Scott v. UPS Supply Chain Solutions

Filing 68

MEMORANDUM OPINION re 59 MOTION for Summary Judgment. Signed by Judge Richard G. Andrews on 6/5/2012. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JASON SCOTT,
Plaintiff,

v.

Civil Action No. 10-929-RGA

UPS SUPPLY CHAIN SOLUTIONS,
Defendant.
Andrew Lukashunas, Esq., Wilmington, DE; Robert T. Vance Jr., Esq., Philadelphia, ~A,
Attorneys for Plaintiff.
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Jennifer C. Jauffret, Esq., Lori A. Brewington, Esq., Wilmington, DE; Emmett F. Mcpee, Jr.,
Esq., Ariana Wright Arnold, Esq., Baltimore, MD, Attorneys for Defendant.
MEMORANDUM OPINION

/

tJ,

June
2012
Wilmington, Delaware

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ANDREWS, U.S. DISTRICT JUDGE:
Plaintiff Jason Scott claims his temporary assignment with Defendant UPS Supply ciain
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Solutions was terminated as a result of discrimination on the basis of his nonconformance with

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gender stereotypes and his sexual orientation, and that he is entitled to relief under Title

and

the Delaware Discrimination in Employment Act. (D .I. 1). Presently before the Court is luPS'
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Motion for Summary Judgment and Memorandum in Support (D.I. 59, 60, 61), Scott's A~swer
and Memorandum in Opposition (D.I. 63, 64, 65), and UPS' Reply (D.I. 66). For the reatons
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discussed, UPS' Motion is granted.

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BACKGROUND
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For several years, Kelly Services employed Scott, placing him in temporary assignmepts with
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their clients. (D .I. 61, Ex. 25 at 55-60; Ex. 5). Scott signed several documents regarding his
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employment by Kelly Services, indicating Scott's understanding that his time must be suJmitted
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to Kelly Services to get paid, and that he must promptly contact Kelly Services (not the c~ient
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business) ifhe was going to be late or absent. !d., Ex. 5 at 7. Kelly Services explained t Scott
that he was not actually employed by the company at which he was placed. !d., Ex. 25 at 66.
In November 2008, Kelly Services placed Scott with UPS in a temporary work assig

ent in

UPS' Newark, Delaware office. !d., Ex. 25 at 66, 70. In connection with that placement, Scott
signed an acknowledgment indicating his understanding that he was employed solely by

elly
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Services and would remain solely an employee of Kelly Services at all times; that he was ~ot
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employed by UPS and was not subject to the employment policies or direction of UPS; 4d that
he would not assert any employment-related claims against UPS. !d., Ex. 5 at 11-12. UPf and
Kelly Services also agreed that Kelly Services "shall have sole responsibility to counsel,

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discipline, review, evaluate, set the pay rates of, and terminate its employees assigned

t~ UPS."
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/d.,Ex.1 at3.

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Scott received a Kelly Services employee handbook, and was paid by Kelly Service$ during
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his UPS assignment. !d., Ex. 25 at 65-69; Ex. 5 at 7. Scott reported to a Kelly Servicef
supervisor, Paola Carazo. ld, Ex. 25 at 84; Ex. 2 4 at 5-6. If Scott wanted to take time

tff,

or if

he was going to be absent or late, he was to contact Kelly Services and Kelly Services ,ould
approve as appropriate. Id, Ex. 25 at 84-85, lll-12. Scott's only conversations about ¥s work
performance and attendance were with his Kelly Services supervisor. /d., Ex. 25 at 85-a6. Scott
did not have a badge that gave him access to the UPS building; instead, each day when Je
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arrived, Scott had to ring a door bell and wait for the receptionist to unlock the door and [let him
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in to the building. /d., Ex. 25 at 107.
At UPS, Scott perfonned collections work, contacting UPS customers regarding

ou~ding
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balances due. /d., Ex. 25 at 71-73. Several other Kelly Services employees also perfom{ed
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collections work. !d. at 73-74. In August 2009, UPS employee Sherri O'Connell becamf
responsible for Scott's group of collection workers. /d., Ex. 25 at 75; Ex. 9, ~ 3. O'Co,ell
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reported to Heidi Maslin, who in turn reported to Kim Kohler. /d., Ex. 4.

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Scott was late or absent numerous times in 2009, and Scott's Kelly Services superviscr had
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warned him that his attendance and punctuality needed to improve. /d., Ex. 25 at 11 0-14j Ex. 6.
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Scott would inform Carazo of his absences, who would excuse them and notify UPS as \
appropriate. /d., Ex. 25 at 84-85, 111-14; Ex. 6. Scott was absent on August 3 and 4,

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September 4, 2009. ld, Ex. 25 at 112-13, Ex. 6. He was also late on Tuesday, September 8, and
Wednesday, September 9, 2009. /d., Ex. 25 at 114-16; Ex. 6.
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On Friday, September 11, 2009, Scott's collections group was moving from the first
the second floor of its building. /d., Ex. 9, ~ 5; Ex. 10, ~ 7. The parties dispute whether
arrived late that morning, or whether he arrived on time (by 8:30) but reported to the seco d floor
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and did not log in because his computer was not hooked up. It is undisputed that Scott btkdated
his time card to reflect an 8:30 arrival time. /d., Ex. 25, 149-50, 169.
It is also undisputed that at around 8:35, the worker who was to move into Scott's

firs~ floor
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space approached O'Connell and asked to move in since Scott was not there. /d., Ex. 9, ~ 10.

O'Connell went to Scott's first floor work station and observed that he was not there, thet went
to Maslin's office and asked Maslin whether she had notice that Scott was going to be latt. /d.,
Ex. 9, ~ ~ 10-13; Ex. 10, ~ ~ 10-11. Maslin reported she had no notice about Scott and thtt she
did not see his car in the parking lot (although she could only see part of the parking lot oft her
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window). /d., Ex. 10, ~ ~ 10-11. O'Connell returned to Scott's first floor space to monit1r the
moving of his possessions, but did not see Scott until sometime after 8:45. /d. Ex. 9,

~ ~ {4-15.
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O'Connell told Scott that she had authorized another employee to move some of his belo1gings

since he wasn't there. Id , Ex. 9, ~ 15; Ex. 16, ~ ~ 4-5. Scott never said to 0' Connell or taslin
that he had arrived on time. /d., Ex. 17 at 18, 25; Ex. 9, ~ 22; Ex. 18 at 22.

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As supervisor of Scott's group, O'Connell was responsible for reviewing Kelly ServiJe
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employees' time entries. /d., Ex. 9, ~ 20. On Monday, September 14,2009, O'Connell r~viewed
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Scott's Friday, September 11, 2009, timecard and noticed that he had recorded the start o~his
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workday as 8:30a.m., when O'Connell thought he had not arrived before 8:45. /d. Ex. 9,~~ ~ 2122; Ex. 17 at 23-24. O'Connell informed her supervisor, Maslin, of Scott's recorded 8:31 start
time. /d., Ex. 18, pp. 20-24. Maslin concluded, based on her belief that Scott had arrived! after
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8:45, that Scott had an "integrity issue." Id, Ex. 18, pp. 20-24; Ex. 10, ~ 15. Maslin and
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O'Connell thought Scott's assignment should end and brought the matter to the attentio1 of
Maslin's supervisor, Kohler. Id, Ex. 10, ~ 16; Ex. 9,

~ 24; Ex.

11, ~ 7; Ex. 17, pp.

28-2~.

Based

on Scott's timecard and Maslin's and O'Connell's beliefs that Scott had arrived after 8:15,
Kohler agreed that Scott had falsified his time card and committed an integrity violationj so his
UPS assignment should end. /d, Ex. 11, ~ 7.
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That same day, O'Connell notified Scott's supervisor at Kelly Services (Carazo) by ~hone
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that Scott had falsified his time entries and faxed copies of the entries to Carazo. Id,

Ex~

7; Ex.

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9, ~ 25; Ex. 24 at 10-12. Carazo informed Scott that he should log out and leave the buit'(fing,
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and that his assignment was over because of a problem with his time entry. /d, Ex. 25 at 173-74.
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Scott left UPS without speaking to any UPS employees, and never spoke to any UPS supfrvisor
or manager about why his assignment ended. Id, Ex. 25 at 173-74, 178. Scott remained! a Kelly
Services employee, eligible to receive other work assignments. Id, Ex. 25 at 179; Ex. 21 at 131

14.

fd, Ex.
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Scott has stated that neither Kohler nor Maslin have ever discriminated against him.

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25, at 89-90, 92-93. His claims are focused on O'Connell. Scott claims he felt O'Connell knew
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Scott was homosexual based on O'Connell's turning her nose up at his outfit of a pink p~lo shirt
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and shorts one day, and O'Connell's change in attitude toward Scott after he questioned ~er

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during a company talent show as to why she was not wearing a wig while impersonating ?ne of
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The Supremes. Id at 94-95, 105. Scott also claims that his mohawk haircut achieved wi1h hair
extensions, and his skinny jeans, suggested he was homosexual. Id at I 05, 107-09. Sco, also
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points to testimony by his Kelly Services colleague, Toni Shepperson, that she overheafd
O'Connell discussing Scott's late arrival that morning. Shepperson testified that O'Conpell said
Scott had come in late, and that's why she didn't like "faggots." Id, Ex. 27, pp. 81-82. I
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Shepperson testified that another colleague came to Shepperson's cubicle after O'Conndll's
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remark to talk to Shepperson about the remark. Id, Ex. 27, p. 83. O'Connell states she ~id not
know Scott was homosexual until he filed his discrimination claim, and denies making t~e
remark Shepperson attributed to her. Id, Ex. 9,

~ ~ 18, 32.

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The person to whom O'Co4ell
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allegedly made the remark also denies that the conversation took place. Id, Ex. 12, ~ ~ ~-8.

DISCUSSION
A. Legal Standard
"The court shall grant summary judgment if the movant shows that there is no genuirte
dispute as to any material fact and the movant is entitled to judgment as a matter of law.''
FED.R.Civ.P. 56(a). The moving party has the initial burden of proving the absence of a ;
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genuinely disputed material fact relative to the claims in question. Ce/otex Corp. v. Catrtt, 477
U.S. 31 7, 3 30 ( 1986). Material facts are those "that could affect the outcome" ofthe proteding,
and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a
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reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 t.3d
177, 181 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248

(19~6)).
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The burden on the moving party may be discharged by pointing out to the district court thrt there
is an absence of evidence supporting the non-moving party's case. Celotex Corp., 477 U.f. at
323.

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(D.I. 61, Exh. 27, pp. 28-29).
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The burden then shifts to the non-movant to demonstrate the existence of a genuine tssue for
trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); filliams
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v. Borough ofWest Chester, Pa., 891 F.2d 458,460-61 (3d Cir. 1989). A non-moving ~arty
asserting that a fact is genuinely disputed must support such an assertion by: "(A) citing

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particular parts of materials in the record, including depositions, documents, electronically stored
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information, affidavits or declarations, stipulations ... , admissions, interrogatory answersf or other
materials; or (B) showing that the materials cited [by the opposing party] do not establi4 the
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absence ... of a genuine dispute .... " FED.R.Civ.P. 56(c)(1).
When determining whether a genuine issue of material fact exists, the court must vier the
evidence in the light most favorable to the non-moving party and draw all reasonable inftrences
in that party's favor. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F\3d 180,
184 (3d Cir. 2007). A dispute is "genuine" only if the evidence is such that a reasonablelury
could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-49; see Mat ushita
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Elec. Indus. Co., 475 U.S. at 586-87 ("Where the record taken as a whole could not lead~a

rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.''). If the
nonmoving party fails to make a sufficient showing on an essential element of its case wi h
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respect to which it has the burden of proof, the moving party is entitled to judgment as a ~atter
oflaw. See Celotex Corp., 477 U.S. at 322.

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UPS moves for summary judgment on the grounds that Scott cannot establish that he ras
UPS' employee, cannot establish a prima facie case of discrimination, and cannot proffer lany
evidence of pretext.

B. Decision

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UPS first argues that UPS was not Scott's employer for purposes of his Title VII and pDEA

claims, under Shah v. Bank ofAmerica. See 598 F.Supp.2d 596 (D. Del.), aff'd, 346 F.

~p'x

831 (3d Cir. 2009). The parties agree that to establish a claim under Title VII of the Civill Rights
Act and the DDEA, Scott must first establish that he in fact was an employee of UPS, an1 not of
Kelly Services, his temporary staffing agency. See Shah, 346 F. App'x at 833. (D.I. 60 atl11, D.I.
64 at 11 ). The common law of agency and the common elements of a master-servant

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relationship govern whether a plaintiff is an employee of the defendant for purposes of Tire VII
and DDEA claims. Shah, 346 F. App'x at 834, 834 n.2.
The Court may consider the hiring party's right to control the manner and means by
the work is accomplished; the skill required; the source of the instrumentalities and tools; the
location of the work; the duration of the relationship between the parties; whether the hiri g party
has the right to assign additional projects to the hired party; the extent of the hired party's
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discretion over when and how long to work; the method of payment; the hired party's rol~ in
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hiring and paying assistants; whether the work is part of the regular business of the hiring Iparty;
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whether the hiring party is in business; the provision of employee benefits; and the tax trertment
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of the hired party. /d. at 834 (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 3T3-24
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(1992)).

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There are no disputed facts in relation to Scott's employment. The only disagreement
between the parties is whether the facts establish that he was, or was not, an employee ofpPs.
While Scott worked for UPS for longer than Shah worked for Bank of America (ten months
versus four hours), and while the record does not decisively indicate that Scott received
unemployment benefits from Kelly Services like Shah did from Adecco, the cases are

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stil~ much

more alike than they are different. See, e.g., Fields v. Colgate Palmolive Co., 2010 WL
*1, *4 (D.N.J. Dec. 15, 2010) (finding a temporary worker was employed by the tempor
agency, and not by the defendant, where the worker had been at that assignment nearly a year).
Like Shah, Scott remained employed by Kelly Services after his UPS assignment ended,

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Kelly Services offered him other assignments; Kelly Services assigned Scott's rate ofpa (and
actually paid him); and Kelly Services terminated the UPS assignment.
Additional factors make this case even more clear than Shah. Scott applied for work with
Kelly Services, filling out its job application. Ex. 5. Scott signed numerous written
acknowledgments that he was Kelly Services' employee, not UPS's. Kelly Services, not UPS,
was responsible for handling Scott's time off and attendance. Scott discussed his perfo
UPS only with his Kelly Services supervisor. Scott did not have employee access to the

PS

facility, but instead had to be buzzed in like a guest. In light of these many factors, Scott1s
arguments (see D.I. 64 at 11-12) that UPS controlled Scott's daily work activities and tha Scott
was required to follow UPS's policies do not distinguish this case from Shah. Because

PS was

not Scott's employer, he cannot maintain an employment discrimination claim against U Sunder
either Title VII or the DDEA.

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The Court need not reach UPS' other arguments in favor of summary judgment (that $cott
cannot establish a prima facie case of discrimination because UPS was not aware of

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sexual orientation and he was terminated for legitimate non-discriminatory reasons; and t at
Scott cannot show that the proffered nondiscriminatory reasons were pretextual). There

pears

to be a dispute of material fact as to whether or not O'Connell referred to Scott as a "fagg t,"
which in turn would generate a dispute as to whether O'Connell, and therefore UPS, was ware

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of Scott's sexual orientation and whether that was the true motivation behind his terminajtion.
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Since Scott was not a UPS employee, the Court need not reach that issue. The Defendan~ notes
that Shepperson's UPS assignment was also terminated for document falsification; that

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Shepperson filed her own, ultimately unsuccessful, discrimination claim against UPS; th t
Shepperson testified she was unable to hear the rest of the conversation in which O'Co

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made the remark, and her cubicle was a few cubicles away from the conversation; that
Shepperson's testimony that O'Connell said Scott had lied about his arrival time on Frid y,
September 11, is inconsistent with the record showing O'Connell did not review Scott's imecard
until the following Monday; and that Shepperson's testimony that she spoke with Scott b tween
7:15 and 7:30am on Friday, September 11, is inconsistent with Scott's testimony that he arrived
at work between 8:20 and 8:30. (D.I. 61, Ex. 27 at 35, 40-41, 70, 74, 79-80; 120-22; Ex. 7; Ex.
9, ~ 21; Ex. 25 at 121). O'Connell denies making the remark Shepperson attributed to h r, and
the person to whom O'Connell allegedly made the remark also denies that the conversati n took
place. ld, Ex. 9,

~ ~ 18, 32; Ex. 12, ~ ~ 6-8.

The Defendant argues that, based on the fort going

evidence, Shepperson has zero credibility. Her credibility, however, is not for the Court

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determine at this stage. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 110
(2000). It may be very unlikely, but a jury could ultimately believe Shepperson, so Scott'r
arguments that rely on her testimony would survive summary judgment if he were a UPS

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employee.
An appropriate order will be entered.

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