Jones v. UPS Ground Freight

Filing 41

MEMORANDUM OPINION AND ORDER UPSs motion for summary judgment is DENIED; Pretrial Conference set for 11/1/2012 at 10:30 AM before Judge William M Acker Jr, unless the parties, prior to 10/26/12, request mediation, a course of action this court strongly recommends. Signed by Judge William M Acker, Jr on 9/19/12. (Attachments: # 1 Pretrial Instructions)(KGE)

FILED
2012 Sep-19 PM 01:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
REGINALD JONES,
Plaintiff,
v.
UPS GROUND FREIGHT, INC.,
Defendant.

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CIVIL ACTION NO.
2:09-cv-01321-WMA

MEMORANDUM OPINION AND ORDER
Reginald Jones (“Jones”) brought this action against UPS
Ground Freight, Inc. (“UPS”), his former employer, alleging, inter
alia,1 that he had been subjected to a racially hostile work
environment in violation of 42 U.S.C. § 1981 and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
summary

judgment

appealed.

in

favor

(Doc. 34).

of

UPS,

(Doc.

This court entered

31).

Jones

timely

Upon review, the Eleventh Circuit reversed

this court as to Jones’s hostile work environment claim,2 holding
that “a reasonable trier of fact could conclude that the events
alleged

by

environment.”

[]

Jones

created

an

objectively

hostile

work

Jones v. UPS Ground Freight, Inc., 683 F.3d 1283,

1

Jones also brought claims for constructive discharge and
state law intentional infliction of emotional distress and
negligent hiring, supervision, training, and retention.
2

This court granted summary judgment as to all claims
contained in Jones’s complaint. On appeal, Jones expressly
abandoned his claims for constructive discharge and state law
intentional infliction of emotional distress and negligent
hiring, supervision, training, and retention.

1287 (11th Cir. 2012).

That the existence or non-existence of a

racially hostile work environment is a jury issue has become the
law of the case.

Along with vacating this court’s judgment, the

Eleventh

remanded

Circuit

the

case

for

further

proceedings,

specifically instructing this court to address the issue of whether
UPS took “prompt remedial action” once it had notice of the
allegedly harassing conduct.

Id. at 1287, 1304.

The Eleventh

Circuit, based on the record, could have provided an answer to the
question

this

court

did

not

adequately

address,

remanded the case to give this court a shot at it.

but

instead

In compliance

with the Eleventh Circuit’s mandate, this court issued an order
instructing UPS, if it so desired, to file a supplemental brief
addressing prompt remedial action and providing Jones, if he so
desired, an opportunity to respond.

(Doc. 37).

UPS has not asserted and does not now expressly interpose the
Faragher/Ellerth affirmative defense, which is often referred to as
the defense of “prompt remedial action.”

See generally, Faragher

v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998);
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257
(1998).

Instead, UPS contends that Jones has failed to establish

the fifth element of a hostile work environment claim because he
has not provided a basis to hold UPS liable for the conduct of nonsupervisory personnel when UPS took appropriate remedial action.

2

BACKGROUND3
UPS is in the business of transporting commodities by motor
carrier.

Jones, who is an African-American, began working for UPS

as a road driver trainee on May 1, 2007.

After one week of

training, he became a road driver in the Truckload Division, a
position he held until he resigned.

As a road driver, Jones drove

alone on assigned trips.
Although Jones lived in Birmingham, Alabama, he was dispatched
on his trips from UPS’s terminal in Fulton, Mississippi (“Fulton
Terminal”).

The

Fulton Terminal

ships goods for

a

plumbing

hardware manufacturer, Ferguson Enterprises (“Ferguson”), and is
located on Ferguson owned property.

Approximately twice a week,

Jones would drive his UPS truck to the Fulton Terminal to pick up
Ferguson goods for transit and delivery.
Fulton Terminal were usually brief.

Jones’s visits to the

His trailer would be loaded

and he would go in, get paperwork, and leave.

Sue Miles (“Miles”)

managed the Fulton Terminal and was Jones’s direct supervisor. The
Fulton

Terminal

department.

does

Such

not

have

matters

an

are

on-premises

handled

human

generally

resource
at

UPS’s

headquarters in Richmond, Virginia.
Because Jones lived in Birmingham, Alabama, he was permitted
to park his UPS truck at a UPS service center near Birmingham,

3

Because of the procedural posture, all facts and their
reasonable inferences are viewed in the light most favorable to
Jones.
3

Alabama, known as the Trussville Terminal.
there.

He was not employed

Keith Carter (“Carter”) was the manager of the Trussville

Terminal.

The Trussville Terminal consisted of a building, a

parking lot for general business traffic, and a yard for truck
parking.

The truck yard is located behind the building and is

enclosed by a barbed-wire fence.

Only UPS employees are allowed

inside the yard, but it is open to these employees around the clock
during the work week.

The Trussville Terminal is a service center

for Less-than-Truckload Division of UPS and does not conduct any
Truckload Division operations.
separately

and

are

These two divisions are managed

supported

by

different

Human

Resources

personnel.
When Jones arrived at the Trussville Terminal to pick up his
UPS truck, he would park his personal vehicle in the general
parking lot located in front of the building and walk to the yard
behind the building where his UPS truck was parked.

He would fuel

his truck at the Trussville Termination before leaving.

Upon his

return, Jones would park the UPS truck in the yard and walk back to
his personal vehicle. Jones was not required to do anything at the
Trussville Terminal.

He estimates that he was at the Trussville

Terminal for a short period of time one or two days a week.
Jones’s Allegations of Racial Harassment and Complaints
As the basis of his hostile work environment claim, Jones
cites several incidents of alleged racial harassment.

4

Alleged Harassment at Fulton Terminal
The first incident that Jones perceived as racial harassment
occurred during his road driver training.

This week-long training

was conducted by Kenneth Terrell (“Terrell”), another UPS driver.
Terrell is Caucasian. While on a training run, Terrell told Jones,
“I know how to train you Indians.”

When Jones responded that he

was not Indian, Terrell said “I don’t care what race you are, I
trained your kind before.”

Terrell used the term Indian more than

once during this conversation, but made no other comments that
Jones perceived to be of a racial nature.
Jones contends that during training he called Miles, his
supervisor, to tell her that Terrell had made racially derogatory
comments.

Miles told Jones that she had written notes on his

complaints and
returned.

that she would talk to him and Terrell when they

Miles also asked Jones to submit a written statement of

what happened.

Jones never submitted a written statement.

Upon

his return to the Fulton Terminal, Miles did not discuss this
matter with Jones.

Miles disputes Jones’s version of events.

Miles testified at her deposition that she did not learn of the
racial nature of this incident until she was questioned about it at
her deposition.

Instead, Miles testified, she had heard from

another employee that Jones had experienced some issues with
Terrell, but Jones would not tell her the nature of those issues
when she inquired.

Regardless of when UPS management learned of

5

the racial nature of Terrell’s comments, Jones testified at his
deposition that Terrell’s remarks were the only racially-based
comments made to him throughout his year-long employment with UPS.
In other words it could not have been pervasive until shortly
before Jones quit.
Alleged Harassment at Trussville Terminal
On April 21, 2008, approximately eleven months after the
Terrell comments, Jones complained to Miles after finding remnants
of bananas, bananas that had been broken in half and banana peels,
on his UPS truck in the yard at the Trussville Terminal.
employees in the yard were white.

The

According to Jones, the banana

remnants were always located in one of two places, either on the
back of the truck’s flatbed trailer or on the steps up to the cab.
Jones never saw bananas on any other truck, nor is there evidence
that he found other refuse on his truck.

Because he didn’t think

much of this at first, Jones did not report the problem to Miles or
human resources personnel.

After finding the banana refuse for

approximately the third time, Jones called Miles to report it.
There is no indication, and Jones does not contend, that UPS had
any reason to know of these incidents before April 21, 2008.

Miles

instructed Jones to speak with the manager of the Trussville
Terminal about the matter. Because neither the Trussville Terminal
nor the Fulton Terminal had an on-site human resources department,
Miles emailed Kevin Martin (“Martin”), the Human Resources Manager

6

for the UPS Truckload Division, in Richmond, Virginia about the
complaint.
As Miles had directed, Jones told Carter, whom he had not met
previously, that he had been finding banana refuse on his truck and
that he believed it was racially motivated.

Carter explained that

UPS policy prohibited discrimination or harassment based on race
and that he did not believe that anyone at the Trussville Terminal
was racist.

Carter also suggested that the banana refuse may have

come from children throwing trash over the fence.

In response,

Jones explained that he did not believe that such was the case
because he always found the bananas and banana peels in the same
two places on his truck.

Carter recommended that Jones park his

truck in a different part of the lot to see if this would solve the
problem.
During

this

conversation,

Jones

told

Carter

that

there

appeared to be racism at the Trussville Terminal because he saw
white employees wearing shirts and hats with Confederate insignia.
Carter explained that he was aware of that happening in the past,
but that the employees had been told that such apparel was not
permitted and he had not heard of or seen it since.

Carter

testified at his deposition that he does not recall Jones ever
mentioning that other employees had been wearing clothing with
Confederate insignia. There is no evidence that such an accusation
was ever investigated by UPS. Regardless, after Jones’s complaint,

7

Jones testified

that

he

never

witnessed

any

employee

at

the

Trussville Terminal wearing Confederate insignia.
After

his

conversation

with

Jones,

Carter

asked

another

supervisor at the Trussville Terminal, Tim Jacks, if he had noticed
anything or anybody in the area around Jones’s truck.

Carter did

not question anyone else about the banana refuse, including Jimmy
Shell, the yard jockey whom he believed to be the only person with
access to the yard during the time period in question.

Jones also

contends that Carter did question at least one employee who Jones
believes had worn clothing with Confederate insignia in the past.
In other words, Jones is stuck with this concession.
A few days after Jones first reported the alleged harassment
to

Carter,

an

incident

occurred

between

employees at the Trussville Terminal.

Jones

and

two

other

Two men that Jones had seen

wearing Confederate insignia in the past approached him after dark
and asked why he had told management that they had been wearing
Confederate insignia and putting the banana refuse on his truck.
Jones was nervous especially when one of the two was holding a
crowbar or something similar in his hand.

Jones answered that he

had not said anything to management, because, as he understood it,
his conversation with Carter was supposed to be confidential.
Jones told the men if they had done something like put bananas on
his truck, that it wasn’t funny.

And, according to Jones, the men

laughed, looked at him a “certain way,” and then walked away.

8

Jones testified that the next morning, which was sometime
between April 22 and 24, 2008, he called Miles and told her about
the incident with the other employees and that he was thinking
about quitting.

Miles encouraged him not to resign and instructed

him to come into her office at the Fulton Terminal so she could
contact Martin, the Human Resources manager in Virginia.

Miles,

however, testified that Jones never told her about the encounter in
the Trussville yard and that she did not know about it until after
Jones left UPS.

Instead, Miles contends that the sole purpose of

the conference call was to address Jones’s complaints about the
banana refuse.

Martin, who was also on the call, also testified

that the only purpose of the call was to discuss the banana refuse
on Jones’s truck. Both Jones and Miles agree that Miles told Jones
to come to the Fulton Terminal for a conference call and that Jones
did there after go to the Fulton Terminal and participate in a call
with Miles and Martin.
The parties’ recollections of the details of the conference
call are vague.

Miles remembers only that she and Martin asked

Jones to provide a written statement of what had occurred.

Martin

also recalls that part of the reason they asked for a written
statement was that Jones had provided no specific information about
the incident during the call.

Jones, however, does not remember

being asked to submit a written statement. He does recall relaying

9

his complaints about the banana refuse and the Confederate insignia
to Martin, but there is no indication that the nighttime encounter
at the Trussville Terminal was discussed during the call.

Jones

also remembers that Martin ended the call by saying that he was out
of town on business, but would be returning in two days, that he
would start an investigation as soon as possible, and that he would
keep in touch.
Jones

found

conference call.

banana

refuse

on

his

truck

once

after

the

Miles emailed Martin to inform him about this

incident on April 28, 2008, which suggests that Jones found the new
banana refuse on this day or the day before.

In a separate email

that day, Miles informed Martin that Jones had given his two week
notice.

Jones testified that he did not resign on the same day he

made this last complaint, and the precise date Jones resigned is
not apparent from the record.

The parties disagree on whether

Jones worked the entire two weeks of his notice period, but agree
that his last day of employment was sometime in May 2008.
DISCUSSION
To prevail on a claim of racial harassment based on a hostile
work environment under Title VII and/or § 1981, Jones must prove
that (1) he belongs to a protected group; (2) he has been subject
to unwelcome harassment; (3) the harassment must have been based on
a protected characteristic; (4)the harassment was sufficiently
severe or pervasive to alter the terms and conditions of employment

10

and create a discriminatorily abusive work environment; and (5) his
employer is responsible for such environment under a theory of
vicarious liability or direct liability.

Miller v. Kenworth of

Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Only the fifth
prong of

Miller,

employer liability,

is

at

issue

on

remand.

Although the Eleventh Circuit did determine that there are jury
questions based on the third and fourth prongs of Miller, the court
has held that “[s]ummary judgment [may still be] warranted based on
the absence of employer liability . . . which is the fifth and
final requirement of a [hostile work environment claim].”

Lockett

v. Choice Hotels Int’l, Inc., No. 08-13998, 2009 WL 468298,

*5

(11th Cir. Feb. 26, 2009).
To establish employer liability when the perpetrator of the
harassment is a co-employee of the victim and not a supervisor, the
plaintiff-employee must present evidence that the employer knew or
should have known of the harassment but failed to take prompt
remedial action.

Miller, 277 F.3d at 1278 (citing Breda v. Wolf

Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000)).

There is no

dispute that UPS knew of the alleged harassment. UPS contends that
it is entitled to summary judgment because Jones cannot establish
that UPS failed to take prompt remedial action once it knew of the
alleged harassment.
An employer takes prompt remedial action if it acts reasonably
to correct the alleged harassment by responding “appropriately and
11

with celerity.”

Dinkins v. Charoen Pokphand USA, Inc., 133 F.

Supp. 2d 1237, 1253 (M.D. Ala. 2001); Miller, 277 F.3d at 1280
(requiring “immediate and appropriate” remedial action).

The

remedial measures should be designed to stop the harassment,
correct its effects, and ensure that it does not reoccur. Dinkins,
133 F. Supp. 2d at 1253.

Remedial measure do not need to be those

that the employee requests or prefers, so long as they are designed
to be effective.

Id.

In other words, “prompt remedial action”

need not consist of termination or other severe discipline of the
offending fellow employees.
It is undisputed that UPS had actual notice of the allegedly
harassing conduct on April 21, 2008, when Jones first reported the
banana refuse to Miles.

There is no evidence to indicate, and

Jones does not contend, that there was any reason for UPS to have
constructive or actual notice before this date.

It is also clear

from the record that Jones submitted his resignation on or before
April 28, 2011, not more than one week after his initial complaint.
Thus, to establish employer liability, Jones must present evidence
that during this one week window, UPS failed to take, or at least
to begin to take, the requisite prompt remedial action.
Jones does not argue that UPS failed to take prompt remedial
action following his 2007 complaint regarding comments made by

12

Terrell during his training.4

Instead, Jones’s arguments focus on

UPS’s alleged failure adequately to respond to his complaints
regarding

the

confrontation

banana
at

the

refuse,

Confederate

Trussville

Terminal.

insignia,

and

Specially,

the
Jones

contends that UPS did nothing to stop the harassment or to ensure
that it did not reoccur because the harassment continued with
additional

banana

refuse

on

his

truck

and

escalated

to

the

confrontation at the Trussville Terminal.
Based on the undisputed evidence, Jones’s contention that UPS
“did nothing to stop the harassment or ensure it did not reoccur”
is an overstatement.

UPS certainly took some remedial action by

initiating an investigation into Jones’s complaints.

Unlike some

instances of workplace harassment, neither UPS nor Jones knew the
identity of the individual or individuals who allegedly placed
banana refuse on Jones’s truck.

See Washington v. Kroger Co., No.

05-16328, 2007 WL 433519, at *1, 3 (11th Cir. Feb. 8, 2011)
(holding that there was prompt remedial action when the employer
removed the offending object and censured the perpetrator).

UPS

could not have taken action to stop the harassment or to censure

4

Jones has not offered any evidence to indicate that UPS
failed to take prompt remedial action in response to Terrell’s
comments. According to Jones, when he reported the incident to
Miles, she took notes and asked him to submit a written
statement. Jones never submitted a written statement.
Furthermore, Jones testified that Terrell’s remarks were the only
racially-based comments made to him throughout his employment
with UPS.
13

the

perpetrator

without

perpetrator’s identity.

first

acquiring

knowledge

of

the

In order to do so, UPS needed to gather

information from Jones and other employees to determine who was
responsible and how to stop the offensive conduct.
In response to Jones’s complaints of harassment, UPS assured
Jones that it would investigate his concerns and took steps towards
gathering information and initiating an investigation.

After

Jones’s first complaint about banana refuse, his supervisor, Miles,
contacted Martin, the human resources manager, about the incident
and

instructed

Jones

to

talk

to

Carter,

the

Trussville Terminal where the incident occurred.

manager

of

the

Jones discussed

the matter with Carter, and Carter questioned another supervisor at
the Trussville Terminal about the incident.

Carter also asked

Jones to park his truck in a different location in the yard so that
they could determine if the banana refuse was a result of parking
near the barbed-wire fence.

Additionally, a few days later Jones,

Miles, and Martin participated in a conference call to address this
issue.5

Jones resigned only a few days after this call, one week

after his initial complaint.
UPS contends that it did respond promptly and appropriately to
Jones’s complaint, whereas Jones did not provide it with the time

5

The parties dispute whether the purpose of this conference
call was also to address the encounter between Jones and two
white employees at the Trussville Terminal. There is no dispute,
however, that at least one purpose of this call was to address
Jones’s complaints about the banana refuse.
14

to respond to his complaints because of his hurried resignation
after finding other employment.
discharge.

He does not claim constructive

Jones argues that UPS’s argument “shamefully” points

the finger at him by contending that he did not provide it with
adequate time to respond appropriately to his complaints.

Jones

argues that UPS was required to take immediate action, which he
argues it failed to do.
Jones’s argument that the court should essentially ignore the
undisputed fact that only one week elapsed between Jones’s initial
complaint and his resignation to avoid “pointing the finger at the
victim” is misplaced. This court does not “point the finger at the
victim,” but instead only acknowledges the undisputable time frame
in which these events occurred.
record

that

remedying

UPS

the

began

alleged

to

Because it is apparent from the

take

action

harassment,

this

to

investigate

court

must

toward

determine

whether, within a week, UPS’s efforts were sufficiently immediate
and reasonably directed toward an effective and fair result to
warrant summary judgment on the issue of direct employer liability.
Based on the evidence presented, although UPS had begun to take
some remedial action, a reasonably jury could conclude that UPS
failed to take prompt remedial action in response to Jones’s
complaints of racial harassment.

This is what this court reads

between the lines of the Eleventh Circuit’s opinion.
Although Jones’s first reported the banana refuse to Miles on

15

April 21, 2008, UPS management did little thereafter actually to
stop the harassment or ensure that it did not reoccur.

During this

time, Miles sent one email to Martin and instructed Jones to talk
to Carter.

During Jones’s conversation with Carter, Carter simply

asked Jones to park his truck in a different location to see if the
banana refuse was related to the location of his truck.

Carter

also asked one supervisor about the incident, but failed to talk to
other employees, particularly those who would have been in the yard
at times when the banana refuse could have been placed.

The

Eleventh Circuit found, in effect, that the bananas should have
caused any employer to check the “race” angle and react properly to
it.
Even after the conference call, which was held after Jones
contacted

Miles

Trussville
harassment.

to

report

Terminal,6
Martin

UPS

the

encounter

took

no

testified

that

in

action
other

the

to

yard

prevent

than

at

the

further

having

these

conversations, he did nothing to investigate Jones’s complaints or
begin implementing a response.

While it cannot be disputed that

some investigation and coordination was necessary, a reasonable
jury might be able to find that the steps taken by UPS were not
sufficiently immediate and were not reasonably calculated to stop
the harassment and to ensure that it did not reoccur.

6

Or UPS’s

The parties dispute whether UPS had knowledge of the
encounter at the Trussville Terminal before Jones’s resignation.
16

anticipated Rule 50 motion might be granted after all the evidence
is presented.
UPS is not entitled to summary judgment because there are
disputed issues of material fact.

Specifically, the parties

dispute whether UPS had knowledge of the encounter between Jones
and two white employees in the yard at the Trussville Terminal.
According to Jones, the morning after the encounter, he called
Miles and told her about the incident.

Miles, however, testified

that Jones never told her about the encounter and that she did not
know about it until after Jones had precipitously left UPS.

If UPS

knew about this allegedly racially-motivated encounter before Jones
resigned, it would be obligated to take prompt remedial action,
whatever that is determined to be, either as a matter of law or by
a jury.

The required response to this alleged escalation in

harassment would undoubtedly be different than that required to
address the banana refuse.

Such disputed issues of material fact

preclude summary judgment.
CONCLUSION
For the foregoing reasons, UPS’s motion for summary judgment
is DENIED.
10:30

A.M.,

Pretrial conference is SET for November 1, 2012 at
in

accordance

with

the

accompanying

pre-trial

instructions, unless the parties, prior to October 26, 2012,
request

mediation,

a

course

of

recommends.
17

action

this

court

strongly

DONE this 19th day of September, 2012.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

18