Plumb v. Potter

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0012n.06
Filed: January 5, 2007
No. 06-1017
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Bruce D. Plumb, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
John E. Potter, Postmaster General, United ) EASTERN DISTRICT OF MICHIGAN
States Postal Service, )
)
Defendant-Appellee. )
Before: CLAY, ROGERS, and SUTTON, Circuit Judges.
ROGERS, Circuit Judge. Plaintiff-Appellant Bruce D. Plumb, a white male, appeals the
district court’s order granting summary judgment to Defendant-Appellee John E. Potter, Postmaster
General, United States Postal Service (“USPS”) on Plumb’s Title VII sex discrimination and
retaliation claims. Plumb alleges that the USPS discriminated against him when Deborah Jarvi, a
female supervisor, denied him a promotion, choosing Nancy Esparza, a female, instead for that
position. Plumb further argues that this denial of a promotion constituted retaliation for an EEO race
discrimination claim that he filed (and that the parties settled) approximately eight years prior to the
time Plumb was denied the promotion. After the USPS moved for summary judgment, the district
court held that Plumb did not establish a prima facie case of sex discrimination, and in the
alternative, that Plumb did not demonstrate that the USPS’s reasons for not promoting him were
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pretext. The district court also held that Plumb failed to establish a prima facie case of retaliation
because Plumb did not show that his denial of the promotion was causally connected to his earlier
EEO complaint.
We affirm the order granting summary judgment to the USPS. Assuming Plumb has
established a prima facie case of sex discrimination, he has not shown pretext. Also, the district
court correctly decided that Plumb did not demonstrate a “causal connection” necessary to make out
a prima facie case of retaliation.
Background
In May of 1993, Bruce D. Plumb, then the Manager of Vehicle Maintenance at the Dearborn,
Michigan Vehicle Maintenance Facility (“VMF”), was shot while at work by a USPS employee that
he supervised. Plumb alleges that, when he returned to work a few days after the shooting, Detroit
District Manager Vernita Martin placed him on worker’s compensation against his will. The USPS
alleges that Plumb’s return to work “was met by strong resistance from those employees who did not
like his management style, some of whom cast blame on [Plumb] personally for the shooting
incident.” Plumb strenuously objects to the USPS’s “blaming” him for the shooting, and notes that
Gregory Gorski, the employee upon whose deposition testimony the USPS relies in making this
claim, also stated that he thought that the union had used the postal shooting as “a tool, leverage”
and that he thought the shooting would have occurred even if Plumb were not the gunman’s
supervisor. Nevertheless, management created a new position for Plumb—Vehicle Maintenance
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Specialist—which was a non-managerial position at pay grade EAS-19.1
Plumb filed an EEO complaint alleging race discrimination. As part of a settlement, the
USPS agreed not to eliminate Plumb’s current job as long as he was working in it, and Plumb agreed
that he would “not seek any managerial or supervisory position at the Dearborn VMF or the
Dearborn Post Office.” The USPS does not allege that the promotion at the center of this lawsuit
fell within the scope of the Settlement Agreement. Plumb has worked as Vehicle Management
Specialist at the Detroit VMF through the time of this lawsuit.
On September 12, 2000, the USPS posted a vacancy announcement for Manager of Vehicle
Maintenance, an EAS-20 position at the Detroit VMF. Deborah Jarvi, as Manager of Operations
Programs Support, was responsible for hiring the Manager of Vehicle Maintenance, and was also
Plumb’s supervisor. Plumb and another male USPS employee, Fred Carmichael, applied for the
position.
On December 7, 2000, Jarvi interviewed both Plumb and Carmichael. Although Jarvi ranked
Carmichael as the better applicant, Jarvi decided to repost the position “to get a wider selection, a
wider pool of candidates,” including candidates from outside of the Detroit area.
1
The record is not clear on when the USPS created this position for Plumb—before, or after,
the EEO suit (discussed below) was settled. Plumb’s deposition testimony suggests that the USPS
did not create this position until after he settled the EEO suit. But the Settlement Agreement itself
implies that the Vehicle Maintenance Specialist position already existed prior to the settlement.
Nonetheless, the chronology of the creation of the position and the EEO suit settlement is not
material to this lawsuit.
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On August 28, 2001, the USPS posted nationwide a vacancy announcement for the position,
but indicated that previous candidates did not need to reapply. Four applicants, in addition to Plumb
and Carmichael, applied. The four new applicants included two applicants from outside of the
Detroit area and Nancy P. Esparza, the woman to whom Jarvi would eventually award the position.
No interviews were conducted after this reposting because the USPS Headquarters decided to repost
the position to allow employees displaced by USPS office closings an opportunity to apply. The six
applicants were notified that they would be required to reapply.
On November 28, 2001, the USPS posted a third vacancy announcement for the Manager of
Vehicle Maintenance position. Only Plumb, Carmichael, and Esparza applied. Each of the three
applicants was or had been detailed into the Manger of Detroit Vehicle Maintenance position—i.e.,
temporarily assigned to the position.
On January 9, 2002, Jarvi interviewed each candidate. Lee Ward, a male USPS human
resources employee, observed the interviews “to ensure that [interview] procedures were followed
correctly.” Ward was not involved in the decision-making process, but did note that Esparza and
Carmichael were more “engaging” than Plumb and that Plumb did not provide “follow-through on
a lot of the questions . . . as complete[ly] as the others.”
On January 25, 2002, Jarvi recommended that Esparza be promoted to Manager of Vehicle
Maintenance. On January 30, Jarvi’s recommendation was approved by John Talick, Manager of
the Detroit District. Jarvi wrote in her recommendation form that although Plumb and Carmichael
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had “extensive backgrounds in VMF operations as they pertain to technical skills, neither candidate
. . . demonstrated strong managerial skills.” On the other hand, Jarvi wrote that “Esparza has some
technical background in VMF operations and an extensive managerial background.” Jarvi also
justified her recommendation by noting that Esparza interviewed better, gave better answers to
interview questions, and had performed better when detailed into the position.
On February 7, 2002, Plumb requested an appointment with a USPS Dispute Resolution
Specialist for EEO counseling, and a few days later filed a pre-complaint counseling form indicating
his belief that, by failing to promote him, Jarvi discriminated against him on the basis of sex and age,
and retaliated against him for his prior EEO activity. On May 9, 2002, Plumb filed an EEO
complaint, and in May of 2004, the USPS issued a final agency decision closing the case with a
finding of no discrimination or retaliation.
On July 30, 2004, Plumb filed this lawsuit against the USPS in the United States District
Court for the Eastern District of Michigan, bringing claims of sex discrimination, age discrimination,
and retaliation, in violation of state and federal law. Plumb dropped the state law claims in his first
amended complaint, and he later agreed to dismiss the age discrimination claim. On August 15,
2005, the USPS moved for summary judgment.
The district court granted the USPS’s motion and ordered summary judgment in its favor on
both the sex discrimination and retaliation claims. With respect to Plumb’s sex discrimination claim,
the district court first held that Plumb’s purported direct evidence of discrimination—a comment
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made by Jarvi saying that the VMF needed more diversity—did not in fact constitute direct evidence
because a trier of fact would need to make inferential steps in order to conclude that Jarvi
discriminated against Plumb on the basis of his sex. Second, the district court held that Plumb did
not establish a prima facie case of sex discrimination because Plumb was not similarly-situated to
Esparza with respect to managerial experience. In the alternative, the district court held that even
if Plumb had established a prima facie case, the USPS articulated a legitimate, nondiscriminatory
reason for choosing Esparza over Plumb: Jarvi evaluated Esparza as the superior candidate “based
on her application, her performance as the acting Manager of Detroit Vehicle Maintenance, and the
strength of her interview.” The district court further held that none of Plumb’s evidence—that Jarvi
made the “diversity” comment, that Jarvi had a better relationship with female employees, that Jarvi
was going through a difficult divorce, that he received inferior office furniture, that he claimed to
be more qualified than Esparza, that Jarvi reposted the position and that the position remained vacant
for a long time, that Jarvi violated USPS procedures in selecting Esparza, and that Esparza
performed poorly once in the job—demonstrated pretext.
Finally, the district court held that Plumb did not establish a prima facie case of retaliation
because he did not show a causal connection between his prior EEO complaint eight years earlier
and Jarvi’s selection of Esparza over him for the Manager of Detroit Vehicle Maintenance position.
The court also held that, assuming Plumb did establish a prima facie case, he did not rebut as pretext
the USPS’s legitimate, nonretaliatory reasons for choosing Esparza over Plumb, for the same reasons
given with respect to Plumb’s sex discrimination claim.
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On December 22, 2005, Plumb filed a timely notice of appeal.
Standard of Review
This court reviews de novo the district court’s order granting summary judgment. Wright v.
Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). This court may uphold the grant of a motion
for summary judgment only “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 a judgment as a matter of law.” Fed. R. Civ. Proc. 56(c).
Summary judgment is not appropriate “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). With
respect to Plumb’s evidence, we must draw all “justifiable inferences” in his favor. See id. at 255.
Discussion
Plumb cannot prevail on his sex discrimination and retaliation claims. Therefore, the district
court correctly granted the USPS’s motion for summary judgment.
1. Title VII Sex Discrimination
Plumb has not established a case of sex discrimination, and therefore, the district court
correctly granted summary judgment to the USPS. Title VII prohibits the USPS from failing to
promote an employee because of his sex. 42 U.S.C. § 2000e-16(a) (“All personnel actions affecting
employees or applicants for employment . . . in the United States Postal Service . . . shall be made
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free from any discrimination based on . . . sex.”); see Harper v. Frank, 985 F.2d 285, 287 (6th Cir.
1993); see also 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an
employer . . . to fail or refuse to hire . . . any individual . . . because of such individual’s . . . sex.”).
Plumb can maintain a sex discrimination claim by producing either direct or circumstantial evidence
of discrimination. White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 238 (6th Cir. 2005).
a. Direct Evidence
Plumb does not successfully present direct evidence of sex discrimination. “[D]irect
evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination
was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare
Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999). Plumb argues that Jarvi made a comment
along the lines of “that’s what we need in the VMF, a little more diversity,” JA 126 (Jarvi Dep. at
88); JA 163 (Plumb Dep. at 66), during a September 2001 meeting, in response to learning that an
African-American female had received a position within the VMF. Plumb argues that Jarvi’s
comment is direct evidence of sex discrimination. However, as the district court noted, even if a jury
were to believe Plumb’s evidence, the jury would still need to make two inferences in order to
conclude that Jarvi discriminated against Plumb on the basis of his sex: “First, the trier of fact must
infer that Jarvi’s personal preference for female employees causes her to generally discriminate
against males in violation of federal law. Second, the trier of fact must infer that this general
tendency caused her to discriminate against [Plumb].” Plumb v. Potter, No. Civ. 04-72902, 2005
WL 2739328, at *3 (E.D. Mich. Oct. 24, 2005). In other words, a jury could find that Jarvi believed
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that it was good to have more women working at the USPS, yet still conclude that Jarvi did not let
that personal belief interfere with her decision whether or not to promote a woman over Plumb.
Such necessary inferences remove this comment from the realm of direct evidence. See White, 429
F.3d at 239 (concluding that no direct evidence of discrimination where even if a jury were to believe
an employer’s comment that he wanted a “grass roots guy” for an open position, a conclusion of
discrimination was not compelled). Thus, Jarvi’s comment does not constitute direct evidence of
sex discrimination.
b. Indirect Evidence
Plumb’s reliance on indirect or circumstantial evidence of sex discrimination similarly is
insufficient to withstand summary judgment. Because Plumb relies on indirect evidence of
discrimination, we must traverse the McDonnell Douglas three-part burden-shifting test. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973). First, Plumb must establish a
prima facie case of sex discrimination. See id. at 802; White, 429 F.3d at 240. Second, if Plumb
successfully establishes his prima facie case, the burden shifts to the USPS to proffer a legitimate,
nondiscriminatory reason for failing to promote Plumb. See McDonnell Douglas, 411 U.S. at 802.
Finally, if the USPS is successful, the burden shifts back to Plumb to show that the USPS’s proffered
reason is a pretext for discrimination. See id. at 804; White, 429 F.3d at 245.
i. Prima Facie Case
Because Plumb has not shown sufficient evidence of pretext, it is not necessary for us to
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resolve the preliminary question of whether Plumb established a prima facie case of sex
discrimination in the first place. The district court held that Plumb had not, but that conclusion is
at least questionable. To establish a prima facie case of sex discrimination, Plumb must show that
“(1) [he] is a member of a protected class; (2) [he] applied for and was qualified for a promotion;
(3) [he] was considered for and was denied the promotion; and (4) an individual of similar
qualifications who was not a member of the protected class received the job at the time [Plumb’s]
request for the promotion was denied.” White, 429 F.3d at 240. However, because Plumb is not a
member of a protected class, this is a so-called “reverse-discrimination” case and instead of the first
requirement above, Plumb must show that “background circumstances support the suspicion that the
[USPS] is that unusual employer who discriminates against the majority” and that the USPS “treated
differently employees who were similarly situated but not members of the protected group.” Yeager
v. Gen. Motors Corp., 265 F.3d 389, 397 (6th Cir. 2001) (internal quotations omitted).
The USPS concedes that Plumb has satisfied the first three requirements. Plumb also
arguably satisfied the fourth element of the prima facie case—Esparza was an individual of similar
qualifications who received the promotion that Plumb was denied. As recognized by Jarvi, both
Plumb and Esparza had decades of experience at the USPS. JA 284 (28 years for Esparza; 34 years
for Plumb). At the time Plumb was denied the promotion, he had a position at grade EAS-19,
whereas Esparza held a position at the lower grade EAS-16. Both Plumb and Esparza had thirteen
years of managerial experience. In addition, according to Jarvi, Plumb had an “extensive
background[] in VMF operations [with respect] to technical skills” whereas Esparza merely had
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“some technical background in VMF operations.” JA 285.
Despite this evidence, the district court concluded that Plumb was not similarly situated to
Esparza because Esparza’s managerial experience was current, while Plumb’s managerial experience
ended in 1990. In effect, the district court relied on one of Jarvi’s reasons for choosing Esparza over
Plumb to hold that Plumb was unable to establish a prima facie case. Such a comparison risks
“conflating the first (prima facie case) and second (articulation of a legitimate non-discriminatory
reason) steps in the McDonnell-Douglas analysis.” White, 429 F.3d at 242 (emphasis omitted). In
White, this court held that employees were not similarly situated where one employee had seventeen
years of security experience, vast investigation experience, and vast managerial experience; and the
other had seven years of security experience, minimal investigation experience, and minimal
managerial experience. 429 F.3d at 243-44. Here, the differences between Plumb and Esparza are
much smaller, and thus arguably sufficient to show that Plumb and Esparza were similarly situated.
In addition, in its motion for summary judgment, the USPS conceded that Plumb established a prima
facie case of discrimination, including this similarly-situated element. JA 63 (Motion for Summary
Judgment at 16 n.6). We therefore do not rely, as the district court did in the alternative, on the
absence of a prima facie case of sex discrimination.
ii. Legitimate, Nondiscriminatory Reason & Pretext
Assuming that Plumb established a prima facie case, he failed to rebut as pretext the USPS’s
legitimate, nondiscriminatory reason for denying him the promotion. The USPS articulated a
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legitimate, nondiscriminatory reason for denying Plumb the promotion because Jarvi determined that
Esparza interviewed better than Plumb, “was able to verbally express how she manages her
employees on a day to day basis” (while, in contrast, Jarvi noted that Plumb “was unable to articulate
verbally his managerial abilities”), and performed better than Plumb when temporarily detailed into
the Manager of Vehicle Maintenance position. Later, Jarvi also noted that “Plumb was not selected
due to the fact [that] he had not been in any other managerial position since his assignment to his
current position.” JA 300 (EEO Investigative Aff.).
Plumb puts forward a number of arguments why the USPS’s reason was a pretext for
discrimination. Plumb can show pretext “(1) by showing that the proffered reason had no basis in
fact; (2) by showing that the proffered reason did not actually motivate the [USPS’s] conduct, or (3)
by showing that the proffered reason was insufficient to warrant the challenged conduct.” White, 429
F.3d at 245. Each argument Plumb advances is legally insufficient.
First, Plumb’s argument that he was more qualified than Esparza and that Jarvi ignored
objective criteria is not evidence of pretext. Plumb notes that he was at a higher pay grade than
Esparza (EAS-19 versus EAS-16), that he had more managerial experience than Esparza,2 that
Plumb had 14 years of “supervision experience” in the VMF whereas Esparza had never held a
permanent managerial position in the VMF, and that Plumb’s job application described “two and a
2
In his brief, Plumb states that he had twenty years of managerial experience, but the record
supports only that Plumb had thirteen years of managerial experience. Plumb appears to count his
current position as Vehicle Maintenance Specialist, which is a non-managerial position.
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half pages of education and training, most of which is VMF related,” while Esparza’s application
listed “one page of work-related education and training, none of it VMF related.” Although an
employee might possibly show that his qualifications for a position were so objectively superior to
the qualifications of the individual that the employer chose for that position such that a reasonable
juror could infer pretext, see, e.g., Millbrook v. IBP, Inc., 280 F.3d 1169, 1180-81 (7th Cir. 2002);
Toledo v. Jackson, No. 05-6938, 2006 WL 3390332, at *2 n.4 (6th Cir. Nov. 20, 2006)
(unpublished), this is not such a case. As discussed above, the qualifications of Plumb and Esparza
were comparable, and Jarvi chose Esparza based on her better interview and her superior
performance during the temporary detail.3 Plumb’s subjective belief that he was more qualified than
Esparza is insufficient to demonstrate pretext. See Briggs v. Potter, 463 F.3d 507, 516-17 (6th Cir.
2006).
Second, Plumb argues that Jarvi’s failure to follow certain USPS policies during the hiring
process shows pretext. Plumb refers to two policies with which Jarvi did not comply: (1) a goal of
filling vacant positions within 16 days of a vacancy announcement; and (2) a policy of not hiring an
employee for a position if that employee has filled that position temporarily for more than 120 days.
3
Plumb attacks the USPS’s proffered reason because it is “subjective, subject to the creative
whims of the interviewer.” Although this court recognizes that “subjective reasons provide ‘ready
mechanisms for discrimination,’” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 461 (6th Cir.
2004) (quoting Grano v. Dep’t of Dev. of City of Columbus, 699 F.2d 836, 837 (6th Cir. 1983)), here,
these concerns are lessened because Ward, a male human resources employee who observed each
of the interviews, agreed that Esparza’s performance during her interview was superior to Plumb’s
performance during his.
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Plumb’s argument with respect to the 16-day goal fails because this was not a formal policy, but
simply a goal—one that simply was not attained during the hiring for this position. JA 463 (“The
District’s goal is to finalize EAS selections within 16 days from the date of this letter.” (emphasis
added)). Plumb’s argument with respect to the 120-day rule fails because Plumb has not shown how
any deviation from this rule demonstrates pretext. See Briggs, 463 F.3d at 516 (“The Postal Service
has offered reasonable explanations for any minor deviations from established procedure . . . , and
Briggs has not explained how any of these alleged procedural irregularities prejudiced him in the
selection process or indicate ‘any dishonesty or bad faith’ on behalf of the Postal Service.” (quoting
Williams v. Columbus Metro. Hous. Auth., 90 Fed.Appx. 870, 876 (6th Cir. 2004))). Esparza
initially applied for the promotion before she was in the temporary detail for 120 days, but because
the position was reposted, Esparza remained in the temporary position for more than 120 days. The
Human Resources Department waived the 120-day rule requirement in this case, and Plumb does
not show how this process demonstrates pretext.
Third, Plumb argues that Esparza’s poor performance after obtaining the Manager position
demonstrates pretext. Plumb argues that Esparza failed five out of six “model audits” (i.e.,
performance evaluations). Plumb does not refer to any case law suggesting that an employee’s poor
performance after obtaining a promotion demonstrates that the decision to promote that employee
was pretext. At most, Plumb’s evidence shows that Jarvi and the USPS may have made a bad
business decision by hiring Esparza instead of Plumb. But this does not demonstrate that Jarvi’s
reasons for hiring Esparza were pretext for unlawful discrimination.
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Fourth, Jarvi’s comment that the VMF needed more diversity (discussed above) is not
evidence of pretext. This court has held that isolated or ambiguous remarks are not evidence of
pretext. See, e.g., Phelps v. Yale Sec., Inc., 986 F.2d 1020, 1025-26 (6th Cir. 1993). Here, although
Jarvi’s comment allegedly was made during the general time frame of the selection process, it was
made several months before the candidates were interviewed and a decision was made. Also, the
alleged comment was too ambiguous to establish an inference of discrimination. See id. at 1026.
A reasonable jury could not conclude that Jarvi’s “diversity” comment, made months before the
decision to hire Esparza, proves that Jarvi chose to promote Esparza rather than Plumb because of
Plumb’s sex, instead of on the basis of the nondiscriminatory reasons Jarvi gave for the decision.
Finally, Plumb makes a number of other arguments that the USPS’s purported legitimate
reason for choosing to promote Esparza over himself was pretextual.4 However, none of Plumb’s
arguments show that the USPS’s “proffered reason had no basis in fact; . . . did not actually motivate
the [USPS’s] conduct, or . . . was insufficient to warrant the challenged conduct.” See White, 429
F.3d at 245. Therefore, Plumb has not shown that the USPS’s proffered reason for promoting
4
Plumb points to the following evidence: (1) Jarvi excluded Plumb from meetings and
training sessions; (2) Jarvi rarely communicated with Plumb and had other employees give Plumb
instruction instead of doing so herself; (3) Jarvi “spoke more freely” with female subordinates than
with Plumb; (4) Jarvi was going through a rough divorce; (5) Plumb was given a “hand-me-down”
desk and office equipment; (6) Plumb’s position was not given a pay scale upgrade, whereas all other
managerial positions at the Detroit VMF received upgrades; (7) Jarvi selected Esparza and
Carmichael for temporary detail in the Manager position before Plumb, even though Plumb was a
higher pay grade; (8) the USPS settled a sex discrimination claim by Carmichael against Jarvi for
the same incident; (9) Ward observed the interviews, which was unusual; and (10) the position was
twice reposted, and Jarvi could not give a good reason for why she decided to repost the position the
first time.
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Esparza instead of him was a pretext for discrimination.5
2. Title VII Retaliation
Plumb cannot maintain a claim under Title VII for retaliation because he cannot establish a
prima facie case. Title VII prohibits an employer from retaliating against an employee for filing an
EEO complaint. See 42 U.S.C. § 2000e-3(a). For a claim of retaliation under Title VII, the same
McDonnell Douglas burden-shifting framework discussed above with respect to discrimination
applies. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563-64 (6th Cir. 2004). To
establish a prima facie case of retaliation, Plumb must show that “(1) [he] engaged in activity
protected by Title VII; (2) this exercise of protected rights was known to [the USPS]; (3) [the USPS]
thereafter took adverse employment action against [Plumb] . . . ; and (4) there was a causal
connection between the protected activity and the adverse employment action.” Morris v. Oldham
County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000) (emphasis omitted).
Plumb can easily satisfy the first three elements of the prima facie case. First, Plumb engaged
in activity protected by Title VII when he filed his prior EEO complaint against the USPS, which
the parties then settled in May of 1995. Second, both the USPS generally, and Jarvi specifically,
knew of Plumb’s prior EEO complaint and the resulting settlement. Third, the USPS took an
adverse employment action against Plumb when it denied him the promotion to Manager of Vehicle
5
Because Plumb cannot demonstrate pretext, we do not address the USPS’s alternate
argument that Plumb cannot show that he would have been promoted “but for” his sex because Jarvi
ranked Carmichael, a male, ahead of Plumb.
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Maintenance.
Plumb does not establish the final element of the prima facie case—a causal connection
between his EEO complaint/settlement and the denial of the promotion. To establish a causal
connection, Plumb “must produce sufficient evidence from which an inference can be drawn that the
[USPS] took the adverse employment action because” of Plumb’s prior EEO complaint. Singfield,
389 F.3d at 563. The time difference between these two incidents—eight years—is too long to
permit an inference of causal connection absent some other evidence.6 See, e.g., Nguyen v. City of
Cleveland, 229 F.3d 559, 566-67 (6th Cir. 2000) (“[P]revious cases that have permitted a prima facie
case to be made based on the proximity of time have all been short periods of time, usually less than
six months.”).
Plumb argues, without relying on case support, that he established a causal connection for
two reasons: (1) “there is a continuity between the 1994 EEO settlement and the 2001 denial of
promotion”; and (2) “there were no prior instances or opportunities for Mr. Plumb to seek promotion
until 2000-2001.”
Plumb’s first argument is basically that management blamed him for the 1993 shooting and
intended to prevent him from managing employees again in the future. But, as the district court
noted, “[t]he Court’s role is to determine [whether] a violation of federal law occurred, not whether
6
In his Reply Brief, Plumb argues for the first time that the time difference is only six years.
Regardless, six years is still too long to permit an inference of causal connection.
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an employer’s actions were right or wrong in an abstract moral sense.” Plumb does not refer to any
evidence suggesting that the USPS or Jarvi denied him the promotion because of his prior EEO
activity.
Plumb’s second argument is similarly without merit. Plumb argues that the eight-year time
difference between his EEO activity and the promotion denial is misleading because he “never had
the opportunity to test the bounds of the EEO settlement until 2000-01,” and, therefore, this “creates
a factual distinction unique from any case cited by [the USPS] as to time limits on causal
connection.” In other words, Plumb argues that because the USPS did not have an opportunity to
retaliate against him sooner, the large time difference is unimportant. The time difference between
an employee’s exercise of protected activity and an adverse employment action that an employer
takes against that employee is important not in some abstract sense, but because it may permit a jury
to infer retaliation if there is a close temporal proximity. The fact that the USPS did not have an
earlier opportunity to retaliate against Plumb does not affect this inference. Plumb has offered no
evidence to suggest that the USPS has been lying in wait for all this time, ready to pounce at the first
opportunity Plumb took to move up in the organization. Therefore, the fact that the USPS had no
prior opportunity to retaliate against Plumb does not change the fact that a rational jury could not
infer from the eight-year time difference that he was denied the promotion because of his prior EEO
complaint and settlement.
Because Plumb has not demonstrated a causal connection between Jarvi’s selection of
Esparza over him for the promotion and his EEO complaint and settlement, Plumb has not
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No. 06-1017
Plumb v. Potter
established a prima facie case of retaliation. But even assuming Plumb could establish a prima facie
case, he could not satisfy the remainder of the McDonnell Douglas test for the reasons stated above
with respect to discrimination. Therefore, the district court properly granted summary judgment to
the USPS on Plumb’s retaliation claim.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s order granting summary judgment
to the USPS.
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