Hill v. Federal Express Inc.

Filing 94

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 3/6/2014:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

LETICIA HILL,

)

Plaintiff,

)
)
)

v.

Case No. 12-cv-3917
Judge Sharon Johnson Coleman

)
FEDERAL EXPRESS, INC.,

)

Defendant.

)

MEMORANDUM OPINION AND ORDER
Plaintiff Leticia Hill (“Hill”) brings this action against Defendant Federal Express, Inc.
(“FedEx”) alleging that FedEx discriminated and retaliated against her for filing complaints with
the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Illinois Department of
Human Rights (“IDHR”) in violation of 42 U.S.C. §2000e et seq. and 42 U.S.C. § 1981. FedEx
moves for summary judgment on all counts. For the following reasons, FedEx’s motion is granted
in its entirety.
Background
Hill is an African American woman who was employed as a courier at FedEx for 23 years
prior to her termination in 2010. As a courier, Hill was responsible for, among other things, the
timely delivery and pick-up of packages. Between February 2009 and July 2010, Hill reported to
Dorise Monroe (“Monroe”), an African American Operations Manager at FedEx. On March 12,
2009, Monroe informed Hill, via FedEx’s Online Counseling and Complaint System, that her
attendance rating was below the company’s acceptable level. FedEx’s Acceptable Conduct and
Performance Improvement policies provide that receipt of three disciplinary notifications for failure
to comply with company policies may result in termination.
On June 25, 2009 Monroe reviewed Hill’s delivery records after an Operation Support
Specialist informed her of Hill’s excessive use of the DEX08 exception code. This code indicates
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when a delivery is attempted, but the business is closed or the resident is not home. Hill’s delivery
records revealed that between June 1 and June 25, 2009, she scanned packages with a DEX08 code
and immediately thereafter rescanned the same packages with a proof of delivery scan. The parties
dispute the implications of double scanning packages. FedEx states that this process can artificially
inflate productivity numbers or make it appear as though a courier made more stops than actually
performed. (Dkt. 61, Ex. 4; Def. Stmt. of Facts at ¶ 21). Hill argues that double scanning does not
artificially increase productivity numbers because double scanning is commonplace in the shipping
business where a courier may knock on a door for a delivery, proceed to leave upon no response,
but then actually complete the delivery if the recipient appears before the courier actually leaves.
(Dkt. 70; Pl. Resp. to Def. Stmt. of Facts at ¶ 21).
On June 26, 2009, Monroe suspended Hill with pay pending an investigation of Hill’s use of
the DEX08 code. Following the investigation, on July 1, 2009 Hill was terminated for double
scanning which FedEx concluded was a falsification of delivery records. FedEx provides an
internal EEO complaint procedure for discrimination and harassment claims as well as an internal
grievance procedure known as the Guaranteed Fair Treatment Procedure (“GFTP”) for employees
to dispute disciplinary actions or other employment decisions such as the issuance of warning
letters, performance reminders, or terminations. Pursuant to the grievance procedure, there are
three levels of review: first by FedEx management, followed by an officer review, and a final
review by an appeals board.
Following her termination for falsification of records on July 1, 2009, Hill initiated the first
step of her GFTP review claiming that her termination was unfair. In her complaint, Hill explained
her understanding of double scanning and stated that she was unaware that double scanning
constituted a falsification of records. Additionally, immediately after filing her grievance
complaint, Hill also filed a complaint with the IDHR and the EEOC on July 2, 2009. FedEx
management decided to uphold her termination. On July 16, 2009, during the second step of her
grievance complaint review, Hill submitted a written statement arguing that her termination was
unfair because “everyone at the BDF-A station did or has done” double scanning. Hill again argued
that she was never informed that double scanning constituted a falsification of records and stated
that she believed her termination was in actuality an attempt by Steve Condo, a Senior Station
Manager, to get back at her for openly disagreeing with him and stating that he was unfair at a
meeting.

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On July 31, 2009 FedEx Vice President Michael St. Martin (“St. Martin”) reviewed Hill’s
grievance complaint at the second level of the internal grievance process. St. Martin decided to
modify management’s decision at the first level of review to terminate Hill’s employment. St.
Martin stated in a letter to Hill that even though she was being reinstated based on individual
consideration, a review of the facts demonstrated that she had violated FedEx’s policy by falsifying
records. St. Martin also informed Hill that she would receive a warning letter and that any further
conduct incidents could lead to more severe discipline including termination. Hill challenged the
issuance of the warning letter through the internal grievance procedure, but the decision to issue the
warning letter for falsification of records was upheld.
On August 17, 2009, Hill returned to work at FedEx, but refused to sign the warning letter
because she claimed it was discriminatory; however, Hill testified that she did not believe her
reinstatement with the warning letter was somehow based on her race nor did she believe that it was
retaliatory. (Hill Dep. at 113:15-21). On August 21, 2009 Hill received a second disciplinary letter
indicating that 1) her attendance record had fallen below acceptable FedEx standards; 2) this was
her second disciplinary notification within twelve months; and 3) if she received another
disciplinary notification within twelve months, she could be terminated. (Dkt. 61, Def. Stmt. of
Facts at ¶¶ 38,39; Dkt. 70, Pl. Resp. at ¶¶ 38, 39). Hill did not file a grievance complaint
concerning this August 21, 2009 performance reminder.
On July 22, 2010, Hill failed to timely deliver 29 packages, in accordance with FedEx’s
customer guarantees. Hill was suspended with pay that day and following an investigation,
received her third written performance reminder for the service failures. Hill was subsequently
terminated and immediately filed a discrimination charge with the EEOC and the IDHR on July 29,
2010. Hill also filed an internal grievance complaint. Id. On August 19, 2010, Hill received notice
that a decision on her grievance complaint was being deferred until an investigation was completed
as to her discrimination claims. Hill was also instructed to file an Internal EEO packet to be used
by FedEx in investigating her discrimination claims. FedEx’s internal investigation of Hill’s
discrimination claims was completed on October 22, 2010 with FedEx concluding that there were
no FedEx policy violations. Hill’s internal grievance procedure then resumed and on October 25,
2010 Hill’s termination was upheld.
Legal Standard
Summary judgment is appropriate when no genuine issue of material fact exists and a party
is entitled to judgment as a matter of law. Johnson v. General Bd. of Pension & Health Benefits of
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the United Methodist Church, 733 F.3d 722, 727 (7th Cir. 2013); see also Fed. R. Civ. P. 56(c).
This standard places the initial burden on the moving party to identify those portions of the record
that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986) (internal quotations
omitted). Once the moving party meets this burden of production, the non-moving party “must go
beyond the pleadings” and identify portions of the record demonstrating that a material fact is
genuinely disputed. Id.; see also Fed. R. Civ. P. 56(c). All inferences drawn from the facts must be
construed in favor of the non-movant.
Discussion
Hill originally filed suit alleging that FedEx terminated her employment in retaliation for
her filing a complaint with the IDHR in violation of 42 U.S.C. § 2000e-3(a) and 42 U.S.C. § 1981
(Counts I and II). Hill also alleged that FedEx deferred her internal grievance process in retaliation
for her filing a complaint with the IDHR (Count III). Hill has since withdrawn Counts I and II
asking this Court to dismiss those counts without prejudice. Accordingly, Hill’s only remaining
claim is her retaliation claim. To prevail on a retaliation claim under § 1981, Hill must either show
direct evidence of discriminatory motive or intent, or rely on the indirect burden-shifting method
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817
(1973). See Johnson v. General Bd. of Pension & Health Benefits of the United Methodist Church,
733 F.3d 722, 727 (7th Cir. 2013).
1. Direct Method
Evidence of retaliation is direct when, if believed by the trier of fact, it will prove the
particular fact in question without reliance on inference or presumption. Harper v. C.R. Eng., Inc.,
687 F.3d 297, 307 (7th Cir. 2012) (citing Pitasi v. Gartner Grp., Inc., 184 F.3d 709, 714 (7th Cir.
1999)). Under the direct method, Hill must present direct evidence of (1) her statutorily protected
activity; (2) a materially adverse action taken by FedEx; and (3) a causal connection between the
two. Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). The causal connection requirement may be
shown through direct evidence, which is rare because “it would entail something akin to an
admission by the employer,” or through a “‘convincing mosaic’ of circumstantial evidence that
would permit the same inference without the employer’s admission.” O’Leary v. Accretive Health,
Inc., 657 F.3d 625, 630 (7th Cir. 2011).
The sole allegation remaining after Hill’s dismissal of Counts I and II is that the deferment
of her grievance process was done in retaliation for her filing an IDHR complaint. As to the first
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factor under the direct method, there is no real dispute that the filing of Hill’s IDHR complaint
constitutes protected activity. As to the second factor, while it is clear that “termination is
‘unquestionably a materially adverse action,’” it is less clear whether the deferment of Hill’s
grievance complaint while FedEx investigated her discrimination claims constitutes a materially
adverse action. Pantoja v. Am. NTN Bearing Mfg. Corp., 495 F.3d 840, 849 (7th Cir. 2007) (citing
Burnett v. LFW Inc., 472 F.3d 471, 482 (7th Cir. 2006)). Therefore, the question before this Court
is whether the deferment of Hill’s grievance procedure constitutes an adverse action for purposes of
a § 1981 retaliation claim.
To support a retaliation claim, qualifying adverse acts must extend beyond those that affect
the terms and conditions of employment. Burlington Northern and Santa Fe Ry. Co. v. White, 548
U.S. 53, 126 S. Ct. 2405, 2412-13, 165 L. Ed. 2d 345 (2006). A materially adverse employment
action is “one that would dissuade a reasonable employee from making or supporting a claim of
discrimination.” Whigum v. Keller Crescent Co., 260 Fed. Appx. 910, 913 (7th Cir. 2008). Hill
fails to demonstrate that the deferral of her grievance procedure constitutes a materially adverse
action. A short delay in her internal grievance process, while FedEx investigated discrimination
claims, would not dissuade a reasonable employee from making or supporting a claim of
discrimination. FedEx sent Hill notice that it was deferring her GFTP until her discrimination
claims were fully investigated. Hill does not allege, nor does the record support, a finding that
FedEx discriminated against her throughout her grievance procedure because she filed a complaint
with the IDHR. Hill’s only argument is that deferring her grievance procedure was unfair because
other FedEx employees who filed a grievance complaint without filing an IDHR complaint did not
experience a delay in their internal grievance procedure. At most Hill asserts that the delay was
inconvenient, but not materially adverse. See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 301
(7th Cir. 2004) (holding that a two-month delay in overtime payments did not constitute a
materially adverse employment action).
Contrary to her assertions, Hill also fails to present sufficient circumstantial evidence
demonstrating an issue of fact under the direct method of proof. Hill merely provides conclusory
assertions that the delay in her internal grievance procedure was excessive, citing emotional
consequences, such as being kept on “pins and needles” and held in “suspense” as she awaited her
grievance decision. This is insufficient to survive summary judgment.
2. Indirect Method

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Hill also fails to demonstrate retaliation under the indirect burden-shifting method outlined
in McDonnell Douglas Corp. v. Green. To establish a prima facie case of discrimination under the
indirect McDonnell approach, Hill must present evidence that, “if believed by the trier of fact,
would show: (1) she was a member of a protected class; (2) her performance met her employer’s
legitimate expectations; (3) she suffered an adverse employment action; and (4) she was treated less
favorably than similarly situated employees who are in a different class.” Bio v. Fed. Express
Corp., 424 F.3d 593, 596 (7th Cir. 2005). If Hill meets this initial burden, the defendant, FedEx,
has the opportunity to articulate a legitimate nondiscriminatory reason for its action. If FedEx does
articulate such a reason, the burden shifts back to the Hill to show that the reason stated is
pretextual. Id.
Although Hill is clearly a member of a protected class, she fails to establish that her work
performance met FedEx’s legitimate expectations. Quite to the contrary, Hill does not dispute any
of her failed delivery services or actions which eventually resulted in her termination. Hill admits
that she engaged in double scanning which eventually resulted in the first warning letter she
received upon returning to work at FedEx on August 17, 2009. Hill also admits that on August 21,
2009 her attendance record fell below acceptable FedEx standards and that she received a second
disciplinary letter concerning her attendance. Lastly, Hill admits that she failed to timely deliver 29
packages on July 22, 2009 as required. Despite her conclusory statements that she was given
warnings unjustly, Hill has not pointed to any evidence demonstrating that she performed well. See
Bhat v. Accenture LLP, 473 Fed. Appx. 504, 506 (7th Cir. 2012). Hill’s own evaluation of her work
cannot be imputed to FedEx and her conclusory statements are insufficient to permit her case to
survive summary judgment. Id. (citing Dickerson v. Bd. of Trs. of Cmty. Coll. Dist. No. 522, 657
F.3d 595, 603 (7th Cir. 2011) and Haywood v. Lucent Techs., Inc., 323 F.3d 524, 531 (7th Cir.
2003)).
Moreover, Hill fails to show that she was treated less favorably than similarly situated
employees of a different class. Hill identifies three white and Hispanic employees, Marjorie
Gonzalez (“Gonzalez”), Lourdes Rodriguez (“Rodriguez”), and Michelle Whalen (“Whalen”), as
examples of employees who were treated differently than she was. In their affidavits, these
employees state generally that they had “service failures” or were late when delivering packages,
but that they were never given disciplinary warnings or terminated. Although this Court recognizes
that “a plaintiff need not present a doppelganger who differs only by having remained in the

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employer’s good graces, proposed comparators must be similar enough to the plaintiff to allow for a
meaningful comparison.” Dotson v. AT&T Servs., 524 Fed. Appx. 271, 274 (7th Cir. 2013).
Here, Hill fails to present any facts demonstrating that the referenced employees were
similarly situated to allow for any meaningful comparison. There is no evidence that the employees
referenced made any complaints via the internal grievance process whatsoever, let alone any
evidence that this process continued without delay despite the employees filing a complaint with the
IDHR or the EEOC. To be similarly situated, the employee needs to have roughly the same
performance, qualifications, and conduct as the plaintiff. Sklyarsky v. Abm Janitorial Servs., 494
Fed. Appx. 619, 622 (7th Cir. 2012). Gonzalez and Whalen’s affidavits lack any information
detailing their performance or conduct outside of general statements that they had service failures or
delivered packages late. While Rodriguez’s affidavit provides slightly more information, stating
that she had about 10 to 15 late deliveries in one day, this admission is insufficient to show that the
magnitude of Rodriguez’s late deliveries and violations somehow mirrored Hill’s violations
including the 29 delivery failures in one day. Furthermore, it is unclear how many, if any,
disciplinary letters these employees received or whether these employees engaged in double
scanning or had inappropriate attendance records like Hill. These generic affidavits lacking any
substantiated details as to the employees’ performance records are simply insufficient to serve as
comparators.
Lastly, this court will briefly note that even if Hill could make out a prima facie case, Hill
still fails to demonstrate that FedEx’s proffered nondiscriminatory reason for delaying her
grievance procedure was pretextual. The focus of the pretext inquiry is to determine “whether the
employer’s stated nondiscriminatory ground for the action of which the plaintiff is complaining is
the true ground of the employer’s action rather than being a pretext for a decision based on some
other, undisclosed ground.” Smiley v. Columbia College Chi., 714 F.3d 998, 1002-1003 (7th Cir.
2013) (citing Forrester v. Rauland-Borg Corp., 453 F.3d 416, 417 (7th Cir. 2006)). FedEx has
offered the need to investigate Hill’s discrimination claims via its internal EEO review process as
an explanation for delaying Hill’s GFTP. Hill has proffered no evidence that this reason is
pretextual. Hill merely states that the purpose behind FedEx’s deferral was to retaliate, but makes
no substantiated arguments and points to no evidence that the internal EEO investigation was in fact
pretextual.
Conclusion

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For the foregoing reasons, defendant FedEx’s motion for summary judgment is granted in
its entirety. Hill’s complaint is dismissed in its entirety.
IT IS SO ORDERED.
______________________
Date: March 6, 2014
____________________________
Sharon Johnson Coleman
United States District Judge

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