Arifi v. FedEx Ground Package System, Inc.
Filing
28
Opinion and Order signed on 9/30/2014 by Judge Ancer L. Haggerty. Defendant's Motion for Summary Judgment 18 is GRANTED and this case is dismissed with prejudice.. (sp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
AVNIARJFI,
Plaintiff,
Case No. 3:13-cv-01870-HA
OPINION AND ORDER
v.
FED EX GROUND PAC:KAGE SYSTEM,
INC., DBA FEDEXP ACKAGE
DISTRIBUTION CENTER,
Defendant.
HAGGERTY, District Judge:
Plaintiff Avni Arifi brought this lawsuit against defendant FedEx Ground Package
System, Inc. (FedEx), alleging employment discrimination in violation of both state and federal
law: Oregon Revised Statute (ORS) 659A.030; Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e (Title VII); and 42 U.S.C. § 1981. Plaintiff seeks compensatory and punitive
damages. On June 18, 2014, defendant filed a Motion for Summary Judgment [18). The court
heard oral argument from the pa1iies on September 18, 2014. For the following reasons,
defendant's Motion for Summary Judgment [18) is granted.
1 - OPINION AND ORDER
FACTUAL BACKGROUND
1.
Defendant's Business
Defendant is a federally-registered motor carrier that utilizes independent contractors to
provide transpmiation, package pick-up and package delivery services throughout the United
States. Dickson Deel.~ 3. The relationship between defendant and each independent contractor
is governed by an Operating Agreement, which confirms that the independent contractors are
engaged as independent businesses. Dickson Deel.
~
3.
Linehaul contractors provide transportation services with 18-wheel tractor-trailers, using
their own tractors to transpo1t loaded trailers, which are owned by defendant, between two FedEx
stations. Dickson Deel.
~
4. The linehaul contractors are responsible for all operating and
maintenance expenses associated with their tractors, and they are responsible for managing their
own businesses. Accordingly, they detennine how best to perform and earn a profit under their
contract. Dickson Deel. ~ 4.
According to Sean Dickson, Senior Linehaul Manager at defendant's Po1tland, Oregon
hub, the independent contractors agree to treat all personnel providing services under the
Operating Agreement as their own employees. Dickson Deel.
~
5. He explains that the
independent contractors exercise sole and exclusive control over their employees, including
hiring, firing, and disciplinary decisions. He states that contractors establish the drivers' routes
and determine the drivers' wages and hours. Dickson Deel.~ 5. However, FedEx maintains
minimum qualifications for all drivers within its system, and each driver must be initially
approved by FedEx before he can be hired by an independent contractor. Dickson Deel.~ 5.
/II
2 - OPINION AND ORDER
2.
Plaintiff's Employment History
Plaintiff has been employed by several independent contractors that provide
transportation services to defendant. Initially, plaintiff began working as a driver for Kamenko
Express, Inc. in 2006. Pl.'s Dep. 13:19-21. Before obtaining that position, he filled out an
application in a FedEx facility to determine whether he met defendant's minimum qualifications
for drivers. Pl.'s Dep. 14:5-12.
At some point, plaintiff was offered a local route through another independent contractor,
Throttleman 2, and plaintiff accepted the new job offer. Plaintiff admits that FedEx had no
involvement in this transfer, including no involvement in setting plaintiffs new route and new
wage. Pl.'s Dep. 19: 12-25; 20:1-24. Plaintiff worked for Throttleman 2 for approximately two
and a half years. When Throttleman 2 changed plaintiffs schedule from a dedicated route to
rotating routes, plaintiff set out once again to find a new job. Pl.'s Dep. 22:24-25; 23: 1-18.
Plaintiff obtained employment driving a dedicated route with Wade Transport Co., (Wade
Transport) another independent contractor for defendant. Plaintiff admits that he did not seek
any permission from defendant before accepting this new position and driving this new route.
Pl.'s Dep. 24:25; 25:1-4. During this employment, Wade Transport routinely required plaintiff to
report to the FedEx hub in Portland, Oregon. Pl.'s Deel.~ 5. There, FedEx gave plaintiff
paperwork that assigned him to a specific trailer each day and identified the location to which the
trailer was to be delivered. Pl.'s Deel. ~~ 5, 6. With his assignment for the day, plaintiff would
proceed to the trailer parking area to locate his assigned trailer and hook it to his tractor. This
process generally took ten to fifteen minutes, unless plaintiffs assigned trailer was blocked by
other trailers, in which case a FedEx employee was needed to move them. Pl.'s Deel.~~ 8-12. If
3 - OPINION AND ORDER
a FedEx employee was not available, plaintiff would move the trailers as directed by FedEx
dispatch. Pl.'s Deel.
if 12.
Once the trailer was attached to his tractor, plaintiff transported it to
Seattle, Washington, and then returned to Portland to pick up another trailer, which he
transported to Salem, Oregon. Pl.'s Dep. 26:7-13. In the three years that plaintiff worked for
Wade Transport, there were approximately ten to fifteen instances in which FedEx contacted him
directly to temporarily alter his regular route. Pl.'s Dep. 129:13-25.
While he worked for Wade Transport, plaintiff drove three different tractors, which were
all owned by Wade Transport. Pl.'s Dep. 30: 1-18. If plaintiff had a problem on the road, he was
directed to call FedEx dispatch directly, and FedEx dispatch would direct him in addressing the
problem. Pl.'s Deel.
if 13.
If plaintiff experienced a mechanical problem with the tractor or
trailer while on a route, FedEx would mrnnge for a mechanic and direct plaintiff to wait near the
tractor. Pl. 's Deel.
i!il 14-15.
If plaintiff received a traffic citation, he was required to report it to
FedEx, which had the ability to suspend plaintiff from driving. Pl.'s Deel.
irir 17-18.
Tln·ough the
Operating Agreement, both FedEx and Wade Transport had the ability to issue suspensions,
including lifetime suspensions, to drivers for failing to meet certain minimum criteria. Pl.'s
Response Ex. 2. FedEx never paid plaintiff any compensation and it was Wade Transport that
offered plaintiff employment benefits, such as health and disability insurance. Pl.'s Dep. 30: 1925; 31:1-14.
3.
Alleged Harassment
Plaintiff claims that beginning in 2009, while he was employed with Tln·ottleman 2, and
tln·oughout his employment with Wade Transpo1t, employees of FedEx and employees of other
independent contractors harassed him based on his race, national origin, and religion. Plaintiff
4 - OPINION AND ORDER
was born in Kosovo. Pl.'s Dep. 9: 12-13. He identifies his race as white and his national origin as
Albanian. Pl.'s Dep. 51: 15-20. Plaintiff is a practicing Muslim. Pl.'s Dep. 51 :24-25.
Plaintiff alleges the following instances of harassment:
•
In 2009, plaintiff was leaving the FedEx hub with his shirt offbecause the air
conditioning in his truck was broken. Safety Manager Ryan Fleck said to
plaintiff, "Put the uniform on because you're looking like a te11'orist not having the
uniform on." Pl.'s Dep. 64: 1-11.
•
In January 2012, a dispatcher said, "If FedEx will stop hiring these low life brats
who speak three words in English, my job and my life will be much easier."
Jordan Deel., Ex. 2 at 3.
•
On June 13, 2012, a driver said to plaintiff, "Hi, terrorist. 11 Jordan Deel., Ex. 2 at
4.
•
On June 14, 2012, another driver said, "Hey, here comes [sic] terrorist." Jordan
Deel., Ex. 2 at 4.
•
On June 15, 2012, another driver said to plaintiff as he arrived to work, "Here
comes the terrorist telling [sic] how much explosive you have on the trailer."
Jordan Deel., Ex. 2 at 5.
•
On June 16, 2012, plaintiff asked another driver for a ride. That driver responded,
"I don't put te11'orists in my truck." Jordan Deel., Ex. 2 at 5.
•
On July 9, 2012, an employee named Dave was training a new employee on how
to hook trailers to tractors. Dave said to plaintiff, "Don't hate her its her first time
hooking up doubles." Plaintiff responded, "I don't hate." Dave replied, "You
don't hate but you still can be a terrorist." Jordan Deel., Ex. 2 at 6.
On September 14, 2012, a dispatcher asked plaintiff when he will be going on
vacation. In response to plaintiffs answer, the dispatcher said, "Do you think you
can get back in the USA?" When plaintiff asked why, the dispatcher responded
because "of home land security [sic]." Jordan Deel., Ex. 2 at 7.
•
On October 8, 2012, plaintiff visited a mechanic to fix his trailer. The mechanic
said, "you fucking Russian." Plaintiff stated that he is not Russian and the
mechanic responded, "But you still are te1rnrist [sic]." Jordan Deel., Ex. 2 at 8.
•
On April 4, 2013, a mechanic said to plaintiff, "Fucking tenorist, this is not
5 - OPINION AND ORDER
immigrant parking." Jordan Deel., Ex. 2 at 8.
In January or Februmy of 2013, plaintiff attended a meeting with Sean Dickson; Ron and
Tina Wade, representatives of Wade Transp01i; Aaron Scott, Senior Security Specialist with
FedEx Express; and Remzi Arifi, plaintiff's brother. Dickson Deel.
if 9.
The purpose of the
meeting was to discuss the offensive comments that were made toward plaintiff and his brother,
who also worked for Wade Transport. Plaintiff and his brother were told to inform Dickson if
any similar comments were made in the future. Dickson Deel. if 9. After the meeting, Dickson
info1med staff that FedEx would not tolerate such behavior. Dickson Deel.
rep01i any concerns to Dickson after that meeting. Dickson Deel.
if 9.
Plaintiff did not
if 9.
On June 26, 2013, plaintiff quit his job at Wade Transport in fear that he was going to be
fired. Pl.'s Dep. 43:25; 44:1-19. On the same day, plaintiff was offered and accepted a job at
GNW Express, another independent contractor that provides transport services to FedEx. Pl.'s
Dep. at 87:17-25.
STANDARDS
A party is entitled to summmy judgment as a matter of law if "the pleadings, depositions,
answers to intenogatories, and admissions on file, together with affidavits, if any, show there is
no genuine issue as to any material fact." Fed. R. Civ. P. 56(c); Bahn v. Nj\;JE Hasps., Inc., 929
F.2d 1404, 1409 (9th Cir. 1991). The moving party canies the initial burden of proof and meets
this burden by identifying p01tions of the record on file that demonstrate the absence of any
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once the
initial burden is satisfied, the burden shifts to the non-moving party to demonstrate tlu·ough the
production of probative evidence that there remains an issue of fact to be tried. Id
6 - OPINION AND ORDER
The court must view the evidence in the light most favorable to the non-moving pmiy.
Fairbankv. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (citations omitted).
All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the
moving party. ivletroPCS, Inc. v. City and County ofSan Francisco, 400 F.3d 715, 720 (9th Cir.
2005) (citation omitted). Where different ultimate inferences may be drawn, summary judgment
is inappropriate. Sankovich v. Ins. Co. ofN Am., 638 F.2d 136, 140 (9th Cir. 1981) (citing Fed.
R. Civ. P. 56(c)).
Deference to the non-moving party has limits. The non-moving pmiy "must set forth
specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The "mere
existence ofa scintilla of evidence in support of the [non-moving pmiy's] position [is]
'
insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Where "the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
no 'genuine issue for trial."' ivlatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (citation omitted).
ANALYSIS
In his First Amended Complaint, plaintiff alleges racial, national origin, and religious
discrimination under three theories: disparate treatment, pursuant to ORS 659A.030 and 42
U.S.C. § 2000e, hostile work environment, pursuant to ORS 659A.030 and 42 U.S.C. § 2000e,
and employment discrimination pursuant to 42 U.S.C. § 1981. First Am. Comp!. [7]
,J 3.
Defendant argues that summary judgment is appropriate for two reasons: ( 1) plaintiffs claims are
premised on the existence of an employment relationship that did not exist and (2) plaintiff has
not established a prima facie case for discrimination. The court will address each of defendant's
7 - OPINION AND ORDER
arguments in turn.
1.
Plaintiff's Relationship with FedEx
Defendant argues that FedEx was not plaintiff's employer; therefore, FedEx is not liable
for employment discrimination under Title VII and ORS § 659A.030. Title VII prohibits
employers from discriminating against an employee on the basis of race, color, religion, sex, or
national origin. In order for Title VII protections to apply, the statute does not require a direct
employer-employee relationship; however, "there must be some connection with an employment
relationship." Anderson v. Pac. i'vfar. Ass'n, 336 F.3d 924, 930 (9th Cir. 2003) (citation omitted).
Similarly, ORS § 659A.030 requires that a plaintiff have an employment relationship with a
defendant in order to establish liability. Foster v. Flaherty, No. 11-6115-HO, 2011 WL
5057072, *7 (D. Or. Oct. 24, 2011). Therefore, unless plaintiff can demonstrate some employeremployee relationship between himself and defendant, FedEx cannot be held liable for plaintiff's
Title VII and ORS 659A.030 claims.
The parties have argued at length about whether plaintiff was an employee of FedEx. The
court notes that the Ninth Circuit recently addressed a similar issue in Slayman v. FedEx Ground
Package System, Inc., Nos. 12-35525, 12-35559, 2014 WL 4211422 (9th Cir. Aug. 27, 2014). In
Slayman, the Ninth Circuit answered the question of whether drivers that deliver packages to
homes and businesses are FedEx employees or independent contractors. Id. Relying heavily on
the Operating Agreement that governs the relationship between FedEx and those drivers, the
Ninth Circuit held that the drivers were FedEx employees tmder Oregon's right-to-control test.
Id. at *13.
The facts in this case differ in that plaintiff was a linehaul driver, driving FedEx trailers
8 - OPINION AND ORDER
from one FedEx hub to another. A different Operating Agreement governed plaintiffs
relationship with FedEx, and neither party has submitted a copy of that Operating Agreement to
the court in this case. Therefore, the court is not sufficiently informed to apply the analysis in
Slayman to the facts of this case and make a ruling as to plaintiffs employment status. The court
will therefore forgo opining on plaintiffs employment status. Neve1iheless, plaintiffs claims fail
as a matter oflaw, because, even if plaintiff was an employee of FedEx, his allegations fall sh01i
of discriminatory conduct under Title VII, ORS 659A.030 and 42 U.S.C. §1981.
2.
Discrimination
Plaintiff has alleged three types of discrimination in his Amended Complaint: (a) hostile
work environment, pursuant to ORS 659A.030 and 42 U.S.C. § 2000e, (b) disparate treatment
pursuant to ORS 659A.030 and 42 U.S.C. § 2000e, and (c) discrimination pursuant to 42 U.S.C.
§ 1981. At oral argument, plaintiff withdrew his disparate treatment claim; therefore, summary
judgment should be granted in defendant's favor on that claim. As for plaintiffs remaining
claims for discrimination, plaintiff has failed to establish a prima facie case for the following
reasons.
a.
Hostile Work Environment
Defendant argues that plaintiff has failed to establish a prima facie case for his hostile
work environment claim under Title VII and ORS 659A.030. Because ORS 659A.030 is
modeled after Title VII, plaintiffs state law discrimination claims can be analyzed together with
his federal discrimination claims. Pullom v. US. Bakery, 477 F. Supp. 2d 1093, 1100 (D. Or.
2007). "Under Title VII, an employee has a right to work in an environment free from
discriminato1y intimidation, ridicule, and insult." Woods v. Graphic Comms., 925 F.2d 1195,
9 - OPINION AND ORDER
1202 (9th Cir. 1991) (internal quotations omitted). In order to establish a prima facie case for his
hostile work environment claim, plaintiff must raise a genuine issue of material fact as to
whether(!) he was subjected to verbal or physical conduct of a religious or racial nature; (2) the
conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the
conditions of his employment and create an abusive working environment. Westendo1f v. West
Coast Contractors ofNevada, Inc., 712 F.3d 417, 421 (9th Cir. 2013) (citing E.E.O.C. v.
Prospect Ailport Servs., Inc., 621 F.3d 991, 997 (9th Cir. 2010)). Plaintiff must also present
evidence to suppmi a finding that his work environment was both objectively and subjectively
offensive, meaning that a reasonable person would find the work environment hostile or abusive,
and that plaintiff in fact did perceive it as such. kl (citing Faragher v. City ofBoca Raton, 524
U.S. 775, 787 (1998)).
However, Title VII is not a "general civility code" and "simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment." Faragher, 524 U.S. at 788 (quotations and
internal citations omitted). "The mere utterance of an ethnic or racial epithet which engenders
offensive feelings in an employee is not, by itself, actionable under Title VII." Ellison v. Brady,
924 F.2d 872, 876 (9th Cir. 1991) (internal quotations omitted). On the other hand, "the
harassment need not cause diagnosed psychological inju1y." ivfcGinest v. GTE Serv. Corp., 360
F.3d 1103, 1113 (9th Cir. 2004) (citation omitted). Rather, "[i]t is enough 'if such hostile
conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take
pride in her work, and to desire to stay on in her position."' Id. (quoting Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1463 (9th Cir. 1994)). In evaluating the objective hostility ofa
10- OPINION AND ORDER
work environment, the Ninth Circuit considers the "frequency of discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance." Id. (citation omitted).
"The required showing of severity or seriousness of the harassing conduct varies inversely with
the pervasiveness or frequency of the conduct." Id. (citation omitted).
In this case, plaintiff argues that he was subjected to a hostile work environment when
FedEx allegedly allowed its employees and other independent contractors to repeatedly and
regularly refer to plaintiff as a tenorist. Plaintiff has identified approximately ten instances in
which he was called a tenorist over the course of four years. Plaintiff argues that, due to the
September 11, 2001 attacks on the World Trade Center in New York, the word "terrorist" canies
with it powerful negative connotations and cannot be likened to simple teasing. In effect,
plaintiff argues, without any legal citation, that the use of the word terrorist is sufficiently severe
to create a hostile work environment regardless of how infrequently it was uttered.
More persuasive is defendant's comparison of the facts at issue with analogous Ninth
Circuit precedent. In Vasquez v. County ofLos Angeles, 349 F.3d 634 (9th Cir. 2003), the
plaintiffs hostile work environment claim was based on his supervisor's comments that the
plaintiff had a "typical Hispanic macho attitude" and that he should consider transferring to the
field because "Hispanics are good in the field." The plaintiff also alleged that his supervisor
unjustifiably yelled at him on two occasions and drafted two memos that included false
complaints about the plaintiffs perfo1mance. Id. at 643. All of these incidents occuned over the
course of more than one year. Id. The Ninth Circuit held that the allegations did not support a
claim for hostile work environment. Id. at 644.
11 - OPINION AND ORDER
The court in Vasquez was persuaded by the dismissal of a hostile work environment claim
in Sanchez v. City ofSanta Ana, 936 F.2d 1027 (9th Cir. 1990). In Sanchez, Latino police
officers alleged that the city police officials and the city created a racially hostile work
environment. The Ninth Circuit found that no hostile work environment existed despite
allegations that the employer posted a racially offensive cartoon, made racially offensive slurs,
targeted Latinos when enforcing mies, provided unsafe vehicles to Latinos, did not provide
adequate police backup to Latino officers, and kept illegal personnel files on the plaintiffs
because they were Latino. Id.
Similarly, in Westendorf, the plaintiff alleged a hostile work environment based on
incidents that occuned over the course of six months. 712 F.3d at 419-20. During the first
month of her employment as a project manager assistant, her supervisor refe1Ted to her duties as
"girly work." Id. at 419. She alleged that she was subjected to consistent offensive comments
regarding, inter alia, the appearance of women's breasts, the use of feminine hygiene products,
and sex. Id at 419-20. She also alleged that on four different occasions, another employee
instructed her to clean their workspace in a French maid's costume. Id. at 420. The Ninth Circuit
concluded that the evidence did not show sexual harassment that was sufficiently severe or
pervasive to alter the terms of the plaintiffs employment and subject her to an abusive
environment. Id at 422.
It is also info1mative to consider cases that demonstrate the type of conduct necessary to
survive summaiy judgment on a hostile work environment claim. In Nichols v. Azteca
Restaurant Ente1prises, Inc., 256 F.3d 864 (9th Cir. 2001), the court found that a hostile work
environment existed when a male employee was subjected to relentless insults, name-calling,
12 - OPINION AND ORDER
vulgarities, and taunts of "faggot" and "fucking female whore" by male co-workers and
supervisors at least once a week and often several times per day. Id. at 870. Similarly, in Craig
v. lvf & 0 Agencies, Inc., 496 F.3d 1047 (9th Cir. 2007), the Ninth Circuit found that a hostile
work environment existed when a direct supervisor made repeated sexual advances on the
plaintiff. Specifically, the plaintiff alleged that, over the course of several months, her supervisor
repeatedly made inappropriate comments regarding plaintiffs body; repeatedly requested that she
"make love to him" despite her emphatic negative responses; told her that "he wanted her;" and
entered a women's restroom where he grabbed her arms and gave her an "open-mouthed kiss."
Id. at 1051-52.
When considered within the scope of these previous cases, the conduct alleged by
plaintiff in this case did not rise to the level of an abusive work environment. The allegedly
harassing incidents occurred over the course of four yem·s. The conduct was certainly less
frequent, less severe, and less humiliating than the conduct at issue in Nichols and Craig, and
was more in line with that in Vasquez. The court finds the severity and pervasiveness of the
alleged conduct in this case particularly similar to the alleged conduct in Westendo1f Like Arifi,
the plaintiff in Westendorf, was not subjected to any physical abuse, but was subjected to at least
ten offensive comments. The court does not find the comments at issue any more severe than
those in Westendo1f; therefore, this comi's conclusion should not differ from that of the Ninth
Circuit. While the conduct in this case is offensive, it is not severe or pervasive enough to
umeasonably interfere with plaintiffs employment. Therefore, summary judgment is granted in
defendant's favor on plaintiffs hostile work environment claim.
II I
13 - OPINION AND ORDER
b.
Employment Discrimination Pursuant to 42 U.S.C. § 1981.
Finally, defendant argues that plaintiff has failed to establish a prima facie case for
employment discrimination under 42 U.S.C. § 1981. "Those principles guiding a comi in a Title
VII dispute apply with equal force in a§ 1981 action." 1'vfanatt v. Bank ofAmerica, 339 F.3d
792, 797 (9th Cir. 2003) (citing EEOC v. Inland lvfarine Indus., 729 F.2d 1229, 1233 n. 7 (9th
Cir.1984)). As discussed above, plaintiffs claims under Title VII fail as a matter of law;
therefore, his claim under § 1981 must also fail.
CONCLUSION
For the foregoing reasons, defendants' Motion for Summary Judgment [18] is GRANTED
and this case is dismissed with prejudice.
IT IS SO ORDERED.
DATED this
·.]o
day of September, 2014.
Ancer L. Hagge1i ·
<:::
United States District Judge
14- OPINION AND ORDER
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