Bledsoe, Eugene v. Potter, John ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 12, 2006
Decided October 6, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3999
EUGENE BLEDSOE, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 C 3890
JOHN E. POTTER, Postmaster-
General of the United States, Mark R. Filip,
Defendant-Appellee. Judge.
ORDER
Eugene Bledsoe sued the United States Postal Service, his employer, under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that his
employer changed his work schedule, drastically reducing his overtime in
retaliation for his filing complaints with the Equal Employment Opportunity
Commission. Bledsoe now appeals from the district court’s decision granting
summary judgment to the Postal Service. Because Bledsoe has failed to establish
that a genuine issue of material fact exists with respect to his retaliation claim, we
affirm the district court’s order.
No. 05-3999 Page 2
The undisputed material facts that the district court considered are as
follows. Bledsoe, who is an African-American, is employed at the Evanston, Illinois
Post Office as a special delivery messenger and clerk. One of his jobs is to deliver
express mail (mail that generally must be delivered within a day after the Post
Office receives it). For many years Bledsoe was scheduled to work Monday through
Friday with Saturday and Sunday off. On this schedule, he frequently worked
overtime on both Saturday and Sunday. But a new postmaster, Mike Kobler, was
assigned to the Evanston Post Office in April 2000 with instructions to reduce the
office’s overtime. It appeared to Kobler that Bledsoe was frequently using overtime
to accomplish his ordinary workload. Because the post offices that accept express
mail for delivery are usually closed on Sundays, Kobler suspected that Bledsoe had
little work to do on Mondays. Therefore, he had another postal employee, Martin
Cain, shadow Bledsoe on a Monday and create a record of how Bledsoe actually
spent his time on that day. The record established that most of Bledsoe’s work on
Monday consisted of making second attempts to deliver express mail.
Because second delivery attempts of express mail, unlike first attempts, do
not have to be delivered by a certain time, Kobler reasoned that the regular letter
carriers could make these second attempts when on their regular rounds. Once this
change was made, Bledsoe would have little to do on Mondays thus Kobler decided
to change Bledsoe’s days off from Saturday and Sunday to Sunday and Monday.
This change was made in July 2000, and Bledsoe says that since then, he has
seldom had a chance to work overtime. Bledsoe asserts that Kobler made this
change not to save money but to retaliate against him for complaints he had made
to the EEOC. He cites two EEOC complaints that he filed in 1999 and 1996 but
which Kobler learned of in April 2000, three months before the schedule change.
At the summary judgment stage, the district court refused to consider much
of Bledsoe’s evidence because he failed to comply with Local Rule 56.1.1
1
This rule states in relevant part:
Each party opposing a motion filed pursuant to Fed. R. Civ. P. 56 shall serve and file (1) any opposing
affidavits and other materials referred to in Fed. R. Civ. P. 56; (2) a supporting memorandum of law;
and (3) a concise response to the movant’s statement [of material facts] that shall contain: (A)
numbered paragraphs, each corresponding to and stating a concise summary of the paragraph to which
it is directed, and (B) a response to each numbered paragraph in the moving party’s statement,
including in the case of any disagreement, specific references to the affidavits, parts of the record, and
other supporting materials relied upon, and (C) a statement, consisting of short numbered paragraphs,
of any additional facts that require the denial of summary judgment, including references to the
affidavits, parts of the record, and other supporting materials relied upon. Absent prior leave of Court,
a respondent to summary judgment motion shall not file more than 40 separately-numbered statements
of additional facts. All material facts set forth in the statement required of the moving party will be
(continued...)
No. 05-3999 Page 3
Nonetheless the court found that even if it considered Bledsoe’s evidence, he still
had not made out a case of retaliation under either the direct or the indirect
method. Specifically, it found that Bledsoe could not succeed under the direct
method because he had not presented evidence of a causal connection between his
complaints and the schedule change. It also determined that he could not succeed
under the indirect method because he had failed to present evidence that a
similarly situated employee who had not complained was treated more favorably.
Finally, the district court ruled that there was no evidence to suggest that the
money-saving reason for the schedule change was pretextual.
Initially Bledsoe argues that the district court should have disregarded a
number of the Postal Service’s exhibits and statements of fact. These arguments
appear to be largely frivolous but, even if we were to accept them, Bledsoe still has
not met his evidentiary burden on summary judgment. See Keri v. Bd. of Tr. of
Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323, 325 (1986)) (party seeking summary judgment need not support its
motion with “affidavits or other similar materials negating opponent’s claim;” it
need only point out that there is an absence of evidence supporting non-movant’s
case).
We review a grant of summary judgment de novo. Tomanovich v. City of
Indianapolis and Ind. Dep’t of Transp., 457 F.3d 656, 662 (7th Cir. Aug. 8, 2006).
Summary judgment is appropriate if after construing all the facts in favor of
Bledsoe there are no genuine issues of material fact and the Postal Service is
entitled to judgment as a matter of law. Id.A plaintiff in a Title VII action can prove retaliation using either the direct or
the indirect method. Under the direct method, the plaintiff must establish that he
was engaged in protected activity, that he suffered an adverse action, and that the
adverse action was causally connected to his protected activity. Treadwell v. Office
of the Ill. Sec’y of State, 455 F.3d 778, 781 (7th Cir. July 27, 2006). Under the
indirect method, initially he must make out a prima facie case that he was engaged
in a protected activity, suffered an adverse action, was satisfactorily performing his
job at the time he suffered the adverse action, and that a similarly situated
employee who was not engaged in protective activity was treated more favorably.
Id. at 782.
1
(...continued)
deemed to be admitted unless controverted by the statement of the opposing party.
Local Rule 56.1(b).
No. 05-3999 Page 4
The district court found that Bledsoe had failed to raise an issue of material
fact dealing with his prima facie case under the indirect method in that he failed to
establish that he was treated less favorably than any similarly situated employee
who was not engaged in protected activity. Bledsoe does not challenge this
conclusion on appeal. In any case, it is correct because Bledsoe admitted in his
response to the Postal Service’s statement of undisputed facts that there was no
similarly situated employee. (R. 16 at 10, R. 28 at 11.)
As for the direct method, Bledsoe argues that he presented sufficient
evidence of a causal connection between his complaints and the schedule change.
His brief is not entirely clear about what evidence he is referring to, but he appears
to believe that the schedule change happened shortly after Kobler learned of two
complaints he had made, one in 1996 and the other in 1999. Kobler changed
Bledsoe’s schedule in July 2000, about seven months after he filed his second
complaint and about four years after he filed his initial complaint. (Since Kobler
did not arrive at the Evanston Post Office until April 2000, there was really only a
three-month gap between the time Kobler could have learned of these complaints
and the time the schedule change occurred).
We have held many times that temporal proximity of this kind is rarely
enough to establish a causal connection between protected activity and an adverse
employment action. Stone v. City of Indianapolis Pub. Util. Div., 281 F.3d 640, 644
(7th Cir. 2002); see also Moser v. Ind. Dep’t of Corr., 406 F.3d 895, 904–05 (7th Cir.
2005) (one-month gap not sufficient); Contreras v. Suncast Corp., 237 F.3d 756, 765
(7th Cir. 2001) (same). Bledsoe has failed to give any reason as to why we should
depart from this general rule for the three-month gap associated with his EEOC
complaints.
Bledsoe argues that he submitted other evidence of a causal connection.
However, the district court refused to consider the evidence he cites because it
concluded that it was not submitted in compliance with Local Rule 56.1. Bledsoe
does not develop an argument on appeal that this decision was an abuse of
discretion, which is the controlling standard. Raymond v. Ameritech, Corp., 442
F.3d 600, 604 (7th Cir. 2006). But even if we had decided that this excluded
evidence was properly before the district court, it would not have been helpful to
Bledsoe’s case. Initially, Bledsoe refers to an assertion contained in his affidavit
that Kobler had postal inspectors arrest Bledsoe for a crime. He argues that this is
evidence of Kobler’s “retaliatory bias” against him. (Appellant’s Br. 26)
Although under Fed. R. Evid. 404(b) other-acts evidence can be relevant to
prove motive or intent in a discrimination or retaliation case, see Manuel v. City of
Chicago, 335 F.3d 592, 596 (7th Cir. 2003); Molnar v. Booth, 229 F.3d 593, 603–04
No. 05-3999 Page 5
(7th Cir. 2000), the evidence still must contain sufficient detail to be probative, see
Manuel, 335 F.3d at 596–97 (concluding that lack of specificity in employee’s
evidence of employer’s other acts of racial discrimination limited evidence’s
probative value). Even assuming that Kobler did have inspectors arrest Bledsoe,
Bledsoe does not explain how this arrest was retaliatory, let alone present details
sufficient to explain why it means that Kobler’s intention in the separate act of
changing Bledsoe’s work schedule would have been retaliatory.
Bledsoe also refers to his response to the Postal Service’s assertion in its
statement of undisputed facts that the co-worker Cain conducted a time study of
Bledsoe’s Monday route. Bledsoe responded that Cain had performed the wrong
kind of time study because it was a “Letter Carrier Route evaluation” and Bledsoe
was “a Special Delivery Messenger/Clerk, in a separate and distinct craft.” (R. 28 at
8.) Bledsoe fails to explain his reasoning as to why he is qualified to say that Cain
performed the wrong kind of time study. The excluded response might be relevant
to the causation issue if it demonstrated that Kobler knew the proffered reason for
the schedule change (the result of the time study) was baseless. Reeves v.
Sanderson Plumbing Products, Inc., 530 US 133, 147 (2000) (evidence that
employer’s asserted reason for action is false permits inference of unlawful motive).
But Bledsoe has failed to present any evidence that Kobler was aware that his
decision to change Bledsoe’s schedule was based on faulty data. Thus, this
argument is without merit.
Finally, Bledsoe cites a decision of the Merit Systems Protection Board
(attached as an exhibit to his affidavit) ordering the Postal Service to rescind a
decision removing him from his job. He asserts that this is evidence that the MSPB
was investigating his “wrongful termination,” (Appellant’s Br. 26), but, as with his
claim about the arrest, Bledsoe does not sufficiently develop the facts surrounding
this incident to defeat summary judgment. The MSPB decision does not say why
the Board was reinstating Bledsoe or why he was removed in the first place, much
less declare that anyone at the Postal Service, let alone Kobler, was guilty of
retaliation. Therefore, it does not help Bledsoe’s case.
We AFFIRM the district court’s decision.