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Kohler v. Brennan

United States District Court, E.D. Wisconsin

March 2, 2017

FAITH KOHLER, Plaintiff,
v.
MEGAN J. BRENNAN, POSTMASTER GENERAL, Defendant.

          DECISION AND ORDER

          LYNN ADELMAN, United States District Judge

         Faith Kohler alleges that her former employer, the United States Postal Inspection Service (“USPIS”), [1] discriminated against her based on her gender and retaliated against her for filing a charge of discrimination. Before me now is the defendant's motion for summary judgment, along with two related administrative motions.

         I. BACKGROUND

         The United States Postal Inspection Service is the law enforcement arm of the United States Postal Service. In 2013, it was divided into three geographic regions known as “Field Offices.” These field offices consisted of eighteen “Divisions.” The divisions were themselves made up of multiple sub-regions known as “Domiciles.” Each Division was administered by an Inspector-in-Charge and one or more Assistant Inspectors-in-Charge. Each Domicile was administered by supervisory-level employees known as Team Leaders, who supervised teams of Postal Inspectors within their Domicile and reported to the Assistant Inspector-in-Charge responsible for their Domicile.

         USPIS's Chicago Division fell within the Western Field Office and was composed of nine Domiciles: Green Bay, Madison, Milwaukee, Chicago, Irving Park (O'Hare Airport), Carol Stream, Springfield, Peoria, and St. Louis. Between 2002 and 2013, the plaintiff was employed as a Postal Inspector in the Milwaukee Domicile of the Chicago Division. In 2007, Thomas Brady became the Inspector-in-Charge of the Chicago Division, and he remained in that position until he retired from the USPIS on March 29, 2013. When Brady retired, Antonio Gomez became the Inspector-in-Charge of the Chicago Division. William Hedrick is an Assistant Inspector-in-Charge of the Chicago Division.

         In August 2012, the plaintiff filed what the parties refer to as an “Informal EEO Complaint” with the Equal Employment Opportunity Office of the United States Postal Service against Brady and Lori Groen, who was the Plaintiff's Team Leader at the time. The complaint alleged that Brady and Groen had discriminated against her based on her gender by not providing her with “details, ” which are temporary assignments to vacant positions that last until the vacancy is filled. The purpose of assigning an inspector to a detail is to allow him or her to develop new skills or improve existing skills. If the detail position involved a higher pay grade, the inspector would receive a pay increase during the detail. Brady learned that the plaintiff had filed her EEO complaint against him no later than October 19, 2012.[2]

         On September 11, 2012, Brady selected the plaintiff for a 90-120 day detail as a team leader in the Milwaukee Domicile. Brady extended the Plaintiff's assignment to this detail on January 16, 2013.

         On February 5, 2013, USPIS began accepting applications to permanently fill the Milwaukee team-leader position to which the plaintiff had been detailed. The plaintiff and four other USPIS employees applied for the permanent position. The parties agree that Thomas Brady was the person responsible for selecting the permanent team leader. However, they also agree that, as a training exercise, Brady asked William Hedrick, an Assistant Inspector-in-Charge in the Chicago Division, to participate in the selection process by reviewing the applications, joining the interviews, and providing his opinions. As explained in more detail below, Brady eventually selected Francis Pilon, a male who, as far as Brady knew, had not filed any EEO complaints.

         To apply for the team-leader position, each applicant had to submit a written application known as “PS Form 991.” As the first step in the selection process, Brady and Hedrick each completed a “matrix” that yielded a numerical score for each applicant. Brady completed the matrix in a way that gave the plaintiff the second highest score among the five applicants, and that gave Pilon the third highest score. Hedrick's matrix gave Pilon the highest score and the plaintiff the second highest score. Both Brady and Hedrick scored James Gursky the lowest, and for this reason he was eliminated from consideration without receiving an interview. The plaintiff contends that Brady and Hedrick used the matrix scores as a pretext to eliminate Gursky from consideration, as they viewed him as being “disloyal” to the USPIS. Their perception that Gursky was disloyal stemmed from his decision to take a job outside the USPIS while the USPIS was going through “tough times.” Pl.'s Stmt. of Add'l Facts ¶ 26.

         During the interview process, Brady and Hedrick posed identical questions to the four remaining candidates from the same printed form. After each interview, Brady made handwritten notes regarding the candidate's responses to the questions on the form and gave each response a numerical score. He then totaled the responses for all questions to arrive at an overall numerical score for the candidate's interview. Brady scored Pilon the highest and the plaintiff third. Hedrick also made handwritten comments on the form about the candidate's answers to each question, but he did not give the candidates' responses numerical scores. At some point, Brady made adjustments to his scoring of the candidates based on his “broader knowledge of the overall applicant and interview pool.” Decl. of Thomas Brady ¶ 27. Brady then selected Pilon for the position. Hedrick concurred with Brady's decision.

         The parties agree that the plaintiff and Pilon had different qualities, skills, and experiences from each other, and that reasonable people selecting between them could have different opinions about which qualities were most relevant to the team-leader position. Pl.'s Resp. to Def.'s Prop. Findings of Fact (“PFOF”) ¶¶ 56-59. Brady and Hedrick state that they deemed Pilon the best candidate primarily because he performed the best during the interviews. Def.'s PFOF ¶¶ 60, 62, 64, 66. Brady states that, in evaluating the candidates, he was looking for someone who demonstrated leadership and an ability to think quickly and creatively, and who best responded to questions during the interview. Id. ¶ 61. Brady states that he selected Francis Pilon for the team-leader position because he came into the interview more prepared than the others, gave articulate answers, showed creativity, handled the scenario-based leadership questions the best, and ultimately received the highest interview score. Id. ¶ 62. Although Brady does not contend that the plaintiff did poorly during the interviews, he did give her zero points for an interview question about confidential informants. Id. ¶ 64. As for Hedrick, he states that his primary considerations for a team leader included the applicants' knowledge of technical processes, self-described leadership styles, innovation ideas, ability to communicate, and the ability to articulate their preferred methods of dealing with conflict as well as recognizing good performance. Id. ¶ 65. Hedrick states that he concurred in the selection of Pilon because Pilon distinguished himself during the interview by providing examples of what he had done, knowing the correct responses to technical questions, articulating good responses to scenario-based leadership questions, and conducting himself in a professional manner. Id. ¶ 66.

         On Tuesday, March 26, 2013, Brady called the plaintiff to tell her that she had not been selected for the position. The next day, the plaintiff emailed Brady and Hedrick to request feedback on her application and interview. On Friday, March 29, 2013, which was Brady's last day of work before retiring from the USPIS, Brady responded to the Plaintiff's email and copied his response to Hedrick. In his response, Brady apologized to the plaintiff for not having time to personally give her feedback, and he directed her to seek feedback from Hedrick.

         On April 1, 2013, Hedrick asked the plaintiff to meet with him during the week of April 15 to discuss her application and interview. On April 11, 2013, the plaintiff emailed Brian Haraway, her team leader in Milwaukee, and stated “I wonder when I'm going to get my bullshit feedback from Bill [Hedrick].” On April 17, 2013, Hedrick met with the plaintiff in the Chicago office. During this meeting, Hedrick told the plaintiff that he did not know the exact reasons why Brady selected Pilon for the position rather than her. However, Hedrick gave her some feedback on her interview performance, describing it as good. Hedrick also states in his deposition that he told the plaintiff that he thought Pilon performed better than she did during the interviews. Hedrick Dep. at 85. During this meeting, the plaintiff was visibly upset about not receiving the team-leader position and told Hedrick that she was considering leaving the agency. She also told Hedrick that her long-term goal was to work in USPIS's Miami office. She also told Hedrick that she would have difficulty working with Pilon as her team leader. In response, Hedrick told the plaintiff that he would make arrangements for her to work under a different team leader in Milwaukee.

         On June 10, 2013, the plaintiff filed a formal complaint of discrimination with the Postal Service's EEO office. She alleged that Brady's decision to not select her for the permanent Milwaukee team-leader position was motivated by her gender and also constituted retaliation for her prior, informal gender-discrimination complaint against Brady and Groen.

         On July 27, 2013, Brady's permanent successor, Antonio Gomez, arrived in Chicago to take over as Inspector-in-Chief. Gomez's prior position in the USPIS was located in the Miami office, where the plaintiff wished to relocate. During the Spring of 2013, the Chicago Division contacted Gomez in Miami and told him that the plaintiff was interested in a position there. During this conversation, Gomez learned that the plaintiff had filed an EEO complaint about her non-selection for the Milwaukee team-leader position. On July 2, 2013, the plaintiff learned that she was not selected to interview for the Miami position.

         In the present lawsuit, in addition to alleging that her non-selection for the Milwaukee team-leader position was discriminatory, the plaintiff alleges that, in the months following her internal complaint about the non-selection, Gomez and Hedrick retaliated against her for making this complaint by denying her requests to participate in certain training and career-development opportunities. I will describe the facts surrounding these opportunities and Gomez and Hedrick's handling of her requests in the analysis section below. The plaintiff filed an internal EEO complaint alleging retaliation for these actions on November 12, 2013. See Compl. ¶ 54; Answer ¶ 54.

         In September 2014, the plaintiff resigned from the USPIS to take a position in the private sector. After exhausting her administrative remedies with respect to her non-selection and retaliation complaints, the plaintiff commenced the present suit. She contends that she was not selected for the Milwaukee team-leader position because of gender discrimination and because Brady retaliated against her for her earlier complaint about not being assigned to details because of her gender. She also contends that, after she filed her complaint regarding her non-selection for the team-leader position, Gomez and Hedrick engaged in a series of retaliatory actions involving her requests for training and development opportunities. The defendant has moved for summary judgment on these claims.

         II. DISCUSSION

         Summary judgment is required where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When considering a motion for summary judgment, I take evidence in the light most favorable to the non-moving party and must grant the motion if no reasonable juror could find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255 (1986).

         Section 717(a) of Title VII of the Civil Rights Act of 1964 prohibits federal employers from discriminating against federal employees and applicants on the basis of gender. 42 U.S.C. § 2000e-16(a). Although Title VII contains no express anti-retaliation provision applicable to federal employment, the defendant does not dispute that Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a), which prohibits retaliation in private employment, also applies to federal employment. See also Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 1986).

         At the summary-judgment stage of an employment-discrimination case, a court will often refer to the “direct” and “indirect” methods of proof. However, the Seventh Circuit has cautioned district courts against separating the Plaintiff's evidence into different piles labelled “direct” and “indirect” and evaluating each pile under different legal standards. See Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765-66 (7th Cir. 2016). Rather, a district court should evaluate the evidence as a whole, under a single legal standard, namely: “whether the evidence would permit a reasonable factfinder to conclude that the Plaintiff's race, ethnicity, sex, religion, or other proscribed factor caused the discharge or other adverse employment action.” Id. at 765. However, this does not mean that the burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), which is sometimes is referred to as an “indirect” means of proving employment discrimination, cannot be used. See Ortiz, 834 F.3d at 766.

         Still, the burden-shifting framework is not always useful. It is least useful when the defendant offers a legitimate, non-discriminatory reason for favoring the employee or applicant without the Plaintiff's protected characteristic. When the defendant gives such a reason, then the burden shifts to the plaintiff to show that the reason is a pretext and that unlawful discrimination was the true reason. See, e.g., Simpson v. Franciscan Alliance, Inc., 827 F.3d 656, 661-63 (7th Cir. 2016). But to show this, the plaintiff will just point to all the evidence in the case and say that this evidence, when viewed in its entirety, permits the factfinder to reasonably conclude that the Plaintiff's protected characteristic caused the adverse employment action, which then necessarily implies that the defendant's purported reason is pretextual. So the question of pretext is the same as the general question that must be asked at the summary-judgment stage in every employment-discrimination case. There is thus no reason to discuss the burden-shifting framework when the defendant gives a non-discriminatory reason for its action. See, e.g., Hitchcock v. Angel Corps, Inc., 718 F.3d 733, 737 (7th Cir. 2013) (noting that in cases where question is whether employer's purported reason is pretextual, there is little difference between direct and indirect methods).

         In the present case, the defendant has put forth non-discriminatory reasons for all but one of the alleged adverse employment actions.[3] Thus, I will generally ignore the burden-shifting framework and will instead just evaluate all of the evidence in light of the governing legal standard of whether the Plaintiff's gender and/or EEO activity, rather than the defendant's purported reasons, caused the alleged adverse employment actions. I begin with the Plaintiff's non-selection for the Milwaukee team-leader position and then turn to the denials of the Plaintiff's requests for training and development opportunities.

         A. Team Leader Non-Selection

         The evidence shows that the plaintiff and Pilon were both qualified for the Milwaukee team-leader position and that it would have been reasonable for Brady to select either one of them for the position. Brady states that he selected Pilon over the plaintiff because of Pilon's interview performance. Brady states that he thought Pilon was more prepared for the interview than the other candidates, showed creativity, and handled scenario-based leadership questions the best. Brady's perception of Pilon's interview performance is buttressed by Hedrick's concurrence in the selection decision. In describing why he thought Pilon did the best in the interview, Hedrick states that Pilon distinguished himself by providing examples of what he had done, knowing the correct responses to technical questions, articulating good responses to scenario-based leadership questions, and conducting himself in a professional manner.

         The plaintiff contends that she has shown that Brady's stated reasons are a pretext for discrimination, and that Brady actually selected Pilon because he was a man and/or because he had not filed an EEO complaint. First, she notes that Brady's reasons are subjective, in that different people might have different ideas of what qualifies as a good interview performance. It is true that evaluating a candidate's interview performance involves some subjectivity, but this alone does not support a reasonable inference of pretext. At most, a subjective decision-making process merely “set[s] the stage” for discrimination to occur. See Richter v. Hook-SuperRx, Inc., 142 F.3d 1024, 1032 (7th Cir. 1998). But the plaintiff still has the burden of showing that the decisionmaker acted on a discriminatory motive. Id.; Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 515 (7th Cir. 1996) (“Demonstrating that an interview process is influenced by subjective factors does not go any distance toward proving that [the Plaintiff's protected characteristics] were among those subjective factors.”). Thus, to show pretext, the plaintiff must produce evidence supporting a reasonable inference that Brady took advantage of the subjectivity inherent in judging the interviews to commit unlawful discrimination.

         Next, the plaintiff contends that the reasons Brady gave for selecting Pilon are not credible because they are vague and conclusory. It is true that, to some extent, Brady's reasons are vague and conclusory. For example, Brady does not explain what Pilon did in the interview to show that he was “creative.” But on the other hand, the record supports the conclusion that Pilon in general answered interview questions better than the plaintiff did, which both Brady and Hedrick cited as a reason for selecting Pilon for the job. For example, Brady gave the plaintiff a zero for her answer to a technical question about how to register a confidential informant. See ECF No. 20-13 at p. 5. His written critique indicates that she did not know the answer to the question. Id. Hedrick's written critique for this question also indicates that the plaintiff did not know the answer. ECF No. 21-7 at p. 5. In contrast, Brady gave Pilon 2.5 points (out of a possible 3) for his answer to this question, and Brady and Hedrick's written critiques suggest that Pilon answered this question correctly. See ECF No. 20-15 at p. 5; ECF No. 21-9 at p. 5. The plaintiff has not argued that either Brady or Hedrick unfairly judged her response to the question or that this question was not relevant to the position of team leader. She has not otherwise attempted to show that Pilon did not have better answers to the interview questions than she did.[4] Thus, although the defendant's reasons for selecting Pilon are to some extent vague and conclusory, they are not so facile that they do not discharge the defendant's burden to provide a nondiscriminatory reason for the adverse employment action or raise a reasonable inference that they are pretexts for unlawful discrimination.

         The plaintiff also contends that Brady suspiciously contradicted himself at his deposition by stating that he made his hiring decision based on the totality of the circumstances but then later admitting that he did not consider circumstances that favored the plaintiff, including that she had worked 12 years in the Milwaukee Domicile, had relevant law-enforcement contacts in Milwaukee, and had been assigned a detail involving the very job for which she was interviewing. However, while it is true that Brady testified that he did not consider some of these factors, the context of his testimony makes clear that what he actually meant was that although he considered these factors, he assigned them little weight. For example, although Brady said that the Plaintiff's having worked twelve years in Milwaukee was “not a factor at all” in his decisionmaking, he went on to explain that he did not deem prior service in the position's location to be a good indicator of whether the candidate would be successful in the position. Brady Dep. at 121. This was because Brady had himself been successful when assigned to locations with which he had no prior familiarity. Id. So Brady's testimony on these matters does not contradict his claim to have considered the totality of the circumstances. And Brady's reasons for assigning some of the factors that favored the plaintiff less weight are plausible and do not raise an inference that he arbitrarily discounted these factors. See Def.'s Resp. to Pl.'s Stmt. of Add'l Facts ¶¶ 34-38 (citing Brady's deposition testimony in which he gives reasons for discounting certain factors that favored the plaintiff).

         Next, the plaintiff argues that one of Brady's answers during his deposition suggests that he harbored animosity towards the plaintiff because she had filed an EEO complaint against him in 2012. The 2012 complaint was the one in which the plaintiff accused Brady and another supervisor, Lori Groen, of refusing to assign her to details because of her gender. At the deposition, Plaintiff's counsel asked Brady whether he considered the plaintiff to be a loyal employee even though she had filed the EEO complaint against him in 2012. Brady Dep. at 124. In the course of answering this question, Brady stated that he “would never even think of making a decision based upon the fact that someone . . . filed an EEO.” Id. at 125. He then made a comment that is not clearly recorded in the transcript in which he said “it's an affront.” Id. Plaintiff's counsel followed up on this response by asking “And you said personally to you it is an affront?” Brady gave the following response:

Yeah. It's insulting to me as an executive in this organization for somebody who's working in the organization for 26 years and has never made a decision based on any factor except who's the best for that position, whether it's a detail, whether it's a permanent position. You know, whatever it may be, any decision. You know, deciding what team someone goes with.
I take a great deal of pride in making sure all my decisions are the right ones, so it's insulting to someone, to sit here and hear that someone has filed a[n] EEO and thinks that that's going to motivate someone to do something. No, you do the right thing, and that's what I've always done.

Brady Dep. at 125-26. The plaintiff contends that Brady's comment about an EEO complaint being an “affront” and “insulting” to him is evidence of animosity toward the plaintiff for ...


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