### Th e Honorable John R. Tunheim, United States District Judg e 1 

### for the District of Minnesota, sitting by designation. ___________ No. 96-1923

___________ Rosemary Dodd, * * Appellant, * * Appeal from the United v. * States District Court for * the Eastern District of Marvin Runyon, * Missouri * Appellant. *

___________

Submitted: December 12, 1996 Filed: May 23, 1997

___________ Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM, District Judge. 1

___________ TUNHEIM, District Judge.

Rosemary Dodd appeals the order of the district court grantin g
summar y judgment for appellee Marvin Runyon, Postmaster General of th e United States Postal Service, on her claims of sex and age discrimination in vi olation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq. , (Title VII), the Age Discrimination in Employment Act o f 1967, 29 U.S.C. §§ 621, et seq. , (ADEA), and the Missouri Human Rights Act , Mo. Rev. Stat. § 213. 010 (MHRA). Dodd alleges the Post Office promoted a younger man instead of her to the position of carrier on the Auxiliar y Route, despite her seniority, because of discrimination on the basis of se x and age. Appellee argues that Dodd was a member of

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the clerk craft and was denied these promotions pursuant to a bona fid e seniority system because she lacked seniority in the carrier craft. W e reverse and remand.

FACTS

The Unit ed States Post Office in Wellsville, Missouri has two mai l routes. A full time mail carrier serves City Route I, and the Auxiliary Route is served by a part-time employee who has also sorted mail. Rosemar y Dodd began working for the Post Office in Wellsville on March 6, 1978 in
a part-time position. Her responsibilities included sorting mail, carryin g mail on City Route I on Saturdays, and carrying mail on both routes when
a regul ar carrier was absent. She performed her work ably, and she wa s commended for her attendance record. Dodd states that when she was hired she was told that she would b e
a part -time flexible “clerk-carrier” and that her duties would includ e
car rying mail. To become eligible for this position, Dodd took a n examination entitled the “Post Office Clerk-Carrier Written Examination.” On the Notice of Rating sent to Dodd regarding her performance on thi s test, her “Job Choice” is identified as “Carrier Only.” When Dodd wa s appointed, the local newspaper reported that she had been “hired as a substitute city carrier and clerk at the Wellsville post office.” The sam e articl e describes her predecessor as a “substitute carrier-clerk.” Th e newspaper later featured a photograph of Dodd ca rrying a mailbag above the caption: “NEW CARRIER -- Mrs. Rosemary Dodd, new ly appointed carrier-clerk substitute at the Wellsville Post Office, is the first city carrier sub of the lo cal office.” These articles reinforced Dodd’s impression an d understa nding that she had been hired as a letter carrier as well as a clerk.

### -3- Two majo r unions represent employees of the Postal Service. Thes e
are the National Association of Letter Carriers (NALC), which represents carri ers, and the American Postal Workers Union (APWU). In 1980, Dod d joined the NALC, and she remained a dues paying member at all times until November 1993. She served as the shop steward f or the Wellsville local of the NALC during a period of time in the 1980s. In November 1993, th e Secretary-Treasurer of the NALC sent a letter to the Postal Servic e requesting the cancellation of withholding of Dodd’s dues on the grounds that she had “transferred to the clerk craft and is now a member of th e American Postal Workers Union.” Despite t he forgoing evidence that Dodd was hired as a carrier, the Notif ication of Personnel Action known as the “Form 50” dated March 6 , 1978, which records Dodd’s appointment, states that she was a “Distributio n and Window Clerk.” A ll of Dodd’s later Notification of Personnel Actions also state that she was a “Distribution and Window Clerk.” In October 1983, the Postal Service provided Dodd with a Dut y Assignment Notice/Confirmation of Assignment, wh ich describes her position

as “Part Time Flexible Clerk/Carrier.” In contrast, the 1985 Dut y Assignment Notice/Con firmation of Assignment states that Dodd was a “P.T. Flexib le Clerk.” Dodd signed both of these contradictory notices , indicating that she received them. On August 1, 1987, the postmaster at Wellsville hired Paul Johnson,
a man who is thirteen years younger than Dodd, as a substitute carrier

. He was assigned initially to substitute carry on Saturdays on City Route I and to sort mail. His duties were identical to those Dodd performed whe n she was first hired nine years earlier. Nonetheless, he was hired as a carrier, and his Form 50 reflects this designation. Dodd clai ms that she did not see the contents of her personnel file until 1989, when she was informed that she could not bid on

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the Auxiliary Route assignment. She alleges that she did not know that sh e
was a cler k until August 1987, after Paul Johnson was hired. To th e contrary, she had always believed that her job had been classified as a clerk/carrier. She does not concede the authenticity of her personne l forms. In 1989, the carrier for the Auxiliary Route announced he woul d retire in 1990. It had been the practice in Wellsville that the mos t senior substitute carrier would be awarded this job when it became vacant. Dodd was the most senior employee carrying mail in Wellsville in 1990. Sh e
was the first female to reach this position. The tasks required for the Auxiliary Route position were identical to those which Dodd had previously performed, but it offered the opportunity to work many more hours per week

. The postm aster in Wellsville told Dodd that she would not b e permit ted to bid on the Auxiliary Route job because it was a carrie r position. The postmaster called the personnel o fficer in Saint Louis, who advised that if Dodd were to change her craft st atus and become a carrier, she would begin with no seniority in that craft, so that Paul Johnson woul d obtain the Auxiliary Route assignment regardless of whether Dodd became a carrier. The Postal Service took this position pursuant to it s understanding of its joint collective bargaining agreement with the NALC and th e APWU, which provides that “craft employees meeting th e qualifications for [a posted] position shall be given first consideration. ” Nonet heless, in small post offices such as Wellsville, it is the usua l practice for employees in one craft to perform the duties of another craft , as needed. On May 1, 1990, Dodd filed a complaint with the Equal Employmen t Opportunity Commissio n (EEOC) alleging discrimination on the basis of age and sex s eeking assignment to the Auxiliary Route position. She did s o without legal representation by completing a

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form provided by the Postal Service. She explained the situation resultin g in her allegations as follows:

I was hi red as a clerk/carrier and am being denied a carrie r position that is coming open. Everyone before me was hired as clerk c arrier and moved up to carrier jobs with more hours

. When I was hired I was t old that it would be for carrying city mail.

The administrative complaint identifies February 2, 1990 as the date of th e most recent alleged act of discrimination. The form does not provide an opportu nity to state when the discrimination began. Dodd pursued he r administrative remedies without success. Dodd then initiated thi s proceeding in the Eastern District of Missouri. The Complaint alleges the elements of the claim s of age and sex discrimination without a recitation of the specific facts. It alleges that Dodd “was denied the opportunity to advance herself in the postal service,” and it asserts that “Defendant’ s conduct” was based upon improper motivation and that it caused damages. Defendant moved for summary judgment . The district court found that Dodd was not qualifie d for the promotions because she had no seniority in the carrier craft, regardless of when she learned of her clerk craf t status. It consequently found that Dodd had failed to establish a n essential element of her prima facie case and gr anted summary judgment for defend ant. The district court rejected the contention that femal e employees are discrim inatorily relegated to clerk craft positions because it fou nd that Dodd did not make any such claim in the administrativ e proceedings or in her complaint. On appeal, Dodd argues that she pres ented a prima facie case for sex and age discrimination as there are genuine issues of fact regardin g whether she was qualified for the Auxiliary Rout e position and whether the Postal Service denied her promotion

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pursuant to a bona fi de seniority system. Dodd also assigns error to the district court’s decision that she had failed to bring any claim that wome n were discriminatorily relegated to clerk craft positions.

STANDARD

We review a grant of summary judgment de novo

. Hardin v. Hussma n Corp. , 45 F.3d 262, 2 64 (8th Cir. 1995). Rule 56(c) of the Federal Rules of Civ il Procedure provides that summary judgment “shall be rendere d forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, t ogether with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Onl y disputes over facts that might affect the outcome of the suit under the governing substantive law will properly preclude the entry of summary judg ment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). Summary j udgment is not appropriate if the dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdic t for the nonmoving party. Id

. Summary judgment is mandate d when, after adequate time for discovery and upon motion, th e nonmoving party fails to make a showing sufficient to establish th e existence of an element essential to its case, on which that party would bear the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317 , 322 (1986). In reviewing a grant of summary judgment, we are required to vi ew the facts in a light most favorable to the nonmoving party, and the movant has the burden of establi shing that no genuine issue of material fact remains and that the case may be decided as a matter of law. Buller v. Buechler , 706 F.2d 844, 846 (8th Cir.

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1983). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co.

v. Aetna Casualty & Surety Co. , 612 F.2d 1076 (8th Cir. 1980). However, the nonmoving party may not merely rest upon all egations or denials in its pleadings, but it must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Burst v. Adolph Coor s Co. , 650 F.2d 930, 932 (8th Cir. 1981).

ANALYSIS

Un der the familiar burden-shifting analysis set forth in McDonnel l Douglas Corp. v. Green , 411 U.S. 792 (1973), a plaintiff bringing claims of employment discrimination first must satisfy the burden of production by making a prima facie case. To do so, Dodd must show that (1) she was
a membe r of a protected group; (2) she applied and was qualified for a n open position; (3) she was denied the promotion despite her qualifications ; and (4) a male or younger person was hired to fi ll the vacancy. See Texas Dep’t of Comm. Affairs v. Burdine , 248 U.S. 248, 253-54, n.6 (1981) (sex discrimination under Title VII); Rhinehart v. City of Independence, Mo. , 35 F.2d 1263, 1264-66 (8th Cir. 1994), cert. den ied , 115 S.Ct. 1822 (1995) (age discrimination under the ADEA and MHRA). The only dispute regarding the prima facie case is whether Dodd has raised a genuine issue that she was qualified for the carrier position

. The district court found that the undisputed facts showed that Dodd was no t qua lified for the promotion because she lacked seniority in the carrie r craft. However, this critical fact is in dispute. We cannot assume that the Postal Service’s Form 50s are the only relevant evidence determining the craft to which Dodd was assigned. There is evidence that the Postal Service informed Dodd that she was a carrier or a clerk/carrier. This

### The district court did not reach the issue of whethe r 2 

### appell ee articulated a legitimate reason for promoting Johnso n instead of Dodd. However, we address the issue because appelle e raised it below and continues to maintain that summary judgmen t should be affirmed because the challenged decision was required by the collective bargaining agreement.

-8- includes documentary evidence in the form of the October 1983 Dut y Assignment Notice/Confirmation of Assignment, which identifies Dodd as a “Part Time Flexible Clerk/Carrier.” There is evidence that the loca l newspaper reported that Dodd was a carrier or clerk/carrier. The Postal Service also participated in furthering Dodd’s impression she was a carrie r by withholding her dues to the NALC, which represents carriers. It i s undisputed that Dodd performed the tasks of both clerks and carriers, and that a younger man who was hired to perform the same work was designated a carrier and promoted accordingly. Viewing the facts in the record in t he light most favorable to Dodd,
we conclude that there is a genuine factual dispute as to whether th e Postal Service hired Dodd as a carrier. It follows that there is a genuin e issue of fact regarding whether Dodd was qualified for the promotion she sought. Thus, summar y judgment should not have been granted on the basis that Dodd had failed to make a prima facie case of discrimination on the basis of sex and age. Once a plaintiff makes a prima facie case, the burden then shifts to the em ployer to offer a legitimate, nondiscriminatory reason for th e adverse employment action. Texas Dep’t of Comm. Affairs v. Burdine , 450 U.S. at 254. If the employer does so, the burden shifts back to th e 2 plaintiff to demonstr ate that the stated reason is actually a pretext for discrimination. Id. at 255-56. The burden of persuasion remains at all times on the plaintiff. Id. at 256.

### -9- Dodd argues that a defendant has a higher burden where its reas on for the ad verse employment action involves an affirmative defense, and tha t reliance upon a bona fide seniority system is such an affirmative defense under §703(h) of Title VII, 42 U.S.C. § 2000e-2 (h). See Firefighters for Racial Equality v. Bach , 611 F. Supp. 166, 172 (D. Col. 1985). However, the Supr eme Court has held that this provision does not create a n affirmative defense; rather, it “delineates whic h employment practices are illegal a nd thereby prohibited and which are not.” Lorance v. AT& T Technologies, Inc. , 490 U.S. 900, 908 (1989). The effect of § 703(h) is that a pla intiff challenging an employment practice based upon a bona fide seniority system must prove discriminatory intent; proof of a disparate impact is insufficient. Id. at 908-09. To prove that an employment practice pursuant to a seniority system is no t bon a fide, a plaintiff must show either 1) that it was adopted o r negot iated with a discriminiatory motive or purpose; or 2) that it wa s administered in an ir regular or arbitrary way with intent to harm members of a protected class. N.A.A.C.P. v. Detroit Police Officers Ass’n , 90 0 F.2d 903, 909-10 (6th Cir. 1990). Under the particular facts of this case, the issue of whether th e senio rity system was administered with discriminatory intent can b e subjected to a traditional burden-shifting analy sis. We caution that this may not a lways be true, and that the burden-shifting approach is not a n inflexible standard applicable in all factual si tuations. Texas Dep’t of Comm. Affairs v. Burdine , 450 U.S. at 253-54 n.6. Appellee argues that Dodd was not promoted because she lacke d senior ity in the carrier craft and the collective bargaining agreemen t required the promotion of Johnson, who had seniority as a carrier

. App ellee satisfied its burden of articulating this legitimate , nondiscriminatory reason for its decision, a reason

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which is grounded in a seniority system. To avoid summary judgment, Dodd must raise a genuine issue of fact that this asserted reason for denying her promotion is a pretext for intentional discrimination. We find s he has done so. Given the conflicting messages the Postal Servic e sent regarding Dodd’s craft assignment, a reasonable jury coul d infer that the Postal Service in Wellsville administered its seniorit y systemin an irregular and arbitrary manner as a pretext for intentional disc rimination. One could reasonably infer that it is irregular an d arbitrary to tell an employee she is a carrier o r a clerk/carrier, pay her dues to the NALC, complete paperwork describing her as a carrier, a clerk, and a clerk/carrier, assign her work performed by both clerks and carriers , and t hen deny her a promotion on the grounds that she is not a carrier

. It f ollows that a reasonable jury could find that the Postal Servic e promoted a younger man not because of the operation of a bona fid e seniority system, but because of an intent to discriminate based upon sex or age. This genuine issue of pretext precludes summary judgment. Finally, we agree with the district court that Dodd has not properly raised the question of whether the Postal Service discriminated against he r when it assigned her to the clerk craft, assuming arguendo that it did so when she was first hired. See United Air Lines v. Evans , 431 U.S. 55 3 (1977). The judgm ent is reversed and the matter is remanded to the district court for further proceedings consistent with this opinion.

A true copy.

Attest:

### -11- CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.