Owens v. Potter

Filing 78

ORDER granting 68 Defendant's Motion for Summary Judgment, by Judge William J. Martinez on 12/21/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-01886-WJM-KLM
FRANCES M. OWENS,
Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster General,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Frances M. Owens (“Plaintiff”) brings claims against her former
employer, the Postal Service (“Defendant”) for racial discrimination. Before the Court is
Defendant’s Motion for Summary Judgment (“Motion”). (ECF No. 68.) Plaintiff Owens
("Plaintiff") has filed a Response to this Motion (ECF No. 72) and Defendant has filed a
Reply. (ECF No. 73). The Motion is ripe for adjudication.
For the reasons set forth below, the Motion is granted.
I. STANDARD OF REVIEW
Summary judgment is appropriate only if there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem
Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute
as to a material fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely, is so one-sided that one

party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal
Service, 812 F.2d 621, 623 (10th Cir. 1987).
A fact is “material” if it pertains to an element of a claim or defense; a factual
dispute is “genuine” if the evidence is so contradictory that if the matter went to trial, a
reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. The
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. Quaker State Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527
(10th Cir. 1995); Houston v. Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II. BACKGROUND
In mid-2009, the Postal Service reorganized. (Small Decl. (ECF No. 68-3) ¶ 2.)
Plaintiff’s position was to be eliminated and she applied for several new positions, three
of which are at issue in this case: (1) a Strategic Account Manager (“SAM”) position, (2)
a Shipping Solutions Specialist (“SSS”) position, and (3) a Business Solutions Specialist
(“BSS”) position. Facts relevant to this Motion, with respect to each position, are as
follows. (Id.)1
1.

Facts Relevant to the SAM Position

For most of 2009, Plaintiff was employed as a National Accounts Manager
(“NAM”) at the Postal Service. (Pl.’s Dep. (ECF No. 68-1) at 17). During that time, and
in that position, Plaintiff earned a salary of $85,033 and her grade was EAS-21. (Id. at
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The Court notes that Plaintiff’s Response did not contain a section titled “Response to
Movant’s Material Facts,” as required by WJM Revised Practice Standards III.E.5 (“Practice
Standards”). On this occasion, the Court will, however, view the numbered paragraphs in
Plaintiff’s affidavit as comporting with the Practice Standards. (Pl.’s Aff. (ECF No. 72-2) ¶¶111.)
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18-19).
Several months into the year, the Postal Service announced that a reorganization
would take place in mid-2009. (Small Decl. ¶ 2.) As a result of that reorganization,
sales positions would be eliminated and the employees in those positions would be
required to apply for new positions, including the SAM position. (Id. ¶ 3).
Rodney Small, a Postal Service employee, was the selecting official for the SAM
position. (Small Dep. (ECF No. 68-4) at 31). This was one of the positions Plaintiff
applied for. The duties and responsibilities of the SAM position were different from the
NAM position. (Id.) The SAM position was to require more operational knowledge,
which was reflected in its higher pay grade: EAS-23. (Small Decl.¶ 5).
Small interviewed Plaintiff for the SAM position. (Small Dep. at 14). Plaintiff
does not recall that any of Small’s interview questions were inappropriate. (Pl.’s Dep. at
26). Plaintiff does not know of anything in the interview where Small was taking race
into account in his selection. (Pl.’s Dep. at 27-28).
Small decided not to offer the SAM position to Plaintiff because she did not
demonstrate to him that she had met the requirements of the position. (Small Dep. at
33). Specifically, Small believed that Plaintiff did not demonstrate an adequate
understanding of operations. (Id.) This included someone who had the knowledge,
skills, and abilities to understand complex situations within a strategic account and be
able to resolve those operational issues. (Id. at 33-34).
On about August 20, 2009, Small requested that the SAM position be reposted to
solicit candidates for the SAM position again. (Small Decl. ¶ 7). On about August 24,
2009, Small received a request for a noncompetitive lateral transfer into the SAM
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position from Pattie Herrera. (Id. ¶ 8). At the time, Herrera was a Customer Support
Program Analyst with a grade of EAS-23; the same grade required of the SAM position.
(Id. ¶ 9). Small considered Herrera’s noncompetitive lateral transfer into the SAM
position to be proper based on ELM-312, a Postal Service policy handbook. (Id. ¶ 11).
Small believed that the policy applied notwithstanding the reorganization of sales
positions in mid-2009. (Id.)
Small interviewed Herrera and considered her better qualified than Plaintiff for
the SAM position because Herrera had substantial prior experience in operations; for
example, as a Business Service Network Team Leader. (Id. ¶ 12). Herrera was
assigned to the SAM position in late August 2009. (Id.)
2.

Facts Relevant to the SSS Position

Plaintiff also applied for the SSS position in early October 2009. After applying
for the SSS position, however, Plaintiff was notified that she was not recommended as a
finalist for the SSS position. (ECF No. 68-5). The board for reviewing applications for
the SSS position consisted of Sally Wiltshire, Shavon Keys, and William Lloyd (the
“Review Board”). At the time the applications were being reviewed, each member of the
Review Board did not know Plaintiff and did not know her race. (Wiltshire Decl. (ECF
No. 68-7) ¶¶ 4-5; Keys Decl. (ECF No. 68-8) ¶ 2.; Lloyd Decl. (ECF No. 68-9) ¶ 2). The
Review Board scored each candidate’s qualifications as listed in the candidate’s
application against the qualifications for the position as posted in the job announcement.
(Wiltshire Decl. ¶¶ 8-9). The Review Board assigned Plaintiff a score of 6. (Id. ¶ 11). Of
the 12 candidates scored by the review board for SSS, seven scored higher than
Plaintiff. (Id. ¶¶ 12-13). The three highest scoring candidates scored 13, 12, and 10.
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(Id.) The Review Board did not advance Plaintiff for an interview with Sheila
Sandhagen, who was the selecting official for the SSS position. (Sandhagen Decl.
(ECF No. 68-10) ¶¶ 3-6).
Based on her interviews of those candidates advanced for interviews by the
Review Board, Sandhagen selected Eileen Brieck for the SSS position. (Id. ¶ 9).
Sandhagen believed that Brieck was the best qualified of the candidates with respect to
the requirements set forth in the SSS position announcement. (Id. ¶ 10).
3.

Relevant Facts to the BSS Position

Plaintiff also applied for the BSS position, and was appointed to that role on
October 10, 2009. (ECF No. 68-11). Plaintiff’s grade in the BSS position was EAS-21,
and her salary amounted to $85,033. (Id.) After Plaintiff obtained the BSS position, she
could have applied for EAS-23 if a position became available, but she retired shortly
thereafter on January 1, 2010. (Pl. Dep. at 67).
III. ANALYSIS
Plaintiff’s Complaint originally pled three claims under Title VII of the Civil Rights
Act of 1964. (ECF No. 1) (“Title VII). On December 12, 2011, this Court dismissed the
Plaintiff’s harassment and retaliation claims. (ECF No. 53 at 14). The Court held that
Plaintiff’s claims were limited to the ”three discrete alleged adverse employment
actions” based on race. (Id.) It is those claims that are now subject to the present
Motion for Summary Judgment. (ECF. No. 68).
The familiar McDonnell-Douglas burden-shifting test applies to each of Plaintiff’s
remaining claims. McDonnell -Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see
also Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). Under
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McDonnell-Douglas, Plaintiff must first establish a prima facie case of employment
discrimination. Garrett, 305 F.3d at 1216. If Plaintiff makes out a prima facie case, the
burden shifts to Defendant to come forward with a legitimate, non-discriminatory basis
for its employment decision. Id. If Defendant does so, the inference of discrimination
drops out and the burden shifts back to Plaintiff and he must offer evidence to show that
race was a determinative factor in the employment decision, or that Defendant’s
non-discriminatory reason was merely pretext. Id.
Defendant moves for summary judgment as to three discrete alleged adverse
employment claims, involving (1) the SAM position, (2) the SSS position, and (3) BSS
position. The Court will discuss each in turn below.
A.

The SAM Position
To prevail on a disparate treatment claim under Title VII, a plaintiff must show

that her employer intentionally discriminated against her for a reason prohibited by the
statute. Salguero v. City of Clovis, 366 F.3d 1168, 1178 (10th Cir. 2004)(“[Title VII]
prohibits only intentional discrimination based upon an employee’s protected class
characteristics.”) See also Rivera v. City & County of Denver, 365 F.3d 912, 920 (10th
Cir. 2004).
For the purposes of this claim, Defendant admits that Plaintiff meets the prima
facie case. However, Defendant argues that Small had legitimate, nondiscriminatory
reasons for not offering Plaintiff the SAM position. Small explains in his deposition that
Plaintiff was not offered the position because she did not demonstrate to him that she
had met the requirements of the position. (Small Dep. at 33-37.) Additionally,
Defendant explains that any offer to Herrera—after Plaintiff was denied the SAM
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position—was due to the fact that Herrera was better qualified than Plaintiff for the
position. (Small Decl. ¶ 12). For example, Herrera had substantial prior experience in
operations as a Business Service Network Team Leader, and demonstrated in her
interview that she had the skills to perform in the SAM position. (Id.) Herrera’s previous
experience at the Postal Service was designated a grade level of EAS-23, which
correlated with the grade level of the SAM position. (Id. ¶ 9).
Because Defendant’s explanations are legitimate bases for the decision it made
not to select Plaintiff for the SAM position, the Court finds that Defendant has carried its
burden in showing a nondiscriminatory reason for any adverse employment action.
Texas Dep’t. of Cmty Affairs v. Burdine, 450 U.S. 248, 254 (1981). Thus, the burden
shifts back to the Plaintiff to show that the Defendant’s bases are a pretext for unlawful
discrimination. Rivera, 365 F.3d at 920.
In order to establish a genuine issue of material fact as to pretext, a plaintiff must
produce evidence that would allow a reasonable juror to find that the defendant's
non-discriminatory reason is “unworthy of belief.” Randle v. City of Aurora, 69 F.3d 441,
451 (10th Cir. 1995). A plaintiff can meet this burden with “evidence of such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence.” Argo v. Blue Cross and Blue Shield of Kan.,
Inc., 452 F.3d 1193, 1203 (10th Cir. 2006). In determining whether a plaintiff has shown
pretext, the Court must consider the plaintiff’s evidence in its totality. Orr v. City of
Albuquerque, 531 F.3d 1210, 1215 (10th Cir. 2008).
Plaintiff contends that the bases for her nonselection were pretextual because of
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three reasons. First, Plaintiff argues that Defendant, through Rodney Small,
discriminated against her despite Plaintiff being qualified for the SAM position—i.e.
Plaintiff asserts that she had "operational experience" to fulfill the job as posted. (Pl.
Aff. (ECF No. 72-2 ) ¶ 5). Second, Plaintiff contends that Defendant’s discriminatory
intent was reflected when Small offered the SAM position to Herrera, not Plaintiff. (Id. ¶
5). And third, that Defendant’s hiring of Herrera was against internal policies.
Specifically, Plaintiff contends that the hiring of Herrera provides an inference for
pretext—i.e., “that [Small’s] decisions were motivated by his discriminatory purpose.”2
(Id. ¶ 3).
Plaintiff’s arguments lack merit. The facts proffered by Plaintiff—that she had the
necessary operational experience to fulfill the position—are not supported by the record.
Plaintiff points to paragraph five of the her affidavit to support her position. However,
the Court has reviewed that paragraph and it states nothing of her experience. Plaintiff
fails to back up her allegations with anything in the record other than vague references
that she provided presentations at the Postal Service. (Id. ¶ 7). But there is nothing
specific as to “when” or “what” topics Plaintiff presented (let alone “how” the alleged
presentations tie to Plaintiff’s purported operational experience). Clearly, more is
needed. See Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1199 (10th Cir.
2000) (holding that the“responding party” must ensure that the factual dispute is
portrayed with “particularity”). This, coupled with the fact that Plaintiff’s own

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Plaintiff asserts that the “Supreme Court has said that discriminatory animus may be
inferred from the simple showing of pretext.” (ECF No. 72 at 3.) But Plaintiff forfeits this point
because there is no reference to such authority. Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th
Cir. 1992).
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affidavit—which states that she could not “pinpoint to a specific thing that Mr. Small did
or said in the interview” that he was motivated by discriminatory intent—only reinforces
the appropriateness of granting summary judgment on this ground. (Id. ¶ 3)
With respect to the contention that Herrera’s hiring was against Defendant’s
internal policies, the Court also finds that this contention lacks merit. First, Defendant
considered Herrera better qualified for the SAM position than Plaintiff because of
Herrera’s experience. But, importantly, Herrera only accepted the job after Plaintiff had
not been offered the position. (Small Decl. ¶ 12). As Herrera was not competing with
Plaintiff (because she had not yet applied), Herrera could not be viewed as the reason
why Plaintiff was denied the position. Based on the facts before the Court, Herrera’s
relevance to the pretext analysis is marginal at best. (Id. ¶ 12).
Moreover, even if Small violated some policy, pretext is not shown if the
decisionmaker was unaware that the policy is being violated. Randle 69 F.3d, at 455.
Here, Small believed he was following policy in offering Herrera the position. (Id. at ¶
12). Plaintiff has failed to rebut that evidence. Randle, 69 F.3d at 451; see also Ingels
v. Thiokol Corp., 42 F.3d 616, 623 (10th Cir.1994) (stating, “[t]o the extent there is any
inconsistency at all [in the employer’s policies], it only goes to process and not to
motivation, and could not provide a sufficient basis for a jury to find pretext for . . .
discrimination.”)
Accordingly, the Court finds that Plaintiff has failed to show a factual dispute as
to whether her nonselection for the SAM position was pretextual. As such
Plaintiff's filings in this case have failed to meet this burden and this failure, in and of
itself, is sufficient reason to grant summary judgment in favor of Defendant on the SAM
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claim. See Mitchell, 218 F.3d at 1199 (holding summary judgment is appropriate when
an opposition is “limited to conclusory statements and . . . void of cites to the specific
portions” of the record).
B.

The SSS Position
Defendant contends that summary judgment is warranted as to the SSS position

because Plaintiff cannot meet the prima facie case. For reasons that follow, the Court
agrees. To establish a prima facie case for non-selection claims, Plaintiff must show
that: “(1) she is a member of a protected class; (2) she applied for and was qualified for
the particular position; (3) he was not promoted despite her qualifications; and (4) the
position was filled or remained open after she was rejected.” Cross, 390 F.3d at 1286.
Here, the Postal Service does not dispute that Plaintiff is African American, which
is a protected class. But, because none of the Review Board members knew of
Plaintiff’s race, Defendant contends that Plaintiff cannot meet a prima facie case
because they did not know that she was African American. (Wiltshire Decl. at ¶¶ 4-5;
Keys Decl. ¶ 2; Lloyd Decl. ¶ 2). While Defendant does not point to any specific case
that fits squarely with that of the instant claim, Defendant did supply several analogous
authorities that the Court has valued in resolving this issue.
In Woodman v. WWOR-TV, Inc., 411 F.3d 69 (2d Cir. 2005), the Second Circuit
held that a plaintiff could not make a prima facie case if the decisionmaker did not know
of the plaintiff’s age. Id. at 81. The Second Circuit stated that “a defendant’s
discriminatory intent cannot be inferred, even at the prima facie stage, from
circumstances unknown to the defendant.” Id. at 82. That is, if the decisionmaker does
not know of the protected characteristics, the action simply cannot be “because of” that
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protected characteristic. Id. at 82.
The Tenth Circuit has established a similar rule in the Title VII retaliation context,
holding that a plaintiff alleging retaliation cannot establish the causation element of the
prima facie case if the decision maker did not know of the plaintiff’s protected activity.
Zokari v. Gates, 561 F.3d 1076, 1081 (10th Cir. 2009) (plaintiff’s “claim of retaliation
fails because he cannot establish a causal connection between his protected opposition
and the adverse employment action . . . plaintiff must show that the individuals who took
adverse action against him knew of his protected opposition”); see also Petersen v.
Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (“An employer’s actions
against an employee cannot be because of that employee’s protected opposition unless
the employer knows the employee has engaged in protected opposition.”).
Defendant submits that a similar rule—as drawn from the cases above—should
apply here to disparate treatment claims in the nonselection context. The Court agrees.
That is, if the decisionmaker is not aware of a person’s race, a plaintiff cannot establish
a prima facie because it is impossible to infer that the decision was due to
discriminatory intent. This rule does not stretch existing authorities too far and it does
not negate the purposes underlying anti-discrimination statutes.3 See Automobile
Workers v. Johnson Controls, Inc., 499 U.S. 187, 197 (1991); Salguero v. City of Clovis,
366 F.3d 1168, 1178 (10th Cir. 2004) (“[Title VII] prohibits only intentional discrimination
based upon an employee's protected class characteristics.”)
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Other courts have followed similar rules. For example, the Sixth and Eleventh Circuits
have held that a prima facie case under the Americans with Disabilities Act (“ADA”) cannot be
made if the decision maker is unaware of the plaintiff's disability. Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1185 (6th Cir. 1996), Morisky v. Broward County, 80 F.3d 445, 448 (11th
Cir. 1996).
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In applying the above rule, the Court finds that Plaintiff has not shown that there
is a factual dispute as to whether Defendant knew Plaintiff was African American. All
three members of the Review Board state that they did not know Plaintiff’s race.
(Wiltshire Decl. ¶¶ 4-5; Keys Decl. ¶ 2; Lloyd Decl. ¶ 2). While Plaintiff contends that
she made presentations at the Postal office—which imputes knowledge of her race to
the Review Board—such allegations lack the requisite particularity to save Plaintiff from
summary judgment.4 (Pl. Aff. ¶ 5).
As such, the Court finds that the Plaintiff cannot establish a prima facie case
because her affidavit fails to provide evidence that would allow a reasonable juror to
conclude facts “trial worthy” for jury determination. Harper v. Mancos Sch. Dist. RE–6,
837 F.Supp.2d 1211, 1223–24 (D.Colo.2011); Celotex, 477 U.S. at 322.
The Court notes that the above reasoning disposes of this claim on the prima
facie element. However, even if Plaintiff could establish a prima facie case, the Postal
Service had a legitimate, nondiscriminatory reason not to select Plaintiff for the SSS
position. That is, Sandhagen believed that the Review Board would only advance the
most qualified candidates for interviews (which it did, based on its scoring
methodology). (Sandhagen Decl. ¶ 5). Making a selection based on qualifications is a
legitimate, nondiscriminatory reason which shifts the burden back to Plaintiff under the
McDonnell-Douglas analysis. See Perry, 199 F.3d at 1140; Jones, 203 F.3d at 754.
Even if Plaintiff got past the first and second steps of McDonnell-Douglas, she

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Even on constructive notice, Plaintiff has not proffered enough facts to satisfy this
theory. Plaintiff certainly has not made this argument in her Response, and courts are not
“charged with making the parties’ arguments for them.” Meyer v. Bd. of County Comm'rs, 482
F.3d 1232, 1242 (10th Cir. 2007).
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can cannot meet the burden of showing a genuine factual dispute as to whether
Defendant's decision was pretext for unlawful discrimination. No material facts are
offered by Plaintiff to show discriminatory pretext on the behalf of the Review Board or
Sandhagen. See Adams v. Am. Guar. and Liability Ins. Co., 233 F.3d 1242, 1246 (10th
Cir. 2000) (to survive summary judgment, non-movant “must do more than refer to
allegations of counsel contained in a brief”).
Accordingly, Plaintiff has failed to provide any evidence that would allow a
reasonable juror to conclude that material facts exist for trial. The Court grants summary
judgment as to the SSS claim.
C.

The BSS Position
Plaintiff was selected for the BSS position. This claim is not a nonselection

claim; rather, the BSS position involves a general disparate treatment claim. A prima
facie case for disparate treatment requires Plaintiff to show that: (1) she is a member of
a protected class; (2) she suffered an adverse employment action; and (3) the
challenged action took place under circumstances that give rise to an inference of
discrimination. EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007).
Although Plaintiff can satisfy the first prong, she cannot meet the second prong
because she did not suffer an adverse action in being selected for the BSS position.
Before Plaintiff applied for the BSS position she had a salary of $85,033 and a grade of
EAS-21. (ECF No. 68-2). In the BSS position, she had the same salary. The grade
was also identical. (ECF No. 68-11). Given this correlation, Plaintiff cannot credibly
argue that the second prong (adverse action) is satisfied without more evidence to the
contrary. Moreover, selecting Plaintiff for the BSS position cannot be an adverse action
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because, had Plaintiff not taken the position, she would have been left without a position
at the Postal Service because of the 2009 reorganization. (Small Decl. at ¶ 4).
As to the third prong of a prima facie case, this also fails because Plaintiff’s
acceptance of the BSS position did not take place under circumstances that give rise to
an inference of discrimination. Plaintiff applied for the BSS position and was selected
for the position. (Pl.’s Dep. at 63). Defendant contends that there is no inference of
discrimination if Plaintiff was appointed the position she applied for, particularly when
the pay and grade scale were identical to her previous position. Based on the record,
the Court finds that there are insufficient facts to draw any inference of discrimination as
to the BSS claim. The prima facie case, therefore, fails on the second and third prongs.
Accordingly, the Court finds that Plaintiff has failed to show a trial-worthy issue
as to the BSS claim and Defendant’s Motion for Summary Judgment is granted.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment is
GRANTED. The Clerk shall enter judgment in favor of Defendant on all claims. Costs
shall be taxed against Plaintiff.
Dated this 21st day of December, 2012.
BY THE COURT:

William J. Martínez
United States District Judge

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