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November 25, 2002


The opinion of the court was delivered by: Charles R. Norgle, Sr., United States Distrit Court Judge.


Before the Court is Defendant's Motion for Summary Judgment on Counts IV and V of Plaintiff's Complaint. For the following reasons, the motion is granted.


On March 18, 1995, Plaintiff, Robyn Frederick, began working as a mail carrier for the United States Postal Service ("USPS") at a postal facility located in Phoenix, Arizona ("Phoenix Office"). On June 15, 1995, while employed at the Phoenix Office, Frederick successfully completed a 90-day probation period. Shortly thereafter, Frederick sought a transfer to a postal facility located in Aurora, Illinois ("Aurora Office"). Frederick called the Aurora Office and spoke to Greg Morrow, the Supervisor of Customer Services. Morrow informed Frederick she could transfer to the Aurora Office and keep her status as a non-probationary employee. Frederick informed her supervisors at the Phoenix Office of this conversation about transfer, but the Phoenix Office supervisors denied her request to transfer. Under USPS rules, an employee is eligible for a transfer only if she is classified as a career employee. (Def.'s Mot. for Summ. J., Ex. 6 at 2.) USPS defines a career employee as an employee with at least one year of service with USPS. See id. Because Frederick had not yet completed one year of service with USPS, she was ineligible to transfer to the Aurora Office, and on July 30, 1995, Frederick resigned from her position at the Phoenix Office. On August 5, 1995, Frederick began working at the Aurora Office.

At the time Frederick began working at the Aurora Office, Richard J. Hickey was the Postmaster, Gary Cole was the General Supervisor, and Samuel Jiardini was the Acting Supervisor of Customer Service. Unaware of her resignation, both Cole and Hickey believed Frederick was a transfer employee. Because of this belief, Aurora Office supervisors did not require Frederick to complete a second probation period or submit to the drug test required of all newly hired employees.

In Illinois, the Postal Service facility located at 6801 West 73rd Street in Bedford Park is the headquarters for the Central Illinois District, formerly the South Suburban Division ("South Suburban"). South Suburban oversees 181 postal facilities, including the Aurora Office.

In mid-August, South Suburban informed the Aurora Office that Frederick was not a transfer employee, but instead was a newly hired employee. South Suburban requested that the Aurora Office require Frederick to complete another 90-day probation period. In response, on August 16, 1995, the Aurora Office terminated Frederick's employment with USPS and informed Frederick that she could immediately start as a newly hired employee after submitting to a drug test and completing a second 90-day probation period. Frederick submitted to the drug test and immediately began serving a second 90-day probation period.

During Plaintiff's second 90-day probation period with USPS, the Aurora Office did not give her any additional training. The Aurora Office sent her on mail routes just as if she was a non-probationary employee. On or about September 18, 1995, Cole gave Frederick her 30-day review.*fn1

While driving a mail truck on September 19, 1995, Frederick was involved in a vehicle accident while on duty as a probationary mail carrier. Frederick denied responsibility for the accident. Jiardini investigated the accident scene, spoke to a passenger in the other vehicle involved, examined the vehicle damage, and concluded that the accident could not have happened as Frederick claimed. On September 21, 1995, pursuant to an unwritten South Suburban policy, Hickey terminated Frederick for her involvement in this vehicle accident.

After USPS terminated Frederick as a postal employee, Frederick filed a five-count Complaint against Defendant William D. Henderson, Postmaster General of the United States. In her Complaint, Frederick alleges that Defendant violated her Fifth Amendment due process rights ("Count I"), violated her Fourth Amendment right to be free from unreasonable searches and seizures ("Count II"), breached an employment contract ("Count III"), and discriminated ("Count IV") and retaliated ("Count V") against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In a previous ruling, the Court dismissed Counts I, II, and III pursuant to Federal Rule of Civil Procedure 12(c). (See Amended Order dated August 24, 2000.) The court now considers USPS's Motion for Summary Judgment, as to Counts VI and V of Frederick's Complaint.


A. Standard for Summary Judgment:

Summary judgment is permissible when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The non-moving party cannot rest on the pleadings alone, but must identify specific facts, see Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Educ. Servs, Inc., 176 F.3d 934, 936 (7th Cir. 1999); see also Shank v. William R. Hague, Inc., 192 F.3d 675, 682 (7th Cir. 1999) (stating that a party opposing summary judgment must present "what evidence it has that would convince a trier of fact to accept its version of events"). A defendant is entitled to put the plaintiff to his proofs and demand a showing of the evidence. See e.g. Navarro v. Fuji Heavy Industries, Ltd., 117 F.3d 1027, 1030 (7th Cir. 1997). If the plaintiff fails to come up with the required proof, the defendant is entitled to summary judgment. See id. It bears repeating that the plaintiff must present evidence, rather than speculation and conclusions without factual support. See Rand v. CF Industries, Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994).

In deciding a motion for summary judgment, the court can only consider evidence that would be admissible at trial under the Federal Rules of Evidence. See Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996). The court views the record and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Fed.R.Civ.P. 56(c); see also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir. 1995). "In the light most favorable" simply means that summary judgment is not appropriate if the court must make "a choice of inferences." See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), see also First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury function. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994) (citing Anderson, 477 U.S. at 249-50; 10 Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure: Civil § 2712, at 574-78 (2d ed. 1983)). With these principles in mind, the Court examines Defendant's motion.

B. Plaintiff's Title VII Discrimination Claims (Count IV):

In Frederick's response to USPS's Motion for Summary Judgment, Frederick claims she suffered seven different adverse employment actions: that USPS (1) terminated Frederick on August 16, 1995 without notice and forced her to submit to a drug test; (2) placed her on a second 90-day probation period after she worked for the Aurora Office for two weeks; (3) failed to train Frederick or inform her of her duties as a probationary employee; (4) failed to perform a 30-day performance review; (5) employed a supervisor, Fred Alvis, who stated to Frederick "that is the problem with women, they always want to get ahead;" (6) employed a supervisor, Sam Jiardina, who informed Frederick she would be fired if she filed a Worker's Compensation claim; and (7) terminated Frederick for her involvement in the September 19, 1995 vehicle accident. Frederick brings each claim as an individual claim for disparate treatment. Additionally, Frederick claims that these seven actions, taken together, constitute a hostile work environment. The Court will first address each action by itself to determine whether it constitutes an actionable Title VII disparate treatment claim. The Court will then consider all of the events together to determine whether the aggregate constitutes an actionable Title VII hostile work environment claim.

1. Title VII — Disparate Treatment:

To prevail on a disparate treatment claim, Frederick bears the ultimate burden of proving that USPS intentionally took an adverse employment action against her because of her race and sex. See Cianci v. Pettibone Corp;, 152 F.3d 723, 726 (7th Cir. 1998). Frederick can defeat summary judgment by presenting either direct evidence of discrimination, or indirectly through the burden shifting analysis of McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). See DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995); see also Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000) (analyzing the McDonnell-Douglas test in an ADA/age discrimination case). Frederick chooses to proceed under the indirect McDonnel-Douglas burden shifting analysis. (See Pl. Mem. in Supp. of her Resp. to Def. Mot. for Summ. J., p. 7.) Therefore, to establish her prima facie case, Frederick must present factual evidence demonstrating that: (1) she is a member of a protected class; (2) she was meeting USPS's legitimate performance expectations; (3) she suffered an adverse employment action; and (4) USPS treated similarly situated employees outside of the protected class more favorably than she. Robin, 200 F.3d at 1090. Once Frederick establishes her prima facie case, a rebuttable presumption is created that USPS's reason for the action was based on the "consideration of impermissible factors." See DeLuca, 53 F.3d at 797. "[T]he burden of production (not proof) then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action." Sirvidas v. Commonwealth Edison Co., 60 F.3d 375, 377-78 (7th Cir. 1995). If the employer provides a legitimate business explanation for the action, the presumption of discrimination dissolves, and the burden shifts back to the plaintiff to show that the employer's proffered reasons are a pretext for the alleged discrimination. See id. at 378. "The focus of a pretext inquiry is whether the employer's stated reason was honest, not whether it was accurate, wise, or well considered." See Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (quoting Jackson v. E.J. Brach Corp., 176 F.3d 971, 984 (7th Cir. 1997). The court will not reexamine each personnel decision to determine whether it was proper. Id. The court's "only concern is whether the legitimate reason provided by the employer is in fact the true one." Id.

The parties agree that Frederick, a white female, is a member of a protected class. However, the parties dispute the other three elements of the prima facie case. In regard to the second element, for the purpose of this motion, the Court will assume that Frederick, the non-moving party, met USPS's legitimate work expectations. See Fed.R.Civ.P. 56(c). Therefore, the only issues the Court must address regarding Frederick's prima facie case are whether any of the seven actions constitute an adverse employment action and whether USPS treated persons outside of the protected class differently from Frederick.

To determine whether Frederick has met the third element of her prima facie case of disparate treatment, the Court must determine whether she has presented sufficient evidence showing that USPS's actions were adverse employment actions. An adverse employment action is one that materially affects the terms and conditions of employment. See Rabinovitz v. Pena, 89 F.3d 482, 488 (7th Cir. 1996). A plaintiff can establish an adverse action with evidence of termination, demotion, decrease in salary or benefits, or significantly diminished responsibilities. See id. (citing Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). The overriding emphasis is that the action must have a materially adverse effect on the conditions of employment, See Haugerud v. Amery School Dist., 259 F.3d 678, 690-91 (7th Cir. 2001) (emphasis added). Determining what is materially adverse depends on the facts of each case, and adverse actions can be both blatant and subtle. Id. at 690 (noting that adverse employment actions consist of quantitative and/or qualitative changes in the terms and conditions of employment). But, however broad the field of adverse actions may be, "`not everything that makes an employee unhappy is an actionable adverse action.'" Id. (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996)). There must be some type of material change in the terms and conditions of employment. Id.

To determine whether Frederick has met the fourth element of her prima facie case of disparate treatment, the Court must determine whether she has presented sufficient evidence showing that USPS treated persons outside of the protected class more favorably than she. Where a plaintiff claims he was treated more harshly than other similarly situated employees based on a prohibited reason, the "plaintiff must show he is similarly situated with respect to performance, qualifications and conduct." Snipes v. Illinois Dep't of Corrs., 291 F.3d 460, 463 (7th Cir. 2002). "Such a showing normally entails establishing that `the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them.'" Id. (quoting Radue v. Kimberly Clark Corp., 219 F.3d 612, 617-18 (7th Cir. 2000)). This showing is required because different employment decisions, when made by different supervisors, can account for any disparity in treatment, particularly when the decision relates to different employees. Id.

The Court will now analyze each of Frederick's individual claims to determine whether she has established a prima facie case of disparate treatment. With respect to each claim, if the Court determines that Frederick has established a prima facie case, the Court will then analyze whether USPS has offered a legitimate, non-discriminatory reason for its actions. See Sirvidas, 60 F.3d at 377-78. If USPS has offered a legitimate, non-discriminatory reason for its actions, the Court will continue with the McDonnel-Douglass burden shifting analysis to determine whether ...

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