Ezell v. Potter

• Decision Date: 16 March 2005
• Docket Number: No. 03-4099.,03-4099.
• Citation: 400 F.3d 1041
• Parties: Stephen EZELL, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1041

400 F.3d 1041

Stephen EZELL, Plaintiff-Appellant, v. John E. POTTER, Postmaster General, Defendant-Appellee.

No. 03-4099.

United States Court of Appeals, Seventh Circuit.

Argued September 10, 2004.

Decided March 16, 2005.

F. Amin Istrabadi, Anna M. Hearn (argued), Blachly, Tabor, Bozik & Hartman, Valparaiso, IN, for Plaintiff-Appellant.

Joseph S. Reid (argued), Office of the United States Attorney, Hammond, IN, for Defendant-Appellee.

Before FLAUM, Chief Judge, and POSNER and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Stephen Ezell, a longtime employee of the United States Postal Service, sued his employer for race, gender and age discrimination. He contended that he was treated in a disparate manner based on these prohibited factors and also that he was subject to a hostile environment. The district court granted summary judgment in favor of the Postal Service on all of the claims. We affirm in part and vacate and remand for further proceedings in part.

I.

Ezell is a Caucasian man over the age of fifty. He has worked as a letter carrier for the Postal Service since 1972, and has worked in the Valparaiso, Indiana branch since 1988. Ezell's supervisor at the Postal Service during the events leading to this lawsuit was Tangela Wright, an African-American woman. Ezell had an uneasy relationship with Wright that culminated in the Postal Service issuing him a termination letter. According to Ezell, he had an unblemished record at the Postal Service until Wright became his supervisor. Ezell complains that Wright frequently made inappropriate and discriminatory comments based on race, gender and age. Ezell believes that Wright was motivated by race, gender and age in taking an adverse employment action against him based on the following incident.

On March 6, 2001, Ezell was on his route and stopped to buy his lunch at a Wendy's fast food restaurant. Coincidentally, Wright and Mike Pavlides, another Postal Service supervisor, were also out on the road that day and saw Ezell's mail truck parked at the Wendy's restaurant. The parties dispute the timing of events that day, but on summary judgment, we construe all reasonable inferences in favor of the party opposing judgment, in this case Ezell. According to Ezell, he purchased his lunch and returned to his truck promptly. He then drove across the street to a parking lot pay phone where he called his wife and spoke to her for approximately three minutes. He next headed to a convenience store to purchase a newspaper to read during his allotted half hour lunch break, drove to his route and parked his truck. He ate his lunch within the allowed time limit and then sorted the mail in his truck for deliveries to his own route and to an additional route he was covering that day. When he exited his truck to begin the deliveries, he saw that another Postal Service vehicle was parked behind him. As he approached the other vehicle, Wright and Pavlides emerged and began "rifling" through Ezell's truck. They asked him questions about where he was on his route but made no mention of his taking an allegedly overextended lunch period. After inspecting Ezell's truck, Wright and Pavlides left the scene and Ezell continued to deliver the mail.

Six days later, on March 20, 2001, Ezell was called into the office for questioning by Wright and Postmaster David Dew. Ezell's union steward, Mike Daily, was also present for this meeting. Wright and Dew asked Ezell where he had lunch on March 14 and whether it was possible he had taken an extended lunch that day. When Ezell could not recall where he had lunched six days earlier, Wright and Dew treated him as if he were being uncooperative. On April 5, 2001, he was called back into the office and issued a "Notice of Removal" letter. The letter indicated he would be removed from the Postal Service on May 12, 2001, but could counter the termination by filing a grievance with the union steward. The letter, which was signed by both Wright and Dew, specified as the reason for the termination that Ezell had received pay for time not worked. The letter detailed the events of March 14, 2001, from the perspective of Wright and Pavlides. According to their version of Ezell's lunch break that day, Ezell exceeded his thirty minute lunch by another thirty minutes without informing his supervisor of this fact. The letter noted that Ezell received penalty overtime pay that day. According to the letter, Ezell admitted he knew the Postal Service policy on lunch breaks, could not recall the specific events of March 14, 2001, and conceded that he sometimes exceeded his lunch break without notifying management. Citing the Employee and Labor Relations Manual, Wright and Dew concluded that this was a dischargeable offense.

Ezell filed a grievance and won reinstatement. The Notice of Removal letter was withdrawn and in its place, the Postal Service issued a letter of warning. Ezell believed his termination was the result of race, gender and age discrimination by Wright and so on June 4, 2001, Ezell filed a one page "EEO Complaint of Discrimination in the Postal Service." On the form, Ezell listed his supervisor, Tangela Wright, and Postmaster David Dew as the persons who allegedly engaged in discriminatory actions. In an area of the form titled "Type of Discrimination You Are Alleging," Ezell checked boxes for race, sex, age and retaliation. (He has since dropped his retaliation claim.) The other options available to allege the type of discrimination were color, religion, national origin and disability. Ezell left those boxes blank. For the "Date on Which Alleged Act(s) of Discrimination Took Place," Ezell wrote, "4-5-01." The form offered an opportunity to "[e]xplain the specific action(s) or situation(s) that resulted in you alleging that you believe you were discriminated against (treated differently than other employees or applicants) because of your race, color, religion, sex, age (40+), national origin, or disability." In the six lines allotted, Ezell wrote the following:

Black, female supervisor has acted rude, disrespectful and confrontational toward me. She fabricated charges against me to have me fired. I am a white male 51 yrs. old. She has made racist, sexist remarks toward me. She has also made derogatory remarks about my age. I have also given statement in other EEO activities.

R. 2, Ex. A. In response to a question regarding what remedy he sought to resolve his complaint, Ezell specified, "To be made whole. The damage done to me cannot be undone. I want to be returned to the job I love and have performed for 28+ years." R. 2, Ex. A.

Ezell subsequently filed an EEO investigative affidavit further describing the basis of his complaint. R. 30, Ex 2. He again claimed discrimination on the basis of age, sex and race. He cited Tangela Wright as the person who discriminated against him and stated that she based the April 5, 2001 letter of removal on trumped-up charges. Ezell complained that Wright often made derogatory remarks about older mail carriers in general and about him in particular, that she often referred to his gray hair and his slow work. He stated that Wright's co-supervisor, Mike Pavlides, told a new hire that their (Pavlides's and Wright's) plan was to get rid of older carriers and replace them with younger, faster carriers. Ezell complained that Wright was rude, disrespectful, dishonest, confrontational and racist. Ezell attributed a number of comments to Wright that he characterized as racist, although that meaning is not immediately apparent unless one is familiar with Ezell's view of the reputations of the Indiana towns of Gary and Valparaiso. Wright came from Gary, which Ezell characterizes as a primarily African-American city with a reputation for high crime rates. According to Ezell, Valparaiso, colloquially called "Valpo" by residents of Indiana, is primarily populated by Caucasians and has a reputation for a relatively low crime rate. The Valparaiso Post Office employed only a few African-American workers. Ezell reported that Wright threatened to take the Valparaiso workers to Gary for carrier training, taunting them with claims that they would not last a week. Wright complained about being stopped frequently by the police when driving in Valparaiso, and on one occasion, Ezell overheard Wright tell someone on the phone, "These people in Valpo think their shit don't stink." On another occasion, when a Caucasian man was shot and killed in Valparaiso, Wright stated in a joyful tone, "I didn't think there was any crime in Valpo."

Ezell also detailed what he considered to be evidence of Wright's sexism. Wright told the Valparaiso workers, for example, that women with children were faster carriers than men because they wanted to get home to their children. She said that men are lazy and "want to milk all the overtime they can get." Ezell complained that Wright gave favorable assignments to women in the office, and when he told her his feeling about this, she subjected him to "street supervision and intense scrutiny." Ezell also averred that he "found it very uncomfortable to work in an environment where a supervisor is allowed to say, `I'll fire every one of you mother fuckers and hire a whole new crew.'"

Ezell explained that Wright advised another employee to sequence mail in his truck, and then had Ezell fired for performing his job in that same manner. He contends he was sequencing mail in his truck on the day that Wright accused him of extending his lunch past the half-hour limit without adjusting his time card accordingly. That charge, of course, formed the basis for the Notice of Removal. In concluding his EEO affidavit, Ezell asked to "be made whole again, to have these wrongs righted." He characterized the treatment he had received as reprehensible and described his emotional distress as immeasurable. He complained that his reputation among his fellow employees and with the postal patrons ...