Archibald v. United Parcel Service Co Inc et al
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 7/15/2014. (KAM, )
2014 Jul-15 PM 02:51
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED PARCEL SERVICE CO
INC., et al.,
MEMORANDUM OF OPINION
Plaintiff Daryl Archibald (“Archibald”) brought this civil rights action against
Defendants United Parcel Service, Inc. (“UPS”) and Jaime Diaz (“Diaz”), alleging
various types of racially discriminatory and retaliatory conduct in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2 et seq. (“Title VII”), and 42
U.S.C. § 1981 (“§ 1981”). Specifically, Archibald contends that UPS and Diaz
(collectively, the “Defendants”) made a series of decisions to either discipline him or
pass him over for various assignments that constitute racial discrimination, retaliation,
and harassment. Both UPS and Diaz have moved for summary judgment on all claims
against them (Doc. 23), and in addition to opposing summary judgment, Archibald has
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filed a motion for leave to file an amended complaint. (Doc. 27.) For the reasons
stated below, the Defendants’ motion for summary judgment is due to be granted, and
Archibald’s motion for leave to amend is due to be denied.
UPS hired Archibald on January 3, 2005, to work at its package center in
Tuscaloosa, Alabama (the “Package Center”). Initially, he worked as a preloader, a
part-time, hourly position where employees load packages onto UPS package cars2 in
the early morning hours. Archibald’s general preload schedule required him to work
from 3:00 AM until 8:30 or 9:00 AM, though the start time varied with the volume of
the load at the Package Center.
Some time after he started as a preloader, Archibald sought work as a temporary
cover driver (“TCD”) for UPS. Although UPS package cars were regularly driven by
Archibald failed to include a statement responding to any of the Defendants’ undisputed
facts, in numbered paragraphs or otherwise. Additionally, he failed to include his own statement of
disputed or undisputed facts in a discrete section of his brief and instead dispersed various facts
throughout his brief opposing summary judgment. As such, Archibald did not comply with the
Uniform Initial Order the Court entered in this case on February 7, 2013. (Doc. 12 at 16–17.) When
a party fails to properly address another party’s statement of facts, the Court may treat these facts
as undisputed. Fed. R. Civ. P. 56(e)(2). The Court thus accepts the Defendants’ statement of
material facts, but it has also reviewed the Plaintiff’s various factual statements placed throughout
his brief and notes that they are generally consistent with the Defendants’ facts.
The “package car” is the brown delivery truck that UPS uses to make local deliveries.
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full-time package car drivers, the TCDs received the same training and certification
as package car drivers, were subject to the same rules, and filled in for package car
drivers when they were absent. In order to become a TCD, Archibald bid for the
position, and after he was selected in October 2010 he attended UPS’s five-day driver
training course. Nick Spain, Jacob Mathis (“Mathis”), and Matthew Syx (“Syx”) also
attended the training course from the Package Center at the same time as Archibald.
Upon returning from the course, Archibald, like all other drivers, was required to
deliver ground packages for 30 days over a 120-day period to qualify as a driver.
During this period, he had to avoid any accidents or injuries and pass a “qualification
ride.” Archibald ultimately completed these requirements and was qualified as a
driver. Among the drivers who attended driving school on this occasion, Archibald
Once Archibald was qualified as a TCD, he could be dispatched to drive a
package car as needed. However, Archibald continued to work primarily as a preloader
for UPS. After several years of working as a preloader and TCD, Archibald was
promoted to a full-time position as a package car driver in March 2013, and he
continues to hold that position at UPS.
Purported Wrongful Conduct
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At all times throughout his employment, Archibald has been a member of the
International Brotherhood of Teamsters (“Teamsters”) union, and the terms and
conditions of his employment have been governed by a collective bargaining
agreement (“CBA”) between UPS and Teamsters. Both parties admit that Archibald
has filed a large number of grievances under the CBA against UPS. Archibald asserts
that many of these issues stem from his difficult relationship with Diaz, who began
working as the Package Center’s business manager in May 2010, and he claims that
many of these issues have improved since Diaz left the Package Center in March 2014.
Archibald contends that the inappropriate conduct began after he expressed
interest in becoming a TCD and continued as he sought to become a package car
driver. First, he notes that he was required to memorize and was regularly quizzed at
work on UPS’s “5 Seeing Habits” and “10 Point Commentary” describing proper
driving procedures before attending driving school. UPS claims that Diaz and others
at the Package Center quizzed Archibald so that he could pass the written and verbal
tests at driving school, but Archibald contends that other prospective drivers were not
required to memorize these documents before attending the school.
After he began to work as a TCD, Archibald indicates that he was passed over
for driving routes in favor of less senior TCDs. In response to these assignments,
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Archibald filed several grievances based on purported violations of seniority. On
October 3, 2011, Archibald filed a grievance complaining about TCD work
assignments. UPS ultimately resolved the grievance by paying him for five days of
time that he allegedly missed and agreeing to abide by the rules of seniority in making
driving decisions. Subsequently, Archibald filed additional grievances regarding TCD
assignments, each based on a single day, on March 4, 2012, July 6, 2012, and
September 18, 2012. UPS compensated Archibald for the March and September
grievances, but the July grievance was resolved in UPS’s favor. Each grievance
contains a section where the employee should list the article or articles of the CBA
that UPS allegedly violated. Although Archibald included both the articles for
nondiscrimination and seniority in his October 2011 grievance, he only referenced the
article pertaining to seniority in his other grievances.
Archibald now claims that UPS made TCD assignments on the basis of race.
However, UPS indicates that it selected drivers based on non-discriminatory factors.
For example, UPS stated that it sometimes chose drivers over Archibald based on the
driver’s route knowledge. In other cases, UPS needed to assign a driver so that he
could be qualified as a TCD. Finally, UPS noted that it was often difficult to schedule
Archibald due to his primary job as a preloader. Only one other TCD, Syx, worked
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primarily as a preloader. Both UPS and Department of Transportation (“DOT”)
Regulations prohibit drivers from working over 12 consecutive hours.3 Because
Archibald had to show up early in the morning for the preload, UPS would often not
know that a route was open until Archibald would be ineligible due to these
Regarding TCD assignments, Archibald also complains that UPS employees
would often call him early in the morning to notify him about available TCD
assignments. He claims that this disrupted his sleep and work schedules. However,
UPS contends that the calls were merely a courtesy to maximize the number of driving
opportunities available to Archibald.
Additionally, Archibald was not promoted to the full-time position of package
car driver until 2013. He now claims that he should have been promoted in August
2010, when UPS promoted Jared Courington (“Courington”) and Kenny Jemison
(“Jemison”) to package car driving positions. Courington is white, but Jemison is
African-American. Archibald contends that he also bid for this position along with the
TCD position and that he should have been entitled to Courington’s promotion.
Finally, Archibald complains about various forms of discipline and observation
It appears from the record that the DOT regulations prohibit 14 hours, and the UPS rules
prohibit driving after 12 hours.
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that he received throughout his employment with UPS.4 According to Archibald, Diaz
singled him out for discipline for violating UPS’s appearance policies. Specifically,
Diaz disciplined Archibald on various occasions for having a visible tattoo outside his
uniform or when he had his hair in braids that went below his collar. Although he
received notices evincing intent to suspend or discharge him on various occasions, all
but one of these notices were ultimately reduced to warnings. Additionally, Archibald
suggests that he was excessively observed on routes and written up for driving and
delivery methods violations. He also claims that UPS singled him out for violations of
its attendance policies. Archibald was disciplined on multiple occasions and was
ultimately suspended for one day in February 2012 due to his attendance. This oneday suspension for attendance issues was the only suspension that Archibald actually
received for disciplinary reasons.5
It is unclear from the record exactly when and to what extent Archibald received discipline
for these various issues. For example, the Defendants indicate that Archibald received warnings for
appearance issues in November 2011, December 2011, April 2012, and July 2012, whereas Archibald
notes generally throughout his brief that he was repeatedly disciplined for these types of issues.
Given that Archibald neither responded to the Defendants’ statement of undisputed facts nor
prepared his own statement of undisputed facts in clearly numbered paragraphs, it is difficult to
ascertain when particular disciplinary actions occurred. For summary judgment purposes, the Court
accepts that Archibald was disciplined on multiple occasions throughout the period in question for
these categories of violations.
There are several other incidents discussed in Archibald’s deposition that have been
abandoned. First, Archibald referenced difficulty using UPS-issued cards that drivers used to
purchase fuel when necessary for their package car. (Doc. 25-1 at 397–99.) Additionally, he
referenced an occasion where he was sent home from work for not having his shoes properly shined
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Along with his informal grievances, Archibald filed two charges with the Equal
Opportunity Employment Commission (“EEOC”). First, he filed a charge in October
2011, complaining that UPS discriminated on the basis of race when assigning TCD
opportunities from April 2011 through October 2011. He both sought and received a
right to sue letter regarding this charge in July 2012. Second, Archibald filed another
charge in August 2012 complaining about many of the disciplinary practices described
above. Archibald again requested and received a right to sue letter in May 2013. He
claims that the conduct described above also constitutes retaliation for filing these
After receiving the first right to sue letter from the EEOC but before obtaining
the second, Archibald filed suit in this Court on September 29, 2012.6 Upon
completion of discovery, the Defendants moved for summary judgment on April 17,
but was subsequently called back when another driver was sent home. (Id. at 370–71.) Archibald also
alluded at his deposition to other instances where Diaz or another supervisor discussed a potential
disciplinary issue with him informally but never formally disciplined him. Even though UPS
referenced the gas card issue in its brief supporting summary judgment, Archibald has not made any
arguments regarding these issues in his brief opposing summary judgment. Thus, the Court
considers any arguments based on these incidents abandoned. See Coal. for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (“[F]ailure to brief and argue [an]
issue during the proceedings before the district court is grounds for finding that the issue has been
Archibald never filed an amended complaint after receiving the second right to sue letter.
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2014. Both parties agree that Archibald seeks recovery on theories of racial
discrimination and retaliation under Title VII and § 1981, but they disagree as to
whether Archibald has pursued a hostile work environment claim. This Court has
federal question jurisdiction over all claims in this action pursuant to 28 U.S.C. § 1331.
STANDARD OF REVIEW
Summary judgment is appropriate “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). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510 (1986); see also Avenue CLO Fund, Ltd. v. Bank of Am.,
NA, 723 F.3d 1287, 1294 (11th Cir. 2013). There is a “genuine dispute” as to a
material fact “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. The trial judge
should not weigh the evidence but must simply determine whether there are any
genuine issues that should be resolved at trial. Id. at 249, 106 S. Ct. at 2511.
In considering a motion for summary judgment, trial courts must give deference
to the non-moving party by “considering all of the evidence and the inferences it may
yield in the light most favorable to the nonmoving party.” McGee v. Sentinel Offender
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Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F.3d
1321, 1325 (11th Cir. 2005)). However, “unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833
F.2d 1525, 1529 (11th Cir. 1987). In making a motion for summary judgment, “the
moving party has the burden of either negating an essential element of the nonmoving
party’s case or showing that there is no evidence to prove a fact necessary to the
nonmoving party’s case.” McGee, 719 F.3d at 1242. Although the trial courts must use
caution when granting motions for summary judgment, “[s]ummary judgment
procedure is properly regarded not as a disfavored procedural shortcut, but rather as
an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317,
327, 106 S. Ct. 2548, 2555 (1986).
Archibald claims that Diaz and UPS treated him differently from similarly
situated white employees and thus has brought disparate treatment racial
discrimination claims under both Title VII and § 1981. See Powers v. Ala. Dep’t of
Educ., 854 F.2d 1285, 1288 n.4 (11th Cir. 1988) (describing the difference between
disparate treatment and disparate impact claims and emphasizing that disparate
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treatment claims implicate both § 1981 and Title VII). Although Archibald’s
discrimination claims were brought under both Title VII and § 1981, “[b]oth of these
statutes have the same requirements of proof and use the same analytical framework.”
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).7 Thus, except
where otherwise indicated, the Court considers both the Title VII and § 1981 claims
under the common framework without distinguishing between the two. See id.
“A plaintiff may establish a claim of illegal disparate treatment through either
direct evidence or circumstantial evidence.” Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1085 (11th Cir. 2004). However, “‘direct evidence is composed of only the most
blatant remarks, whose intent could be nothing other than to discriminate on the basis
of some impermissible factor.’” Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir.
2002) (quoting Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999)). In its
motion for summary judgment, the Defendants stated that Archibald’s race
discrimination claims are based only on circumstantial evidence. (Doc. 24 at 24.)
Archibald’s complaint could be read to allege a Title VII claim against both UPS and Diaz
in his individual capacity as Archibald’s supervisor. Diaz contends in his brief that Archibald cannot
recover against him in an individual capacity under Title VII. (Doc. 24 at 24 n.1.) The Eleventh
Circuit has established “that relief under Title VII is available against only the employer and not
against individual employees whose actions would constitute a violation of the Act, regardless of
whether the employer is a public company or a private company.” Dearth v. Collins, 441 F.3d 931,
933 (11th Cir. 2006) (emphasis in original). Insofar as Archibald attempts to bring Title VII claims
against Diaz in his individual capacity, summary judgment is due to be granted as to such claims.
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Although Archibald’s responsive brief opposing summary judgment makes several
cursory statements about “direct evidence,” it is clear to the Court that he is basing
his claims on circumstantial evidence.8
Where, as here, “a plaintiff attempts to prove intentional discrimination . . .
using circumstantial evidence, [the Court applies] the now familiar shifting burden
framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs
v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).” Schoenfeld, 168 F.3d
at 1267. First, the plaintiff must generally establish a prima facie case of
discrimination.9 Id. If the plaintiff can meet this burden, an inference of discrimination
In a section entitled “Plaintiff’s Grievances,” Archibald claims that “[w]hile working at
UPS, as direct evidence of the constant and continuous harassment, Plaintiff has had to file . . . an
unnecessary amount of grievances to deter and correct the alleged violations.” (Doc. 29 at 5.)
However, he makes no attempt to explain how this constitutes “evidence which, if believed, would
prove the existence of a fact without inference or presumption.” Carter v. City of Miami, 870 F.2d
578, 581–82 (11th Cir. 1989).
In some cases, a plaintiff may be able to establish an inference of discrimination without
satisfying the prima facie case. Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir.
2012). Archibald claims at the conclusion of his brief that “[t]he constellation of events and the
evidence presented by Plaintiff in this case is sufficient to survive [summary judgment].” (Doc. 29
at 19.) However, this portion of his brief contains no citations to evidence in the record, and he
makes no attempt to explain how he can establish an inference of racial discrimination without
satisfying the prima facie case. Cf. Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011)
(finding that there was circumstantial evidence of discrimination even if the prima facie case was not
satisfied because the plaintiff presented evidence of a significant investigation into other
discriminatory conduct that may have affected the employer’s willingness to terminate employees
for inappropriate conduct). Archibald’s unsubstantiated assertion that the conduct in this case allows
an inference of racial discrimination without establishing the prima facie case, without more, is
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arises that the Defendant must refute by articulating “a legitimate, non-discriminatory
reason for its action.” Id. The Defendant’s burden at this stage is light, as “[t]he
employer has a burden of production, not of persuasion, and thus does not have to
persuade a court that it was actually motivated by the reason advanced.” Hall v. Ala.
Assoc. of Sch. Bds., 326 F.3d 1157, 1166 (11th Cir. 2003). If the employer can articulate
a legitimate reason, “then the burden shifts back to the plaintiff to show that the
proffered reason is really pretext for unlawful discrimination.” Schoenfeld, 168 F.3d
at 1267. Upon reaching this stage of the analysis, the Plaintiff must show both that the
employer’s reason for the employment action is false and that discrimination is the
real reason behind the employment action. Springer v. Convergys Customer Mgmt. Grp.,
509 F.3d 1344, 1349 (11th Cir. 2007).
Failure to Promote
Archibald claims that UPS violated Title VII and § 1981 and Diaz violated §
1981 when they promoted Courington and Jemison to package car driver positions in
August 2010. In order to support a failure to promote claim, the plaintiff generally
must present circumstantial evidence to support the prima facie case of the McDonnell
insufficient to survive summary judgment. See Rollins, 833 F.2d at 1529. Indeed, the record evidence
indicates that Archibald has premised his racial discrimination claims on comparisons to similarly
situated white employees.
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Douglas framework: “(1) he is a member of a protected class, (2) was qualified and
applied for the position at issue, (3) was rejected, and (4) the position was filled by a
person outside the protected class.” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d
955, 973 n.41 (11th Cir. 2008). As to the prima facie case, the Defendants apparently
concede that Archibald was a member of a protected class, that he was both qualified
and applied for the promotion, and that he was rejected.10 However, the Defendants
contend that he failed to show that the position was filled by a person outside the
UPS had two package car driving positions open in August 2010, and it selected
Courington and Jemison for the positions. It is undisputed for purposes of summary
judgment that Courington is white but Jemison is African-American. UPS decided to
promote the two drivers at the same time, but the Defendants technically promoted
Courington on August 26, 2010, and Jemison on August 27, 2010. Diaz testified that
he proposed the different dates in order to prevent two drivers from having the same
seniority date and causing “confusion when we do vacation selections and annual
bids.” (Doc. 25-3 at 135–36.)
There is some ambiguity in the record as to whether Archibald’s name was on the bid sheet
for the promotion, but the Defendants have not raised this issue. However, the Defendants have
raised several other issues, including that this claim was never properly pleaded in the complaint and
that it is time-barred. Since the Court concludes that the Defendants are entitled to prevail on the
merits of the claim, it does not reach these additional issues.
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It is undisputed that the proper order of seniority, from greatest to least, was
Archibald, Courington, and Jemison.11 Even if UPS had promoted Archibald, the
Defendants claim that UPS would still have promoted Courington. Thus, they suggest
that Jemison was the only driver actually “promoted over” Archibald, and both of
these individuals were members of the same protected class.
Here, the Court gives Archibald the benefit of the doubt that the trier of fact
could conclude that Courington is the proper comparator. Diaz admitted at his
deposition that he promoted Courington first to provide him with additional benefits
as a result of his seniority. Moreover, Diaz testified that seniority was the only relevant
consideration in making the promotions, and thus Courington is a similarly-situated
but less senior employee outside the protected class. See Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1174 (11th Cir. 2010) (explaining that comparators must be
“‘similarly situated in all relevant respects’” (quoting Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997)). The fact finder could conclude that Courington was promoted
over Archibald so that he could have superior benefits to the other African-American
driver, Jemison. Cf. McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008) (noting
At his deposition, Diaz testified ambiguously that “Daryl is senior and then Kenny and
then Daryl.” (Doc. 25-3 at 110.) However, the Defendants attached an errata sheet at the end of the
deposition that makes clear that the order of seniority was Archibald, Courington, and Jemison.
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that the plaintiff could not make out a failure to promote claim because “[t]he only
evidence presented . . . demonstrates that the two candidates promoted were black”).
However, even if he satisfies the prima facie case, Archibald’s claim still fails,
as the Defendants have identified a non-pretextual reason for the promotions that
Archibald has failed to rebut. See Holifield, 115 F.3d at 1564–65 (noting that the
defendant must articulate a legitimate, non-discriminatory reason for an employment
action but indicating that upon doing so the plaintiff must show that discrimination
was the real reason for the action). According to the Defendants, Diaz promoted
Courington and Jemison because the UPS human resources (“HR”) department
informed him that they were next in line to become package car drivers. Diaz indicated
that he was unable to review the bid sheet from which they were selected, had no
reason to question whether Courington and Jemison were the appropriate candidates,
and was unaware of the issue until Archibald filed a grievance in January 2013, over
two years after the promotions. (Doc. 25-4 at 15–16 ¶ 26.)
Essentially, the Defendants’ non-discriminatory reason for the promotions is
that someone at UPS erred in calculating Archibald’s seniority. See McWilliams v.
Escambia Cnty. Sch. Bd., 658 F.2d 326, 331 (5th Cir. 1981) (“The employer need not
persaude the district court that it was actually motivated by the reasons advanced,
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because the employer bears only the burden of production, not the burden of
persuasion.”). Diaz elaborated at his deposition that Archibald’s “seniority is not
where it should be [, but] [i]f he had sought remedy, we could have made him whole.
We would have dovetailed him in ahead of Courington and Jared, and he would have
been given 30 days to qualify as a driver then.”12 (Doc. 25-3 at 137.) A mistaken belief
can be a legitimate, non-discriminatory reason for an employment action because even
a false reason for taking an action places the burden on the plaintiff to show that
race was the real reason for the employment action. See Silvera v. Orange Cnty. Sch.
Bd., 244 F.3d 1253, 1261 (11th Cir. 2001) (“Even if we believed, as the district court
did, that the Board was not bound by an old agreement . . . , that would only establish
the Board was mistaken, and an employer who treats two employees differently
because of a mistaken belief in the existence of a neutral reason does not violate Title
Archibald, in a section of his brief opposing summary judgment entitled
“Defendants’ Defense as a Pretext,” attempts to rebut the Defendants’ purportedly
neutral justification for the promotion. First, he points to a statement from K.J.
The use of the name “Jared” appears to be an error. It appears from the context that this
statement is referring to Courington and Jemison. Either way the import is clear— Archibald would
have been given the first opportunity for the job.
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Johnson (“Johnson”), a fellow UPS employee, but Johnson’s statement only indicates
that he did not assign any employees full-time positions over Archibald. (Doc. 29-1 at
1.) He neither indicates who did make such decisions nor that any individuals who
played a part in that decision were motivated by race. Additionally, Archibald attached
a hand-written note from UPS employee Vincent Beverly (“Beverly”) to his brief
opposing summary judgment. Beverly indicates that Archibald “has been pass[ed]
over for favoritism by other employees through management by not going by proper
seniority.” (Doc. 29-3 at 1.) This statement does not suggest that race was the real
factor behind the promotions decisions. See Chapter 7 Trustee v. Gate Gourmet, Inc.,
683 F.3d 1249, 1257 (11th Cir. 2012) (explaining that a plaintiff does not survive
summary judgment merely by showing that the defendant’s proffered neutral reason
is actually false).13 Moreover, neither of these statements provide any evidence from
personal knowledge as to how UPS made its promotions decisions.
Additionally, Archibald cannot rely upon his own testimony to establish pretext.
Archibald also pointed to a statement by Diaz. Apparently, another UPS employee told
Archibald that Diaz indicated that Archibald would not be able to afford his car if Diaz reduced his
hours. However, Archibald makes no attempt to explain how this vague statement was connected
to his race, and he admitted at his deposition that he was unaware of anyone at UPS making racebased comments about him. (Doc. 25-1 at 422.) Thus, Archibald himself admitted that this
ambiguous statement was not racial in nature. Even had he suggested otherwise, this lone
secondhand statement cannot survive summary judgment on a racial discrimination claim based on
the promotion. See Amos v. Tyson Foods, Inc., 153 F. App’x 637, 647–48 (11th Cir. 2005). The other
facts Archibald listed relate to cover driving opportunities, which the Court discusses below.
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He acknowledged that he was unfamiliar with the process for reviewing the bid sheet:
Do you know who put it up at UPS?
Do you know who took it down?
Do you know who reviewed the bid sheet to select
who would fill the driver positions available at the
Did you ever talk to Mr. Diaz about that bid sheet?
(Doc. 25-1 at 489.) During his deposition, Archibald speculated that he may have been
passed over because it looks “like it’s some kind of vendetta against either me, or like
I say, I’m a young black guy with braids and a tattoo.” (Doc. 25-1 at 403.) This
statement is insufficient to defeat summary judgment for two reasons. First, as
Archibald admitted, he had no personal knowledge of the bid and selection process,
making this statement purely speculative. Cordoba v. Dillard’s Inc., 419 F.3d 1169, 1181
(11th Cir. 2005) (“Speculation does not create a genuine issue of fact; instead, it
creates a false issue, the demolition of which is a primary goal of summary judgment.”
(internal quotation marks and emphasis omitted)). Second, Diaz testified that he was
new to UPS at the time of the promotions in 2010, and he did not even know
Archibald personally. Archibald does not provide any evidence contesting this fact,
and Archibald’s earliest complaints about Diaz “singling him out” date to 2011, at
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least several months after the promotions.14
In sum, no reasonable trier of fact could find for Archibald on the ultimate
issue— that he was intentionally discriminated against due to his race when the
Defendants promoted Courington and Jemison. See Holifield, 115 F.3d at 1565.
Summary judgment is due to be granted on the failure to promote claim.
Assignment of Cover Driving Opportunities15
Next, Archibald contends that the Defendants failed to provide him with
adequate cover driving opportunities. He also claims that UPS only notified him of
potential driving opportunities at the last minute, often calling him early in the
morning to notify him about open routes. In order to establish a prima facie case based
on his cover driving opportunities, Archibald must show: (1) he is a member of a racial
minority; (2) he suffered an adverse job action; (3) similarly situated employees were
Although many of Archibald’s dates are vague, the earliest reference to a problem with
Diaz that the Court can locate in the record is April 2011. Archibald referenced this as the start date
for his EEOC allegations.
Archibald references a recording of a meeting with Diaz regarding cover driving
assignments. He provided a copy of this recording on a compact disc (“CD”) to the Court with his
courtesy copy of his summary judgment materials. However, he never properly placed this material
in the record. Instead, he placed in the record a photocopy with an image of what appears to be a CD
on a page marked “CD of Jaime Diaz Meeting.” (Doc. 29-7.) A photocopy depiction of a CD on a
piece of paper does not constitute filing materials with the Court nor does sending physical materials
to the Court as a courtesy copy. Under Rule 56, the Court can only evaluate “particular parts of
materials in the record.” Fed. R. Civ. P. 56(c)(1)(A) (emphasis added). Thus, the Court has not
reviewed the audio in ruling on summary judgment because it was never placed in the record.
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treated differently; and (4) he was qualified for the work. Knight v. Baptist Hosp. of
Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). As to his cover driving
opportunities, UPS contends that Archibald has failed to show that similarly situated
employees were treated differently. An employee is “similarly situated” if he or she
is similar to the minority employee in all relevant aspects but is treated differently. See
Holifield, 115 F.3d at 1562.
Cover drivers must be qualified after completing the UPS driving course, and
Archibald admits that Diaz qualified him before any of the other white employees who
took the course with him.16 (Doc. 25-1 at 187.) Regarding his assignments, Archibald
identified a number of white cover drivers as possible comparators. However, the
Defendants claim that most of these comparators were assigned the primary duty of
working the afternoon sort shift. As a preloader, Archibald would often have to arrive
at work early, and UPS would not learn of an available driving slot until after he had
begun work. (Doc. 25-7 at 5–6 ¶ 10.) Additionally, DOT and UPS rules precluded a
Archibald indicated that at one point he informed Diaz that he was ready to qualify, and
Diaz told him that he would disqualify him because he was not yet ready. It is unclear to the Court
whether Archibald is advancing a claim based on such a statement. However, Archibald has not
shown how this statement amounts to an adverse employment action because he admits that he was
qualified first and points to no opportunities that he was denied as a result of any intervening delay
in his qualification. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001)
(explaining that an employment action is only adverse for purposes of a discrimination suit if it has
a “real and demonstrable” impact on an employee’s job).
Page 21 of 43
driver from working more than 12 consecutive hours, making it difficult to schedule
Archibald to drive after he worked the early preload shift. Since drivers working the
afternoon sort could regularly be scheduled to work routes that came open later in the
morning, the Defendants contend that these drivers are not proper comparators
because they are not “similarly situated in all relevant aspects.” Holifield, 115 F.3d at
1562. UPS points to Syx, the only other preloader who was also a cover driver, as the
only proper comparator, and Archibald does not offer any argument to the contrary.17
Treating Syx as the proper comparator, the Court must consider whether Archibald
can survive summary judgment on his various claims about cover driving
First, Archibald testified at his deposition that he was not given sufficient
training when he was first qualified as a TCD. He testified that he was trained only on
half a “cut-in” route and not trained on any additional routes.18 However, he did not
Upon its own review of the record, the Court found a statement in Archibald’s deposition
testimony where he indicated that he joined the afternoon sort shift for “[m]aybe six months to a
year.” (Doc. 25-1 at 146.) He indicated that this began in 2011, after he became a cover driver, but
he offered no particular dates. Archibald has not raised this issue to the Court, nor has he provided
any additional information in the record to suggest when Archibald worked in this position. Thus,
the issue is abandoned. See Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1326 (11th Cir. 2000)(“[F]ailure to brief and argue [an] issue during the proceedings before
the district court is grounds for finding that the issue has been abandoned.”).
Archibald refers to the route as a “cut-in” route, or a route that was not run year-round.
However, Shelton indicated in an affidavit that the route was part of a regular unassigned route and
stated that other drivers had successfully trained on the route. Archibald has placed no evidence in
Page 22 of 43
advance any arguments about the extent of his training in his brief opposing summary
judgment. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995) (en banc) (“[T]he onus is upon the parties to formulate arguments; grounds
alleged in the complaint but not relied upon in summary judgment are deemed
abandoned.”). Indeed, Archibald makes repeated assertions to the superiority of his
training throughout his brief.19 Thus, any argument regarding proper variation in his
route assignments is abandoned. See Coal. for the Abolition of Marijuana Prohibition v.
City of Atlanta, 219 F.3d 1310, 1326 (11th Cir. 2000) (“[F]ailure to brief and argue [an]
issue during the proceedings before the district court is grounds for finding that the
issue has been abandoned.”).
Archibald also contends generally that he was entitled to more frequent driving
opportunities. However, UPS has offered legitimate, non-discirminatory reasons for
this decision. Archibald concedes that on a number of occasions Syx was driving for
qualification and needed to drive more frequently.20 He also admits that the Package
the record to suggest that his route differs from routes where other drivers typically trained.
For example, Archibald indicated that he “has obtained the adequate and necessary driver
training to be promoted and maintain a fulltime route position as a UPS driver.” (Doc. 29 at 4.)
Elsewhere, he claims that he should’ve been promoted because he was entitled to TCD assignments
because he “was most qualified through training and seniority.” (Id.)
In order to be qualified, a driver needed to deliver packages for thirty days in a one hundred
twenty day period. (Doc. 25-1 at 193–94.)
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Center needed more qualified cover drivers, and thus this is a legitimate, race-neutral
justification for the assignments. See Chapman v. AI Transport, 229 F.3d 1012, 1030
(11th Cir. 2000) (en banc) (“Provided that the proferred reason is one that might
motivate a reasonable employer, an employee must meet that reason head on and
rebut it.”). Archibald has not even “quarrel[ed] with the wisdom of that reason,” and
thus summary judgment is due to be granted as to these claims. Id.
Although Archibald has placed several pages of handwritten notes into the
record when other TCDs, including Syx, drove over him, Archibald created this list
based solely on seniority.21 Neither the list nor any of the other evidence in the record
suggests that UPS made an assignment to Syx on a particular date for any reason other
than his route knowledge or a desire to get him training experience. Even though
Archibald indicated that he thought the assignments were based on race, he testified
that he was not present when routes were assigned and did not know the order in
which they were assigned. The dispatcher, Dave Shelton, stated that he always
attempted to assign routes based on seniority and route knowledge and never
indicated that he made such assignments based on race. Left with only the
The list contains a variety of dates from August and September 2011. According to this list,
Syx drove over him on 15 occasions in August and September 2011: August 8, August 9, August 10,
August 11, August 12, August 15, August 16, August 17, August 19, August 26, September 6,
September 21, September 22, September 23, and September 30. (Doc. 29-13 at 3–5.) Archibald has
not pointed the Court to any other records or dates when Syx drove over him.
Page 24 of 43
inconclusive handwritten notes and Archibald’s speculation about how route
assignments were distributed, it would be impossible for a reasonable fact-finder to
infer that UPS’s assignments were pretexts for discrimination. See Clark v. Coats &
Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (explaining that to survive summary
judgment the plaintiff “must introduce significantly probative evidence showing that
the asserted reason is merely a pretext for discrimination”).
Finally, Archibald has also failed to produce evidence that similarly situated
employees were treated differently in terms of how they were notified of cover driving
opportunities. He has not indicated that he knows when particular rides came
available or when other drivers were informed, though he did note that generally
drivers would be told the day before. (Doc. 25-1 at 239.) There is also no evidence to
suggest that Syx, the appropriate comparator, was informed of routes without
receiving these phone calls. At one point, when discussing attendance issues and the
early phone calls, he indicated that he believed this was racially motivated “because
Matt Syx didn’t have to go through that.” (Id. at 364.) However, this conclusory
statement alone is not sufficient to survive summary judgment. See Rollins, 833 F.2d
at 1529 (noting that unsubstantiated assertions cannot defeat summary judgment).
Outside Archibald’s deposition, there is no other evidence to suggest that he was
Page 25 of 43
assigned routes differently from other drivers.
In sum, Archibald has failed to show that UPS’s methods for assigning TCD
work were a pretext for racial discrimination. He also failed to produce any evidence
to suggest that he should have been notified sooner about driving opportunities.
Summary judgment is due to be granted on all the claims regarding Archibald’s TCD
Finally, Archibald raises a series of disciplinary decisions that he contends were
racially discriminatory. He argues that UPS disciplined him unfairly for alleged
violations of UPS’s attendance, appearance, and driving and delivery method policies.
Additionally, he complains that he was repeatedly quizzed on several UPS driving
instruction sheets before he left to attend driving school.
In order to establish a prima facie case as to any of these claims, Archibald must
show: (1) membership in a protected class; (2) that he was subjected to an adverse job
action; (3) that his employer treated other similarly situated employees more
favorably; and (4) he was qualified for the job. See Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999); see also Brooks v. CSX Transp., Inc., 555 F. App’x 878, 883 (11th
Cir. 2014) (indicating that this statement of the prima facie case applies to
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discriminatory discipline claims). As with the other claims, it is undisputed that
Archibald is a member of a protected class. Moreover, neither party has disputed that
Archibald has been qualified for the various jobs he has performed for UPS. See Crapp
v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (noting in the related area
of termination cases that qualifications may often not be at issue and may be inferred
if the plaintiff has held a position for a significant period of time). However, Archibald
cannot show that he experienced an adverse employment action.
An employee raising a discrimination claim under Title VII and § 1981 must
ultimately show that he was subjected to an “adverse employment action.” Butler v.
Ala. Dep’t of Transp., 536 F.3d 1209, 1215 (11th Cir. 2008) (internal quotation marks
omitted). In order to satisfy this standard, “the employer’s action[s] must impact the
‘terms, conditions, or privileges’ of the plaintiff’s job in a real and demonstrable
way.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). Such an
action need not have direct economic consequences, but “the asserted impact cannot
be speculative and must at least have a tangible adverse effect on the plaintiff’s
employment.” Id. As with the other elements of the prima facie case, it is the
Plaintiff’s duty to establish that there was an adverse employment action. See Kidd v.
Mando Am. Corp., 731 F.3d 1196, 1202 (11th Cir. 2013) (noting that the plaintiff bears
Page 27 of 43
the burden to “establish by a preponderance of the evidence a prima facie case of
Although Archibald was disciplined on multiple occasions for various violations
of UPS procedures, he was only actually suspended for one day. While he received
notices either to suspend or discharge him on various occasions, these notices were
never actually implemented against him. See Mitchell v. Vanderbilt Univ., 389 F.3d 177,
182 (6th Cir. 2004) (“Mere threats of alleged adverse employment action are
generally not sufficient to satisfy the adverse action requirement.”). Archibald
successfully reduced all but one of the sanctions to a warning notice through UPS’s
grievance process, and he has not pointed to any adverse employment action based on
these notices. See Filius v. Potter, 176 F. App’x 8, 11 (11th Cir. 2006) (explaining that
there was no adverse employment action when a suspension was reduced to a
discussion about the conduct and the plaintiff had not pointed to any evidence to
suggest that this had any effect on his future job prospects).
Turning next to the discipline that Archibald actually received, none of the
discipline amounts to an adverse employment action. Archibald has not produced any
evidence that suggests the disciplinary warnings had any adverse impact on his
employment with UPS. See Butler, 536 F.3d at 1216 (noting that various warnings and
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reprimands did not change the terms, conditions, or privileges of the plaintiff’s
employment). Additionally, his one-day suspension did not amount to an adverse
employment action, either. Embry v. Callahan Eye Found. Hosp., 147 F. App’x 819, 829
(11th Cir. 2005) (concluding that a one-day suspension was not an adverse
employment action under Title VII).22
Additionally, Archibald has failed to produce any evidence to suggest that
similarly situated employees were treated differently. Even if Archibald did not violate
some of the rules in question (as he maintains), he must “point to someone similarly
situated (but outside the protected class) who disputed a violation of the rule and who
was, in fact, treated better.” Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311
n.6 (11th Cir. 1998) (replaced in part on other grounds in Jones v. Bessemer Carraway
Med. Ctr., 151 F.3d 1321 (11th Cir. 1998)). Even though Archibald testified that he had
seen some employees’ disciplinary files, he could not offer specific names or indicate
their contents at his deposition. Other than his assertions about the lack of discipline
that his coworkers received, he has not pointed to any other evidence to suggest that
As with many of the other claims, Archibald has made no response to UPS’s argument that
a one-day suspension is not an adverse employment action and made no attempt to distinguish his
claims from those made in Embry. Importantly, it is the plaintiff’s burden to show how an
employment action is adverse. See McCann, 526 F.3d at 1375 n.6 (noting that when the plaintiff
doesn’t make out a prima facie case, there is no need to reach the issue of pretext). Thus, Archibald
has abandoned this claim. See Coal. for the Abolition of Marijuana Prohibition, 219 F.3d at 1326.
Page 29 of 43
white employees were disciplined differently. See Amos v. Tyson Foods, Inc., 153 F.
App’x 637, 647–48 (11th Cir. 2005) (noting that the plaintiff did not personally
witness anything that substantiated her position and instead relied only on statements
from co-workers). The Court cannot infer an intent to discriminate based solely on
Archibald’s conclusory assertion that he was disciplined more than other employees.
See Rollins, 833 F.2d at 1529.
Similarly, Archibald also failed to satisfy the prima facie case regarding his
preparations for driving school. Diaz required Archibald to learn UPS’s “5 Seeing
Habits” and “10 Point Commentary,” and UPS employees, including Diaz, regularly
quizzed Archibald on these two documents before he attended driving school. Even
if it is true, as Archibald suggests, that white employees did not have to memorize
these documents, he did not suffer an adverse employment action. Archibald learned
the documents, attended driving school, and graduated the school at the top of his
class. He admitted at his own deposition that his knowledge of these two documents
did not penalize him in any way. (Doc. 25-1 at 389.) Even though Archibald’s wife
produced a signed statement indicating that Archibald spent “countless hours
reviewing the packet of information,” he has not produced any evidence to show that
the studies undermined his ability to work in any way. See Davis, 245 F.3d at 1239
Page 30 of 43
(noting that an action is only an adverse employment action if it is objectively
In sum, Archibald has failed to satisfy all elements of his prima facie case for his
disparate treatment claims based on discipline that he received as a UPS employee.
He has also produced no additional circumstantial evidence of discrimination, and
summary judgment is due to be granted on these claims.
Next, Archibald claims that the Defendants’ actions were done in retaliation for
his practice of filing grievances and complaining to the EEOC.23 The Defendants
moved for summary judgment, contending that Archibald had not satisfied the prima
facie case that must be satisfied when the plaintiff relies on circumstantial evidence.
See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). In a section
of his brief opposing summary judgment entitled “Retaliation,” Archibald indicates
that he is solely relying on “direct evidence” of retaliation. (Doc. 29 at 13–14.)
Direct evidence is “evidence which reflects a discriminatory or retaliatory
attitude correlating to the discrimination or retaliation complained of by the
The Court notes that it is unclear exactly what employment actions are purportedly
retaliatory. It is clear that the 2010 promotion claim cannot be retaliatory because the described
grievances, discipline, and other issues referenced in the case occurred after the August 2010
promotions of Courington and Jemison. However, the Court will discuss the cover driving and
disciplinary claims in the context of retaliation.
Page 31 of 43
employee.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.
1999) (internal quotation marks omitted). “One example of direct evidence would be
a management memorandum saying, ‘Fire [the plaintiff ]—he is too old.’” Early v.
Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (describing an example of
direct evidence in the context of age discrimination). However, “only the most blatant
remarks” constitute direct evidence of retaliation. See Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1086 (11th Cir. 2004) (internal quotation marks omitted).
Archibald has not produced direct evidence of retaliation. First, he argues that
his regular filing of grievances coupled with the reduction in discipline establishes that
the discipline was retaliatory. In most of these cases the discipline was only reduced
and not eliminated. Moreover, he has not pointed to any comments in the disciplinary
reports that provide blatant or obvious statements that either UPS or Diaz was
retaliating against him. See id. Additionally, Archibald contends that disciplinary
actions against him increased. These would provide, at most, only circumstantial
evidence of discrimination, and not direct evidence. Cf. Van Voorhis v. Hillsborough
Cnty. Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (finding that the
statement that an employer “didn’t want to hire any old pilots” was direct evidence
of age discrimination).
Page 32 of 43
In his brief, Archibald only set out the standard for direct evidence and did not
even alternatively reference the standard for circumstantial evidence. (Doc. 29 at
13–14.) Although he did discuss circumstantial evidence in the context of his
discrimination and hostile work environment claims, he omitted any discussion of
circumstantial evidence when discussing retaliation. See Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en banc) (“There is no burden upon
the district court to distill every potential argument that could be made based upon the
materials before it on summary judgment.”). Accordingly, the Court can properly
grant summary judgment based on the lack of direct evidence and treat any claim
based on circumstantial evidence as abandoned. See Road Sprinkler Fitters Local Union
No. 669 v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (explaining
that a district court may “properly treat as abandoned a claim alleged in the complaint
but not even raised as a ground for summary judgment”).
Alternatively, though, Archibald has not produced circumstantial evidence that
would allow him to survive summary judgment on a retaliation claim. In order to make
out a retaliation claim based on circumstantial evidence, the Plaintiff must show: (1)
he engaged in protected expression; (2) he suffered an adverse employment action;
and (3) there was a causal relation between the two. Thomas v. Cooper Lighting, Inc.,
Page 33 of 43
506 F.3d 1361, 1363 (11th Cir. 2007). If the Plaintiff can establish the prima facie case,
the employer then must articulate a non-retaliatory reason for the conduct. Pennington,
261 F.3d at 1266. However, “[t]he ultimate burden of proving by a preponderance of
the evidence that the reason provided by the employer is a pretext for prohibited,
retaliatory conduct remains on the plaintiff.” Id.
Archibald’s first retaliation claim involves allegedly excessive observations by
supervisors. He suggests that UPS supervisors, including Diaz, observed him more
than they did other employees. In order to support his claim, he must produce
evidence from which the fact-finder could conclude that he was subjected to an
adverse action. See Thomas, 506 F.3d at 1363. “The antiretaliation provision protects
an individual not from all retaliation, but from retaliation that produces an injury or
harm.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405,
2414 (2006) (“Burlington”). While the provision does not protect an employee from
“petty slights or minor annoyances,” a plaintiff need only show “that a reasonable
employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68, 126 S.Ct. at 2415 (internal quotation
Page 34 of 43
Although questions of adversity are generally left to the jury under the
Burlington standard, Archibald has failed to produce any evidence to show that the
observations were, in fact, excessive. See Crawford v. Carroll, 529 F.3d 961, 974 n.13
(11th Cir. 2008). Archibald testified that he faced “obsessive observations by
management.” (Doc. 25-1 at 426.) Given the approximately forty drivers, he thought
it excessive that he was observed on his route roughly ten times over a year. (Id.)
However, he lacks any personal knowledge of UPS’s observation procedures:
And did you ever speak to [UPS’s employees who
usually observed] about how they, it was decided
what observations they would do?
And do you have any personal knowledge, firsthand
knowledge of how many times [they] observed other
drivers in that —
So, you’re just speculating that, that they were, they
observed you more than they, more than they
observed other people?
Yeah. You can say that.
(Id. at 427–28.) Moreover, the only testimony in the record based on personal
knowledge of the observations comes from Diaz and Yul Cochran (“Cochran”). Both
of them provided declarations that Archibald was never singled out for observation
and was observed consistently with all other drivers. (Doc. 25-4 at 13–14 ¶ 24; Doc.
Page 35 of 43
25-8 at 3 ¶ 6.) Ultimately, a plaintiff must show objectively that he was harmed in
retaliation for his protected activity. Burlington, 548 U.S. at 68, 126 S.Ct. at 2415.
Here, Archibald has not shown any injury or harm, and thus he cannot survive
summary judgment on his theory that these actions were retaliatory.
Similarly, Archibald’s claims based on the discipline that he received also fail
because he cannot satisfy Burlington. The Supreme Court in Burlington effectively
established a different standard for retaliation claims than discrimination claims. See
Grimsley v. Marshalls of MA, Inc., 284 F. App’x 604, 608 n.5 (11th Cir. 2008)
(declining to apply the Burlington decision to disparate treatment discrimination
claims and limiting the decision to Title VII retaliation claims). For a retaliation claim,
“the type of employer conduct considered actionable has been broadened from that
which adversely affects the plaintiff’s conditions of employment or employment status
to that which has a materially adverse effect on the plaintiff, irrespective of whether
it is employment or workplace-related.” Crawford, 529 F.3d at 973.
However, the Burlington standard does not excuse a plaintiff from his obligation
to actually show that the conduct at issue would objectively deter him from engaging
in statutorily protected activity. 548 U.S. at 68, 126 S.Ct. at 2415. Even though the
Court must consider context when determining whether an action is adverse, the
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employee bears the burden of placing evidence about that context into the record. See
id. at 69, 126 S.Ct. at 2415. Here, Archibald has only produced evidence that shows
that he and his wife were upset about UPS’s actions. However, he did not testify that
UPS’s discipline made him less likely to file grievances or complain to the EEOC.
Instead, he testified that he always filed a grievance when he disagreed with discipline,
and he filed an additional EEOC charge after his first charge. Indeed, the evidence
here suggests that UPS’s actions did not deter Archibald from engaging in statutorily
protected conduct. See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 485 (5th Cir.
2008) (evaluating whether a job transfer was adverse in part by considering the
plaintiff’s testimony that she was not embarrassed by the transfer).
Apparently, Archibald attempts to argue that UPS’s assignments of cover
driving opportunities were retaliatory. Insofar as he has attempted to advance such a
claim, summary judgment is due to be granted for the same reasons as his racial
discrimination claims on this subject, discussed in Part III(A)(ii), supra. First,
Archibald failed to produce any facts to suggest that his training was different from
any other UPS employees, and he has failed to prove that his treatment was adverse
at all. See Burlington, 548 U.S. at 68, 126 S.Ct. at 2415 (recognizing that minor
trivialities are not regulated under the retaliation provision). Second, Archibald failed
Page 37 of 43
to rebut that UPS’s legitimate reasons for assigning cover driving opportunities, such
as the need to qualify more drivers, route knowledge, and Archibald’s limited
availability due to his preload schedule were not a pretext for retaliation. See Pina v.
Children’s Place, 740 F.3d 785, 796 (1st Cir. 2014) (emphasizing that, as in other cases
involving summary judgment, in retaliation cases “a nonmovant cannot rely merely
upon conclusory allegations, improbable inferences, and unsupported speculation”
(internal quotation marks omitted)). Thus, summary judgment is due to be granted
on Archibald’s retaliation claims.
Hostile Work Environment
Finally, Archibald purports to bring a hostile work environment claim based on
the Defendants’ actions. A separate violation of Title VII or § 1981 occurs when “the
workplace is permeated with [racially] discriminatory intimidation, ridicule, and
insult[ ] that is sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.” Jones v. UPS Ground
Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). An employer can be held liable if the
employee proves that: (1) he is a member of a protected class; (2) he was subjected to
unwelcome harassment; (3) the harassment was based on the individual’s membership
in the protected class; (4) it altered the terms and conditions of employment and
Page 38 of 43
created a hostile environment; and (5) the employer is responsible for this
environment either directly or vicariously. Id.
Even though Archibald devoted several portions of his brief to discussions of
“harassment” or “hostile work environment,” he never cited to particular parts of
the record to support his claim. See Fed. R. Civ. P. 56(c)(1)(A) (noting that a party
seeking to assert that a fact is in dispute must “cit[e] to particular parts of materials in
the record). Instead, Archibald asserted generally that Diaz harassed him “because of
his African American hairstyle and . . . because of a single tattoo that was not visible
unless Plaintiff was called at an inopportune time to work or when Plaintiff was not on
the clock and considered not working” without citing to any materials in the record.
(Doc. 29 at 13.) Elsewhere Archibald noted generally that his harassment claims are
supported by the grievances he has filed coupled with reductions in his discipline and
the statements from his wife and various co-workers. (Id. at 15–16.) However, he does
not indicate which portions of these materials support his claim. Thus, the Court can
properly grant summary judgment on this basis alone. See Fed. R. Civ. P. 56(e)(3)
(noting that the Court may grant summary judgment if a party fails to properly
support an assertion of fact if the motion and supporting materials indicate that the
movant is entitled to summary judgment).
Page 39 of 43
Moreover, Archibald has not provided any evidence to suggest that he was
subjected to a hostile work environment. Indeed, Archibald testified at his deposition
that UPS has not directed any comments toward him that would suggest that any of
its actions were based on race:
Are you aware of any oral or written statement made
by any UPS supervisor or manager that pertains to
I don’t get what you mean by the question.
Has anyone made any race based comments to you Oh, no.
- - or any racial remark to you of any kind?
(Doc. 25-1 at 422.)24 Thus, there is no indication in the record that the workplace was
permeated with racially hostile comments or actions. Cf. Jones, 683 F.3d at 1299–1301
(describing a hostile work environment based on ethnic slurs directed at the plaintiff,
banana peels left in the plaintiff’s vehicle, confederate apparel worn by co-workers,
and a confrontation between the plaintiff and several of these co-workers). Even if
Archibald could attempt to make a hostile work environment claim based on the
discipline that he received, as the Court noted at length above he has not successfully
Archibald cites various cases from the sexual harassment context to suggest that there is
an independent claim for a supervisor’s harassment in certain cases where there is no tangible
employment action taken. Even assuming that this claim is applicable in the context of racial actions,
Archibald’s admission would preclude any such claim.
Page 40 of 43
tied this discipline to his race. Summary judgment is due to be granted on the hostile
work environment claim.
Amendment of the Complaint
In addition to opposing the motion for summary judgment, Archibald filed a
motion for leave to amend his complaint, supposedly to add “new facts that were
produced at [the] deposition of Defendant, Jaime Diaz.” (Doc. 27.) He made this
motion both after the close of discovery and after the Defendants had already filed
their motion for summary judgment. The Court directed Archibald to brief the motion
and attach a copy of his proposed amended complaint (Doc. 28), but Archibald never
filed any such response with the Court. Thus, he has abandoned any argument that he
is entitled to amend his complaint, and the motion is due to be denied. See Coal. for the
Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir.
2000) (“[F]ailure to brief and argue [an] issue during the proceedings before the
district court is grounds for finding that the issue has been abandoned.”).
From Archibald’s two-page motion, he has given no reason why the Court
should allow amendment at this late stage in the litigation. See Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 230 (1962) (explaining that leave to amend should
generally be freely given but need not be allowed if there is a legitimate reason for
Page 41 of 43
disallowing it). Indeed, “[p]rejudice and undue delay are inherent in an amendment
asserted after the close of discovery and after dispositive motions have been filed,
briefed, and decided.” Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999).
Although Archibald filed his motion before the Court ruled on summary judgment,
he waited until well after the discovery period ended, dispositive motions were filed,
and the briefing period had begun.
Moreover, even though the Defendants raised several issues regarding the
sufficiency of pleading on summary judgment, the Court ignored those arguments and
relied instead on the evidence in the record. Additional pleading would not rectify the
Plaintiff’s failure to uncover relevant facts through discovery that could withstand
summary judgment. Thus, the motion is due to be denied.
For the reasons stated above, the Defendants’ motion for summary judgment
(Doc. 23) is due to be granted, and Plaintiff’s motion for leave to amend (Doc. 27) is
due to be denied. A separate order consistent with this opinion will be entered.
Done this 15th day of July 2014.
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L. SCOTT COOGLER
UNITED STATES DISTRICT JUDGE
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