Connor v. US Postal Service

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________

m 99-10757 Summary Calendar _______________

CHARLES R. CONNOR,

Plaintiff-Appellant,

VERSUS

UNITED STATES POSTAL SERVICE and WILLIAM J. HENDERSON, Postmaster General, United States Postal Service,

Defendants-Appellees.

****************** CHARLIE R. CONNOR,

Plaintiff-Appellant,

VERSUS

WILLIAM J. HENDERSON, Postmaster General, United States Postal Service,

Defendant-Appellee. _________________________

Appeal from the United States District Court for the Northern District of Texas (3:85-CV-517-T) _________________________ February 21, 2000

Before SMITH, BARKSDALE, and ell, 139 F.3d 452, 457 (5th Cir. 1998), cert. PARKER, Circuit Judges. denied, 525 U.S. 1102 (1999). “Where the evidence can support findings either way, a JERRY E. SMITH, Circuit Judge:* choice by the trial judge between two permissible views of the weight of the Charles Connor, a former employee of the evidence is not clearly erroneous. . . . A trial United States Postal Service, appeals an court’s decision to credit the testimony of one, adverse judgment following a bench trial of his two, or more witnesses, each of whom has claims of unlawful employment discrimination told a coherent, facially-plausible story that is and retaliation under title VII of the Civil not contradicted by extrinsic evidence, . . . can Rights Act of 1964, 42 U.S.C. § 2000e-16(c), virtually never be clear error.” Theriot v. and the Age Discrimination in Employment Parish of Jefferson, 185 F.3d 477, 490 (5th Act (“ADEA”), 29 U.S.C. § 633a(c).1 He also Cir. 1999), petition for cert. filed (Jan. 18, appeals the holding that his claim of 2000) (No. 99-1203).2 discrimination arising in 1980 was untimely. Finding no error, we AFFIRM. II. Although Connor alleges multiple episodes I. of unlawful discrimination and retaliation dur- To succeed on a claim of unlawful ing his final decade of employment, he fails to employment discrimination on the basis of race show clear error in the district court’s factual or age, or of unlawful retaliation for raising findings. His bare assertion of statistical dis- such claims, the employee must prove crepancy in the number of blacks in improper motive. Where the employer has management is not enough to mandate a offered a lawful explanation, the employee finding of discrimination.3 Moreover, the must establish that the asserted justification is evidence presented by the Postal Service and pretext that conceals an improper purpose. contained in the record amply supports the See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. conclusion that, throughout the term of Con- 502, 510-11 (1993) (title VII); Bauer v. nor’s employment, the Postal Service was Albemarle Corp., 169 F.3d 962, 966 (5th Cir. motivated by ability to do the job, and not race 1999) (ADEA). 2 We review only for clear error a factual Connor received a trial de novo to review the conclusion that an employer did not engage in similar conclusion of the Merit Systems Protection unlawful discrimination. See Boehms v. Crow- Board that the Postal Service did not engage in un- lawful employment discrimination. See 5 U.S.C. § 7703(c). Appellate review of the decisions of that board and of the district court thus merge into * Pursuant to 5TH CIR. R. 47.5, the court has a single inquirySSwhether the court made determined that this opinion should not be reasonable factual findings on the basis of all the published and is not precedent except under the evidence. limited circumstances set forth in 5TH CIR. 3 R. 47.5.4. Cf. Walter v. Lone Star Gas Co., 977 F.2d 161 (5th Cir. 1992) (noting that “it is the unusual 1 Connor filed two actions that were case in which statistics alone can support a finding consolidated; we treat them as one. of intentional discrimination”).

or age. For example, the Postal Service presented credible evidence that area manager Charles Flagg refused to recommend Connor for a pro- motion in July 1980 and again that September, on the ground that Connor was not performing productively,4 was not adequately supervising check cashing policies, and was having problems with financial audits. Moreover, Flagg actually recommended Connor for a promotion in November, after Connor’s MPD numbers and audit picture began to show improvement. That promotion, the court rea- sonably found, was denied only because Con- nor had failed during the interview to convey knowledge of his own station’s productivity or where his station stood with regard to performance goals, and could not articulate what goals he would have for the station to which he was seeking a promotion.

Thus, Connor was unaware of his own pro- ductivity numbers and did not know where he stood on his own budget. By contrast, the other candidates were familiar with their stations’ status and statistics. Among those receiving promotions include at least two other black supervisors, a fact that alone tends to negate any inference of discriminatory intent.5

The court was similarly reasonable in

4 For example, Flagg noted that Connor’s minutes-per-delivery performance was too high. 5 See Singh v. Shoney’s Inc., 64 F.3d 217, 219 (5th Cir. 1995) (“Singh [a white female] failed to make out a prima facie case of racial discrimination on this record, because she was replaced by a white female.”); Nieto v. L&H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997) (“While not outcome determinative, this fact [that a Hispanic employee is succeeded by another Hispanic] is certainly material to the question of discriminatory intent.”).

finding that continued problems in Connor’s job performance justified his poor evaluation in 1984 and the Postal Service’s 1987 and 1989 rulings regarding his requests for backpay. Fi- nally, the testimony of William Skinner, the psychiatrist who examined Connor in February 1990, supports the finding that the Postal Ser- vice had deemed Connor no longer medically able to perform his duties, and discharged him for that reason.6 The rebuttal testimony of Dr. Judy Cook was insufficient to preclude a rea- sonable fact-finder from crediting Skinner’s diagnosis.7

Having reasonably reached these numerous factual conclusions, the court did not commit clear error in holding that Connor’s inability to do the job, rather than race or age, motivated the adverse employment actions. The judgment is AFFIRMED.

6 Specifically, Skinner diagnosed Connor with a paranoid personality disorder and concluded that Connor was very sensitive, had extreme distrust, read hidden meanings into straightforward communications, and used inflammatory phrases, such as the “Four Horseman of the Apocalypse,” when explaining his perception that there was a conspiracy to harm him. The court was entitled not only to give credence to the diagnosis that Connor was unfit for duty, but also to discredit Connor’s testimony accordingly. 7 We need not pass judgment on the merits of the Postal Service’s ability determination, for “our inquiry is not into the merits of the employer’s em- ployment decisions but into the motives.” Wilson v. Belmont Homes, Inc., 970 F.2d 53, 57 (5th Cir. 1992).