United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
GREN SCHOLER, UNITED STATES DISTRICT JUDGE
Order addresses Defendant United Parcel Service, Inc.'s
("Defendant" or "UPS") Motion for Summary
Judgment [ECF No. 21]. For the reasons set forth below, the
Court grants the Motion.
to Special Order 3-318, this case was transferred from the
docket of Judge Jane J. Boyle to the docket of this Court on
March 8, 2018.
Alvoid Lindsey ("Plaintiff) brings this lawsuit alleging
age discrimination in connection with the termination of his
employment with UPS. Plaintiff worked for Defendant from
September 1985 until his termination on March 25, 2014.
Compl. ¶¶ 6, 11. Plaintiff was promoted twice while
working for Defendant. Def.'s Revised Br. ("Rev.
Br.") 4. At the time of his termination, Plaintiff held
the position of Day Sort Supervisor. Id. In this
position, he supervised approximately seventy employees.
Compl. ¶ 7; Pl's App. 2.
utilizes Employee Engagement Surveys ("Surveys") to
give employees an opportunity to provide anonymous feedback
to the company, Rev. Br. 5. In early March 2014, the Day Sort
Supervisors received a list of Day Sort employees that needed
to complete the Survey. Id. On or about March 4,
2014, Day Sort Manager Layne Blinco learned that none of the
designated employees had completed a Survey. Id. at
6. Blinco instructed the supervisors to have five employees
per day complete a Survey so that all Surveys could be
completed by the deadline. Id.; see also Compl.
¶ 7. Plaintiff "heard Donise Wilkey . . . speak up
stating that she can have Tunisia Banks ... do [the Surveys]
while she is in the scanning room." Pl's App. 2.
Plaintiff "sought assistance from [Banks] to complete
the [S]urveys." Compl. ¶ 8; see also Rev,
Br. 6. Wilkey also instructed Banks to complete Surveys for
her employees. Rev. Br. 6; Pl's App. 17. Banks completed
the Surveys for Plaintiffs and Wilkey's employees as
instructed but reported her concerns with Plaintiffs
instructions to Pat Griggs, a full-time supervisor. Rev. Br.
about March 6, 2014, Blinco instructed Plaintiff and Wilkey
to meet with him. Compl. ¶ 9. "Blinco claimed that
[Plaintiff] and Wilkey were not following the proper
procedure on completing the [S]urveys." Id. On
or about March 17, 2014, Lindsey was instructed to meet with
Ricky Joiner, Area Human Resources Manager, and Melissa
Heinen, Security Manager. Id. ¶ 10; see
also Rev. Br. 7. Hub Division Manager Jon Korn had
directed Joiner and Heinen to investigate the incident. Rev.
Br. 7. On or about March 25, 2014, Korn, Joiner, and Jeff
Stucker, Day Sort Manager, met with Plaintiff, and Korn
advised Plaintiff that he was being terminated. Id. at
7-8; see also Compl. ¶ 11. Wilkey was
terminated the same day. Rev. Br. 8. The stated reason for
the termination was "violation of policy by allowing a
part time supervisor to help complete some of the
[Surveys]." Compl. ¶ 12.
has an Employee Dispute Resolution ("EDR") program
that non-union employees can use to challenge employment
decisions. Rev. Br. 8. Plaintiff requested that an EDR Peer
Review Panel review his termination. Id.; Pl's
App. 2. Plaintiff selected two coworkers to sit on the panel
with Defendant's designated representative. Rev. Br. 8.
Plaintiff submitted a position statement and appeared in
person to testify. Id. The panel upheld his
termination, Id.; Pl.'sApp. 3.
filed a charge of employment discrimination with the Equal
Employment Opportunity Commission. Compl. ¶ 5. Plaintiff
received a right-to-sue letter on September 29, 2016.
Id. On December 22, 2016, Plaintiff filed the
instant lawsuit, alleging age discrimination in violation of
the Age Discrimination in Employment Act of 1967
("ADEA"), 29 U.S.C. § 621 et
seq. On February 14, 2018, Defendant advised
the Court that, on January 29, 2018, District Judge Sam A.
Lindsay had issued an opinion granting UPS's motion for
summary judgment in Wilkey's age discrimination case
against UPS. See ECF No, 37 (citing Wilkey v.
United Parcel Serv., Inc., Civ. A. No. 3:16-CV-3486-L,
2018 WL 588245 (N.D. Tex. Jan. 29, 2018)). On March 13, 2018,
after the case was transferred to the docket of this Court,
the Court held a Status Conference. See ECF Nos. 39,
40, At the Status Conference, the parties informed the Court
that Wilkey had appealed Judge Lindsay's decision, On
March 30, the Court administratively closed this case pending
the Fifth Circuit's decision in Wilkey, See ECF
October 15, 2018, Defendant notified the Court that the Fifth
Circuit "issued a per curiam opinion affirming summary
judgment for UPS 'essentially for the reasons
comprehensively elucidated by the district court,' and
entered Judgment for UPS." ECF No. 42 (citing Wilkey
v. United Parcel Serv., Inc., 740 Fed.Appx. 51, 52 (5th
Cir. 2018) (per curiam)). On October 16, the Court (1)
administratively reopened the case; (2) ordered counsel for
both parties to confer regarding the impact of the Fifth
Circuit's decision in Wilkey; and (3) set
deadlines for both parties to submit revised briefing related
to Defendant's Motion for Summary Judgment. ECF No. 43.
Both parties submitted revised briefing, and the matter is
ripe for determination.
"shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247 (1986). In making this determination,
courts must view all evidence and draw all reasonable
inferences in the light most favorable to the party opposing
the motion. United States v. Diebold, Inc., 369 U.S.
654, 655 (1962). The moving party bears the initial burden of
informing the court of the basis for its belief that there is
no genuine issue for trial. Cebtex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
party bears the burden of proof on an issue, he "must
establish beyond peradventure all of the essential
elements of the claim or defense to warrant judgment in his
favor." Fontenot v. Upjohn Co., 780 F.2d 1190,
1194 (5th Cir. 1986). When the nonmovant bears the burden of
proof, the movant may demonstrate entitlement to summary
judgment either by (1) submitting evidence that negates the
existence of an essential element of the nonmovant's
claim or affirmative defense, or (2) arguing that there is no
evidence to support an essential element of the
nonmovant's claim or affirmative defense.
Celotex, 477 U.S. at 322-25. Once the movant has
made this showing, the burden shifts to the nonmovant to
establish that there is a genuine issue of material fact so
that a reasonable jury might return a verdict in its favor.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). Moreover, "[c]onclusory
allegations, speculation, and unsubstantiated
assertions" will not suffice to satisfy the
nonmovant's burden. Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).
Factual controversies are resolved in favor of the nonmoving
party "only when an actual controversy exists, that is,
when both parties have submitted evidence of contradictory
facts." Olabisiomotosho v. City of Houston, 185
F.3d 521, 525 (5th Cir. 1999) (quoting McCallum
Highlands, Ltd. v. Wash. Capital Dm, Inc., 66 F.3d 89,
92 (5th Cir. 1995)).