Shidaker v. Carlin

Decision Date29 January 1986
Docket NumberNo. 84-2791,84-2791
Citation782 F.2d 746
Parties39 Fair Empl.Prac.Cas. 1768, 39 Empl. Prac. Dec. P 35,884, 54 USLW 2430 Darlene SHIDAKER, Plaintiff-Appellant, v. Paul N. CARLIN, in his capacity as Postmaster General (United States Postal Service), Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Stephen G. Seliger, Chicago, Ill., for plaintiff-appellant.

E. Roy Hawkens, Dept. of Justice, Civ. Div., Washington, D.C., for defendant-appellee.

Before CUMMINGS, Chief Judge, and BAUER and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

This is an appeal by Darlene Shidaker from an adverse judgment entered below in favor of Paul N. Carlin in his capacity as Postmaster General of the United States Postal Service. Shidaker, a postal employee, claims that the Postal Service denied her a promotion because she is a woman and then demoted her for challenging that promotion denial as discriminatory. We reverse and remand for further consideration the district court's finding that Shidaker's promotion denial was not discriminatory. We affirm, however, the district court's finding that Shidaker's demotion was not retaliatory.

I.

Shidaker was Acting Postmaster and then Postmaster of Kenilworth, Illinois from 1962 through 1982. In this position she was in pay scale category PES-18.

In 1977 Shidaker applied for vacant postmaster positions at Glenview, Palatine, and Franklin Park, Illinois. These positions were PES-22 positions. Ninety-two postal employees (the Postal Service follows a policy of promoting from within) applied for the vacant postmaster positions. Shidaker was the only female applicant. Shidaker was not promoted to any of the positions. The lower court found that two of the men who were promoted were better qualified than Shidaker and that the other promotee was as qualified as Shidaker.

In 1978 Shidaker filed an Equal Employment Opportunity ("EEO") complaint alleging that she was denied promotion to the PES-22 postmaster positions on the basis of sex. In 1980 an Equal Employment Opportunity Commission Complaint Examiner held a hearing on Shidaker's complaint. In September 1982 the Complaint Examiner issued a decision on the complaint finding that Shidaker was denied promotion on the basis of sex. In October 1982 the Postal Service's Regional Director for Employment and Labor Relations Central Region notified Shidaker that the Postal Service was rejecting the Examiner's decision.

On February 8, 1982 Shidaker received a "Proposed Notice of Reduction in Grade" from her immediate supervisor, Frank J. Santoro. Santoro's notice proposed that Shidaker be reduced from Postmaster, Kenilworth, PES-18, to distribution clerk, PES-5, because of alleged official misconduct. The notice informed Shidaker that she had the right under Postal Service regulations to answer the charges in the notice. The notice told her to direct her response to Santoro's superior, Richard Koenigs, District Manager of the Northern Illinois District, the official who would initially decide whether the demotion would occur.

Shidaker responded to Santoro's notice in two ways: she sent a letter to Koenigs answering the charges, and she filed a second EEO complaint. This complaint alleged that the proposed reduction in grade was in retaliation for her filing the first complaint challenging the promotion denial.

After Shidaker had answered Santoro's charges in her letter to Koenigs, Santoro wrote Koenigs a personal letter. In his letter Santoro responded to Shidaker's answers, alleged an additional ground for demoting Shidaker, and urged Koenigs to approve Shidaker's reduction in grade "for the good of the Service." Shidaker was unaware of this letter until after Koenigs approved her demotion.

Shidaker was eventually demoted to distribution clerk, PES-5. Shidaker filed an administrative appeal with the Postal Service from this reduction in grade and was accorded a full de novo hearing before a hearing officer appointed to examine the merits of her appeal. Shidaker was given a chance to respond to all charges and evidence including Santoro's letter to Koenigs. After the hearing, the Postal Service informed Shidaker by letter that the charges against her were supported by the evidence and that the demotion was warranted.

Shidaker sued the Postal Service in the United States District Court for the Northern District of Illinois, Eastern Division. Her complaint is in two counts. Count I alleges discriminatory failure to promote under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16 and 39 U.S.C. Sec. 409. Count II seeks review of Shidaker's administrative appeal of her demotion.

The district court made findings adverse to Shidaker on both counts and entered judgment accordingly. As regards Count I, the district court found that Shidaker failed to establish a prima facie case of discriminatory impact. The court found that Shidaker did make a prima facie showing of disparate treatment, but also found that the Postal Service demonstrated legitimate nondiscriminatory reasons for not promoting Shidaker that were not pretextual. Shidaker's discrimination count was thus found to be without merit. As regards Count II, the district court found that there was substantial evidence to support the Postal Service's finding that Shidaker was demoted for misconduct and poor performance and not in retaliation for challenging her promotion denial. The court also found that the Postal Service's administrative review of Shidaker's appeal was in adequate compliance with its own procedural regulations. This appeal followed.

II.

Shidaker makes two main arguments on appeal, one charging error in the trial court's treatment of her discrimination claim and the other charging error in its treatment of her retaliation claim. First, Shidaker argues that the district court erroneously found that she failed to make a prima facie showing of discriminatory impact. She argues that when an employer follows the policy of promoting from within (that is, fills high level positions with lower level employees rather than bringing in "laterals"), a plaintiff need only show statistical evidence of an imbalance between the percentage of a minority occupying high level positions and the percentage of that minority occupying lower level positions in order to make a prima facie case of discriminatory impact. Second, Shidaker claims that Santoro's letter to Koenigs was an ex parte communication that violated the Postal Service's regulatory procedures and denied Shidaker due process of law.

We agree with Shidaker that she made an adequate prima facie showing of discriminatory impact. We therefore reverse the district court's findings and judgment to the contrary, and remand Shidaker's discriminatory impact claim for further consideration. We affirm the district court's judgment in all other respects, however, including its finding that despite Santoro's letter to Koenigs the Postal Service adequately complied with its own procedural regulations when demoting Shidaker.

A.

The district court incorrectly found that Shidaker failed to make a prima facie showing of discriminatory impact. Once Shidaker proved that the Postal Service promotes from within and introduced statistical evidence showing that there is a gross disparity between the percentage of women occupying lower level positions and upper level positions, 1 she made a sufficient prima facie showing of discriminatory impact. She need not, as the district court apparently thought, Shidaker v. Bolger, 593 F.Supp. 823, 835 (N.D.Ill.E.D.1984), make a further showing of the percentage of female applicants for upper level positions or the percentage of lower level female employees qualified for upper level positions.

To make a prima facie showing of discriminatory impact Shidaker need only present evidence that the Postal Service's promotion practices, although facially neutral, select promotees "in a significantly discriminatory pattern". Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). This evidence may be, and most often is, statistical in nature. New York City Transit Authority v. Beazer, 440 U.S. 568, 584, 99 S.Ct. 1355, 1365, 59 L.Ed.2d 587 (1979); Teamsters v. United States, 431 U.S. 324, 339-40, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396 (1977). Only in very limited instances may a court find discriminatory impact from non-statistical evidence. Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977); Carpenter v. Board of Regents, 728 F.2d 911, 914 (7th Cir.1984).

Gross disparity between the racial or gender composition of the relevant labor pool and the composition of the group occupying the positions in question can, by itself, make a prima facie case of disparate impact. Mozee v. Jeffboat, 746 F.2d 365, 372 (7th Cir.1984); Clark v. Chrysler, 673 F.2d 921, 927 (7th Cir.1982), cert. denied, 459 U.S. 873, 103 S.Ct. 161, 74 L.Ed.2d 134 (1982); Movement for Opportunity and Equality v. General Motors, 622 F.2d 1235, 1244-45 (7th Cir.1980); See also, Hazelwood School District v. United States, 433 U.S. 299, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977). Where a company is shown to promote from within, the relevant labor pool for upper level positions is the group of employees from which promotees will be drawn. Hazelwood, 433 U.S. at 308 n. 13, 97 S.Ct. 2742 n. 13; Mozee v. Jeffboat, 746 F.2d 365, 372 (7th Cir.1984); Movement for Opportunity and Equality v. General Motors, 622 F.2d 1235, 1258 (7th Cir.1980); Paxton v. Union National Bank, 688 F.2d 552, 563-64 (8th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1772, 76 L.Ed.2d 345 (1983); Fisher v. Procter & Gamble Mfg., 613 F.2d 527, 544 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101 S.Ct. 929, 66 L.Ed.2d 845 (1981). Thus, where the plaintiff can show that the...

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