The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Viola Randell ("Randell") has charged Postmaster General John E. Potter and the United States Postal Service (for convenience collectively spoken of as "Postal Service," treated as a singular noun) with employment discrimination ascribable to her sex, in asserted violation of Title VII of the Civil Rights Act of 1964 ("Title VII," 42 U.S.C. §§2000e to 2000e(17)). Postal Service has moved for summary judgment on that claim under Fed. R. Civ. P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, its motion is granted.
Summary Judgment Standard
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 non-movant "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)). Ultimately summary judgment is appropriate only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows, then, is a summary of the facts viewed in the light most favorable to Randell.*fn1
Before her retirement in 2005 Randell was employed at the Postal Service for some 38 years, holding supervisory positions at Chicago's main post office, the Cardiss Collins facility ("Facility") since 1986 (P. St. ¶1). From 1997 until her retirement she held the position of "Manager Distribution Operations (MDO) EAS-20"(id.).
In July 2000 the "District Office" (which administers the Facility where Randell worked) posted a vacancy announcement for an "MDO EAS-24" position (P. St. ¶¶2-7). After applying for that position, Randell was recommended for the job by Lewis Woodall and Patrick Farrell ("Farrell") on behalf of the District Office (P. St. ¶11). Under the Postal Service procedure the District Office recommends an applicant to the "Area Office" (the next administrative unit up the chain) for final approval (P. St. ¶¶2, 7, 11, 12). After months of no action on Randell's application, Farrell inquired of District Human Resources Manager John Richards what the problem was (P. St. ¶13). As it turned out, the Area Office never gave Randell's promotion final approval because the vacancy for which she was applying was cancelled (P. St. ¶15).
According to the Postal Service, the Area Office had followed its general procedures when, having determined that the quantity of work at the Facility did not justify filling that position (which had been vacated by another employee), it cancelled the job vacancy (P. St. ¶¶3, 14, 15). Indeed, that position was never filled, nor has the Postal Service promoted any new MDO EAS-24 positions at the Facility since that time (P. St. ¶17).
Those circumstances were out of the ordinary, however, in that it was the only time at the Facility since at least 1993 that such a job vacancy was posted by the District Office followed by interviews for the position, but was later cancelled by the Area Office (R. St. ¶31). And Randell did not receive notice of the cancellation of the position (and hence notice that she would not receive her promotion) for several months after her interview (R. St.¶20).
Those circumstances, coupled with Randell's observations that eight of the nine MDO EAS-24 positions at the time were held by men (R. St. ¶21), led her to believe that something was rotten in the state of Denmark. So in August 2002 Randell communicated with a Postal Service Equal Employment Opportunity ("EEO") counselor, asserting that she was denied her promotion due to unlawful discrimination on account of her sex (as relevant here) (P. St. ¶18). That complaint led to an in-house proceeding, at the conclusion of which an Equal Employment Opportunity Commission administrative law judge granted summary judgment in favor of Postal Service on that claim, and Randell received her right-to-sue letter (P. St. ¶18) This action followed.
Exhaustion of Administrative Remedies Before this opinion reaches the merits, it is necessary to clear away (or, as it turns out, to simply skirt) some underbrush. P. Mem. 6-8 first argues that the Postal Service is also entitled to summary judgment here because Randell failed to exhaust the administrative remedies set out in 29 C.F.R. ("Reg.") §1614.105. Reg. §1614.105(a)(1) requires that before a federal employee (including a Postal Service employees such as Randell) may bring a Title VII suit, she must "initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action" (see Smith v. Potter, 445 F.3d 1000, 1006-07 (7th Cir. 2006)). If a Postal Service employee fails to meet the Reg. §1614.105 requirements, Postal Service is entitled to summary judgment (id. at 1010).
As Postal Service has demonstrated, there is a real question as to whether or not Randell met those requirements (P. Mem. 8). That being so, it is surprising that Randell's response chose to ignore Postal Service's argument entirely. Nonetheless, because it appears that there may be a question of fact as to when Randell received "unequivocal notification" (Smith, 445 F.3d at 1007) of the personnel action that denied her the promotion, and because any such questions must be viewed in the light most favorable to Randell, this Court opts not to decide that issue without the benefit of full briefing by the parties. Instead this action is readily dispatched on other grounds.
Randell's Substantive Claim
Under Title VII it is unlawful for an employer to deny an employee a promotion because of her sex (see, e.g, Jordan v. City of Gary, 396 F.3d 825, 831 (7th Cir. 2005)). Under principles well known to any practitioner in this area of the law (see, e.g., Phelan v. Cook County, 463 F.3d 773, 779 (7th Cir. 2006)), an employee may oppose an employer's motion for summary judgment by adducing evidence that supports an inference of discrimination via the "direct method" (which may involve "either direct or circumstantial evidence of discrimination" (id.)) or that ...