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November 2, 2005.

CECIL W. WATSON, Plaintiff,
JOHN E. POTTER, Postmaster General of the United States, Defendant.

The opinion of the court was delivered by: DAVID COAR, District Judge


Plaintiff Cecil Watson is suing Defendant John E. Potter, Postmaster General of the United States, for race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. Before this court is Defendant's motion to dismiss the Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendant's motion to dismiss is DENIED.


  The United States Postal Service hired Plaintiff as a letter carrier in March 1984, and promoted Plaintiff to a grade level EAS-13 position as Supervisor, Station Branch Operations in November 1988. In April 1990, Plaintiff applied for and was denied promotion to an EAS-16 position a Branch Manager. Plaintiff filed a formal complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"), and the Administrative Law Judge ("ALJ") issued a finding of discrimination in June 1993.

  In October 1996, Plaintiff filed an enforcement action in this Court to compel Defendant to comply with the ALJ's decision and remedy. Plaintiff prevailed: On September 16, 1998, this Court issued an order in case number 96-C-7044 requiring Defendant to place Plaintiff in the next available EAS-17 Manager, Customer Services position. On September 3, 2002, after a remand by the Seventh Circuit, this Court issued an order (the "2002 order" or "2002 court order"), also in case number 96-C-7044, directing Defendant to place Plaintiff into an EAS-21 position "immediately" and to compensate Plaintiff with backpay.*fn1

  On September 28, 2002, Plaintiff received a letter from Alexander Perchorowicz ("Perchorowicz"), Manager of Post Office Operations, directing Plaintiff to report on October 7, 2002 to the Hoffman Estates, IL Post Office, a branch station of the Schaumburg, IL Post Office, in the capacity of Branch Manager.

  Plaintiff alleges that the position in which he was placed on October 7, 2002 was not and is still not a "vacant" position. Rather, another EAS-21 level employee, Timothy Adam ("Adam"), is the permanent Branch Manager at the Hoffman Estates Post Office, but was on a detail assignment away from the position when Plaintiff was ordered to report. Consequently, should Adam return to his permanent position as Hoffman Estates Branch Manager, Plaintiff would have to be displaced. Plaintiff contends that there were two other vacant EAS-21 positions within the district that Plaintiff worked at the time of the court's 2002 order, but Defendant refused to offer these positions to Plaintiff and filled both positions with Caucasian males. Plaintiff also contends that no other person outside Plaintiff's protected group has been assigned to a permanent managerial or supervisory position that was not vacant prior to placement.

  Plaintiff further alleges that William Simmons ("Simmons"), Manager of Human Resources, purposefully sent Plaintiff's new boss, Michael Victor ("Victor"), Postmaster of the Schaumburg Post Office, a copy of this Court's 2002 order. The order contains Watson's EEO history and background. Plaintiff maintains Simmons did so to "cause irreparable harm to [Plaintiff's] career." (Compl. ¶ 20). Plaintiff discovered Simmons' action during a September 28, 2002 telephone conversation to which Plaintiff, Victor, and Adam were party. During that conversation, Victor acknowledged that he gained a copy of the court order from Simmons, not from public access records.

  Plaintiff initially filed his Complaint against Defendant Potter as well as managers Perchorowicz and Simmons. Moreover, the initial Complaint contained not only race discrimination and retaliation claims, but also a 42 U.S.C. § 1981 claim and an intentional infliction of emotional distress claim. Defendant then filed the motion to dismiss now before this Court. On September 4, 2003, Judge Gettleman granted in part that motion by dismissing Perchorowicz and Simmons as defendants and dismissing Plaintiff's tort and § 1981 claims. What remains of Plaintiff's Complaint is his claim that Defendant Potter violated Title VII of the Civil Rights Act of 1964 by discriminating against Plaintiff on the basis of race and retaliating against Plaintiff for complaining of discrimination. II. STANDARD OF REVIEW

  The purpose of a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). On a 12(b)(6) motion, the Court accepts all well-pleaded allegations in the plaintiff's complaint as true, Fed.R.Civ.P. (12)(b)(6), and views the allegations in the light most favorable to the plaintiff. Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). The Court should not dismiss a complaint "unless it appears beyond all doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).


  Title VII makes it unlawful "for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). To establish a prima face case of race discrimination, a plaintiff must show: "(1) that she was a member of a protected class; (2) that she was performing her job satisfactorily; (3) that she experienced an adverse employment action; and (4) that similarly situated individuals were treated more favorably." Traylor v. Brown, 295 F.3d 783, 788 (7th Cir. 2002).

  Title VII also makes it unlawful "for an employer to discriminate against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show that "(1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action." Dey v. Colt Construction & Development Co., 28 F.3d 1446, 1457 (7th Cir. 1994) (internal quotation marks and citations omitted).

  Defendant moves to dismiss on the grounds (1) Plaintiff cannot identify an "adverse employment action," a requirement for both prima facie cases, and (2) Plaintiff cannot establish the "causal link" ...

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