Opinion
2:99 CV 219
June 17, 2000
ORDER
This matter is before the court on a motion for summary judgment filed by defendant John E. Potter, Postmaster General (hereinafter, "the Postal Service.") In this action plaintiff Rochester Holmes alleges that the Postal Service has in several ways breached a settlement agreement it entered into with Holmes in 1994, and has denied him two promotions because of unlawful discrimination on account of his race, age, and in retaliation for his previous complaints of discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act, ("ADEA"), 29 U.S.C. § 623 et seq.
In its motion for summary judgment the Postal Service addresses other claims that appeared to be raised in Holmes' complaint. In his response to the summary judgment motion, at p. 2 n. 2, Holmes explicitly abandons those claims, so the court does not address them.
RULE 56 of the FEDERAL RULES OF CIVIL PROCEDURE directs this court to enter summary judgment 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(c). The considerations applicable to a motion for summary judgment have been concisely summarized by the Court of Appeals:
A motion for summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. In determining whether a genuine issue of material fact exists, "a trial court must view the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party." To defeat a motion for summary judgment, the non-moving party cannot rest on the mere allegations or denials contained in his pleadings, but "must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial." However, neither presenting a scintilla of evidence, nor the mere existence of some alleged factual dispute between the parties or some metaphysical doubt as to the material facts, is sufficient to oppose a motion for summary judgment. The party must supply evidence sufficient to allow a jury to render a verdict in his favor.
Robin v. Espo Engineering Corp., 200 F.3d 1081, 1087-1088 (7th Cir. 2000) (citations omitted). This standard is rigorously/vigorously applied in employment discrimination cases where intent and credibility are key issues. Heinemeier v. Chemetco, Inc., 246 F.3d 1078, 1082 (7th Cir. 2001); but cf. Gordon v. United Airlines, Inc., 246 F.3d 878, 896 (7th Cir. 2001) (Easterbrook, J., dissenting) ("Summary judgment is a hurdle high enough without `added vigor.'")
Holmes' Discrimination Claims
Holmes has no direct evidence establishing discrimination on the basis of either his race or his age. Lacking direct evidence, Holmes must proceed using the familiar indirect method (also referred to as the burden-shifting method), first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the indirect method, a presumption of discrimination arises once the plaintiff establishes a so-called McDonnell Douglas prima facie case, the elements of which are flexible and tailored to the circumstances. Brill v. Lante Corp., 119 F.3d 1266, 1270 (7th Cir. 1997).
In a case alleging discriminatory failure to promote, a plaintiff establishes a prima facie case by showing that: 1) he is a member of a protected group; 2) he is qualified for the position sought; 3) he was rejected for the position, and; 4) the employee promoted had equal or lesser qualifications, i.e., was not more qualified, or the employer continued to consider candidates with qualifications equal to or lesser than the plaintiff's. Milibrook v. IBP, Inc., 280 F.3d 1169, 1174 (7th Cir. 2002); Payne v. Milwaukee County, 146 F.3d 430, 434 (7th Cir. 1998); Brill, 119 F.3d at 1270. For an allegation of unlawful retaliation, a plaintiff must show: 1) that he or she engaged in a protected activity; 2) suffered an adverse employment action after that activity; and 3) there was a causal link between the adverse action and the protected activity. See Wells v. Unisource Worldwide, Inc., 289 F.3d 1001, 1008 (7th Cir. 2002).
In Stone v. City of Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002), decided on February 19, 2002, the Court of Appeals purported to drop the causation element, holding that a plaintiff using the indirect method to show retaliation need not show even an attenuated causal link." Wells was decided nearly three months later, however, and reiterates the causation element, leaving this court unsure what the elements of a prima facie case are. (Although Wells could be read as a direct evidence case, the authority it cites, Velasco v. Illinois Dept. of Human Serv., 246 F.3d 1010, 1017 n. 6 (7th Cir. 2001), is without doubt an indirect method case.) In any event, because the basis of decision in this case is on grounds other than the presence/absence of a causal link, the court need not solve the riddle.
If a plaintiff can show evidence of each of the above elements, a burden of production is placed on the defendant, requiring the defendant to articulate a legitimate, non-discriminatory explanation for the action it took. Once the defendant does so, the plaintiff has the burden — in the context of defeating a summary judgment motion — of identifying evidence that creates an issue of fact as to whether the defendant's proffered reason is a pretext to disguise unlawful discrimination. Pugh v. City of Attica, Indiana, 259 F.3d 619, 626 (7th Cir. 2001). A plaintiff may do so by showing that the proffered explanation is "unworthy of credence" either because the proffered reason has no basis in fact, it did not motivate the challenged decision, or it is insufficient to motivate the challenged decision. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1143 (7th Cir. 1997). There is a "fine line" between evidence demonstrating pretext and evidence that simply shows bad business judgment. Schultz v. General Elec. Capital Corp., 37 F.3d 329, 334 (7th Cir. 1994). Moreover, if a plaintiff's evidence of pretext is extremely weak, and the evidence that no discrimination occurred strong, a defendant may be entitled to summary judgment because no reasonable jury could find the existence of intentional discrimination. Millbrook, 280 F.3d at 1183.
Manager of Vehicle Maintenance
The parties placed their documents supporting/opposing summary judgment in bound appendices. The Postal Service separated its documents with lettered tabs, Holmes used numbered tabs. Throughout this order the court will use the same method as the parties to refer to the record, i.e., "Tab A," "Tab B," etc. refer to an exhibit in the Postal Service's appendix; "Tab 1," "Tab 2," etc. refer to Holmes' exhibits.
Holmes applied for a promotion to the position of Manager, Vehicle Maintenance, in Bedford Park, Illinois, the second time a vacancy notice for the position was posted. Twelve other individuals also submitted applications. Following Postal Service procedures, a review committee of three employees (all at or above the grade of the position and one of whom had relevant experience) was formed to select the best candidates from the thirteen who applied. The review committee met by phone and, according to declarations filed in support of summary judgment by two of its members, decided that the best candidates were those with current experience managing a vehicle maintenance or auxiliary maintenance department. The committee recommended three applicants with that experience, and, as he did not have that experience, Holmes was not one of those three. The three selected applicants were white, under 40 years of age, and none had made any prior equal employment opportunity complaints.
The Postal Service does not claim that Holmes was not qualified for the position, nor it does it argue that he has not established a prima facie case of discrimination. Instead, the Postal Service argues that Holmes has no evidence that shows that the review committee's "litmus test" for the candidates selected instead of Holmes — current experience in the same or a similar position — is a pretext to mask unlawful discrimination.
Holmes argues that the evidence presents a jury question on the issue of pretext. Holmes urges that common sense indicates that it is odd that the review committee's purported "litmus test" — current experience in the position — was not listed as a requirement for the job on the vacancy posting, thus suggesting that the reason was made up after the fact. To bolster the notion that the "current experience" justification was fabricated to cover up a discriminatory or retaliatory decision, Holmes points to several additional facts.
First, the position was posted twice. Holmes argues this shows that the group of applicants who responded to the first posting were viewed as unqualified. Nevertheless, after the second posting, two applicants who had responded to the first posting ended up being among the three finalists recommended for the position.
Second, only four of the thirteen applicants from whom the three white finalists were selected were white. The fourth white applicant in the pool was over the age of 40 and had filed a prior discrimination complaint.
Third, one of the black applicants, John Cockingham, had served six "details" as a manager of vehicle maintenance, and so had relevant experience, but was not selected.
Neither of the parties has explained this term, although it appears frequently in their briefs and supporting evidentiary materials. From reviewing the record, the court surmises that a "detail" is a short-term, temporary assignment performed by an employee that allows the employee to learn the skills necessary to perform that job. See Tab F at p. 33.
Finally, Holmes asked two other experienced Postal Service officials with whom he is acquainted to compare his qualifications to those of the three finalists. Those officials believed that Holmes was highly qualified for the position, and one of them would have selected Holmes for the position. In addition, the Postal Service manager who did make the final selection for the Bedford Park position, Veronica Thompson, was familiar with Holmes' qualifications, and was surprised when she found out that he was not one of the finalists.
On summary judgment, the evidence must be viewed in the light most favorable to Holmes. Even so, however, Thompson's testimony is not really as Holmes claims. Asked why she found it surprising that Holmes was not among the final candidates, Thompson explained that his application "looked real good," but immediately qualified that statement by saying "[h]owever, because I did not see the qualifications of the others that were in the package, I did not have any — anything to compare to." Tab 25 at p. 37.
Three of the facts listed above are probative of nothing. First, the fact that other experienced Postal Service employees, even the official responsible for making the final selection, may have viewed Holmes as better qualified than the applicants actually chosen is not evidence of pretext, because it does not establish that Holmes was so clearly superior to the finalists chosen that no reasonable person exercising impartial judgment could have made the decision that the review committee did. Millbrook, 280 F.3d at 1180-81.
Second, Holmes has identified no credible evidence that would allow a reasonable jury to conclude that the position was posted a second time because the first group of applicants was unsatisfactory. Holmes attempts to establish this fact with the deposition testimony of Francis J. Eddy, a transportation specialist employed by the Postal Service in Washington, D.C. Eddy testified that one reason a position might be posted a second time would be because of dissatisfaction with the applicants. Tab 27 at p. 56. However, Eddy also testified that a position might be posted a second time because of too few responses to the first posting, and that he had no idea why the position at issue had been posted twice. Id. at pp. 54-55. This would make any finding that the position was reposted because of dissatisfaction with the initial group of applicants rank speculation.
Holmes also attempts to support this assertion with pages 229-31 of his own deposition (Tab 2), where he describes a conversation with Veronica Thompson, the official who made the final hiring decision. Holmes states: "I think she [Thompson] may have mentioned Mr. Curie [sic], that he had applied, but she didn't think he was qualified for the position." (Emphasis added). Holmes responded telling her "if you don't think you have a strong package, all you have to do is reapply," apparently meaning she should post another vacancy announcement. Thompson answered: "Well I know how to do that. I will do that." Holmes' testimony as to what Thompson said is equivocal, and so not sufficient to contradict her own deposition testimony that the decision whether to re-post the position was "not in my hands," Tab 25 at p. 21, and that she was told that the position had been re-posted because of an insufficient number of applicants. Id. at p. 25.
Moreover, even if it could be inferred that the position was re-posted because of dissatisfaction with the qualifications of the initial group of applicants, see n. 6, Eddy also testified that if the second posting resulted in a group of applicants that were no more qualified than before, it would not be unusual to hire someone from the first group. Tab 27 at p. 56. As a result, the fact that the position was re-posted, but then three applicants who had responded to the first posting were selected as finalists, casts no suspicion on the reason stated for selecting those applicants, current experience in the position.
Third, the fact that John Cockingham, a black applicant, had served six "details" as a manager of vehicle maintenance but was not among the final candidates does not indicate that the reason given, current experience in the position, is a pretext for discrimination. Cockingham's six details were all a month or less in duration, so, in total, he had less than six months of experience in a comparable position. Tab 15. Although that experience was in the nine-month period prior to the posting, Cockingham was not managing a vehicle maintenance or auxiliary maintenance facility at the time the review committee made its decision. Tab 15. In addition, Cockingham had a total of less than two years' experience in the transportation field, significantly less than the three candidates selected as finalists. Tab 15. Thus, Cockingham's non-selection as a finalist does not cast doubt on the explanation given for selecting the three finalists.
The experience of the three finalists was, at the time of the decision as follows. Merv Simpson was in his seventh year as an auxiliary VMF [vehicle maintenance facility] supervisor, had served as a vehicle maintenance supervisor for five months before that, and as an automotive mechanic for almost four years before that. Tab 17. Edward Jones had been serving as the manager of a VMF for over five years, almost two years as a VMF supervisor prior to that, and had approximately twelve years of experience as a VMF storekeeper and mechanic prior to that Tab 18. Timothy Currie, who was ultimately selected, had been serving as a supervisor of vehicle maintenance for 3 years, four months. Tab 16.
This leaves Holmes with only two potential arguments supporting a showing of pretext: that the review committee's "litmus test" — current experience in the position — was not listed as a requirement on the posting for the job, and the fact that out of thirteen applicants, only four of whom were white, three white applicants were selected as finalists. Holmes admits that this possible statistical oddity by itself cannot establish pretext, but argues that it is relevant to the pretext issue if other evidence of pretext exists.
Holmes extracts this proposition regarding statistical evidence from two cases, Kidd v. Illinois State Police, 167 F.3d 1084, 1101 n. 16 (7th Cir. 1999) and Kadas v. MCI Systemhouse Corp., 255 F.3d 359 (7th Cir. 2001). They do not bear precisely on the issue Holmes raises, that is, the relationship between statistical evidence and pretext. Instead, they state that statistics alone, except in rare cases, cannot establish disparate treatment of an individual, but can be considered on the issue in conjunction with other evidence. Kadas, 255 F.3d at 363; Kidd, 167 F.3d at 1101 n. 16. The court thinks that Holmes has extended this reasoning correctly to the issue of pretext: barring rare exceptions, statistics alone cannot establish pretext in an individual disparate treatment case, because this would be the practical equivalent of making out a prima facie case using statistics, exactly what Kidd and Kadas caution against. However, statistics may be relevant in light of other evidence suggesting pretext.
What this case boils down to, then, is whether Holmes is correct in asserting that the fact that the Review Committee's "litmus test" — current experience in a similar position — was not listed as a job requirement, would allow a reasonable jury to view it as a made-up reason given to hide unlawful discrimination. Quoting Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001), Holmes urges the court not to "abandon good reason and common sense" when it considers this issue.
The court agrees that it should employ good reason and common sense, but such experiential wisdom dictates that it is not at all suspicious that current experience was not listed as a "make or break" requirement on the job posting. Good reason and common sense indicate that job postings list as "requirements" the minimum qualifications necessary for a job, in order to develop a pool of qualified applicants. Then, unless the employer intends to interview every applicant, the employer must winnow the pool to the "best" applicants by applying whatever additional criteria the employer finds relevant.
Obviously, current experience in a similar position would make an applicant stand out from others lacking that experience, and it bears noting at this point that the "litmus test" language used by the Postal Service to justify its actions is actually lawyerly hyperbole in the Postal Service's brief. The relevant evidence is that there "was a consensus of opinion among the members of the Review Committee that those candidates who demonstrated current knowledge and experience in the specific area of the position were the ones we [the Review Committee] felt were best qualified." Tab M at ¶ 9. It is hardly surprising that the Review Committee would find the most desirable candidates in a pool of otherwise qualified applicants to be those currently working in the same or a very similar position.
Lacking any other evidence of pretext, Holmes' statistical evidence has no relevance. As a result, the court finds that Holmes has identified no evidence that would allow a reasonable jury to conclude that the Postal Service's articulated reason for not selecting him for the vehicle maintenance manager's position was a pretext for discrimination. Even if this conclusion is flawed, at best Holmes has created only a very weak issue of fact on the question of pretext. Because there is absolutely no other evidence of intentional discrimination or retaliation in the record, Holmes cannot defeat the Postal Service's motion for summary judgment. Cf. Millbrook, 280 F.3d at 1183. Manager, Customer Service, Brunswick Station
In August 1995, a vacancy announcement was posted for the position of Manager, Customer Service, at the Brunswick station of the Postal Service in Gary, Indiana. On September 5, 1995, Holmes wrote to Kim Carter, the Plant Manager, Gary Processing Distribution Center, informing her that he should have been given preferential consideration for the position by virtue of his "saved-grade" status. Tab F (deposition ex. 2). Holmes did not receive the promotion. According to the Postal Service, the official who made the hiring decision, Tracy Johnson, selected another individual who possessed qualifications superior to Holmes'.
The meaning of "saved grade" and Holmes' claims in connection therewith is discussed below.
The Postal Service argues that Holmes fails to present an indirect prima facie case of either discrimination or retaliation. Alternatively, the Postal Service contends that Holmes has no evidence to show that the reason given by Johnson for selecting an applicant other than Holmes is a pretext for discrimination. Due to confusion concerning the correct elements of a prima facie case of retaliation, see n. 2 above, and because the parties focus their analysis on the issue whether the Postal Service's alleged belief that a more qualified person was chosen is actually a pretext for discrimination, the court addresses that issue rather than confining its analysis to the issue whether Holmes has shown a prima facie case. Vakharia v. Swedish Covenant Hosp. 190 F.3d 799, 807 (7th Cir. 1999); Fuka v. Thomson Consumer Electronics, 82 F.3d 1397, 1404 (7th Cir. 1996).
But cf. Peele v. Country Mut. Ins. Co., 288 F.3d 319, 327 (7th Cir. 2002), reminding district courts to determine whether a prima facie case exists before "subjecting" defendants to "pretext inquiry." When a defendant files a summary judgment motion raising, and extensively discussing, the issue of pretext, the court believes that deciding the motion on that issue is consistent with Seventh Circuit cases such as Vakharia and Fuka, rather than an inquisition. See also Gordon, 246 F.3d at 893 (Easterbrook, J., dissenting) ("[The principles initially articulated in McDonnell Douglas have] become so encrusted with the barnacles of multi-factor tests and inquiries that it misdirects attention. Could a reasonable trier of fact conclude that Gordon is the victim of age or race discrimination? If yes, then summary judgment must be denied; if no, then the grant of summary judgment for the employer must be affirmed.").
More to the point in the present case, in its initial brief the Postal Service did not even address the correct elements of a prima facie case of discriminatory failure to promote. (The Postal Service claimed the fourth element is that a person not in the protected class got the promotion, contrary to O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307 (1996)). The Postal Service discussed the correct fourth element, that is, whether the employee who received the promotion had qualifications better than, or equal or lesser to plaintiff, Millbrook, 280 F.3d at 1174; Payne, 146 F.3d at 434 (7th Cir. 1998); Brill, 119 F.3d at 1270, only in its reply brief and only in the context of whether Holmes could demonstrate pretext.
To support its claim that Holmes did not receive the promotion because a more qualified person was chosen, the Postal Service points to an affidavit prepared by Postmaster Tracy Johnson during the administrative investigation of Holmes' claim, Tab F (deposition ex. 11 at p. 2), in which Johnson stated that his review of Holmes' relevant customer service experience indicated that it had been gleaned during a two-month stint thirteen years earlier, in a position at the EAS-13 level. The position Holmes was seeking was at the EAS-17 level. Johnson felt that the person he selected for the position was more qualified than Holmes because she had "superior related experience at a level 15/16 Delivery Service/Customer Service activities" [sic] and because a "detail as Acting Manager Customer Service demonstrated that she possessed the necessary expertise." Id.
"EAS" is an abbreviation for Executive and Administrative Schedule, the pay scale for supervisory and management, non-bargaining-unit, positions.
In response to the Postal Service's motion, Holmes makes no attempt whatsoever to demonstrate that there is a question of fact as to whether he was as, or more, qualified for the position than Johnson's chosen hire. Instead, Holmes essentially abandons the claim that his failure to be placed in the Brunswick customer service position resulted directly from discrimination/retaliation on Johnson's part:
[T]he real claim with respect to the Brunswick position is that Holmes was denied consideration for the Brunswick position on a noncompetitive basis, even though he was entitled to such consideration by virtue of his "saved grade" status. . . . So what really happened here is the following: Mr. Holmes was not considered noncompetitively for the Brunswick position, in accordance with his "saved grade" status; when he raised that issue in his letter . . . Mr. Johnson, apparently realizing Mr. Holmes should have been given noncompetitive consideration, went ahead and gave Holmes half-hearted or nominal consideration as part of the competitive process.
Plaintiff's Memorandum Opposing Summary Judgment (hereinafter, "Plaintiff's Memo") at 10-11. Holmes then argues that a reasonable jury could find that the refusal to consider him "on a noncompetitive basis for the Brunswick position, in accordance with his "saved grade' status, was motivated by his race, age and his prior EEO activity." Id. at 12-13.
By making this argument, Holmes is conflating one of his breach of contract claims (that the 1994 settlement agreement he entered into with the Postal Service entitled him to noncompetitive consideration for any positions at or below his EAS-20 grade) with his discrimination/retaliation claim: i.e., assuming that noncompetitive consideration would have guaranteed him the job, and the reason he was not given that consideration was on account of discrimination and retaliation, then his failure to obtain the job was caused by discrimination/retaliation.
Even if it is true that Holmes was entitled to preferential, noncompetitive consideration, there is a simple reason why Holmes cannot base his Brunswick discrimination/retaliation claim on the assertion that Johnson failed to give him that consideration, instead of giving him only "half-hearted" consideration: it is undisputed that Johnson asked Holmes to interview for the position, but that Holmes declined the interview. Tab B at p. 181; Tab F at p. 27 ( deposition ex. 4).
Although his attorney argues that Holmes "felt compelled" to turn down the interview because he had already filed an EEO charge at that point, Holmes actual deposition testimony as to why he did not interview tells a different story:
Q: And your basis for declining [the interview] is that you had already filed an EEO complaint, correct?
A: No. I felt — that's part of it, but I felt that the person had already been preselected for the position. And that it would not be in the best of my interest to actually go for an interview when he probably had already secured the person he wanted to give the position to. And it also violates postal rules and regulations to interview after the fact.
Tab B at 182.
This reveals a grave lack of judgment as to where his best interest lay. Holmes has pointed to no rule or regulation establishing that, under whatever noncompetitive process Holmes believed should have been utilized, Johnson was not allowed to interview Holmes to see if he qualified for the position. Indeed, when Johnson was asked why he wished to interview Holmes, he stated:
Interviews are for the purpose of getting information from a person relative to the position that you're considering to see whether or not they meet requirements.
Tab F at 27. In the absence of that interview, Johnson reviewed materials he did have on file concerning Holmes (which Holmes had submitted previously when he requested to be "detailed" to the position) and concluded that Holmes lacked the necessary expertise to fill the position. Tab F (deposition ex. 11 at p. 2). Thus, because Holmes himself stymied Johnson's attempt to consider him for the position, no reasonable jury could conclude that Holmes' failure to obtain the position resulted from "half-hearted" consideration caused by discrimination and/or retaliation, and Holmes' arguments that the process used to fill the position is itself a pretext for discrimination are irrelevant.
Even were this not true, the evidence Holmes puts forward to show that the selection process could be seen as a pretext to cover a discriminatory/retaliatory failure to give him noncompetitive consideration (Holmes points to reasons to view the selection process as "suspicious," e.g., the candidate selected had been allowed to "detail" in the position for too long a time, contrary to Postal Service regulations), simply cannot bear that weight. Rather than providing even the slightest whiff of discrimination, the undisputed evidence shows that Postal Service officials involved in the hiring process did not understand that Holmes had "saved-grade" status or that such status meant that he should be given noncompetitive consideration (assuming that to in fact be the case).
For example, in his deposition Johnson testified that he was not aware that Holmes had "saved-grade" status until, shortly before the application period for the Brunswick position closed, he received the letter Holmes had written to Carter requesting consideration for the position consistent with his "saved-grade" status. Tab F at p. 23. Johnson was then asked:
Q: Did you check the Postal Service Rules and Regulations to determine what that ["saved-grade"] meant?
A: Yes.
Q: And do you recall what you learned?
A: To a degree.
Q: What is your recollection?
A: That, um, he could be considered noncompetitively or competitively.
Id. At best, this indicates that the selection process used to fill the Brunswick position was erroneous, which does prove discriminatory motive. Cf. Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999). Because Holmes has not provided any evidence supporting his "real claim" — that discrimination and/or retaliation motivated a decision not to give him preferential consideration for the Brunswick position — or any evidence causing the court to suspect that any miscues in the selection process insulted from anything other than honest error, the Postal Service is entitled to summary judgment.
Breach of Settlement Agreement
In 1994 Holmes and the Postal Service agreed to settle a Title VII suit alleging wrongful termination, filed by Holmes in United States District Court for the District of Minnesota. The parties entered into a written settlement agreement (Tab C, hereinafter, the "Agreement"). Holmes admits that the Postal Service has performed many, if not most, of the major requirements of the Agreement, such as making a lump-sum payment of $20,000, re-employing him in a new position in Gary, Indiana, and paying him the salary commensurate with his prior EAS-20 grade although his new position is an EAS-16 grade.
The parties agree that the settlement should be interpreted in accordance with Indiana law, and that even if Minnesota law applies, the relevant principles of contract interpretation are the same. Defendant's Motion for Summary Judgment at p. 13 n. 3; Plaintiff's Memo at pp. 13-14 n. 9.
Nonetheless, Holmes claims that the Agreement has been breached in four respects: 1) the Postal Service has failed to give him preferential, noncompetitive consideration for positions at or below the EAS-20 grade; 2) the Postal Service placed him in the wrong retirement plan, "CSRS Offset" instead of CSRS, when it re-employed him pursuant to the Agreement; 3) the Postal Service failed to remove certain "Form 50" documents from his personnel file, and; 4) the Postal Service did not replenish funds that Holmes withdrew from his retirement account, or pay certain past due child support, medical, and other obligations incurred by Holmes, during the time he was separated from his Postal Service employment.
For the purpose of moving for summary judgment, the Postal Service admits, more or less, that it did not perform the obligations which Holmes claims should have been performed. Instead, the Postal Service argues that no such obligations exist: that the Agreement is devoid of any provisions creating the obligations Holmes claims have been breached. Holmes argues that certain provisions in the Agreement are ambiguous, allowing the court to consider extrinsic evidence as to their meaning. See, e.g., Allen v. Cedar Real Estate Group, LLP, 236 F.3d 374, 380-81 (7th Cir. 2001). According to Holmes, when the ambiguous terms are properly construed, the obligations exist which he can show have been breached.
Considering Holmes' claims of breach in the reverse of the order listed above, there is nothing in the Agreement that required the Postal Service to reimburse Holmes for funds he withdrew from his retirement account, or pay personal obligations he incurred, during the three years he was unemployed following his termination. Holmes points to paragraph 6 of the Agreement as creating this obligation, which states:
Defendant is not aware of any claims against plaintiff arising out of the circumstances giving rise to this suit, but to the extent that any exist, mutually releases plaintiff from any and all claims now existing arising out of the circumstances giving rise to this suit.
Holmes argues that the introductory phrase stating that the Postal Service is not aware of any claims is ambiguous because it not limited to claims held only by the Postal Service itself. Thus, Holmes believes that his unilateral understanding of the clause, as explained in his deposition (Tab B at pp. 93-96) should be used to interpret it: i.e., that he requested the inclusion of the clause precisely so that the Postal Service would replenish his retirement account and pay other outstanding obligations. Holmes views these obligations as claims "arising out of the circumstances giving rise" to his suit because his financial straits resulted from his unemployment. Id.
When contract terms are clear and unambiguous they should be given their plain meaning, without resorting to extrinsic evidence as a guide to interpretation. Ogle v. Ogle, ___ N.E.2d ___, 2002 WL 1272178 at *2 (Ind.Ct.App. 2002); Niccum v. Niccum, 734 N.E.2d 637, 640 (Ind.Ct.App. 2000). Contract terms are ambiguous only when reasonable persons would honestly differ as to their meaning. Shelter Ins. Co. v. Woolems, 759 N.E.2d 1151, 1155 (Ind.Ct.App. 2001).
Holmes' argument would gut the word "release" of its plain meaning. The Postal Service cannot "release" claims it does not possess, and to release a person from a claim does not suggest any obligation to pay claims third parties might have against that person or to restore personal savings the person withdrew and spent. In other words, the Postal Service is correct that paragraph 6 of the Agreement is nothing more than a standard reciprocal release clause. The Postal Service is entitled to summary judgment on this aspect of Holmes' breach of contract claim.
Regarding the alleged breach resulting from failure to remove Form 50 documents from his personnel file, Holmes points to paragraph 7 of the Agreement:
The defendant agrees that nothing in plaintiffs [sic] PS Form 50's [sic] shall be construed as a disciplinary action. Defendant further agrees that to the extent that documentation related to his EEO claims or congressional correspondence exists in his OPF [official personnel file], it shall be removed.
Holmes points out that when deposed, Patricia Proctor, a Postal Service human resource specialist, admitted that two of the Form 50s in Holmes' file (Tabs 33 and 37) revealed a removal from, and break in, Holmes' service. Tab 32 at pp. 34-37. Holmes argues that because this means that a person reviewing his file could therefore read the forms as indicating some disciplinary action against him, paragraph 7 of the Agreement requires those forms to be removed from his file.
Holmes' interpretation is contrary to the plain language of paragraph 7, which does not require any form 50s to be removed. What is required to be removed is "documentation related to his EEO claims or congressional correspondence" to the extent that any such documentation exists. For Form 50s, the Agreement requires that nothing in them be construed as disciplinary action, guarding against the negative construction Holmes fears. The Postal Service is entitled to summary judgment on this aspect of Holmes' breach of contract claim.
Next is Holmes' claim is that he should have been placed in the same retirement program as prior to his separation, CSRS, instead of "CSRS Offset." The Postal Service argues that it is entitled to summary judgment because the relevant regulation promulgated by the Office of Personnel Management (Tab N) provides that CSRS participants with a break in service of more than 365 days are to be placed in the "offset" plan. It is undisputed that when Holmes was rehired for the Gary position, he had a break in service longer than 365 days, thus the Postal Service argues he was placed in the correct retirement program.
Holmes identifies another regulation, ELM § 562.253 (Tab 8), which provides that "[a]n employee whose separation or suspension is determined to have been improper and who is restored retroactively is considered for retirement purposes as having properly been in the service during the intervening period of erroneous separation or suspension." Holmes argues that the Agreement "could be interpreted as a determination that his separation was improper," Plaintiff's Memo at p. 17, and thus a jury question exists as to whether Holmes should have been placed back into the CSRS plan.
The court disagrees. Besides the fact that paragraph 3 of the Agreement provides that it "is understood and agreed that . . . that plaintiff is not a postal employee until he reports and present [sic] himself to Gary, Indiana for work," paragraph 8 of the Agreement states that it "shall not constitute an admission of liability or fault on the part of either party; or, in the case of defendant, on the part of its agents or employees." As a result, the Agreement cannot be interpreted as an admission that Holmes' separation was improper, and the Postal Service is entitled to summary judgment on Holmes claim that it breached the Agreement by placing him in the CSRS Offset plan.
Finally, there is Holmes' foremost breach of contract claim, that the Agreement required the Postal Service to give him preferential, noncompetitive consideration for vacant positions. Holmes draws this obligation from a portion of paragraph 2 of the Agreement, which states: "[p]laintiff will be given a saved grade of 20. . . ." Holmes believes that "saved-grade" status means that the Postal Service should give him preferential, noncompetitive consideration for all open positions between EAS-16 through EAS-20, before vacancy notices for those positions are posted, and without need for him to apply for those positions. As Holmes describes the process, it was incumbent on the human resources department to advise managers seeking to fill an open position that saved-grade employees were available to fill the position, in turn requiring the managers to contact those employees to ascertain whether they were interested in the position. Tab B at pp. 144-45.
The Postal Service argues that the reference to "saved grade" in the Agreement means one thing only: that Holmes was to be paid the same salary as an EAS-20 grade employee, and, as there is no dispute he was paid that salary, it is entitled to summary judgment. The Postal Service argues that Holmes' understanding of the term "saved grade" is a misunderstanding gleaned from an irrelevant document, Management Instruction EL-350-89-3, issued August 21, 1989 (hereinafter, the "Management Instruction"). Tab E.
It should be pointed out that the Postal Service cited no authority for this contention until it filed its reply brief, and even then cited only the definition of "saved grade" found in Management Instruction EL-350-89-3 (Tab E), a document the Postal Service contends is irrelevant. Moreover, that definition states that "saved grade" means "[i]ndefinite retention of grade and salary when employees are assigned to positions with a lower established grade. . . ." Although the Postal Service asserts that the definition "says everything about pay rate, and nothing about priority consideration" Reply Memo at 16-17, retention of "grade and salary" implies that retention of grade means something more than retention of salary alone.
The Management Instruction provided "special policies and procedures that govern the placement of career nonbargaining unit employees as a result of the system-wide management sectional center (MSC) consolidations effective September 23, 1989." Simplifying a bit, the Management Instruction provided that "gaining installations," that is, facilities assuming the consolidated functions, must give special consideration to "affected employees," being those employees losing their jobs as a result of the consolidation. "[B]efore vacancies are announced, the gaining installation must first consider the noncompetitive placement of qualified affected employees into vacancies before the positions are posted for application." Tab E, section VII(A)(1).
It is undisputed that Holmes is/was not an "affected employee," making the Management Instruction inapplicable. In addition, section XIII of the Management Instruction provided "[t]hese polices and procedures are effective July 31, 1989, through April 15, 1990," and Holmes did not enter into the Agreement until four years later on October 27, 1994. Tab C at p. 5.
Nevertheless, Holmes argues that because the Agreement did not define the term "saved grade," its meaning must be derived from what the parties at the time understood it to mean, and the Management Instruction is evidence of that understanding. In addition, Holmes argues that the Management Instruction's explanation of preferential treatment for "saved-grade" employees is consistent with other Postal Service policies and instructions that serve as evidence of what the parties meant by "saved grade," such as a "Twin Cities Division Instruction dated March 4, 1991," Tab 4, and a manual of "EAS Selection Policies" published shortly after the Agreement was consummated, in January 1995. Tab 5.
For example, the Twin Cities Division Instruction dated March 9, 1991, provides that officials filling vacant positions "will be provided with a list of eligible nonbargaining saved grade employees who are to be noncompetitively considered" and that the officials "will notify those eligible nonbargaining saved grade employees, in writing, informing them they are being considered noncompetitively and asking them if they are interested in the vacant position." Tab 4 (Section VII(B)(1)(a) (b)).
The 1995 EAS Selection Policies manual provides: "[i]ndividuals with saved grade must be considered noncompetitively for positions up to the grade of their former position or at any intervening grade." Tab 5 (Section III-A). Holmes argues that this provision "could not be more clear. . . . It does not require an application. . . . Thus the term `saved grade' as used in paragraph 2 of the Agreement gave Mr. Holmes the right to be considered noncompetitively for positions up to his saved grade of EAS-20, such as the Brunswick vacancy, which was an EAS-17 position." Plaintiff's Memo at pp. 14-15 (citation to summary judgment record omitted).
The Postal Service's reply brief does little more than muddy the waters. First, the Postal Service implicitly admits, contrary to its earlier assertion that saved grade means only saved salary, that just as Holmes claims, the EAS Selection Policies manual is evidence that "saved-grade" employees are entitled to noncompetitive consideration:
[Holmes'] argument regarding Section III-A of the EAS Selection Policies leaves out a very important clause: when the noncompetitive consideration of the saved-grade individual may be done. EAS Selection Policies unquestionably permit a selecting official to consider the saved grade individual whenever he/she wants to.
Reply Memo at p. 17. Then the Postal Service asserts that the shortcoming in Holmes' claim is his belief that any noncompetitive consideration he was entitled to by virtue of his saved-grade status excused him from applying for vacant positions: "Postal Officials do know how to make appropriate noncompetitive (and competitive) selections; they apparently simply don't know how to select an employee who doesn't express any interest in, or submit an application for, a vacancy." Reply Memo at p. 18.
The problem with the Postal Service's position — in terms of obtaining a summary judgment — is that it never explains exactly what the "noncompetitive" selection process does entail. Although the Postal Service insists, contrary to what noncompetitive would seem to mean, that saved-grade employees must submit applications just like competitive applicants, the only authority it cites appears to prove the opposite. The Postal Service cites 543.32 of Postal Service Handbook EL-311, (Tab 6) which states:
[E]mployee . . . is responsible for requesting, in an accompanying letter, noncompetitive consideration for the position and for explaining the basis for that request. The office receiving applications refers the request and application to the selecting official for noncompetitive consideration before a review committee is convened.
Reply Memo at p. 13. However, the Postal Service ignores the interrelationship between this section and section 543.11, which states:
It pains the court to note that Holmes' attorney has also ignored this section of the Handbook. If this is because it is irrelevant, meaning that the court's decision is erroneous, it is incumbent upon him in the exercise of his ethical obligations to bring this to the court's attention.
In filling positions, it is a Postal Service policy to consider employees in the following groups (in the sequence listed), before using the competitive procedures in 544. These employees may be selected noncompetitively, provided they meet the position requirements. (See 543.3 [which encompasses 543.32] when these employees apply or are nominated for an announced vacancy.)
. . . . . . . . . . . . . . . . . . . . . .
d. Assignment of employees serving in lower-grade positions with a higher (saved) grade to positions at the saved grade (or intervening grade).
Tab 6 (bolding added). Thus, as the court reads the relevant provisions of Handbook EL-311, saved-grade employees are to be considered for vacant positions prior to a review committee being convened. Rather than requiring saved-grade employees to submit applications, section 543.32 applies when a saved-grade employee does submit an application for an announced vacancy.
In short, although Holmes has the ultimate burden of proof on his breach of contract claim, the burden is on the Postal Service, in moving for summary judgment, to show why Holmes does not have a viable claim. Because the Postal Service has not demonstrated what the term "saved grade" means, or rather, that it does have the meaning Holmes claims, the Postal Service is not entitled to a summary judgment on this aspect of Holmes' breach of contract claim.
For the foregoing reasons, the Postal Service's motion for summary judgment is GRANTED IN PART and DENIED IN PART. Only Holmes' breach of contract claim regarding his "saved-grade" status remains for trial.