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Cedric Howard v. United Parcel Service

January 18, 2011

CEDRIC HOWARD,
PLAINTIFF,
v.
UNITED PARCEL SERVICE, INC.,
DEFENDANT.



The opinion of the court was delivered by: ED Kinkeade United States District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant United Parcel Service, Inc.'s ("UPS") Motion for Summary Judgment (Doc. No. 52) and UPS's Objections to Plaintiff Cedric Howard's Evidence (Doc. No. 84). UPS has demonstrated that no genuine issue of material fact exists in regards to any of Mr. Howard's claims because he was terminated for legitimate, non-discriminatory reasons and a hostile work environment did not exist at UPS. UPS's Motion for Summary Judgment is GRANTED and all of Mr. Howard's claims are DISMISSED with prejudice. UPS's Objections to Mr. Howard's Evidence are DENIED as moot because this Court reaches the same decision with or without Mr. Howard's evidence.

I. Background

Mr. Howard, an African-American man, has been employed by UPS continuously since October 1982, when he was hired as an administrative clerk after graduating from high school. Three years later, Mr. Howard became a driver for UPS's ubiquitous delivery vans, known within the company as "package cars." In 1991, Mr. Howard began driving "feeder trucks," the tractor-trailer rigs used to transport larger numbers of packages over longer distances. For his first sixteen years with UPS, Mr. Howard delayed consideration for promotion into management because of concern over the strain it would place on his family. As a Teamsters' member truck driver, Mr. Howard retained greater control over his work hours.

In July 1998, Mr. Howard made the transition to Feeder On-Road Supervisor, where he coordinated roughly forty feeder truck drivers. Over the next four years, Mr. Howard moved through several positions within the UPS feeder and packages divisions. He was promoted to Feeder Manager at UPS's Fort Worth, Texas hub in 2002, which is considered a mid-level management position within the company. Hubs are regional centers through which UPS sorts and routes packages, either for further shipment or for delivery to customers. In 2005, Mr. Howard made a lateral transfer to become the Feeder Dispatch Manager at the Mesquite, TX hub, a suburb of Dallas, where he oversaw the scheduling and dispatch of feeder drivers.

In June of 2007, Mr. Howard was promoted to Feeder Division Manager in the Red River District, based out of Oklahoma City. Previously, Mr. Howard had worked in the North Texas District, primarily in the Dallas/Fort Worth area. As the Feeder Division Manager, Mr. Howard reported to Nancy Koeper, the Red River District Manager. This promotion marked a move up for Mr. Howard into the next level of UPS management.

The transition to his new job in Oklahoma City was not entirely smooth. Mr. Howard experienced several problems in his first few months on the job, including: (1) an exchange with a security guard over a reserved parking spot; (2) changing job classifications of union employees in his division, which affected the employees' hourly pay rates; (3) sending excessive e-mails to his subordinates, including copying clerical workers on management e-mails; and (4) conflicts with his subordinates over allegedly coerced support of the United Way charity. Mr. Howard asserts, and this Court will assume for the purposes of this motion, that Ms. Koeper, his supervisor, stated "you Texas boys come to my district and think you're going to do things your way. . ." in a meeting with him in July 2007 to discuss some of these issues. Mr. Howard interpreted the term "boy" as a racial slur.

While driving to Lubbock, Texas on a business trip sometime toward the end of 2007, Mr. Howard, Ms. Koeper, and two other co-workers were stopped by a Texas state trooper. Mr. Howard asserts, and this Court will assume for the purposes of this motion, that Ms. Koeper opined the state trooper would not have pulled the car over but for the presence of Mr. Howard in the back seat. All of the other occupants of the car were Caucasian. Mr. Howard interpreted this statement as a comment on his race.

The holidays, from mid-November until early January, are busy for UPS. Planning sessions for what the company calls its "peak time" occur in September each year. Mr. Howard asserts, and this Court will assume for the purposes of this motion, that he unsuccessfully requested "peak time" plans from 2006 to help him prepare for his first year as Feeder Division Manager. In December 2007, during "peak time," Mr. Howard's division experienced several major problems: (1) three shipments comprising hundreds of packages were delayed en route to customers; (2) UPS committed federal service hour violations, intended to limit the number of hours a driver may work; and (3) some drivers were paid triple overtime due to staffing shortages. Following an internal investigation, UPS concluded that Mr. Howard was responsible for the problems and that he had not been forthright on a number of the matters investigated. UPS concluded that Mr. Howard had pleaded ignorance as to the consequences of several of his actions when in fact he had discussed them previously with other managers. Mr. Howard asserts, and this Court will assume for the purposes of this motion, that other managers and contract obligations were to blame for the issues UPS investigated.

Mr. Howard was demoted back to Feeder Manager on February 11, 2008, a job he had previously held at several UPS locations in the Dallas/Fort Worth area. The Feeder Division Manager position which Mr. Howard had held was eliminated and the duties were absorbed by another manager. Though his salary was not cut, Mr. Howard asserts, and this Court will assume for the purposes of this motion, that he lost stock options and relocation expense benefits as a result of the decision. Mr. Howard was temporarily assigned to the Tulsa hub, and from there moved through several more jobs before returning to the Mesquite, Texas hub, where he remains as the Feeder Dispatch Manager.

Mr. Howard filed complaints of racial discrimination and retaliation in a letter to UPS's company management committee in June 2008. In that letter, Mr. Howard claimed racial discrimination was the motivation behind his demotion and the lack of consequences for Caucasian employees that had experienced similar problems. James Grover, a member of UPS's human resources team, was sent to investigate the claims. Mr. Grover interviewed Mr. Howard and other staff members in the Red River District offices, in addition to reviewing documents from both Mr. Howard and other employees. Mr. Grover concluded his investigation and informed Mr. Howard in September 2008 that Mr. Grover could not substantiate any of Mr. Howard's claims.

Mr. Howard filed suit for employment discrimination and related claims under 42 U.S.C. § 1981 on August 26, 2009. Mr. Howard did not pursue redress with either the Equal Employment Opportunity Commission ("EEOC") or the Texas Workforce Commission ("TWC") before filing suit. UPS filed this Motion for Summary Judgment on October 15, 2010 and its Objections to Mr. Howard's Evidence on November 19, 2010.

II. Summary Judgment Standard

Summary judgment is appropriate when the pleadings, affidavits, and other summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Triple Tee Golf, Inc. V. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322--25. Once a movant makes a properly supported motion, the burden shifts to the non-movant to show that summary judgment should not be granted; the non-movant may not rest upon the allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255--57 (1986).

A genuine issue of material fact exists if a reasonable jury could return a verdict for the non-moving party in the face of all evidence presented. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009). A fact is material if it could affect the outcome of the lawsuit under the governing law. Id. All evidence and reasonable inferences must be viewed in the light most favorable to the non-movant. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

III. Analysis

Initially, this Court must examine Mr. Howard's complaint to determine the causes of action he has chosen to pursue. The Original Complaint (Doc. No. 1) asserts claims for relief under 42 U.S.C. § 1981, originally part of the Civil Rights Act of 1866. Section 1981 provides an alternative remedy to the more familiar Title VII claims that were passed under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. A § 1981 claim, unlike its Title VII counterpart, need not first exhaust administrative remedies before the EEOC, or an equivalent state agency such as the TWC, before suit may be brought. Hill v. Am. Airlines Inc., 479 F.2d 1057, 1060 (5th Cir. 1973). Mr. Howard's failure to do so is not fatal to his claims.

Second, though the theories of recovery under § 1981 Mr. Howard is pursuing are not exactly clear from his complaint, his response to UPS's motion for summary judgment focuses on three theories of recovery: (1) a racial discrimination claim; (2) a claim for retaliation based on his demotion; and (3) a hostile work environment claim. Mr. Howard's complaint clearly touches upon the subject matter on which these claims are based, and UPS was put on notice of these claims to the extent that all three were included as grounds for summary judgment in UPS's original motion. Consistent with federal pleading policy, this Court will broadly construe Mr. Howard's complaint to assert those causes of action and will consider each in turn. See Fed. R. Civ. P. 8(e) (pleadings must be construed so as to do justice); see also Hussain v. Boston Old Colony Ins. Co., 311 F.3d 623, 633 n. 39 (5th Cir. 2002) (pleadings are to be construed liberally, according to their substance rather than their label).

A. Racial discrimination

Both Title VII and § 1981 claims are "governed by the same evidentiary frame work," meaning analysis of claims under each statute is substantively the same. Jackson v. Watkins, 619 F.3d 463, 466 (5th Cir. 2010). Therefore, this Court will apply precedent under both types of cases to resolve this motion. A Title VII racial discrimination claim can be established through either direct or circumstantial evidence. Jones v. Robinson Property Group, L.P., 427 F.3d 987, 992 (5th Cir. 2004). Direct evidence is evidence which, if believed, proves the fact without inference or presumption. Brown v. E. Miss. Power Ass'n, 989 F.2d 858, 861 (5th Cir. 1993). Mr. Howard has presented no direct evidence of racial discrimination, that is, no testimony or documentation that states he was demoted by UPS because he is African American. Therefore, his claim for racial discrimination will be decided under the McDonnell Douglas burden--shifting framework used for circumstantial evidence. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000).

To present a prima facie case of racial discrimination under McDonnell Douglas, a plaintiff must demonstrate: (1) that he belongs to a racial minority; (2) that he was qualified for the position; (3) that he suffered an adverse employment decision; and (4) that he was replaced by someone outside the protected group or was treated less favorably than others similarly situated. Id. If the plaintiff presents a prima facie case of racial discrimination, the burden shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. Johnson v. Louisiana, 351 F.3d 616, 622 (5th Cir. 2003). If a legitimate, non-discriminatory reason for the adverse employment action is given, the burden shifts back to the plaintiff to show the reason is a pretext for discrimination. Id. at 621.

1. Prima facie case of race discrimination

In both its motion and its reply, UPS contends that Mr. Howard cannot make a prima facie case of racial discrimination because there are no similarly situated employees who were treated more favorably than Mr. Howard under nearly identical circumstances. UPS does not dispute any of the other factors.

In addition to being treated less favorably under similar circumstances, Mr. Howard may establish the fourth prong of his prima facie case by showing he was replaced by someone outside his protected group. Byers, 209 F.3d at 426. Following Mr. Howard's demotion, his former duties were assumed by Gary Barnett, who until that point had acted as the Hub Division Manager for the Red River District. Howard Depo. at 353--54, App. to UPS Mot. at 382 (hereinafter "UPS App."). Mr. Barnett continued serving as Hub Division Manager, adding Mr. Howard's former duties to his own. Id. It is undisputed that Mr. Barnett is not African American. Howard Aff. at ¶ 61, Howard App. at 275 (hereinafter "Howard App."); UPS Reply at 12.

UPS asserts Mr. Howard was not replaced after he was demoted; rather, his position was eliminated and his duties were assumed by another manager. UPS Reply at 12. When Mr. Howard was demoted and his responsibilities were absorbed by another, non--African American manager, he met the requirements of a prima facie case. See Young v. Harris Health Care, Inc., 226 F.3d 643 at *3 (5th Cir. 2000) (involving both age and race discrimination claims). In Young, the Fifth Circuit rejected that type of reasoning when an older woman was terminated and her former job duties were split among three new, younger employees, concluding that (1) the elimination of one position and (2) the redistribution of former job duties still met the plaintiff's burden. Id.

Coupled with the low hurdle the plaintiff must clear at this stage, id. (citing Guthrie v. Tifco Indus., 941 F.2d 374, 377 (5th Cir. 1994)) (only a "very minimal showing" is required to make out a prima facie case), the Court finds Mr. ...


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