By Kathleen Kapusta, J.D. The failure to sufficiently identify similarly situated nonwhite comparators or to present any evidence tending to show why his white superior would discriminate against him based on his race doomed a white postal employee’s reverse race discrimination claim, ruled the Seventh Circuit, affirming summary judgment in favor of his employer. Nor was the court willing to revive his claim that his supervisor retaliated against him for filing EEO complaints where the supervisor’s actions, taken individually or cumulatively, did not support a reasonable inference of retaliatory intent (Formella v. Brennan, March 10, 2016, Bauer, W.). After 31 years of employment with the USPS, the police sergeant decided to retire. Although he subsequently changed his mind, he was not allowed to withdraw his retirement paperwork. His administrative appeal was settled and he returned to work on a different shift, which had no opportunity for the premium pay he had been receiving. “Rank has its privileges.” The employee allegedly told his supervisor he wanted a transfer to another shift but when he learned that another sergeant was planning to retire, he did not request a transfer to her positon until after it was posted. His subsequent request to transfer noncompetitively into that position was denied by the inspector in charge (IC). He then competed for the position against two other African-American officers but was not selected by the IC, who stated that during the interview the employee did not correctly answer questions and repeated the phrase “RHIP,” meaning “rank has its privileges.” The employee filed EEO complaints alleging discrimination based on age and race as well as retaliation. After the USPS denied his claims, he sued in federal court asserting claims for race discrimination and retaliation in violation of Title VII and age discrimination in violation of the ADEA. The district court granted summary judgment against all his claims. Reverse race discrimination. On appeal, the court found that the denial of the employee’s noncompetitive transfer request and the hiring of the African-American candidate over him constituted adverse employment actions. However, observed the court, he failed to present any argument regarding any background circumstances showing the USPS or the IC (who was white) had a reason to discriminate against whites or anything “fishy” about the facts of his case. Thus, he waived these arguments on appeal. Comparators. Nor did the employee sufficiently identify similarly situated nonwhite employees. Although he proffered an African-American sergeant who was allowed to transfer noncompetitively into another shift, there was evidence indicating she did not request a noncompetitive transfer but rather was unilaterally transferred to ensure a sergeant on every shift. Nor had the vacancy been posted prior to her transfer, which the court found to be a crucial detail, as the IC was not faced with having to choose whether to exercise his discretion to pull the vacancy posting and approve the transfer. Thus, because the sergeant and the employee were in two completely different administrative situations, she was not a true comparator with regard to the denial of his transfer request. As to the nonselection of the employee for the position, the court found it undisputed that the IC found all three candidates to be qualified; the employee did not know the answers and provided incomplete answers to some interview questions; when asked what made him the best candidate, he responded that he would benefit financially from the transfer; he told the IC during the interview that he intended to return to school and work in the firearms industry; he repeatedly said “RHIP” during the interview; and the successful candidate had the highest interview score. Based on this, the court found the employee and the successful candidate were not similarly situated. Thus, he failed to establish a prima facie case of reverse race discrimination. Retaliation. Turning to the employee’s retaliation claim, the court first found that he failed to argue how any of his supervisor’s alleged actions would dissuade a reasonable employee from engaging in protected activity. Therefore those arguments were waived on appeal. Even if not waived, only one action could be construed as adverse: his supervisor’s rejection of a doctor’s note that required the employee to use an additional week of sick leave to obtain a second doctor’s note. However, said the court, the employee failed to present any direct or circumstantial evidence that the filing of the EEO complaint was the cause of the supervisor’s action. And while the employee argued that the rejection of the note could not be viewed in isolation, and that all of the supervisor’s actions constituted “a pattern of retaliatory conduct” that culminated in the note’s rejection, the court found there was no direct or circumstantial evidence that the supervisor’s rejection of the doctor’s note, or any of his other actions, were a result of the employee’s filing of the EEO complaints. Nor did the employee present evidence of a causal connection between any alleged discrimination by the IC and the alleged retaliation by the supervisor. Taken individually or cumulatively, said the court, the actions of which the employee complained did not support a reasonable inference of retaliatory intent.
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