United States District Court, N.D. Illinois, Eastern Division
August 30, 2005.
CHARLENE WEBSTER, Plaintiff,
JOHN POTTER, etc. et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
When Postmaster General John Potter filed a Fed.R.Civ.P.
("Rule") 56 motion for summary judgment in the sex discrimination
action brought by Postal Service employee Charlene Webster
("Webster"),*fn1 this Court followed its invariable practice
of providing Webster, as a pro se plaintiff, with the attached
explanation of Rule 56 and this District Court's LR 56.1, adopted
to facilitate the handling of summary judgment motions.*fn2
Despite the clarity of this Court's letter and LR 56.1(b) (3),
what Webster tendered on the last day of the month long period
that this Court had allowed for her response is a packet of miscellaneous papers that neither responds to the
United States' LR 56.1(a) (3) statement nor sets out her own
statement of material facts as required by LR 56.1(b) (3). Just
to look at that undifferentiated and motley set of documents
serves as a graphic illustration of why this District Court
adopted LR 56.1 as a vehicle to smoke out the existence or
nonexistence of factual issues that would contraindicate the
granting of summary judgment and, just as importantly, why our
Court of Appeals has consistently met noncompliance with the LR's
requirements with strict enforcement of its terms.
In that respect LR 56.1's enforcement provision states that
"[a]ll material facts set forth in the statement required of the
moving party will be deemed admitted unless controverted by the
statement of the opposing party." And our Court of Appeals has
"consistently hold that failure to respond by the nonmovant as
mandated by the local rules results in an admission" (Smith v.
Lamz, 321 F.3d 680, 683 (7th Cir. 2003)). Hence this opinion
proceeds on the basis of the facts adduced by the United States
which are not only an eminently fair presentation but are also
not effectively controverted by Webster's submissions.
As already indicated, as prescribed by LR 56.1(a) (3) the
United States has submitted its comprehensive statement of
material facts, properly crediting Webster's earlier factual submissions for purposes of the present motion. Because those
facts are accurately summarized in the United States' supporting
memorandum, this opinion attaches and incorporates the "Factual
Background" section of that memorandum as the factual matrix for
decision of the issues.
Summary Judgment Principles
Every Rule 56 movant bears the burden of establishing the
absence of any genuine issue of material fact (Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
consider the evidentiary record in the light most favorable to
nonmovants and draw all reasonable inferences in their favor
(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.
2002)). But to avoid summary judgment a nonmovant must produce
"more than a scintilla of evidence to support his position" that
a genuine issue of material fact exists (Pugh v. City of
Attica, 259 F.3d 619, 625 (7th Cir. 2001)) and "must set forth
specific facts that demonstrate a genuine issue of triable fact"
(id.). Ultimately, summary judgment is warranted only if a
reasonable jury could not return a verdict for the nonmovant
(Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Those standards have been employed in the discussion that
Application of the Summary Judgment Principles
Familiar caselaw teaches that the plaintiff in a Title VII case
may establish the requisite genuine issue or issue of material fact either through direct evidence of discrimination or
via the burden-shifting approach of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Here Webster has adduced no direct
evidence, so she must follow the McDonnell Douglas path that
begins with establishment of the oft-repeated four-factor prima
facie case as set out in Gusewelle v. City of Wood River,
374 F.3d 569, 574 (7th Cir. 2004) (adapted to a female plaintiff):
To do this, a plaintiff must show: (1) [s]he is a
member of a protected class; (2) [s]he was qualified
for the position; (3) [s]he suffered an adverse
employment action; and (4) a similarly situated
employee not of the protected class was treated more
By definition any woman employee meets the first of those
conditions. And on Webster's version of events, which must be
credited for Rule 56 purposes, it cannot be said that she does
not satisfy the second condition as a matter of law. Where
Webster's claim succumbs instead are on both the third and the
fourth elements of the prima facie case.
As for the existence of an "adverse employment action," that
concept has been extended in this circuit beyond such obvious
examples as a firing or a reduction in benefits or pay. But even
so some really meaningful detriment must be involved Smart v.
Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996) exemplifies
the sensible judicial approach to the issue, following this
articulation of the principle with several other examples that,
as in Smart, were found not to meet the standard: While adverse employment actions extend beyond
readily quantifiable losses, not everything that
makes an employee unhappy is an actionable adverse
action. Otherwise, minor and even trivial employment
actions that "an irritable, chip-on-the-shoulder
employee did not like would form the basis of a
None of the minor essentially trivial sex-oriented
complaints voiced by Webster, either singly or in the aggregate,
meet the test. Instead the only four instances of purported sex
discrimination that she has adduced occurred when (1) she was
denied assistance with her route, (2) she was not allowed to go
home for lunch, (3) a male was once permitted to leave work early
but marked as working overtime and (4) she was once disciplined
for running out of gas. Such cases as Griffin v. Potter,
356 F.3d 824, 829-30 (7th Cir. 2004) (involving a strikingly
parallel series of complaints brought under the age
discrimination rubric, which follows the same principles) and
Rhodes v. Ill. Dep't of Transp., 359 F.3d 498, 505 (7th
Cir. 2004) (involving the sex discrimination area) spell doom for
Webster's claim of having suffered "adverse employment action."
As if that alone were not enough to call for dismissal of this
action (and it is), Webster has also not raised a material
factual issue as to similarly situated male employees having been
treated more favorably. In that respect she "must demonstrate
that there is someone who is directly comparable to [her] in all
material respects" (Grayson v. O'Neill, 308 F.3d 808, 819
(7th Cir. 2002)). Radue v. Kimberly-Clark Corp., 219 F.3d 612,
617-18 (7th Cir. 2000) (citations omitted) spells out the
operative ground rules:
In determining whether two employees are similarly
situated a court must look at all relevant factors,
the number of which depends on the context of the
case. For example, in disciplinary cases-in which a
plaintiff claims that he was disciplined by his
employer more harshly than a similarly situated
employee based on some prohibited reason-a plaintiff
must show that he is similarly situated with respect
to performance, qualifications, and conduct. This
normally entails a showing 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.
Again Webster's claims fall short, either because both some male
and some female mail carriers were treated more favorably (thus
undercutting any notion of sex-based discrimination) or that
there has been no showing that "similarly situated" mail carriers
were treated differently. Moreover, there has also been no
showing of an identity of supervisors or as to the reasons for
the actions complained of.
Two final comments are in order. Here they are:
1. Webster's grab bag of complaints, other than the
few mentioned above, reflect personality conflicts
and obvious animosities between her and her managers
(indeed, she really admits as much). Those issues
simply do not qualify as sex discrimination.
2. As the attached "Factual Background" has
reflected, much of what Webster asserts falls in the category of
hearsay. That type of assertion, because it would be
inadmissible in evidentiary terms at trial, is not
cognizable for summary judgment purposes either see
Rule 56(e) and, e.g., Russell v. Acme-Evans Co.,
51 F.3d 64, 68 (7th Cir. 1995).
For the several reasons stated in this memorandum opinion and
order, Webster's assertions take at their best do not pose
any genuine issue of material fact that would stave off summary
judgment. Accordingly the United States' Rule 56 motion is
granted, and this action is dismissed with prejudice. June 14, 2005
Ms. Charlene Webster
11652 South Vincennes
Chicago IL 60643
Re: Webster v. Rudolph, et al.
No. 04 C 3242
Dear Ms. Webster:
As you know, the employment discrimination lawsuit that you
have brought against Postmaster General John Potter ("defendant")
is now pending on my calendar. As I ordered during yesterday's
status hearing, on or before July 29 defendant will file his
motion for summary judgment, together with supporting papers, in
accordance with Rule 56 of the Federal Rules of Civil Procedure.
As contemplated by Rule 56, I have also ordered that any
responsive materials that you thereafter plan to file must be
submitted mailed to me in my chambers in time to arrive here
on or before August 29, 2005. When I have reached my decision on
the motion, my minute clerk will advise both you and defense
counsel to that effect.
Because of the importance and potentially final nature of a
summary judgment motion, this letter is intended to inform you of
the consequences if you were to ignore the Court's order, or if
any materials that you do submit are legally insufficient. By his
motion for summary judgment, defendant is asking to have the suit
decided in his favor without a full-scale trial, based on the
evidence presented in the documents to be attached to his motion.
Unless you answer the motion with your own affidavits or properly
supported documentary evidence or both, only defendant's evidence
will be before this Court. Thus your failure to respond in that
way would be the equivalent of your failing to present any
evidence in your favor at a trial.
Under Rule 56(e), a copy of which is enclosed, you may not
simply rest on any unsworn documents that you may previously have
filed in court. Such documents are not a proper response to a
motion for summary judgment. Under the same Rule, if you do not
submit timely affidavits or documentary evidence, I may accept
the facts that have been declared in defendant's submission as Ms. Webster
June 14, 2005
true and (if those facts justify a decision in defendant's
favor) may enter summary judgment against you. In that event you
will have lost your case, and judgment will be entered in
That same result may follow if any matters that you do submit
are not legally sufficient to establish your claim against
defendant. Of course I am not in a position to indicate what is
necessary for that purpose. Instead I will simply evaluate any
submission that you choose to file on or before the August 29
To assist judges in determining whether any factual disputes
exist and, if they do, whether such disputes are legally
significant, our District Court has adopted its own rules LR
56.1 and 56.2, photocopies of which are also enclosed to
supplement Rule 56. Defendant will be expected to comply with LR
56.1 (a) by providing his Statement of Uncontested Facts. As part
of any submission you choose to file, you will be expected to
comply with LR 56.1 (b) (as you will note, that Rule specifically
provides that unless your own statement in response shows that
any part or parts of defendant's LR 56.1 (a) statement is or are
disputed, the statement [or the parts not identified by you as in
dispute] will be considered as having been admitted by you).
MIS:wb Milton I. Shadur
cc: Samuel D. Brooks, Esq., Assistant U.S. Attorney Factual Background
Webster works as a mail carrier for the Postal Service at its
Morgan Park facility where she delivers mail along a particular
route, works a set hourly shift, is guaranteed certain days off,
and can work overtime at her option. Def. Stmt. ¶ 2.*fn3
Approximately 50 to 60 mail carriers, each with their own route,
worked at the Morgan Park facility during the period at issue in
this lawsuit. Id.
Webster contends that Rufus Moore, Rachel Rudolph, Pierre
Adams, Tamara Bowen and Richard Thompson discriminated against
her on the basis of sex in violation of Title VII. Def. Stmt. ¶¶
1, 3. Moore, Rudolph and Adams were Webster's supervisors and
Bowen and Thompson were in training to become supervisors at the
time she alleges they discriminated against her. Def. Stmt. ¶ 3.
At the time of the alleged sex discrimination, Webster
delivered mail along Route 4364. Def. Stmt. ¶ 4. In February
2000, the total number of mail delivery routes at the Morgan Park
facility was reduced and, as a result, each of the remaining
routes were adjusted by increasing the number of blocks assigned
to each route. Def. Stmt. ¶ 5. As a consequence of the
facility-wide route adjustments, some blocks were added to
Webster's mail delivery route. Id. Webster contends that after
the February 2000 route adjustments, she could not complete her
route within her eight-hour shift. Def. Stmt. ¶ 6. She
acknowledges that after the route adjustments other male and
female mail carriers were also unable to complete their routes
within their eight-hour shifts. Id.
Webster began experiencing difficulty with her route and
supervisors in April 2000; however, these problems ended in
December 2000 when she changed to a different mail delivery
route. Def. Stmt. ¶ 7. During the time she experienced problems, Webster
contends that she experienced sex discrimination when: (1) she
was denied assistance with Route 4364; (2) she was not allowed to
go home for lunch even though two males could; (3) a male was
once permitted to leave work early but marked as working a full
day; and (4) she was once disciplined for running out of gas, but
later heard that a male was not disciplined for running out of
gas. Def. Stmt. ¶ 8. These are the only four incidents Webster
contends occurred because of her sex. Id.
Between March and September 2000, Webster completed a Form 3996
every day to request assistance completing her route. Def. Stmt.
¶ 9. Form 3996 was used to request either (a) the assistance of
additional personnel or (b) the use of overtime when a mail
carrier could not complete a route within the eight-hour shift.
Id. When Webster requested assistance completing her route,
Moore, Adams and Rudolph sometimes approved the assistance and
sometimes denied it. Def. Stmt. ¶ 10. Webster believes that when
Moore, Adams and/or Rudolph denied her requests for assistance,
they did so because they believed that she should have been able
to complete her route within her eight-hour shift without
assistance. Def. Stmt. ¶ 12. Webster testified that she obtained
assistance approximately 32% of the time; otherwise, if she
completed the route, she used overtime. Id. Webster also
testified that approximately 20% of the time she did not work
overtime to complete her route and instead returned undelivered
mail to the facility. Id.
Following the February 2000 route adjustments, Webster does not
know whether most of the other male and female mail carriers who
were unable to complete their routes within their eight-hour
shifts requested assistance to complete their routes. Def. Stmt.
¶ 11. Webster believes that these mail carriers performed
overtime to complete their routes. Id. Webster testified that
during the period February thru December 2000, one female mail
carrier, Gwen Richardson, did require assistance to complete her route, and she further testified that
Moore, Rudolph and Adams always provided Ms. Richardson with the
requested assistance. Def. Stmt. ¶ 14.
After Webster began a different mail delivery route in December
2000, Route 4364 was taken over by Mr. Lionel Gibson, then Mr.
David Duggan and later, Ms. Lisa Ferguson. Def. Stmt. ¶ 13. When
they needed it, each of these mail carriers was provided
assistance or performed overtime to complete the route. Id.
Webster is uncertain which supervisors authorized the assistance
for these mail carriers and is uncertain why these mail carriers
received assistance and she did not. Id.
Webster testified that on June 7, 2000, Moore told her that she
could no longer take lunch at her mother's house. Def. Stmt. 15.
She does not know why Moore told her this. Id. Webster contends
that Mr. Samuel Brinson and Mr. Floyd Mitchell went to their
homes for lunch because she saw their home addresses listed on a
form used to authorize lunch locations; however, she testified
that she did not see Brinson or Mitchell go home for lunch after
the February 2000 route adjustments and does not know whether
Moore told them they could no longer go home for lunch. Def.
Stmt. ¶ 15.
Webster contends that Adams once permitted mail carrier Keith
Whitted to leave work early before completing overtime; however,
she does not know why Adams allowed Whitted to leave early, is
only aware of this one incident, and is not aware that anyone
else was ever allowed to leave early before completing their
overtime. Def. Stmt. ¶ 16.
Webster testified that she was once disciplined by Thompson for
running out of gas on her route, even though Thompson allowed her
to obtain gas on her lunch break. Def. Stmt. ¶ 17. She contends
that Darius Witherspoon told her that "they" did not discipline
him for running out of gas on his route and actually brought him
gas; however, Webster does not know the identity of the persons Witherspoon referenced in his statement and has no first
hand knowledge of Witherspoon's claims. Id.
In addition to her four claims of discrimination on the basis
of sex, Webster contends that she suffered discrimination based
on "disparate treatment" when, among other incidents, (a) Rudolph
told her what to do even though Rudolph had never been a mail
carrier, (b) she received suspensions, and (c) she had to provide
documentation to substantiate a sick leave request. Def. Stmt. ¶
18. However, excluding her four claims of discrimination on the
basis of sex, Webster contends that all of her other claims in
this case occurred because of personal animosity between her
managers and herself. Id.
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