The Honorable John R. Tunheim, United States District Judge

1

for the District of Minnesota, sitting by designation.

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No. 96-1923

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Rosemary Dodd, *

 *

Appellant, *

 * Appeal from the United 

v. * States District Court for

 * the Eastern District of

Marvin Runyon, * Missouri

 *

Appellant. *

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Submitted: December 12, 1996

 Filed: May 23, 1997 

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

___________

TUNHEIM, District Judge.

Rosemary Dodd appeals the order of the district court granting

summary judgment for appellee Marvin Runyon, Postmaster General of the

United States Postal Service, on her claims of sex and age discrimination

in violation 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 of

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 Auxiliary

Route, despite her seniority, because of discrimination on the basis of sex

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 fide

seniority system because she lacked seniority in the carrier craft. We

reverse and remand.

FACTS

The United States Post Office in Wellsville, Missouri has two mail

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. Rosemary

Dodd began working for the Post Office in Wellsville on March 6, 1978 in

a part-time position. Her responsibilities included sorting mail, carrying

mail on City Route I on Saturdays, and carrying mail on both routes when

a regular carrier was absent. She performed her work ably, and she was

commended for her attendance record. 

Dodd states that when she was hired she was told that she would be

a part-time flexible “clerk-carrier” and that her duties would include

carrying mail. To become eligible for this position, Dodd took an

examination entitled the “Post Office Clerk-Carrier Written Examination.”

On the Notice of Rating sent to Dodd regarding her performance on this

test, her “Job Choice” is identified as “Carrier Only.” When Dodd was

appointed, the local newspaper reported that she had been “hired as a

substitute city carrier and clerk at the Wellsville post office.” The same

article describes her predecessor as a “substitute carrier-clerk.” The

newspaper later featured a photograph of Dodd carrying a mailbag above the

caption: “NEW CARRIER -- Mrs. Rosemary Dodd, newly appointed carrier-clerk

substitute at the Wellsville Post Office, is the first city carrier sub of

the local office.” These articles reinforced Dodd’s impression and

understanding that she had been hired as a letter carrier as well as a

clerk. 
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Two major unions represent employees of the Postal Service. These

are the National Association of Letter Carriers (NALC), which represents

carriers, and the American Postal Workers Union (APWU). In 1980, Dodd

joined the NALC, and she remained a dues paying member at all times until

November 1993. She served as the shop steward for the Wellsville local of

the NALC during a period of time in the 1980s. In November 1993, the

Secretary-Treasurer of the NALC sent a letter to the Postal Service

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 the

American Postal Workers Union.”

Despite the forgoing evidence that Dodd was hired as a carrier, the

Notification of Personnel Action known as the “Form 50” dated March 6,

1978, which records Dodd’s appointment, states that she was a “Distribution

and Window Clerk.” All 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 Duty

Assignment Notice/Confirmation of Assignment, which describes her position

as “Part Time Flexible Clerk/Carrier.” In contrast, the 1985 Duty

Assignment Notice/Confirmation of Assignment states that Dodd was a “P.T.

Flexible 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 when

she was first hired nine years earlier. Nonetheless, he was hired as a

carrier, and his Form 50 reflects this designation. 

Dodd claims 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 she

was a clerk until August 1987, after Paul Johnson was hired. To the

contrary, she had always believed that her job had been classified as a

clerk/carrier. She does not concede the authenticity of her personnel

forms. 

In 1989, the carrier for the Auxiliary Route announced he would

retire in 1990. It had been the practice in Wellsville that the most

senior substitute carrier would be awarded this job when it became vacant.

Dodd was the most senior employee carrying mail in Wellsville in 1990. She

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 postmaster in Wellsville told Dodd that she would not be

permitted to bid on the Auxiliary Route job because it was a carrier

position. The postmaster called the personnel officer in Saint Louis, who

advised that if Dodd were to change her craft status and become a carrier,

she would begin with no seniority in that craft, so that Paul Johnson would

obtain the Auxiliary Route assignment regardless of whether Dodd became a

carrier. The Postal Service took this position pursuant to its

understanding of its joint collective bargaining agreement with the NALC

and the APWU, which provides that “craft employees meeting the

qualifications for [a posted] position shall be given first consideration.”

Nonetheless, in small post offices such as Wellsville, it is the usual

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 Employment

Opportunity Commission (EEOC) alleging discrimination on the basis of age

and sex seeking assignment to the Auxiliary Route position. She did so

without legal representation by completing a
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form provided by the Postal Service. She explained the situation resulting

in her allegations as follows:

I was hired as a clerk/carrier and am being denied a carrier

position that is coming open. Everyone before me was hired as

clerk carrier and moved up to carrier jobs with more hours.

When I was hired I was told that it would be for carrying city

mail.

The administrative complaint identifies February 2, 1990 as the date of the

most recent alleged act of discrimination. The form does not provide an

opportunity to state when the discrimination began. Dodd pursued her

administrative remedies without success. Dodd then initiated this

proceeding in the Eastern District of Missouri. The Complaint alleges the

elements of the claims 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 qualified for the promotions because she had no seniority in

the carrier craft, regardless of when she learned of her clerk craft

status. It consequently found that Dodd had failed to establish an

essential element of her prima facie case and granted summary judgment for

defendant. The district court rejected the contention that female

employees are discriminatorily relegated to clerk craft positions because

it found that Dodd did not make any such claim in the administrative

proceedings or in her complaint. 

On appeal, Dodd argues that she presented a prima facie case for sex

and age discrimination as there are genuine issues of fact regarding

whether she was qualified for the Auxiliary Route position and whether the

Postal Service denied her promotion
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pursuant to a bona fide seniority system. Dodd also assigns error to the

district court’s decision that she had failed to bring any claim that women

were discriminatorily relegated to clerk craft positions. 

STANDARD

We review a grant of summary judgment de novo. Hardin v. Hussman

Corp., 45 F.3d 262, 264 (8th Cir. 1995). Rule 56(c) of the Federal Rules

of Civil Procedure provides that summary judgment “shall be rendered

forthwith if the pleadings, depositions, answers to interrogatories, and

admissions on file, together 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.” Only disputes over facts that

might affect the outcome of the suit under the governing substantive law

will properly preclude the entry of summary judgment. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). 

Summary judgment 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 verdict for the nonmoving party. Id. Summary judgment is

mandated when, after adequate time for discovery and upon motion, the

nonmoving party fails to make a showing sufficient to establish the

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 view the

facts in a light most favorable to the nonmoving party, and the movant has

the burden of establishing 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 allegations 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 Coors

Co., 650 F.2d 930, 932 (8th Cir. 1981). 

ANALYSIS

Under the familiar burden-shifting analysis set forth in McDonnell

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 member of a protected group; (2) she applied and was qualified for an

open position; (3) she was denied the promotion despite her qualifications;

and (4) a male or younger person was hired to fill 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. denied, 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 not

qualified for the promotion because she lacked seniority in the carrier

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 whether

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appellee articulated a legitimate reason for promoting Johnson

instead of Dodd. However, we address the issue because appellee

raised it below and continues to maintain that summary judgment

should be affirmed because the challenged decision was required by

the collective bargaining agreement. 

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includes documentary evidence in the form of the October 1983 Duty

Assignment Notice/Confirmation of Assignment, which identifies Dodd as a

“Part Time Flexible Clerk/Carrier.” There is evidence that the local

newspaper reported that Dodd was a carrier or clerk/carrier. The Postal

Service also participated in furthering Dodd’s impression she was a carrier

by withholding her dues to the NALC, which represents carriers. It is

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 the light most favorable to Dodd,

we conclude that there is a genuine factual dispute as to whether the

Postal Service hired Dodd as a carrier. It follows that there is a genuine

issue of fact regarding whether Dodd was qualified for the promotion she

sought. Thus, summary 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 employer to offer a legitimate, nondiscriminatory reason for the

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 the

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plaintiff to demonstrate 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. 
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Dodd argues that a defendant has a higher burden where its reason for

the adverse employment action involves an affirmative defense, and that

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 Supreme Court has held that this provision does not create an

affirmative defense; rather, it “delineates which employment practices are

illegal and 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 plaintiff 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 not

bona fide, a plaintiff must show either 1) that it was adopted or

negotiated with a discriminiatory motive or purpose; or 2) that it was

administered in an irregular or arbitrary way with intent to harm members

of a protected class. N.A.A.C.P. v. Detroit Police Officers Ass’n, 900

F.2d 903, 909-10 (6th Cir. 1990). 

Under the particular facts of this case, the issue of whether the

seniority system was administered with discriminatory intent can be

subjected to a traditional burden-shifting analysis. We caution that this

may not always be true, and that the burden-shifting approach is not an

inflexible standard applicable in all factual situations. 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 lacked

seniority in the carrier craft and the collective bargaining agreement

required the promotion of Johnson, who had seniority as a carrier.

Appellee 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 she has done so. Given the conflicting messages the Postal

Service sent regarding Dodd’s craft assignment, a reasonable jury could

infer that the Postal Service in Wellsville administered its seniority

system in an irregular and arbitrary manner as a pretext for intentional

discrimination. One could reasonably infer that it is irregular and

arbitrary to tell an employee she is a carrier or 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 then deny her a promotion on the grounds that she is not a carrier.

It follows that a reasonable jury could find that the Postal Service

promoted a younger man not because of the operation of a bona fide

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 her

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. 553

(1977).

The judgment is reversed and the matter is remanded to the district

court for further proceedings consistent with this opinion.

A true copy.

Attest:
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CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.