Norman v. Patrick R. Donahoe

Filing 65

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 9/26/16. Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
OLIVIA NORMAN,
Plaintiff,
v.
PATRICK R. DONAHOE,
Postmaster General of
the United States,
Defendant.

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14-cv-7930
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Plaintiff Olivia Norman claims that her employer, the United States Postal
Service (USPS), discriminated against her on the basis of sex and retaliated against
her for engaging in protected activity in violation of Title VII of the Civil Rights Act
of 1964. Defendant has moved for summary judgment. For the reasons given below,
Defendant’s motion is denied.
Factual Background
Understanding the dispute in this case requires some basic knowledge of how
USPS employees are organized and promoted. Postal employees are grouped into
categories known as “crafts.” Def.’s SOF ¶ 2. Two examples are the Clerk Craft and
the Maintenance Craft. Id. Within each craft there are different positions and
different pay grades, each requiring different levels of experience and aptitude. Pl.’s
SOAF ¶ 3. Employees can be promoted within a craft or move from one craft to
another if they satisfy the requirements of the collective bargaining agreement
(CBA) between the USPS and the American Postal Workers Union (APWU).

This case concerns a Clerk Craft employee who sought to become a
Maintenance Craft employee. Under the CBA, vacant Maintenance Craft positions
at a facility first must be offered to Maintenance Craft employees at that facility
who already hold the same position and merely seek to change shifts. See Pl.’s Ex. 4,
Joint Contract Interpretation Manual (JCIM) at 280–81. Such employees are
selected from a list called the Preferred Assignment Register (PAR). Id. If vacancies
remain after the PAR is utilized, the positions must next be offered to Maintenance
Craft employees at the facility who have qualified for promotion and are listed on
the Promotion Eligibility Register (PER). Id. If there are still vacant positions after
that, the positions are to be offered either to Maintenance Craft employees from
other facilities who are seeking to transfer or to employees at the facility who have
qualified to be included on an “in-service register” for the position in question. Id.
An in-service register can include both Maintenance and non-Maintenance
employees. Management is to create an in-service register when “in-craft
procedures will not meet the present or future staffing needs” of the facility. Pl.’s
SOAF ¶ 7. Employees are included on in-service registers based on interviews and
exam scores. Id.
The only time an in-service register is to be utilized before offering a position
to a Maintenance Craft employee who seeks transfer from another facility is if
another Maintenance Craft employee is actually on the register. See Pl.’s Ex. 4,
JCIM at 280. If the in-service register is composed of non-Maintenance employees,

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Maintenance Craft employees seeking transfer are given priority over the
employees on the register. 1 Id.
The method described above for filling vacant positions is suspended when a
facility receives an order from headquarters to “withhold” certain vacant positions.
Pl.’s SOF ¶ 31. These orders are issued if another facility in the area will be
eliminating Maintenance positions, leaving employees without jobs. Id. During a
withholding, vacant positions can be filled only by “excessed” employees from the
impacted facility. Id. A withholding normally lasts until the excessed employees
secure positions. Id. ¶ 32.
When the events giving rise to this case began, Norman was working at the
USPS’s Processing and Distribution Center in Palatine, Illinois, as a member of the
Clerk Craft. Def.’s SOF ¶¶ 1–3, 7. She had been a member of that craft since
becoming a postal employee in 1989. Id.
Near the end of 2012, management at the Palatine facility announced the
creation of an in-service register for a number of positions in the Maintenance
Craft. Pl.’s SOAF ¶ 2. Norman applied to be included on this register for three
positions: Electronic Technician Level 10, Maintenance Mechanic Level 9, and
Building Equipment Manager Level 9. Id. ¶ 9. She took the required exams and was

Norman disputes that the CBA requires management to offer vacant Maintenance
positions to Maintenance Craft employees seeking transfer before offering them to nonMaintenance employees on the in-service register. As explained in the Analysis section of
this opinion, however, her understanding of the CBA on this point is unambiguously
mistaken.

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interviewed. Def.’s SOF ¶ 7. She was the only woman seeking inclusion on the
register. Id. ¶ 9.
Norman was notified on February 17, 2013, that she was eligible for all three
positions and that she was ranked highest among the employees who would be
included on the in-service register. Pl.’s SOAF ¶ 9. Her ranking meant that she
would be the first employee offered an available position in the event the register
was utilized.
Also in February 2013, management at the Palatine facility posted notices of
their intent to fill nineteen vacant positions in the Maintenance Craft, including six
vacant Electronic Technician positions, four vacant Maintenance Mechanic
positions, and six vacant Labor Custodian positions. Id. ¶ 9. Labor Custodian is a
lower-level Maintenance position that is often used as a means of entry into that
craft. Def.’s SOF ¶ 4.
By March, some of the vacant positions had been filled by current members of
the Maintenance Craft, but positions still remained open in each category. Pl.’s
SOAF ¶¶ 15–16. Norman, however, was not offered one of the Electronic Technician
or Maintenance Mechanic positions. Id. ¶ 17. The Maintenance Manager of the
Palatine facility, Ricky Hilliard, instead offered to make her a Labor Custodian, a
position for which she had been ranked on an in-service register years earlier.
Id. ¶ 25.
Hilliard’s explanation for offering Norman the custodial position rather than
one of the higher-level Maintenance positions for which she was eligible was that

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the in-service register for the higher-level positions was not yet complete, meaning
it could not be utilized at that time. Hilliard encouraged Norman to accept the
custodial position and then “ask to have her scores converted” so that she could be
promoted from within the Maintenance Craft. Def.’s Ex. B, Hilliard Dep. at 15.
Norman declined the Labor Custodian position because she was unsure how long
the score-conversion process would take, and she did not want to accept the pay cut
she would face as a Labor Custodian. Pl.’s SOAF ¶ 26.
The reason the in-service register for the higher-level Maintenance positions
had not yet been completed, according to Hilliard, was that another employee who
had applied, David Bierman, still had not been interviewed. Pl.’s SOAF ¶¶ 19–20.
According to Hilliard, the register could not be finalized until each of the candidates
for that particular in-service register had been “given the opportunity to complete
that process.” Id.; Def.’s Ex. B, Hilliard Dep. at 17.
At some point, Joseph Golden, a Maintenance Craft employee who also held
the position of Maintenance Craft Director in the APWU, learned that Bierman had
twice failed to attend his scheduled interview. Pl.’s SOAF ¶ 20. Golden met with
Hilliard and proposed that Bierman’s application should be deemed abandoned and
that the in-service register should be promptly completed so that Norman could be
given one of the vacant positions. 2 Id. ¶¶ 21–23. But Hilliard continued to insist
that he could not complete the register until Bierman was interviewed. Id. ¶ 23.

Defendant objects to any reliance on Golden’s declaration on the ground that it lacks
foundation and consists of hearsay. As explained in the Analysis section, the Court for the
most part disagrees.

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Even after Golden pointed out to Hilliard that Bierman’s exam results meant that
he would rank below Norman on the list regardless of his interview, Hilliard
remained steadfast. Id.
In June 2013, Bierman was finally interviewed, and the in-service register
was completed. Id. ¶ 24. Hilliard, however, continued not to utilize it. The parties
dispute why. Id.
Defendant contends that vacant positions were subject to a withholding
order, citing the testimony of Hilliard and a manager who worked below him that
there was a withholding “in 2013.” See Def.’s SOF ¶¶ 9–11; Def.’s Ex. B, Hilliard
Dep. at 19–21; Def.’s Ex. C, Spencer Dep. at 23. As explained, withheld vacancies
can be filled only with “excessed” employees, meaning employees being forced out of
their positions at another facility. Norman responds that neither Hilliard nor the
manager testified that a withholding order was in place throughout 2013, and
neither of them offered any details about precisely when such an order was in effect.
Pl.’s Resp. Def.’s SOF ¶ 9.
Norman also points to evidence that any required withholding was relatively
limited. That evidence includes the only two withholding notices in the record, one
of which was issued in May 2013 and the other in July 2013. See Pl.’s SOAF ¶ 33;
Pl.’s Ex. 23, Notices of Withholding. These notices required the withholding of two
Electronic Technician positions and five Maintenance Mechanic positions, id., and
other evidence in the record shows there were additional vacancies not subject to
these orders. For example, at least three Electronic Technician or Maintenance

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Mechanic positions were filled in June and July 2014 with people who voluntarily
transferred, and this would not have been possible if all vacant positions were
subject to a withholding order throughout 2013. See Pl.’s SOAF ¶ 35. And although
the record is not clear on how many vacancies remained after the voluntary
transfers, vacancies definitely existed in the fall of 2013 when management posted
notices of their intent to fill five vacant Electronic Technician positions and one
vacant Maintenance Mechanic position. See Pl.’s SOAF ¶ 42; Pl.’s Ex. 22, Notices of
Intent.
One employee who transferred to Palatine in June 2013, a woman named
Racquel Badrina, has additional relevance to this case. Badrina had held the
position of Electronic Technician Level 10 at her former facility. Pl.’s SOAF ¶ 27.
Golden attests that, before Badrina arrived in Palatine, he informed Hilliard that
she was an Electronic Technician Level 10. Id. Hilliard disagreed with him,
however, and placed Badrina in a Maintenance Mechanic Level 9 position upon her
arrival. Id. Golden recounts a conversation he had with Hilliard after Badrina
arrived in which Hilliard blamed Badrina for not informing him herself of her
previous position and then stated, “[Y]ou know how women are.” Pl.’s SOAF ¶ 29;
Pl.’s Ex. 5, Golden Decl. ¶ 28. Golden responded that he did not, and Hilliard
purportedly rejoined, “[C]ome on, you know.” Id. Golden adds that, in his nine years
working at Palatine—a period during which Hilliard was at all times the facility’s
Maintenance Manager—no woman before Badrina had held a Maintenance position
there higher than a Level 6. Pl.’s SOAF ¶ 28; Pl.’s Ex. 5 Golden Decl. ¶ 28.

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In August 2013, although Hilliard still had not taken anyone off the inservice register, he decided to reopen it to new applicants. Pl.’s SOAF ¶ 37. Doing
so, Golden attests, created the possibility that someone could score higher than
Norman and displace her from her spot at the top of the register. Id. ¶ 41; Pl.’s Ex. 5
Golden Decl. ¶ 30. Hilliard explained in an affidavit that opening the in-service
register at that time was necessary to meet future staffing needs. See Pl.’s Ex. 16,
Hilliard EEOC Aff. at 29.
Norman was not displaced from her top spot on the register, but months went
by, and still she was not offered one of the high-level Maintenance Craft positions
she sought. Hilliard has attributed this, without much specificity, to a combination
of withholdings and transfer requests from Maintenance employees at other
facilities. See Pl.’s Ex. B, Hilliard Dep. at 31–32. He has also testified that he
preferred to fill Maintenance positions with Maintenance employees who were
already trained to do the job. See id. at 22.
There is no evidence in the record that any withholdings were ordered in
2014, and by June of that year, if not sooner, there was at least one vacant
Electronic Technician position that no qualified Maintenance employee wanted.
This state of affairs is reflected in testimony from both Golden and Hilliard that
Hilliard wanted to change the work schedule of a vacant Electronic Technician
position in order to entice Maintenance employees from other facilities to request a
transfer to Palatine. Def.’s Ex. B, Hilliard Dep. at 35–36; Pl.’s Ex. 34, Golden Decl.

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¶ 34. Golden objected to Hilliard’s plan as a violation of the CBA. Pl.’s Ex. 34,
Golden Decl. ¶ 34.
Because of Golden and Hilliard’s disagreement on this point, a meeting was
held on June 17, 2014, between Hilliard, Norman, Golden, and Plant Manager Bob
Prahl. Pl.’s SOAF ¶ 50; Pl.’s Ex. 5, Golden Decl. ¶¶ 34–35. Norman and Golden
explained Hilliard’s plan to alter the Electronic Technician position’s schedule
rather than offer the position to Norman. Id. Prahl listened and assured Norman
and Golden that they would have a response soon. Id. On July 8, 2014, Norman was
offered and accepted the position of Electronic Technician Level 10. Id.
Legal Standard
“The court shall grant summary judgment if the movant shows that 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). The Court gives “the non-moving party the
benefit of conflicts in the evidence and reasonable inferences that could be drawn
from it.” Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th
Cir. 2013). To defeat a motion for summary judgment, the nonmoving party must
“do more than simply show that there is some metaphysical doubt as to the material
facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
and instead “must establish some genuine issue for trial such that a reasonable jury
could return a verdict in her favor,” Gordon v. FedEx Freight, Inc., 674 F.3d 769,
772–73 (7th Cir. 2012).

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Analysis
A.

Preliminary Evidentiary Questions
The parties’ arguments for and against summary judgment are premised in

part on certain contested evidentiary conclusions. Norman relies heavily on Joseph
Golden’s declaration, which Defendant contends is entirely inadmissible. Norman
also relies on a particular reading of the CBA to support her assertion that Hilliard
was free to offer her one of the Maintenance Craft positions she sought even when
Maintenance employees were voluntarily seeking to transfer to Palatine. Defendant
argues that her reading of the CBA is mistaken.
1.

Golden’s Declaration

In response to each of the facts in Norman’s Local Rule 56.1 Statement that
she supports with a citation to Joseph Golden’s sworn declaration, Defendant
asserts that the “Golden Declaration at [paragraph] is comprised of inadmissible
hearsay and is speculative, argumentative, and lacking foundation.” See, e.g., Def.’s
Resp. Pl.’s SOAF ¶¶ 7, 11, 13. Defendant, however, develops no argument in
support of this contention and cites no case law or rules of evidence. This omission
would be unremarkable except that Defendant also does not develop an argument
on this point in his reply brief, even though Norman relies heavily on Golden’s
declaration in her brief opposing summary judgment.
Arguments that are not developed or supported with appropriate authority
are forfeited. Doe by & through G.S. v. Johnson, 52 F.3d 1448, 1457 (7th Cir. 1995)

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(“We have made it clear that a litigant who fails to press a point by supporting it
with pertinent authority, or by showing why it is sound despite a lack of supporting
authority, forfeits the point.”). Nevertheless, the Court will explain why certain
portions of Golden’s declaration are admissible, why other portions may or may not
be admissible, and why others are inadmissible.
Golden’s sworn declaration can be divided into three main categories of
information. One category is his recollections of conversations with Ricky Hilliard
concerning Norman and Badrina. See, e.g., Pl.’s Ex. 5, Golden Decl. ¶¶ 26, 28, 29,
35. Another category consists of statements about the makeup of the Maintenance
staff in Palatine and the number and type of vacant Maintenance positions that
existed there in 2013 and 2014. See, e.g., id. ¶¶ 15, 31. The third category is
Golden’s interpretations of certain provisions of the CBA and the binding Joint
Contract Interpretation Manual. See, e.g., id. ¶¶ 7, 10. Norman offers Golden’s
contract interpretations to bolster her contention that Hilliard could have placed
her in one of her desired positions at any time.
Golden’s account of his conversations with Hilliard are admissible because
statements by Hilliard in connection with his job are not hearsay. Hilliard and
other members of USPS management are Defendant’s agents, and statements of a
party opponent’s agent, like statements of the party opponent itself, are not
hearsay. See Fed. R. Evid. 801(d)(2)(D). Moreover, some of the statements Golden
attributes to Hilliard are not hearsay because they are not being offered for the
truth of the matter asserted. See id. at 801(c)(2) (“‘Hearsay’ means a statement that

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. . . a party offers in evidence to prove the truth of the matter asserted in the
statement.”). For example, Hilliard’s purported statement “you know how women
are” obviously is not being offered for its truth.
The admissibility of Golden’s data about vacancies in the Maintenance Craft
is somewhat less certain. Presumably Defendant objects to the admission of this
information on foundation grounds, an objection that could potentially have merit.
But Defendant gives the Court no reason to doubt Golden’s assertion in his
declaration that the information he is providing is based on his personal knowledge.
Moreover, it is perfectly plausible that his position as the APWU’s Maintenance
Craft Director provided him with such information. In any event, the outcome of
Defendant’s motion for summary judgment does not hinge on the resolution of this
admissibility question, which can be resolved before trial should Defendant choose
to file a motion in limine on the subject.
The third category of information—Golden’s views on the meaning of the
CBA—are inadmissible. The pertinent provisions are in the record, and their
meaning is unambiguous. As a result, the admission of Golden’s opinions on the
subject would be improper. See Curia v. Nelson, 587 F.3d 824, 829 (7th Cir. 2009)
(courts must not resort to extrinsic evidence when interpreting unambiguous
contract provisions).
2.

Priority Under the CBA

The parties disagree over whether Hilliard was required under the CBA to
offer vacant Maintenance positions to Maintenance Craft employees seeking

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transfer to Palatine before offering the positions to employees on the in-service
register who (like Norman) were not already members of the Maintenance Craft.
Defendant contends that Hilliard was required to offer vacant positions to the
former group first, while Plaintiff contends that Hilliard could choose between the
two groups. If Norman is correct, then Hilliard was free to offer her a Maintenance
position regardless of whether the position was being sought by a Maintenance
Craft employee from another facility. But if Defendant is correct, Hilliard could only
offer Norman one of the vacant positions if no qualified Maintenance employee from
another facility was seeking it.
This disagreement is resolved by the Joint Contract Interpretation Manual
that accompanies the CBA. This manual “outlines areas of agreement on contract
application” and is binding on the APWU and the USPS. Pl.’s Ex. 4, JCIM at Bates
1025.
Under the heading “Order for Filling Vacant Maintenance Positions,” the
manual explains that, after vacant positions have been offered to employees on the
PAR and the PER, management is to “[c]onsider Maintenance Craft employees
requesting transfer before or after in-service procedures.” Id. at Bates 1031–32
(emphasis added). Norman relies upon this provision to support her (and Golden’s)
understanding that Hilliard was free to choose between her and any Maintenance
employee requesting transfer. But Norman ignores that the provision goes on to
specify that “‘after in-service’ is only in the event a within installation Maintenance
employee is on the in-service register.” Pl.’s Ex. 4, JCIM at Bates 1031–32. Because

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no Maintenance employee was on the in-service register with Norman, Hilliard was
required to select any qualified Maintenance employee requesting transfer before he
could offer a position to Norman. As will be seen, however, this is not fatal to
Norman’s claims.
B.

Discrimination Claim
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to

fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). To succeed on a sex discrimination claim
under Title VII, the plaintiff must show that her employer took an adverse
employment action because of her sex. Hester v. Ind. State Dep’t of Health, 726 F.3d
942, 946 (7th Cir. 2013). A substantial delay in promoting an employee constitutes
an adverse action. See Cullom v. Brown, 209 F.3d 1035, 1042 (7th Cir. 2000)
(because “a failure to promote affects the rate of pay and the accrual of leave,
denying [plaintiff] an earlier promotion was not only adverse, it was materially
adverse”). Recently, the Seventh Circuit reiterated that “the sole question that
matters” at the summary judgment stage of an employment discrimination case is
whether a reasonable jury could find that the plaintiff would not have suffered the
adverse employment action at issue if not for her membership in a protected class.
Ortiz v. Werner Enters., Inc., No. 15-2574, 2016 WL 4411434, at *3 (7th Cir. Aug.
19, 2016).

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Although Norman’s interpretation of the priority provisions of the CBA is
erroneous, and although some of Golden’s testimony about vacancies may turn out
to be inadmissible, other evidence in the record would allow a reasonable jury to
find that Norman was denied a promotion to Electronic Technician for over a year
because of her sex. There is evidence that Hilliard could have offered Norman a
high-level Maintenance position sooner but chose not to, including Hilliard’s own
testimony that he sought to make a vacant Electronic Technician position more
attractive to transfers instead of offering it to Norman. Additional evidence that
Hilliard wanted to avoid hiring Norman includes Hilliard’s slowness in completing
the in-service register, his later reopening of the register to new applicants that
could have displaced Norman, and his refusal to offer Norman an Electronic
Technician position until she and Golden met with the Plant Manager to complain.
And Hilliard’s purported comment about “how women are” is a comment that,
although vague, would permit a reasonable jury to infer that Hilliard found female
employees in general to be troublesome. Accordingly, Defendant’s motion for
summary judgment is denied as to this claim.
C.

Retaliation Claim
To prove a retaliation claim under Title VII, a plaintiff must show that she

engaged in statutorily protected activity and, as a result, suffered a materially
adverse employment action. Jones v. Res-Care, Inc., 613 F.3d 665, 671 (7th Cir.
2010). Norman filed a series of complaints concerning Hilliard with the Equal
Employment Opportunity Commission (EEOC) between April 2013 and July 2014,

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see Def.’s SOF ¶14; Pl.’s SOAF ¶¶ 51–53, and filing a complaint with the EEOC is
statutorily protected activity, see 42 U.S.C. § 2000e-3(a).
Defendant argues that Norman cannot show a causal connection between her
protected activity and Hilliard’s refusal to promote her. In support of this argument,
Defendant makes a grievous misstatement of law, asserting that “[i]nferences and
circumstantial evidence cannot be used to establish a prima facie case for
retaliation.” Reply Br. at 10. This idea comes from dictum in Stone v. City of
Indianapolis Public Utilities Division, 281 F.3d 640, 644 (7th Cir. 2002), that the
Seventh Circuit rejected a decade ago. See Sylvester v. SOS Children’s Villages Ill.,
Inc., 453 F.3d 900, 902 (7th Cir. 2006) (explicitly rejecting Stone dictum). Instead, if
a plaintiff who brings a retaliation claim “can prove by means of circumstantial
evidence that he engaged in protected activity . . . and as a result suffered the
adverse employment action of which he complains, that is fine.” Id.
Norman

contends

that

circumstantial

evidence—namely,

temporal

proximity—would allow a reasonable jury to infer a causal connection between her
protected activity and Hillard’s refusal to give her one of the Maintenance positions
she sought. Resp. Br. at 13–14. Hilliard learned in June 2013 that Norman had
complained to the EEOC, and Norman filed another complaint on July 18, 2013. See
Pl.’s SOAF ¶ 54; Pl.’s Ex. 7, 2013 EEOC Compl. Hilliard then persisted in his
refusal to offer her a position, and he announced one month after her July
complaint that he had decided to reopen the in-service register to new applicants, a

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decision that could have displaced Norman from her top spot on the register. See
Pl.’s SOAF ¶ 37.
Temporal proximity between protected activity and an adverse action can be
evidence that the action was retaliatory. Stone, 281 F.3d at 644. Although “mere
temporal proximity . . . will rarely be sufficient in and of itself to create a triable
issue,” id., an adverse action can come “so close on the heels of a protected act that
an inference of causation is sensible,” Loudermilk v. Best Pallet Co., LLC, 636 F.3d
312, 315 (7th Cir. 2011). “Deciding when the inference is appropriate cannot be
resolved by a legal rule.” Loudermilk, 636 F.3d at 315.
Hilliard’s

purported

resistance

to

placing

Norman

in

a

high-level

Maintenance position began before she engaged in protected activity, which could
undermine the reasonableness of an inference that the two events are causally
connected. See Argyropoulos v. City of Alton, 539 F.3d 724, 734 (7th Cir. 2008). But
a reasonable jury could infer from Hilliard’s reopening of the in-service register
when he did is that Norman’s ongoing EEOC activity inspired him to dig in his
heels. The Court thus concludes that a reasonable jury could find that Hilliard, by
continuing to deny Norman a high-level Maintenance position, retaliated against
her for engaging in protected activity. Accordingly, Defendant’s motion for summary
judgment is denied as to this claim as well.
Conclusion
For the reasons given, the Defendant’s motion for summary judgment [44] is
denied in its entirety. A status hearing will be held on 10/11/16 at 9:00 a.m. The

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parties should be prepared at that time to set deadlines for pretrial filings, a date
for the pretrial conference, and a date for trial.

IT IS SO ORDERED.

ENTERED

9/26/16

__________________________________
John Z. Lee
United States District Judge

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