Carla Hill v. JOHN E. POTTER, Postmaster General, United States Postal Service

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2815
CARLA HILL,
Plaintiff-Appellant,
v.
JOHN E. POTTER, Postmaster General,
United States Postal Service,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-06835—David H. Coar, Judge.
ARGUED JANUARY 20, 2010—DECIDED AUGUST 30, 2010
Before FLAUM, KANNE, and EVANS, Circuit Judges.
KANNE, Circuit Judge. Carla Hill sued John E. Potter,
the Postmaster General of the United States Postal
Service, for age and disability discrimination and for
retaliating against her for engaging in protected activities.
The district court granted summary judgment to the
Postal Service on each of her claims. Hill appealed only
the rejection of her retaliation claim. We affirm.

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2 No. 09-2815
The details of the EEO complaints are irrelevant to our 1
resolution of this appeal. For our purposes, what matters is
that she filed the complaints.
I. BACKGROUND
Carla Hill began working for the Postal Service in
1995 and has been at the Hazel Crest, Illinois, facility
since 1998. She was promoted to full-time letter carrier
in 1999. James Fuscaldo was Hill’s supervisor through
2006. The management at the Hazel Crest office
changed relatively frequently. Karen Mysukens was
Postmaster until July 2003, when Patrick Kavanaugh
took over. Syed Ahmed took over the post briefly in the
spring of 2006, and Beverly Greene became Postmaster
in May 2006.
From 2002 through 2005, Hill filed a series of Equal
Employment Opportunity (EEO) complaints against
her supervisors, including Kavanaugh and Fuscaldo,
claiming that they discriminated against her. She also
contacted an EEO specialist on other occasions that
did not result in a formal complaint being filed. Lower-1
level employees at the Hazel Crest office were gen-
erally aware of Hill’s EEO activities.
Hill hurt her back while on duty in November 2002.
The Department of Labor’s Office of Workers’ Compensa-
tion Programs (“OWCP”) certified her injury as work-
related, and she was placed on “limited duty” status.
Employees on limited duty status are guaranteed eight
hours of paid work each day, even if no work is avail-
able within the injured employee’s work restrictions.
Hill’s limited duty status was to last until September 2003.

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No. 09-2815 3
As luck would have it, Hill claims that she injured
her back again in September 2003 and wanted to
reapply for limited duty status. Kavanaugh erroneously
told her to fill out the form for a recurrence of injury,
rather than the proper form for a new injury. Dale
Schultz of OWCP handled Hill’s claim for her new in-
jury. Kavanaugh wrote a letter to Schultz stating that
Kavanaugh did not believe Hill’s injury was as serious
as she claimed it to be and requesting that Schultz deny
her request to be put back on limited duty status.
Schultz ultimately placed Hill on “light duty” status.
Employees on light duty status are not guaranteed eight
hours of work each day; management has discretion
to send light duty status employees home without
pay if there is no work available within their physical
limitations. From December 2003 through July 2004,
Fuscaldo and Kavanaugh sent Hill home without pay
for 618 hours, resulting in approximately $12,000 of
foregone wages. During that same period, other em-
ployees in the Hazel Crest facility worked 821 hours
of overtime.
Hill was interested in obtaining a position as a window
clerk as early as 2000. She twice submitted her written
application to become a window clerk: first in Feb-
ruary 2000 to Steve Schneider, and again in March 2003
to Karen Myuskens. She also documented her interest
in the window clerk position in a 2004 settlement agree-
ment. Fuscaldo was aware of her interest in the
window clerk position.
A window clerk position became available in the
Hazel Crest facility in August 2005, June 2006, and

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4 No. 09-2815
March 2007. Fuscaldo hired Suzanne Hankins in 2005
and Carol Mottley in 2006. Beverly Greene hired
Kendra McGhee for the window clerk position in 2007.
Hill did not apply in writing with Fuscaldo in 2005 or
2006 or with Greene in 2007. Hankins, Mottley, and
McGhee all submitted their interest for the position in
writing prior to being hired for the position. The
Postal Service did not produce any of these letters
during discovery.
Fuscaldo and Greene both stated that their policy was
to hire whoever requested the position first in writing
with the postmaster at the time. The Postal Service con-
cedes that this policy is undocumented, and a Postal
Service handbook says that hiring decisions are based
on seniority or qualifications. The Postal Service also
did not mention the “first-come, first-served” policy
in response to an interrogatory asking about the
Postal Service’s hiring practices.
The district court granted summary judgment to the
Postal Service on all of Hill’s claims, finding that the
reduction in her hours was not an adverse action and
that she failed to show the Postal Service’s proffered
reason for not hiring her to be pretextual. This appeal
followed.
II. ANALYSIS
We review the district court’s grant of summary judg-
ment de novo. Nat’l Inspection & Repairs, Inc. v. George S.
May Int’l Co., 600 F.3d 878, 882 (7th Cir. 2010). We view

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No. 09-2815 5
the evidence in the light most favorable to Hill, the non-
moving party, and give her the benefit of all reasonable
inferences from the evidence. Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008).
“We are not required, however, to draw unreasonable
inferences in [Hill’s] favor . . . .” Tindle v. Pulte Home
Corp., 607 F.3d 494, 496 (7th Cir. 2010).
A plaintiff asserting a claim of discrimination or retalia-
tion under Title VII may choose to prove her case
under either the direct or indirect method. Poer v. Asrtue,
606 F.3d 433, 439 (7th Cir. 2010). Hill has elected to
proceed under the indirect method to try to prove her
claim for retaliation under Title VII. Under the indirect
method, Hill must first show a prima facie case of re-
taliation, which requires her to produce admissible evi-
dence that (1) she engaged in a statutorily protected
activity, (2) the Postal Service took a materially adverse
action against her, (3) she was performing her job satis-
factorily, and (4) she was treated worse than a
similarly situated employee who did not complain of
discrimination. Leonard v. E. Ill. Univ., 606 F.3d 428, 431
(7th Cir. 2010). If she succeeds in showing a prima facie
case, the burden then shifts to the Postal Service to show
a legitimate, non-discriminatory reason for its actions
against Hill. If the Postal Service can do so, then the
burden shifts back to Hill to show that the Postal Service’s
proffered reason is pretextual. Egonmwan v. Cook County
Sheriff’s Dep’t, 602 F.3d 845, 850 (7th Cir. 2010).
The Postal Service does not question that Hill engaged
in protected conduct and that she was performing her

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6 No. 09-2815
job satisfactorily. The parties dispute, however, whether
the Postal Service took any adverse actions against Hill
or whether she was treated differently from similarly
situated employees. We will consider Hill’s two alter-
native theories of retaliation separately.
A. Reduced Hours
First, Hill argues that Kavanaugh was responsible for
placing her on light duty status and that Kavanaugh
and Fuscaldo then systematically denied her a 40-hour
work week. The district court found that Hill did not
establish a prima facie case of retaliation based on
reduced hours. The court concluded that Hill failed to
show that she had applied for the overtime work, that
she was qualified to do the overtime work, that the over-
time was given to people in the same job position, or
that the people who worked the overtime had never
filed EEO complaints.
On appeal, Hill argues that the district court misunder-
stood both the scope of her claim based on her
reduced hours and also the role that the evidence of
overtime hours played in her argument. The district
court focused on the reduction of Hill’s hours alone
rather than the combination of Kavanaugh “controverting”
her injury claim and the subsequent reduction in hours.
To be sure, a reduction in hours could be an adverse
action giving rise to liability. See O’Neal v. City of Chicago,
392 F.3d 909, 911-12 (7th Cir. 2004). But when Hill was
on light duty status, she was not guaranteed a 40-hour
work week. Therefore, a reduction in her hours while

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No. 09-2815 7
on light duty status was not per se an adverse action.
See Hancock v. Potter, 531 F.3d 474, 479 (7th Cir. 2008).
Seeking to bolster her claim that Kavanaugh and
Fuscaldo reduced her hours for discriminatory reasons,
Hill argues that Kavanaugh actually caused her to be
placed on light duty status rather than on limited duty
status—the latter would have guaranteed that she
would be paid for 40 hours of work a week, no matter
how little she worked. The decision to place Hill on light
duty status was made by the OWCP, an independent
government office. However, Kavanaugh wrote a letter
to Schultz, the person handling Hill’s claim at OWCP,
telling Schultz that Hill’s claim was fabricated and
asking that the claim be controverted. Hill argues that
Kavanaugh’s letter, the OWCP’s decision to place her
on light duty status, and the subsequent reduction in
her hours constituted an adverse action sufficient to
prove her prima facie case of discrimination.
The decision of an independent decision-maker will
not shield the employer from liability if the decision-
maker was tainted or influenced by the employer’s illegal
motives such that the decision-maker “acted as the
conduit of [the employer’s] prejudice.” Shager v. Upjohn
Co., 913 F.2d 398, 405 (7th Cir. 1990). This rule, known as
the “cat’s paw” rule, “provides that an employer cannot
shield itself from liability for unlawful termination by
using a purportedly independent person or committee
as the decisionmaker where the decisionmaker merely
serves as the conduit, vehicle, or rubber stamp by which
another achieves his or her unlawful design.” Dedmon v.

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8 No. 09-2815
Staley, 315 F.3d 948, 949 n.2 (8th Cir. 2003). Hill urges us
to apply the “cat’s paw” rule to find that Kavanaugh’s
alleged discriminatory motive tainted and influenced
Schultz’s decision to place her on light duty status. We
find that the cat’s paw theory has no application here.
In other cases where we have applied the cat’s paw
theory, there was evidence from which we could rea-
sonably infer that the employer’s ill motives likely had
an influence on the purportedly independent decision-
maker’s thought process. For example, in Shager, the
court noted that the prejudiced supervisor had set up
the terminated employee for failure by assigning him
an unproductive territory. 913 F.2d at 405. The super-
visor then portrayed the employee’s job performance
“in the worst possible light.” Id. The committee making
the decision only briefly considered the employee’s
case, and the court inferred from the evidence that the
committee may well have relied on the supervisor’s
opinion in making its decision. Id.
Likewise, in Phelan v. Cook County, 463 F.3d 773, 784
(7th Cir. 2006), the court applied the cat’s paw rule to
find that “an employer [cannot] escape the possibility
of strict liability for supervisor harassment simply
by scattering supervisory responsibilities amongst a
number of individuals, creating a Title VII supervisory
Hydra.” The two individuals that were subject to the
cat’s paw theory in Phelan had significantly more influ-
ence over the final decision than did Kavanaugh here.
One “supervisor” in Phelan “triggered the termination
hearing, selected the hearing officer, and provided infor-

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No. 09-2815 9
mation critical to the termination decision.” Id. The
other was the plaintiff’s hearing officer and had the
ultimate authority to fire the plaintiff. Id.
Although Kavanaugh did write a letter to Schultz
commenting on Hill’s claim, there is no evidence from
which we can reasonably infer that the letter had any—
let alone dispositive—influence in Schultz’s decision-
making process. First, OWCP enjoyed a level of independ-
ence from the Postal Service that neither the committee
in Shager nor the hearing officer in Phelan had. In both
of those cases, it appears that the individuals acting as
the cat’s paw were part of the same organization as
the discriminating or harassing supervisor.
Based on the record before us, it would be unrea-
sonable to infer that Schultz simply acted as a rubber
stamp of Kavanaugh’s prejudice. Second, Hill did not
produce any evidence that would suggest Schultz con-
sidered Kavanaugh’s letter at all, much less to the ex-
clusion of other evidence. Third, because our review is
de novo, we refuse to read too much into the district
court’s statement that Schultz changed Hill from
limited duty to light duty status “as a result” of
Kavanaugh’s letter. As we have just noted, there is
simply no evidence supporting such a conclusion.
Absent even a minimal showing that Kavanaugh’s letter
had at least some persuasive influence in Schultz’s deci-
sion to place Hill on light duty status, we cannot consider
Hill’s placement on light duty status as part of an
adverse employment action attributable to the Postal
Service.

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10 No. 09-2815
We agree with the district court that Hill has failed to
show that Kavanaugh and Fuscaldo sending her
home without pay while she was on light duty status
constitutes an adverse employment action. As noted
earlier, the reduction of her hours is not per se an adverse
action because she was not entitled to a 40-hour work
week. Hill is correct that just because she is not entitled
to the hours does not mean that the Postal Service
can reduce her hours for a retaliatory purpose. Yet Hill
produced no evidence that there was work available
for her to perform within her limitations when she was
sent home from work without pay. She suggested
that other employees’ 821 hours of overtime showed
that there was plenty of work to do in the Hazel Crest
Office.
The district court concluded that her prima facie case
failed because she did not show that she had applied
for or was able to work those overtime hours. She
argues on appeal that it is irrelevant that she did not
apply for the overtime work because she was only
trying to show that there was plenty of work to go
around, and that Kavanaugh’s and Fuscaldo’s decision
to send her home early without pay was therefore moti-
vated by discrimination.
We disagree that Hill’s shortcomings regarding the
overtime evidence are irrelevant. Hill was not entitled to
40 hours of work each week while on light duty status.
Therefore, in order to show that she was improperly
deprived of work hours and the resulting pay, she must
show that she at least could have been assigned to work

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No. 09-2815 11
the hours that she was denied. If there was, in fact, no
work that she was qualified to do (based on her light
duty status), then she could not have been improperly
sent home without pay. Although we will make all rea-
sonable inferences on Hill’s behalf, we will not simply
accept Hill’s assumptions as true absent at least some
corroborating evidence. Hill fails to identify any evidence
that she was qualified to do some of the work that was
assigned to other employees when she was sent home
without pay. Because we find that Hill has failed to
show that she suffered an adverse employment action
by having her hours reduced, Hill’s retaliation claim
based on the reduction of her hours fails.
B. Failure to Promote
Hill’s second theory of liability is based on the Postal
Service’s failure to promote her on three different oc-
casions to window clerk. Failure to promote can be an
adverse action giving rise to liability, Jackson v. County
of Racine, 474 F.3d 493, 501 (7th Cir. 2007), but the plain-
tiff must first show that she properly applied for the
position, McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973); Hudson v. Chicago Transit Authority, 375 F.3d
552, 558 (7th Cir. 2004). The Postal Service argues that
its unofficial policy (the “Policy”) is to hire whoever first
submits their interest to the supervisor in charge of
hiring and that Hill failed to apply in writing to any of
the positions in question. The district court found that
Hill met her burden of proving a prima facie case of
retaliation, but failed to show that the Postal Service’s

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12 No. 09-2815
proffered reason for not hiring her—that she failed to
apply for the jobs—was pretextual.
As an initial matter, there is some question about
whether the existence of the Postal Service’s Policy is
best considered as part of Hill’s prima facie case or as
part of her efforts to show pretext. We need not
answer that question, however, because under either
inquiry the Postal Service is entitled to summary judg-
ment. Cf. Everroad v. Scott Truck Sys., Inc., 604 F.3d 471, 477-
78 (7th Cir. 2010) (noting that when there is overlap
between the evidence required to show a prima facie
case and pretext, the court may skip the prima facie
question to consider the evidence under pretext).
The Postal Service says that it did not hire Hill for any
of the positions in question because she did not apply
in writing for the positions. The Postal Service produced
the testimony of four witnesses that the Policy exists
and that the supervisors who made the hiring decisions
during the relevant periods followed the Policy. Hill
counters by pointing to her own testimony to the con-
trary, the fact that the Postal Service did not produce
any documents corroborating the existence of the Policy
(such as the letters of application from the persons that
were hired for the positions), the fact that the Postal
Service did not mention the existence of the Policy in
response to an interrogatory about the Postal Service’s
hiring decisions, and the presence of the written policy
that is different than the Postal Service’s proffered “first-
come, first-served” Policy.
The district court found that Hill did not do enough to
call into question the existence of the Policy or show

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No. 09-2815 13
that the Postal Service’s asserted reason for not hiring
her was pretextual. We agree with the district court
that “simply the absence of written documentation of
the Policy is not sufficient to meet [Hill’s] burden for
demonstrating pretext.” Hill v. Potter, No. 07 CV 6835,
2009 WL 1732542, at *8 (N.D. Ill. June 16, 2009). In order
to prove pretext, Hill must come forward with evidence
that at least raises the inference that the Postal Service’s
offered reason is a “phony excuse.” Hudson v. Chicago
Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004).
Although it may be burdensome to prove a negative,
Hill must do more than simply deny that the Policy
exists. She must come forward with at least some evi-
dence from which we can infer that the Postal Service’s
evidence establishing the existence of the Policy is not
credible, Filar v. Bd. of Educ. of Chicago, 526 F.3d 1054,
1063 (7th Cir. 2008) (“Showing pretext requires [p]roof
that the defendant’s explanation is unworthy of credence.”
(alteration in original) (internal quotation marks omit-
ted)), or that the Postal Service had some other policy
that it followed when hiring for the window clerk posi-
tions in question. None of the evidence she cites against
the existence of the Policy gives us reason to disbelieve
the Postal Service’s positive evidence in favor of the
Policy, and the mere fact that the Policy is undocumented
does not entitle Hill to present her case to a jury.
Absent some evidence from which we could reasonably
infer that the Postal Service failed to hire Hill for some
reason other than the existence of the Policy, we con-
clude that Hill has not met her burden under the
indirect method. See Springer v. Durflinger, 518 F.3d 479,

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14 No. 09-2815
484 (7th Cir. 2008) (“[W]hen challenges to witness’ credibil-
ity are all that a plaintiff relies on, and he has shown
no independent facts—no proof—to support his claims,
summary judgment in favor of the defendant is proper.”).
Because we conclude that Hill has failed to raise a triable
issue of fact regarding whether the Postal Service’s prof-
fered reason for not hiring her is pretextual, the Postal
Service is entitled to summary judgment on her failure
to promote claim.
III. CONCLUSION
Both of Hill’s alternative theories of liability are without
merit. Accordingly, we AFFIRM the district court’s grant
of summary judgment to the Postal Service on Hill’s
retaliation claim.
8-30-10

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