Opinion
Case No. 98 C 1538, 98 C 6232
February 13, 2001
MEMORANDUM OPINION AND ORDER
In these two related cases, Willa Mae Jenkins-Slaton sues the United States Postal Service ("USPS"). She claims that USPS violated Title VII of the Civil Rights Act of 1984 and the Age Discrimination in Employment Act when it rejected her application for reinstatement allegedly based on her race, sex, age and in retaliation for her past equal employment opportunity complaints. USPS has moved for summary judgment on all claims. For the reasons stated below, the motion is granted.
The parties do not dispute the following facts. In 1996, Jenkins-Slaton, who had previously been employed by USPS, applied for reinstatement to the USPS Busse Surface Hub. Her application was reviewed by Ellen Paczek, an employee in the personnel department at USPS. As part of the application review process, Paczek ordered Jenkins-Slaton's personnel file to determine if she was eligible for reinstatement. The first page of the file was a legal memorandum, authored by a USPS attorney, which said, "The attached District Court Minute Order granted our motion to dismiss in a case involving a black, handicapped mailhandler who was discharged for attendance irregularities." (Pl.'s Compendium of Exhibits, Ex. G.) Also included in the file was a "Form 50," a USPS form that describes a former employee's separation from USPS. The form stated that the reasons for Jenkins-Slaton's termination were that she was unable to perform the physical requirements of the mailhandler position and that she refused to comply with the instructions of an arbitrator. Paczek says that she denied Jenkins-Slaton's application for reinstatement because removal for a refusal to comply with an arbitrator's instructions constituted a removal for cause, and it is USPS' policy to reject a reinstatement application when the applicant has previously been removed for cause. While the evidence established that it was possible for USPS to waive this policy, the evidence also established that USPS personnel had reviewed personnel records back to 1995 and had found no instance of anyone who had been reinstated after having been terminated for cause.
USPS defines this term to mean rehiring a former employee "without requiring testing or placing [the employee] on a competitive register. (Def.'s Mtn. For Sum. Judg. at 2.)
Claims of Race, Sex and Age Discrimination
To make out a prima facie case for her race, sex and age claims and thus be entitled to an inference of discrimination in the absence of direct evidence, Jenkins-Slaton must show that she is a member of a protected class, that she was qualified for reinstatement, that she was denied reinstatement and that a similarly-situated employee outside of her protected class was reinstated. See Timms v. Frank, 953 F.2d 281, 286 (7th Cir. 1992). See generally Contreras v. Suncast Corp., ___ F.3d ___, 2001 WL 8434, at *3 (7th Cir. Jan. 3, 2001). USPS contends that Jenkins-Slaton fails to make out a prima facie case in two respects. First, it contends that she cannot show that she was qualified for reinstatement. Second, it contends that she has no evidence that any similarly-situated person not of the protected class was treated differently. The court agrees.
With respect to the issue of whether she was qualified for reinstatement, USPS has asserted that her prior termination from USPS was "for cause", and that USPS policy is to refuse reinstatement to those terminated for cause. Jenkins-Slaton attacks USPS' position on a number of fronts, arguing that it is nowhere written down that the reason for Jenkins-Slaton's termination, failure to follow an arbitrator's instructions, constituted "cause" and that the individual, Paczek, who reviewed Jenkins-Slaton's request for reinstatement, had an obligation to investigate the circumstances for Jenkins-Slaton's termination before concluding that it was disqualifying. Jenkins-Slaton maintains that USPS' "policy" did not preclude the exercise of discretion in appropriate cases and that Paczek, for reasons that could evidence discriminatory animus, failed to follow the procedures that would have revealed whether discretion should have been exercised.
The court rejects Jenkins-Slaton's contention that the reason for her termination did not constitute "cause." While the court recognizes that USPS appears to have no internal document or handbook that defines the term, the court sees no reason why it should not accept the dictionary definition of the term, "a reason for an action or condition." Webster's Ninth New Collegiate Dictionary. Whether or not USPS was justified in terminating Jenkins-Slaton for failing to produce her medical records as requested is not the issue here. Rather, the issue is whether, if USPS determined that Jenkins-Slaton's failure to do so justified terminating her, someone looking at her file years later appropriately concluded that her termination was "for cause." Because Jenkins-Slaton, according to her file, was terminated for failing to do something USPS believed she was required to do, her termination was manifestly for cause, as that term is typically understood. USPS has offered affidavits of Arthur Reed and Jacqueline Majka, Labor Relations Specialists at two USPS facilities, averring that Jenkins-Slaton's termination was "for cause." ( See also Majka, Dep. at 64.) Jenkins-Slaton, on the other hand, has offered nothing other than the absence of a written definition of "cause" to undermine USPS' evidence. This, standing alone, in the court's view, is insufficient to demonstrate the existence of a material factual dispute about whether her termination was for cause.
Jenkins-Slaton further disputes the notion that she could not have been reinstated despite her past removal for cause and refers to evidence that USPS was not in fact obligated to reject her application. She points to deposition testimony of Pamela McGowan, Paczek's supervisor, indicating that USPS management has discretion to reinstate former employees terminated for cause:
Q: Okay. So, the human resources manager has the authority to hire someone who had previously been terminated from the post office.
A: Yes, they can do that.
The papers do not make clear whether "rehiring," the subject of McGowan's answer, is the same as "reinstatement," the employment action plaintiff sought. In the absence of evidence either way, the court interprets McGowan's testimony in the light most favorable to plaintiff and assumes that she was referring to reinstatement.
In addition, Jenkins-Slaton offers evidence in the form of testimony from McGowan indicating that Paczek failed to follow the proper procedures in rejecting Jenkins-Slaton's application. McGowan testified that Paczek should have gone back and determined what the arbitrator's instructions were and the reason that the applicant had failed to follow them. (McGowan Dep. at 43-44.) In addition, McGowan testified that typically, she and Paczek would have discussed the file before the denial letter was sent out. (McGowan Dep. at 20.) Paczek's testimony was to the contrary. She denied that she discusses denials of reinstatement with McGowan and denied that she had ever investigated the reasons for someone's removal in addressing an application for reinstatement. Rather, she testified that she makes her eligibility decision on the basis of the form ("Form 50") in the former employee's file giving the reasons for separation. (Paczek Dep. at 12, 18.)
While this evidence gives Jenkins-Slaton the basis for an argument that Paczek failed to follow proper procedures in denying her application, Jenkins-Slaton has failed to show that this issue is material to the issue of whether she was in fact qualified for reinstatement. She has failed to offer evidence to show, for instance, that had Paczek conducted the investigation McGowan testified she should have conducted, she would have discovered anything that would have caused USPS to conclude that Jenkins-Slaton was not terminated for cause or was otherwise eligible to be reinstated. McGowan testified that failure to follow the arbitrator's instructions was relevant to Jenkins-Slaton's "suitability . . . as an employee", as it related to "[b]eing uncooperative and not following instructions." (McGowan Dep. at 44.) Jenkins-Slaton has provided the court with nothing to suggest that had Paczek conducted a thorough investigation into the circumstances of Jenkins-Slaton's termination and discussed it with McGowan, a different decision would likely have been made.
The conflict in the testimony of Paczek and McGowan could, in the court's view, possibly be material to the issue of pretext; USPS' explanation for why it rejected Jenkins-Slaton's application could be called into question by the conflicts between these two witnesses as to the procedure that should have been followed in reviewing Jenkins-Slaton's application. But Jenkins-Slaton cannot get to the issue of USPS' justification for its decision if she cannot show that she was in fact qualified for the reinstatement she sought.
Jenkins-Slaton also offers no evidence that any similarly-situated individual, not of a protected class, was treated differently. While it is possible (perhaps even probable) that there is not another applicant for reinstatement who was terminated for failing to follow an arbitrator's instructions, plaintiff has offered nothing to satisfy this element of her prima facie case. Without some evidence of an at least analogously-situated individual who was treated more favorably, there is no basis upon which an inference of discrimination can be founded. Because USPS searched its records back to 1995 and introduced evidence that no former employee had ever during that time been reinstated after having been terminated for cause, it is clear that Jenkins-Slaton cannot satisfy this element of her prima fade case with respect to this issue.
Because Jenkins-Slaton has failed to offer evidence to satisfy two aspects of her prima facie case, USPS' motion for summary judgment on Jenkins-Slaton's claims of race, sex and age discrimination must be granted.
Retaliation
Jenkins-Slaton further claims that she was not reinstated in retaliation for EEO claims and a federal lawsuit previously filed against USPS. While considerable time has passed since Jenkins-Slaton engaged in her protected conduct, she argues that Paczek, the decisionmaker, became aware of Jenkins-Slaton's previous EEO claims only in the course of determining that Jenkins-Slaton was ineligible for reinstatement. Normally, information about an employee's race, age or previous EEO activity is not included in a Postal Service personnel file, but the evidence indicates that on top of Jenkins-Slaton's file, which Paczek reviewed, was a memo from a USPS lawyer which stated, "The attached District Court Minute Order granted our motion to dismiss in a case involving a black, handicapped mailhander [sic] who was discharged for attendance irregularities." ( See Pl. Am.Loc.R. 56(b)(3)(B) St. of Mat. Facts at ¶ 21.) Plaintiff's retaliation claims rests on the fact that Paczek saw this memorandum in plaintiffs file shortly before she decided that Jenkins-Slaton was ineligible for reinstatement.
Paczek testified that she does not remember reviewing the memorandum but "must have" if it was on the top of the file. For purposes of this motion, the court assumes that she saw it.
The prima facie case requirement for a retaliation claim has three parts. First, the plaintiff must show that she engaged in statutorily-protected activity. Second, she must show that she suffered an adverse employment action. Third, she must show that there is a causal connection between the two events. Contreras v. Suncast Corp., supra at *7; Bell v. Environmental Protection Agcy., 232 F.3d 546, 554 (7th Cir. 2000). Jenkins-Slaton undeniably engaged in statutorily-protected activity and suffered an adverse employment action. For her evidence of causation, she relies on temporal proximity — the closeness in time between Paczek's discovery of Jenkins-Slaton's protected conduct and her decision to reject Jenkins-Slaton's application for reinstatement. The Seventh Circuit has observed, however, that while "[t]iming may be an important clue to causation . . ., [it] does not eliminate the need to show causation Bermudez v. TRC Holdings, Inc., 138 F.3d 1176, 1179 (7th Cir. 1998).
Perhaps Jenkins-Slaton's pretext evidence should also be considered causation evidence since pretext goes to the issue of what actually caused the employment decision in question. As evidence of pretext, Jenkins-Slaton relies, as she must repeatedly, on the only evidence she has-the evidence that Paczek may have failed to follow the procedures necessary to determine whether the cause for which Jenkins-Slaton was terminated was sufficient cause to bar her reinstatement. As numerous cases hold, if a plaintiff can show that the credibility of the employer's proffered good faith justification for the adverse employment decision is questionable, she may be entitled to an inference that an unlawful reason was the real reason.
Plaintiff's problem, however, is that while she has called into doubt the process employed by Paczek in making her decision, she has done nothing to call into doubt the result Paczek reached: that the circumstances of Jenkins-Slaton's termination made her ineligible for reinstatement. Were the court to allow this case to go to trial on this evidence, Jenkins-Slaton might be able to convince the jury that Paczek should have conducted an investigation of the circumstances of Jenkins-Slaton's termination so that she could exercise her discretion to decide whether or not Jenkins-Slaton should be reinstated. But without evidence that the exercise of that discretion might have resulted in Jenkins-Slaton's reinstatement, Jenkins-Slaton would be entitled to no relief; the law protects her from an adverse action based on an improper motive but does not guarantee her a certain process. Since on this record there is no basis for a finding that USPS would have reinstated a person terminated for the reasons for which plaintiff was terminated under any circumstances, plaintiff cannot show a causal relationship between her protected conduct and the adverse action taken against her. Plaintiffs problem, as in the case of her other claims, is her failure to show that she was qualified for reinstatement. If she was not qualified, there is no way that her protected conduct can be viewed as the reason she was not reinstated.
Defendant's motion for summary judgment on plaintiffs retaliation claim is also granted.