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Arteaga v. Brennan

United States District Court, E.D. Wisconsin

December 3, 2019

FRANK J. ARTEAGA, Plaintiff,
v.
MEGAN J. BRENNAN, Defendant.

          DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         Frank J. Arteaga files this lawsuit against Megan J. Brennan, who, as Postmaster General of the United States, is the chief executive officer of Arteaga's employer, the United States Postal Service. (Amended Complaint, Docket # 15.) Arteaga alleges that he was discriminated against based on his age and national origin and retaliated against for engaging in protected activity. The Postal Service has moved for summary judgment. (Defendant's Motion for Summary Judgment, Docket # 36.) For the reasons explained below, the Postal Service's motion for summary judgment is granted.

         UNDISPUTED FACTS

         Arteaga has submitted Responses to Defendant's Proposed Findings of Fact (Docket # 42) and his own Proposed Findings of Fact (“PPFOF”) (Docket # 41). The Postal Service argues that Arteaga's submissions “consist largely of an amalgamation of conclusory, general assertions that are unsupported by specific facts or admissible evidence.” (Defendant's Reply Brief at 6-7, Docket # 45.) I agree. Nearly all of Arteaga's factual assertions come from his own deposition testimony. See Fed.R.Civ.P. 56(c)(1) (requiring a party asserting that a fact is genuinely disputed to support the assertion by citing to particular parts of materials in the record, including depositions). While citation to deposition testimony is permitted, to survive a motion for summary judgment, the testimony must be also be admissible in evidence. See Fed.R.Civ.P. 56(c)(2). Many of Arteaga's assertions are speculative, conclusory, and lacking in personal knowledge. Others appear to be inadmissible hearsay. Because Arteaga largely fails to contradict the Postal Service's factual assertions with admissible evidence, I will take most of the Postal Service's proposed findings of fact (Defendant's Statement of Undisputed Material Facts (“DPFOF”), Docket # 38) as uncontested.

         Arteaga, a Hispanic male born in 1961, has worked for the Postal Service since 1985. (Am. Compl. ¶ 3; DPFOF ¶ 1.) Around 2002, Arteaga filed an administrative complaint against the Postal Service alleging discrimination based on national origin. (Id. ¶ 13; PPFOF ¶ 6.) After Arteaga won his case at a hearing, “the Postal Service ‘posted it on bulletin boards all over.'” (PPFOF ¶ 8.) Also, several Postal Service employees talked about the discrimination case and asked Arteaga questions about it. (Id. ¶ 9.)

         When Arteaga met fellow Postal Service employee Jay Smith at a postal function sometime between 2003 and 2007, Smith asked for Arteaga's advice on filing a discrimination complaint; Arteaga told Smith the whole history of his discrimination complaint. (Id. ¶ 10; DPFOF ¶¶ 9, 14.) At that time, Arteaga and Smith were both sales department employees of equal rank with the same or similar job responsibilities. (DPFOF ¶ 10; PPFOF ¶ 1.) This was the only communication during which Arteaga discussed a discrimination complaint or other protected activity under Title VII (collectively, “EEO activity”) with Smith. (DPFOF ¶ 16.) Smith has no other knowledge of any EEO activity by Arteaga. (Id. ¶ 17.)

         During his employment with the Postal Service, Arteaga has worked in various titled and detailed (i.e., temporarily assigned) positions, in both domestic and international sales. (Id. ¶ 2.) Between April 2014 and October 2014, Arteaga was detailed as a Strategic Account Manager. (Id. ¶ 3; PPFOF ¶ 18.) While in that position, Arteaga received excellent reviews and feedback. (PPFOF ¶ 18.) At the end of the detail, Arteaga declined to stay in the Strategic Account Manager position permanently because he was bored in that position. (DPFOF ¶ 4; PPFOF ¶ 19.)

         In February 2015, Arteaga was promoted to International Sales Executive (Senior). (DPFOF ¶ 7.) The promotion was a grade higher on the Postal Service's Executive & Administrative Schedule, as Arteaga moved from a Level 23 position to a Level 24 position. (Id. ¶¶ 5, 7; PPFOF ¶ 20.) A position that is higher on the Schedule is more senior and comes with more duties, responsibilities, higher pay potential, and better promotion opportunities than a position that is lower on the Schedule. (DPFOF ¶ 6.)

         Arteaga was still working as an International Sales Executive (Senior) in June 2016- making $85, 934 a year-when the Postal Service's Chicago District posted an Internal Job Posting for a Strategic Account Manager position, which was a Level 23 position. (Id. ¶¶ 7- 8, 19.) The job posting identified nine qualifications and requirements for which applicants had to demonstrate their knowledge, skills, and abilities (“KSAs”). (Id. ¶ 20.) At the time of the posting, Arteaga was unhappy about a recent change in his supervisor, (PPFOF ¶ 21), and he felt he “needed a break, ” (id.; DPFOF ¶ 22). He called Smith, the Selecting Official for the Strategic Account Manager position, (DPFOF ¶ 30), to see if he could apply for the position noncompetitively, as others had been permitted to do in the past, and Smith declined Arteaga's request, (PPFOF ¶ 25). Arteaga applied anyway because the position involved local clients and less responsibility than his current position. (Id. ¶¶ 21, 24; DPFOF ¶ 22.) His application detailed his experience and qualifications for the opening. (PPFOF ¶ 22.) Arteaga understood that his salary would not increase if he were selected for the Strategic Account Manager position. (Id. ¶ 23; DPFOF ¶ 24.) Compared to Arteaga's Level 24 position, the Level 23 Strategic Account Manager position was a demotion. (DPFOF ¶ 23.)

         Applications for the Strategic Account Manager position were initially reviewed by a three-person Review Board. (Id. ¶ 25.) The Review Board examined thirteen applications and assigned each candidate a score from 0 to 3 for each KSA identified on the job posting, with a “0” indicating deficient, “1” indicating minimally acceptable, “2” indicating strong, and “3” indicating excellent. (Id. ¶ 26.) The Review Board assigned Arteaga 17 points, which ranked fourth out of the thirteen candidates. (Id. ¶ 27.) Brandon Watson, who at that time was detailed into a Strategic Account Manager position with the Postal Service, (id. ¶ 43), and had been mentored by Arteaga, (PPFOF ¶¶ 29-31), received the highest score, 20 points, (DPFOF ¶ 27). Smith was not a member of the Review Board and had no input into the Board's assessment of applicants. (Id. ¶ 29.) Arteaga does not allege that the Review Board or any of its members acted with discriminatory or retaliatory animus when evaluating or scoring applicants for the Strategic Account Manager position. (Id. ¶ 28.) The Review Board forwarded the names of the top-four scoring candidates-Watson, Arteaga, Hilten Parmar, and Roderick Price-to Smith for interviews. (Id. ¶ 31.)

         On July 13, 2016, Smith interviewed each of the four candidates via telephone. (Id. ¶ 32.) Each interview was allotted sixty minutes. (Id. ¶ 33.) Smith asked each candidate the same nine questions, plus one additional question that was tailored to a specific experience identified on the candidate's application materials. (Id.) During the interview, Smith typed up each candidate's responses to his questions. (Declaration of Jay Smith (“Smith Decl.”) ¶¶ 11, 14, Docket # 39.) Immediately after each interview, Smith ranked the responses on a scale from 0 to 3, with a highest possible total of 30 points. (Id. ¶ 14; DPFOF ¶ 34.)

         Smith awarded Arteaga 13 points based on his responses to the interview questions, the lowest score among the four candidates. (DPFOF ¶¶ 44, 48; Exhibit 3 to Smith Decl., Docket # 39-3.) According to Smith, Arteaga performed poorly at his interview. (DPFOF ¶ 45.) Smith perceived that Arteaga was long-winded, hard to follow, and rambled. (Id. ¶ 35.) Smith also perceived that Arteaga inappropriately and continuously attempted to control the conversation. (Id. ¶ 36.) In Smith's view, Arteaga did not provide complete, thorough responses to many of the interview questions, and he was unable to discuss specific details concerning experiences he mentioned during the interview. (Id. ¶ 37.) Also, Smith was skeptical about Arteaga's motivation for wanting to transfer to a lower-level position within the Postal Service. (Id. ¶ 38.) During the interview, Arteaga told Smith that he was unconcerned about dropping a grade level because he expected his salary to remain the same. (Smith Decl. ¶ 16.) Smith also knew that Arteaga had previously been detailed into a Strategic Account Manager position and that Arteaga had declined the opportunity to extend that assignment. (DPFOF ¶ 39.)

         The highest scorer was Watson, with 23 points. (Id. ¶ 46; Exhibit 5 to Smith Decl., Docket # 39-5.) According to Smith, Watson did not ramble, was not long-winded or difficult to follow, and did not attempt to take control of the interview. (DPFOF ¶ 42.) Also, his responses to the interview questions were more complete and more thorough than the responses given by the other three candidates. (Id.) For example, Watson thoroughly described his experience with the Postal Service's sales department, his sales experience handling key accounts before working at the Postal Service, and his educational experience and internships within the marketing industry, and he explained how those experiences made him well qualified for the Strategic Account Manager position. (Id. ¶ 40.) Based on his responses to each of the interview questions, Smith determined that Watson was well qualified to manage the direct marketing and catalog companies for which the successful candidate for the Strategic Account Manager position would have responsibility. (Id. ¶ 41.) Smith was also aware that Watson was detailed as a Strategic Account Manager at the time of the interview and was performing well, which gave Smith confidence that Watson knew what the position required and was genuinely motivated to do the job. (Id. ¶ 43.)

         Because he had the highest interview score among the four candidates, Watson was selected by Smith to fill the open Strategic Account Manager position. (Id. ¶ 47.) Smith notified Watson of his selection on August 3, 2016. (Id. ΒΆ 50.) Watson was offered an annual salary of $64, 659, which was more than $20, 000 ...


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