Petition for Writ of Certiorari — Frank v. Shidaker

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No. MAR 11 1988

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CLERK

Jn the Supreme Court of the Anite Sates

OCTOBER TERM, 1987

ANTHONY M. FRANK,-#N HIS CAPACITY AS

POSTMASTER GENERAL OF THE UNITED STATES

POSTAL SERVICE, PETITIONER

¥.

DARLENE SHIDAKER

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHARLES FRIED

Solicitor General

JAMES M. SPEARS

Acting Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

GLEN D. NAGER

Assistant to the Solicitor General

ROBERT S. GREENSPAN

E. RoY HAWKENS

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether a plaintiff can state a cause of action under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

ef seq., based on an alleged disparate impact resulting

from a subjective promotion practice or procedure.

(1)

[ABLE OF CONTE™SIS

Pave

Opinions below , |

Jurisdiction |... : |

Statutes involved - ee 2

Statement ..... Sea tet 2

Argument ........ Che Ter S

Conclusion .... . ; aaale y

OY Ee ee ee la

ar ye 13a

Appendix C ..... Or rrr 15a

Appendix D ... \ ns er 16a

Appendix E ....... Fas ai ee ee, Wa

Appesan F ........ Fdirareie av Vaiae’ 63.

TABLE OF AUTHORITIES

Cases:

Griggs v. Duke Power Co., 401 U.S. 424 (1971)... oe y

Johnson y. Transportation Agency, No. 85-1129 (Mar. 25,

Aa oa geek dsb a baie ues es See land 8

Statute:

Civil Rights Act of 1964, Tit. Vil, 42 U.S.C. 2000¢ e

ts eee ihe kd kak &.86 4a bn ek ae ca 6 oe 4,5,38

a oes 2

RE ee eee 2

(111)

In the Suvreme Court of the United States

OCTOBER TERM, 1987

No.

ANTHONY M. FRANK, IN HIS CAPACITY AS

POSTMASTER GENERAL OF THE UNITED STATES

POSTAL SERVICE, PETITIONER

Vv.

DARLENE SHIDAKER

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

The Solicitor General, on behalf of Anthony M. Frank,

in his capacity as Postmaster General of the United States

Postal Service, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for

the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-12a) is reported at 833 F.2d 627. An earlier opinion of

the court of appeals (App., infra, 16a-29a) is reported at

782 F.2d 746. The opinion of the district court (App.,

infra, 30a-62a) is reported at 593 F. Supp. 823.

JURISDICTION

The judgment of the court of appeals was entered on

November 16, 1987. A petition for rehearing was denied

(1)

on December 14, 1987 (App., infra, I3a-l4a). The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTES INVOLVED

42 U.S.C. 2000e-2(a) provides:

It shal! be an unlawful employment practice for an

employer —

(1) to fail or refuse to hire or to discharge any in-

dividual, or otherwise to discriminate against any in-

dividual with respect to his compensation, terms, con-

ditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national

Origin; or

(2) to limit, segregate, or classify his employees or

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment Opportunities Or Otherwise adversely affect his

status as an employee, because of such individual's

race, color, religion, sex, Or national origin.

42 U.S.C. 2000e-16(a) provides:

All personnel actions affecting employees or ap-

plicants for employment * * * in the United States

Postal Service * * * shall be made free from any

discrimination based on race, color, religion, sex, or

national origin.

STATEMENT

1. Respondent, Darlene Shidaker, served as acting

postmaster and then as postmaster of a small post office in

Kenilworth, Illinois from 1962 through 1982. During this

time, she was in pay scale level-18. In 1977, the Postal

Service advertised vacancies for three pay scale level-22

postmaster positions in other, larger post offices in Il-

linois. Respondent applied for all three positions. App.,

infra, 3la-34a.

Pursuant to its regulations, the Postal Service convened

a Screening Board to assess all applicants for the three

vacancies. The Screening Board reviewed each applicant's

work experience, educational background, performance

appraisals, capacity for growth, and potential in manage-

ment problem solving, employee development and rela-

tions, budget operations, work supervision, and public

and community relations. The Screening Board then

eliminated applicants lacking minimal qualifications,

ranked the qualified candidates by tallying point scores

assigned them by each of the Board members, and for-

warded the names Of the seven highest ranked applicants

for each vacancy to a regional selection manager. That

_ manager added the candidates on the Screening Board’s

list to a list of Postal Service employees who, by regula-

tion, had an absolute right to be considered for the vacan-

cies. From the combined list, the manager recommended

five to seven candidates for each vacancy to a Regional

Management Selection Board. The Regional Management

Selection Board interviewed and evaluated each of these

candidates and then recommended a single person for each

vacancy to the Postmaster General. The Postmaster

General made the final appointments. App., i/ra,

34a-39a.

Respondent was the only female to apply for each of the

three postmaster vacancies. She competed with 31 other

applicants for two of those vacancies, and with 27 other

applicants for the third vacancy. The Screening Board

found several instances of prior mismanagement in re-

spondent’s personal history' and determined, based on

' Two members of the Screening Board had “first-hand knowledge

of the conditions of the post office run by [respondent]. [Mr.] Wright,

4

her composite personnel profile, that she was not among

the top seven applicants for any of the available jobs.? Ac-

cordingly, respondent was not further considered by the

Postal Service for the vacant positions and did not receive

a promotion. But respondent believed that the Postal

Service did not promote her because of her gender and, ac-

cordingly, after exhausting her administrative remedies,

filed this Title VII action in the United States District

Court for the Northern District of Illinois. App., infra,

34a-39a.

2. The district court conducted a full trial concerning

respondent’s claims (App., infra, 31a). Respondent pro-

duced evidence showing that, at the time of her failed pro-

motion, the Postal Service had a policy of promoting from

within and that an arguably significant disparity existed

between the percentage of females occupying low-level

and high-level positions in the Postal Service’s work force

(id. at 34a, 39a-40a).) The Postal Service responded

as a postal inspector, had investigated an instance of poor security in

connection with the issuance of money orders and he described

[respondent's] management as sloppy. [Mr.] Wright * * * told the

Screening Board that Christmas mail deliveries were two or three days

late. [Mr.] Besteda also told the Screening Board that the Kenilworth

post office was not well managed.” App., infra, 36a.

? The Screening Board ranked respondent thirteenth out of the 16

applicants that it deemed minimally qualified for the Glenview, II-

linois postmaster position (App., infra, 36a). It ranked respondent

sixteenth out of the 17 applicants that it deemed minimally qualified

for the Palatine, Illinois postmaster position (id. at 36a-37a). And the

Screening Board ranked respondent fifteenth out of the 17 applicants

that it deemed minimally qualified for the Franklin Park, Illinois

postmaster position (id. at 37a).

* Specifically, respondent introduced evidence showing that (App.,

infra, Sla-S2a):

In November, 1974, women held 20.8% of the positions in the

Postal Service workforce. The percentage had moved to 23.5%

with evidence explaining its promotion procedures, the

special skills and training that postmasters at different

levels must have, the fact that postmasters (including

respondent) have in the past been promoted both from

within and without the Postal Service workforce, and the

reasons that the Postal Service had for not promoting

respondent to any of the three vacancies (/d. at 34a-39a,

43a-48a). The Postal Service also argued that, since she

had not identified a facially neutral selection device which

had injured her, respondent had not raised a legally

cognizable disparate impact claim (Tr. 24-26, 427-430,

447-449). Respondent countered that the Postal Service’s

“whole promotion procedure” produced the “disparate im-

pact” (Tr. 454). After hearing all of the evidence, as well as

the parties’ arguments concerning that evidence, the

district court concluded that the Postal Service had not

discriminated against respondent in its promotion deci-

sions — under either a “disparate treatment” or a “disparate

impact” theory (App., infra, 48a-58a).*

by November 1980. Nationally, women held 11.5% of the posi-

tions at PES-15 and above in January, 1980.

In 1978, the year of {respondent’s] failed promotion, women

occupied 23 of the 108 postmaster positions in the North Subur-

ban MSC, or 21.2% of the total postmastes pusitions. However,

none of the women postmasters were rated hizher than PES-20

and 15 of them were at level PES-15 or tower. Additionally in

1977-1978 a total of 2,008 women were employed in the North

Suburban MSC, 29.4% of the entire Postal Service workforce in

the area. Despite that overall percentage, only four women or 5%

{of those filling positions of PES-19 or higher] were rated in posi-

tions of PES-19 or higher. * * *

+ The district court also rejected respondent’s claim that the Postal

Service had retaliated against her — by reducing her in grade — for ini-

tially raising her Title Vii claim in 1978 (App., infra, 58a-62a). The

court held that the Postal Service had demoted her for “misfeasance

and malfeasance and not in retaliation for * * * her civil rights

6

With regard to the “disparate treatment” issue, the court

found that “[respondent] has not proved, by a pre-

ponderance of the evidence, that the Postal Service failed

to promote her because she was a woman” (App., infra,

58a). The court said that the Postal Service had a

“legitimate, nondiscriminatory business reason” for not

promoting respondent —/.e., that the three candidates ac-

tually promoted were either more qualified or had higher

composite Screening Board ratings than did respondent

(id. at 53a, 56a). Finally, it found that “the procedure used

by the Postal Service to initially select candidates for pro-

motion consideration was permissible and without overt

indicia of discrimination” (id. at 57a).

With regard to the “disparate impact” issue, the court

held that respondent had raised a legally cognizable

discriminatory impact claim even though “the system at-

tacked includes both objective and subjective parts”

(App., infra, 50a). But the court also concluded that,

where “management jobs which demand skills and train-

ing possessed by relatively few individuals” are in issue (/d.

at 52a), statistics showing a disparity—even a gross

disparity — between the percentage of females in the lower

and higher work force levels are not by themselves suffi-

cient to establish discriminatory disparate impact (/bid.).

Since respondent had not introduced evidence concerning

the dates on which females had entered the Postal Service’s

work force, the number of females who had actually ap-

plied for promotions, the distribution of females by pay

scale levels in the workforce, or the number of females

who qualified for promotion, the court found her evidence

of disparate impact to be inadequate and granted judg-

claim” (id. at 6la-62a). The court of appeals affirmed (/d. at 2a,

23a-29a). The retaliation claim has no bearing on the issues raised by

this petition and, accordingly, we discuss it no further.

ment to the Postal Service on the disparate impact claim as

well (/bid.).

3. The court of appeals affirmed in part, reversed in

part, and remanded for further proceedings (App., infra,

16a-29a). The court agreed with the district court that

respondent had not supported her allegations of disparate

treatment (/d. at 29a). But, while it too allowed respondent

to proceed on a disparate impact theory,’ the court dis-

agreed with the district court’s conclusion that respondent

had failed to support her disparate impact claim. “Once

[respondent] 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, she made a sufficient prima facie showing of

discriminatory impact” (id. at 20a (footnote omitted)).

The court therefore remanded the case to the district court

in Order that the Postal Service might bring forward

evidence “that few women occupying lower level positions

have applied for upper level positions or are qualified for

upper level positions, or to bring forward evidence of the

job-relatedness of its promotion standards” (/d. at 22a).

4. The Solicitor General then petitioned for a writ of

certiorari to the court of appeals’ judgment (No. 86-468).

The petition asked this Court to resolve (1) whether a

5 The court of appeals did not explicitly address in its opinion

whether respondent’s challenge to the Postal Service’s subjective,

multi-component promotion procedure presents a legally cognizable

disparate impact claim. But the Postal Service fully briefed the issue as

an alternative ground for affirming the district court’s judgment. See

Br. for the Defendant-Appellee 14-17 (filed May 3, 1985); see also Ap-

pellee’s Pet. for Reh’g and Suggestion for Reh’g En Banc 8-13 (filed

Mar. 13, 1986). Thus, the Postal Service clearly raised the issue to the

court below and, in deciding that respondent had in fact established a

prima facie case of disparate impact, the court necessarily decided it.

8

plaintiff can state a cause of action under Title VII based

on an alleged disparate impact resulting from a subjective

promotion practice or procedure and (2) whether, assum-

ing disparate impact theory is permissible, a plaintiff

establishes that a promotion procedure is prima facie

unlawful merely by showing that the employer promotes

from within in filling upper level positions requiring

managerial ability and other special skills and that a gross

disparity exists between the percentage of females occupy-

ing those upper level positions and low-level positions in

the employer’s work force. By order dated April 6, 1987

(App., infra, 15a), the Court granted the petition, vacated

the judgment of the court of appeals, and remanded for

further consideration in light of Johnson v. Transporta-

tion Agency, No. 85-1129 (Mar. 25, 1987).

5. Onremand, the court of appeals reinstated its prior

judgment in all pertinent respects (App., infra, la-12a). It

again failed explicitly to address the Postal Service’s claim

that disparate impact theory does not apply in challenges

to subjective promotion practices and procedures. Rather,

it implicitly rejected that claim and defined the sole issue

on remand to be “whether [respondent’s] statistical

evidence was sufficent to establish a prima facie case of

disparate impact under Title VII of the Civil Rights Act of

1964” (id. at 2a (footnote omitted)). It then concluded that

“frespondent’s] statistical evidence was sufficient to

establish a prima facie case of disparate impact under Title

VII” (ibid.).

ARGUMENT

This case presents essentially the same question as is

presented in Watson v. Fort Worth Bank & Trust Co., No.

86-6139 (argued Jan. 20, 1988). In Watson, the Court will

decide whether subjective promotion processes may be

9

challenged under the disparate impact analysis approved

by this Court in Griggs v. Duke Power Co., 401 U.S. 424

(1971).° In this case, the court of appeals has, notwith-

standing the Postal Service’s arguments to the contrary,

allowed respondent to proceed against the Postal Service’s

subjective promotion process On a disparate impact

theory. Since the Court will soon decide whether that ac-

tion is permissible, we request that this petition be held

pending the decision in Watson and then disposed of as is

appropriate in light of that decision.

CONCLUSION

The petition for a writ of certiorari should be held pend-

ing this Court’s decision in Watson v. Fort Worth Bank &

Trust Co., No. 86-6139, and then disposed of as is ap-

propriate in light of that decision.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JAMES M. SPEARS

Acting Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

GLEN .D. NAGER

Assistant to the Solicitor General

ROBERT S. GREENSPAN

E. ROY HAWKENS

Attorneys

MARCH 1988

® In its amicus curiae brief in Watson, the United States has argued

that disparate impact theory should not apply in challenges to subjec-

tive decisionmaking processes. We are furnishing counsel for respond-

ent with a copy of our brief in Watson.

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 84-2791

DARLENE SHIDAKER, PLAINTIFF-APPELLANT

V.

PRESTON R. TISCH,! IN HIS CAPACITY AS

POSTMASTER GENERAL (UNITED STATES POSTAL SERVICE),

DEFENDANT-APPELLEE

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

No. 82 C 5635— WILLIAM T. HART, Judge

Argued September 13, 1985— Decided January 29, 1986

On Remand from the United States Supreme Court

Decided November 16, 1987

Before: BAUER, Chief Judge, CUMMINGS and FLAUM,

Circuit Judges.

BAUER, Chief Judge. This is an appeal by Darlene

Shidaker from an adverse judgment entered below in

favor of Preston R. Tisch in his capacity as Postmaster

General of the United States Postal Service. Shidaker, a

postal employee, claims that the Postal Service denied her

' Mr. Tisch has replaced Mr. Carlin as Postmaster General. We

therefore substitute Mr. Tisch as the defendant-appellee pursuant to

Rule 25(d)(1) of the FEDERAL RULES OF CIVIL PROCEDURE.

(1a)

2a

a promotion because she is a woman and then demoted her

for challenging that promotion denial as discriminatory.

In our original opinion, this panel reversed and remanded

for further consideration the district court’s finding that

Shidaker’s promotion denial was not discriminatory and

we affirmed the district court’s finding that Shidaker’s

demotion was not retaliatory. Shidaker v. Carlin, 782 F.2d

746 (7th Cir. 1985).

On April 6, 1987, the United States Supreme Court

granted the Postal Service’s petition for certiorari, vacated

this court’s judgment, and remanded the case for further

consideration in light of Johnson v. Transportation Agen-

cy of Santa Clara County, 480 U.S. , 107 S.Ct. 1442

(1987). The only issue before this Court on remand is

whether Shidaker’s statistical evidence was sufficient to

establish a prima facie case of disparate impact under Title

VII of the Civil Rights Act of 1964.2 After reviewing the

Supreme Court’s decision in Johnson, we follow our

Original opinion and hold that Shidaker’s statistical

evidence was sufficient to establish a prima facie case of

disparate impact under Title VII.

We will briefly summarize the relevant facts discussed in

Our previous decision. 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

PES-22 postmaster positions at offices in Glenview,

Palatine, and Franklin Park, Illinois. The Postal Service

follows a policy of promoting from within and ninety-two

2 We reinstate our earlier decision affirming the district court in all

other respects.

3a

postal employees applied for the three vacant postmaster

positions. Shidaker, the only female applicant, was not

promoted to any of the positions.

In 1978, Shidaker filed an Equal Employment Oppor-

tunity (“EEO”) complaint alleging that she was denied

promotion to the PES-22 postmaster positions on the basis

of her 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 Oc-

tober 1982, the Postal Service’s Regional Director for

Employment and Labor Relations Central Region notified

Shidaker that the Postal Service was rejecting the Ex-

aminer’s decision.

Shidaker sued the Postal Service in the United States

District Court for the Northern District of Illinois, Eastern

Division. Count I of her complaint alleged discriminatory

failure to promote under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-16 and 39 U.S.C. § 409. We

consider this allegation on remand.

The district court found that Shidaker failed to establish

a prima facie case of disparate impact. The court found

that Shidaker did establish a prima facie showing of

disparate treatment, but also found that the Postal Service

demonstrated legitimate, nondiscriminatory, nonpretex-

tual, reasons for not promoting Shidaker.

We agree with Shidaker that she made an adequate

prima facie showing of disparate impact. We therefore

reverse the district court and remand Shidaker’s disparate

impact claim for further consideration.

4a

If.

A.

The Supreme Court’s decision in Johnson arises out of

facts and circumstances that differ from those involved in

this case. Johnson was a reverse discrimination suit

brought under Title VII by a white male who alleged that

the promotion of an allegedly less qualified female pur-

suant to a voluntary affirmative action plan violated his

rights under Title VII. In concluding that the affirmative

action plan did not violate Title VII, the Supreme Court

considered the degree to which statistical proof reflecting

an underrepresentation of women in_ traditionally

segregated jobs could justify an affirmative action plan.

107 S.Ct. at 1452. Specifically, the Supreme Court held

that an employer need only show a “manifest imbalance’ in

order to adopt a voluntary affirmative action plan under

Title VII. Jd. The Court noted further that the “imbalance

need not be such that it would support a prima facie case

against the employer [under the Title VII].” /d.?

The Johnson Court reiterated its earlier holding in

Hazelwood School District v. United States, 433 U.S. 299

(1977), that in order to make out a prima facie case of

discrimination under a disparate treatment “pattern and

practice” theory, a plaintiff must compare the percentage

of minorities or women in the employer’s work force “with

3Although the Court did not expressly say so, when it discussed the

prima facie standard under Title VII, it was referring to the disparate

treatment theory, not disparate impact theory because the plaintiff in

Johnson was alleging intentional discrimination based on a sex-

conscious affirmative action plan. 107 S.Ct. at 1449 (applying the

disparate treatment order and allocation of proof requirements). See

also 107 S.Ct. at 1463 (O’Connor, J., concurring in the judgment)

(discussing the prima facie standard in disparate treatment “pattern

and practice” cases).

Sa

those in the labor force who possess the relevant qualifica-

tions.” Johnson, 107 S.Ct. at 1452; see also Johnson, 107

S.Ct. at 1452-53 n.10; Steelworkers v. Weber, 443 U.S.

193, 198-99 (1979).

Johnson’s relevance to the instant case is limited.

Johnson is not a disparate impact case and it does not

break new ground in this area of Title VII jurisprudence.

Rather, Johnson briefly reaffirms the Supreme Court’s

earlier holdings regarding the sufficiency and probative

value of statistical proof under Title VII. The Johnson

Court’s discussion of Hazelwood, however, is pertinent.

Although Hazelwood was a disparate treatment pattern

and practice case, its holding regarding the sufficiency of

Statistical proof has been applied in large part to the

disparate impact area of Title VII.

To make a prima facie showing of discriminatory im-

pact, Shidaker need only present evidence that the Postal

Service’s promotional practices, although facially neutral,

selects promotees “in a significantly discriminatory pat-

tern.”’ Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);

Albermarie Paper Co. v. Moody, 422 U.S. 405, 425

(1975). This evidence may be, and most often is, statistical

in nature. New York City Transit Authority v. Beazer, 440

U.S. 568, 584 (1979); Teamsters v. United States, 431 U.S.

324, 339-40 (1977); Babrocky v. Jewel Food Co., 773 F.2d

857, 867 (7th Cir. 1985). The statistical showing required

to establish a prima facie case under the disparate impact

theory may be less than the “gross disparity” required

+ In order to establish a “manifest imbalance” sufficient to justify

an affirmative action plan, the same comparison must be made,

although the level of disparity may be less. Johnson, 107 S. Ct. at 1452

n.10.

6a

under “pattern and practice” disparate treatment cases.

See Hazelwood, 433 U.S. at 307-08; Teamsters, 431 U.S.

at 340 n.20 (holding that a “gross disparity” may establish

a prima facie case in disparate treatment pattern and prac-

tice cases). As this Court held in Clark v. Chrysler Corp.,

673 F.2d 921, 926-27 (7th Cir. 1982), “[iJn the use of

Statistical evidence to demonstrate the disparate impact of

an allegedly discriminatory practice, the statistical dispari-

ty demonstrated must be ‘significant’ or ‘substantial.’ ”

(citations omitted). See also Griffin v. Board of Regents of

Regency University, 795 F.2d 1281, 1287 (7th Cir. 1986)

(in disparate impact cases, “plaintiff must show that the

policies and practices at issue have a_ substantially

disproportionate impact. . . .”); Page v. U.S. Industries,

Inc., 726 F.2d 1038, 1054 (Sth Cir. 1984) (disparate treat-

ment requires showing of “gross disparity” although a

“marked disproportion” sufficies [sic] to prove disparate

impact).°

In both the disparate treatment and impact contexts,

Hazelwood teaches that statistical evidence is probative

when it compares the percentage of minorities or women

in the employer’s work force with the percentage of

minorities and women in the relevant labor market. 433

U.S. at 307-08. In instances where the job requires special

training or skills, the relevant labor market consists of

those persons who possess the relevant qualifications.

Johnson, 107 S.Ct. at 1452; Hazelwood, 433 U.S. at 308

n.13; Regner v. City of Chicago, 789 F.2d 534, 537-38 (7th

Cir. 1986). Where a company is shown to promote from

within, the relevant labor pool of qualified applicants for

* We need not define the precise extent to which the prima facie

standard differs in disparate treatment and disparate impact cases

because, as we noted supra at 8, the district court found a gross

disparity presented by Shidaker’s statistics.

7a

upper level positions may be the group of employees in the

company from which promotees will be drawn. See

Hazelwood, 433 U.S. at 308 n.13; Paxton v. Union Na-

tional Bank, 688 F.2d 552, 564 (8th Cir. 1982), cert.

denied, 460 U.S. 1083 (1983); Fisher v. Procter & Gamble

Mfe., 613 F.2d 527, 544 (Sth Cir. 1980), cert. denied, 449

U.S. 115 (1981). Thus, where the plaintiff can show that

the employer promotes from within, evidence of a gross

disparity between the percentages of minorities in upper

and lower level positions is sufficient to establish a prima

facie case of discrimination under both disparate treat-

ment or disparate impact theories. Regner, 789 F.2d at 538

(disparate impact promotion case); Segar v. Smith, 738

F.2d 1249, 1276-77 (D.C. Cir. 1984), cert. denied sub

nom. Meese v. Segar, 471 U.S. 1115, 105 S.Ct. 2357

(1985), (disparate impact promotion case); O’Brien v. Sky

Chefs, Inc., 670 F.2d 864, 865-67 (9th Cir. 1982)

(disparate treatment promotion case); Fisher, 613 F.2d at

544 (Sth Cir. 1980) (disparate impact promotion case); see

also Mozee v. Jeffboat, 746 F.2d 365, 372 (7th Cir. 1984);

Paxton, 688 F.2d at 556-57 n.3.

Cc.

Both Shidaker and the Postal Service agree that under

Hazelwood and Johnson, Shidaker must compare the

percentage of women in high level postmaster positions

with the percentage of women in the qualified labor pool.

They differ, however, in the application of this standard

to this case. Shidaker argues that the statistics offered to

the district court reflect a gross disparity between the

number of women occupying low level postmaster posi-

tions as compared to the small number of women serving

in the higher level postmaster grades. Shidaker argues fur-

ther that because the postal service promotes from within,

the relevant qualified labor group for comparison pur-

8a

poses ts the lower level postmasters from which the pro-

motees to the high level position are drawn. The Postal

Service counters, and the district court held, Shidaker v.

Bolger, 593 F.Supp. 823, 835 (N.D. Ill. E.D. 1984), that

these statistics alone are insufficient to establish a prima

facie case. Rather, the district court required statistical

evidence relating to applicant flow (e.g., how many

women have applied for certain positions in the past, how

many women were eligible for past vacancies).

The district court incorrectly found that Shidaker failed

to make a prima facie showing of disparate impact. Once

Shidaker proved that the Postal Service promotes from

within and introduced statistical evidence showing a gross

disparity between the percentage of women in lower level

postmaster positions and those in upper level postmaster

positions, she made a sufficient prima facie showing of

disparate impact. She need not, as the district court ap-

parently thought, make a further statistical showing re-

garding applicant flow.

D.

The district court found that the Postal Service had a

policy of promoting from within.* Shidaker, 593 F.Supp.

at 827. Although the district court did not find expressly

that any skills were required for these higher level

postmaster positions, it did find that a Screening Board

first evaluated applicants to eliminate those who did not

possess the minimal qualifications. /d. at 828. Shidaker

was found qualified for all three jobs by the Screening

Board. The only factor which seemed to distinguish the

rankings of those deemed qualified was experience as

* All three men selected for the positions to which Shidaker applied

were postmasters. One was a PES-18, the same level as Shidaker. The

other two were promoted from a higher grade.

Ya

postmaster, not any particular skills.” Thus, the relevant

labor pool for statistical comparison was the lower level

postmasters, most of whom, if not all, possessed the re-

quisite qualifications and skill for promotion.

The district court also found a gross disparity between

the percentage of women occupying low level postmaster

positions (21.1%) and those occupying the higher level

positions (5%).* /d. at 829-30. Specifically, the district

’ In response to one of Shidaker’s interrogatories sent to the Postal

Service after this court’s prior remand regarding the qualifications for

the higher level postmaster positions, the Postal Service stated:

Assuming that plaintiff means to inquire whether women at the

North Suburban MSC at the time plaintiff applied for the posi-

tion of postmaster were less qualified than mer for positions at

levels 16 and above, defendant does not so contend except in one

respect. In the years before 1977, men tended to be found in pro-

portionately greater numbers in supervisory and managerial posi-

tions than women. As a result, they would gain the experience

necessary for advancement to higher-level positions in propor-

tionately greater numbers than women.

Ans. to Interrogatory No. 3.

* The district court summarized Shidaker's statistical evidence as

follows:

The statistics presented to the Court are as follows: In November,

1974, women held 20.8% of the positions in the Postal Service

workforce. The percentage had moved to 23.5% by November,

1980. Nationally, women held 11.5% of the positions at PES 15

and above in January, 1980.

In 1978, the year of Shidaker’s failed promotion, women oc-

cupied 23 of the 108 post-master positions in the North Suburban

MSC, or 21.1% of the total postmaster positions. However, none

of the women postmasters were rated higher than PES 20 and 15

of them were at level PES 15 or lower. Additionally in 1977-78 a

total of 2,008 women were employed in the North Suburban

MSC, 29.4% of the entire Postal Service workforce in the area.

Despite that overall percentage, only four women or 5% were

10a

court found that none of the women positmasters was

rated higher than PES-20.°

Once a plaintiff makes a prima facie showing with sta-

tistics Of this nature, the burden shifts to the defendant to

rebut the inference of discrimination raised by these

Statistics. Washington v. Davis, 426 U.S. 229, 241 (1976).

Defendants may rebut a statistical prima facie showing of

disparate impact with statistical evidence of their own that

is “more refined, accurate and valid”, Movement for Op-

portunity and Equality v. General Motors, 622 F.2d 1235,

1245 (7th Cir. 1980); Teamsters v. United States, 431 U.S.

324, 339-40 and 360 (1977), or by showing that the

challenged standards causing the discriminatory pattern

are job related. Washington v. Davis, 426 U.S. 229,

246-47 (1976); Griggs v. Duke Power, 401 U.S. 424, 431

(1971).

Thus, it is not up to Shidaker at this point to proffer

evidence of lower level female postmaster employees

qualifications or of the percentage of lower level female

employees who applied for upper level positions.

Although evidence of applicant flow may be relevant and

probative, Hazelwood, 433 U.S. at 308 n.13, Shidaker is

not required to present such evidence because she has

established that a gross disparity exists between the

percentage of women in the low level postmaster positions

as compared to those in the higher level postmaster posi-

tions. We therefore remand Shidaker’s disparate impact

rated in positions of PES 19 or higher. Grossly, the disparities

could be significant.

Shidaker v. Bolger, 539 F.Supp. 823, 835 (N.D. Ill. E.D. 1984) (em-

phasis added).

9 Cf. Johnson, 107 S. Ct. at 1465 (O’Connor, J., concurring in

judgment).

lla

claim for further consideration by the district court. As we

stated in our earlier opinion:

[i]f [on remand] the Postal Service can come forward

with evidence of a low percentage of female appli-

cants for upper level jobs or evidence of the lack of

qualifications of women in lower level positions, the

Service might possibly rebut the inference of

discrimination that arises from Shidaker’s prima facie

Statistical showing. The Serivce might also be able to

show the job-relatedness of its promotion standards.

These determinations are best left in the discretion of

the district court on remand, Soria v. Ozinga Bros.,

1704 F.2d 990, 995 n.6(7th Cir. 1983), and are not

properly before us for review.

782 F.2d at 749.

Despite characterizations by the Postal Service, this is

not a case in which the plaintiff seeks to apply a lower

standard for proving a prima facie case. Here, Shidaker

has done more than demonstrate an “imbalance” between

minority representation in the higher and lower levels of

the Postal Service’s work force. Shidaker has proffered

evidence which the district court found demonstrates a

gross disparity between representation of women in the

low level postmaster positions and the upper level post-

master positions. Because the lower level postmasters

comprise the general pool from which high level post-

masters are chosen, these statistics establish a prima facie

case of disparate impact.

The judgment of the district court finding that Shidaker

failed to make a prima facie showing of disparate impact

is reversed, and Shidaker’s disparate impact claim is

remanded for further consideration. On remand, Circuit

12a

Rule 36 will not apply. The district court’s judgment in all

other respects is affirmed.

A true Copy:

Teste:

/S/ THOMAS F. STRUBBE

Thomas F. Strubbe

Clerk of the United States Court of

Appeals for the Seventh Circuit

l3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 84-2791

DARLENE SHIDAKER, PLAINTIFF-APPELLANT

v.

PRESTON R. TISCH, IN HIS CAPACITY AS

POSTMASTER GENERAL (UNITED STATES POSTAL SERVICE),

DEFENDANT-APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION

No. 82 C 5635— WILLIAM T. HArtT, Judge

December 14, 1987

ORDER

Before: Hon. WILLIAM J. BAUER, Chief Judge, Hon.

WALTER J. CUMMINGS, Circuit Judge, Hon. Joe M.

FLAUM, Circuit Judge.

On consideration of the petition for rehearing with sug-

gestion for rehearing en banc filed in the above-entitled

cause by Defendant-Appellee Preston R. Tisch, no judge

in active service has requested a vote thereon, and all of

the judges on the original panel have voted to deny the

petition for rehearing. Accordingly,

Ida

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is, DENIED.

In addition, the opinion of this court in the above mat-

ter dated November 16, 1987, is hereby amended as

follows:

Footnote 6 on page & should read: “Two of the three

men selected for the positions to which Shidaker applied

were postmasters. One of these was a PES-18, the same

level as Shidaker. The third applicant was a Manager of

Mail Processing, a PES-21 position.” é

The ninth line of page 8 also should be amended to read:

“The only factor which seemed to distinguish the rankings

of those deemed qualified was their past experience, not

any particular skills.”

IT IS SO ORDERED.

1Sa

APPENDIX ©

[ORDER LIST, MONDAY, April 6, 1987]

No. 86-468

TiscH, POSTMASTER GEN. OF U.S.

ae

SHIDAKER, DARLENE

The petition for a writ of certiorari is granted. The judg-

ment is vacated and the case is remanded to the United

States Court of Appeals for the Seventh Circuit for further

consideration in light of Johnson v. Transportation Agen-

cy, 480 U.S. (1987).

l6a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 84-2791

DARLENE SHIDAKER, PLAINTIFF-APPELLANT

¥.

PAUL N. CARLIN, IN HIS CAPACITY AS POSTMASTER GENERAL

(UNITED STATES POSTAL SERVICE),

DEFENDANT-APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

ILLINOIS, EASTERN DIVISION

[Jan. 29, 1986]

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 tht Shidaker’s demotion was not

retaliatory.

17a

Shidaker was Acting Postmaster and then Postmaster of

Kenilworth, Illinois from 1962 through 1982. In this posi-

tion she was in pay scale category PES-18.

In 1977 Shidaker applied for vacant postmaster posi-

tions at Glenview, Palatine, and Franklin Park, Illinois.

These positions were PES-22 positions. Ninety-two postal

employees (the Postal Service follows a policy of pro-

moting 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 pro-

motee was as qualified as Shidaker.

In 1978 Shidaker filed an Equal Employment Opportuni-

ty (“EEO”) complaint alleging that she was denied promo-

tion 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 com-

plaint. 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 super-

visor, 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.

18a

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 ac-

corded a full de novo hearing before a hearing officer ap-

pointed to examine the merits of her appeal. Shidaker was

given a chance to respond to all charges and evidence in-

cluding 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. § 2000e-16 and 39

U.S.C. § 409. Count II seeks review of Shidaker’s ad-

ministrative 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 pretex-

19a

tual. 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.

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 pro-

moting 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 im-

balance between the percentage of a minority occupying

high level positions and the percentage of that minority oc-

cupying 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 im-

pact claim for further consideration. We affirm the

district court’s judgment in all other respects, however, in-

cluding its finding that despite Santoro’s letier to Koenigs

the Postal Service adequately complied with its own pro-

cedural regulations when demoting Shidaker.

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,' she made a sufficient prima facie showing of

discriminatory impact. She need not, as the district court

apparently thought, Shidaker v. Bolger, No. 82 C 5635,

mem. op. at pp. 26-27 (N.D. Ill. E.D. 1984), make a fur-

ther 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 im-

pact Shidaker need only present evidence that the Postal

Service’s promotion practices, although facially neutral,

' The district court summarized Shidaker’s statistical evidence as

follows:

The statistics presented to the Court are as follows: In November,

1974, women held 20.8% of the positions in the Postal Service

workforce. The percentage had moved to 23.5% by November,

1980. Nationally, women held 11.5% of the positions at PES 15

and above in January, 1980.

In 1978, the year of Shidaker’s failed promotion, women oc-

cupied 23 of the 108 postmaster positions in the North Subu: ban

MSC, or 21.1% of the total postmaster positions. However, none

of the women postmasters were rated higher than PES 20 and 15

of them were at level PES 15 or lower. Additionally in 1977-78 a

total of 2,008 women were employed in the North Suburban

MSC, 29.4% of the entire Postal Service workforce in the area.

Despite that overall percentage, only four women or 5% were

rated in positions of PES 19 or higher. Grossly, the disparities

could be significant.

Shidaker v. Bolger, No. 82 C $635, mem. op. at 26 (N.D. Ill. E.D.

1984).

2la

Select promotees “in a_ significantly discriminatory

pattern”. Dothard v. Rawlinson, 433 U.S. 321, 329 (1977);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).

This evidence may be, and most often is, statistical in

nature. New York City Transit Authority v. Beazer, 440

U.S. 568, 584 (1979); Teamsters v. United States, 431 U.S.

324, 339-40 (1977). Only in very limited instances may a

court find discriminatory impact from non-statistical

evidence. Dothard v. Rawlinson, 433 U.S. 321, 330 (1977);

Carpenter v. Board of Regents, 728 F.2d 911, 914 (7th Cir.

1984).

Gross disparity between the racial or gender composi-

tion 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 (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 (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 pro-

motees will be drawn. Hazelwood, 433 U.S. at 308 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 (1983); Fisher v. Procter

& Gamble Mfg., 613 F.2d 527, 544 (Sth Cir. 1980), cert.

denied, 449 U.S. 1115 (1981). Thus, where the plaintiff

can show that the employer promotes from within,

evidence of a gross disparity between the percentage of a

minority in upper and lower level positions is sufficient to

I tininneieetee ieee

22a

make a prima facie case of disparate impact. Mozee v.

Jeffboat, 746 F.2d 365, 372 (7th Cir. 1984); Segar v.

Smith, 738 F.2d 1249, 1276-77 (D.C. Cir. 1984), cert.

denied sub nom. Meese v. Segar, Be ccmmene OP ee

2357 (1985); Fisher v. Procter & Gamble Mfg., 613 F.2d

527, 544 (Sth Cir. 1980).

Once a plaintiff makes a prima facie showing with

statistics of this nature, the burden shifts to the defendant

to rebut the inference of discrimination raised by these

statistics. Washington v. Davis, 426 U.S. 229, 241 (1976).

Defendants may rebut a statistical prima facie showing of

disparate impact with statistical evidence of their own that

is “more refined, accurate and valid”, Movement for Op-

portunity and Equality v. General Motors, 622 F.2d 1235,

1245 (7th Cir. 1980); Teamsters v. United States, 431 U.S.

324, 339-40 and 360 (1977), or by showing that the

challenged standards causing the discriminatory pattern

are job related. Washington v. Davis, 426 U.S. 229,

246-47 (1976); Griggs v. Duke Power, 401 U.S. 424, 431

(1971).

Thus, it is not up to Shidaker to proffer evidence of

lower level female employees’ qualifications or evidence of

the percentage of lower level female employees who ap-

plied for upper level positions. The burden is now on the

Postal Service to bring forward evidence that few women

occupying lower level positions have applied for upper

level positions or are qualified for upper level positions, or

to bring forward evidence of the job-relatedness of its pro-

motion standards.

We must, therefore, remand Shidaker’s discriminatory

impact claim for further consideration by the district

court. If the Postal Service can come forward with

evidence of a low percentage of female applicants for up-

per level jobs or evidence of the lack of qualifications of

23a

women in lower level positions, the Service might possibly

rebut the inference of discrimination that arises from

Shidaker’s prima facie statistical showing. The Service

might also be able to show the job-relatedness of its pro-

motion standards. These determinations are best left in the

discretion of the district court on remand, Soria v. Ozinga

Bros., 704 F.2d 990, 995 n.6 (7th Cir. 1983), and are not

properly before us for review.

The district court correctly found that the demotion

procedure was in adequate compliance with Postal Service

regulations. We reject Shidaker’s claim that Santoro’s let-

ter to Koenigs was an ex parte communication that

“voided” the demotion decision.

Shidaker alleges that the demotion procedure violated

Postal Service regulations and thereby denied her due

process. Specifically, Shidaker claims that Santoro’s per-

sonal letter to Koeruigs, sent after Shidaker responded to

Santoro’s notice of seduction in grade, was in violation of

§ 661.5 of the Postal Service’s Disciplinary, Grievance and

Appeal Procedures. That section provides that employees

are to have notice and a chance to respond to charges

against them when they are the subject of a proposed

adverse action. Shidaker claims that this section was

violated by Santoro’s letter because Santoro’s letter alleged

an additional ground for demoting Shidaker and Shidaker

was unaware of that letter until after Koenigs made the

decision to demote her. The Postal Service apparently con-

cedes that § 661.5 was violated here, and we, therefore,

assume that it was.

It is well-settled that an agency must abide by its own

regulations when discharging or disciplining an employee.

Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Service v.

Dulles, 354 U.S. 363, 389 (1957); Accardi v. Shaughnessy,

347 U.S. 260, 268 (1954). Every minor deviation from pro-

Perennial

24a

cedural guidelines, however, does not amount to a denial

of procedural due process sufficient to vitiate the entire

administrative proceeding. Vermont Yankee Nuclear

Power Corp. v. Natural Resources Defense Council, 435

U.S. 519, 558 (1978); County of Del Norte v. United

States, 732 F.2d 1462, 1467 (9th Cir. 1984), cert. denied

sub nom. Assoc. of Cal. Water Agencies v. United States,

__ US. ___, 105 S.Ct. 958 (1985); Boylan v. United

States Postal Service, 704 F.2d 573, 577 (Alth Cir. 1983),

cert. denied, ___. U.S. ___, 104 S.Ct. 1916 (1984); Doe

v. Hampton, 566 F.2d 265, 277 (D.C. Cir. 1977). The

question becomes one of determining the seriousness of

the error by looking to possible prejudice resulting from

such error. Vermont Yankee Nuclear Power, 435 U.S. at

558; United States v. Lovasco, 431 U.S. 793, 790 (1977);

Dozier v. United States, 473 F.2d 866, 868 (Sth Cir. 1973);

Wathen v. United States, 527 F.2d 1191, 1200 n.9 (Ct. Cl.

1975), cert. denied, 429 U.S. 821 (1976).

If the procedure is found substantially defective because

likely to prejudice the rights of individuals subjected to

that procedure, the substantive merits of Shidaker’s par-

ticular retaliation claim are irrelevant. Greene v. United

~ States, 376 U.S. 149, 161-62 (1964); Sullivan v. Dept. of

the Navy, 720 F.2d 1266, 1273-74 (Fed. Cir. 1983); Ryder

v. United States, 585 F.2d 482, 487-88 (Ct. Cl. 1978). We

are thus unconcerned with whether, absent the ex parte

communication from Santoro to Koenigs, Koenigs would

have reached the same decision to demote Shidaker. The

test is not whether the procedural defect caused actual pre-

judice to the rights of the party before the court. Greene v.

United States, 376 U.S. 149, 161-62 (1964); Simmons v.

United States, 348 U.S. 397, 405-06 (1955). The test is an

objective one, whether the particular procedural defect is

so substantial and so likely to cause prejudice that no

claimant can fairly be required to be subjected to adverse

action under such a flawed proceeding. United States v.

25a

Lovasco, 431 U.S. 783, 790 (1977); Vitarelli v. Seaton, 359

U.S. 535, 540-46 (1959); Sangamon Valley Television v.

United States, 269 F.2d 221, 224 (D.C. Cir. 1959).

Although we view this as a close case, we cannot say

that the letter from Santoro to Koenigs was such a serious

departure from Postal Service procedures that it vitiated

the entire process. Even though this was an ex parte com-

munication and in violation of Postal Service regulations,

the defect was not so substantial that it would unfairly pre-

judice the rights of claimants reviewed under procedures

having this defect.

Certainly other cases have found that certain ex parte

communications from an adversary to a neutral ad-

ministrative decision-maker in the context of an employee

discharge or demotion were by themselves procedural

defects substantial enough to vitiate the entire ad-

ministrative proceeding. Sullivan v. Department of the

Navy, 720 F.2d 1266 (Fed. Cir. 1983); Ryder v. United

States, 585 F.2d 482 (Ct. Cl. 1978; Camero v. United

States, 375 F.2d 777 (Ct. Cl. 1967); Sangamon Valley

Television v. United States, 269 F.2d 221 (D.C. Cir. 1959).

We cannot, however, conclude from these cases, as

Shidaker argues, that every ex parte communication is suf-

ficient by itself to undermine the integrity of an ad-

ministrative proceeding. Many other cases have found ex

parte communications in administrative proceedings to be

harmless error. Pinar v. Dole, 747 F.2d 899, 906 (4th Cir.

1984), cert. denied, U.S. ____, 105 S.Ct. 2019 (1985);

Chrysler Corp. v. Federal Trade Commission, 561 F.2d

357, 362 (D.C. Cir. 1977); Doe v. Hampton, 566 F.2d 265

(D.C. Cir. 1977); Korman v. United States, 462 F.2d 1382,

1388 (Ct. Cl. 1972); Salter v. United States, 412 F.2d 874

(Ct. Cl. 1969). Not every ex parte communication is a pro-

cedural defect so substantial and so likely to cause prej-

udice that it entitles the claimant to an entirely new ad-

ministrative proceeding.

26a

Severataspects of this ex parte communication convince

us that it is not such a substantial procedural error that

Shidaker or other claimants subjected to such a defective

procedure are entitled to a new proceeding. First, the

degree of departure from regulatory guidelines was minor.

The regulations did not guarantee Shidaker that Santoro

would not respond to her answer. They simply gave her

the right to answer all charges and allegations made

against her before the demotion decision would be made.

Therefore, Santoro’s letter violated Postal Service pro-

cedures only to the extent that it alleged an additional

ground for demoting Shidaker. This it did in one sentence

stating that “{Shidaker’s] community relations also leave

much to be desired as evidenced by correspondence pre-

viously submitted to you.” Although the Postal Service ap-

parently admits that this single sentence was in violation of

regulations, we do not find that it amounts to the type of

extended, substantial, and adversarial ex parte com-

munication in blatant violation of known procedural

guidelines that has been found fatally defective in other

cases. Sullivan v. Department of the Navy, 720 F.2d 1266

(Fed. Cir. 1983) (supervisor, angered by empiloyee’s filing

of grievance against him, instigated investigation by FBI

and Naval Investigative Service into employee’s work

habits, directed department head to recommend

employee’s removal on basis of evidence discovered in in-

vestigation, encouraged hearing officer by ex parte com-

munication to recommend employee’s removal, and en-

couraged reviewing officer by repeated ex parte phone

calls to finalize employee’s removal); Ryder v. United

States, 585 F.2d 482 (Ct. Cl. 1978) (supervisor, who had

recommended employee for discharge on grounds of inef-

ficiency, wrote a lengthy signed ex parte statement to the

officer who was reviewing the hearing examiner’s findings,

which statement the officer adopted in toto); Camero v.

United States, 375 F.2d 777 (Ct. Cl. 1967) (attorney, who

27a

represented agency at hearing reviewing agency’s discharge

of employee, engaged in on-going ex parte discussion of

case with officials who reviewed that hearing committee’s

recommendation); Brown v. United States, 377 F. Supp.

530 (N.D. Tex. 1974) (prosecutor for agency that dis-

charged employee flew with hearing officer to hearing,

discussed case with hearing officer on plane, stayed in

hearing officer’s hotel, and discussed case after hearing

with hearing officer in car on way back to airport).

Second, the “additional ground” alleged in Santoro’s let-

ter was “additional” to the charges in the “Proposed

Notice of Reduction in Grade” but was cumulative to

other information that Koenigs had already reviewed in

regard to Shidaker’s performance. Santoro’s letter itself

reveals that Shidaker’s poor community relations were

“evidenced by correspondence previously submitted.” We

thus view Santoro’s ex parte communication less harshly

since there is less concern with claimants being unaware of

evidence and charges against them when evidence is

cumulative to that already before the decision-maker. Doe

v. Hampton, 566 F.2d 265, 277 (D.C. Cir. 1977) (harmless

error where evidence, obtained in violation of regulations

and to which claimant had no chance to respond, was

cumulative); Dozier v. United States. 473 F.2d 866, 868

(Sth Cir. 1973) (same); Salter v. United States, 412 F.2d

874, 877-78 (Ct. Cl. 1969) (ex parte communication

harmless error where evidence submitted thereby is

cumulative).

Third, the minor procedural error of Santoro’s ex parte

communication was mitigated by Shidaker’s knowledge of

it, and chance to respond to it, in the full de novo hearing

at which Koenig’s decision was reviewed. We certainly

acknowledge that an ex parte communication can be so

prejudicial that it cannot be “cured” by subsequent review.

Sullivan, 720 F.2d at 1273; Ryder, 585 F.2d at 486-87.

Where the communication is already unlikely to do any

28a

harm, however, we are reluctant to require a reviewing

agency that discovers a minor procedural error to

reinstitute an entirely new proceeding rather than rectify

that error by giving the employee full opportunity to re-

spond to the new charges and evidence in the communica-

tion. Here, Shidaker knew of the existence and contents of

Santoro’s letter to Koenigs before the full de novo hearing

reviewing her demotion. She had full opportunity to re-

spond to the additional charge and present evidence to the

contrary. Whatever 4amage might possibly have been

done by the ex parte communication Shidaker had full op-

portunity to undo.

Finally, we are reluctant to apply a stringent procedural

standard in this particular case since we are not firmly con-

vinced that the regulations give Shidaker the right to have

Koenigs act as a neutral decision-maker. Shidaker was cer-

tainly entitled to have Koenigs consider her response to

charges against her. This, however, would be a sensible re-

quirement for any agency concerned with demoting only

those employees that deserve such adverse action. The

regulations can thus be interpreted in two ways: as allow-

ing Koenigs to act adversely to Shidaker in the interest of

the Postal Service, or as giving Shidaker the right to have

Koenigs act as a neutral decison-maker. Santoro clearly

was not required to act neutrally towards Shidaker while

the hearing examiner reviewing Koenigs’ decision clearly

was. The problem is that Koenigs’ function lies somewhere

in between these two roles of the Postal Service in the ad-

ministrative review process. Although we do not rest our

decision solely on this basis, Koenigs’ uncertain role as

neutral decision-maker makes us unwilling to apply the

high standard of procedural protection designed for ad-

judicatory proceedings.

29a

We find Shidaker’s other bases for appeal to be com-

pletely without merit. The district court’s findings as to the

promotees’ qualifications were not undermined by the fact

that documents underlying the promotion committee’s

decision are now unavailable, and there is sufficient

evidence to find that Shidaker was demoted for miscon-

duct and poor performance and not in retaliation for

challenging her promotion denial as discriminatory.

The judgment of the district court finding that Shidaker

failed to make a prima facie showing of discriminatory im-

pact is reversed, and Shidaker’s disparate impact claim is

remanded for further consideration. On remand, Circuit

Rule 18 will not apply. The district court’s judgment in all

other respects is affirmed.

30a

APPENDIX E

UNITED STATES DISTRICT COURT

N.D. ILLINOIS, E.D.

No. 82 C 5635

DARLENE SHIDAKER, PLAINTIFF

Vv.

WILLIAM BOLGER, IN HIS CAPACITY AS POSTMASTER

GENERAL (UNITED STATES POSTAL SERVICE),

DEFENDANT

{[Aug. 23, 1984]

FINDING OF FACT—CONCLUSIONS

OF LAW AND ORDER

WILLIAM T. Hart, District Judge.

Plaintiff Darlene Shidaker (“Shidaker”) sued her

employer William Bolger in his capacity as Postmaster

General of the United States Postal Service (“Postal Serv-

ice’). Count I alleges discriminatory failure to promote

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-16 and 39 U.S.C. § 409. Count II seeks review of

an administrative appeal of Shidaker’s reduction in grade

by the Postal Service. Plaintiff alleges that the reduction

was in retaliation for her attempt to vindicate the alleged

discriminatory failure to promote. Judicial review of the

entire administrative record of Shidaker’s reduction in

grade is limited to determining whether the Postal

Service’s ostensible reason for the grade reduction,

Shidaker’s alleged poor performance, is supported by

substantial evidence and was not arbitrary or capricious.

Coffmen v. Bolger, 590 F.2d 1366 (Sth Cir. 1979); Alsbury

3la

v. United States Postal Service, 530 F.2d 852 (9th Cir.),

cert. denied 429 U.S. 828 (1976); Oates v. United States

Postal Service, 444 F.Supp. 100 (S.D.N.Y.1978).

FINDINGS OF FACT

A hearing was held by the Court. Shidaker was not

called as a witness. Based on the final pretrial order, which

is incorporated by reference, and the testimony before the

Court, the Court finds the following facts, as of the rele-

vant times, many of which are adopted from the parties’

statement of uncontested facts:

(1) Shidaker, began her Postal Service career on

September 21, 1962, as Acting Postmaster of Kenilworth,

Illinois. She was converted to Postmaster, Kenilworth,

IlInois on May 8, 1964. This position was a PES-18.

(2) When Shidaker was appointed Acting Postmaster in

Kenilworth, Illinois, it was her first employment in any

capacity with the Postai Service or its predecessor Post Of-

fice Departmieni, United States of America.

(3) Prior to her appointment at Kenilworth, Shidaker’s

employment experience was as follows:

1956-1958—Executive Secretary, “Business Week”

(McGraw-Hill), Chicago, Illinois, earning $350.00 per

month;

1958-1961—Office work, Stivers Officer Service,

Chicago, Illinois, earning $4.00 per hour;

1961-1962—Office Manager, Jack Bullock &

Associates, Chicago, Illinois, earning $100.00 per week.

(4) The Kenilworth Post Office is an associate post of-

fice of the North Suburban Metropolitan Service Center

(“MSC”). The associate post offices employ approximate-

ly 5,000 employees, including postmasters and super-

visors. In 1977 there were 108 associate post offices within

the North Suburban MSC. Since 1977, one associate post

office has been eliminated, leaving 107.

32a

(5) Kenilworth is the smallest of the associate post of-

fices according to the number of city delivery routes and

rural delivery routes. It is a “Class C” post office, which

embraces the associate post offices with the smallest

delivery operations. In “Class C,” Kenilworth ranks with

the bottom six post offices by size of delivery operations:

Kenilworth —3 City delivery routes

Fox River Grove -—3 City delivery routes

Genoa —3 City delivery routes

3 City delivery routes and 3

Marengo —rural routes

Winfield —3 City delivery routes

Wihthrop Harbor —3 City delivery routes

(6) The Kenilworth post office is located in northern

Cook County, Illinois. It serves a village with a population

of 3,000. The area is not growing and contains only small

commercial establishments and no industrial firms. There

are three letter carrier routes. At the relevant time, the

authorized complement of employees was 11, including a

PES-18 postmaster, one supervisor and four part-time

employees. Revenue for fiscal year 1977 was $112,297. In

1978, the position of supervisor was eliminated and the

post office was downgraded to PES-15S.

(7) On August 18, 1977, Shidaker applied for the va-

cant PES-22 level postmaster positions at Glenview,

Palatine, and Franklin Park, Illinois.

(8) Franklin Park is a medium size first class post of-

fice, located in the western section of Cook County serv-

ing a population of 35,000. The town contains small in-

dustrial and commercial firms, several large manufactur-

ing businesses as well as a switch-yard. There are 29 city

routes and four auxiliary routes. The authorized comple-

ment of employees is 89, which includes a PES-22 post-

master, seven supervisors and 16 part-time employees.

Revenue for fiscal year 1977 was $5,453,725 and operating

expenses were $1,674,781.

33a

(9) Palatine is a medium size first class post office

located in central Cook County in an area of rapid

residential and commercial growth. The office serves a

population of 70,000. There are 42 city routes, one rural

route and three auxiliary routes. The authorized comple-

ment of employees is 109, which includes a PES-22 post-

master and six supervisors. Revenue for fiscal year 1977

was $2,588,283 and operating expenses were $2,094,581.

(10) Glenview is a medium size first class post office

located in the northern part of Cook County in an area ot

growing residential and commercial activity. The office

serves a population of 52,000. There are 45 city routes and

six auxiliary routes. The authorized complement of

employees is 114, which includes a PES-22 postmaster and

seven supervisors. Revenue for fiscal year 1977 was

$3,648,185 and operating expenses were $2,121,720.

(11) Frank J. Santoro (“Santoro”) has been Manager of

the North Suburban MSC since August 14, 1976. Santoro

and his staff supervise the operation of all of the associate

post offices within the jurisdiction of the North Suburban

MSC. Santoro and his staff are ultimately responsible for

the efficient operation of the associate post offices, pro-

viding advice and supervision in such areas as mail proc-

essing, Customer services, finance and employee and labor

relations. Santoro also is responsible for the efficient

operation of the North Suburban main mail facility which

employs approximately 3,000 employees, including San-

toro and his staff and the employees who sort the mail for

the associate post offices. Santoro is the immediate super-

visor Of each associate postmaster.

(12) The North Suburban MSC is subordinate to the

Northern Illinois District Office, Oakbrook, Illinois. That

Office supervises several MSC’s in Nerthern Illinois. San-

toro’s immediate supervisor is the Manager, Northern

Illinois District. The current District Manager is Richard

Koenigs. His predecessor was William Booras (“Booras”).

34a

(13) The Northern Illinois District is subordinate to the

Regional Postmaster General (RPMG) for the Central

Region. The Central Region encompasses 13 states, in-

cluding Illinois. The RPMG and his staff are located in the

Main Post Office, 433 W. Van Buren Street, Chicago,

Illinois. The Postmaster General, Washington, D.C., is

the immediate supervisor of the (RPMG), Central Region

as well as the RPMGs for the Northeastern, Eastern,

Southern and Western Regions.

(14) During the relevant time period, the Postal Service

had an affirmative action program for women, sometimes

referred to as the “women’s program.”

(15) There were a total of 92 applicants for the

postmaster positions in Glenview, Palatine, and Franklin

Park, and Shidaker was the only female among them.

(16) The Postal Service has a policy of promoting from

within. Ordinarily promotions are made one step at a

time, e.g., from a PES-20 to 21.

(17) On November 3, 1977, a Postmaster Screening

Board, composed of W. Robert Sleep, Postmaster, North-

brook; Ralph Wright, Postmaster, Oak Park and former

postal inspector with jurisdiction over the Kenilworth post

office; Richard Skala, Director Customer Services North

Suburban MSC; and Walter L. Besteda, Director,

Employee and Labor Relations, North Suburban MSC,

met to review applications and screen candidates for the

positions of Postmaster, Glenview, Palatine, and Franklin

Park, Illinois. Besteda is black. No woman was on the

Screening Board.

(18) The Screening Board did not interview the appli-

cants. Each Screening Board member scored each appli-

cant individually, for each vacancy, and the results were

cumulated. In evaluating the applicants, including

Shidaker, the Board had available:

(a) the applicant’s “Personal History Summary’

which showed the applicant’s educational back-

ground, including Postal Service courses taken,

35a

Postal Service employment experience, non-Postal

Service employment experience, participation in civil,

fraternal and professional organizations, and awards;

(b) the applicant’s “Estimate of Potential” (PS

2577) prepared and submitted by the applicant’s im-

mediate supervisor. Form 2577 rates factors such as

“motivation,” “personal growth,” and “capacity to

learn.”

(c) the applicant’s “Analysis of Experience,

Background and Potential” which showed the appli-

cant’s experience and performance in such matters as

labor relations, Equal Employment Opportunity,

decision making (problem solving), budget opera-

tions, employee development, supervision, supervi-

sion of branch operations, planning and scheduling

of work, safety and health, customer and community

relations and general observations;

(d) the applicant’s personnel file; and

(e) any relevant personal knowledge that the Board

members had concerning the applicant’s work per-

formance. The Screening Board also had available

data concerning the community, employee comple-

ment, number of carrier routes and dollar revenue of

each of the vacant post offices.

(19) During their meeting on November 3, 1977, the

Screening Board first evaluated the applicants to deter-

mine those who did not meet the minima! qualifications

for the three positions. These applicants were given no

consideration for the positions. Eleven male applicants,

fifteen male applicants and sixteen male applicants, were

not considered minimally qualifed for the postmaster posi- |

tions in Franklin Park, Palatine, and Glenview, respec-

tively.

(2) The Screening Board next evaluated those ap- |

plicants, including Shidaker, who were determined to be at |

Issiereemnineennmniamenaill

36a

least minimally qualifed for the positions. In evaluating

these applicants, each Screening Board member used the

following scoring system:

8-7: Outstanding Candidate

6-5: Very Good Candidate

4-3: Acceptable Candidate

When the scores were tallied, the highest score an appli-

cant could receive was thirty-two. The Screening Board

decided not to recommend further consideration of those

candidates who received less than twenty points.

(21) At each of the three post offices there were one or

more applicants who were automatically entitled to be in-

terviewed and considered for the vacant position. The

Screening Board did not evaluate these applicants.

(22) In connection with the review of Shidaker for pro-

motion, both Besteda and Wright testified to advising the

Screening Board of their first-hand knowledge of the con-

ditions of the post office run by her. Wright, as a postal

inspector, had investigated an instance of poor security in

connection with the issuance of money orders and he

described Shidaker’s management as sloppy. Wright stated

that he told the Screening Board that Christmas mail

deliveries were two or three days late. Besteda also told the

Screening Board that the Kenilworth post office was not

well managed.

(23) There were 32 applications for the Postmaster of

Glenview, and Shidaker was the only female. She received

a numerical rating of 13, which placed her in the thirteenth

position of 16 qualified applicants. The remaining 16 were

deemed unqualified and were not numerically rated. The

Screening Board recommended seven male applicants as

“qualified and able to assume the duties of the position” at

Glenview. Their scores ranged from 20 to 24.

(24) There were 32 applicants for Postmaster of

Palatine, and Shidaker was the only female. She received a

numerica! rating of 11, which placed her in the sixteenth

37a

position of the 17 qualified applicants. The remaining 15

were deemed unqualified and were not numerically rated.

The Screening Board recommended seven male applicants

as “qualified and able to assume the duties of the position”

at Palatine. Their scores ranged from 20 to 24.

(25) There were 28 applicants for Postmaster of

Franklin Park, and Shidaker was the only female. She

received a numerical rating of 11 which placed her in the

fifteenth position of the 17 qualified applicants. The re-

maining 11 were deemed unqualified and were not

numerically rated. The Screening Board recommended

seven male applicants as “qualified and able to assume the

duties of the position” at Franklin Park. Their scores

ranged from 20 to 24.

(26) Plaintiff was not selected for any of the above va-

cant postmaster positions.

(27) By letters dated December 21, 1977, and January 4,

January 5 and March 21, 1978, Santoro sent his immediate

supervisor Booras the names of applicants eligible for con-

sideration for the vacancies. Some of the names submitted

to Booras were from the lists of applicants recommended

by the Screening Board as “qualified and able to assume

the duties of the position.” The other names sent forward

by Santoro were applicants employed at Franklin Park,

Palatine and Glenview who had a right to automatic con-

sideration for the vacant positions in their respective of-

fices.

(28) The applicants designated in Santoro’s letters to

Booras were interviewed by the Regional Management

Selection Board (“RMSB”) of which Gilbert Brown,

Regional Postmaster Selection Officer, was the executive

secretary. The RMSB then recommended to the Post-

master General one applicant for consideration for each

vacancy on the basis of the applicant’s performance during

the interview and his qualifications reflected in the

materials, e.g. personal history summaries, and estimates

of potential.

38a

(29) The Postmaster General selected the following ap-

plicants to fill the positions:

a. Postmaster at Franklin Park:

Robert G. Boeckenhauer (“Boeckenhauer”)

Manager, Mail Processing (PES-21)

Des Plaines, Illinois

b. Postmaster at Palatine:

James A. Daily (“Daily”)

Postmaster (PES-20)

Bloomingdale, I[}linois

c. Postmaster at Glenview:

William J. Soto (“Soto”)

Postmaster (PES-18)

Algonquin, Illinois

Soto’s name was not among those initially submitted by

Booras for consideration for the Glenview vacancy. He

had received only 19 points when he was evaluated by the

Screening Board. However, some of those candidates who

had earned 20 points and had been submitted for con-

sideration withdrew. Thereafter, Santoro added Soto’s

name to the list of applicants to be considered for Glen-

view.

(30) Boeckenhauer’s promotion was from a PES-21

‘position. He had 21 years of service and was serving in

grade 21 since March of 1973. The Des Plaines Post Office

is grade level PES-24. It serves a population of 105,000.

There are 83 regular and three auxiliary routes. The

authorized complement of employees is 232 including 14

supervisors.

(31) Daily’s promotion was iaen PES-20. He had 12

years of service and was serving in grade 20 since August

of 1975 as postmaster of the Bloomingdale, Illinois 60108

post office. That post office serves a population of 11,500.

It is grade level PES-20. There are six regular and three

auxiliary routes. The authorized complement of

employees is 16 including One supervisor.

39a

(32) Soto’s promotion was from PES-18. He had 15

years of service and was serving in grade 18 since being ap-

pointed postmaster of Algonquin, Illinois in November of

1974. Algonquin, Illinois 60102 serves a population of

14,000. It is grade level PES-18. There are three regular

/ and one auxiliary routes. The authorized complement of

employees is 15 including one supervisor and five part-

time employees. Revenues for fiscal year 1977 were

$237,000 and operating expenses were $259,325. Soto’s en-

try level position with the Postal Service was at level four,

as a temporary carrier at Geneva, Illinois. He received six

promotions before being appointed postmaster at Algon-

quin.

(33) The selected candidates were all given positive

ratings by their immediate supervisors.

(34) During 1977 and 1978 the statistical breakdown by

gender of the Postal Service’s work force in the North

Suburban MSC was as follows:

PES Level M F % F

1-27 5,309 2,208 29.4

19-27 76 4 5.0

(35) According to data introduced by Shidaker in

November 1974, there were 20.8% women in the Postal

Service’s workforce nationally, including postmasters. In

the first quarter of 1980, the percentage was 23.51%. In

January of 1980, women held 11.5% of the national

Postal Service positions in PES levels 15 and above.

In 1978, women held 23 or 21.2% of the 108 postmaster

positions in the North Suburban MSC. None of them was

ranked higher than PES-20. The breakdown is:

PES-20—2

PES-18—4

PES-17—2

PES-15—5

PES-12-—9

PES-03—1

a

40a

(36) No evidence of applicant flow was presented.

(37) On April 28, 1978, Shidaker filed an Equal

Employment Opportunity (“EEO”) complaint alleging

that she was denied promotion to the PES-22 level

postmaster positions on the basis of sex.

(38) On February 27, 1980, a hearing on Shidaker’s

complaint was held before Equal Employment Opportuni-

ty Commission (“EEOC”) Complaint Examiner Robert

Johnson (“Johnson”).

(39) In a decision dated September 2, 1982, Johnson

found that Shidaker was denied promotion on the basis of

sex. He also found that the procedure used by the Postal

Service to make the promotions had a discrim natory im-

pact on women. He did not, however, find discriminatory

the fact that no woman was on the Screening Board.

(40) In a letter dated October 25, 1982, the Postal Serv-

ice’s Regional Director for Employee and Labor Relations

Central Region, informed Shidaker that the Postal Service

was rejecting Johnson’s decision of September 2, 1982.

(41) While Shidaker’s EEO complaint was pending, San-

toro rated her “marginal” on her merit performance

evaluations for fiscal years 1980 and 1981. Prior to 1980

she had never received anything less than a “satisfactory”

rating. A marginal rating denies an employee a salary in-

crease.

(42) No female postmasters except Shidaker received

“unsatisfactory” or “marginal” merit evaluations in 1980,

1981, and 1982. Santoro gave three male postmasters “un-

satisfactory” merit evaluations in 1978. In 1979, Santoro

gave two male postmasters “marginal” merit ratings. In

1980, Santoro gave three male postmasters “marginal”

ratings. In 1981, Santoro gave one male postmaster a

marginal rating. In 1982, Shidaker was the only

postmaster to receive a “marginal” rating. In 1983, two

male postmasters were given “marginal” ratings.

4la

(43) Santoro’s written comments accompanying

Shidaker’s evaluation in 1980 indicate:

Ms. Shidaker rated herself “Good” but she received a

“Marginal” rating because of poor performance in all

major areas of her office. Blames her supervisor for

performance of office. Negative performance in car-

rier operation of 8.2% even after discounting Ac-

counting Periods 4 and 5 due to severe weather. Clerk

productivity down 1.7% vs SPLY [Same Period Last

Year]. Needs to become more directly involved in of-

fice operations and to improve her attitude and

cooperation with MSC staff. [Bracketed words

added].

(44) On April 28, 1980, Shidaker was issued a “Pro-

posed Notice of Adverse Action.” The Notice informed

her that Santoro proposed to remove (discharge) her from

employment for incidents of “misappropriation and per-

sonal use of postal funds,” and for “misrepresentation of

work hours.” The dates alleged were October 8, 1978,

August 17, 1979, November 19, 1979 and January 17,

1980. The incidents involved the alleged unauthorized is-

suance of postal money orders in the amounts of $20.00

and $35.00 for personal annual membership fees in an

Organization called “Women In Management,” the

unauthorized purchase with Postal Service funds of a

Village of Kenilworth motor vehicle sticker for Shidaker’s

personal automobile; and taking 32 hours of leave but

knowingly entering the time as worked on her time card

rather than charging the absence to annual leave.

(45) On September 3, 1980, Shidaker, who was repre-

sented by counsel, entered into an EEO settlement of the

notice of removal. The settlement agreement provided, in

pertinent part, that she would be reduced “from a step

42a

six to step three in the EAS' 18 pay scale.” This reduction

in pay amounted to approximately Three Thousand

Dollars ($3,000.00).

(46) In 1981, Santoro wrote on Shidaker’s evaluation

form: “Employee rated ‘marginal’ because of misappropri-

ation of postal funds.”

(47) On February 8, 1982, Santoro issued Shidaker a

“Proposed Notice of Reduction in Grade.” It was pro-

posed that due to her alleged official misconduct she be re-

duced from Postmaster, Kenilworth, Illinois, PES-18 at a

salary of $26,300, to a full-time distribution clerk, PES- 5,

Step 12, at a salary of $22,325.00.

(48) Shidaker ultimately was reduced in grade to a leyel

PES-5, full-time regular distribution clerk.

(49) On February 18, 1982, Shidaker filed a written

EEO complaint, claiming that the February 8, 1982 notice

of grade reduction was issued in reprisal for filing on April

28, 1978 her EEO administrative complaint concerning the

failure to be promoted. She scheduled an appointment to

discuss the prior EEO complaint with a Postal Service

EEO Investigator.

(50) Shidaker previously had filed timely EEO com-

plaints alleging that the marginal ratings for 1980 and 1981

were issued in retaliation for her filing of the EEO com-

plaint in 1978. By a decision dated August 6, 1982, the

EEOC issued a final administrative determination that

Shidaker’s marginal rating for fiscal years 1980 and 1981

did not violate Title VII. Shidaker renewed the claims of

retaliation in her civil complaint but abandoned them

before trial.

' There is some confusion over the designation of pay scale

categories, i.e., “PES, “PMS” or “EAS.” Each designation likely is

correct, depending on the year in question. For example, in 1980 the

“EAS” designation apparently replaced the “PES” rating. For ease the

Court adopted the “PES” designation, except where the rating appears

within a quotation.

43a

(51) Shidaker also filed an administrative appeal from

her reduction to a PES-S distribution clerk. By letter dated

March 1, 1983, the Postal Service informed her that its

final decision was that the charges against her were sup-

ported by the evidence and warranted the reduction.

(52) The meaning and purpose of the 16 item Model

Delivery Office (““MDO) Checklist,” which is part of the

Postal Service’s Exhibit 22, is as follows:

Item 1. “Minimum— 80% Mail Volume

a. Mail ledged for carrier.”

The purpose of Item 1 is to have at least 80% of the

morning mail volume at each post office sorted by the

clerks and at each letter carrier’s sorting case when the car-

rier starts work. Before the carrier leaves the post office to

deliver his or her route, he or she must “case” the mail that

is, sort it in sequence of delivery, by street and address.

The carrier “cases” the mail by sorting it into designated

separations (“pigeon holes”) in the carrier’s case. Each car-

rier case has a “mail ledge” at the front of the case where

the mail is placed for “casing.” The mail is placed on the

ledge, stamp side down and to the carrier’s right hand side

to ensure efficient casing.

Item 3. “DUVRS

a. Data used for workhour decisions.”

“DUVRS” means “Delivery Unit Volume Recording

System.” It requires the measurement with a foot rule of

the daily mail volume ultimately delivered by the letter car-

rier. It is estimated that a linear foot of letter size mail con-

tains 250 pieces. “Flats”, such as magazines and other

magazine size mail, contain 115 pieces per linear foot.

These daily measurements are made so that supervisory

and managerial employees can decide whether a carrier

needs overtime, auxiliary assistance by another carrier or

curtailment of mail on a given day or whether individual

carriers have insufficent volume (“undertime”) to fill an

eight hour day.

44a

Item 4. “Workload Leveling.”

The objective of workload leveling is to ensure that each

carrier has sufficient mail to fill an eight hour day. “Level-

ing” is achieved by curtailing the delivery of mail on a

given day and also by dividing mail between carriers so

that each has enough mail to fill an eight hour day.

Item 5. “Carrier Control Forms.”

Item 5 requires the daily review of workhour control

forms and mail volume curtailment forms. The purpose of

this review is inter alia to reduce the need to curtail the

delivery of mail; to eliminate problems of carriers ieaving

the office late to deliver their routes; to eliminate problems

of late delivery of mail; to eliminate problems of excess

overtime; and to correct problems of carrier work

methods.

Item 6. “Pivoting.”

Pivoting involves assigning carriers having “undertime”

to assist carriers who have more mail than they can deliver

in eight hours. Effective pivoting requires daily knowledge

of the mail volume of each carrier.

Item 7. “Reporting Times.

a. Supervisors

b. Carriers

(1) 80% Mail Volume

(2) FLSA”

This item requires that the starting times of supervisors

and carriers be checked and coordinated so that the super-

visor, Or Other responsible person, starts work ahead of

the carriers to ensure inter alia that 80% of the mail

volume is sorted by the clerks and at the carrier’s case

when the carrier starts work. It also is required that the

Carrier’s starting time be scheduled so that the carrier does

‘not start before the 80% requirement is met.

45a

The Fair Labor Standards Act (“FLSA”) aspect of the

program requires responsible management or supervisory

personnel to monitor the times that employees punch in

and out, or otherwise start and end work, so that they do

sO alt appropriate times in order to avoid unearned over-

time under FLSA.

Item 8. “Park Points.”

a. Five or less unless otherwise justified.

Letter carriers who drive their routes, drive to various

points, park and lock their vehicles and deliver a portion

of the mail. The purpose of restricting parking points to

five or fewer points is to save gasoline, unnecessary

mileage and time otherwise lost by unnecessary parking

and locking and mounting and dismounting the vehicle.

Item 9. “Relays.

a. Weighted In Office.”

A relay is a segment of a carrier’s route which weighs ap-

proximately 30 pounds, the weight a carrier carries and

delivers at a given time. The relays are weighed at the post

office so that the 30 pound requirement is met for each

relay. The purpose is to assure the minimum possible

relays thereby avoiding unnecessary relays and wasted

time.

Item 10. “Office Supervision.”

The purpose of office supervision is to ensure that

employees observe proper starting and stopping times, use

efficient work methods and observe the other rules of the

workplace.

Item 11. “Street Supervision.”

The purpose of street supervision is to ensure that car-

riers are using efficient work methods and observing perti-

nent work rules. Street supervision includes checking

whether the carrier is taking appropriate short cuts,

46a

following efficient delivery patterns, unnecessarily

deviating from the route and taking lunch and other

breaks at designated times and locations.

Item 12. “Mobile Accountable Cart.”

Item 12 is a system by which accountable mail, e.g.,

registered, certified, C.O.D. and postage due mail, is

brought to the carrier at his or her case in order to save

time.

Item 13. “Parking and Loading.”

The purposes of “Parking and Loading” include check-

ing for the most efficient parking places for Postal Service

vehicles in order to avoid interference with official vehicle

operations and designated customer parkings; and check-

ing whether employees efficiently load vehicles for sequen-

tial route delivery; make a minimum number of trips from

office to the vehicle; and how they transport mail to the

vehicle.

Item 14. “Review PS Forms 4570.”

A PS Form 4570 is a Vehicle Trip Report, documents

daily starting and ending times and mileage. Its purpose is

to ensure proper utilizaton of the vehicle. For example,

review of the forms ensures that the reports are made;

forms are accurately filled in; unauthorized mileage is not

used; and mileage rates are accurate.

Item 15. “Carrier Route Books.”

Route books are checked to verify that they contain re-

quired information. For example, they must contain the

route map; any special instructions for the route; the form

which reflects designated break and lunch times and

designated lunch locations; and the M-41 handbook which

is the carrier work method book.

47a

Item 16. “Carrier Case Labels.”

These are strip labels of various colors (“color coded”)

which bear the street name and delivery addresses in

delivery sequence. These labels are affixed to the ap-

propriate pigeon holes in the letter carrier’s sorting case. It

is required that the labels be typewritten and color coded.

Color coding results in separations for letters and flats

with the same destination bearing the same color.

(53) Defendant’s Exhibit 64 is a “Daily Condition

Report” form. It is used during specified accounting

periods, including the Christmas season period of heaviest

mail volume. Column 1 lists four post offices within the

North Suburban MSC. Lake Bluff, Kenilworth and Mor-

ton Grove are required to call in to the Park Ridge Post

Office the information in columns two through eight daily

by a specified time. Column two reports the number of

city delivery routes. Column three reports the total

number of trays, 500 pieces of first class (“pref”) mail per

tray that the cierks have not sorted by their “cut off time,”

the time they were required to stop sorting mail. “Pref

mail” includes personal letters, registered letters, and cer-

tified return, receipt mail. “Non Pref” mail includes

magazines and advertisements. Column four reports the

total number of trays of “pref” mail that have not been

sent to the carriers’ cases at the clerks’ cut off time. Col-

umn five reports the number of carrier routes which have

curtailed, j.e., not to be delivered, “pref” mail. Column six

reports the number of routes with three or more trays of

curtailed “pref” mail. Column seven reports any “nonpref”

mail more than one day behind in delivery. Column eight

reports any parcel post mail more than one day behind in

delivery.

One of the main reasons for acquiring this daily infor-

mation during the Christmas season is to ensure the timely

delivery of the mail by post office to post office assistants

48a

and other means. Management personnel also need this

daily information so that they can readily answer inquiries

from the public concerning the status of mail delivery dur-

ing the peak season.

CONCLUSIONS OF LAW

Shidaker attempts two theories for proving a Title VII

violation relative to her failure to win promotion: (1) the

Postal Service’s procedure for selecting candidates for pro-

motion to postmaster has a “disparate impact” on women;

and (2) the Postal Service intentionally discriminated

against her by promoting a male instead of her, although

she was qualified.

DISCRIMINATORY IMPACT

A plaintiff makes a prima facie case of discriminatory

impact merely by showing that the employer’s facially

neutral criteria for hiring or promotion have an adverse

impact on a protected class to which he or she belongs.

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28

L.Ed.2d 153 (1971). Unlike a case of “disparate

treatment,” McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817. 30 L.Ed.2d 668 (1973), proof of

wrongful motive is not required. I/nternational

Brotherhood of Teamsters v. United States, 431 U.S. 324,

335-36 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396

(1977). Where an individual brings a discriminatory im-

pact claim, a prima facie showing is not overcome by the

employer’s subsequent attempt to minimize the

discriminatory impact of the procedure by favoring some

members of the protected group. Title VII provides an

equal opportunity for each applicant, and “ ‘[a] racially

balanced work force cannot immunize an employer from

liability for specific acts of discrimination.’ ” Connecticut

v. Teal, 457 U.S. 440, 454-55, 102 S.Ct. 2525, 2534-2535,

49a

73 L.Ed.2d 130 (1982), quoting Furnco Construction Co.

v. Waters, 438 U.S. 567, 579, 98 S.Ct. 2943, 2950, 57

L.Ed.2d 957 (1978).

Prima facie adverse impact is demonstrated by various

Statistical means, depending on the nature of the chal-

lenged practice and the employer. Regardless of the

method chosen, the plaintiff must present supporting

statistical data with some degree of precision. New York

City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct.

1355, 59 L.Ed.2d 587 (1979); Soria v. Ozinga Brothers,

Inc., 704 F.2d 990 (7th Cir.1983). In limited cir-

cumstances, a court may project disparate impact from

non-statistical data. Dothard v. Rawlinson, 433 U.S. 321,

97 S.Ct. 2720, 53 L.Ed.3d 786 (1977); Carpenter v. Board

of Regents, 728 F.2d 911, 914 (7th Cir.1984).

If adverse impact can be inferred from plaintiff's data,

the employer may present evidence indicating that the

challenged practice or rule is a “business necessity.” Griggs

v. Duke Power Co., supra. The practice or rule must bear

a manifest relation to the job in question. Jd., 401 U.S. at

432, 91 S.Ct. at 851. See also Solo Cup Co. v. Federal In-

surance Co., 619 F.2d 1178, 1186 (7th Cir.), cert. denied

449 U.S. 1033, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980).

If the employer shows that the challenged procedure is

necessary to its business, the plaintiff may show that the

rule actually is a pretext for discrimination. A/bemarle

Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45

L.Ed.2d 280 (1975). It is at this juncture only that the

employer’s motive is tested. New York City Transit

Authority v. Beazer, supra. A plaintiff may demonstrate

pretext by showing that other, non-discriminatory, selec-

tion criteria would serve the employer’s purpose as well.

Carpenter v. Board of Regents, supra.

50a

The burden of proving discriminatory impact remains

with Shidaker throughout the inquiry. Only the burden of

going forward is imposed upon the Postal Service if a

prima facie showing of discriminatory impact is made.

Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

As a threshold matter, it is arguable whether disparate

impact analysis is even proper here where the system at-

tacked includes both objective and subjective parts. The

Eighth Circuit addressed the question and holds that “{a]

subjective decision-making system cannot a/one form the

foundation for a discriminatory impact case.” (emphasis

added). Harris v. Ford Motor Co., 651 F.2d 609, 611 (8th

Cir.1981). See also Talley v. United States Postal Service,

720 F.2d 505, 507 (8th Cir.1983), cert. denied 104 S.Ct.

2155, 80 L.Ed.2d 541 (1984). The Seventh Circuit recently

noted the issue, but found it unnecessary to resolve. Soria

v. Ozinga Brothers, Inc., supra.

The use of subjective criteria is not unlawful per se. See

e.g., Rogers v. International Paper Co., 510 F.2d 1340,

1345 (8th Cir.), vacated and remanded on other grounds,

423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975). The ques-

tion is do the selection criteria, objective or subjective, im-

permissibly burden a person in a protected group. Thus

discriminatory impact analysis may be applied here,

though the procedure which is challenged consists of sub-

jective parts.

The validity of subjective devices increases in direct pro-

portion to the level of employment sought. In cases where

the skills sought are minimal or can be objectively quan-

tified, or the position is entry level, courts reject as il-

legitimate purely subjective evaluations of potential or

fitness. Nanty v. Barrows Co., -660 F.2d 1327 (9th

Cir.1981); Rowe v. General Motors Corp., 457 F.2d 348

(Sth Cir.1972).

Sla

In contrast, while objective factors may play a threshold

role in professional or entry level management positions,

decisions as to promotions at these levels likely turn on an

evaluation of more intangible subjective qualities, such as

leadership skill and ability to take decisive action when

necessary. However, even subjective tests for upper level

employees and professionals will not withstand scrutiny

unless the underlying goals are clear and job-related. See,

e.g., Davis v. Board of School Commissioners, 600 F.2d

470, 474-75 (Sth Cir. 1979) (principal); Peters v. Lieuallen,

568 F.Supp. 261, 266 (D.Or.1983) (compliance officers,

state department of higher education). But see Leisner v.

New York Telephone Co., 358 F.Supp. 359

(S.D.N.Y.1973) (interviews for women in management re-

jected). See also Yuhas v. Libbey-Owens-Ford Co., 562

F.2d 496 (7th Cir.1977) (husband and wife);

discriminatory intent cases: Harris v. Group Health

Association, Inc., 662 F.2d 869 (D.C.Cir.1981) (doctor);

Frausto v. Legal Aid Society of San Diego, Inc., 563 F.2d

1324 (9th Cir.1977) (attorney); Powell v. Syracuse Univer-

sity, 580 F.2d 1150 (2d Cir.), cert. denied 439 U.S. 984, 99

S.Ct. 570, 58 L.Ed.2d 656 (1978) (professor); Chalk v.

Secretary of Labor, 565 F.2d 764 (D.C.Cir.1977), cert.

denied 435 U.S. 945, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978)

(writer/editor).

Although it is appropriate to use disparate impact

analysis, Shidaker fails to make out a prima facie case of

disparate impact. The statistics presented to the Court are

as follows: In November, 1974, women held 20.8% of the

positions in the Postal Service workforce. The percentage

had moved to 23.5% by November, 1980. Nationally,

women held 11.5% of the positions at PES-15 and above

in January, 1980.

In 1978, the year of Shidaker’s -failed promotion,

women occupied 23 of the 108 postmaster positions in the

North Suburban MSC, or 21.2% of the total postmaster

52a

positions. However, none of the women postmasters were

rated higher than PES-20 and 15 of them were at level

PES-15 or lower. Additionally in 1977-1978 a total of

2,008 women were employed in the North Suburban MSC,

29.4% of the entire Postal Service workforce in the area.

Despite that overall percentage, only four women or 5%

were rated in positions oi PES-19 or higher. Grossly, the

disparities could be significant.

However, aside from informing the Court that she was

the only female applicant for the three PES-22 postmaster

vacancies in 1977, Shidaker presented no other evidence of

applicant flow. The Court was not informed of how many

women, if any, had applied for X number of vacant

postmaster positions, of any level, in the past. Nor does

the Court know how many women even were eligible to

apply for the 1977 or past vacancies. No breakdown of the

number of women in each PES position by year was

presented. Without such basic data, the impact of the

Postal Service’s promotion procedure cannot be fairly

tested.

The use of statistics in investigation of management

discrimination is complicated by the problem of defining

the relevant labor pool. Lower level jobs require skills pre-

sent or readily acquired by persons in those categories.

Such an assumption does not apply to management jobs

which demand skills and training possessed by relatively

few individuals. Accordingly, the absence of applicant

flow data is a serious deficiency in Shidaker’s proof.

Although expert testimony is not required in every case,

no presentation was made to analyze or probe the limited

data which were presented.

The paucity of data also prevented the Court from

testing for adverse impact by reference to the “Four-Fifths

Adverse Impact Rule” utilized by the EEOC. 29 C.F.R.

4 1607.4. Under this approach, a selection rate is deter-

mined by examining the employer’s actual experience in

Pe ae ne

53a

hiring or promoting, and comparing the percentage of

minority applicants with nonminority applicants who are

hired. If “[{a} selection rate for any race, sex or ethnic

group .. . is less than four-fifths (4/5) of the rate for the

group with the highest rate,” the selection process normal-

ly has an adverse impact. /d.

Having failed to prove a prima facie case of

discriminatory impact, it is unnecessary for the Postal

Service to prove whether its promotion procedure was a

business necessity.

DISPARATE TREATMENT

The Court concludes that Shidaker has made a prima

facie showing of disparate treatment in accordance with

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973):?

(1) she belongs to a group protected by Title VII;

(2) she was at least as qualified for promotion as one of

the candidates selected;

(3) she was considered but denied promotion; and

(4) the jobs that she sought were filled by men.

Of the three candidates promoted to the positions

sought by Shidaker, two of them were more qualified

when judged only by objective criteria. Prior to promo-

tion, Boeckenhauer was a PES-21 postmaster in Des

Plaines. The Des Plaines Post Office was roughly com-

parable to any of the three post offices with vacancies. It

served a population of 105,000, with 88 regular mail

routes and utilized 232 employees. Boeckenhauer had been

with the post office for 21 years, four of which were at

grade PES-21.

? There is some doubt in this Circuit whether the McDonnell

Douglas standards for prima facie disparate treatment apply in pro-

motion cases, where the criteria are subjective and the evaluation is

comparative. Mason v. Continental Illinois National Bank, 704 F.2d

36) (7th Cir. 1983).

54a

Daily had 12 years of service, with two years in grade

PES-20. He managed the Bloomingdale Post Office,

which served a population of 11,500, with six regular

routes and 16 employees. Although the difference between

Shidaker’s qualifications and Daily’s is not as dramatic

as the difference between those of Shidaker and

Boeckenhauer, a marked difference nonetheless exists.

While Shidaker had 15 years experience, 13 of which were

at PES-18, all her service was at the Kenilworth Post Of-

fice, one of the six smallest in the North Suburban MSC.

Kenilworth’s population is almost four times smaller than

Bloomingdale’s, and it had one half as many delivery

routes. Furthermore, Shidaker was responsible for only

six full-time employees, the other four positions author-

ized were part-time positions.

The Postal Service has demonstrated that Boeckenhauer

and Daily were selected for their superior qualifications.

In Holder v. Old Ben Coal Co., 618 F.2d 1198, 1201-02

(7th Cir.1980), the Seventh Circuit stated

{a] desire to hire the more experienced or better

qualified applicant is a non-discriminatory, legitimate

and common reason on which to base a hiring deci-

sion. Thus . . . plaintiff must foreclose this possible

explanation for a hiring decision before a prima facie

case is established.

By inference, the Title VII plaintiff in this Circuit must

allege that he or she is as qualifed or more qualified than

those persons who received the position sought by the

plaintiff. See also Mason v. Continental Illinois National

Bank, 704 F.2d at 364. (“No rational enterprise that has

several qualified candidates for a position selects among

them by lot, it picks the best qualified”).

Thus if Shidaker is to prevail at all, it must be by

demonstrating first that she is as qualified as Soto and sec-

ond that the Postal Service promoted Soto instead of her

for discriminatory reasons. Shidaker and Soto each were

55a

rated as PES-18 postmasters and had been employed by

the Postal Service for 15 years. Furthermore, both the

Algonquin and Kenilworth Post Offices had only three

regular delivery routes. On one level, it appears that

Shidaker was more qualified for promotion than Soto.

Shidaker served in a PES-18 position for 13 years, while

Soto was in that grade for fewer than three years. That

“deficiency” in Soto, however, is balanced by the fact that

Soto entered the Postal Service as a level four employee

and received six promotions before his appointment as

postmaster in Algonquin. Shidaker’s position as a PES-18

was an entry level position. Another leveling factor is that

the Algonquin Post Office serves a population area more

than three times the size of the Kenilworth Post Office,

thereby exposing its postmaster to a greater degree of

financial transactions and experience. Finally, at Algon-

quin, Soto was in charge of 15 employees including one

supervisor and five part-timers. Shidaker’s authority ex-

tended over ten employees including five part-timers.

Although the case is close, the Court finds that on

balance Shidaker and Soto were roughly of equal

qualifications.* Shidaker has made out a prima facie case

of disparate treatment. The burden of going forward now

shifts to the Postal Service to articulate a legitimate, non-

discriminatory reason for denying the promotions to

Shidaker. Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67

L.Ed.2d 207 (1981); McDonnell Douglas Corp. v. Green,

supra.

> The Court could have found that Shidaker was not even minimal-

ly qualified and, therefore, that no prima facie case was proved. The

Screening Board established that no candidate with less than 20 points

would be recommended. That finding was rejected, however, as the

Court considered instead the grosser qualifications of longevity and

level of service to constitute minimal qualifications. Soto was not

awarded 20 points as a composite score by the Screening Board either.

56a

The Postal Service states that the reason for selecting

Soto over Shidaker was that Shidaker was not recom-

mended by the Screening Board. Her composite score for

each vacancy was below 20, which was the cutoff score be-

tween recommendation and not. Soto’s composite score

for the Glenview vacancy was 19, and he also was not

recommended initially. His name was put forward only

after those candidates with higher scores either dropped

out or were otherwise eliminated. Soto and one other can-

didate had the next highest scores of 19. It is irrelevant

whether both of the men who earned scores of 19 were

then recommended. What is important is that @ next most

qualified candidate was recommended and ultimately

selected. The reason that Soto was elevated into the run-

ning, /.e., his higher composite score, is a legitimate, non-

discriminatory business reason —if the process used to ar-

rive at that score is valid under the circumstances.

The Postal Service has demonstrated that the persons

selected to fill the vacancies were required to have high

levels of management skills. Each post office vacancy to

be filled, including the Glenview office to which Soto was

promoted, was designated “medium size, first class,”

served populations ranging in size from 35,000 to 70,000,

included commercial and industrial firms, had from 29 to

42 regular delivery routes, and was growing. The post-

masters chosen would supervise between 89 to 114 em-

ployees and be responsible for annual revenue of up to

$5.5 million.

To probe the managerial ability of the applicants, a

Screening Board, which included one minority member,

was appointed and given previously compiled records of

each applicant. Those records included both Postal Serv-

ice and non-Postal Service histories. Of particular rele-

vance was material on each applicant’s experience and per-

formance in employee relations, budget operations and

planning and scheduling of work. To the historical data

57a

was added an “Estimate of Potential,” prepared by the

applicant’s immediate supervisor. The Estimate rated the

applicant on factors such as motivation, personal growth

and learning capacity.

The initial scores assigned to each applicant were de-

rived by each screener without consultation with the

others, thereby minimizing the possible force of anecdotal

influence in the first scoring. Each applicant was separate-

ly rated for each vacancy sought. Although the screeners

later added their specific, firsthand observations about

Shidaker’s work style and managerial ability, (and

presumably about the other applicants), those observa-

tions were pertinent to the skills required for the positions

sought.

While most of the material relied upon by the screeners

was subjectively derived, the Screening Board made an ef-

fort to objectify its decision by applying a point system to

the findings, considering each vacancy separately and then

by comparing each candidate to the others. Each candi-

date who was not automatically entitled to be recommend-

ed for interview, was required to be evaluated by this same

subjective/objective process. The Court finds that the pro-

cedure used by the Postal Service to initially select candi-

dates for promotion consideration was permissible and

without overt indicia of discrimination.

It remains only to decide whether the Postal Service

erred by selecting Soto instead of Shidaker. It did not.

There is no obligation under Title VII requiring an

employer to integrate its workforce or make gender-

preferential promotions where all candidates are equal or

minimally qualified. Texas Department of Community

Affairs v. Burdine, supra. “(T]he employer has discretion

to choose among equally qualified candidates, provided

the decision is not based upon unlawful criteria.” Jd. at

259. 101 S.Ct. at 1097. Similarly, outside the factory set-

ting the first qualified applicant need not be selected where

58a

a choice is made “ ‘on the basis of qualifications, recom-

mendations and subjective impressions.’” Mason v.

Continental Illinois National Bank, 704 F.2d at 365,

quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1017, n. 18

(ist Cir.1979).

Where, as here, the promotion selection among

minimally and arguably equally qualified applicants was

made for a legitimate business reason, and no evidence of

purposeful discrimination is offered, a plaintiff cannot

show that the employer’s proffered reasons are pretext.

Shidaker cannot rebut by showing that “but for” gender

discrimination she would have been selected. See Mc-

Cluney v. Joseph Schlitz Brewing Co., 728 F.2d 924, 928

(7th Cir. 1984); Sherkow v. State of Wisconsin, Depart-

ment of Public Instruction, 630 F.2d 498, 502 (7th

Cir.1980). Shidaker has not proved, by a preponderance

of the evidence, that the Postal Service failed to promote

her because she was a woman.

RETALIATORY REDUCTION IN GRADE

The matter of administrative review of Shidaker’s

reduction in grade was presented to the Court without sup-

porting briefs discussing the evidence or, with one excep-

tion, Oral argument pointing out in what respect Shidaker

claims the hearing officer erred. That exception relates to

- Shidaker’s claim that she did not receive a copy of a letter

sent by Santoro to a higher authority after Shidaker’s re-

sponse to the damages for grade reduction. The Court has

reviewed the administrative record and the notice of

reduction in grade and finds that the decision to reduce is

supported by substantial evidence.

The charges in the notice to reduce which were found to

be substantial after administrative review were (1) failure

to follow management’s instructions; (2) failure to timely

report status of mail and failure to follow managerial in-

structions; (3) failure to train an employee to assume re-

59a

sponsibility in Shidaker’s absence; (4) falsely accusing an

employee of serious misconduct; and (5) failure to take

disciplinary actions against an employee despite manage-

ment’s instructions to do so. Shidaker also had been

notified that her reduction was due to a failure to file

reports of status mail during the Christmas 1981 period

and misrepresentation of work hours. However those

charges were not sustained.

A review of the relevant evidence in support of the find-

ing for grade reduction is: Shidaker persistently ignored or

disobeyed repeated instructions to bring her office into

compliance with the Fair Labor Standards Act by correct-

ing numerous time-keeping and pay computation errors

involving straight time, overtime and night differential

pay for her employees. Ultimately, personnel at the North

Suburban MSC had to prepare the necessary corrected

forms and send them to Shidaker for her signature.

Shidaker’s failure to make these corrections cost the Postal

Service $356.00.

Despite notice of the MDO program and its efficiency

goals, and training and instructional visits by members of

the MSC staff, Shidaker failed to bring her post office into

compliance with several items of the program: Item 1, re-

quiring the availability of 90% of the mail volume for the

letter carriers when they report for work; Item 3,

“DUVRS,” whish is data used for work hour decisions;

Item 4, workload leveling; Item 5, carrier control forms;

Item 7, reporting work hours of supervisors and carriers;

liem 8, park points—S or less unless otherwise justified;

Item 9, relays; Item 10, office supervision; Item 11, street

supervision; Item 12, mobile accountable cart; Item 14,

Review PS (Postal Service) forms 4570; Item 15, carrier

route books.

Shidaker also failed, despite repeated instructions, to

change her starting time to 8:00 a.m. so that she could

“assign auxiliary assistance or overtime” for the letter

60a

carriers and make any decisions necessary to expedite the

sorting and casing of the mail; to appoint and train an act-

ing supervisor (204B supervisor) who could serve in her

absence; and to submit a 16 point MDO check list reflect-

ing the dates by which she proposed to implement the 16

MDO items or the dates on which she had implemented

the items.

All postmasters in the North Suburban MSC were in-

structed to complete the “Daily Condition Report,” which

is a seven (7) item report concerning the status of mail in

their post offices, during the period December 10-24,

1981. They also were instructed to report the information

daily by telephone to a designated post office. Shidaker

failed to make her report in a timely manner to the Park

Ridge Post Office on Saturday, December 12, Monday,

December 14, and Thursday, December 17, 1981. When

requested to explain this failure, Shidaker’s response to

one MSC manager was, “Cool it man.” When Santoro re-

quested an explanation, Shidaker accused Santoro of be-

ing “completely out of line” and of having “very poor

judgment.”

Shidaker failed to comply with Santoro’s July 27, 1981

order that she train an employee to serve as an acting

supervisor (204B supervisor) during her absences. She also

failed to comply with Santoro’s subsequent order of

August 5, 1981. On December 16, 1981, almost five (5)

months later, Shidaker requested a level 13 supervisor to

cover the Kenilworth post office cones her forthcoming

three weeks of leave.

In a letter to Santoro dated July 28, 1981, Shidaker ac-

cused Charles Fargo, a full-time clerk in Kenilworth, of

falsifying time cards, falsifying mail volume reports and

writing a partially obscene letter during work time. When

Postal Inspectors investigated, Shidaker could produce no

records or other evidence of such falsifications although

such falsifications are felonies under federal law.

:

4

q

4

fasinates aii hae alia! at cid

6la

Nonetheless, Shidaker told the inspectors that Fargo

also had misused a “penalty indicia” Postal Service

envelope in connection with the later. When the Postal In-

spectors indicated that they would question Fargo,

Shidaker then said that her accusations were intended only

to oppose Fargo’s elevation to the position of acting super-

visor, Kenilworth. Although Shidaker was repeatedly in-

structed to take corrective actions against employee Mon-

toya, who actually wrote the letter and misused the penalty

envelope, she refused to do so. Misuse of a penalty

envelope is a federal crime.

Shidaker also complains that after she answered charges

made against her by Santoro, Santoro responded to his

higher authority without sending her a copy of his re-

sponse to her answer. Any procedural error committed by

not sending her a copy of Santoro’s response was cured by

the fact that the entire administrative record was available

to Shidadker when the matter was heard by the appointed

hearing officer.

The Court finds that there is substantial evidence in the

record to support the finding of the Postal Service that

Shidaker was not reduced from Postmaster PES-18 to full-

time distribution clerk, PES-5, step 12 in reprisal for filing

the April 28, 1978 EEO complaint. The reduction was the

result of Shidaker’s misconduct and poor work perform-

ance, as specified in the proposed notice to reduce her

from postmaster to clerk and set forth in the above Find-

ings of Fact. Therefore, the decision to reduce Shidaker in

grade was neither arbitrary nor capricious.

IT IS THEREFORE found that

(1) Shidaker has failed to prove sexual discrimination in

promotion by either a disparate impact or disparate treat-

ment theory.

(2) There is substantial evidence in the administrative

record to support the finding of the Postal Service that

Shidaker was demoted in grade for misfeasance and mal-

62a

feasance and not in retaliation for pursuing her civil rights

claim.

(3) The Court finds the issues in favor of the Postal

Service and against Darlene Shidaker. Accordingly, the

complaint is dismissed with prejudice.

63a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 84-2791

DARLENE SHIDAKER, PLAINTIFF-APPELLANT

v.

WILLIAM BOLGER, IN HIS CAPACITY AS POSTMASTER

GENERAL (UNITED STATES POSTAL SERVICE),

‘ DEFENDANT-APPELLEE

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

[May 1, 1986]

ORDER

Before: HON. WALTER J. CUMMINGS, Chief Judge, HON.

WILLIAM J. BAUER, Circuit Judge, HON. JOEL M. FLAUM,

Circuit Judge.

On consideration of the petition for rehearing and sug-

gestion for rehearing en banc filed by Albert V. Casey, ap-

pellee, (now Postmaster General of the United States

Postal Service), and all of the judges on the original panel

have voted to deny the petition for rehearing and sugges-

tion of rehearing en banc. Accordingly. ‘

64a

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing and suggestion for rehearing en banc be, and

the same is hereby DENIED.

US GOVERNMENT PRINTING OFFICE 1986— 202.037/60325