her performance “was no more detrimental to the USPS than the other
probationary” carriers. In addition, Cooper claims that the Postal
Service failed to provide her with adequate training to allow her
to succeed during the probationary period. In essence, Cooper
argues that the Postal Service singled her out for discriminatory
i
reasons, while retaining othe isimilarly deficient employees
i

outside of her protected class.’ Moreover, Cooper contends that

Hill effectively sabotaged her ability to succeed by, among other
things, refusing to provide additional training or required
instructions, unfairly accusing Cooper of misdeeds, and failing to
Provide required equipment. As proof of Hill’s discriminatory
animus, Cooper claims that Hill changed a “satisfactory” rating on
her 60-day evaluation to “unacceptable” after she was terminated.
(The Postal Service admits that Hill “added new information” to
Cooper's 60-day evaluation by adding a designation of
“unacceptable” to a category previously marked as satisfactory.)
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate 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.” Fep. R. Civ. P. 56(c). A fact

is “material” if it could affect the outcome of the suit under the



v. Country Mut. Ins. Co., 288 F.3d 319, 329 (7th Cir. 2002). An
employee is similarly situated to Cooper if she “is directly
comparable to [the plaintiff] in all material aspects.” Rogers v.
City of Chicago, 320 F.3d 748, 754 (7th Cir. 2003). This burden
“normally entails establishing that the two employees dealt with
the same supervisor, were subject to the same standards, and had
engaged in similar conduct.” Snipes v. Illinois Dept. of
Corrections, 291 F.3d 460, 463 (7th Cir. 2002).

Here, Cooper fails to satisfy this burden because she does not
establish that the Postal Service retained any similarly situated,
but equally deficient, probationary employees. Cooper attempts to
meet this burden by identifying Jason Carr (“Carr”), a white male
probationary part-time letter carrier, who purportedly “delivered
mail to the wrong address” and had delivery times longer than
Cooper’s, but nevertheless was retained by the Postal Service.
However, Cooper’s sole evidentiary support for Carr’s performance
is her own deposition testimony, which Cooper fails to attach to
her Memorandum of Law or Local Rule 56.1 Statement of Additional
Facts (and only a portion of such testimony is contained in the
deposition transcript submitted by the Postal Service). Because
Cooper’s submissions do not conform with Local Rule 56.1, this
Court need not afford them any significance. See, e.g., Flaherty

v. Gas Research Institute, 31 F.3d 451, 453 (7th Cir. 1994).



B. Title VII

Title VII makes it unlawful for an employer to terminate or
otherwise to discriminate against an employee based on race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). A
plaintiff may prove unlawful employment discrimination through
either direct evidence or via the indirect burden shifting approach
set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Here, Cooper proceeds under the indirect method and therefore must
first establish a prima facie case of discrimination by
demonstrating that she (1) was a member of a protected class, (2)
performed her job according to Defendant’s legitimate expectations,
(3) suffered an adverse employment action, and (4) was treated less
favorably than similarly situated employees outside of her
protected class. See, e.g., Markel v. Bd. of Regents of the Univ.
of Wisc. Sys., 276 F.3d 906, 910 (7th Cir. 2002); Gordon v. United
Airlines, Inc., 246 F.3d 878, 885-86 (7th Cir. 2001). If Cooper
can show that “there is some evidence from which one can infer that
the employer took adverse action against the plaintiff on the basis
of a statutorily proscribed criterion,” Leffel v. Valley Fin.
Servs., 113 F.3d 787, 793 (7th Cir. 1997), a presumption of
discrimination arises, and the Postal Service must produce evidence
of a legitimate, nondiscriminatory reason for her termination.

Gordon, 246 F.3d at 886.



governing law; a dispute is “genuine” where the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the movant’s
claim, the court must view all the evidence and any reasonable
inferences that may be drawn from that evidence in the light most
favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has met
its burden, the nonmoving party “may not rest upon the mere
allegations” contained in its pleading, but rather “must set forth
specific facts showing that there is a genuine issue for trial.”
Feo. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914
F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa German
Airlines, 875 F.2d 613, 620 (7th Cir. 1989). The nonmovant “must
do more than simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). In the employment
discrimination context, summary judgment against a plaintiff is
warranted where “the evidence, interpreted favorably to the
plaintiff, could [not] persuade a reasonable jury that the employer
had discriminated against the plaintiff.” Palucki v. Sears,

Roebuck & Co., 879 F.2d 1568, 1570 (7th Cir. 1989).



times, and improper scanning of three collection boxes in less than
two weeks in January 1999. In particular, the Postal Service
claims that “missing a collection box [is] a serious matter and
grounds for removal,” and notes that Hill terminated a white male
probationary carrier for missing a single collection box.

As noted above, Cooper concedes that her performance, for the
most part, did not conform with the required standards. Cooper
also does not disagree with, in principle, the expected performance
standards outlined by the Postal Service. Thus, Cooper cannot
satisfy her prima facie requirement of showing that her performance
met the legitimate expectations of the Postal Service.

However, Cooper may exempt herself from this requirement by
showing that the Postal Service enforced its performance standards
in a discriminatory fashion. That is, Seventh Circuit authority
holds that an employee does not need to show that she met an
employer’s legitimate expectations if she establishes that the
employer selectively disciplined her based on race (or other
prohibited factors). See, e.g., Curry v. Menard, Inc., 270 F.3d
473, 477-78 (7th Cir. 2001); Flores v. Preferred Technical Group,
182 F.3d 512, 515 (7th Cir. 1999). In essence, this inguiry merges
the second and fourth prongs of the McDonell Douglas analysis, and
requires Cooper to show that the Postal Service did not terminate
(or otherwise favor) similarly-situated employees outside of

Cooper’s protected class for equally-poor performance. See Peele



Ministe Order Form (06/97)

sob

United States District Court, Northern District of Illinois

Nemeatawined eee | Harry. Leinenweber | Sting Jue fer
CASE NUMBER 02 C 7341 DATE 2/23/2004
CASE — Carol Cooper vs. John E. Potter, et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) im) Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due__.
(4) Qa Ruling/Hearingon__—_sset fora
(6) o Status hearing[held/continued to] [set for/re-set for]on___setfor___—_at.
(6) a Pretrial conference(held/continued to] [set for/re-set for]}on__—setfor_ at
(0) a Trial{set for/re-set for]on___—_aat
(8) ia} [Bench/Jury trial] [Hearing] held/continuedto at
(9) ao This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (OlLocal Rule 41.1 COFRCP41(a\(1) (FRCP41(a)(2).
qo) i [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Motion

for Summary Judgment is GRANTED.

a1) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required, veimber of ina
Notices mailed by judge's staff. -
. FEB 24 2004
Notified counsel by telephone. ‘le dovketed
¢ | Docketing to mail notices.
| Mail AO 450 form. / niiats
Copy to judge/magistrate judge.
date mailed notice
courtroom
WAP deputy’s
initials

U bpbtestimé received in
central Clerk's Office

mailing deputy initials



case, it need not address Defendant’s other grounds for summary
judgment.

CONCLUSION

For the reasons set forth above, Defendant’s Motion for
Summary Judgment is GRANTED.

IT IS SO ORDERED.

Harry“D. ‘feinenweber, Judge
United States District Court

Date: AS o

-1l1-


Even if the Court chose to consider Cooper’s allegations here,
they still fail for at least two reasons. First, Cooper admitted
that she could not identify any other retained probationary letter
carrier who improperly retrieved mail from a collection box not on
his/her route, or a probationary carrier who missed assigned
collection boxes. Second, the entirety of Cooper’s evidence is her
own deposition testimony containing nothing more than her own
conclusory, unsupported allegations pertaining to Carr’s
performance. This “evidence” cannot meet Cooper’s summary judgment
burden. See, e.g., Albiero v. City of Kankakee, 246 F.3d 927, 933
(7th Cir. 2001). Rather, Cooper must establish sufficient facts,
with suitable evidentiary support, to be able to show that Carr was
a similarly situated employee. See Johnson v. G.A.T.X. Logistics,
Inc., 2001 WL 1568883, *3 (N.D. Ill. 2001). Cooper has failed to
do so. (The Court does not address the other two employees that
Cooper claims are similarly situated because Cooper identifies
these employees by first name only and fails to offer any specifics
of their job performance. Therefore, these allegations fail for
the same reasons as stated above.)

In sum, even when construed in a light most favorable to
Cooper, the evidence here cannot establish that Cooper either met
the Postal Service’s legitimate expectations or that the Postal
Service applied its expectations in a discriminatory fashion.

Because the Court finds that Cooper cannot establish a prima facie

- 10 -


Itz. Dt ISSIO!

The Postal Service initially argues that Cooper cannot
establish a prima facie case under Title VII because the undisputed
facts show that she did not perform her job according to the Postal
Service’s legitimate expectations. To establish a prima facie case
under Title VII, Cooper must show that her “performance was of
sufficient quality to merit continued employment.” Flowers v.

Crouch-Walker Corp., 552 F.2d 1277,

}1283 (7th Cir. 1977). An
employer’s performance expectations need not be reasonable; an
employer may freely set unreasonable expectations and fire an
employee for failing to meet these admittedly unreasonable
standards. See Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1571
(7th Cir. 1989); Sampson v. Federal Express Corp., 1996 WL 568792,
*3-4 (N.D. Ill. 1996). However, the employer’s expectations must
be legitimate, rather than a mere cover for discrimination. See
id. When the undisputed facts demonstrate that the employee has
failed to meet an employer’s legitimate standards, summary judgment
in favor of the employer is appropriate. See Lim v. Trustees of
Indiana Univ., 297 F.3d 575, 581 (7th Cir. 2002).

As noted above, the Postal Service delineates a series of
incidents that indicate performance “marred with deficiencies” and
non-conformance with the standards outlined in the Postal Service
Carriers Handbook. The Postal Service notes incidents of

tardiness, difficulty delivering mail, including excessive delivery



evaluation report with an overall rating of “Does Not Fully Meet
Expectations at this Time.”

The Postal Service claims that Cooper’s fatal flaws centered
on her failure to scan properly certain collection boxes on
January 5, 9 and 14, 1999. In addition, Cooper also picked up mail
from the wrong collection box on January 5, 1999. The Postal
Service outfits mail carriers with wand-like devices used to scan
each assigned collection box on a given route. The battery-
operated wand records the location of the collection box and the
time of scanning. When the carrier returns to the post office,
information is downloaded from the wand and a daily report is
generated to ensure that all mail collection boxes are accounted
for. If a collection box has not been scanned, someone must
promptly return to the collection box to ensure that the mail gets
collected. The Postal Service states that errors involving
collection boxes are particularly glaring because Price Waterhouse
conducts ongoing audits monitoring the timely delivery of mail from
these boxes. Finally, the Postal Service notes that it received
customer complaints about Cooper’s services during her probationary
period.

Cooper does not deny that the above incidents occurred. Nor
does she contend that the Postal Service’s performance standards
are objectively unreasonable. Instead,’ Cooper claims that her

difficulties were typical of other probationary carriers, and thus

-3-



Following training, Cooper was assigned to the Park Ridge Post
Office (“Park Ridge”), from which she delivered mail on Route 49.
Her supervisor at Park Ridge was Thomas Hill (“Hill”), a white
male. On January 15, 1999, Cooper was terminated from her
probationary position.

The Postal Service contends that it terminated Cooper because
of significant performance deficiencies evident throughout her
probationary period. The Postal Service evaluates the work
performance of probationary carriers on several factors, including
the time taken to deliver mail, accuracy of mail collections,
attendance, and safety. The Postal Service notes that Cooper
delivered mail to the wrong address, picked up mail from a
collection box not assigned to her route, failed to scan properly
two collection boxes, and arrived late for work several times. The
Postal service also notes that it advised Cooper of her poor
performance throughout the probationary period. Specifically, on
November 24, 1998, Hill gave Cooper a 30-day evaluation that
provided an overall rating of “Does Not Fully Meet Expectations at
this Time.” Hill also completed a 30-day, probationary evaluation
report that gave Cooper unsatisfactory ratings in three of six
categories. In addition, on November 28, 1998, another supervisor
reported several problems with Cooper’s performance, including
dropped mail, failure to follow instructions, and difficulty

locating homes. On December 23, 1998, Hill completed the 60-day


IN THE UNITED STATES DISTRICT COURT F
FOR THE NORTHERN DISTRICT OF ILLINOIS / L E
EASTERN DIVISION

ER
CAROL COOPER, leg 23 2004
us RY 0
Plaintiff, STRICT ogee
v. Case No. 02 C 7341
JOHN E. POTTER, Postmaster Hon. Harry D. Leinenweber
General, UNITED STATES POSTAL
SERVICE,
Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff Carol Cooper (“Cooper”) filed a one-count complaint
against Defendant United States Postal Service (“Postal Service”)
alleging racial and gender discrimination based on her dismissal as
a probationary letter carrier. Cooper’s claim arises under
Title VII of the Civil Rights Act of 1964, as amended, 42. U.S.C.
§ 2000 et seg. Before the Court is the Postal Service’s Motion for
Summary Judgment filed pursuant to Rule 56 of the Federal Rules of
Civil Procedure. For the following reasons, the Postal Service’s

Motion for Summary Judgment is granted.

I. BACKGROUND
Cooper, an African-American woman, was hired as a probationary
part-time letter carrier on October 24, 1998. Cooper was placed on
a 90-day, probationary period, due to expire on January 20, 1999.
Prior to her probationary assignment, Cooper completed a two-week

program that included training in sorting and delivering mail.

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