Kenneth Brown v. United Parcel Service, Inc.

Filing

UNPUBLISHED OPINION FILED. [10-60398 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 01/18/2011 [10-60398]

Kenneth Brown v. Unitede: 10-60398 Inc. Cas Parcel Service, Document: 00511333655

Page: 1 Date Filed: 12/28/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 28, 2010 N o . 10-60398 S u m m a r y Calendar Lyle W. Cayce Clerk

K E N N E T H E. BROWN, P la in t iff - Appellant v. U N IT E D PARCEL SERVICE, INC., D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Southern District of Mississippi U S D C No. 1:08-CV-837

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* I n this Title VII retaliation case, the Court must determine whether p la in t iff-a p p e lla n t Kenneth E. Brown engaged in activity protected by Title VII w h e n he complained to his employer about unfair work distribution, unpaid o v e r t im e , and selective enforcement of a lunch policy. We conclude that Brown's c o m p l a in t s were not protected by Title VII because they did not concern

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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No. 10-60398 d is c r im in a t io n based on "race, color, religion, sex, or national origin." Accordingly, Brown failed to establish a prima facie case of retaliation under T it le VII, and the district court properly granted summary judgment on Brown's T it le VII retaliation claim. I . BACKGROUND Brown, an African American, was an experienced driver for United Parcel S e r v ic e , Inc. (UPS) in Gulfport, Mississippi. Michael Bates, a Caucasian,

b e c a m e Brown's supervisor in January 2007. It appears that the two did not get a lo n g . In the summer of 2007, Brown allegedly was being given ten to thirty s t o p s per day more than other drivers, causing Brown to work unwanted o v e r t im e . Brown complained to Bates about the extra work, but Bates allegedly r e fu s e d to acknowledge the problem or authorize Brown's overtime pay. On July 2 0 , 2007, Brown filed a union grievance requesting reduced hours and unpaid o v e r tim e . When no action was taken, Brown filed a second, substantially

id e n tic a l union grievance on September 14, 2007. Brown ultimately received his u n p a id overtime. On September 28, 2007, Bates allegedly threatened to terminate Brown's e m p lo y m e n t because Brown took a lunch break at home. Brown asserts that he a n d other UPS employees commonly took lunch breaks at home, and that this p r a c t ic e never before caused a problem. Thus, on October 1, 2007, Brown filed a third union grievance alleging that Bates's threat was "an act of retaliation on h is part because of the grievance I had filed for being over 9/5 2 weeks in a 4 w e e k period." The grievance requested that "[i]n reference to lunch, same rules s h o u ld apply to all drivers with no exceptions." The grievance concludes that "I d o feel discriminated upon by CTRMGR Mike Bates because of his actions." 2

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No. 10-60398 D u r in g a delivery on October 19, 2007, Brown's truck rolled 15 feet across a parking lot and collided with a small security vehicle. There was no significant p r o p e r t y damage. There is, however, a dispute as to whether Brown engaged the p a r k in g brake, and whether the parking brake was functioning properly. Bates u lt im a te ly concluded that the accident was an "avoidable runaway accident" and t e r m in a t e d Brown's employment on October 25, 2007. The collective bargaining a g r e e m e n t governing Brown's employment provides: A R T I C L E 52 - DISCHARGE OR SUSPENSION (A ) The Employer shall not discharge nor suspend any employee w it h o u t just cause, but in respect to discharge or suspension shall g iv e at least one (1) warning notice of a complaint against such e m p lo y e e to the employee, in writing, and a copy of the same to the L o c a l Union, except that no warning notice need be given an e m p lo y e e before discharge if the cause of such discharge is . . . an a v o id a b le runaway accident . . . . O n October 25, 2007, Brown filed a fourth union grievance essentially e x p la in in g his version of the accident. A grievance committee including UPS a n d union representatives denied Brown's request for reinstatement. Brown t h e n filed discrimination charges with the Equal Employment Opportunity C o m m is s io n (EEOC) on December 15, 2007 and January 8, 2008. The charges, s u b s t a n t iv e ly identical to each other, allege that Brown's termination was r a c i a l l y motivated and retaliatory. Brown specifically charged that other

C a u c a s ia n employees had been involved in runaway accidents but had not been te r m in a te d . The EEOC issued a notice of right to sue on June 30, 2008, and Brown t im e ly filed this action asserting claims of race discrimination and retaliation in 3

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No. 10-60398 v io la t io n of Title VII of the Civil Rights Act of 1964. The district court granted s u m m a r y judgment against Brown on all claims. The district court found, inter a lia , that Brown failed to establish a prima facie case of retaliation because he d id not engage in any activity protected by Title VII. Although the district court g r a n t e d summary judgment on all of Brown's claims, Brown has appealed only t h e dismissal of his Title VII retaliation claim.1 For the following reasons, we a ffir m . I I . STANDARD OF REVIEW W e review a grant of summary judgment de novo and apply the same legal s t a n d a r d as the district court. See Floyd v. Amite Cty. Sch. Dist., 581 F.3d 244, 2 4 7 -4 8 (5th Cir. 2009). Summary judgment is appropriate when "the pleadings, t h e discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to ju d g m e n t as a matter of law." FED. R. CIV. P. 56(c)(2); see also Celotex Corp. v. C a tr e tt, 477 U.S. 317, 322 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio C o r p ., 475 U.S. 574, 587 (1986). Issues of fact are reviewed in light most

fa v o r a b le to the nonmoving party, and questions of law are reviewed de novo. Stewart v. Miss. Transp. Comm'n, 586 F.3d 321, 327 (5th Cir. 2009).

Brown's statement of the issues on appeal is limited to his retaliation claim, and Brown's brief addresses only his retaliation claim. Because Brown has not identified or briefed any other challenges to the district court's decision, they are waived. See, e.g., FED. R. APP. P. 28(a)(9)(A) (requiring appellant's brief to include appellant's contentions and the reasons for them); Smith v. Xerox Corp., 602 F.3d 320, 335 n.61 (5th Cir. 2010) ("Because it fails to make any similar argument on appeal, however, that issue is deemed waived, and we do not consider it."); Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004) ("Failure adequately to brief an issue on appeal constitutes waiver of that argument.").

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No. 10-60398 I I I . DISCUSSION T it le VII makes it unlawful for an employer to retaliate against an e m p lo y e e who opposes an employment practice made unlawful by Title VII. 42 U .S .C . § 2000e-3(a). The district court analyzed Brown's Title VII retaliation c la im under the familiar McDonnell Douglas burden shifting framework, and we s e e no reason to deviate from this approach in this case.2 See McDonnell

D o u g la s Corp. v. Green, 411 U.S. 792, 802-03 (1973). Under McDonnell Douglas, a plaintiff first must establish a prima facie case of retaliation. Id. This

r e q u ir e s evidence that: (1) the plaintiff engaged in an activity protected by Title V I I ; (2) the employer took an adverse employment action against the plaintiff; a n d (3) a causal connection exists between the protected activity and the adverse e m p lo y m e n t action. See, e.g., Stewart, 586 F.3d at 33; McCoy v. City of

S h r e v e p o r t, 492 F.3d 551, 556-57 (5th Cir. 2007). We have defined protected a c t iv it y as "opposition to any practice rendered unlawful by Title VII, including m a k in g a charge, testifying, assisting, or participating in any investigation, p r o c e e d in g s , or hearing under Title VII." Ackel v. Nat'l Commc'ns, Inc., 339 F.3d 3 7 6 , 385 (5th Cir. 2003). If the plaintiff carries his initial burden, the employer m u s t respond by producing evidence of a "legitimate, nondiscriminatory reason" fo r the adverse employment action. Okoye v. Univ. of Tex. Houston Health Sci. C t r ., 245 F.3d 507, 512 (5th Cir. 2001). Finally, if the employer carries its b u r d e n , the plaintiff must put forward evidence that "the legitimate reasons

Although Brown pointed out to the district court that in some cases a plaintiff may be entitled to a mixed-motives framework, Brown did not assert that he was entitled to a mixed motives framework, and indeed Brown analyzed his own case under the McDonnell Douglas framework. The district court did not err in applying McDonnell Douglas at summary judgment.

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No. 10-60398 o ff e r e d by the employer were not its true reasons, but were a pretext for d is c r im in a t io n ." Id. W e find that Brown has failed to establish the first prong of his prima facie c a s e , namely, that he engaged in activity protected by Title VII. Title VII does n o t protect opposition to all forms of unscrupulous conduct. See, e.g., Stewart, 5 8 6 F.3d at 332 (observing that Title VII is not a "general civility code for the A m e r ic a n workplace"). Instead, Title VII protects only opposition to

d is c r im in a t io n based on "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Magic words are not required, but protected opposition must at le a s t alert an employer to the employee's reasonable belief that unlawful d is c r im in a t io n is at issue. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476 F .3 d 337, 348-49 (5th Cir. 2007); Broderick v. Donaldson, 437 F.3d 1226, 1232 (D .C . Cir. 2006); Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 727 (7th Cir. 2003); H in d s v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Here, t h e record indicates that although Brown complained about unfair work d is t r ib u t io n , unpaid overtime, and selective enforcement of a lunch policy shortly b e fo r e his termination, Brown did not complain about race, color, religion, sex, o r national origin discrimination. Because unfair work distribution, unpaid o v e r t im e , and selective enforcement of a lunch policy, without more, are not p r o h ib it e d by Title VII, Brown's opposition to these practices was not protected b y Title VII. It is true that Brown asserted in his October 1, 2007 grievance that "I do fe e l discriminated upon by CTRMGR Mike Bates because of his actions." But r e a d in context, this statement refers to Brown's belief that he was being singled o u t, not because of his race, but "because of the grievance I had filed for being 6

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No. 10-60398 o v e r 9/5 2 weeks in a 4 week period." As already explained, Title VII did not p r o h ib it UPS from terminating Brown because he complained about unfair work d is t r ib u t io n and unpaid overtime. I V . CONCLUSION F o r the reasons stated, the district court properly granted summary ju d g m e n t on Brown's Title VII retaliation claim. A F F IR M E D .

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