Plummer, Alshonette v. Potter, John E. , 237 F. App'x 90 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 10, 2007*
Decided May 17, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3039
ALSHONETTE T. PLUMMER, Appeal from the United States
Plaintiff-Appellant, District Court for the Northern
District of Illinois, Eastern Division.
v.
No. 05 C 4956
JOHN E. POTTER, Postmaster
General of the U.S. Postal Service, Suzanne B. Conlon,
Defendant-Appellee. Judge.
ORDER
Alshonette Plummer sued her employer, the United States Postal Service,
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., alleging
that she was excessively disciplined on account of her race. The district court
granted summary judgment for the Postal Service after it determined that
Plummer failed to establish a prima facie case of racial discrimination. We affirm.
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-3039 Page 2
We review the facts in a light most favorable to Plummer. See Smith v.
Potter, 445 F.3d 1000, 1006 (7th Cir. 2006). Plummer, an African American letter
carrier at the Oak Brook, Illinois post office, sustained a work-related injury to her
back in December 2003. She remained off work the following month, and her doctor
placed a series of restrictions on her physical activity. Investigators from the Postal
Service, however, conducted surveillance on Plummer during this time, and caught
her on video engaging in activities such as driving, sweeping her garage, and
carrying trash bags and groceries. After consulting with Plummer’s doctor about
her activities captured on tape, the Postal Service determined that Plummer’s
behavior exceeded her health restrictions. On January 20, 2004, when Plummer
returned to work, her supervisor asked her about the activities the investigators
had observed. Plummer initially denied engaging in the activities, but admitted to
them once her supervisor confronted her with the investigators’ video. Plummer
was then placed on off-duty status without pay for misrepresenting her medical
condition and lying in response to her supervisor’s inquiries. One month later she
was terminated. Plummer appealed her termination by filing a grievance with her
labor union. The Postal Service and the union resolved the grievance by agreeing to
suspend Plummer for 118 days without pay instead of terminating her.
Plummer sued under Title VII, alleging that she was excessively disciplined
solely because of her race. She proceeded under the indirect method of proof alone,
and the Postal Service conceded that she belonged to a protected class, was
performing up to expectations prior to the time of her injury, and suffered an
adverse employment action. See Brewer v. Bd. of Trs. Of Univ. of Illinois, 479 F.3d
908, 915 (7th Cir. 2007); Brummett v. Sinclair Broad. Group, 414 F.3d 686, 692 (7th
Cir. 2005). This left only the question whether Plummer was treated differently
from similarly situated employees outside her protected class. See Brewer, 479 F.3d
at 915; Brummett, 414 F.3d at 692. The district court granted summary judgment
for the Postal Service after determining that Plummer did not offer evidence of any
similarly situated white employees who received more favorable treatment.
On appeal, Plummer argues that the district court erred in determining that
she failed to identify any similarly situated employees. She names five white
employees disciplined by the Postal Service who all received significantly shorter
suspensions or suspensions with pay after completing the same union grievance
procedure that she did. She argues that evidence of these employees satisfies the
similarly-situated prong of the prima facie test.
The district court correctly found, however, that the employees identified by
Plummer were not similarly situated to her. To be similarly situated, another
employee must be comparable “in all material respects.” See Brummett, 414 F.3d at
692. This includes a showing that the employee held the same type of job, was
disciplined by the same supervisor, was subject to the same standards, had
No. 06-3039 Page 3
comparable experience and qualifications, and had engaged in the same conduct
without differentiating or mitigating circumstances. See Brummett, 414 F.3d at
692; Ezell v. Potter, 400 F.3d 1041, 1049-50 (7thCir. 2005); Radue v. Kimberly-Clark
Corp., 219 F.3d 612, 617-18 (7th Cir. 2000). Four of the employees identified by
Plummer do not meet this standard because they were disciplined for incomparable
behavior: continually being late and absent, soliciting tips from mail recipients, and
making threatening statements to other employees. The final employee was
disciplined like Plummer for misrepresenting his medical condition after an injury,
but he worked at a different office and was disciplined by different supervisors.
Discipline from a different supervisor “sheds no light” on the disciplinary decision in
this case. See Little v. Illinois Dep’t of Revenue, 369 F.3d 1007, 1012 (7th Cir. 2004).
Plummer also argues that the Postal Service’s proffered reason for her
discipline—that she lied about her medical condition and her filmed activities to her
supervisor—is pretextual. Because Plummer failed to meet her burden to establish
a prima facie case, the district court was not obligated to consider whether the
Postal Service’s proffered reason for disciplining Plummer was pretextual. See Coco
v. Elmwood Care, Inc., 128 F.3d 1177, 1179 (7th Cir. 1997). Nonetheless, we note
that Plummer did not produce evidence that the government’s reasons were a lie.
See Brummett, 414 F.3d at 692; Little, 369 F.3d at 1012. Quite to the contrary, the
record suggests both that the Postal Service believed that Plummer felt better than
she was letting on, and that her dishonesty was the motivating factor for her
discipline, not her race.
AFFIRMED.