Gorecke v. United Parcel Service, Inc.

Filing 36

-CLERK TO FOLLOW UP- DECISION AND ORDER granting 24 Motion for Summary Judgment and dismissing the complaint in its entirety with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/1/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DANIEL S. GORECKE,
DECISION AND ORDER
No. 11-CV-6591(MAT)

Plaintiff,
-vsUNITED PARCEL SERVICE, INC.,
Defendant.
________________________________
INTRODUCTION
Plaintiff

Daniel

Gorecke

(“Gorecke”

or

“Plaintiff”),

represented by counsel, brings this action pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), (codified at 42 U.S.C.
§ 2000(e), et seq.), 42 U.S.C. § 1981, and the New York State Human
Rights Law (“NYSHRL”) (N.Y. Exec. Law § 209, et seq.) alleging
reverse discrimination leading to his termination by his former
employer, United Parcel Service, Inc. (“UPS”).
Defendant now moves for summary judgment, pursuant to Rule 56
of the Federal Rules of Civil Procedure (“Rule 56”), seeking
dismissal of Plaintiff’s complaint in its entirety.
opposes the motion.

Plaintiff

For the reasons set forth below, Defendant’s

motion is granted and Plaintiff’s complaint is dismissed with
prejudice.

BACKGROUND
The

following

facts

are

taken

from

the

entire

record,

including the parties’ submissions pursuant to Local Rule 56(a),
and the Court’s review of the entire record.

Dkt. Nos. 24, 27, 29,

30.
Plaintiff’s Employment History at UPS
Defendant UPS hired Plaintiff in November 1996 as a part-time
Loader/Unloader.

In March 2005, Plaintiff became a full-time

Package Driver at the Henrietta, New York UPS facility (“the
Henrietta facility”) and remained employed in that position until
his discharge on January 23, 2011.

From 1998 through 2005,

Plaintiff was disciplined on several occasions by UPS for a number
of verbal and physical altercations with other UPS employees.
example,

in

June

1998,

Plaintiff

was

involved

in

a

For

verbal

confrontation with his then-supervisor, Mike Johnson (“Johnson”),
which resulted in Johnson submitting a report to his supervisor
summarizing the incident.
up”

and

disciplined

(“Wagenhauser”),

after

In January 2000, Plaintiff was “written

by

then-supervisor,

Plaintiff

confrontation with a co-worker.

was

Doug

involved

Wagenhauser
in

a

verbal

In April 2005, Plaintiff was

issued a warning after it was determined that he had harassed coworker Falon Richards (“Richards”).

UPS Management also met with

Plaintiff to remind him of the company’s Professional Conduct and
Anti-Harassment and Workplace Violence Prevention Policies, and

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explained

that future

action of

that

nature

would

result

in

discipline, up to and including discharge.
UPS’s Relevant Policies, Training, and Complaint Mechanisms
UPS

maintains

a

Code

of

Business

Conduct

(“CBC”)

and

a

Professional Conduct and Anti-Harassment Policy, both of which
prohibit unfair treatment on the basis of race.

Plaintiff admits

that he was aware of and understood the CBC, including its nondiscrimination policy.

Additionally, UPS maintains policies that

prohibit workplace violence, which include the Crisis Management
and Workplace Violence Prevention Policy (“CM & WVPP”), and a
stand-alone Workplace Violence Prevention Policy (“WVPP”).
the

CM

&

WVPP

and

the

stand-alone

WVPP

are

Both

distributed

to

employees, and explain that “UPS had adopted a zero tolerance
workplace violence policy.”

The CM & WVPP and stand-alone WVPP

specifically prohibit “assaults, fighting, threatening comments,
intimidation, and . . . destruction of . . . property” and instruct
employees to report prohibited comments or behavior either directly
to supervisors or by use of a “Help Line” established by UPS.
UPS’s anti-violence policies do not contain an exception for selfdefense.
Plaintiff testified that he was aware of the zero tolerance
policy covering workplace violence, and that as a UPS employee, he
had an obligation to report threats of violence to his superior,
the

Human

Resources

manager,

or

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by

calling

the

Help

Line.

Moreover, employees who are Union members can use the grievance
procedure outlined in the Upstate/West New York Supplement to the
NMA to raise a work-related concerns or complaints through the
Union representative.
The Events Leading up to Plaintiff’s Termination
UPS

preloaders

Nick

Fedele

(“Fedele”),

Josh

Everett

(“Everett”), Matt Asip (“Asip”), Tom Coccolova (“Coccolova”), and
Brett Godshall (“Godshall”), all of whom are white males, worked at
the Henrietta facility at all times relevant to the complaint.
Beginning in 2007, and continuing through Plaintiff’s termination,
these co-employees allegedly made disparaging comments to Plaintiff
regarding Plaintiff’s favorite football team, the San Francisco
49ers

and

Plaintiff,

also
on

allegedly
January

bullied

11,

threatened to “kick his ass.”

2011,

Plaintiff.
Asip

shoved

According
Plaintiff

to
and

On January 21, 2011, Asip reported

to Preload Manager Michael Greene (“Greene”) that he had just been
strangled by Plaintiff in response to a comment he made about the
San Francisco 49ers.
provoke Plaintiff.

Asip told Greene that he did not physically
Greene immediately investigated the matter by

questioning Asip, Plaintiff and Will Stein (“Stein”), an employee
who had witnessed and broke up the altercation, and who also
informed the Union Steward of the incident. All of the individuals
involved in the investigation are white.

When Plaintiff met with

Greene and the Union Steward to discuss the incident, Plaintiff

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admitted to putting his hands on Asip.

Based on his investigation

of the incident Green concluded that Plaintiff had violated UPS’s
Workplace Violence Prevention Policy, and terminated Plaintiff’s
employment.
Plaintiff’s

Union

grieved

his

discharge

before

the

Upstate/West New York Discharge/Suspension Panel (“the Panel”).
The Panel consists of three UPS members, three Union members, and
a neutral arbitrator. The neutral arbitrator is a third-party, not
employed by UPS.

Plaintiff, who was represented by the Union at

his hearing before the Panel, signed a document acknowledging that
he had sufficient opportunity to present all the facts and evidence
at the Panel hearing and that his Union properly represented him at
the hearing.

Following the completion of the hearing, Plaintiff’s

termination was upheld.
Other UPS Employees also Terminated for Physical Violence at Work
Both before and after Plaintiff’s termination, various UPS
employees were also terminated for engaging in physical violence.
UPS Package Drivers Troy Chapman (“Chapman”) and David Johnson,
both

of

whom

are

African-American,

were

terminated

Henrietta facility in 2008 for violating the WVPP.

from

the

Chapman and

David Johnson’s Union grieved the respective discharges and the
grievances went to arbitration before the Panel.

As a result of

the arbitration, Chapman and David Johnson were both reinstated by
the Panel.

David Johnson was again terminated by UPS in 2010 for

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violating the Workplace Violence Prevention Policy, and again
grieved his discharge.
Johnson’s

discharge.

This time, however, the Panel upheld David
Another

employee,

Jennifer

Privitera

(“Privitera”), a white female Package Driver in the Henrietta
facility, was also terminated in February 2011 for violating the
Professional Conduct and Anti-Harassment Policy. Her discharge was
reduced to a time-served suspension.
DISCUSSION
I.

Defendant’s Motion for Summary Judgment
Pursuant to Rule 56, a court shall grant a motion for summary

judgment if the moving party demonstrates “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See Fed.R.Civ.P. 56(a).

A plaintiff

can defeat a motion for summary judgment by “com[ing] forward with
evidence to allow a reasonable jury to find in his favor” on each
of the elements of his prima facie case.
Inc., 270 F.3d 94, 101 (2d Cir. 2001);

See Lizardo v. Denny’s,
Celotex Corp. v. Catrett,

477 U.S. 317, 325-27 (1986). The court must draw all factual
inferences, and view the factual assertions in materials such as
affidavits, exhibits, and depositions in the light most favorable
to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986);

Celotex Corp., 477 U.S. at 322.

However, a

nonmovant benefits from such factual inferences “only if there is

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a ‘genuine’ dispute as to those facts.”

See Scott v. Harris, 550

U.S. 372 (2007).
II.

Plaintiff has not Established a Prima Facie Case of
Discrimination under Title VII, the NYSHRL, and/or Section
1981
Claims of employment discrimination brought under Title VII

are analyzed under the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Sanderson

Plumbing

Prods.,

530

U.S.

133,

142-43

Reeves v.
(2000).

Plaintiff’s claims under Title VII, the NYSHRL and Section 1981 are
all analyzed under the same burden-shifting standards. See Schiano
v. Quality Payroll Systems, Inc., 445 F.3d 597, 609 (2d Cir. 2006);
Choudhury v. Polytechnic Institute of New York, 735 F.2d 38, 44
(2d Cir. 1984).
To establish a prima facie case of employment discrimination,
a plaintiff must show (1) that he belonged to a protected class;
(2) that he was qualified for the position he held; (3) that he
suffered an adverse employment action; and (4) that the adverse
employment action occurred under circumstances giving rise to an
inference of discrimination.

Shumway v. United Parcel Service,

Inc., 118 F.3d 60, 63 (2d Cir. 1997).

If the plaintiff succeeds in

stating a prima facie case, the burden of production shifts to the
employer, who must offer a legitimate, non-discriminatory reason
for the employment action.

Id. (citation omitted).

Specifically,

the employer “‘must clearly set forth, through the introduction of

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admissible evidence,’ reasons for its actions which, if believed by
the

trier

of

discrimination

fact,
was

would

not

the

support
cause

a

of

finding
the

that

unlawful

employment

action.”

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting
Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-55,
255 n.8 (1981)).
“If the employer successfully articulates such a reason, the
plaintiff has the burden of proving that the proffered reason is
merely a pretext for discrimination.” Id. (citation omitted); see
also Burdine, 450 U.S. at 252-53. “Once the employer has proffered
its nondiscriminatory reason, the employer will be entitled to
summary judgment . . . unless the plaintiff can point to evidence
that reasonably supports a finding of prohibited discrimination.”
James v. New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000)
(citing,

inter

alia,

St.

Mary’s,

509

U.S.

at

510-11).

The

“ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.”

Burdine, 450 U.S. at 253;

see also

Bickerstaff v. Vassar Coll., 196 F.3d 435, 446 (2d Cir. 1999).
In this case, the parties do not dispute for purposes of this
motion, that Gorecke was qualified for his position and that he
suffered an adverse employment action when he was terminated, but
disagree as to whether he is a member of a protected class, and
whether his termination occurred under circumstances giving rise to

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an inference of discrimination.

Dkt. Nos. 24-1 at 12-14, 29 at 7-

11, 30 at 2.
A.

Membership in a Protected Class

In the instant case, Plaintiff is a white employee who claims
that he was subjected to “reverse-discrimination” by his employer
UPS.

Courts have struggled in attempting to apply the McDonnell

Douglas burden-shifting framework to Title VII suits by white
plaintiffs,

and

no

universally

accepted

appropriate standard has been established.

statement

of

the

The confusion arises

from the wording of the first prong of the prima facie test because
a white plaintiff cannot establish membership in a “protected
class” in the same way a plaintiff belonging to a minority group
that has been historically discriminated against can. In an effort
to analyze reverse discrimination cases under the established prima
facie case standards, some courts require white plaintiffs to
establish “background circumstances” supporting the suspicion that
the defendant is that unusual employer who discriminates against
the majority, see, e.g., Parker v. Baltimore & O.R.R. Co., 209 U.S.
App. D.C. 215, 652 F.2d 1012, 1017 (D.C. Cir. 1981), instead of
proving membership in a historically protected class as required to
state a prima facie case.

Other courts, however, have concluded

that substituting “background circumstances” for the first prong of
stating a prima facie case does, in fact, impermissibly raise the
bar for pleading a cause of action, and have rejected the Parker

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analysis for that reason.

See Ulrich v. Exxon Co., 824 F. Supp.

677,

1993)

683-4

(S.D.

Tex.

(describing

the

“background

circumstances” test as imposing a “heightened burden” and citing
cases that have criticized it); see
Robertson,

Inc.,

20

F.

Supp.

2d

also Cully v. Milliman &
636,

641

(S.D.N.Y.

1998)

(describing Parker as requiring a “higher prima facie burden for
reverse discrimination plaintiffs.”).
The Second Circuit has not taken a position on this issue, and
the district courts in this Circuit have split on it.

Cf., e.g.,

Olenick v. New York Telephone, 881 F. Supp. 113, 114 (S.D.N.Y.
1995)

(adopting

“background

circumstances”

test);

Umansky

v.

Masterpiece Int’l Ltd., 1998 U.S. Dist. LEXIS 11775, 1998 WL 433779
(S.D.N.Y. 1998) (following Olenick); Cunliffe v. Sikorsky Aircraft
Corp., 9 F. Supp. 2d 125 (D. Conn. 1998) (rejecting Olenick);
Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp. 2d 249,
260-262 (E.D.N.Y. 1999) (rejecting “background circumstances” test,
and instead assessing whether or not an inference can be drawn from
the

established

facts

that

the

employer

treated

a

Caucasian

plaintiff less favorably because of his race); see also Seils v.
Rochester City Sch. Dist., 192 F. Supp.2d 100 (W.D.N.Y. 2002))
(finding

“background

circumstances”

analysis

persuasive,

but

declining to address issue since plaintiffs unable to establish
fourth prong of prima facie inquiry).

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In this case, however, the Court need not decide whether
Plaintiff has met the first prong of the prima facie inquiry,
because regardless of the standard applied, Plaintiff has failed to
establish that his termination occurred under circumstances giving
rise to an inference of discrimination, and therefore, has failed
to state a claim of discrimination.
B.

Inference of Discrimination

A plaintiff establishes an inference of discrimination by
demonstrating that similarly situated persons who do not belong to
the plaintiff’s protected class, were treated more favorably than
the plaintiff in the workplace.

Abdu-Brisson v. Delta Air Lines,

Inc., 239 F.3d 456, 467 (2d Cir. 2001).

In this case, Plaintiff

attempts to support his argument that he was treated less favorably
than similarly situated non-white employees demonstrating that two
similarly situated African-American employees, David Johnson and
Chapman, were treated more favorably than he was despite engaging
in equivalent behavior. Specifically, Gorecke claims that although
he was fired for engaging in workplace violence, David Johnson and
Chapman, remained employed by UPS despite themselves engaging in
physical altercations in the workplace.
Plaintiff, however, he has failed to introduce any admissible
evidence to support this contention.

For example, although he

claims that the evidence reveals that Chapman and David Johnson
were treated differently, the undisputed evidence in the record

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shows that David Johnson and Chapman were, in fact, terminated for
violating UPS’s WVPP; that David Johnson and Chapman grieved their
respective discharges, and that the arbitration Panel, not UPS,
reinstated both employees.
at Ex. E;

See Dkt. No. 9 at 2-3, 9;

Greene Dep. at 39, 41, 42, 44.

Carr Decl.

Moreover, David Johnson

was ultimately fired in 2010 for engaging in workplace violence,
and upon his second termination, the Panel upheld the termination
decision. In short, UPS’s conduct with respect to Plaintiff, David
Johnson, and Chapman was entirely consistent with Plaintiff’s
treatment: regardless of their race, after each employee engaged in
physical violence in the workplace, each employee was fired for
having

engaged

in

workplace

violence.

That

an

independent

grievance board, on two out of three occasions, reinstated AfricanAmerican employees does not alter the fact the UPS similarly
disciplined all employees who engaged in workplace violence.

To

wit, the evidence in the record demonstrates that whether an
employee was black or white, if that employee engaged in workplace
violence, the employee was fired.
Because plaintiff has failed to establish that he was
treated less favorably by UPS than similarly situated minority
employees, plaintiff has failed to establish that he was fired
under circumstances giving rise to an inference of discrimination.

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III. Defendant Has Offered a Legitimate, Non-Discriminatory Reason
for Terminating Plaintiff’s Employment
Even if Plaintiff could present evidence supporting a prima
facie case of reverse race-based discrimination, UPS has proffered
a legitimate, non-discriminatory reason for terminating Plaintiff’s
employment.

Specifically, UPS has asserted that Plaintiff was

discharged because he violated the company’s policies prohibiting
workplace violence.

Dkt. No. 24-1 at 14.

Such an explanation

states a legitimate, non discriminatory reason for terminating
plaintiff’s employment. See Dorcely v. Wyandanch Union Free School
Dist., 665 F.Supp.2d 178, 199 (E.D.N.Y. 2009) (failure to follow
employer’s procedures and policies and inappropriate work place
behavior

constitute

legitimate

nondiscriminatory

reasons

for

terminating employment).

IV. Plaintiff has Failed to Rebut Defendant’s Legitimate,
Non-Discriminatory Reason
Plaintiff

disputes the

validity

of

Defendant’s

proffered

reason for his termination by asserting that UPS treated similarly
situated African-American
employees.

employees

more favorably

than

white

As stated above, however, I find that plaintiff has

failed to present any admissible evidence establishing this claim.
Rather, the evidence in the record shows that UPS engaged in
uniform application of its WVPP to all its employees by discharging
similarly-situated

African-American
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employees

when

they

also

engaged in physical violence in the workplace.

Plaintiff has not

come forward with any evidence that undermines UPS’s legitimate
business reason for his termination.

Indeed, Plaintiff has come

forward with nothing more than unsupported, conclusory allegations
of race-related reverse discrimination and therefore has failed to
establish a genuine issue of material fact to preclude granting of
a

motion

for

discrimination.

summary

judgment

on

his

claim

of

reverse

Anderson, 477 U.S. at 249.

CONCLUSION
For the reasons set forth herein, Defendant’s Motion for
Summary Judgment is granted. Plaintiff’s Complaint is dismissed in
its entirety with prejudice.
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

April 1, 2014
Rochester, New York

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