Connor v. US Postal Service, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-10757
Summary Calendar
_______________
CHARLES R. CONNOR,
Plaintiff-Appellant,
VERSUS
UNITED STATES POSTAL SERVICE
and
WILLIAM J. HENDERSON,
Postmaster General, United States Postal Service,
Defendants-Appellees.
* * * * * * * * * * * * * * * * * *
CHARLIE R. CONNOR,
Plaintiff-Appellant,
VERSUS
WILLIAM J. HENDERSON,
Postmaster General, United States Postal Service,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:85-CV-517-T)
_________________________
February 21, 2000

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Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Charles Connor, a former employee of the
United States Postal Service, appeals an
adverse judgment following a bench trial of his
claims of unlawful employment discrimination
and retaliation under title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-16(c),
and the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 633a(c).1 He also
appeals the holding that his claim of
discrimination arising in 1980 was untimely.
Finding no error, we AFFIRM.
I.
To succeed on a claim of unlawful
employment discrimination on the basis of race
or age, or of unlawful retaliation for raising
such claims, the employee must prove
improper motive. Where the employer has
offered a lawful explanation, the employee
must establish that the asserted justification is
pretext that conceals an improper purpose.
See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 510-11 (1993) (title VII); Bauer v.
Albemarle Corp., 169 F.3d 962, 966 (5th Cir.
1999) (ADEA).
We review only for clear error a factual
conclusion that an employer did not engage in
unlawful discrimination. See Boehms v. Crow-
ell, 139 F.3d 452, 457 (5th Cir. 1998), cert.
denied, 525 U.S. 1102 (1999). “Where the
evidence can support findings either way, a
choice by the trial judge between two
permissible views of the weight of the
evidence is not clearly erroneous. . . . A trial
court’s decision to credit the testimony of one,
two, or more witnesses, each of whom has
told a coherent, facially-plausible story that is
not contradicted by extrinsic evidence, . . . can
virtually never be clear error.” Theriot v.
Parish of Jefferson, 185 F.3d 477, 490 (5th
Cir. 1999), petition for cert. filed (Jan. 18,
2000) (No. 99-1203).2
II.
Although Connor alleges multiple episodes
of unlawful discrimination and retaliation dur-
ing his final decade of employment, he fails to
show clear error in the district court’s factual
findings. His bare assertion of statistical dis-
crepancy in the number of blacks in
management is not enough to mandate a
finding of discrimination.3 Moreover, the
evidence presented by the Postal Service and
contained in the record amply supports the
conclusion that, throughout the term of Con-
nor’s employment, the Postal Service was
motivated by ability to do the job, and not race
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR.
R. 47.5.4.
1 Connor filed two actions that were
consolidated; we treat them as one.
2 Connor received a trial de novo to review the
similar conclusion of the Merit Systems Protection
Board that the Postal Service did not engage in un-
lawful employment discrimination. See 5 U.S.C.
§ 7703(c). Appellate review of the decisions of
that board and of the district court thus merge into
a single inquirySSwhether the court made
reasonable factual findings on the basis of all the
evidence.
3 Cf. Walter v. Lone Star Gas Co., 977 F.2d
161 (5th Cir. 1992) (noting that “it is the unusual
case in which statistics alone can support a finding
of intentional discrimination”).

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or age. For example, the Postal Service presented
credible evidence that area manager Charles
Flagg refused to recommend Connor for a pro-
motion in July 1980 and again that September,
on the ground that Connor was not performing
productively,4 was not adequately supervising
check cashing policies, and was having
problems with financial audits. Moreover,
Flagg actually recommended Connor for a
promotion in November, after Connor’s MPD
numbers and audit picture began to show
improvement. That promotion, the court rea-
sonably found, was denied only because Con-
nor had failed during the interview to convey
knowledge of his own station’s productivity or
where his station stood with regard to
performance goals, and could not articulate
what goals he would have for the station to
which he was seeking a promotion.
Thus, Connor was unaware of his own pro-
ductivity numbers and did not know where he
stood on his own budget. By contrast, the
other candidates were familiar with their
stations’ status and statistics. Among those
receiving promotions include at least two other
black supervisors, a fact that alone tends to
negate any inference of discriminatory intent.5
The court was similarly reasonable in
4 For example, Flagg noted that Connor’s
minutes-per-delivery performance was too high.
5 See Singh v. Shoney’s Inc., 64 F.3d 217, 219
(5th Cir. 1995) (“Singh [a white female] failed to
make out a prima facie case of racial
discrimination on this record, because she was
replaced by a white female.”); Nieto v. L&H
Packing Co., 108 F.3d 621, 624 (5th Cir. 1997)
(“While not outcome determinative, this fact [that
a Hispanic employee is succeeded by another
Hispanic] is certainly material to the question of
discriminatory intent.”).

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finding that continued problems in Connor’s
job performance justified his poor evaluation in
1984 and the Postal Service’s 1987 and 1989
rulings regarding his requests for backpay. Fi-
nally, the testimony of William Skinner, the
psychiatrist who examined Connor in February
1990, supports the finding that the Postal Ser-
vice had deemed Connor no longer medically
able to perform his duties, and discharged him
for that reason.6 The rebuttal testimony of Dr.
Judy Cook was insufficient to preclude a rea-
sonable fact-finder from crediting Skinner’s
diagnosis.7
Having reasonably reached these numerous
factual conclusions, the court did not commit
clear error in holding that Connor’s inability to
do the job, rather than race or age, motivated
the adverse employment actions. The
judgment is AFFIRMED.
6 Specifically, Skinner diagnosed Connor with
a paranoid personality disorder and concluded that
Connor was very sensitive, had extreme distrust,
read hidden meanings into straightforward
communications, and used inflammatory phrases,
such as the “Four Horseman of the Apocalypse,”
when explaining his perception that there was a
conspiracy to harm him. The court was entitled
not only to give credence to the diagnosis that
Connor was unfit for duty, but also to discredit
Connor’s testimony accordingly.
7 We need not pass judgment on the merits of
the Postal Service’s ability determination, for “our
inquiry is not into the merits of the employer’s em-
ployment decisions but into the motives.” Wilson
v. Belmont Homes, Inc., 970 F.2d 53, 57 (5th Cir.
1992).

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