Evans v. United Parcel Service, Inc.

Filing 45

OPINION AND ORDER granting in part and denying in part 24 Motion for Summary Judgment. The Court GRANTS Plaintiff's age discrimination claim and DENIES Plaintiff's FMLA retaliation claim. The Court further sets this matter for a final pretrial conference on 9/27/2011 at 2:00 PM and a four-day jury trial to commence 10/11/2011 on an on-deck basis. Signed by Judge S Arthur Spiegel on 7/28/2011. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ARTHUR NEIL EVANS,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.

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NO. 1:09-CV-00791

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for
Summary Judgment (doc. 24), Plaintiff’s Response in Opposition
(doc. 27), and Defendant’s Reply (doc. 43).
hearing on this matter on May 17, 2011.

The Court held a

For the reasons indicated

herein, the Court GRANTS IN PART AND DENIES IN PART Defendant’s
motion.
I.

Background
Plaintiff Arthur Neil Evans, a “feeder driver”1 for

Defendant

United

retaliation

and

Parcel
age

Service,

Inc.,

discrimination

(“UPS”),

claims,

after

brings
losing

FMLA
his

employment with Defendant after more than twenty-five years, at the

1

A “feeder driver” in Defendant’s company drives tractor
trailers full of parcels from one UPS location to another. A
“package driver” drives smaller trucks to deliver packages to
their destinations. The Court sees no real distinction between
the two sorts of drivers, who all ensure that packages make their
way in timely fashion to their destinations, and who all are
subject to the same rules, and in many cases supervisors.

age of 46.2

Defendant claims it discharged Plaintiff after

Plaintiff damaged a truck, tried to get it repaired without
reporting his accident contrary to Collective Bargaining Agreement
(“CBA”) policy, and stole company time by not clocking out during
the truck repair (doc. 24).

Plaintiff contends his accident took

place in a construction zone and he did not think there was a safe
place to stop, so he just took the truck directly to the repair
garage operated by Defendant (doc. 27).

Plaintiff claims he in no

way attempted to hide the fact that he had an accident, and that he
thought he merely had a flat tire, which would only take twenty
minutes to repair (Id.).

Plaintiff claims other UPS truck drivers

have had accidents that they did not report and they were merely
suspended or disciplined short of discharge (Id.).

Plaintiff

claims therefore that Defendant’s reason for discharging him is
merely pretext (Id.).3

2

Plaintiff has abandoned his state law age discrimination
and ERISA claims.
3

Plaintiff further develops his argument that Defendant’s
reasons for his termination are pretext. Defendant’s first letter
to Plaintiff claimed he was terminated for alleged dishonesty,
gross negligence resulting in a serious accident, and failure to
report and accident (doc. 27).
Under the CBA, however, “gross
negligence” constitutes damage in excess of $4,400, and in
Plaintiff’s case, he did not cause that much damage.
As such,
Defendant issued a second letter accusing him of dishonesty and
failure to report the accident, but leaving out “gross negligence.”
Plaintiff contends Defendant’s claim that he stole time has no
basis in fact, and that a reasonable jury could accept Plaintiff’s
testimony that he thought it would only take 20 minutes to repair
the tire and rim. Moreover, Plaintiff contends, a reasonable jury
could conclude that he did not hide his accident.
Plaintiff
-2-

As an initial matter, Defendant claims that all of
Plaintiff’s claims are preempted by Section 301 of the Labor
Management Relations Act (“LMRA”), because in its view his claims
are inextricably intertwined with the terms of the collective
bargaining agreement (doc. 24).

Plaintiff claims his federal ADEA

and FMLA claims are not preempted, because Section 301 only applies
to the resolution of state law claims (doc. 27, citing Smolarek v.
Chrysler Corp., 858 F.2d 1165, 1167-1168 (6th Cir. 1988)).
Defendant further claims there is no evidence to support
Plaintiff’s age discrimination claim (doc. 24).

Defendant focuses

its argument on the theory that Plaintiff cannot show he was
treated

differently

employees (Id.).

than

any

similarly-situated

non-protected

As for Plaintiff’s FMLA retaliation claim,

Defendant contends Plaintiff cannot establish a causal connection
between his FMLA leave and the decision to terminate his employment
(doc. 24).
anything

Defendant contends he has no evidence anyone ever said

negative

about

the

leave

differently upon his return (Id.).

he

took,

or

treated

him

In fact, Defendant argues,

Plaintiff was paid during his leave, which goes above and beyond
the law’s requirement (Id.).

Defendant contends there is no

evidence that the decision-makers who terminated him, Joe Mullikin

contends he spoke to numerous UPS employees about the accident, and
knew that the mechanic, Darnell McCarthur, had reported it to his
supervisor. Finally, Plaintiff contends that Defendant’s varying
stories as to how he allegedly tried to hide the accident are
evidence of pretext.
-3-

or Ben Sublett, even were aware of Plaintiff’s FMLA leave (Id.)
Plaintiff

responds

that

deposition

testimony

shows

Sublett knew of his absence, and that his termination came about
six weeks after his return from FMLA-protected leave (doc. 27). In
Plaintiff’s view, such temporal proximity shows evidence of a
causal connection (Id.). In addition, Plaintiff indicates there is
evidence in the record that he reported to his doctor that “he’s
getting hassled from work,” when the doctor determined he was not
able to do over-the-road driving (Id.).
The parties fully briefed their respective positions.
The Court, having the benefit of oral argument, can now render its
decision in this matter.
II.

Applicable Legal Standard
Although a grant of summary judgment is not a substitute

for trial, it is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”

Fed. R. Civ. P. 56; see also, e.g.,

Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962);
LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.
1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and
Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per
curiam).

In reviewing the instant motion, “this Court must

-4-

determine whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.”

Patton v. Bearden, 8

F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-252 (1986) (internal quotation marks
omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled.

First, “a party

seeking summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact [.]”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees,
980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479 (6th Cir. 1989).

The movant may do so by

merely identifying that the non-moving party lacks evidence to
support an essential element of its case. See Barnhart v. Pickrel,
Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.
1993).
Faced

with

such

a

motion,

the

non-movant,

after

completion of sufficient discovery, must submit evidence in support
of any material element of a claim or defense at issue in the

-5-

motion on which it would bear the burden of proof at trial, even if
the moving party has not submitted evidence to negate the existence
of that material fact.

See Celotex, 477 U.S. at 317; Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986).

As the “requirement [of

the Rule] is that there be no genuine issue of material fact,” an
“alleged factual dispute between the parties” as to some ancillary
matter “will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 247-248 (emphasis added);
see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879
F.2d

1304,

1310

(6th

Cir.

1989).

Furthermore,

“[t]he

mere

existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781,
784 (6th Cir. 1994).

Accordingly, the non-movant must present

“significant probative evidence” demonstrating that “there is [more
than] some metaphysical doubt as to the material facts” to survive
summary judgment and proceed to trial on the merits.

Moore v.

Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see
also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of its claims or defenses, “the
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts

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upon which the non-moving party relies.” Guarino, 980 F.2d at 405,
quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
Cir. 1989) (internal quotation marks omitted).

In contrast, mere

conclusory allegations are patently insufficient to defeat a motion
for summary judgment.

See McDonald v. Union Camp Corp., 898 F.2d

1155, 1162 (6th Cir. 1990).
evidence,

facts,

and

The Court must view all submitted

reasonable

inferences

in

a

light

most

favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc.,
369 U.S. 654 (1962). Furthermore, the district court may not weigh
evidence or assess the credibility of witnesses in deciding the
motion.

See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating

that no material facts are in dispute. See Matsushita, 475 U.S. at
587.

The fact that the non-moving party fails to respond to the

motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate.

See

Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455
(6th Cir. 1991).
III.

Analysis
A.

Age Discrimination

As an initial matter the Court notes that Plaintiff
essentially conceded at the May 17, 2011 hearing that he does not
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have evidence of age discrimination, as “it is true that the
comparators who we have the information for are not significantly
younger.”

The Court appreciates the candor of counsel.

Although

counsel requests an inference in Plaintiff’s favor based on a
statement in the record that there could be further personnel files
in the record, the Court does not find it appropriate to grant such
an inference based on speculation.

Counsel for Defendant has

expressed that she took every action so as to ensure the production
of complete discovery, regardless of previous discovery disputes
before the Magistrate Judge relating to differences in “feeder”
drivers and “package” drivers.

The Court takes Counsel for

Defendant’s representation in good faith, and concludes that there
is a lack of record evidence that Plaintiff was treated differently
that any one significantly younger, such that his circumstantial
case for age discrimination merits dismissal.
B.

Preemption

Next, Defendant contends that Plaintiff’s claims are
preempted by Section 301 of the Labor Management Relations Act
(docs. 24, 43).

Plaintiff responds that only state claims are

subject to preemption, based on Congress’s intent to create uniform
federal standards as to labor law, unaffected by disparities in
various state laws (doc. 27).

Having reviewed the parties’ cited

authorities, the Court concludes that courts have found some sorts
of federal claims can be preempted, particularly where the claims

-8-

require an interpretation of the CBA.

Martin v. Lake County Sewer

Co., 269 F.3d 673, 679 (6th Cir. 2001)(an FLSA claim resting “on
interpretations of the underlying collective bargaining agreement”
should have been dismissed as it was not filed within the six-month
statute of limitations applicable to Section 301); Parker v. Metro.
Transp. Auth., 97 F. Supp. 2d 437, 447-48 (S.D.N.Y. 2000)(holding
ADEA and ADA claims preempted by the Railway Labor Act, which is
analogous

to

the

LMRA,

because

Plaintiff’s

case

required

an

interpretation of the CBA).
However, not all federal claims are preempted. The Sixth
Circuit has made it clear that “the question of whether or not the
plaintiff was discriminated against [is] separate from any possible
defense the employer might have under the contract. . . It is
irrelevant to the preemption question whether or not the employer
can defend by showing it had the right under the collective
bargaining agreement to do what it did.”

O’Shea v. Detroit News,

887 F.2d 683, 687 (6th Cir. 1989); Knafel v. Pepsi-cola Bottlers of
Akron, Inc., 899 F.2d 1473, 1482 (6th Cir. 1990)(“An inquiry into
the conduct of an employee and the motivation of an employer does
not necessarily require an interpretation of a labor agreement”).
As the O’Shea court put it, the ADEA action before it was
not preempted by Section 301 because “employees have the right not
to be discriminated against on the basis of age or handicap without

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regard to the collective bargaining agreement”). 887 F.2d at 687,4
LaPointe v. United Auto Workers, Local 600, 8 F.3d 376, 381 (1993).
The

Court

agrees

with

Plaintiff’s

position

that

Section

301

generally applies to state law claims, but concludes that under
federal law preemption can also apply to federal claims incorrectly
framed as something other than claims interpreting a CBA.
In this case, the Court disagrees with the notion that
Plaintiff has failed to bring bona fide claims that are in fact
nothing more than a dispute over CBA interpretation.

Section 301

does not require that all “employment-related matters involving
unionized employees” be resolved through collective bargaining and
thus be governed by a federal common law created by § 301. . .The
Court has stated that “not every dispute concerning employment, or
tangentially involving a provision of a collective-bargaining
agreement, is preempted by § 301 or other provisions of the federal

4

Defendant quotes dicta in the O’Shea opinion, in which the
Court appears to have been summarizing the Defendant’s contention
that “The Supreme Court has held many times that § 301 of the
LMRA requires that all claims, state or federal, whose resolution
depends on the interpretation of a collective bargaining
agreement be pre-empted by federal law.” However, in the actual
outcome of O’Shea, the federal claims were not preempted.
Similarly, Defendant supports its position by citing Keck v. PPL
Elec. Utils. Corp., which in no way stated that all ADA claims
were preempted, but actually stated that Plaintiff’s claim “is
not preempted . . . to the extent it seeks to remedy violations
of the ADA.” No. 02-4071, 2003 U.S. Dist. LEXIS 12528 at *13-14
(E.D. Penn. July 21, 2003). The Keck court simply concluded that
Plaintiff did not actually bring an ADA claim, but rather styled
his complaint as such when it actually amounted to a dispute
about the interpretation of the CBA. Id. at *14.
-10-

labor law.”

Allis-Chalmers, 471 U.S. 202, 211 (1985).

Here, Defendant raises the defense that its actions in
terminating Plaintiff were justified under the CBA.

However, such

defense does not affect the potential for a trier of fact to find
Defendant’s track record in treating similarly-situated individuals
differently and in reacting so harshly against Plaintiff for
similar behavior, to show that its purported reliance on the CBA
has no basis in fact.

As such, the Court rejects Defendant’s

position that Plaintiff’s FMLA retaliation claim is preempted.
C.

FMLA Retaliation

Defendant

further

contends

that

Plaintiff

cannot

establish a prima facie case of FMLA retaliation (doc. 24).
Moreover, Defendant argues it had a legitimate reason to terminate
Plaintiff because UPS company policy as reflected in the collective
bargaining agreement requires employees to immediately report any
accident.

Defendant claims because Plaintiff failed to do so, it

fired him.

Counsel further stated that UPS fired Plaintiff for

stealing company time, the hour and twenty minutes during which he
was getting the repair in the company shop.
To state a prima facie case, Plaintiff must establish 1)
he engaged in an activity protected by the FMLA, 2) the employer
knew that he was exercising his rights under the FMLA, 3) the
employer took an action adverse to the employee, and 4) there was
a causal connection between the protected FMLA activity and the

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adverse employment action. Killiam v. Yorozu Automotive Tennessee,
Inc., 454 F.3d 549, 556 (6th Cir. 2006). Once Plaintiff establishes
such

elements,

discriminatory

Defendant
reason

must

for

articulate

Plaintiff’s

a

legitimate,

discharge,

under

nonthe

McDonnell Douglas burden-shifting analysis. Then the burden shifts
back to Plaintiff to show Defendant’s proffered reason was merely
a pretext for discrimination.

Skrjanc v. Great Lakes Power Serv.

Co., 272 F.3d 309, 315 (6th Cir. 2001)(McDonnell Douglas burdenshifting test is applicable to FMLA retaliation claims).
At the hearing, Plaintiff’s counsel indicated there is
really no dispute that after Plaintiff took four months of FMLA
leave, Defendant terminated Plaintiff’s employment approximately
six weeks later.

Such temporal proximity, contends Plaintiff,

supports his contention that he was retaliated against for having
taken FMLA leave (doc. 27, citing Singfield v. Akron Metro. Hous.
Authority, 389 F.3d 555, 563 (6th Cir. 2004)(three months sufficient
to find causation in a retaliation action)).
In Plaintiff’s view, the fact that his medical records
noted he was getting hassled from work for taking leave in 2002
show that Defendant has a history of retaliating against him for
taking leave (doc. 27).

After his doctor made the determination

that Plaintiff was not able to do over-the-road driving, Plaintiff
took a thirty-day leave (Id.).

Nearly a year after such leave,

Defendant terminated Plaintiff for the first time (Id.). Plaintiff

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grieved such termination and was reinstated (Id.).
Plaintiff

further

contends

he

can

show

evidence

of

causation because the dispatch manager who supervised Plaintiff,
Ben Sublett, who knew of Plaintiff’s leave, did not terminate Cary
Wilson, another feeder driver, who had an accident but did not take
FMLA leave.

Plaintiff contends Wilson did not report his accident

at all, while Plaintiff did after only two hours.

Wilson was

ultimately suspended for two days, in contrast to Plaintiff’s
permanent termination.
Plaintiff signals that driver Owen Murphy also failed to
report an accident.

Murphy was reinstated after the grievance

process, and Labor Manager Joe Mullikin testified he agreed with
the reinstatement.
Plaintiff notes that driver Joe Willis was initially
terminated for failing to report an accident, but after grieving
his termination, Willis was reinstated.

In addition, driver Jon

Ross hit a deer and did not report it for twenty minutes.
Defendant did not terminate Ross.

Finally, Mullikin testified he

knew of at least five other drivers who did not report accidents
immediately.
Under these circumstances, contends Plaintiff, where
other drivers failed to report accidents at all, the fact that he
was terminated for failing to officially report his accident for
two hours, should show other drivers were treated more favorably.

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Having

reviewed

this

matter,

the

Court

finds

that

Plaintiff has proffered adequate evidence such that a reasonable
jury could find that Defendant retaliated against him for having
taken four months of FMLA leave.

His termination came only a few

months after such leave, and there is evidence from which a jury
could infer that at least one decision-maker involved with the
termination decision was aware of his leave.
believes

a

jury

could

find

Defendant’s

Further, the Court

proffered

legitimate

justification for its action as pretext, taking into consideration
all of the other drivers who did not report accidents at all, and
who suffered much less severe consequences.

The record shows

Plaintiff met performance expectations in his position, passed
yearly safety reviews, and earned every promotion available to him.
A

reasonable

jury

would

certainly

take

pause

at

Defendant’s

termination of such an employee, who had worked for nearly twentyfive years, based on the “dishonesty” of “stealing time” while
getting repairs in the company shop.

Plaintiff did not attempt to

hide the accident by seeking repairs secretly somewhere else.
went to the company shop.

He

He may not have followed protocol

correctly to the nth degree, but it strikes the Court as harsh and
unfair to characterize his actions as dishonest and meriting
termination.

Certainly UPS is entitled to run a tight ship, but

especially when the record shows other drivers completely failed to
report accidents, a jury could find such proffered justification

-14-

was not the real reason for Plaintiff’s termination.

As such, the

Court finds it appropriate to deny Defendant’s motion as to
Plaintiff’s claim for FMLA retaliation.
IV.

Conclusion
As conceded by Plaintiff, he lacks evidence supporting

his

claim

for

age

discrimination.

Such

claim

is

therefore

appropriately subject to summary judgment.
The Court rejects Defendant’s theory that Plaintiff’s
remaining FMLA retaliation claim is preempted by Section 301 of the
Labor Management Relations Act.

Although the Court disagrees with

Plaintiff’s conclusion that preemption can only apply to state law
claims, such doctrine is inapplicable in this instance.

The Court

finds Plaintiff has adequately stated a prima facie case for FMLA
retaliation based on the temporal proximity of his four-month leave
to his termination, the knowledge of at least one-decision maker
involved with his termination, and other record evidence suggesting
Defendant opposed his FMLA leave.

Finally, the Court concludes a

reasonable jury could find Defendant’s justification for its action
as pretext based on its different treatment of other drivers, and
based on the harsh characterization of Plaintiff’s actions, a
nearly

twenty-five

year

employee,

as

“dishonest,”

and

as

“stealing.” The Court expressed at the hearing and expresses again
that it has never seen a situation where an employee having
something repaired in a company shop could constitute stealing

-15-

time.
Accordingly, the Court GRANTS IN PART Defendant’s Motion
for Summary Judgment (doc. 24) as to Plaintiff’s age discrimination
claim, and DENIES IN PART Defendant’s motion as to Plaintiff’s FMLA
retaliation claim.

The Court further SETS this matter for final

pretrial conference on September 27, 2011, at 2:00 P.M., and for a
four-day jury trial to commence October 11, 2011, on an on-deck
basis.
SO ORDERED.

Dated: July 28, 2011

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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