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Marion L. Keefer v. John E. Potter

September 20, 2011

MARION L. KEEFER,
PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE,
DEFENDANT.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Presently pending before the Court for disposition is Defendant‟s MOTION FOR SUMMARY JUDGMENT (Document No. 23), filed by Defendant John E. Potter, Postmaster General of the United States Postal Service ("Defendant" or "USPS"), with Brief in Support (Document No. 24); Defendant‟s Statement of Material Facts in Support of Motion for Summary Judgment (Document No. 26); Defendant‟s Appendix of Exhibits in Support of Motion for Summary Judgment (Document Nos. 25 and 25-1 through 25-15); Plaintiff‟s Brief in Opposition to Defendant‟s Motion for Summary Judgment filed by Marion L. Keefer ("Plaintiff") (Document No. 35); Plaintiff‟s Statement of Material Facts in Opposition to Defendant‟s Motion for Summary Judgment (Document No. 34); Plaintiff‟s Counter-Statement of Material Facts in Opposition to Defendant‟s Motion for Summary Judgment (Document No. 32); Plaintiff‟s Appendix in Opposition to Defendant‟s Motion for Summary Judgment (Document Nos. 31 and 31-1 through 31-12); Plaintiff‟s Affidavit (Document No. 30) and; Defendant‟s Response to Plaintiff‟s Statement of Material Facts (Document No. 39). Also pending is Defendant‟s MOTION TO STRIKE PLAINTIFF‟S AFFIDAVIT IN OPPOSITION TO SUMMARY JUDGMENT (Document No. 41), with Brief in Support; Defendant‟s Supplemental Appendix of Exhibits in Support of Motion for Summary Judgment (Document Nos. 40 and 40-1 through 40-5); Plaintiff‟s Amended Affidavit of Marion L. Keefer (Document No. 43) and; Plaintiff‟s Brief in Opposition to Defendant‟s Motion to Strike Plaintiff‟s Affidavit in Opposition to Summary Judgment. *fn1 Accordingly, the issues have been fully briefed, and the motions are ripe for disposition.

I. Statement of the Case*fn2

A. Procedural History

Plaintiff alleges two separate violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff asserts that she was the subject of gender discrimination when denied a promotion for which she was qualified. Second, she asserts that USPS denied her the promotion in retaliation for meeting with Keith Beppler, District Manager at the USPS General Mail Facility in Pittsburgh, Pennsylvania, to challenge why USPS did not selected her to participate in an Employment Leadership Development program ("ELD"). (See Compl. at ¶ 6;

Pl.‟s Br. in Opp‟n at 2). Defendant denies any wrongdoing, and avers that Plaintiff was not granted the promotion for a legitimate, nondiscriminatory reason; specifically, that Plaintiff was not the best suited applicant for the promotion. Defendant further denies that Plaintiff was denied the promotion in retaliation for her meeting with Beppler. Unless otherwise indicated, the following material facts are undisputed.*fn3

On April 27, 2010, Plaintiff initiated this civil rights lawsuit pursuant to Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq., by filing a one-count Complaint that avers employment discrimination by Defendant. (See Compl. at ¶¶ 9-11). After extensive discovery, Defendant filed the instant Motion for Summary Judgment. Defendant contends that he is entitled to summary judgment because the record evidence simply does not support Plaintiff‟s allegations that the USPS engaged in any discriminatory conduct as alleged in the Complaint. The motion is now before the Court for determination.

B. Factual History

1. Non-selection for EAS level 24 position

Plaintiff Keefer, a female, has been an employee of the USPS since on February 11, 1989. (Document No. 32 at ¶ 4.1). She has held a number of positions, such as acting supervisor of mail processing,*fn4 supervisor of mail processing,*fn5 and Manager of Distribution Operations ("MDO") EAS*fn6 level 20. (Ex. 2 at ¶¶ 1-2). In September 2009, after the incidents in question, Plaintiff was promoted to EAS level 22 as part of a reduction in force at USPS. (Ex. 2 at ¶ 2). Plaintiff is responsible for the supervision of a number of employees within the Distribution Operations of USPS. (Ex. 2 at ¶ 2). Prior to September 2009, as MDO EAS level 20, Plaintiff reported to Tom Arneson, a Senior MDO, who reported to Thomas A. Graf ("Graf"), the Promotion Selecting Official/Senior MDO EAS 25, who reported to Jeffrey L. Bergen ("Bergen"), the Promotion Concurring Official/Sr. Plant Manager, who reported to Keith Beppler ("Beppler"), the District Manager.*fn7 (Ex. 2 at ¶ 2).

During her employment with USPS, Plaintiff participated in a number of "details," which temporarily assign employees to higher level jobs in order to facilitate career advancement opportunities. (Ex. 2 at ¶ 2). These positions included Automation Manager of Distribution Operations, Manager of Distribution Operations, Flat Sorter, and Integrated Operation Plan ("IOP") Team. (Ex. 2 at ¶ 4). One such opportunity presented itself to Plaintiff through job posting E-07191. The promotional posting, for Manager of Distribution Operations at EAS level 24 (Ex. A at 10), was posted on April 24, 2008 and scheduled to close on May 9, 2009. (Ex. 2 at ¶ 4). However, USPS took the posting down on May 8, 2007 and reposted it that same day with a new scheduled closing date of May 23, 2007. (Ex. 2 at ¶ 4). The record indicates that this was done for candidate Michael J. Grubbs.*fn8 (Ex. 11 at 8-11). Accordingly, Grubbs,*fn9 Plaintiff, and thirteen (13) others filled out a written application, known as a Form 991. Plaintiff submitted her application on April 27, 2007 and she was not required to submit a second application for the repost because applicants were told "[p]revious applicants need not re-apply." (Ex. C at 2; Ex. A at 10).

Following the May 23, 2007 close of the promotion posting, a review committee comprised of three USPS employees, Ed Stelmach, Diane Smith, and Jim Dominowski, evaluated the applications. (Ex. E at 6). The review committee took into consideration each applicant‟s Form 991 and determined that the following five (5) individuals "best meet" the position requirements: Mark A. Caplan, Kim C. Gebrosky, Michael J. Grubbs, Plaintiff Marion L. Keefer, and Kenneth K. Pawlowski. (Ex. G). From that list, the Selecting Official, Graf, would choose the successful candidate for the position. (Ex. A at 12).

Upon receipt of the recommendations, Graf reviewed the Form 991‟s from all five applicants. (Ex. K at 6). He also conducted one-on-one interviews with the applicants between November 7, 2007 and November 21, 2007. (Ex. 4 at 7). Graf testified that his interview process consisted of questions to stimulate conversation to help give him an idea of the applicant‟s managerial skills, and to help him determine who would be "most likely to succeed [in the position]." (Ex. K at 9-10). The questions asked were the same for each applicant. However, although Grubbs testified that his interview lasted thirty (30) minutes, Plaintiff testified that her interview lasted only ten (10) minutes. (Ex. 2 at 10-11).

The interviews and the Form 991‟s were not the only criteria which Graf took into acocunt in determining which applicant would receive the promotion. Describing his process for determining the best candidate, he testified:

[w]hen I get selected as a selecting official, the first thing I‟ll do is go over the Policies and Procedures. I have a book in my office that I review, and then I would go on line and review those. Then I review all the 9[9]1s. In this case, I knew all of the applicants; that does not always happen. I knew all of the applicants, so I reviewed all of the KSA‟s. I felt at that point, that they all met the qualifications for the position. My job then is to pick the person with the best chance of success. One of the policies under Policies and Procedure for selections, is determining how good they are with managerial abilities. So I type up my questions, the same question for all of those applicants. Then I interview them. I make notes to myself and I review those notes afterwards, and then I usually review the Policies and Procedures again. Then I review the Policies and Procedures that were local, I believe for writing up a Comparative Analysis, and then I do a draft and I go back and do it. (Ex. E at 12-13). Thus, Graf‟s selection was based upon the Form 991s, the interviews, and his personal experience with each candidate. After much consideration, Selecting Official Graf chose Grubbs for the promotion. (Ex. J at 4).

In choosing Grubbs as the applicant most appropriate for the promotion, Graf noted a number of reasons for his choice. He laid out these reasons in his "Comparative Analysis Narrative," wherein he stated:

Mr. Grubbs[‟] personal development has come through job experiences within distribution operations and through volunteering for details in other operations that entailed training and learning experiences. He has also requested additional responsibilities in his various positions and he is in the ELD . . . program and the MLDP . . . program. He discussed his use of the latest data bases, such as MHTS and his success in using them for supervisory accountability and improving productivity. He is the best qualified applicant for the position. All of the applicants are acting or have acted in similar positions to the posted vacancy. All are qualified, but Mr. Grubbs demonstrated a superior commitment both to his personal development and to his organizational objectives. He has embraced the latest technology*fn10 and used it effectively in his operation and was able to quote numbers that supported his claims. He convinced me that he was the candidate with the best chance of succeeding in this position. (Ex. J at 3-4) (footnote added).

Graf submitted his "Comparative Analysis Narrative" to Concurring Official Bergen. (Ex. F at 10-11). As the Concurring Official, Bergen left the promotional decision completely up to Graf. However, Bergen did ask Graf to take some time to "think about [the decision]" and to be sure he "pick[ed] the best person." (Ex. 4 at 15). After doing so, Graf informed Bergen that he had made his choice and on January 28, 2008, Plaintiff was informed that she had not been selected. (Ex. A at 18).

Plaintiff testified that at no point during her employment at USPS did she hear any comments about her gender made by either Graf or Bergen. (Ex. A at 27). In fact, when asked how she was being discriminated against because of her gender, Plaintiff failed to identify any direct evidence of discrimination. Instead, she testified that she presumed discrimination simply "[b]ecause a white male was chosen over me, and I was more qualified." (Ex. A at 24). Plaintiff claimed that she was more qualified because she had more years of experience than Grubbs. (Ex. A at 24).

Subsequent to the selection of Grubbs for the promotion, Plaintiff was awarded with the "Joe Conley Manager of the Year Award." (Ex. 2 at 12). Furthermore, in March 2010, after Grubbs‟ performance as Manager of Distribution Operations, Plaintiff was selected as his replacement. (Ex. 11 at 14-15). Plaintiff maintained this position until July, 2010.

2. Denied participation in ELD and further "details"

Subsequent to application submissions, but prior to the decision itself, Plaintiff and three other applicants applied for participation in an "EAS Leadership Development" program ("ELD"), which USPS utilized as a factor when determining promotions. Plaintiff applied for this program via e-mail, but was not placed in the program although each of her three male counterparts was placed into the program. (Ex. 2 at 7). Plaintiff was told that there was no more room for her in the program.

In mid-July 2007, upon not being selected to participate in the ELD, Plaintiff utilized District Manager Beppler‟s "open door" policy. She met with Beppler to complain of being discriminated against when not selected for the ELD.*fn11 (Ex. 2 at 7). When Plaintiff asked Beppler why he denied her participation in the ELD, Beppler told her that Bergen had denied her participation. (Ex. 2 at 9). This was contrary to the information provided by Bergen, who stated that Beppler had denied Plaintiff‟s participation. When approached by Plaintiff, Bergen did not deny Beppler‟s account of the situation (Ex. 2 at 9), but rather spoke with her about the chain of command, and how she had utilized it improperly by going to Beppler instead of him, her immediate superior.

Plaintiff was also denied a subsequent "detail" to the IOP Team. (Ex. 2 at 10). She was told that she was not selected for the "detail" because there was again "no room" for her and that the decision was a "business decision," although the meaning of that phrase was never explained to Plaintiff. (Ex. 2 at 10). Plaintiff‟s male counterpart Kenneth Pawlowski, however, was selected to the IOP at an EAS level 24 position.*fn12 (Ex. 2 at 10). Plaintiff was subsequently given a "detail" at an EAS level 19, which was below her current level, EAS Level 20. (Ex. 2 at 10). Thus, Plaintiff was denied placement in both the ELD and IOP for EAS level 24, while her male counterparts were given the opportunity to participate in both. Both the ELD and IOP experiences were considered by Selecting Official Graf in determining which individual would receive the promotion to Manager of Distribution Operations.

In April 2008, Plaintiff filed one formal EEO complaint of discrimination against USPS. (Ex. A at 6-7). However, this was more than two months after she was denied the promotion at issue in this case. (Ex. A at 6-7). The EEO complaint, therefore, is not the prior protected activity to which Plaintiff refers as part of her retaliation claim. Rather, she claims that the ...


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