Trost v. UPS Ground Freight, Inc.
Filing
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MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 8/27/2018: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies UPSF's motion for summary judgment [dkt. no. 23]. The case is set for a status hearing on September 4, 2018 at 9:30 a.m. to set a trial date and discuss the possibility of settlement. (mk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEPHEN J. TROST,
Plaintiff,
vs.
UPS GROUND FREIGHT, INC.,
Defendant.
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Case No. 17 C 4415
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Stephen Trost has sued his former employer, UPS Ground Freight, Inc. (UPSF),
alleging that he was subjected to race discrimination during his employment with UPSF
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-2. UPSF has
moved for summary judgment. For the reasons stated below, the Court denies UPSF's
motion.
Facts
Trost is a Caucasian male. He was employed at UPS starting in 1982 or 1983
and then at UPSF, a division of UPS, from April 2011 until he retired on February 29,
2016. Trost was first hired at UPSF as a part-time loader and unloader and was last
employed as a terminal manager at UPSF's Bedford Park terminal facility from January
2014 until his retirement on February 29, 2016. Trost's responsibilities as terminal
manager included managing a staff of approximately 175 employees, among other
duties. He reported to Robert Goble, who served as regional director of operations, and
Goble reported to Kevin Hartman, regional vice president.
Trost alleges that UPSF wrongly denied him a bonus for the year 2015 due to his
race, stemming from his termination of an African-American employee named Travis
Jones in December 2015. Trost fired Jones, who worked at the Bedford Park terminal,
for attendance-related issues. Trost says that he had received the bonus in previous
years and that he was performing his job satisfactorily.
The events involving Trost and Jones took place starting on September 29, 2014.
Jones was a forklift driver at the loading dock. He wanted to leave work, saying he was
feeling tired, but management refused to let him leave. Jones continued to insist, and
Trost was called in to address the issue. Trost told Jones that if he was physically
unable to do his job, he couldn't go home—rather, he had to go to the doctor. Jones
refused to go to the doctor, and according to Trost, Jones swore at him, threatened to
kill him, and chest-bumped him while leaving the facility. Trost called the police to
report that Jones had assaulted him, and Jones was arrested near the terminal. Later
that day, Trost filed a police report alleging that Jones had assaulted him. Trost called
Goble to report the incident, and Goble approved Trost's request to terminate Jones.
Goble informed Hartman of the termination decision, and Hartman also approved.
The criminal charge against Jones went to trial, at which Trost testified for the
prosecution. Jones was found not guilty. He then filed a grievance through his labor
union challenging his termination, and in May 2015, he was returned to work at UPSF.
After Jones's return, he filed a lawsuit against UPSF alleging claims of false
imprisonment and malicious prosecution based on Trost's actions. Trost became aware
of the lawsuit by September 2015.
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In May or June 2015, after Jones's return to UPSF, he failed to follow a work
directive, and management decided to terminate him again. Trost was not involved in
this termination. Jones filed a grievance and prevailed again. During the grievance
process, Jones stated that he had medical issues for which he was taking medication.
Once he submitted information regarding the medication, he was cleared to return to
work. Before Jones returned to work, UPSF contends, Trost was involved in a phone
call that included Goble, Hartman, and labor management and human resources
representatives. According to UPSF, Trost was told that he was expected, in dealing
with Jones, to be professional, follow UPSF anti-harassment policy, and not retaliate
against him. Trost denies that this took place. It is undisputed, however, that when
Jones returned to UPSF, Trost knew he had a medical condition and was on
medication.
After Jones's second return to UPSF, he had attendance issues and was
regularly absent from work starting on October 28, 2015. On November 4, Jones's
uncle Quincy Jones, also an employee at the Bedford Park terminal, informed UPSF
management that Jones's family did not know where he was. The next day, November
5, Jones did not come to work. UPSF staff issued Jones a 72-hour letter per Trost's
request, directing Jones to "submit official verifiable documentation to support your past
and ongoing leave of absence . . . within seventy-two (72) hours." See Def.'s Stat. of
Material Facts ¶ 29. The form Trost used to submit the 72-hour letter stated at the
bottom, "All discharges need to be approved by the RDO, Labor Dept. and the RVP."
Id. ¶ 30. The acronyms RDO and RVP appear to refer, respectively, to Goble, the
Regional Director of Operations, and Hartman, the Regional Vice President. On
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November 6, Jones was absent from work again, but his uncle reported that he had
been hospitalized for medical reasons. Trost did not know whether this was true, as
Jones never provided any documentation to support his medical leave as required by
UPSF rules.
On November 10, Jones spoke to Dan Hart, assistant manager at the Bedford
Park terminal. Jones told Hart that he had a medical condition for which he was under a
doctor's care, he had received the 72-hour letter, and he wanted to know what he
needed to do to return to work. However, when Jones was absent from work again on
November 11 and 12, Trost directed the sending of a second 72-hour letter to Jones.
On November 18, Jones came to the Bedford Park terminal to inform Trost that he was
still under a doctor's care for his medical condition and that he would be returning to
work on November 23. However, Jones was absent the next several work days, and on
November 30, Trost directed sending a third 72-hour letter to Jones.
Jones remained absent from work through December 9. Trost was on vacation
at the time and called UPSF to direct staff members to terminate Jones on December 9,
effective immediately. He did not seek or receive approval from Goble, Hartman, or the
Labor Relations Department. On December 10, Jones texted his supervisor that his
doctor hadn't cleared him to return to work and that he wanted to know whether there
was any paperwork UPSF needed him to give to his doctor at an upcoming
appointment. Jones's malicious prosecution lawsuit against UPSF was still pending at
the time Trost fired Jones.
On December 11, Goble found out through human resources manager Marquita
Barnes that Jones had been terminated. Barnes had learned of the termination while
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she was gathering documentation for Jones's lawsuit against UPSF. Goble was upset
because he hadn't been informed or consulted before the termination. Goble has
testified he had previously told the managers who directly reported to him, including
Trost, to inform him before firing any employees. Hartman and Barnes have also
testified that Trost was required to seek approval from Hartman and Labor Relations.
But Trost has testified that prior to Jones's termination, he had not sought approval from
upper management before terminating hourly employees and had not been told that he
had to. Trost states that it was not until he terminated Jones on December 9, 2015 that
Goble told him that he had to contact Goble before terminating an employee.
Goble asked Barnes to investigate Trost's actions leading up to the termination.
Barnes and her supervisor, Rick Picardi, put together a report regarding the termination.
Barnes called Trost and asked who gave him authority to terminate Jones and why he
had not directed Jones to call the Human Resources Service Center (HRSC), the UPSF
department responsible for assisting employees in opening claims for disability, workers'
compensation, and medical leave. UPSF's Injured Employee Process instructs
managers to direct ill or injured employees to seek help from the HRSC. Trost states,
however, that prior to Jones's last termination, he (Trost) did not receive training or
documentation regarding UPSF policies on directing employees to HRSC or handling
employees with medical situations. At his meeting with Barnes, Trost told Barnes that
as a terminal manager, he understood he had the authority to terminate employees for
attendance-related issues. Barnes discussed her investigative findings with Hartman
and Goble.
On December 18, Barnes met with Trost and Picardi to review the investigation.
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Trost testified that during this meeting, Barnes referred to the fact that Jones is AfricanAmerican and Trost is white, and as a result, it "was a problem" that Trost terminated
Jones. Pl.'s Stat. of Add'l Facts ¶ 22. Trost says that Picardi did not verbalize any
objection to Barnes's comment.
UPSF's International Management Incentive Program (IMIP) award is an annual
bonus available to full-time managers based on the company's performance and the
performance of the individual manager. The bonus is granted each year by
recommendation, with a variety of factors considered in deciding whether to recommend
a manager for the bonus, including compliance with UPSF policies and overall job
performance. A manager's eligibility for the IMIP bonus does not ensure that it will be
granted. However, the "objectives of IMIP are to align pay with annual performance."
Id. ¶ 40. UPSF has an extensive administrative guidebook detailing specific IMIP award
policies such as the criteria required for receiving the award, the schedule for
distribution, and the procedures for how managers must document their
recommendations of employees. The Regional Director of Operations makes the
decision to recommend a terminal manager for the IMIP bonus; in this case, Goble was
responsible for deciding whether to recommend Trost.
Goble has testified that did not recommend Trost for the IMIP bonus for 2015
because he believed Trost violated UPSF policy by terminating Jones without notice to
or approval from Goble. Goble testified that Trost's work performance was acceptable
and had it not been for the way Trost terminated Jones, he would have recommended
Trost for the IMIP bonus. Hartman has testified that he approved Goble's decision not
to recommend Trost for the bonus because he also believed Trost acted improperly by
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terminating Jones without approval from Goble or the Labor Relations Department.
Goble has testified, however, that Trost only needed to get prior authorization from him,
not anyone else. The decision not to recommend Trost for the IMIP bonus was sent to
UPSF's internal legal department, which prepared documentation to inform Trost of the
decision.
January 8, 2016 was Trost's last day of work before his retirement. On that date,
Goble and Barnes met with Trost to read him a letter informing him that he would not be
receiving the IMIP bonus for 2015. The letter stated that UPSF had conducted an
investigation relating to allegations of inappropriate behavior by Trost and had found
that he had violated company policy and that as a result, he would not receive the IMIP
bonus for 2015. Trost says that during this meeting, Barnes again indicated that one
reason for not receiving the bonus was directly related to the fact that he is white and
terminated an African-American employee, and "that was a problem." Id. ¶ 24.
According to Trost, Goble did not say anything after hearing Barnes's comment. Trost
had previously received an IMIP bonus for each year he had been a supervisor or
manager at UPSF.
In April 2016, Trost called Goble to ask again why he did not receive the IMIP
award. Goble told Trost to call Picardi and asked if Trost recalled the meeting that he,
Barnes, and Trost had on Trost's last day of work. Trost responded in the affirmative,
and Goble replied, "Well, then, you know what happened." Id. ¶ 25.
Prior to terminating Jones, Trost had personally terminated about a dozen
employees and participated in approximately 20-25 additional terminations. Trost has
testified that only some of these terminations had been discussed with other
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management before they took effect, and he was never disciplined for any of these
previous terminations.
Trost originally asserted claims of race discrimination and retaliation, but he
subsequently withdrew his retaliation claim. Thus the only remaining claim involves
Trost's contention was subjected to race discrimination when he was denied the IMIP
bonus for 2015. UPSF has moved for summary judgment, arguing that denial of a
discretionary bonus does not constitute an actionable adverse employment action and
that Trost has not offered evidence from which a reasonable jury could find that he was
denied the bonus due to his race.
Discussion
Summary judgment is proper where there is no genuine dispute regarding any
material fact and the moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). In considering a motion for summary judgment, a court views the facts in
the light most favorable to the non-moving party and draws reasonable inferences in
that party's favor. Summary judgment must be denied if there is enough evidence for a
reasonable jury to find in favor of the non-moving party. See, e.g., Carson v. Lake
County, 865 F.3d 526, 532 (7th Cir. 2017).
A plaintiff asserting a claim of race discrimination may submit either direct or
circumstantial proof of discriminatory intent or by relying on "indirect" proof via the
burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Alternatively, the plaintiff can rely on an evaluation of the evidence as a whole,
as described in Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). See
Carson, 865 F.3d at 532–33. Trost does not argue the case under the McDonnell
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Douglas burden-shifting framework, so the Court will bypass that analysis.
Under any method of analysis, Trost must establish that he suffered an adverse
employment action that is actionable. An actionable adverse employment action is a
quantitative or qualitative change in the terms or conditions of employment. See, e.g.,
Patt v. Family Health Sys., Inc., 280 F.3d 749, 753 (7th Cir. 2002). In this case, Trost
cites the denial of an IMIP bonus for 2015. UPSF argues that the loss of a bonus is not
an adverse employment action if the bonus is discretionary, relying on Nasserizafar v.
Indiana Department of Transportation, 546 F. App'x 572, 575 (7th Cir. 2013); Palermo v.
Clinton, 437 F. App'x 508, 511 (7th Cir. 2011); and Maclin v. SBC Ameritech, 520 F.3d
781, 788 (7th Cir. 2008). A reasonable jury could find, however, that the IMIP bonus is
not completely discretionary—i.e., it is not "sporadic, irregular, unpredictable, and wholly
discretionary on the part of the employer." Hunt v. City of Markham, 219 F.3d 649, 654
(7th Cir. 2000). The evidence reflects that IMIP bonuses are given annually and are
based on specific, well-defined criteria. In Hunt, the court differentiated between a raise
and a discretionary bonus when holding that denials of raises could be adverse
employment actions because raises were "the norm for workers who perform
satisfactorily." Hunt, 219 F.3d at 654. Trost had received the IMIP bonus every year he
had been a supervisor or manager up until 2015. A reasonable fact finder could
determine that it was not entirely discretionary and thus that the denial of the bonus
based on Trost's race amounts to actionable discrimination. 1
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One also wonders how far the "discretionary bonus" rule goes. Can it be contended
seriously, for example, that an employer who overtly awarded bonuses based on race
(or national origin, gender, disability, or religion) would escape liability? See, e.g., Davis
v. N.Y. City Dep't of Educ., 804 F.3d 231, 236 (2d Cir. 2015) (concluding that an
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In support of his contention that he was denied the IMIP award based on his
race, Trost cites Barnes's race-related comments made during her investigational
meeting with him and again during the disciplinary meeting. On each of those
occasions, Trost has testified, Barnes said that it "was a problem" that Trost, a white
person, terminated Jones, an African-American person. Trost has also testified that
neither Picard, who was present at the first meeting, nor Goble, who was present at the
second, indicated any disagreement with Barnes's assessment. Though UPSF denies
that any such statements were made, the Court cannot appropriately resolve testimonial
conflicts in ruling on a motion for summary judgment; rather, the Court must view the
evidence in the light most favorable to Trost, the non-moving party. Were a jury to
believe Trost's account, as it would be entitled to do, it could reasonably conclude that
he was denied the IMIP award due to his race.
Even though Barnes was not a decisionmaker regarding Trost's IMIP award, if
one views the evidence in the favorable to Trost, Goble's and Picardi's lack of objection
to Barnes's alleged comments—which directly cited Trost's race—can be argued to
amount to adoptive admissions by management personnel who were decisionmakers.
In addition, Trost has testified that when he spoke with Goble after his retirement to ask
about the denial of the bonus, Goble referred to the disciplinary meeting with Barnes
and commented, "Well, then, you know what happened." This likewise could
reasonably be understood as agreement with Barnes's alleged statement at that
meeting.
employer's discretion to withhold or reduce a bonus does not entitle the employer "to
allocate the bonus on the basis of prohibited discrimination.").
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UPSF's argument that Trost has to meet an additional burden of showing
"background circumstances" showing a reason to discriminate against white persons is
a McDonnell Douglas-oriented requirement. It does not apply when (as here) there is
direct evidence of a race-based reason for the employer's action or, for that matter,
under the Ortiz approach.
Also supporting Trost's claim is the evidence he has cited that would permit a
reasonable jury to find that he did not actually violate UPSF policy when he terminated
Jones without prior approval from upper management. Despite the statement on the
72-hour letter form appearing to require such approval and the other evidence cited by
UPSF, Trost has offered evidence from which a reasonable jury could find that it did not
work that way in practice. Were a jury to find that UPSF denied Trost the IMIP bonus
based on a non-existent policy or one that existed in name only—as a reasonable jury
would be entitled to do—it could conclude that this is circumstantial evidence that,
together with the direct evidence, supports a finding of intentional discrimination.
Conclusion
For the reasons stated above, the Court denies UPSF's motion for summary
judgment [dkt. no. 23]. The case is set for a status hearing on September 4, 2018 at
9:30 a.m. to set a trial date and discuss the possibility of settlement.
Date: August 27, 2018
________________________________
MATTHEW F. KENNELLY
United States District Judge
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