January 22, 2016
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 13 C 3032 --
Virginia M. Kendall, Judge.
Robert Formella, Plaintiff - Appellant: John T. Moran Jr.,
Attorney, Moran Law Group, Chicago, IL.
MEGAN J. BRENNAN, Postmaster General, United States Postal
Service, Defendant - Appellee: Kathryn A. Kelly, Attorney,
Office of The United States Attorney, Chicago, IL.
BAUER, FLAUM, and HAMILTON, Circuit Judges.
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
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.
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.
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
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
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.
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.
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.
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 ...