Case Study:
Phongsavane v. Potter 2006 U.S. Dist. LEXIS 70103 (W.D. Tex. 2006)
An Asian employee alleged discrimination on the basis of race because she was not assigned as much overtime as she had been getting before. Unable to find sufficient evidence of discrimination to support her claim, the court dismissed it.
Rodriguez, J.
This case was brought under Title VII of the Civil Rights Act of 1964 by plaintiff/employee, Khonsovanh Phongsavane, who worked for the United States Postal Service as a mail processing clerk in San Antonio, Texas. Employee is an Asian female who was born in Laos and immigrated to the United States in 1981. Employee was the only Asian female working at her location. Employee alleges that she was consistently denied overtime from September 12, 2003 through January 10, 2004 because of race discrimination. Employee alleged that this discrimination began on September 12, 2003, when Manager of Distribution Operations Sheila Speirs, a female African-American, denied employee overtime because of her race. Employee alleges that although she worked 8.24 hours of overtime between September 12, 2003 and January 10, 2004, it was not nearly as much overtime as the sixteen hours of overtime per week that she averaged before September 12, 2003. Employee can prove a claim of intentional discrimination by either direct or circumstantial evidence. “Direct evidence” is “evidence which if believed, proves the fact [in question] without inference or presumption.” Employee has no direct evidence to support her claim of race discrimination. Employee’s subjective belief that she was denied overtime because of her race does not establish a material question of fact regarding the Postal Service’s motives. Generalized testimony by an employee regarding her subjective belief is insufficient to make an issue for the jury. In her deposition, employee acknowledged that she had never heard Speirs make any comments suggesting that Speirs was biased against Asians. Since employee has no direct evidence of race discrimination, she must establish her claim based on circumstantial evidence. Since employee has presented no direct evidence of race discrimination, she must rely on the burdenshifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 792 (1973), to create a presumption of intentional race discrimination. To create such a presumption, employee must establish a prima facie case of race discrimination by providing evidence that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) was replaced by someone outside the protected class, or in the case of disparate treatment, show that others similarly situated were treated more favorably. If she succeeds, employer must then articulate a legitimate, nondiscriminatory reason for its action. Finally, if the parties satisfy their initial burdens, the case reaches the “pretext stage,” and employee must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. The facts demonstrate that employee (1) was a member of a protected class (Asian), (2) was qualified for her mail processing clerk position, and (3) was subject to an adverse employment action. An allegation of denial of overtime opportunities is sufficient to show an ultimate employment decision and therefore an adverse employment action. Therefore, in order to establish her prima facie case, employee must establish that she was replaced by someone outside her protected class or that other similarly situated employees were treated more favorably. Employee produced no evidence indicating that she was “replaced” by someone outside her protected class (Asian). Employee failed to produce any evidence that the Postal Service replaced employee by reassigning employee’s overtime hours to another non-Asian employee on the same scheme. Employee might argue that Williams and Aguirre “replaced” employee by working regular hours on employee’s scheme when employee was available to work overtime hours. However, the Court finds, for purposes of establishing a prima facie case of race discrimination, that floater employees who work regular hours (thus reducing available overtime hours) do not “replace” regular employees who were otherwise available to work overtime hours. The employee who works regular hours is in a different position than an employee who works overtime hours on the same scheme. By assigning floaters who worked regular hours to employee’s scheme, the Postal Service significantly reduced the overall number of overtime hours available on employee’s scheme. However, reducing the number of overtime hours for all employees on employee’s scheme is not the same as redistributing available overtime hours from employee to another nonAsian employee working on employee’s scheme. The undisputed evidence also indicates that Aguirre worked approximately the same amount of overtime hours as employee, therefore no disparity between overtime granted to employee and Aguirre (a non-Asian, scheme-qualified employee) creates an inference of discrimination. The evidence suggests that the Postal Service limited overtime available to all employees on employee’s scheme, including Aguirre (female Hispanic), through the use of floaters. Since the Court finds that employee was not replaced by someone outside her protected class, employee must rely on her allegations of disparate treatment in order to establish her prima facie case. In cases alleging disparate treatment, employee must establish that other similarly-situated employees were treated more favorably. Employee must show that (1) an employee outside of her protected class was similarly situated; and (2) this employee was treated differently under circumstances “nearly identical” to hers. The Court finds that [the other employees to whom employee compares herself] are not similarly situated to employee and that their circumstances were not “nearly identical” to employee’s. The Court finds that these employees were not similarly situated to employee because they were qualified to work (and actually did work) on different schemes. Additionally, these other employees were not similarly situated to employee because each scheme required a different test to qualify and had a different mail volume on any given day. Thus, employee cannot establish a prima facie case of race discrimination based on disparate treatment because she cannot demonstrate that other similarly situated employees were treated more favorably. Even assuming, arguendo, that employee could establish her prima facie case, the Court finds that employer has proffered a legitimate, non-discriminatory reason for the denial of overtime and that employee has failed to adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. The Postal Service stated that employee “was denied overtime only when mail volume on her routes did not justify overtime or when an employee [i.e. a ‘floater’] was available to process the mail during a regularly scheduled work day.” Employee never challenged or produced evidence contradicting the Postal Service’s sworn assertion that employee was denied overtime because of lack of mail volume or the availability of floaters to work regular hours on employee’s scheme. The Postal Service was particularly attuned to its overtime costs because it had not been managed well in the past. To stay within budget, the Postal Service processed mail by utilizing floaters working on regular time and by assigning overtime only as the “last alternative.” Additionally, employee acknowledged that the Postal Service used floaters to reduce payroll costs by covering for employees who would otherwise be eligible for overtime. The Court finds that these reasons for denial of overtime were legitimate, uncontradicted, and non-discriminatory. Title VII protects employee against discrimination on the basis of race. Employee opined at length that the Postal Service violated the union collective bargaining agreement when it selectively targeted employee’s scheme for overtime reduction. The Court finds that this argument is plausible. Employee alleged that Speirs might have been motivated by pro-union bias or a personal relationship with one of the employees when she selectively targeted employee’s scheme for overtime reduction. The Court finds that this argument is also plausible. Nevertheless, Title VII does not strip the Postal Service of its discretion to reduce overtime hours on some schemes and not others, so long as that decision is not motivated by race discrimination. Even if the decision to reduce overtime on employee’s scheme was arbitrary or unfair, that does not necessarily mean that it was illegal. Title VII is not the proper vehicle for vindicating that right. The Court finds that race discrimination did not play any role in the Postal Service’s decision to reduce overtime opportunities on employee’s scheme and Employee’s race discrimination claim is DISMISSED on the merits.
Q1. Do you agree with the court’s decision? Explain.
Q2. Why do you think employee thought that race was the basis for the overtime decision, yet she could produce no proof of this?
Q3. Did you think that the outcome would be different because you thought that courts routinely believed allegations of discrimination? Discuss.
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.