Adair v. Postal Service (U.S.)

Filing 21

ORDER granting 12 Motion for Summary Judgment and dismissing the complaint with prejudice. Signed by Judge D. P. Marshall Jr. on 3/27/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

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TIFFANY ADAIR

v.

PLAINTIFF
No.4:10-cv-525-DPM

PATRICK R. DONAHOE, Postmaster
General of the United States Postal Service

DEFENDANT

ORDER
Tiffany Adair was a part-time flexible clerk with the Lonoke Post Office.
After several performance problems, the Postal Service'" fired Adair in May
2008, during her ninety-day probation period. Adair alleges that the Postal
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Service violated Title VII by discriminating against her based on her race, her
gender, and her pregnancy. The Postal Service moves for summary judgment.
FED.R.CIV.P.56; Torgersonv. City ofRochester, 643 F.3d 1031,1042-43 (8thCir.
2011).

'"Adair sued Postmaster General John E. Potter in 2010. His
successor - Patrick R. Donahoe, current Postmaster General of the United
States Postal Service-was automatically substituted on taking office. FED.
R. CW. P. 25(d). The Court now corrects the style of the case, and directs
the Clerk to correct the docket sheet.

1. The Court must, and does, view the facts in the light most favorable
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to [Adair] only if there is a genuine dispute as to those facts." Torgerson, 643
F.3d at 1042 (quotation omitted). Adair took her first career position with the

Postal Service in late-March 2008 when she became a part-time flexible clerk
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at the Lonoke Post Office. As a career employee, she had a ninety-day
probationary period. Adair was having problems on the job by early April.
Less than two weeks into Adair's probation, Postmaster James Douglas had
to talk to her about failure to follow instructions, unauthorized overtime, and
false endorsement on mail. During a driving observation a couple of weeks
later, Postmaster Douglas saw Adair make an unnecessary U-turn and park
facing into traffic during two stops. He had a discussion with her about
safety practices.
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On her thirty-day evaluation, Adair received unsatisfactory ratings in

four areas: work quantity, work quality, dependability, and work methods.
The only areas where Adair had performed satisfactorily were work relations
and personal conduct. Document No. 13-2, at 4. Shortly after this evaluation,
Adair allegedly failed to collect the mail and scan the collection boxes on one
of the city routes. After this incident, Postmaster Douglas terminated Adair's

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probation based on her continued unsatisfactory job performance. Document
No. 13-2, at 11.

Having exhausted her remedies with the USPS Equal

Employment Opportunity Office, Adair brought this action, claiming
violations of Title VII.
2.

Adair claims that the Postal Service discriminated against her

based on her race, gender, and pregnancy. In order to make out a prima facie
case, Adair must show that: (1) she belongs to a protected class; (2) she was
meeting her employer's legitimate expectations; (3) she suffered an adverse
employment action; and (4) lithe circumstances give rise to an inference of
discrimination (for example, similarly situated employees outside the
protected class were treated differently.)" Lake v. Yellow Transportation, Inc.,
596 F.3d 871, 874 (8th Cir. 2010); see also Lang v. Star Herald, 107 F.3d 1308,
1311 (8th Cir. 1997) (pregnancy discrimination). The parties dispute only the
fourth element.
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As evidence of gender discrimination, Adair points to two male

employees who she claims were similarly situated and were treated more
favorably. These men, however, were non-probationary employees, while
Adair was a probationary employee. The Postal Service therefore argues that
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Adair and the other employees were not"similarly situated in all relevant

respects." Martinez v.

w.w. Grainger, Inc., 664 F.3d 225, 230 (8th Cir. 2011).

The distinction between probationary and non-probationary employees
is significant. The Eighth Circuit, for example, has held that probationary
state troopers are not similarly situated to non-probationary troopers. Bogren

v. Minnesota, 236 F.3d 399,405 (8th Cir. 2000). There, a collective bargaining
agreement created a different discipline regime for each group. Ibid. Ghane

v. West, 148 F.3d 979, 982 (8th Cir. 1998), is also on point.
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This case presents a sImilar situation. A probationary employee in
Adair's position is subject to termination anytime "it becomes apparent that
the employee lacks capacity for efficient service." Document No. 13-2, at 2.
Non-probationary employees, however, are subject to a more forgiving
progressive-discipline policy. In light of this difference, Adair was not
similarly situated to the Postal Service's non-probationary employees. Bogren,
236 F.3d at 405; Lynn, 160 F.3d at 487.
On her race claim, Adair points to Aliscia Houchins-a white
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female-as an alleged comparator. Most of the evidence about Aliscia
Houchins's employment relates to her time as a non-probationary employee

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and therefore is not relevant to Adair's race-discrimination claim. But Adair
also argues that she and Houchins are similarly situated because Houchins
also had poor evaluations during her probationary period.
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"The burden of establishing a prima facie case of disparate treatment is
not onerous./I Torgerson, 643 F.3d at 1047 (quotation omitted). Comparing
Adair and Houchins during their respective probationary periods might be
sufficient for Adair to clear the low threshold at the prima facie stage. At the
pretext stage, however, the bar is higher. Adair must show that she and
Houchins were

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similarly situated in all relevant respects - a rigorous

standardatthepretextstage." Torgerson, 643F.3d at1052 (quotation omitted).
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Adair has not carried her burden. It is true that Adair and Houchins

both had unsatisfactory evaluations during their respective probationary
periods. But they differ in one key respect: Postmaster Douglas concluded
that Adair made a particularly serious mistake by failing to collect the mail
and scan the collection boxes on one of her routes. Adair disputes this
conclusion. She says she knew someone else was going to collect this mail.
The Court accepts her view about what happened. But Adair and Houchins
are not similarly situated in all relevant respects because Adair was entangled
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in allegations about this kind of serious misconduct. Houchins was not.
There is no evidence that Houchins had any issues of this magnitude during
her probationary period.
No reasonable jury could find that Adair and Houchins were similarly
situated in all relevant respects. And because Adair has not carried her
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burden with an adequate comparator, no reasonable jury could find that the
Postal Service's different treatment of Adair and Houchins during their
respective probationary periods demonstrates pretext for discrimination.
Adair's Title VII claims for race and gender discrimination fail as a matter of
law. Torgerson, 643 F.3d at 1051.
Like her race and gender claims, Adair's pregnancy-discrimination
claim is analyzed under McDonnell Douglas. Adair must still show that she
was treated differently than similarly situated employees. Lang, 107 F.3d at
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1311-12. But the Court has already held that Adair was not similarly situated
to any of her alleged comparators.; and she offers no additional comparators
on this claim. Adair's pregnancy-discrimination claim therefore also fails as
a matter of law.

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***

Motion for summary judgment, Document No. 12, granted. Adair's
complaint is dismissed with prejudice.
So Ordered.

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