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Formella v. Brennan

United States Court of Appeals, Seventh Circuit

March 10, 2016

ROBERT FORMELLA, Plaintiff-Appellant,
MEGAN J. BRENNAN, Postmaster General, United States Postal Service, Defendant-Appellee

         Argued January 22, 2016

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          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 3032 -- Virginia M. Kendall, Judge.

         For Robert Formella, Plaintiff - Appellant: John T. Moran Jr., Attorney, Moran Law Group, Chicago, IL.

         For MEGAN J. BRENNAN, Postmaster General, United States Postal Service, Defendant - Appellee: Kathryn A. Kelly, Attorney, Office of The United States Attorney, Chicago, IL.

         Before BAUER, FLAUM, and HAMILTON, Circuit Judges.


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          Bauer, Circuit Judge.

          Plaintiff-appellant, Robert Formella (" Formella" ), appeals the district court's grant of summary judgment in favor of defendant-appellee, the Postmaster General of the United States Post Office (" USPS" ). Formella sued USPS for employment discrimination based on race and age, in violation of Title VII of the Civil Rights Act of 1963, 42 U.S.C. § § 2000e-2 and 2000e-3 (" Title VII" ), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (" ADEA" ), respectively, and retaliation in violation of Title VII. For the following reasons, we affirm the district court's decision.

         I. BACKGROUND

         Formella, a white male, worked for USPS for 31 years. He became a postal police officer in 1998 and was promoted to sergeant in 2003. The USPS police officers were assigned to one of three shifts, called " tours." Tours 1 and 3 had the opportunity for " premium pay" for work performed on Sundays and after 6:00 p.m. As a sergeant, Formella supervised six to ten officers on his tour, created schedules, responded to incidents, and dispatched officers.

         In 2009, Formella decided to retire and submitted his paperwork to USPS. At that time, he was on tour 1. However, Formella changed course and decided not to retire. He claimed USPS would not allow him to withdraw his retirement paperwork, and he filed an administrative appeal. The parties reached a settlement that allowed Formella to return to work, but on tour 2, which had no opportunity for premium pay.

         According to Formella, he repeatedly informed his supervisors that he wanted to transfer off tour 2 and onto either tours 1 or 3. He knew Sergeant Loretta Williams (" Sergeant Williams" ) was planning to retire, but Formella did not request to be transferred to Sergeant Williams' position because he thought her position had the same work days and pay as his position. In April 2011, Inspector in Charge Thomas Brady (" Brady" ), who is white, posted a vacancy announcement for the supervisor position created by Sergeant Williams' retirement. Only when the job was posted did Formella realize that the position was eligible for premium pay. Formella contends that he would earn $7,000.00 more per year in premium pay on tour 3 than on tour 2.

         Upon seeing the posting, Formella told his direct supervisor, Captain Douglas Williams (" Captain Williams" ), who is African-American, that he was interested in the position. Captain Williams inquired up the chain of command to see if Formella could transfer " non-competitively" into the position. He told Formella he could

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apply for a non-competitive transfer or attempt to compete for the position. Formella then asked Brady if he could transfer non-competitively into the position. Brady informed Formella that he would not approve the non-competitive transfer because the position posting had already been published and Formella had not asked Captain Williams for the position prior to the posting. It is undisputed that Brady had the discretion to withdraw the posting and approve Formella's non-competitive transfer.

         Ultimately, Formella competed for the position against two other officers, Officer Fields and Officer Brown, both of whom are African-American and over 40 years old. Brady interviewed the three applicants, asking them all the same questions and scoring their responses on a numerical scale. Based on the interviews, Brady hired Officer Fields. According to Brady, he did not choose Formella because he had the impression that Formella felt entitled to the position, as throughout the interview Formella repeated the phrase " RHIP," which stands for " rank has its privileges." Brady also indicated that Formella was not prepared for the interview, did not answer questions completely or correctly, and only wanted the position due to the potential increase in pay. Brady felt Officer Fields presented better in the interview, as Officer Fields had complete and correct answers to questions and was well prepared.

         After finding out he was not selected for the position, Formella filed an informal EEO complaint with USPS on July 4, 2011. Formella alleged that Brady had discriminated against him because of his race and age. In his formal complaint, filed in October 2011, Formella alleged that Captain Williams retaliated against him for filing his EEO complaint, in addition to alleging the employment discrimination on the part of Brady. Formella complained of various activities on the part of Captain Williams that constituted the retaliation, including: Captain Williams instituted a new policy where salaried sergeants were required to punch a time clock; Captain Williams paid more attention to Formella's work, requiring him to make grammatical and spelling corrections to his reports; during a staff meeting, Captain Williams warned Formella about his use of profanity; and Captain Williams gave Formella contradictory instructions regarding attendance forms.

         In December 2012, Formella filed a second informal EEO complaint regarding additional retaliatory acts on the part of Captain Williams. Formella complained that the following additional activities constituted retaliation: Captain Williams refused to accept Formella's doctor's note clearing him to return to work after a sick leave, as the doctor's note did not comply with USPS requirements; when Formella returned to work after the sick leave, Captain Williams misclassified a week as leave without pay, even though Formella had used his accrued sick leave for those forty hours; and Captain Williams instructed Formella to attend a management meeting in his police uniform, but when Formella arrived at the meeting and was the only ...

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