Pafford v. Herman
| Decision Date | 29 July 1998 |
| Docket Number | No. 96-4241,96-4241 |
| Citation | 148 F.3d 658 |
| Parties | 74 Empl. Prac. Dec. P 45,548 Ester V. PAFFORD and Thomas A. Krudy, Trustee in Bankruptcy for the Estate of Ester V. Pafford, Plaintiffs-Appellants, v. Alexis M. HERMAN, Secretary of Labor, 1 Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard L. Darst (argued), Mantel, Cohen, Garelick, Reiswerg & Fishman, Indianapolis, IN, for Plaintiffs-Appellants.
Tim A. Baker (argued), Office of the United States Attorney, Indianapolis, IN, for Defendant-Appellee.
Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.
Ester V. Pafford, formerly a Wage and Hour Compliance Specialist ("Wage-Hour Investigator") in the Wage and Hour Division of the Indianapolis District Office of the United States Department of Labor, filed suit against the Department of Labor under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming denial of training and promotion from a GS-9 to a GS-11 2 based on her race (Filipino) and national origin (Philippines), and retaliation. Pafford also sought review of the Merit Systems Protection Board's decision affirming her termination. The district court granted summary judgment in favor of the Department of Labor and Pafford appeals. We affirm.
The Wage and Hour Division of the Department of Labor (the "DOL") enforces employer compliance with federal laws governing employee wage rates, working hours, and fringe benefits. An employer often comes under the scrutiny of the DOL in response to an employee's complaint, which is investigated by a Wage-Hour Investigator. Cases involving "common types of clear-cut violations" of federal labor laws are assigned to GS-9 investigators, whereas "cases involving substantial difficulty, requiring resourcefulness in establishing facts and a need for judgment in interpreting and applying the laws" are assigned to GS-11 investigators.
In June 1987 Pafford, a Filipino female, was hired as a GS-7 Wage-Hour Investigator in the Wage and Hour Division of the Indianapolis District Office of the DOL. Connie Klipsch (Caucasian), the Assistant District Director and Pafford's direct supervisor, promoted Pafford from a GS-7 to a GS-9 in September 1988. Although Klipsch began supervising Pafford when she was hired in 1987, Pafford alleges that it was not until Klipsch was promoted to District Director in 1989 that the discrimination began.
As a GS-9 investigator, Pafford was expected to "independently complete" cases assigned to her, which involved developing the necessary information by interviewing employers and employees, analyzing the pertinent business records, and determining the wage and hour laws applicable to the facts of the case; computing back pay owed by the employer to his or her employees; and negotiating directly with the employer's representative to recover back pay and ensure future compliance.
Pafford consistently received within-grade pay increases and annual performance reviews rating her performance as satisfactory on a scale of "outstanding," "highly effective," "satisfactory," "minimally satisfactory," and "unacceptable." However, she was advised of various performance deficiencies along the way. For example, in March 1989 Klipsch rated Pafford's performance as satisfactory, but according to Klipsch's memorandum to the file, Klipsch informed Pafford that she was spending too much time resolving individual cases. Klipsch advised Pafford that although she would be eligible for promotion to GS-11 in the Fall based on her length of service as a GS-9, Klipsch did not believe Pafford would be ready for the promotion. According to the memorandum, Pafford agreed and requested more time to improve her performance before being considered for promotion. As anticipated, Klipsch did not recommend Pafford's promotion in the Fall of 1989 allegedly because Pafford was still experiencing difficulty working independently, frequently requesting assistance from her colleagues and Klipsch.
In June 1989 Klipsch was promoted to District Director of the Indianapolis District Office, and Raymond Wyzguski was assigned to the office as Assistant District Director. In this position, Wyzguski supervised Pafford from August 1989 until February 1991, during which time he also declined to recommend Pafford for promotion to GS-11. He attested that although Pafford received satisfactory performance ratings, "her performance was at the low end of successful, and in some cases, below that level." According to Wyzguski, Pafford was having difficulty performing at the GS-9 level; he claims to have trained and retrained her in Fair Labor Standards Act ("FLSA") policies, interpretations, and investigation procedures, and maintains that he did not assign Pafford to more complex cases involving other laws because she had not mastered the FLSA.
Pafford received another new supervisor in February 1991 when Jane Hooton was promoted to Assistant District Director, replacing Wyzguski. Wyzguski had been designated as the Temporary District Director in November 1990 because Klipsch had become the Quality Advisor, and from January 1, 1991 until December 2, 1991, she worked out of an office on the south side of Indianapolis.
Pafford took a leave of absence from April through early July 1991. Shortly after her return, she received notice of her proposed suspension and was placed on a leave restriction. On July 18, Hooton gave Pafford notice of her proposed suspension (1) for attempting to sell Amway products to the employees of a company she was investigating, (2) for failing to obtain approval for outside employment, and (3) for breaching the DOL's policy of confidentiality by not keeping files within her exclusive control (she left files at her mother-in-law's house) and by allowing a complainant to listen to Pafford's telephone conversation with the complainant's employer. In October 1991, after considering Pafford's response to her proposed suspension, Wyzguski suspended Pafford for fifteen days for the reasons set forth above.
In addition to the suspension, Hooton placed Pafford on a six-month leave restriction due to her "extensive leave usage and unplanned absences" between June 1990 and July 1991. In the course of a single year, Pafford had used 266 hours of annual leave, 98 hours of sick leave, and 255 hours of leave without pay--the majority of which was unscheduled--for a total of 77 days. Pafford worked a full 80-hour pay period only nine times (out of a possible 26) in 1990, and only five times in 1991. Hooton admonished Pafford that she would be charged as absent without leave for failure to comply with the conditions of the leave restriction 3 and that excessive absences without leave could subject her to disciplinary action up to and including termination.
Approximately two weeks after receiving the leave restriction, Pafford filed an informal charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), which was followed by a formal charge about two weeks later. In her formal charge, she alleged that four Caucasian employees hired after her were "developed and upgraded to GS-11," an opportunity she claimed to have been denied because of her race, color, national origin, and age (fifty-five).
Around the time of Pafford's suspension in the Fall of 1991, Hooton told Wyzguski that she was concerned about her safety because of Pafford's behavior. Wyzguski thereafter decided that Pafford should be screened for weapons upon her entry into the federal courthouse where the DOL was located. Although everyone who entered the courthouse was required to pass through the metal detector, employees normally were not stopped even if the alarm sounded. After the weapons screening was instituted, if the metal detector alarm sounded when Pafford walked through, the officers would wave a hand-held metal detector over her body.
Wyzguski submitted a declaration in which he stated that his decision to screen Pafford for weapons was based on the following: his previous referral of Pafford to the Employee Assistance Program for counseling due to her "apparent emotional difficulties"; Pafford coming into his office several times crying about the fact that her son and husband were serving in the Gulf War and her fear that her husband was having an affair; her statement that she had contemplated suicide; the rumor that Pafford owned a gun and carried it with her or on her person; recent news accounts of workplace violence; and Pafford's performance problems, current suspension, and leave restriction. Wyzguski revoked the screening order after about one week.
Wyzguski subsequently spoke with Klipsch, who at the time was still working outside the Indianapolis office but was expected to return to the office shortly as District Director. Wyzguski told Klipsch that he had requested the Marshals Service to screen Pafford for weapons, but that he had halted that screening. At Klipsch's request, Wyzguski provided Klipsch with all the information he had relied upon when he ordered the screening. Klipsch stated that after receiving all the information and considering the safety of the employees at the Indianapolis office, she telephoned Dick McMahon, the Deputy Regional Administrator in Chicago, and discussed her concerns with him. Shortly thereafter, McMahon telephoned Wyzguski and ordered the screening reinstated. On November 27, 1991, Wyzguski asked the Marshals Service to resume screening Pafford.
Upon Klipsch's return to the Indianapolis office in early December 1991, she met with Hooton and Wyzguski on a number of issues, including Pafford's performance. Hooton stated that Pafford was continuing to experience problems applying the law....
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