Yowell v. U.S. Postal Service

• Decision Date: 16 January 1987
• Docket Number: No. 85-2491,85-2491
• Citation: 810 F.2d 644
• Parties: 42 Fair Empl.Prac.Cas. 1294, 42 Empl. Prac. Dec. P 36,842 Rodney L. YOWELL, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 644

810 F.2d 644

42 Fair Empl.Prac.Cas. 1294,

42 Empl. Prac. Dec. P 36,842

Rodney L. YOWELL, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, et al., Defendants-Appellees.

No. 85-2491.

United States Court of Appeals Seventh Circuit.

Argued Sept. 26, 1986.

Decided Jan. 16, 1987.

Kaaring Salovaara, Jenner & Block, Chicago, Ill., for plaintiff-appellant.

Harold R. Bickham, Asst. U.S. Atty., John Daniel Tinder, U.S. Atty., Indianapolis, Ind., for defendants-appellees.

Before CUMMINGS and CUDAHY, Circuit Judges, and GORDON, Senior District Judge. ^*

MYRON L. GORDON, Senior District Judge.

Plaintiff Rodney L. Yowell, a black male, was employed by the United States Postal Service. He was discharged in late 1980 and brought this Title VII action, alleging that the discharge occurred because of his race. After a bench trial, the district court found that Mr. Yowell had not been fired on account of his race and entered judgment for the defendants. We affirm.

I. BACKGROUND

Rodney Yowell has been employed in a number of capacities, including military service during the war in Vietnam and three separate appointments to the United States Postal Service. For purposes of the instant appeal, we are primarily concerned with the events leading up to his removal from his most recent postal service assignment, which commenced in February 1980. At that time, Mr. Yowell began working as a part-time flexible mail handler. He successfully completed a 90-day probationary period, but he subsequently experienced disciplinary problems for poor attendance and insubordination.

At the time of Mr. Yowell's employment in 1980, the postal service's disciplinary procedure consisted of four formal steps: First, the employee would receive a letter of warning regarding certain unacceptable action. Next, if the offense continued following receipt of the warning letter, the employee would be given a notice of a seven-day suspension. If, upon return from the seven-day suspension, there was no improvement, the employee would be suspended for an additional fourteen days. Only after each of these three steps proved fruitless would the postal service undertake its fourth and final disciplinary step: the issuance of a notice of removal. Supervisors were encouraged, although not required, to hold an informal discussion with any errant employee before initiating the four-step procedure. However, even while the formal process was underway, the employee had an opportunity to appeal each step pursuant to the grievance procedure set forth in the postal service employees' collective bargaining agreement.

The formal disciplinary procedure was pursued to the final step in Rodney Yowell's case. A quick summary of his last months with the postal service illustrates how and why. Mr. Yowell first received a letter of warning dated September 3, 1980, regarding his unsatisfactory attendance. The letter admonished Mr. Yowell that "[c]ontinued irregularities regarding [his] attendance may result in further disciplinary actions." Then, on September 7, 1980, Mr. Yowell refused to dump mail even after he was so instructed by his supervisor. On September 12, 1980, Mr. Yowell received another letter of warning concerning this failure to follow instructions.

Mr. Yowell's attendance was also a continuing source of concern. In October 1980, Mr. Yowell left his job early without permission from his supervisor. Five days later he received a notice of suspension for seven days; the notice referred to the absence without leave (AWOL) of five days earlier and the September letter of warning. Mr. Yowell returned to work one day late following his seven-day suspension. Accordingly, he received another notice of suspension, this one for fourteen days, because of his tardy return and prior attendance problems. Upon returning to work after his second and longer suspension, Mr. Yowell refused to attend a mandatory safety meeting.

On Thanksgiving Day, Mr. Yowell sought, and was denied, permission to leave early for dinner. Later that day he approached his supervisor, complaining of stomach pains and dizziness. In view of these symptoms, Mr. Yowell's supervisor approved sick leave for Mr. Yowell, but instructed him to bring medical documentation upon returning. On November 29, 1980, the day Mr. Yowell returned to work after Thanksgiving, he failed to submit the requested documentation, but he then approached his supervisor with yet another request to leave early. Mr. Yowell requested such permission in this instance because he claimed that he could not control his anger towards the general superintendent who, Mr. Yowell alleged, had made improper advances towards Mr. Yowell's younger sister. Denied permission to leave for this reason, Mr. Yowell nevertheless walked off of his job on that day.

On December 9, 1980, Mr. Yowell received a letter of removal effective January 16, 1981. The reasons for removal included Mr. Yowell's persistent unsatisfactory attendance, two occasions of being AWOL, as well as the letter of warning and suspension notices that Mr. Yowell had already received. Mr. Yowell received a seven-day suspension notice on that day, as well, for his failure to follow instructions regarding the mandatory safety meeting. This suspension commenced on December 13, 1980. Mr. Yowell worked until December 12, 1980, but never returned to work despite the fact that his removal was not effective until the middle of January.

Every disciplinary action taken against Mr. Yowell notified him of his right to appeal pursuant to the union's collective bargaining agreement. Mr. Yowell, however, chose not to utilize the established grievance procedure because of his dissatisfaction with the union. A grievance was, nevertheless, filed by the union on behalf of Mr. Yowell regarding the notice of removal; the grievance was denied.

Mr. Yowell filed a complaint alleging race discrimination with an EEOC counselor who concluded that Mr. Yowell was unlawfully removed from his postal service position on grounds of his race. The postal service appealed this decision to the Postal Service Regional Director, Central Regional Office of the United States Postal Service. On appeal, the EEOC counselor's decision was overturned.

Mr. Yowell commenced this litigation with the timely filing of a complaint in the district court for the southern district of Indiana. That court denied the defendants' motion for summary judgment, and a trial to the court was held on June 13 and 14, 1985.

At the trial, the postal service defendants contended that their decision to discharge Mr. Yowell was based on his spotty attendance record and not his race. In rebuttal, Mr. Yowell introduced evidence regarding three white employees who, despite spotty attendance records, were not removed from their postal service positions. This showing was an attempt by the plaintiff to demonstrate that the defendants' asserted reason for discharging Mr. Yowell was mere pretext for discrimination. The district judge was not persuaded by the plaintiff's demonstration; he determined that the three white employees' circumstances were not sufficiently similar to the plaintiff's to serve as useful comparisons in this matter. Accordingly, he found that the defendants' articulated nondiscriminatory reason had not been rebutted and entered judgment, as noted, in favor of the defendants. Moreover, the lower court judge arrived at an alternative conclusion in disposing of this case; he determined that the plaintiff did not establish even a prima facie case of discrimination.

On appeal, Mr. Yowell challenges both of the district court's determinations. The issues he raised for our review are whether the trial court erred in determining that the plaintiff did not establish a prima facie case and whether the trial court's findings regarding the white employees' dissimilarity to Rodney Yowell are clearly erroneous.

II. ANALYSIS

The set of rules governing the burden of proof, burdens of production and three-stage sequence of proof in Title VII cases was first promulgated by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). They have been described and applied by this court on many occasions. See, e.g., Andre v. Bendix Corp., 774 F.2d 786, 792 (7th Cir.1985); Coates v. Johnson & Johnson Co., 756 F.2d 524, 530-31 (7th Cir.1985); Parker v. Board of School Commissioners, 729 F.2d 524, 526 (7th Cir.1984). A brief summary will be helpful as we embark upon our analysis of the instant Title VII case.

The burden of proof rests on the plaintiff throughout the case. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093. The plaintiff must first establish a prima facie case of intentional discrimination by offering evidence to raise an inference that the plaintiff was discharged on the basis of his race. Cooper v. Federal Reserve Bank, 467 U.S. 867, 875, 104 S.Ct. 2794, 2799, 81 L.Ed.2d 718 (1984); See also McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824; Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093. Once a prima facie case is established, only the burden of production shifts to the defendant to articulate a "legitimate nondiscriminatory reason for the employee's removal." Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093. The plaintiff then has the opportunity to demonstrate, by a preponderance of the evidence, that the defendant's articulated reason is mere "pretext" for discrimination. Id. at 254-56, 101 S.Ct. at 1094-95. If the case reaches this third stage of analysis, the plaintiff's burden of showing pretext "merges with the ultimate burden of showing that the defendant intentionally discriminated against the plaintiff." Andre, supra, 774 F.2d at 794.

A. We are mindful of this ultimate burden as we address the first issue raised on appeal by Mr. Yowell. When a...