Lennix v. FedEx Ground Package System, Inc. et al

Filing 27

ORDER granting 17 Motion for Summary Judgment. Signed by Judge Jay C. Zainey on 9/11/20. (jrc)

Case 2:19-cv-13671-JCZ-DPC Document 27 Filed 09/14/20 Page 1 of 9

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
OPAL JEAN LENNIX

CIVIL ACTION

VERSUS

NO. 19-13671

FEDEX GROUND PACKAGE SYSTEM, INC., ET AL.

SECTION “A” (2)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 17) filed by the
Defendant FedEx Ground Package System, Inc. (“FedEx”). The Plaintiff Opal Lennix opposes
the motion. (Rec. Doc. 22). The motion, set for submission on August 19, 2020, is before the
Court on the briefs without oral argument.
I.

BACKGROUND

FedEx hired Lennix on November 14, 2017 when she was 50 years old to be a parttime Package Handler at its St. Rose distribution facility. (Rec. Doc. 17-1, p. 8, Lennix’s
Deposition). The role of a FedEx Package Handler is to move packages that come into the
facility from conveyors into the correct area for delivery. Id. at 29-31. There are six different
“belts” where Package Handlers work, id. at 40, and they have two main functions, sorting
and stacking. Id. at 29-31. Sorting involves pushing the incoming packages onto one of two
sides of the belt, while stacking involves taking packages from the belt, scanning them, and
placing them in areas where they can be loaded onto trucks. Id. at 30-31. Depending upon
the volume of packages, some Package Handlers will only sort while others only stack. Id. at
70-71. At other times, all Package Handlers will be both sorting and stacking. Id.
In July 2018, Shanel Sede’ became Lennix’s new supervisor. Id. at 55. Lennix’s
troubles with Sede’ began one morning when Lennix was not feeling well, and she asked
another employee who was sorting if she could take her place for the day. Id. at 75-82. Sede’
observed this switch and told Lennix she could not trade her duties and to instead return to
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stacking. Id. at 76. Lennix and Sede’ then “went back and forth” about her workload compared
to other employees. Id. Lennix also asked if she could go home, but Sede’ told her no. Id.
After this exchange, Lennix decided to report this incident to Sede’s supervisor, Olivia Tate.
Id. at 76-78. However, before Lennix could reach Tate’s office, Tate met her in the hallway
and told her that: if she left, she would be forfeiting her job. Id. at 78. As a result, Lennix
returned to work. Id.
In the weeks that followed this incident, Lennix claims that Sede’ began harassing her
about her scanning abilities. Id. at 91. For instance, Sede’ instructed her to use a different
scanning method than the one she used under her former supervisor. Id. at 92-93. Because
of this disagreement over methodologies, Lennix claims that she was limited to only sorting
and Sede’ no longer allowed her to perform her stacking duties. Id. at 116-17.
Lennix’s difficulties with Sede’ then came to a head one busy morning when she was
working on the back portion of the belt. Lennix described this incident by saying:
I picked up a package to go back to the front with it because the packages were
all over. [Sede’] got in my way and started raging at me. I asked her to move,
because the package was pretty heavy and hefty, and she denied it. She
stayed there for at least five minutes. I kept asking her, excuse me, excuse me.
May I pass? And she wouldn't move . . . After I put the box down, yes. I put the
box down right on the side of her feet. I was like, excuse me. [Sede’ then] said,
you can go home.1
Conversely, Sede’ explained that her frustration with Lennix stemmed from her
instructing Lennix multiple times to “move to the front of the belt and work on the packages
in that area.” (Rec. Doc. 17-3, p. 1, Sede’s Declaration). However, Lennix claims that she
never knew Sede’ was talking to her. (Rec. Doc. 17-2, p. 96-97, Lennix’s Deposition).
After this confrontation, Lennix went to Tate to report the incident, but Tate responded
by saying that, “[w]ell, if that’s the way the belt manager wants to handle her belt, then that’s

1 (Rec. Doc. 17-2, p. 96, Lennix’s Deposition).
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the way she wants to handle it.” Id. Lennix then left work that day with the intention of reporting
the situation to the company’s HR director. Id. at 98-99. However, when she showed up the
next day, Tate informed her that she was terminated. Id. at 99-100.
Lennix subsequently filed a Complaint against FedEx, Olivia Tate, Shenell Sede’, and
Bryan Shreckengost. She made the following three claims: (1) age discrimination, (2)
disability discrimination, and (3) retaliation. After conducting discovery, FedEx filed a Motion
for Summary Judgment. (Rec. Doc. 17).
The Court will now address the merits of FedEx’s Motion.
II.

STANDARD OF REVIEW
A. Pro Se Litigant

Because Lennix is proceeding pro se, the Court must construe her pleadings liberally.
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995). However, “[t]he right of self-representation
does not exempt a party from compliance with relevant rules of procedural and substantive
law.” Birl v. Estelle, 660 F.2d 592, 593 (5th Cir.1981).
B. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[a] party may move for summary
judgment, identifying each claim or defense--or the part of each claim or defense--on which
summary judgment is sought.” “The court shall grant summary judgment 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). The moving party bears the initial burden of
informing the court of the basis for its motion by identifying portions of the record which
highlight the absence of genuine issues of material fact. Topalian v. Ehrmann, 954 F.2d 1125,
1132 (5th Cir. 1992); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact cannot
be . . . disputed must support the assertion by . . . citing to particular parts of materials in the
record[.]). A fact is immaterial “if proof of its existence or nonexistence would affect the
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outcome of the lawsuit under applicable law in the case.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute about a material fact is “genuine” if the evidence is such that
a reasonable fact finder could render a verdict for the nonmoving party. Id.
III.

DISCUSSION
A. Age Discrimination

To make a claim for discriminatory treatment based on age, plaintiffs must allege that:
(1) “they are within the protected class”; (2) “they are qualified for the position”; (3) “they
suffered an adverse employment decision”; and (4) “they were replaced by someone younger
or treated less favorably than similarly situated younger employees (i.e., suffered from
disparate treatment because of membership in the protected class).” Leal v. McHugh, 731
F.3d 405, 410-411 (5th Cir. 2013) (citing Smith v. City of Jackson, Miss., 351 F.3d 183, 196
(5th Cir.2003)); Maestas v. Apple, Inc., 546 F. App'x 422, 426 (5th Cir. 2013). “Because the
ADEA (the Age Discrimination in Employment Act) prohibits discrimination on the basis of
age and not class membership, the fact that a replacement is substantially younger than the
plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff
was replaced by someone outside the protected class.” O'Connor v. Consol. Coin Caterers
Corp., 517 U.S. 308, 313 (1996).
Lennix’s age discrimination claim stems from FedEx allowing a younger employee to
scan and stack, while she was relegated to only sorting. She supported this claim by stating:
“[w]e had a younger female there that it was like a discrimination, as far as age-wise, because,
the young lady, she wasn't able to pick up the packages, she wasn't able to do this, and she
was scanning [one] morning.” (Rec. Doc. 17-2, p. 75, Lennix’s Deposition). However, the
younger employee was allowed to scan instead of Lennix because: “[she] wasn't large
enough [to sort. S]he was too small, she wasn't strong enough to be picking up the packages,
and this was back and forth.” Id.
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Here, the Court finds that FedEx did not discriminate against Lennix by allowing a
younger co-worker to scan and stack instead of her. More specifically, Lennix failed to show
that she suffered from disparate treatment because of her membership in a protected class.2
Instead, Lennix was relegated to only sorting because Cede’ did not approve of her scanning
method. As Lennix stated in her deposition, “[a]s far as an incident about scanning, I was
down on the floor doing the scanning and [Cede’] might have harassed me at least 35, 40
minutes, telling me I wasn't scanning correctly . . . I got written up for not scanning correctly,
a 97 out of 100 . . . I wrote a disagreement note on the write-up . . . I did acknowledge the
write-up, and I disagreed on it.” (Rec. Doc. 17-2, p. 91, Lennix’s Deposition). Thus, the Court
finds that Lennix’s relegation to only sorting was because of her inability to scan properly, and
the Court concludes that this relegation was unrelated to Lennix’s age. Further, it is immaterial
that FedEx allowed a younger employee to stack and scan. Accordingly, the Court dismisses
Lennix’s age discrimination claim against FedEx.
B. Disability Discrimination
To state a claim under the American with Disabilities Act (“ADA”), a plaintiff must
establish that (1) she has a disability; (2) she is qualified for the position for which she seeks
employment; and (3) she was discriminated against because of her alleged disability. Jenkins
v. Cleco Power L.L.C., 487 F.3d 309 (5th Cir.2007). Once the plaintiff makes this prima facie
showing, the burden shifts back to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the action, and once the employer does so, the burden shifts back
to the plaintiff to establish by a preponderance of the evidence that the articulated reason

2 Although Lennix presents documentation in her Opposition that she was awarded unemployment
benefits, this award does not demonstrate or prove that she was discriminated against by the
Defendants. (Rec. Doc. 22, p. 5, Lennix’s Opposition).
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was merely a pretext for unlawful discrimination. McInnis v. Alamo Community College
District, 207 F.3d 276 (5th Cir.2000).
Here, Lennix claims that she was discriminated against because she was “hard of
hearing.” (Rec. Doc. 17-2, p. 168, Lennix’s Deposition). She explained this claim in her
deposition by saying:
Q: As far as your hearing, you said the only comments made about your
hearing were that some people did not believe that you were hard of hearing?
[Lennix’s Answer]: Hard of hearing, or they would talk to me or I might be on
another belt and they're screaming or something for me to come back, and I
don't hear them. So they made negative comments about that or complained
to the supervisor that I was ignoring them.3
Lennix also claimed in her deposition that the Defendants breached the ADA’s confidentiality
provisions:
My disability was -- if I was to get sick or anything, it's supposed to be a HIPAA
law that you're not supposed to be repeating anybody's medical health,
excuses, or medical documents or whatever. That was being done. That had
been done, as far as me not being there. Claiming that I can hear and I'm just
ignoring them. Falsification of deafness, put it like that.4
However, the Court finds that Lennix was neither discriminated against nor suffered
an adverse employment decision because of her alleged disability. As noted above, Lennix
was relegated to only sorting because of her inability to properly scan and stack. Further,
FedEx terminated her because of her disagreements with Sede’ over how the belt was
operated. Lastly, in regard to Lennix’s breach of ADA confidentiality claim, she never
presented this claim in her EEOC Charge of Discrimination. (Rec. Doc. 1-1, p. 9-11, Lennix’s
Charge of Discrimination). The Fifth Circuit has recognized that, if a claim or allegation was
not first presented to the EEOC, the plaintiff is barred from asserting it in a subsequent lawsuit.

3 (Rec. Doc. 17-2, p. 168-69, Lennix’s Deposition).
4

(Rec. Doc. 17-2, p. 117, Lennix’s Deposition). 
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See Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 472 (5th Cir. 2016); Pacheco v. Mineta,
448 F.3d 783, 788-89 (5th Cir. 2006). Thus, the Court dismisses Lennix’s disability
discrimination claim.
C. Retaliation
In order to state a retaliation claim, a plaintiff must allege “(1) that [she] engaged in
activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a
causal link existed between the protected activity and the adverse action.” Raggs v. Miss.
Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002).
Further, for retaliation claims, the Fifth Circuit has held that adverse employment
actions include “ultimate employment decisions,” such as hiring, firing, demoting, promoting,
granting leave, and compensation. See McCoy v. City of Shreveport, 492 F.3d 551, 560 (5th
Cir. 2007); Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007); Pegram v.
Honeywell, Inc., 361 F.3d 272, 282 (5th Cir. 2004). “[A]n employment action that ‘does not
affect job duties, compensation, or benefits' is not an adverse employment action.” Pegram,
361 F.3d at 282 (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th
Cir.2003)).
Lennix claims that the Defendants retaliated against her after she complained about
the younger co-worker. She described this claim in her deposition by saying:
[Lennix’s Answer]: We had several conversations, as far as the young lady
being on the belt with us, because you're working on the belt and you have
other coworkers that's working hard just as well and then you have someone
that's not doing the job, not performing the job, and that's a problem because
the workload is on you. So all I asked was to have her help us more. She
replied, Well, she's too small, she's too tiny, she can't be picking up this box
and picking up this box, and she can't do this and she can't do that. So I asked
her. I said, Well, we all got hired for the same thing here. Can you move her
somewhere else, you know, or either can I go and scan or do something?5
******

5 (Rec. Doc. 17-2, p. 79-80, Lennix’s Deposition). 
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Q: You had had a separate conversation with [Cede’] about the young lady not
doing enough work?
A: Yes. I wasn't the only one. This was something that was going on. This
young lady had been to several belts and had the same problem.6
******
Q: Did you ever tell [Cede’] that you thought you were being discriminated
against?
A: Yes.
Q. When did you tell her that?
A: I told her that when I said, She's been hired to do the same thing, so I feel
like I'm being discriminated against because we all were hired to do the same
job.7
******
A: After I asked a question about the young lady doing more, as far as the
ground side, I got moved to sorting totally. I couldn't even do the ground side
anymore. They kept the young lady down on the ground and I was doing the
sorting, and I asked why. They couldn't give me a reason why they kept me on
sorting. I said to myself, well, maybe because I made a complaint and they
didn't want me down there with her.8
Here, the Court concludes that Lennix never engaged in protected activity. To
demonstrate that an employee participated in a protected activity, the plaintiff must first
demonstrate that she filed a “complaint.”  Lasater v. Texas A & M Univ.-Commerce, 495 F.
App'x 458, 461 (5th Cir. 2012). In order for an employee's communication to constitute a
“complaint,” the “employer must have fair notice that an employee is making a complaint that
could subject the employer to a later claim of retaliation” and the “complaint must be
sufficiently clear and detailed for a reasonable employer to understand it, in light of both
content and context, as an assertion of rights protected by the [Fair Labor Standards Act] and
a call for their protection.” Starnes v. Wallace, 849 F.3d 627, 632 (5th Cir. 2017). “[N]ot all
‘abstract grumblings’ or vague expressions of discontent are actionable as complaints.”

6 (Rec. Doc. 17-2, p. 80, Lennix’s Deposition).

7

(Rec. Doc. 17-2, p. 115-16, Lennix’s Deposition).

8

(Rec. Doc. 17-2, p. 118, Lennix’s Deposition). 
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Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 626 (5th Cir. 2008). Here, Lennix’s
“complaints” were only about another employee not carrying her weight. When she
complained to FedEx, she never alleged age or disability discrimination. Thus, Lennix never
engaged in protected activity, and she cannot make a prima facia retaliation claim.
Accordingly, this claim is dismissed.
D. Motion to Dismiss the Individual Defendants
Lastly, FedEx seeks to dismiss Lennix's claims against the individual Defendants
Olivia Tate, Shenell Sede’, and Bryan Shreckengost for failing to serve them within 120 days
as provided in Rule 4(m) of the Federal Rules of Civil Procedure. Rule 4(m) provides in
pertinent part:
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against the defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
Here, Lennix never served these Defendants, and more than 90 days have passed
since the case’s removal. (Rec. Doc. 1, Notice of Removal). Further, Lennix stated in her
deposition that she only wanted to bring her claims against FedEx, and not against the
individual Defendants. (Rec. Doc. 17-2, p. 166-167, Lennix’s Deposition). Thus, the Court
dismisses Lennix’s claims against the Defendants Olivia Tate, Shenell Sede’, and Bryan
Shreckengost.
Accordingly;
IT IS ORDERED that the Motion for Summary Judgment (Rec. Doc. 17) filed by the
Defendant FedEx is GRANTED. The Plaintiff Opal Lennix’s Complaint is DISMISSED WITH
PREJUDICE.
September 11, 2020

_________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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