Birdow v. Henderson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-11333
Summary Calendar
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CHARLES E. BIRDOW,
Plaintiff-Appellant,
VERSUS
WILLIAM HENDERSON,
POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CV-1715-P)
_________________________
May 5, 2000
Before SMITH, BARKSDALE, and
PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Charles Birdow appeals an adverse
summary judgment denying his race
discrimination claim. Finding no genuine issue
of material fact as to pretext, we affirm.
I.
Birdow, a black male, began working for
the United States Postal Service (“USPS”) in
1978 and was Manager of Distribution
Operations (“MDO”) at the Dallas Bulk Mail
Center (“DBMC”). In January 1995, postal
inspectors began investigating allegations of
sexual harassment at DBMC, followed by an
investigation by USPS Labor Relations.
Birdow received a notice of proposed removal
for improper conduct (sexual harassment and
employee favoritism) and unsatisfactory job
performance and was terminated based on the
charges of improper conduct.
Three female employees accused Birdow of
sexual harassment, and six supervisors alleged
that he favored his employee-girlfriend in a
manner that disrupted postal operations.
Birdow denied the allegations and, after
exhausting administrative remedies, sued for
race discrimination in violation of title VII.
* 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determined that this opinion should not be
published and is not precedent except under the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.

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The court granted summary judgment,
concluding that Birdow had failed to establish
a prima facie case of racial discrimination and
to present evidence that the USPS’s
articulated non-discriminatory reason for
discharge was pretextual.
II.
We articulated the analysis for title VII
discrimination cases in Mayberry v. Vought
Aircraft Co., 55 F.3d 1086, 1089-90 (5th Cir.
1995) (internal quotation marks, footnotes,
and citations omitted):
The plaintiff must establish a prima facie
case that the defendant made an
employment decision that was motivated
by a protected factor. Once established,
the defendant bears the burden of
producing evidence that its employment
decision was based on a legitimate
nondiscriminatory reason. The burden
then shifts back to the plaintiff to prove
that the defendant’s proffered reasons
were a pretext for discrimination. But,
if the defendant has offered a legitimate
nondiscriminatory reason for its action,
the presumption of discrimination
derived from the plaintiff’s prima facie
case simply drops out of the picture, and
the ultimate question is discrimination
vel non.
Because this case arises on summary
judgment, Birdow need only raise a genuine
issue of material fact regarding pretext.
In a disparate treatment discharge case, the
plaintiff must first prove that he was qualified
for the position and was discharged under
circumstances giving rise to an inference of
unlawful discrimination. See Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). This circuit follows McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802
(1973), in articulating the following generally
applicable four-part test: The plaintiff may
prove a prima facie case of discrimination by
showing that “(1) he is a member of a
protected group; (2) he was qualified for the
job that he held; (3) he was discharged; and
(4) after his discharge, his employer filled the
position with a person who is not a member of
the protected group.” Vaughn v. Edel, 918
F.2d 517, 521 (5th Cir. 1990). Where the
fourth factor is not applicable, as where the
discharged employee is not replaced, the
plaintiff instead may show that a similarly
situated employee who is not of his protected
class was not discharged. See id.
The USPS acknowledges that Birdow has
satisfied the first three elements but claims he
has failed to establish the fourth. Birdow
contends that he has established the fourth
factor both with his deposition testimony that
he was replaced by a white male and with
evidence that several similarly situated white
management employees were not disciplined.
Although the USPS and the district court
focus on the latter assertion, there is no
evidence contradicting Birdow’s deposition
testimony that he was replaced by a white
male.
The USPS instead focuses on whether the
replacement was permanent or temporary.
While it is difficult to understand the relevance
of that distinction, we need not decide whether
Birdow’s evidence satisfied his prima facie
burden, because summary judgment was
appropriate based on his failure to raise a
genuine issue of material fact as to pretext.1
1 The parties fail to clarify the confusing state
of the record regarding Birdow’s replacement.
Birdow has consistently asserted, beginning with
his first amended complaint, that he was replaced
by a white employee. In its answer, the USPS
admitted that Birdow was replaced by a white
employee. The USPS later sought summary
judgment, however, on the ground that Birdow had
presented no such evidence, seemingly in conflict
with Birdow’s deposition testimony.
The district court seems to have overlooked this
issue. We need not decide it, because even
assuming, arguendo, that Birdow made a prima
facie case, he failed to raise a genuine issue of
material fact regarding pretext. In this regard, we
note the Court’s language in United States Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715 (1983), that “[w]here the defendant has done
(continued...)

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III.
The USPS produced evidence of a
legitimate nondiscriminatory reason for the
discharge, namely evidence of sexual
harassment and employee favoritism. Three
female employees accused Birdow of sexual
harassment.
Ontrecia Harrison received a gift from
Birdow that she returned. Harrison claimed
that Birdow attempted to transfer her to a less
desirable position shortly thereafter. Cheryl
Thomas complained that Birdow had asked
her out on a date on multiple occasions and
that she was given an unfavorable evaluation
and placed on restricted sick leave after
rejecting these advances. Bettye Jo
Washington complained that Birdow had
attempted to kiss and fondle her on multiple
o c c a s i o n s . W a s h in g t o n m a d e
contemporaneous complaints to two
supervisors and alleged that she was used less
often as an acting supervisor after rejecting
Birdow’s advances. The testimony of other
employees corroborated key elements of these
claims.
Six DBMC supervisors reported that
Birdow used his position to advantage his
girlfriend, mail handler Felicia Abu. Multiple
supervisors alleged that when after-tour
overtime was called for Abu’s entire shift,
Birdow would release Abu, causing problems
with staffing and morale. There also were
allegations that Birdow spent an inordinate
amount of time visiting with Abu while she
was on duty, so much so that one supervisor
had to request that Birdow leave Abu alone so
she could work.
Birdow attempts to demonstrate that the
USPS’s proffered nondiscriminatory reason is
pretextual by alleging that white managers
who engaged in conduct similar to his were
not discharged. At the time of his removal,
there were six MDO’s working at DBMC,
four blacks and two whites. Two of the blacks
were not disciplined, nor were the two whites.
Birdow is not aware of any preferential
treatment received by one of the whites but
claims that the other, Robert Deal, was
similarly situated in that Deal had dated
subordinates, eventually marrying one of them,
and allegedly had worked to align his wife’s
days off with his own. Birdow does not claim
that Deal had any sexual harassment
allegations leveled against him.
Birdow also claims that Gary Gale, a white
Supervisor of Distribution Operations
(“SDO”), was similarly situated and treated
more favorably. The SDO position is the level
of supervision directly below MDO. Birdow’s
knowledge of Gale’s alleged wrongdoing
consists of a rumor that Gale had whispered
sexual innuendoes to a mail handler. In fact,
after an anonymous call reported that Gale
was involved in a consensual relationship with
a subordinate and was padding her time card,
he was placed on administrative leave but was
reinstated when the investigation found no
evidence to substantiate the allegation.
Birdow also claims that SDO Ron
Townsend sexually harassed an employee
named Sandra Beavers, but Birdow has no
evidence to back up this allegation and does
not know whether Townsend was disciplined.
Lastly, Birdow introduced a statement by
Alvin Cole, a supervisor at DBMC, that
numerous management personnel dated
employees.
Because none of these employees was
involved in nearly identical circumstances,
Birdow fails to demonstrate that any
comparable employee was treated more
favorably, and thus he fails to prove that the
proffered reason for discharge is false. See
Burdine, 450 U.S. at 256; Little v. Republic
Refining Co., 924 F.2d 93, 97 (5th Cir. 1991).
Whereas Birdow sexually harassed several
subordinates and extended job benefits to his
girlfriend in a manner that disrupted employer
(...continued)
everything that would be required of him if the
plaintiff had properly made out a prima facie case,
whether the plaintiff really did so is no longer
relevant. The district court has before it all the
evidence it needs to decide whether the defendant
intentionally discriminated against the plaintiff”
(internal quotation marks omitted).

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operations, the only proffered employee of
equal seniority, Robert Deal, had no sexual
harassment charges brought against him.
SDO’s are of lesser seniority, and Birdow has
no knowledge or evidence of any wrongdoing
by Gale or Townsend.
AFFIRMED.

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