Opinion
Case No. 97-4041-SAC.
October 2000.
MEMORANDUM AND ORDER
This case is before the court on defendant United States Postal Service's motion for summary judgment (Dk. 46), and the plaintiff Victoria S. Hillman's motion for order denying summary judgment (Dk. 112). In this case, the plaintiff alleges that the defendant terminated her employment and failed to re-employ her based upon her age and sex, and retaliated against her for engaging in protected activity, in violation of 43 U.S.C. § 2000e-16, and 29 U.S.C. § 633a.
Summary Judgment Standards
The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In essence, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.
Summary judgments "`should seldom be used in employment discrimination cases.'" O'Shea v. Yellow Technology Services, Inc., 185 F.3d 1093, 1098 (10th Cir. 1999) ( quoting Smith v. St. Louis University, 109 F.3d 1261, 1264 (8th Cir. 1997)). Because discrimination claims often turn on the employer's intent, courts ordinarily consider summary judgment inappropriate to settle an issue like intent. Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 530 (10th Cir. 1994); see Courtney v. Biosound, Inc., 42 F.3d 414, 418 (7th Cir. 1994) ("[T]he summary judgment standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." (quotation and citation omitted)). Even so, summary judgment is not "per se improper," Washington v. Lake County, Ill., 969 F.2d 250, 253 (7th Cir. 1992), and may be useful in weeding out claims and cases obviously lacking merit, Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700, 709 (10th Cir. 1988), overruled on other grounds, McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995).
Undisputed Facts
The following facts are either uncontroverted or, if controverted, construed in a light most favorable to plaintiff as the non-moving party. Immaterial facts and factual averments not properly supported by the record are omitted.
1. Persons seeking employment with the Postal Service must take a test, and then are ranked in order of their test scores on a "hiring worksheet" which is reviewed by the postmaster of the location in which a position is available. Individuals on the hiring worksheet are then contacted to see if they are interested in the available position, and desire an interview.
Exceptions to these general hiring procedures exist for certain veterans, but those exceptions do not apply here, and will not be addressed.
2. The postmaster is required to make his or her selection from one of the top three candidates, as determined by test scores, who are interested in the position. The postmaster is not required to select the individual with the top test score, and has the discretion to select a person who ranks second or third. If fewer than three people request an interview, the postmaster may request another hiring worksheet with names of additional applicants, or may make a selection from the one or two that are interested who were listed on the original hiring worksheet.
3. Plaintiff has taken the required tests and completed the required procedures for employment in the positions for which she has applied with the defendant.
4. Plaintiff was employed by the defendant in Smith Center, Kansas as a casual carrier from June 6, 1993, until September 25, 1993. As a casual mail carrier, plaintiff's term of employment was to last no less than 90 days to no more than six months.
5. A casual carrier is a temporary, non-career employee who receives no benefits. Casual carriers do not necessarily work every day during their appointment, but are "on call." Plaintiff worked approximately 20 days during her casual appointment.
6. On September 11, 1993, plaintiff's name was removed from the work assignment list, and she did not perform work for the defendant thereafter. Her appointment was canceled or terminated effective September 25, 1993.
7. On September 13, 1993, plaintiff complained to an EEO counselor, alleging discrimination based upon her age and sex in connection with her treatment while employed at the Smith Center post office.
8. Plaintiff thereafter applied for a PTF (part-time flexible) mail carrier position at the Stockton, Kansas post office. Plaintiff ranked number one for that position, based upon her test score. Plaintiff was interviewed for the position by the postmaster, Robert Henry. (Dk. 47, Exh. 5). The postmaster selected another female for the position, but she declined the offer. ( Id.) At that time, postmaster Henry had no knowledge of plaintiff's EEO activity. ( Id.)
9. Postmaster Henry thereafter interviewed other candidates for the position, became aware of plaintiff's EEO activity, and by November 18, 1993, selected another female employee. ( Id.); See Dk. 47, Exh. 7.
10. On November 19, 1993, plaintiff again complained to an EEO counselor, alleging that her non-selection by postmaster Henry had been based upon her sex, her age, and was in retaliation for her EEO activity. (Dk. 47, Exh. 7).
11. On December 24, 1993, plaintiff filed two EEOC complaints. In one, she alleged sex and age discrimination in connection with events occurring during the course of her employment at Smith Center. (Dk. 47, Exh. 8). In the other, she alleged that her non-selection for the PTF position in Stockton by postmaster Henry was because of her age, sex, and in retaliation for her protected activity. (Dk. 47, Exh. 9).
12. By the time plaintiff filed her EEOC complaints, she had learned that her former supervisor at Smith Center, Virginia Niblack, had filled out a written evaluation form, addressed to postmaster Henry at Smith Center. ( See Dk. 47, Exh. 9). That form stated, in addition to numerous other matters, that Niblack would not rehire the plaintiff. Niblack noted in lengthy detail, among other matters, that the plaintiff "did not relate well with other employees," "did not follow orders," did not want to be called in without two days notice, questioned Niblack's decisions and supervisory skills, was "very well known in this area for suing anyone for any reason," and had "filed an sex/age EEO" against the Smith Center postmaster. (Dk 51, Exh. 18).
13. Henry admits that sometime during the selection process he spoke to Virginia Niblack and received the evaluation form Niblack completed. Postmaster Henry further concedes that the evaluation did have some bearing on his decision, but was not the sole reason for his not selecting the plaintiff. (Dk. 51, Exh. 9).
14. Niblack's evaluation form was placed with plaintiff's application, and was sent to each hiring official with whom plaintiff interviewed for postal employment until some unspecified date on which it was removed. (Dk. 51, Exh. 7, p. 46-47).
15. In October of 1995, plaintiff applied for a PTF clerk position in the Osborne post office, which she did not receive. Plaintiff ranked number one for that position, based upon her test score. She thereafter filed another EEO complaint, alleging that her non-selection at Osborne was in retaliation for her protected EEO activity. (Dk. 47, Exh. 13).
16. In May of 1996, plaintiff applied for a PTF letter carrier position in the Russell post office, which she did not receive. Plaintiff ranked among the top three interested applicants for that position. She thereafter filed another EEO complaint, alleging that her non-selection at Russell was based upon her age and sex, and was in retaliation for her EEO activity. (Dk. 47, Exh. 16).
17. From 1993 to 1998, plaintiff applied, without success, for at least 21 different positions with the defendant. In each of those applications, plaintiff was among the top three applicants who were interested in the position.
18. Plaintiff sent three resumes to employers other than the post office since her employment as a casual carrier at Smith Center, but conducted no other search for employment outside the postal service.
Other relevant material facts are set forth in more detail throughout the court's discussion.
Pro Se Litigant
Plaintiff was represented by counsel at all times throughout the date when her response to defendant's motion was filed, although plaintiff's subsequent response (Dk. 91) was filed pro se. In analyzing the plaintiff's position, the court has taken into consideration the fact that she now appears pro se. "A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). "At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant." Id. See Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) ("Despite liberal construction afforded pro se pleadings, the court will not construct arguments or theories for the plaintiff in the absence of any discussion of those issues."). Nor is the court to "supply additional factual allegations to round out a plaintiff's complaint." Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to prior order of this court, (Dk. 40), many of plaintiff's claims have been dismissed. According to the parties, the following claims remain, which are the subject of the defendant's motion for summary judgment:
a. that plaintiff was not rehired after her casual appointment at the Smith Center post office expired in September of 1993, because of her sex, age, and in retaliation for EEO activity;
b. that plaintiff was not selected for a position in the Stockton post office on October 29, 1993, and was not interviewed when the defendant re-opened this position on November 16, 1993, in retaliation for prior EEO activity;
c. that plaintiff was not selected for a position in the Osborne post office on October 23, 1995, in retaliation for prior EEO activity; and
d. that plaintiff was not selected for a position in the Russell post office on May 16, 1996, in retaliation for prior EEO activity.
Although this claim is not included in plaintiff's recitation of claims remaining, (Dk. 51, p. 6-7), it is discussed in plaintiff's brief, (Dk. 51, p. 13), defendant concedes this claim remains, (Dk. 47, p. 5), and it is arguably included in the pretrial order. (Dk. 117, p. 6). The court will therefore consider the merits of plaintiff's Osborne claim.
Exhaustion of Administrative Remedies
Defendant devotes a portion of its brief to a discussion of general principles regarding the requirement that a plaintiff exhaust administrative remedies in ADEA and Title VII cases. Defendant does not, however, make any attempt to apply those requirements to the facts of this case, or anywhere allege that the plaintiff has failed to exhaust her administrative remedies as to the claims set forth above. The court is aware that the pretrial order includes an allegation that the plaintiff failed to file this case within 90 days of the final agency decision regarding her Smith Center and Stockton claims, but that claim is not before the court in this motion, or in any other that is pending. Because such a claim is not jurisdictional, Jarrett v. U.S. Sprint Communications Co., 22 F.3d 256 (10th Cir. 1994); Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983), this court will not address it sua sponte. Plaintiff's claims will thus be addressed on the merits.Age and Sex Discrimination
Defendant seeks summary judgment on plaintiff's claim that she was not rehired at the Smith Center post office on the basis of her age and/or sex, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and Title VII, 42 U.S.C. § 2000e et seq., respectively. The ADEA makes it unlawful for an employer, "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The protected class under the ADEA are individuals "who are at least 40 years of age." 29 U.S.C. § 631(a).
To prevail on her claim, the plaintiff "`must prove by a preponderance of the evidence that . . . [the employer] had a discriminatory motive or intent.'" Thomas v. International Business Machines, 48 F.3d at 484 (quoting Ortega v. Safeway Stores, Inc., 943 F.2d 1230, 1236 (10th Cir. 1991)). Plaintiff need not show that her age or sex was "the sole motivating factor in the employment decision;" she need show only that her age or sex "was also a reason for the employer's decision and that it was the factor that made a difference." Elmore v. Capstan, Inc., 58 F.3d 525, 530 (10th Cir. 1995) (quotations omitted). As applied to this case, plaintiff's ultimate burden is to show that the defendant would have rehired her but for the age or sex discrimination. See James v. Sears, Roebuck and Co., Inc., 21 F.3d 989, 992 (10th Cir. 1994). Absent evidence of an unlawful discriminatory motive, the federal acts do not become a vehicle for evaluating the propriety or second-guessing the employer's judgment in a business decision. Faulkner v. Super Valu Stores, Inc., 3 F.3d 1419, 1426-27 (10th Cir. 1993).
"The framework for assessing the evidence in an age discrimination case parallels that applicable in a Title VII case." Spulak v. K Mart Corp., 894 F.2d 1150, 1153 (10th Cir. 1990); see Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 (10th Cir. 1999). Although direct or indirect evidence may be used to prove employment discrimination, in practice, plaintiffs typically offer only circumstantial proof because "there is rarely direct evidence of discrimination." Ingels, 42 F.3d at 621. In analyzing ADEA and Title VII cases where circumstantial evidence is used, as here, the court relies on the burden shifting procedures set out in the Title VII case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Bullington, 186 F.3d at 1315.
Under McDonnell, a plaintiff must first establish a prima facie case that the employer engaged in the alleged discriminatory practice. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). In McDonnell Douglas, the Supreme Court enumerated the elements required in order for a plaintiff to establish a prima facie case in the failure to hire context. These are: (1) plaintiff belongs to a protected class; (2) plaintiff "applied and was qualified for a job for which the employer was seeking applicants"; (3) despite being qualified, the plaintiff was rejected; and (4) after plaintiff's rejection, "the position remained open and the employer continued to seek applicants from persons of [plaintiff's] qualifications." McDonnell Douglas, 411 U.S. at 802. Proof of a prima facie case creates "`a rebuttable presumption of discriminatory intent.'" Ingels, 42 F.3d at 621 (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir. 1988)).
Defendant alleges solely that the plaintiff has failed to meet the fourth element, above. Defendant has presented uncontradicted evidence that no one was hired to replace plaintiff after her casual appointment expired. (Dk. 47, Exh. 18). Plaintiff makes no allegation that after her appointment as a casual carrier ended, a casual carrier position remained open or that the defendant sought applicants for any carrier position. Further, the pretrial order reflects the parties' stipulation that "no one was hired to replace plaintiff after her casual position at Smith Center was canceled." (Dk. 117, p. 15, g).
Defendant does not dispute, however, plaintiff's evidence that Kent Kennedy was permitted to transfer from a PTF clerk position in Smith Center to a PTF carrier position in Smith Center effective September 18, 1993. (Dk. 51, Exh. 20B, p. 2). The pretrial order appears to be carefully worded to avoid mention of this transfer. This evidence, viewed in the light most favorable to plaintiff, shows that Kent Kennedy performed additional carrier duties at Smith Center after plaintiff's casual carrier work ended. That Kennedy served as a carrier there at the time plaintiff's appointment was terminated shows that there was an available position. Defendant has not alleged that the plaintiff was not qualified for that position. Plaintiff has thus made a prima facie case of sex discrimination regarding the defendant's failure to rehire her at Smith Center sufficient to defeat defendant's motion for summary judgment.
Defendant's proffer, if any, of a legitimate reason for its decision not to rehire the plaintiff at Smith Center, is addressed in the retaliation section of this memorandum.
Plaintiff's claim of age discrimination is based solely upon the fact that a female clerk, Terri Kingsbury, was permitted to carry mail during plaintiff's employment at Smith Center, although she was a clerk and not a carrier. (See Dk. 51, Exh. 2, p. 132-133). No evidence of Ms. Kingsbury's age has been presented, but even if it had been, and showed her to be significantly younger than the plaintiff, this claim of disparate treatment during plaintiff's employment is not within the issues that remain for the court's resolution. See Dk. 40; Dk. 51, p. 6-7; Dk. 47, p. 5). Defendant's motion for summary judgment on plaintiff's claim of age discrimination at the Smith Center post office is therefore granted.
Retaliation
Title VII prohibits an employer from retaliating against an employee because she "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). A prima facie case of retaliation under these statutes is made by showing "(1) protected employee action; (2) adverse action by an employer either after or contemporaneous with the employee's protected action; and (3) a causal connection between the employee's action and the employer's adverse action." Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997); see McGarry v. Board of County Comm'rs of County of Pitkin, 175 F.3d 1193, 1198 (10th Cir. 1999).
Upon such a showing, the burden shifts to the defendant to produce a legitimate, nonretaliatory reason for its employment decision. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997). The burden then shifts back to the plaintiff to demonstrate that the proffered reason was not the true reason for the employer's decision, but instead, that the decision was made for retaliatory reasons. This burden may be met either by direct evidence of the employer's retaliatory motive or by evidence that the proffered reason is pretextual. See id. at 1396.
Defendant does not challenge plaintiff's assertion that her complaint to the EEO counselor on September 13, 1993, qualifies as participation "in any manner" in a Title VII "investigation, proceeding, or hearing." 42 U.S.C. § 2000e-3(a). The court will therefore consider the date of September 13, 1993 as the date on which plaintiff first engaged in protected action, sufficient to meet the first element of a prima facie case.
Neither does the defendant challenge plaintiff's assertion that the post office's failure to hire her after her protected conduct constitutes adverse action. See Kendall v. Watkins, 998 F.2d 848, 851 (10th Cir. 1993) (holding that even if an employer had no obligation to consider plaintiff's employment applications, it could not reject those applications for discriminatory reasons). The court will thus consider plaintiff's non-selections for the jobs for which she applied with the postal service, for which she was objectively qualified by virtue of her test scores, to be adverse action.
Defendant seeks summary judgment on the basis that no causal connection exists between any adverse action and plaintiff's EEO complaints, and that it had legitimate, nonretaliatory and non-pretextual reasons for its decisions. The court will examine the remaining claims separately.
Smith Center
Defendant's decision to terminate plaintiff's employment as a casual carrier at Smith Center occurred on September 11, 1993, before plaintiff first contacted an EEO counselor. Plaintiff alleges that she contacted the union steward for the Smith Center post office on September 9, 1993, to complain about her treatment, and that the union steward discussed those complaints with the deciding official, Virginia Niblack, on September 10, 1993. Plaintiff has shown no evidence, however, in support of this allegation. Defendant has presented affidavits showing that plaintiff's allegations are mistaken. See Dk. 54, Exhs. 27-29. Because plaintiff has failed to prove that Ms. Niblack knew that plaintiff intended to file an EEO complaint at the time she removed plaintiff from the work list, plaintiff has failed to make a prima facie showing of retaliation as to her claim, if any, regarding her termination from Smith Center.
Additionally, defendant has shown a legitimate non-discriminatory reason for its decision to terminate plaintiff's employment as a casual carrier. It is undisputed that plaintiff's employment at Smith Center was for a limited period of time only. Plaintiff was hired as a casual carrier, to work for the defendant only for a period of 90 days to six months. Plaintiff remained employed by the defendant for over 90 days, and less than six months, raising no inference of retaliation in her initial termination from employment.
Plaintiff's claim includes, however, the assertion that the defendant did not rehire her after her initial termination from the Smith Center post office in September of 1993, in retaliation for EEO activity. As to this claim, the adverse action took place soon after plaintiff's initial EEO complaint. Defendant claims that no causal connection exists between the two, because all of plaintiff's contact with Niblack, and thus all of Niblack's negative impressions of plaintiff's work performance, occurred prior to September 13, 1993, the date on which plaintiff first complained to the EEO officer.
It is true that plaintiff's last day of work was Sept. 11, 1993. However, Niblack's stated reason for not reappointing the plaintiff was unrelated to plaintiff's work performance, and was based solely on her stated lack of need for a carrier. (Dk. 47, Exh. 18). Plaintiff has presented evidence which contradicts Niblack's affidavit that she did not need additional carrier help in September of 1993. Terri Kingsbury, a TE or "transitional employee," testified that Niblack told her on September 24, 1993, when her one year appointment as a clerk was about to expire, that Niblack would "like to keep [her] on as a PTF carrier because she needed a carrier." (Dk. 51, Exh. 2, p. 105, 107, 122). Yet the very next day, Niblack terminated plaintiff's appointment as a casual carrier for the stated reason that she did not need additional help. Additionally, Niblack's statement of lack of need is called into question by the fact that Kent Kennedy was permitted to transfer from a PTF clerk position in Smith Center to a PTF carrier position in Smith Center effective September 18, 1993. (Dk. 51, Exh. 20B, p. 2).
The Supreme Court has recently held that a prima facie case of discrimination, combined with sufficient evidence of pretext, is sufficient as a matter of law to show intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. ___, 120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000). This ruling is consistent with prior Tenth Circuit law. See Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). "Pretext can be shown by 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 and hence infer that the employer did not act for the asserted non-discriminatory reasons." Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1080 (10th Cir. 1999) (further quotation omitted). Given Kingsbury's testimony, Niblack's proffered reason for plaintiff's dismissal was one which a rational jury could find "unworthy of credence." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
Plaintiff has offered sufficient evidence to raise a material question of fact as to whether Niblack's stated reason for not rehiring the plaintiff at Smith Center after her casual appointment expired in September of 1993 was pretextual, and as to whether the true reason for that decision related instead to plaintiff's EEO activity. Defendant's motion for summary judgment on plaintiff's claim of retaliatory failure to re-hire her at Smith Center is therefore denied.
Stockton, Osborne, and Russell Claims
As to the Stockton, Osborne, and Russell claims, defendant alleges that no causal connection has been shown between the plaintiff's protected conduct and the defendant's adverse action, and that the decisions not to hire were based on legitimate nonretaliatory and nonpretextual reasons. "The requisite causal connection may be shown by producing `evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.' " McGarry, 175 F.3d at 1201 (quoting Burrus v. United Telephone Co. of Kansas, 683 F.2d 339, 343 (10th Cir. 1982)). "Unless the termination is very closely connected in time to the protected conduct, the plaintiff will need to rely on additional evidence beyond mere temporal proximity to establish causation." Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997).
The non-selection of plaintiff for the Stockton position occurred during October and November of 1993, within one and two months after her EEO complaint. This extremely short period of time is sufficient here to create an inference of causation. See Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (affirming trial court's finding that a period of three months between the protected activity and adverse action did not, by itself, create an inference of causation).
Although plaintiff's non-selection at Osborne and Russell occurred many months after her initial EEO complaint and subsequent EEO filings, the pattern of her non-selection despite her consistently high test scores, coupled with the fact that each hiring official had received, in conjunction with their assessment of plaintiff's application, the negative evaluation from Niblack which included the reference to plaintiff's EEO filing, provides sufficient additional evidence to create an inference of a causal connection for purposes of this motion. Plaintiff has thus made a prima facie showing of retaliation as to the Stockton, Osborne, and Russell non-selections.
Plaintiff's first and second EEO charges were filed on December 24, 1993. Her non-selection at Osborne was in October of 1995, and her third EEO charge was filed on December 6, 1995. Her non-selection at Russell was in May of 1996, followed by her fourth EEO charge.
Many of plaintiff's claims of non-selection no longer remain in this case due to plaintiff's failure to exhaust administrative remedies. Those same acts may nonetheless serve as evidence of a continuing unlawful practice and the defendant's retaliatory intent as to the remaining claims. See Furr v. A.T T Technologies, Inc., 824 F.2d 1537, 1543 (10th Cir. 1987) (discriminatory acts occurring before the filing periods are relevant evidence of the continuing unlawful practice and its discriminatory intent).
The burden therefore shifts to the defendant to produce a legitimate, nonretaliatory reason for its employment decision. Defendant has done so through the affidavits, summarized below, of each of the postmasters who decided to select someone other than the plaintiff for the relevant positions plaintiff desired.
The Stockton postmaster, Robert Henry, states that he initially interviewed two candidates to fill a PTF carrier position there in October of 1993, one of whom was the plaintiff. He offered the position to the other female he interviewed, at a time when he had no knowledge of plaintiff's EEO activity. (Dk. 47, Exh. 5). Because only one candidate was left, he requested a second hiring worksheet, as is permitted pursuant to postal procedures, and interviewed two females other than the plaintiff. ( Id.) He states that he selected the person he did because:
a. she was already working in the Stockton Post Office as a casual carrier;
b. he was familiar with her work performance and was pleased with it;
c. she was a resident of Stockton and could thus report to work more quickly in the event a last minute replacement were needed; and
d. she was familiar with the work and the mail route which made training easier. ( Id.)
Postmaster Henry admits that he was aware of plaintiff's EEO activity when he made his final selection, but asserts that this knowledge played no part in his decision. ( Id.)
The Osborne postmaster, Carl Roberts, states that he interviewed plaintiff and two other candidates for the position of PTF clerk in October of 1995. (Dk. 47, Exh. 11). He states that he selected a female other than the plaintiff because she had three years' experience working as a TE clerk in the Osborne post office, and he was pleased with her work performance. ( Id.) He further adds that although he was aware of plaintiff's EEO activity, it was not a factor in his decision not to select the plaintiff for this position. ( Id.)
The Russell postmaster, Randy Caprez, interviewed plaintiff and two other candidates for a PTF carrier position in May of 1996. (Dk. 47, Exh. 14). He selected a female other than the plaintiff "based upon her responses to the questions asked during the interview and the enthusiasm she demonstrated during the interview." ( Id.) Although he was aware of plaintiff's EEO activity, he states that it was not a factor in his decision not to select the plaintiff for this position. ( Id.)
The plaintiff has failed to demonstrate that any of the proffered reasons set forth above were not the true reasons for the employer's decision, but instead, that the decision was made for retaliatory reasons. Although conclusory statements by the postmasters that they did not consider plaintiff's EEO activity to be a factor in their decision carry little, if any, weight, their affirmative and specific statements of the reasons why they decided to select individuals other than the plaintiff are uncontradicted. Plaintiff has presented no direct evidence of the employer's retaliatory motive nor any evidence that any of the proffered reasons is pretextual. There is no evidence of procedural irregularities in the selection process, and the fact that the plaintiff ranked higher than most of the applicants selected is insufficient to support a finding of pretext. See Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988) (as courts are not free to second-guess an employer's business judgment, the assertion that plaintiff was equally or more qualified is insufficient to support a finding of pretext). Accordingly, summary judgment is warranted on plaintiff's claims relating to her non-selection at the Stockton, Osborne, and Russell post offices.
Failure to Mitigate Damages
The government additionally contends that the plaintiff has failed to mitigate her damages, and is therefore precluded from receiving any back pay. The government's position is based upon the following: 1) the fact that plaintiff has sought employment from only three employers other than the defendant since September of 1993; 2) the rule of law that a plaintiff has a duty to mitigate her damages, see Spulack v. K-Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990); 3) the contention that plaintiff has not made a good faith effort to mitigate because of her failure to search for alternative work; and 4) the assertion that this court should decide the issue as a matter of law.
Plaintiff responds that she has no desire to work anywhere other than the postal service, that she should not be forced to change her mid-life career aspirations, and that she should have the right to choose her place of employment. She wishes to work for the post office because she believes the pay and benefits are superior to other job opportunities in her area of the state, and she feels that she could advance on the basis of her experience and ability.
A Title VII claimant has a duty to mitigate damages by seeking substantially equivalent employment. See Ford Motor Co. v. EEOC, 458 U.S. 219, 231-32 (1982). "This duty has ancient origins, and operates to prevent claimants from recovering for damages which they could have avoided through reasonable diligence." Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 623 (6th Cir. 1983). As expressed in Title VII, "Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." 42 U.S.C. § 2000e-5(g). "Unquestionably, wrongfully discharged claimants have an obligation to use reasonable methods to mitigate their damages. " E.E.O.C. v. Sandia Corp., 639 F.2d 600, 627 (10th Cir. 1980). Courts have refused to award back pay to claimants "for those periods of time when they were found to be unavailable for other work or were not seeking other employment." Sandia, 639 F.2d at 627.
The employer bears the burden of showing a lack of reasonable diligence. Spulak v. K Mart Corp., 894 F.2d 1150, 1158 (10th Cir. 1990). Traditionally, the defendant can meet its burden to show that the plaintiff did not exercise reasonable diligence in seeking other employment by establishing "(1) that the damage suffered by plaintiff could have been avoided, i.e., that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position." Sandia, 639 F.2d at 627. Where, however, a claimant "makes little or no effort to obtain any type of employment, the court does not need to consider in the abstract whether or not a suitable position for which the plaintiff is qualified might have been offered to the discriminatee if he or she had made the necessary effort to find it." Logan v. Pena, 1993 WL 62316, *3 (D.Kan. February 9, 1993). See Tubari Ltd. v. NLRB, 959 F.2d 451, 459 (3d Cir. 1992) (finding, in NLRB case, evidence of the work available is "irrelevant where . . . the [plaintiff] made no search for comparable interim employment.")
Although the Tenth Circuit has not yet addressed this issue, other circuits which have agree that where a plaintiff makes little or no effort to find employment following termination, the court should not consider in the abstract whether a comparable position would have been available. See Tubari Ltd., supra, Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1527 (11th Cir. 1991); Sellers v. Delgado Community College, 902 F.2d 1189 (5th Cir. 1990), cert. denied, 498 U.S. 987 (1990).
Here, plaintiff's decision to seek employment almost exclusively from the postal service makes it pointless for defendant to offer evidence of the potential job opportunities plaintiff may have found elsewhere. No matter what opportunities awaited plaintiff, plaintiff had made her choice not to seek them out. Under these unusual circumstances, defendant need not show, for purposes of this motion, the availability of other suitable work.
Even if such a burden remains, however, it would be easily met, as the plaintiff's position as a casual carrier with the postal service paid no benefits, and plaintiff has not disputed evidence that better paying jobs were available in her geographic region which she had the capacity and ability to perform. (Dk. 54, Exh. 30).
Defendant nonetheless bears the burden to show that the plaintiff failed to use reasonable care and diligence in seeking such a position. Plaintiff applied for over twenty different positions with the postal service, in various locations, and interviewed with many postmasters. This was done, however, at a time when the plaintiff believed that she would not obtain employment with the postal service due to retaliation. Had this been the only effort plaintiff made to find employment, the court would not hesitate to find, as a matter of law, that the plaintiff's attempts to mitigate her damages were not reasonable. The record reveals, however, that in addition to seeking employment with the postal service, the plaintiff sent resumes to other employers. (Dk. 47, Exh. 2, Hillman depo. at p. 7). The record presented to the court does not specify when, or to how many potential employers, the resumes were sent, or the nature of the positions for which plaintiff applied.
Plaintiff's efforts appear to be greater than those reflected in cases deciding this issue as a matter of law. See e.g., Sanchez v. Mora-San Miguel Electric Co-op. Inc.173 F.3d 864, 1999 WL 176151, at *6-*8 (10th Cir. 1999) (Table) (affirming finding, as a matter of law, that plaintiff's efforts were insufficient where she made three telephone calls to other electric cooperatives, made one telephone call to the New Mexico Highway Department, and gave her resume to the New Mexico Department of Labor to forward to Intel Corporation.) Under the circumstances, whether plaintiff's efforts can be deemed reasonable when they did not include a broader or longer search for employment elsewhere, is for the jury to decide. See Spulak, 894 F.2d at 1157(a claimant need only make a reasonable and good faith effort, and is not held to the highest standards of diligence).
Because the plaintiff is now pro se, the court will summarize the effect of its rulings herein. The sole claims remaining for trial are plaintiff's claims of sex discrimination and retaliation in defendant's failure to rehire her at Smith Center. Plaintiff will bear the ultimate burden of proof on those claims, and the defendant will bear the burden of proof that the plaintiff failed to mitigate any damages arising from those claims.
PLAINTIFF'S MOTION FOR DENIAL OF SUMMARY JUDGMENT
In conjunction with various other motions, plaintiff has filed a motion (Dk. 112) for denial of defendant's summary judgment motion. Therein, plaintiff alleges that defendant's motion should be denied because it is based upon "deceitful practices and lies, false and fraudulent statements, corrupt propaganda, and unlawful and illegal acts of retaliation and discrimination against the pro se plaintiff." ( Id., p. 29). The court has reviewed and considered plaintiff's motion for denial of summary judgment, and finds it to be without merit.
IT IS THEREFORE ORDERED THAT defendant's motion for summary judgment (Dk. 46) is granted in part and denied in part, in accordance with the terms of this memorandum.
IT IS FURTHER ORDERED THAT plaintiff's motion (Dk. 112) for denial of defendant's summary judgment motion is denied.