantial evidence of discrimination.Id.
2. Proof of Discrimination
The heart of Briggs' alleged direct evidence of discrimination is his claim that he had a conversation with Pickard before the selection of Jendras wherein Pickard told him that he was more qualified than Jendras. This is what Briggs says in his Affidavit:
18. During the phone conversation affiant expressed concerns that he was being squeezed out because there was no new position being opened in his District.
19. In response, Mr. Pickard told affiant that affiant would not have a problem finding another job [within the Postal Service], whereas the less-qualified and less-experienced selected candidates, including Jennifer Jendras, would have a more difficult time finding alternative positions within the Postal Service due to their limited knowledge and experience in Postal operations.
20. In other words, Mr. Pickard all but advised that despite his superior qualifications, affiant was not going to be promoted.
(Briggs' Aff., ¶¶ 18-20, Pl.'s Resp. Br. Ex. A.)
However, here is how Briggs described this conversation in his deposition:
We talked a little bit more regarding that and I told him that I really didn't think it was fair that I had to be the only DECC who had to move if I even wanted to bid one of these resulting positions, you know.
And at that point in time is when he told me, he said, "Well, based on your background and experience," he says, "You're very well qualified; you won't have a problem finding a job someplace else."
At that point in time my conversation continued. I asked him what he meant by that. And that's when he informed me, he said, "Well, there are other DECCs who have much less time than you do in the postal service and would have a lot harder time finding a residual position if they weren't one of the successful bidders."
And at that point in time I was slightly offended and I said, "Just what exactly are you telling me here," because I hadn't even said that I was going to bid a position or not bid a position. And I told him at that point in time, I said, "It appears to me that you guys have already started putting your new teams together." And at that point I said, "This conversation is done."
(Briggs' Dep. at 44-45, Def.'s Br. Supp. Mot. Ex. B.)
Comparing the Affidavit with the testimony, it is apparent that the addition of the statement about Jendras being less qualified than Briggs and all of paragraph 20 in the Affidavit are lawyer argument rather than statements of fact to be considered in determining whether this case should go forward. See Fed.R.Civ.P. 56(e). The statement about Jendras being less qualified assumes Briggs' argument that he was in fact more qualified than Jendras. It is inconceivable to this court that, if Pickard had actually said that Jendras was less qualified than Briggs, Briggs would not have mentioned this fact during his deposition. The law is well-settled that if a plaintiff's deposition testimony is contradicted by a later affidavit, the deposition testimony governs. Reid v. Sears, Roebuck Co., 790 F.2d 453, 460 (6th Cir. 1986) ("A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony."). And Affidavit paragraph 20 is pure argumentative conclusion.
Looking at Briggs' deposition testimony, then, there is nothing that shows any discriminatory intent or admission. The statement can be construed as nothing more than a comforting statement of fact by Pickard that Briggs would have an easier time finding a job with the Postal Service if he were not hired for the area position. In other words, Briggs, at least, would remain employed by the Postal Service while, perhaps, others might not. Nothing in the statement suggests, either directly or indirectly, that Briggs would not obtain the job because of his age or sex. In fact, Briggs is still employed by the Postal Service.
B. The McDonnell Douglas Burden-Shifting Approach
1. The Law
The Supreme Court has articulated the McDonnell Douglas approach applied in disparate treatment situations in Title VII cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S. Ct. 1817, 1824-1826 (1973). Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). This approach also applies in age discrimination cases. Roush v. KFC Nat'l Mgmt. Co., 10 F.3d 392, 396 (6th Cir. 1994) ("This court has adopted a modified version of the guidelines established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) in age discrimination cases.").
Plaintiff can establish a prima facie case of discrimination by showing that (1) she was a member of a protected class; (2) she was discharged; (3) she was qualified for the position; and (4) she was replaced by a person outside the class.Mitchell, 964 F.2d at 582.
Once the plaintiff has established a prima facie case, the burden then shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." McDonnell, 411 U.S. at 802, 93 S. Ct. at 1824. To successfully rebut the plaintiff's prima facie case, the employer must articulate clear and specific reasons for the rejection.
[T]he defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1094-1095 (1981) (footnotes omitted).
Although courts allow employers to offer their subjective evaluations as a legitimate reason for rejecting the applicant, subjective evaluation processes must be carefully scrutinized.
Courts have frequently noted that subjective evaluation processes intended to recognize merit provide ready mechanisms for discrimination. Moreover, the legitimacy of the articulated reason for the employment decision is subject to particularly close scrutiny where the evaluation is subjective and the evaluators themselves are not members of the protected minority. The Supreme Court in Burdine voiced similar concerns. The Court stated the articulated reasons must be "clear and specific" to rebut the prima facie case and guarantee that the plaintiff will be afforded "a full and fair opportunity" to demonstrate pretext. "Obviously [sic] the more subjective the qualification [sic] and [sic] the manner in which it is measured, the more difficult it will be for the defendant to meet the burden imposed by the court in Burdine." Subjective employment evaluations, however, are not illegal per se. The ultimate issue in each case is whether the subjective criteria were used to disguise discriminatory action.Grano v. Dep't of Dev. of the City of Columbus, 699 F.2d 836, 837 (6th Cir. 1983) (citations omitted) (quoting Robbins v. White-Wilson Med. Clinic, Inc., 642 F.2d 153, 156 (5th Cir. 1981), subsequently withdrawn). See also Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88, 93 (6th Cir. 1982) ("While we recognize that, in some circumstances, employment decisions may be made on the basis of such subjective criteria, any procedure employing such subjective evaluations will be carefully scrutinized in order to prevent abuse.").
In Rowe, a black male submitted his application to be rehired after he was laid off. The employer rejected the application but did not articulate a specific reason. The court noted that the employer may have rejected the application based on the applicant's previous work record or based on an illegitimate racial preference. The court held that the reason articulated by the employer did not meet the "clear and specific" standard in Burdine "because it was not substantiated by clear, reasonably specific and legally sufficient evidence." Rowe, 690 F.2d at 96. As a result, the court held that the employer failed to meet its burden to rebut the prima facie case.
After the employer successfully rebuts the prima facie case, the plaintiff must demonstrate that the employer's stated reason for the rejection was in fact a pretext. McDonnell, 411 U.S. at 804, 93 S. Ct. at 1825. The plaintiff can demonstrate pretext "by showing that the proffered reason (1) has no basis in fact, (2) did not actually motivate the defendant's challenged conduct, or (3) was insufficient to warrant the challenged conduct." Dews v. A.B. Dick Co., 231 F.3d 1016, 1021 (6th Cir. 2000).
"There are no hard and fast rules as to . . . what evidence is needed in order to establish a pretext." Rowe, 690 F.2d at 97. However, a plaintiff may carry his burden by showing that the employer nevertheless accepted other applicants who had similar qualifications as the plaintiff, but who were not in the protected class. See McDonnell, 411 U.S. at 804, 93 S. Ct. at 1825. "[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S. Ct. 2097, 2109 (2000). On the other hand, if "no rational factfinder could conclude that the action was discriminatory" on the basis of the plaintiff's evidence, summary judgment will be appropriate. Id. In addition, although the intermediate evidentiary burden shifts back and forth under the McDonnell Douglas framework, the ultimate burden of persuasion remains at all times with the plaintiff. Id. at 143, 120 S. Ct. at 2106.
In addition, courts defer to the employer's decision to choose from qualified candidates and will not find evidence of a pretext unless the plaintiff's qualifications are so obviously superior to other applicants who were hired.
It may be worthwhile to note here that Title VII does not diminish lawful traditional management prerogatives in choosing among qualified candidates[.] So long as its reasons are not discriminatory, an employer is free to choose among qualified candidates[.] An employer has even greater flexibility in choosing a management-level employee, as is the case here, because of the nature of such a position.Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987) (citations omitted).
We reemphasize the general rule that differences in qualifications between job candidates are generally not probative evidence of discrimination unless those differences are so favorable to the plaintiff that there can be no dispute among reasonable persons of impartial judgment that the plaintiff was clearly better qualified for the position at issue. We therefore hold that the district court did not err in instructing the jury that disparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as to virtually "jump off the page and slap you in the face."Deines v. Texas Dep't of Protective and Regulatory Servs., 164 F.3d 277, 279 (5th Cir. 1999).
Moreover, the plaintiff's subjective belief of his competence or the incompetence of those competing against him is irrelevant. Wrenn, 808 F.2d at 502. "In a Title VII case, however, we look to the employer's motivation, not the applicant's perceptions, or even an objective assessment, of what qualifications are required for a particular position." Id. Rather, the employer's perception and the motivation of the rejection are the key. Id. "If Plaintiff had merely given his own subjective opinion that he was better qualified then [sic] Mr. Driscoll, he would not have presented a jury issue. . . ." Carberry v. Monarch Marking Sys., Inc., Nos. 00-3922, 00-3996, 2002 WL 220634, at *3 (6th Cir. Feb. 11, 2002).
2. Proof of Discrimination
In the instant case, the Postal Service concedes that Briggs has established a prima facie case of employment discrimination. Therefore, the issues are whether the Postal Service has articulated a specific reason to rebut the prima facie case and whether Briggs is able to demonstrate that the stated reason is a pretext.
a. The Stated Reason
The Postal Service considers Jendras' overall package superior to Briggs' and it offers two reasons for selecting Jendras over Briggs. First, the board and Pickard considered Jendras' education, prior working experience outside the Postal Service, and the difficult tasks she handled at work. With respect to these objective criteria, the Court defers to the Postal Service's business choice among qualified candidates unless Briggs' education and experience are obviously superior to those of Jendras. In the instant case, Briggs' education and experience are not obviously superior to those of Jendras. On the contrary, Jendras' package appears superior to that of Briggs. Briggs received a bachelor degree in Business Administration. He worked in the Postal Service for twentysix years and does not have any environmental compliance experience outside of the Postal Service. Jendras received a bachelor degree in Environmental Health and Safety, a degree aimed at environmental compliance. She has two Master's degrees, a MBA and Master's in Public Health Administration. She has six years of environmental compliance experience outside of the Postal Service, and she worked as an environmental health and safety manager for four years before she started working for the Postal Service in 1996. In the job posting, the education requirement is a bachelor's or advanced degree in a scientific discipline or engineering field. Thus, based upon the written job criteria, Jendras appears closer to meeting the criteria than Briggs because Briggs does not have a degree aimed at science, the environment, or public health. In addition, even at the business level, Jendras has a higher degree than does Briggs. This does not diminish what Briggs learned on the job at the Postal Service, but it is a rational, non-discriminatory distinction between these two applicants. Moreover, the board and Pickard state that they like Jendras' environmental experience outside of the Postal Service, while all of Briggs' relevant experience is within the Postal Service. Such preference is reasonable because the outside experience may equip Jendras with a different perspective to handle her job.
With respect to Briggs' and Jendras' "KSA," (which seems to have several definitions in the record) which is a form of short essay writing given by the board to test applicants' technical knowledge. Briggs' answers were longer than Jendras', but whether they gave more important information, this court cannot determine. Rather, the Postal Service is in the best position to decide because it is familiar with the nature of the job.
Second, the board and Pickard consider Briggs' interview performance poor. They think Briggs merely answered the questions in the interview but did not make an effort to sell himself and did not appear to be an energetic team player. The interview performance is a subjective criterion which is subject to close scrutiny. The key is whether the Postal Service has articulated a clear and specific reason for its selection.
In Grano, the plaintiff applied for a new position created by Huddle, the plaintiff's supervisor. Huddle did not interview the plaintiff. Rather, Huddle subjectively evaluated the plaintiff's actual work performance and determined that she was not qualified. The court reasoned that the subjective nature of Huddle's decision was subject to close scrutiny. However, after the court examined Huddle's evaluation process, the court concluded that the stated reason was clear and specific enough to rebut the prima facie case. Grano, 699 F.2d at 837-838.
In the instant case, the Postal Service has articulated clear and specific reasons substantiated by sufficient evidence. First, the Postal Service is not required to present contemporaneous interview notes of the board or Pickard to satisfy the clear and specific standard. Cf. Hall v. Bodine Elec. Co., 276 F.3d 345, 358 (7th Cir. 2002) (holding that the fact that the employer failed to "maintain his original handwritten investigation notes is not evidence of pretext"). See also Rummery v. Illinois Bell Tel. Co., 250 F.3d 553, 558-559 (7th Cir. 2001) ("Employers are not required to keep every single piece of scrap paper that various employees may create during the termination process. It is sufficient that the employer retains only the actual employment record itself, not the rough drafts or processes which may lead up to it."). Second, the Postal Service has detailed its interview process and presented both interviewers' opinions on Briggs' interview to substantiate the stated reason. Because of time constraints, the board and Pickard conducted parallel interviews. The board and Pickard interviewed all the applicants respectively, the board recommended a list of desired candidates, and Pickard made the final decision. With respect to the board's evaluation of Briggs' interview, Wingo-Stalinger, the chairperson of the board, did not directly comment on Briggs' performance. However, she testified that in evaluating the candidates, she very much emphasized the interview performance. She testified that every board member wrote down the names of his or her desired candidates after the interview but before they met to discuss the candidates. In the meeting, the board reached an unanimous decision on which candidates to recommend to Pickard, and Briggs was not recommended. Furthermore, Pickard believed that Briggs' interview went poorly. Pickard did not have to follow the board's recommendation, but he saw no reason to reject it. The Court considers the evidence clear and specific enough to rebut the prima facie case.
Briggs cites Carberry v. Monarch Marking Sys., Inc., Nos. 00-3922, 00-3996, 2002 WL 220634, at *3 (6th Cir. Feb. 11, 2002) in an attempt to show that the Postal Service's stated reason is subjective and unsubstantiated. In Carberry, Monarch, the employer, rejected Carberry, a well-qualified candidate and instead hired Driscoll. Monarch claimed that Carberry was not the right fit for the job. However, the evidence showed that Carberry outrivaled Driscoll on the objective criteria that Monarch itself published in the job posting. In other words, Monarch's rejection went directly against its own printed list of qualifications. "[Carberry] quoted to the jury what Monarch said to the world were the necessary objective qualifications, showed that he met them, and showed that there were several Mr. Driscoll did not meet." Id. As a result, the court held that the jury was entitled to disbelieve Monarch's stated reason and infer from the falsity of the reason that the true motivation of the rejection was intentional discrimination. Id.
The facts of the instant case are different from those of Carberry. First, unlike Carberry, Jendras appears well-qualified on the objective criteria, even better qualified on the educational criteria. Second, the instant case is at the stage of a summary judgment motion, while Carberry went on to a trial and the ruling was about whether the jury may disbelieve the employer's stated reason.
b. The Showing of Pretext
Briggs fails to meet his burden to demonstrate that the stated reason is a pretext. First, Briggs fails to show that the board's perception that Jendras offers a better package had no basis in fact. Jendras indeed has higher education and more diverse work experience than Briggs. Furthermore, Jendras performed better in her interview than Briggs.
Second, Briggs fails to show that the board's perception that Jendras offers a better package was not the actual factor motivating the decision. To prove that the Postal Service's actual motivation was to help out the younger, less experienced applicants, Briggs offered as evidence the phone conversation where Pickard said that Briggs had more choices in the Postal Service while the younger applicants did not. For the reasons stated above, this evidence is insufficient to show that the hiring decision was motivated by discrimination.
Third, Briggs fails to show that the board's perception that Jendras offers a better package was insufficient to motivate the decision to reject him. If the board considered Jendras better qualified than Briggs, the board had every right to reject Briggs because it is free to choose the best candidate among qualified applicants.
In addition, Briggs' argument focuses on the fact that he has much more experience in the Postal Service and a broader background in the environmental compliance field than Jendras. However, Briggs' subjective belief is irrelevant. Rather, the board and Pickard's perception and motivation of the decision are the key. Wrenn, 808 F.2d at 502.
Furthermore, an analysis of the selectees demonstrates that the Postal Service did not discriminate against Briggs on the basis of sex and age. Three of the four selectees are in a similar situation as Briggs. They are male and were over forty years of age or older at the time of the selection. Morever, the Postal Service subsequently placed Briggs in a position as an injury compensation manager. In December 2003, Briggs successfully bid to his current position as a manager of vehicle maintenance for the Greater Michigan District.
Briggs also alleges that the board and Pickard had many irregularities in the selection process. Briggs claims that the board and Pickard conducted parallel interviews, which is a deviation from the standard selection process. However, the board and Pickard have established that they did so because of the short time frame to complete the reorganization and the need to accommodate travel expenses and schedules. Briggs further alleges that Pickard contacted Dan Borninski, one of the selectees, to advise him to revise his application. Briggs claims such contact produced an unfair advantage over other applicants. However, Pickard testified, without contradiction, that he contacted Borninski to inform him of an obvious typo in the application. A correction of a typo is insufficient to give Borninski an unfair advantage over other applicants.
Briggs also claims that the Postal Service's own policy requires that the selection criteria be contained in the job posting, and the job posting in this case did not require the candidates to possess excellent interpersonal skills and the drive to become a team player. The Court disagrees. It is unnecessary and impossible for a job posting to list all the subjective criteria. Rather, subjective criteria (e.g. excellent interpersonal skills, the drive to become a team leader, good interview performance, honesty, enthusiasm) are such common sense requirements that an applicant should know they would be part of the selection criteria.
C. The Age Discrimination Claim
One of Briggs' claims is an age discrimination claim under 42 U.S.C.A. § 1981(a). However, this statute does not allow a claim against the federal government. "[A] federal employee claiming job discrimination may proceed only under Title VII, and may not secure additional remedies by proceeding also under § 1981." Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1204 (6th Cir. 1984). "[The Postal Service] functions as part of the federal government." Robinson v. Runyon, 149 F.3d 507, 516 (6th Cir. 1998).
IV. Conclusion
For the foregoing reasons, the Court will grant the Postal Service's motion for summary judgment and dismiss Briggs' claims with prejudice.
An Order consistent with this Opinion will be entered.