Powell v. Rumsfeld

42 F. App'x 856
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 24, 2002
DocketNo. 01-4233
StatusPublished
Cited by2 cases

This text of 42 F. App'x 856 (Powell v. Rumsfeld) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Powell v. Rumsfeld, 42 F. App'x 856 (7th Cir. 2002).

Opinion

ORDER

Marlon Powell, a male employee of the United States Department of Defense (DOD), brought suit under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., claiming sex discrimination and retaliation. The district court granted summary judgment for the DOD, and Powell appeals. We affirm.

In 1993 Powell, a DOD employee since 1980, began working as a Procurement Technician in the DOD’s Small Business Office located at O’Hare International Airport. His direct supervisor was a male by the name of Gregory Wynne. Powell’s duties included sending written correspondence to contractors and government officials.

According to Powell, he and Wynne initially had a good working relationship. This was reflected in Powell’s performance reviews: Wynne gave Powell a “Fully Successful” rating for the period of July 3, 1994, to March 31, 1995, and a “Highly Successful” rating for the period of April 1, 1995, to March 31,1996. For the period of April 1,1996, to December 31,1996, Powell was not given a performance rating, but he did receive two performance awards.

According to the DOD, however, Wynne “at some point” began to find problems with the correspondence that Powell was sending to contractors and government officials. For instance Wynne noticed that Powell was sending out materials without cover letters, which was a violation of office procedure. Wynne alleged in an affidavit that he also found misspellings and incomplete sentences in some of Powell’s letters. As a result of these findings, Wynne counseled Powell in April 1997. But though Wynne alleged that he talked to Powell both about his writing skills and his failure to use cover letters, Powell says that Wynne addressed only the cover-letter issue. Wynne noted the reprimand in Powell’s employment file.

In October 1997 the DOD announced an opening for a “Procurement Analyst” in the Small Business Office. The job qualifications, according to the announcement, [858]*858included “skill in oral and written communications.”

Powell was one of several people who applied for the position. Pursuant to the DOD’s normal promotion procedure, a staffing specialist was assigned to screen the applications for “generally qualified” applicants. Powell was among seven deemed “generally qualified.” Those seven names were then sent to Wynne, who was responsible for making the ultimate selection. Before Wynne made his decision, he interviewed all seven candidates, asking each the same questions. Powell admitted during a deposition that he felt the questions were “fair.”

Wynne selected a male applicant, Sylvester Herring, as his first choice for the position, and a female, Micole Stephens, as his second choice. After Herring turned down the job, Wynne hired Stephens, who had worked for the DOD since 1988. Wynne alleged that he selected Stephens as his second choice because she “was the next best qualified candidate ... because of her ability and experience to communicate orally and in writing.” In Wynne’s opinion Stephens “provided better examples of her ability to communicate in writing than the other candidates. Moreover, Ms. Stephens articulated very well the KSAs [knowledge, skills, and abilities] necessary to perform the duties for the position.” Wynne also thought that Stephens’s “experience as a Telecommunications Supervisor ... was an asset because she worked independently^] which indicates her ability to successfully perform the duties required.”

Wynne decided against making Powell his second choice because of his “inability to communicate effectively in writing.” Wynne recalled that “Powell ha[d] sent several correspondences ... with incomplete sentences and misspelled words,” and that Wynne had been forced to instruct Powell not to send any correspondence without Wynne’s prior review. Wynne also found it significant that Stephens had been exposed to higher-level management during her career while Powell had not.

On February 18, 1998, Powell filed an informal complaint with an Equal Employment Opportunity (EEO) counselor, claiming that he had not been hired for the Procurement Analyst job because of his gender. On June 2 Powell filed another informal EEO complaint, alleging that Wynne retaliated against him for the first complaint by giving him a “Minimally Acceptable” performance rating for the year 1997. Though Wynne signed that evaluation on February 17, 1998, Powell says that he did not receive it until March 2.

In this appeal Powell first argues that summary judgment was inappropriate because there remained disputed issues of fact concerning whether he was discriminated against because of his gender. A plaintiff may prove gender discrimination with either direct or circumstantial evidence, Hoffman-Dombrowski v. Arlington Int’l Racecourse, Inc., 254 F.3d 644, 650 (7th Cir.2001), and here, Powell attempted to do both. As purportedly direct evidence of discrimination, he offered affidavits from two of his former coworkers— Stan Laber and Patricia Nelson. Laber states that from 1991 to 1994 Wynne had “readily and regularly claimed to be enthralled with women and preferred to be with, around, working for, and employing women. Given a choice of hiring a male or a female [Wynne] told me he would always hire a female unless he found her looks to be repulsive.” Nelson attests that “Women seemed to have it easier than males working under Mr. Wynne’s supervision. When Mr. Powell would take breaks, Mr. Wynne would say something to him about the time he stayed on break. But when women would take breaks longer than the [859]*859scheduled time, Mr. Wynne would say nothing.” Powell also offered his own deposition testimony that Wynne “openly stated on several occasions that he preferred working with women .... Mr. Wynne systematically wanted me to bring aboard a female employee at the GS 11 level in an underhanded fashion, because he didn’t want to hire a Mr. Marston Guese.”

Powell contends that the above statements are direct evidence of discrimination because they “establish[ ] that Gregory Wynne, the person who made the promotion decision, was biased in favor of women.” We disagree. Allegedly discriminatory comments qualify as direct evidence only if they are related to, and contemporaneous with, the adverse employment decision at issue. Oest v. Ill.Dep’t of Corr., 240 F.3d 605, 611 (7th Cir. 2001). Here, Wynne’s remarks were made years before the adverse decision and/or were not related at all to that decision; they cannot therefore be fairly characterized as direct evidence of discrimination. See Markel v. Bd. of Regents of the Univ. of Wis., 276 F.3d 906, 910 (7th Cir.2002) (discriminatory statements made two months before adverse employment action did not show direct discrimination); Oest, 240 F.3d at 612 (comments made two years prior to employment decision in question could not be considered direct evidence of discrimination).

Because he has no direct evidence, Powell was required to prove his claim via the burden-shifting method of McDonnell Douglas, under which a plaintiff must first establish a prima facie case of discrimination. Hoffman-Dombrowski, 254 F.3d at 650.

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