United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
SARA L. ELLIS, District Judge.
Plaintiff Pamela Smith, who is white, brings this action for employment discrimination against U.S. Postmaster General Patrick R. Donahoe. Ms. Smith contends that two of her supervisors at the United States Postal Service (the "USPS" or "Postal Service") terminated her employment because of her race. The Postal Service asserts that it dismissed Ms. Smith as a result of her repeated unscheduled absences from work, even after several warnings and suspensions, and two violations of a "last chance settlement agreement." Ms. Smith counters that two African American employees-Charlanda Johnson and Terry Towner-received more favorable treatment than she did despite their own histories of poor attendance. The Court grants the Postal Service's motion for summary judgment  because Ms. Smith has not made a prima facie case that she was similarly situated to or treated worse than Ms. Johnson or Mr. Towner and because Ms. Smith has not demonstrated that the Postal Service's reason for firing her was pretext.
I. The Postal Service's Progressive Discipline Policy
Employees at the Postal Service's Fox Valley Processing & Distribution Center are subject to a progressive discipline policy. An attendance control officer monitors the attendance records of approximately 100 employees that work on each shift. Any leave that is not scheduled or approved in advance is considered "unscheduled leave." Calling in sick, arriving late, and taking unscheduled time off to care for a sick family member constitute unscheduled leave for the purposes of disciplining the employee. The progressive discipline policy sets out that employees with attendance issues are first called in for an official discussion in which they are shown their leave record. Prior to issuing any discipline, an attendance control officer meets with the employee and the union steward to discuss the reasons for the employee's absences. If an employee's attendance does not improve, the employee will receive a letter of warning. Employees who continue to incur unscheduled leave receive suspensions of seven or fourteen days. The final step in the disciplinary path is dismissal.
While the attendance control officer makes disciplinary decisions, his or her manager must approve all disciplinary actions. A "step two" designee in the Postal Service's labor department also reviews all proposed disciplinary action. An employee who receives a notice of removal can file a grievance with the union. The attendance control officer considers the grievance at step one. If the attendance control officer upholds the dismissal, the employee and the union may proceed to plead the employee's case to the step two designee. If the step two designee upholds dismissal, the grievance goes to the district level ("outside the building") and a national union representative takes over. Doc. 47 ¶ 11. An employee can also request that the plant manager review the notice of removal and may seek to have the removal rescinded or converted to a last chance settlement agreement.
II. Smith's Employment with the USPS
Ms. Smith worked as a clerk and mail handler for the USPS at the Fox Valley Processing & Distribution Center beginning in September of 2005. Throughout her employment with the USPS, Ms. Smith failed to maintain reliable attendance. She received letters warning that her attendance was unacceptable in February of 2006 and again in September of 2006. She was required to attend pre-disciplinary interviews in November of 2006 and February of 2007. Ms. Smith continued along the disciplinary path when she was suspended for seven days in February of 2007 and again in May of 2007. In September of 2007, Ms. Smith was again informed that her attendance was not acceptable, to which she responded that she was having domestic problems. Ms. Smith's youngest daughter has congenital heart disease and was on breathing machines and heart monitors for the first three or four years of her life. Ms. Smith also stated that her ex-boyfriend stalked her, causing her to miss work.
In November of 2007, Karan Anderson, an African American attendance control officer with the USPS, issued Ms. Smith another letter of warning. This letter explained that Ms. Smith had incurred 119.12 hours of unscheduled absences between June and October of 2007. In March of 2008, Ms. Smith was suspended for seven days as a result of incurring 112.59 hours of unscheduled leave between November of 2007 and February of 2008. Ms. Smith does not allege that Ms. Anderson was racially motivated in disciplining her.
In October of 2009, Athena Whitman, an African American attendance control officer, suspended Ms. Smith for seven days as a result of Ms. Smith incurring 64 hours of unscheduled absences in August and September of 2009. Two months later, Ms. Whitman suspended Ms. Smith for fourteen days after Ms. Smith accumulated 48.15 hours of unscheduled leave in November of 2009. In May of 2010, Ms. Whitman and her supervisor Quintin Mayberry, an African American, notified Ms. Smith that she would be removed from her position as a result of her repeated absences. The notice of dismissal stated that Ms. Smith incurred 168.34 hours of unscheduled absences from March through May of 2010. Ms. Smith does not allege that Ms. Whitman or Mr. Mayberry acted with discriminatory intent in disciplining her.
Ms. Smith disputed the May 2010 notice of removal, contending that she had missed work because of a back injury that she incurred on the job. The USPS offered Ms. Smith a "last chance settlement agreement" in June of 2010. This agreement reduced Ms. Smith's discipline from termination to a fourteen-day suspension. In exchange, Ms. Smith agreed that she would not have "more than three (3) unscheduled absences during any rolling six (6) month period or any instances of AWOL for two (2) years from the date of the signing of the agreement." Doc. 48-11 at 1. The agreement stated that if Ms. Smith violated any of the terms of the agreement she "will be removed from the Postal Service." Id. at 2.
In September of 2010, Ms. Smith received a second notice of removal, this one from night shift attendance control officer Shauna Sims and Ms. Sims' manager, Sammie Fuller. Both Sims and Fuller are African American. The notice stated that Ms. Smith had five instances of unscheduled leave from July through September of 2010, totaling 120.09 hours, in violation of her last chance settlement agreement. Ms. Smith does not allege that either Sims or Fuller acted with discriminatory intent. The union filed a grievance on behalf of Ms. Smith, after which time the removal was reduced to a long term suspension with no back pay. Ms. Smith was ordered to return to work in December of 2010. The letter also stated that the terms of the previous last chance settlement agreement remained in effect.
In April of 2011, Ms. Smith began working the evening shift, which the USPS calls "tour three." Doc. 47 ¶ 2. Anne Gilmore, who is African American, served as the attendance control officer on tour three. Ms. Smith was absent from July 15 through July 19, 2011. Upon returning to the office, Ms. Smith claims that Ms. Gilmore commented: "Girl, who do you think you are coming to work looking like a Barbie Doll trying to gain the attention of all our good, black men?" Doc. 48-1 at 25:7-8. A week after this incident, Ms. Smith informed the Postal Service that she had injured her back at work and would be off work until September of 2011.
Ms. Gilmore reviewed Ms. Smith's attendance record and consulted with three attendance control supervisors who were familiar with Ms. Smith's employment history. Ms. Gilmore concluded that Ms. Smith's July 2011 absences put her in breach of the last chance settlement agreement. Ms. Gilmore informed Ms. Smith in October of 2011 that she would be removed from her position. The notice of dismissal stated that Ms. Smith missed a total of 85.95 hours of work in four separate occasions between February and July of 2011. Specifically, the letter states that Ms. Smith missed 16 hours of work on February 19 and 20, 29.85 hours from June 4 through June 7, 0.1 hours on ...