928 F.2d 407 (7th Cir. 1991), 90-1666, Smith v. Frank

• Citation: 928 F.2d 407
• Party Name: Louis W. SMITH, Plaintiff/Appellant, v. Anthony M. FRANK, Postmaster General of the United States, Defendant/Appellee.
• Case Date: January 24, 1991
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 407

928 F.2d 407 (7th Cir. 1991)

Louis W. SMITH, Plaintiff/Appellant,

v.

Anthony M. FRANK, Postmaster General of the United States, Defendant/Appellee.

No. 90-1666.

United States Court of Appeals, Seventh Circuit

January 24, 1991

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Decided March 14, 1991.

Appeal from the United States District Court for the Western District of Wisconsin, No. 89 C 467, John C. Shabaz, Judge.

W.D.Wis.

AFFIRMED.

Before CUDAHY, EASTERBROOK and RIPPLE, Circuit Judges.

ORDER

Louis Smith, contending that his employer discriminated against him because of his sex, brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. We affirm the district court's grant of summary judgment in favor of the defendant.

I. Background

1. Facts

   The following facts are not contested. Smith began his employment with the Postal Service in 1967. Currently, Smith is the superintendent of postal operations at the Rhinelander Post Office. He has held that position since 1977.

   In 1986 the death of the Rhinelander Postmaster created a vacancy for that position. Postal Service regulations govern the procedures for selection of a new postmaster. Pursuant to the regulations the Division ¹ appointed a review committee to recommend candidates for the position to the selecting official, Evajon Sperling ("Sperling"). After interviewing seven candidates, including the plaintiff, and considering their applications (PS Form 991), the review committee recommended two males, Wilfred Gorke and Paul Trybom, and one female, Darlyn Jackson ("Jackson"), to Sperling as best qualified for the position.

   Even though the committee did not recommend the plaintiff for the position, Sperling was required by postal regulations to consider him for the job because he was the "local eligible" at the Rhinelander office. ² Accordingly, Sperling interviewed the three recommended candidates and the plaintiff on February 19, 1987. Sperling recommended Jackson for the job to Richard Beranek ("Beranek"), the Field Division Manager and individual responsible for the final decision on promotion. Beranek appointed Jackson to the position of postmaster on April 13, 1987.

   II. Analysis

2. Framework

   1. Summary Judgment

   This Court reviews de novo the district court's decision to grant summary judgment. Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1188 (7th Cir.1990). Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if ... there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Trautvetter v. Quick, 916 F.2d 1140, 1147 (7th Cir.1990) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). The non-moving party must affirmatively demonstrate by specific factual allegations that a genuine material fact exists for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). We review the record and all reasonable inferences drawn therefrom in the light most favorable to the non-movant. Randle v. LaSalle Telecommunications Inc., 876 F.2d 563, 567 (7th Cir.1989).

   2. Title VII Disparate Treatment Claim

   Absent direct evidence of discrimination, in a Title VII disparate treatment case the plaintiff must first establish by a preponderance of the evidence aprima facie case of discrimination. Heerdink v. Amoco Oil Co., 919 F.2d 1256, 1258 (7th Cir.1990) (citations omitted). Once the plaintiff establishes a prima facie case, an inference of discrimination arises and the employer can successfully rebut this inference by articulating a legitimate, nondiscriminatory reason for its action. Id. Then, the plaintiff is given the opportunity to show that the defendant's proffered reason was really a pretext for discrimination. Id at 1261. Ultimately, the plaintiff must prove that the employer's discriminatory intent was the "but for" cause of the employer's action. Id. at 9-10.

   In this case, the district court's decision that the plaintiff established a prima facie case is not questioned. The district court found that the defendant articulated legitimate non-discriminatory reasons for not promoting Smith to the position of Rhinelander Postmaster, namely that Smith was not the best qualified for the job and that he performed poorly during his interview. The plaintiff does not contest the district court's finding that the defendant's reasons, if true, constituted legitimate reasons for not promoting him to the job. Thus, the plaintiff was required to demonstrate that the employer's reasons were a pretext for discrimination.

   3. Pretext

   Beranek stated in his declaration that he chose Jackson for the job because she was the best qualified candidate for the position. Beranek based his decision on the "promotion package," ³ Jackson's status as a recommended candidate, and Jackson's experience...