Kinley v. United Parcel Service et al
Filing
68
MEMORANDUM OPINION & ORDER: It is ordered that UPS's 42 MOTION for Summary Judgment is GRANTED. It is further ordered that the PTC and Jury Trial are CANCELED. Signed by Judge Jennifer B Coffman on 5/16/2012.(SCD)cc: COR,D,JC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 10-106-JBC
JOHN E. KINLEY,
V.
PLAINTIFF,
MEMORANDUM OPINION & ORDER
UNITED PARCEL SERVICE, ET AL.,
DEFENDANTS.
***********
This matter is before the court upon the motion for summary judgment by
the defendant, United Parcel Service, Inc., R.42. For the reasons stated below, the
court will grant the motion.
On May 6, 2009, John E. Kinley was terminated from his position as a fulltime courier at United Parcel Service Inc., which he had held since 1992, allegedly
for dishonesty. Kinley asserted claims against both UPS and Teamsters, including
alleged race discrimination under Title VII of the Civil Rights Act of 1964, as
amended, certified at 42 U.S.C. section 2000-e et seq.; Chapter 344 of the
Kentucky Civil Rights Act; and 42 U.S.C. § 1981. Kinley alleges discriminatory
discharge, disparate treatment, hostile work environment, and retaliation. UPS
moves for summary judgment as to all of these claims. The court has dismissed all
claims against Teamsters.
Discrimination and retaliation claims brought under § 1981 “are governed by
the same burden-shifting standards as the claims under Title VII,” and are analyzed
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under the same legal framework. Wade v. Knoxville Utils. Bd., 259 F.3d 452, 464
(6th Cir. 2001). The Kentucky Civil Rights Act “is similar to Title VII . . . and
should be interpreted consistently with federal law.” Ammerman v. Brd. of Educ. of
Nicholas Co., 30 S.W.3d 793, 797-98 (Ky. 2000). The court’s analysis of Kinley’s
claims under Title VII of the 1964 Civil Rights Act will thus apply to the claims
brought under 42 U.S.C. § 1981 and KRS Chapter 344.
First, summary judgment will be granted in favor of UPS on Kinley’s
discriminatory discharge claim because “[i]n order to establish employment
discrimination, [a plaintiff] must present direct evidence of discrimination or
introduce circumstantial evidence that would allow an inference of discriminatory
treatment.” Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 514 (6th Cir.
2003) (citations omitted). Kinley has presented neither. Kinley admits that he
cannot show direct evidence of discrimination, R.46, p.36, and the record is devoid
of any evidence showing “explicitly expressed” racial motivation for Kinley’s
discharge. Amini v. Oberlin College, 440 F.3d 350, 359 (6th Cir. 2006). Kinley
has also failed to present circumstantial evidence showing each of the required
elements for a prima facie case of Title VII racial discrimination: “1) [that] he was a
member of a protected class; 2) [that] he suffered an adverse employment action;
3) [that] he was qualified for the position; and 4) [that] he was replaced by
someone outside the protected class or that he was treated differently than
similarly situated non-protected employees. Newman v. Fed. Exp. Corp., 266 F.3d
401, 406 (6th Cir. 2001).
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UPS does not dispute the first three elements but does dispute the fourth –
whether Kinley was replaced by a non-protected employee or treated differently
than a similarly situated, non-protected employee. Even though Kinley’s position
was awarded to a Caucasian, non-protected employee, he was not replaced by
UPS because the replacement employee was chosen by operation of a collective
bargaining agreement. “Ordinarily, a replacement selected pursuant to a collective
bargaining agreement does not give rise to an inference of discrimination.”
MacDonald v. UPS, 403 Fed. Appx. 453, 459 (6th Cir. 2011). Kinley says that he
was replaced by a non-protected employee even though two African-American
employees could have bid on his position. The record, however, shows that
Kinley’s route was awarded pursuant to the collective bargaining agreement to
Shane Peck, one of only two employees, both Caucasian, who bid on the position.
Kinley even states that his discharge “was not for the purpose of replacing Kinley
with an unprotected employee.” R.46, p.37.
Kinley has also failed to show that he was treated differently than similarly
situated, non-protected employees. UPS contends that Kinley was fired for
dishonesty for committing the following acts: working 3.05 hours over-allowed
(i.e., working more time than UPS planned for the day) on May 5, 2009; alleging
on his timecard that he was on break when he actually picked up packages;
reporting 19 minutes of inactivity on his timecard; and working a second job at a
bank during UPS hours. Kinley disputes the contention that he was working at a
bank during UPS hours, but he admits that he committed the other three actions on
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May 5, 2009. The parties argue over whether UPS has admissible evidence that
shows Kinley working at the bank during UPS hours, whether an employee’s break
is considered UPS time, and whether Kinley worked at the bank after a September
2008 pronouncement by UPS that employees were not permitted to work second
jobs in UPS uniforms or trucks. Deferring to the plaintiff’s version of the story and
removing from the analysis the allegation that Kinley worked a second job during
UPS hours, Grubbs is still not similarly situated to Kinley because Kinley does not
allege that Grubbs had a period of inactivity on his timecard or that he was at least
3 hours over-allowed on his timecard.
Kinley compares himself to Dennis Grubbs, a Caucasian driver for UPS.
Kinley states that Grubbs conducted personal business while on his breaks and
traveled over one mile off trace (i.e., making deliveries out of sequence) in violation
of company policy but was not reprimanded for his actions; allegedly, Grubbs rode
his bike to his home, which was over two miles from the UPS center, in the
evenings during times designated as breaks. Kinley also alleges that Grubbs’s
timecard did not accurately reflect a break he took on May 6, 2006. Even taking
all of these assertions as true, Grubbs is not a similarly situated, non-protected
employee who was treated differently than Kinley.
The conduct of Grubbs is distinguishable from the conduct for which Kinley
was discharged. Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). The
“similarly situated” standard requires that the comparable and the plaintiff “must
have dealt with the same supervisor, have been subject to the same standards and
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have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the employer’s treatment of
them for it.” Id. Kinley admits that his timecard had 19 minutes of inactivity
written on it as well as 3.05 hours of over-allowed time when he was terminated;
this distinguishes his conduct from the Grubbs conduct, which does not include
either inactivity or over-allowed time. Even if Kinley’s allegations against Grubbs
are true – that Grubbs inaccurately reported breaks on his timecard and conducted
personal business during break time – Grubbs is not similarly situated to Kinley
because they did not engage in the same conduct.
Kinley has failed to produce sufficient evidence that the non-minority UPS
employee with whom he compares his treatment was “similarly situated . . . in all
relevant respects,” Ercegovich v. Goodyear Tire and Rubber Co., 154 F.3d 344,
352 (6th Cir. 1998); therefore, Kinley has not established a prima facie case of
racial discrimination. Without circumstantial or direct evidence of racial
discrimination, no genuine dispute as to any material fact remains as to the
discriminatory discharge claim, and summary judgment is appropriate.
Second, summary judgment will also be granted to UPS for Kinley’s
disparate treatment claim because Kinley has not demonstrated that UPS treated
him less favorably than others because of his race. See Dunlap v. TVA, 519 F.3d
626, 630 (6th Cir. 2008). To prove a case of unlawful employment discrimination
under the theory of disparate treatment, Kinley must first establish the four
elements of a prima facie case of racial discrimination: “1) [that] he was a member
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of a protected class; 2) [that] he suffered an adverse employment action; 3) [that]
he was qualified for the position; and 4) [that] he was replaced by someone outside
the protected class or that he was treated differently than similarly situated nonprotected employees. Newman, 266 F.3d at 406 (6th Cir. 2001).1 The first and
third elements are not disputed, but Kinley has failed to produce evidence showing
both that he suffered an adverse employment action besides the discharge and that
a similarly situated, non-protected employee was treated differently for the same
conduct committed by Kinley.
The five-year statute of limitations from KRS Chapter 344, the longest
statute of limitations relevant to this action, time-bars any of the acts cited by
Kinley that occurred before March 10, 2005, because the complaint was filed on
March 10, 2010; the statute begins to run on the dates of the alleged acts.
Ammerman v. Brd. of Educ. of Nicholas County, 30 S.W.3d 793, 798 (Ky. 2000).
Particularly, the incident from March 29, 2004, when Kinley was “written up” for
involvement in an “avoidable” automobile accident, is time-barred. Even though
other avoidable-accident write-ups may have occurred after March 10, 2005,
“discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges.” AMTRAK v. Morgan, 536 U.S. 101,
122 (2002).
Kinley alleges disparate treatment by UPS in five ways, aside from his
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Some courts use a two-prong analysis for determining whether a plaintiff has established a prima
facie case of disparate treatment, see Hollins v. Atlantic Co., 188 F.3d 652 (6th Cir. 1999). But
following the example of Clay v. UPS, 501 F.3d 695 (6th Cir. 2007), the court will apply the fourprong construct used by the parties to analyze whether Kinley has established a prima facie case of
racial discrimination for his disparate treatment claim.
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discharge. First, he claims that he was monitored more closely than employees
outside his protected class. Second, he alleges that a supervisor, Shari Greenleaf,
initiated an altercation with him in 2007. Third, he states that he was disciplined
more than other employees during the period of 1994 until his discharge. Fourth,
he claims that his truck was loaded for delivery differently than other employees’
trucks. Fifth, he alleges that he was disciplined for “avoidable accidents” more
frequently than unprotected employees. Despite these allegations, Kinley provides
no examples of adverse employment actions, besides the discharge, and no
similarly situated, non-protected employees who were treated differently for the
same conduct committed by Kinley.
Kinley compares himself to two employees for the purpose of his disparate
treatment claim. The first comparable is Scott Sagracy, a Caucasion, nonprotected employee. Kinley states that UPS conducted OJS (i.e., on-job
supervision) rides with both Kinley and Sagracy to review the employees’ overallowed hours; despite both employees finishing their OJS rides an hour and a half
over the allowed time, only Sagracy allegedly received performance documentation
and a time study conducted on his route from UPS after his ride. Additionally,
Kinley’s OJS ride was 2 days longer than Sagracy’s ride. Even though Sagracy
could be considered a similarly situated, non-protected employee who was treated
differently than Kinley for the same or similar conduct, Kinley nonetheless has
failed to establish a prima facie case of racial discrimination in regard to this alleged
disparate treatment. None of these actions by UPS constitutes an adverse
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employment action.
An adverse employment action is a “materially adverse change in the terms
or conditions of . . . employment because of [the] employer’s conduct.” Policastro
v. Northwest Airlines, Inc., 297 F.3d 535, 539 (6th Cir. 2002)(internal citations
omitted). Examples include a “termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices that
might be unique to a particular situation." Ford v. GMC, 305 F.3d 545, 553 (6th
Cir. 2002) (citation omitted). A “mere inconvenience” or “alteration of job
responsibilities” does not amount to a material adverse change. Kocsis v. MultiCare Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996)(citation omitted). Based upon
this standard, the alleged disparate treatment – an additional two days of the OJS
ride, failure to provide documentation of the OJS ride, and failure to conduct a time
study on Kinley’s route – does not constitute a material adverse change in the
terms or conditions of employment; Kinley experienced no material loss of benefits,
significantly diminished responsibilities from the conduct, or the equivalent of such
actions.
Dennis Grubbs is the second comparable. Kinley alleges that Grubbs was
permitted by management to go home on his break, over a mile away from the UPS
center, to conduct personal business in the company vehicle while in uniform but
was never punished for these actions. Grubbs also allegedly inaccurately posted
breaks on his timecard without repercussion. Kinley, on the other hand, was
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ultimately discharged for alleged similar acts. As analyzed under the theory of
discriminatory discharge, Kinley has failed to establish a prima facie case of racial
discrimination for these alleged acts leading up to the discharge because Grubbs is
not a similarly situated, non-protected employee who was treated differently for the
same conduct. See supra pp.4-6.
Kinley provides other examples of alleged disparate treatment by UPS that
relate to the discharge. For instance, several UPS drivers admitted to taking time
during their work days to re-adjust the loads in their trucks when the trucks were
not loaded properly. Kinley purportedly explained to UPS that the 19 minutes of
inactivity reported on his timecard was time spent re-loading his truck, but this
information was never provided to the panel which reviewed his grievance. Kinley
also was “written up” for work violations but not informed about them until after
his discharge, and Kinley was reprimanded for breaking trace (i.e., delivering out of
sequence) to deliver a heavy package at the beginning of his route. As these
alleged acts by UPS relate to Kinley’s discharge, they do not establish a prima facie
case of racial discrimination for his disparate treatment claim; the court has found
that Kinley has not established a prima facie case of racial discrimination for UPS’s
termination of Kinley because he has provided no similarly situated, non-protected
employee who was treated differently. See supra pp.4-6.
Other allegations of disparate treatment are that Kinley received more
warnings for failure to follow instructions than other employees, that Kinley was
monitored more closely than other employees, and that Kinley was the subject of
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disparate treatment by a UPS supervisor Sharri Greenleaf when she allegedly
grabbed his shirt during a verbal argument in 2007. None of these incidents
constitute adverse employment actions under the standard set forth above because
they are not materially adverse changes to the terms or conditions of Kinley’s
employment; additionally, Kinley has offered no specific comparables — similarly
situated, non-protected employees — by which to measure UPS’s actions.
Third, summary judgment is also appropriate as to the hostile work
environment and retaliatory discharge claims because Kinley has presented no
evidence in support of these claims. Kinley failed to respond to UPS’s arguments
that Kinley had not established a prima facie case for either of the claims. By failing
to respond specifically to those claims, Kinley has conceded UPS’s arguments or
abandoned his claims of hostile work environment and retaliatory discharge;
summary judgment is thus appropriate. Knittel v. First Fin. Mortgage Corp., 2009
U.S. Dist. LEXIS 55363, at *7-8 (E.D. Ky. June 17, 2009)(citations omitted).
Accordingly,
IT IS ORDERED that UPS’s motion for summary judgment, R.42, is
GRANTED.
IT IS FURTHER ORDERED that the pretrial conference and the jury trial are
CANCELED.
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Signed on May 16, 2012
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