White Officer Denied Job Can't Show Reverse Race Bias

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By Kevin McGowan

March 11 — A white U.S. Postal Service police sergeant rejected for a lateral transfer by a white supervisor who gave the job to a black officer lacks a triable race discrimination claim, the U.S. Court of Appeals for the Seventh Circuit ruled March 10.

Under Seventh Circuit precedent, a white employee alleging reverse discrimination must show “background circumstances” exist that permit an inference his employer has “reason or inclination to discriminate” against white workers or “there is something ‘fishy' about the facts at hand,” the court said.

But in opposing summary judgment before the district court, plaintiff Robert Formella said only that he was a member of a protected racial class and the “only white candidate” among three employees considered for the transfer.

Formella's failure to present evidence of background circumstances that would suggest the Postal Service or his white supervisor harbored anti-white animus dooms his discrimination claim, the Seventh Circuit said.

Formella also failed to identify similarly situated nonwhite employees who were treated more favorably, so he couldn't establish a prima facie case of race bias under Title VII of the 1964 Civil Rights Act, the court said.

Most federal courts modify the standard formula for proving discrimination when a white employee alleges race bias. They require a white claimant to show background circumstances suggesting the defendant is the unusual employer that discriminates against the majority race. It remains to be seen whether, when whites no longer are a majority of the U.S. workforce, courts will no longer require additional proof from white race bias claimants.

Retaliation Claim Also Fails

Formella claimed that after he filed internal race and age discrimination complaints with the Postal Service regarding denial of the transfer, he was retaliated against by Capt. Douglas Williams, his direct supervisor who is black.

Formella engaged in protected activity under Title VII and the Age Discrimination in Employment Act by filing the bias complaints, the court said. But most of the actions Williams allegedly took against him weren't “materially adverse actions” that would dissuade a reasonable person from opposing suspected discrimination, the court said.

Formella alleged that after he filed the complaints, Williams required him to begin punching a time clock, more closely supervised him, forced Formella to make grammatical and spelling corrections to written reports and assigned him to menial tasks.

But Formella “presented no evidence that these actions were anything other than trivial, minor annoyances,” Judge William J. Bauer wrote, citing the U.S. Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 98 FEP Cases 385 (2006) .

None rises to the level of employer conduct that would cause a reasonable employee to think twice before engaging in further protected activity, the court said.

Jury Couldn't Find Causal Link

Formella alleged Williams also refused to accept a doctor's note clearing him to return to work after a sick leave. That forced Formella to take an additional week of sick leave and get his doctor to write a second note that satisfied Williams, the court said.

A supervisor's refusal to accept a return-to-work note, costing an employee an extra week of leave, might well dissuade a reasonable employee from engaging in protected activity, the court said.

But Formella produced no evidence that Williams's rejection of his note was caused by Formella's filing of the discrimination complaints, the court said.

Formella argued the rejection of the doctor's note can't be viewed in isolation but must be seen as the culmination of Williams's “pattern of retaliatory conduct.”

But the court said a reasonable jury couldn't find a causal link between Williams's actions and Formella's prior discrimination complaints. It distinguished prior Seventh Circuit decisions that said “an employee may weave together a pattern of many different actions” that cumulatively allow a jury to find unlawful discrimination or retaliation.

“Here, there is no direct or circumstantial evidence that Captain Williams' rejection of the doctor's note, or any of his other actions, were a result of Formella's filing of the EEO complaints,” the court said.

Judges Joel M. Flaum and David F. Hamilton joined in the decision.

The Moran Law Group represented Formella. The U.S. attorney's office in Chicago represented the Postal Service.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com