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ARLINE v. POTTER

December 8, 2005.

RICHARD ARLINE, Plaintiff,
v.
JOHN E. POTTER, Postmaster General, UNITED STATES POSTAL SERVICE, Defendant.



The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

OPINION AND ORDER

On December 8, 2003, plaintiff Richard Arline commenced this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), against defendant John E. Potter, Postmaster General of the United States Postal Service ("USPS"), alleging that the USPS intentionally discriminated against him on account of his race and sex when it refused to promote him to several positions at the United States Postal Inspection Service ("USPIS"). The defendant — whom we will refer to for convenience as the USPS — now moves for summary judgment pursuant to Fed.R.Civ.P. 56. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the USPS's motion is granted. I. BACKGROUND

A. Evidence Presented on the Summary Judgment Motion*fn1

  Arline is a 56-year-old African-American male. Def. 56.1 ¶ 1. On December 31, 1977, Arline began his employment with the USPIS as a trainee. Id. ¶ 2. In April 1978, he went to work as a postal inspector in the Macon, Georgia office of the USPIS until July 1982. Id. From 1982 until February 29, 2004, he held various positions in the USPIS, the last of which was as Division Training Officer in the Newark, New Jersey office beginning in March 1998. On February 29, 2004, Arline voluntarily retired from the USPS. Id. (citing Deposition of Richard Arline, dated September 22, 2004 ("Arline Dep.")) (reproduced as Ex. A to Declaration of Allison D. Penn, dated February 15, 2005 ("Penn Decl.") (annexed to Def. Motion)).

  On August 30, 1999, the USPIS issued an Inspector Vacancy Announcement containing a posting for two vacancies for the position of Assistant Inspector in Charge ("AIC") in the Atlanta Field Office in the Southeast Division of the USPIS. Def. 56.1 ¶ 3. Arline submitted an application for this position — called a Postal Service Form 991 ("Form 991") — on September 13, 1999. Id. ¶¶ 3-4. A review panel convened to narrow the list of applicants to those the panel believed were best qualified. Id. ¶ 3. The review panel submitted a list of six out of fifteen applicants to the Selecting Official, Ira Carle, who was then Inspector in Charge for the Southeast Division of the USPIS. Id. Arline was among the six referred to Carle. Id. Carle reviewed each of the six applicants' Form 991's and the written assessment of each applicant submitted by the applicant's manager. Def. 56.1 ¶ 4. Based on his review, Carle selected two African-American females, Yeudele Allen and Marsha Freso, for the positions. Id. Carle did so because he found that Allen and Freso had done a commendable job in demonstrating on their Form 991's that they were experienced and would bring value to the Division. Id. ¶ 5. By contrast, Carle found that Arline did not sufficiently identify his past work experience in his Form 991. Id. Furthermore, Arline did not adequately identify his past experiences in critical areas of Inspection Service Programs, which would be his responsibility if selected as AIC. Id. Arline's grammatical and typographical errors on his Form 991 weighed against him as well. Id.

  On January 10, 2000, the USPIS issued another Inspector Vacancy Announcement posting a vacancy for the position of AIC, Field Office Inspector in Charge ("FOINC"), in the Memphis Field Office of the Southeast Division of the USPIS. Def. 56.1 ¶ 6. On January 24, 2000, Arline applied for the position. Id. Another review panel convened, and recommended six of the nine applicants, including Arline, to Carle. Id. Zane Hill, AIC in the Washington D.C. Office, also requested consideration for a non-competitive transfer to the position in the Memphis Field Office, and his request was forwarded to Carle on January 13, 2000. Id. ¶ 7. Non-competitive applications for reassignment could be considered before, during, or after the competitive process. Id. Carle reviewed all the applications and selected Hill, a Caucasian male, because he did a commendable job identifying his past work experiences and explaining the value he was going to bring to the Division. Id. ¶ 8. Hill's prior experience as an AIC, his interview, and his Form 991 were the deciding factors in Carle's decision to choose him. Id. Carle determined Arline did not do a good job articulating and identifying in writing his experiences in critical areas that would have been his responsibility as a FOINC. Id.

  On February 4, 2000, Arline applied for another position as a FOINC in the Kansas City Field Office in the Midwest Division of the USPIS. Def. 56.1 ¶ 9. Another review panel recommended Arline along with four other applicants. Id. This time, Ronald J. Terlep, then Inspector in Charge of the Midwest Division, was the selecting official. Id. Terlep reviewed the applications and the written assessments of the applicants submitted by their manager, and interviewed each applicant for approximately one hour. Id. He selected Robin Dagleish, a Caucasian female, for the position because she performed well during the interview, she was highly recommended by her manager, and she had recently served as the AIC to the Western Allegheny Division for ninety days. Id. ¶ 10. Terlep said that he was impressed by Arline's performance during the interview, and would have selected him had he not chosen Dagleish, but Dagleish demonstrated a better ability to manage a large caseload than Arline. Id.

  On May 26, 2000, USPIS announced two vacancies for AIC positions in the New York Metro Division of the USPIS, and Arline applied. Def. 56.1 ¶ 11. Of the ten applicants, a review panel recommended five, including Arline, to John J. Skidmore, the individual in charge of selecting for the AIC positions. Id. Skidmore interviewed each applicant for approximately one hour. Id. Skidmore selected Thomas Van de Merlen and Ronald Walker, two Caucasian males, for the two vacant AIC positions because they both had acted in the AIC position in the New York Metro Division on numerous prior occasions, they both had demonstrated proficiency in their performance of their duties, and Skidmore believed the job of AIC required individuals who had experience and familiarity with the New York Office. Id. ¶¶ 12-13. Arline did not have experience or familiarity with the New York Office, and had less knowledge of the New York Metro Division's operations. Id. ¶ 14. Furthermore, Skidmore was concerned about Arline's supervisor's reservation about recommending him for the position and Arline's limited supervisory experience. Id. Skidmore sent Arline an e-mail informing him that he was not chosen because of the merit of the selected applicants rather than any deficiency of Arline's. See id. ¶ 15.

  On February 26, 2002, the USPIS announced another AIC vacancy in the Western Allegheny Division of the USPIS, and Arline bid for this position. Def. 56.1 ¶ 16. James W. Birch, then Inspector in Charge of the Western Allegheny Division of the USPIS, was the selecting official for this position. Id. ¶ 17. A review panel convened and recommended four applicants, one of whom was Arline. Id. Birch reviewed the applications and conducted interviews in which he focused on three topics: (1) the applicant's overall knowledge of USPIS's mission, goals and objectives; (2) the applicant's understanding of their home division's goals and how they relate to national goals; and (3) the applicant's responses to scenarios involving leadership, inter-personal relations and work prioritization. Id. ¶¶ 17-18. Birch selected John Wisniewksi, a Caucasian male, because he demonstrated a substantive knowledge of the USPIS goals and objectives, and he demonstrated leadership in task force operations, team operations, and multi-agency initiatives. Id. ¶ 19. Arline did not demonstrate an understanding of national goals, much less how they related to field units such as the Western Allegheny Division. Id. ¶ 20. Nor was Arline familiar with the goals and initiatives of his own home unit. Id. B. Procedural History

  Arline filed an Equal Employment Opportunity ("EEO") Complaint dated January 10, 2000, challenging his non-selection for the Atlanta and Memphis positions on the grounds of race and gender discrimination. Def. 56.1 ¶ 21 (citing EEO Complaint of Discrimination in the Postal Service, dated Jan. 10, 2000 (reproduced as Ex. G to Penn Decl.)). Arline filed another EEO Complaint dated October 17, 2000, challenging his non-selection for the New York position on the grounds of race and gender discrimination. Id. (citing EEO Complaint of Discrimination in the Postal Service, dated Oct. 17, 2000 (reproduced as Ex. I to Penn Decl.)). Arline filed two more EEO Complaints challenging his non-selection for the Kansas City and Allegheny positions. Id. (citing EEO Complaint of Discrimination in the Postal Service, dated Nov. 1, 2000 (reproduced as Ex. H to Penn Decl.); EEO Complaint of Discrimination in the Postal Service, dated Dec. 21, 2002 (reproduced as Ex. J to Penn Decl.)). Arline is not challenging his non-selection for the St. Paul, Minnesota, AIC position. Def. 56.1 ¶ 22.

  The USPS consolidated the Atlanta, Memphis, Kansas City and New York EEO Complaints and issued a Final Agency Decision denying relief. Def. 56.1 ¶ 23 (citing Final Agency Decision, dated Jan. 10, 2000 [sic] (reproduced as Ex. K to Penn Decl.)). Arline appealed the denial to the Equal Employment Opportunity Commission ("EEOC"), which on September 8, 2003, affirmed the agency's decision denying relief. Id. (citing Decision, dated Sept. 8, 2003 (reproduced as Ex. M to Penn Decl.). The USPS issued another Final Agency Decision relating to the Allegheny EEO Complaint on December 17, 2003, and the EEOC affirmed the agency's decision on or about May 4, 2004. Id. (citing Final Agency Decision, dated Dec. 17, 2003 (reproduced as Ex. L to Penn Decl.); Decision, dated May 4, 2004 (reproduced as Ex. N to Penn Decl.)).

  On December 8, 2003, Arline filed his Complaint in the instant action. See Complaint for Compensatory Damages, filed Dec. 8, 2003 (Docket #1) ("Complaint"). Arline filed an amended complaint on July 16, 2004. See Amended Complaint for Compensatory Damages, filed July 16, 2004 (Docket #9) ("Amended Complaint"). The USPS now moves for summary judgment dismissing the complaint. See Def. Motion. The USPS attached to its notice of motion various declarations — including declarations of USPS employees — along with a statement pursuant to Local Civil Rule 56.1. See Def. Motion; see generally Local Civ. R. 56.1(a) (requiring a party moving for summary judgment pursuant to Fed.R.Civ.P. 56 to submit "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried"). It also submitted a memorandum of law. See Memorandum of Law in Support of Defendant's Motion for Summary Judgment, filed Feb. 15, 2005 (Docket # 14) ("Def. Mem.").

  In response, Arline's attorney submitted a memorandum of law that attached a copy of the amended complaint but did not attach any affidavits or other evidence opposing the motion. See Plaintiff's Brief in Opposition to Defendant's Motion, dated June 15, 2005 ("Pl. Opp. Mem."). The memorandum did not contain a statement of facts. More significantly, Arline did not submit a Rule 56.1 statement opposing the facts alleged in the USPS's Rule 56.1 statement as required by Local Civil Rule 56.1(b). On July 15, 2005, the USPS filed a reply brief. See Reply Memorandum of Law in Further ...


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