Wilkey v. United Parcel Service, Inc. (Delaware)

Filing 27

Memorandum Opinion and Order granting 17 Motion for Summary Judgment and dismisses with prejudice this action. Judgment will issue by separate document. (Ordered by Judge Sam A Lindsay on 1/29/2018) (epm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DONISE WILKEY,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,

Defendant.

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Civil Action No. 3:16-CV-3486-L

MEMORANDUM OPINION AND ORDER
Before the court is Defendant United Parcel Service, Inc.’s Motion for Summary Judgment
(Doc. 17), filed November 17, 2017. After careful consideration of the motion, response, reply,
appendixes, record, and applicable law, the court grants Defendant United Parcel Service, Inc.’s
Motion for Summary Judgment (Doc. 17).
I.

Procedural and Factual Background
Plaintiff Donise Wilkey (“Plaintiff” or “Wilkey”) brings this action against Defendant

United Parcel Service, Inc. (“Defendant” or “UPS”), alleging age discrimination under the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C §621 et seq. 1 Wilkey contends
that UPS unlawfully discriminated against her on the basis of her age when it terminated her from
her position as a Day Sort Supervisor on March 25, 2014. She seeks lost earnings and benefits,

1

In addition to the ADEA, Wilkey alleges she is invoking the court’s jurisdiction pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. See Pl.’s Compl. ¶ 1. Title VII provides
that “[i]t shall be an unlawful employment practice for an employer ... to discharge any individual, or
otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). As Wilkey is only alleging employment discrimination based on her age, Title VII
cannot serve as a basis for this court’s jurisdiction. Subject matter jurisdiction in this case is pursuant to 28
U.S.C. § 1331 (federal question) and the ADEA.
Memorandum Opinion and Order - Page 1

compensatory damages, liquidated damages, reinstatement to her former position of employment,
prejudgment interest, attorney’s fees, and costs. UPS moves for summary judgment, arguing that
Wilkey has failed to raise a genuine dispute of material fact that her age (55) was a “but for” cause
of her termination. The court now sets forth the facts in accordance with the standard in Section
II of this opinion.
A. Wilkey’s Termination
In 1991, UPS hired Wilkey to work at its Mesquite, Texas facility. Although she worked
in several positions over the years, she was last employed as a full-time Day Sort Supervisor. In
this position, she supervised approximately seventy employees who sorted UPS packages in
preparation for placement on the delivery truck. Following an investigation, UPS terminated
Wilkey on March 24, 2014, for dishonesty in violation of company policy after she instructed a
subordinate to falsify records. At the time of her termination, Wilkey was fifty-five years old.
Wilkey acknowledges that she instructed her subordinate to falsify records in violation of company
policy. She contends, however, that UPS selectively enforced its policies to the detriment of older
employees and unlawfully terminated her because of her age.
B. UPS’s Integrity Policy
UPS has a written “Integrity Policy,” which requires its employees to conduct their jobs
with honesty and integrity. The Integrity Policy is contained in UPS’s Policy Book and its Code
of Business Conduct. Wilkey received copies of both.
Page one of UPS’s Policy Book states “Integrity—It is the core of who we are and all we
do.” Def.’s Summ. J. App. 31.
The Policy Book further provides:
WE INSIST ON INTEGRITY IN OUR PEOPLE.

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We understand that integrity is fundamental to how we run our business and
essential to maintaining compliance with our policies and legal requirements. We
provide an atmosphere in which our people can perform their jobs in an ethical
manner. We present our company honestly to employees and, in turn, we expect
them to be honest with us.
We expect honesty from our people in all their duties, including the handling of
money, property, information assets, and the preparation and approval of all reports
and records.
We also expect our people to be honest in their assessment of themselves, such as
the time and commitment they give to their job performance, their dealings with
others, or their evaluation of their own contributions or the contributions of others.
For our company to be known for its integrity, each one of us must meet these high
standards.
Id. at 38.
The Code of Business Conduct provides, in relevant part:
OUR COMMITMENT TO INTEGRITY
UPS has a long tradition of transforming and adapting to the needs of our
customers, but our commitment to integrity remains steadfast. We remain
committed to a set of beliefs that guided our founders and their successors, and
currently guides employees and representatives of UPS.
***
This requires us to conduct business fairly, honestly, and ethically.
***
A commitment to integrity is about creating a climate for continued success. It is
about creating an environment where people can make good decisions. It is about
doing the right thing in every business situation. By using good judgment and
respecting others, UPS’s commitment to integrity will endure.
***
Compliance with our legal and ethical obligations is the responsibility of every UPS
employee and representative, as is the responsibility to report potential violations
of those obligations. Reporting may be accomplished directly through a discussion
with a member of the management team or by using the UPS Help Line.
Information about the UPS Help Line is available on UPSers.com.
Memorandum Opinion and Order - Page 3

Id. at 59.
The Code of Business Conduct also addresses “Accuracy of Records and Reporting”:
In our jobs, many of us create or prepare some type of information, such as financial
reports, accounting records, business plans, environmental reports, injury and
accident reports, expense reports, and time cards. We have an obligation to keep
accurate and truthful records, which must be prepared in accordance with our
commitment to integrity and must comply with applicable accounting procedures
and internal controls. People inside and outside UPS expect these reports to be
reliable and properly maintained. These people include employees, shareowners,
government representatives, auditors, and the communities in which we operate.
No one may deviate from our commitment to manage information accurately and
truthfully. Our records are maintained for required periods as defined in UPS
Records Retention Schedule (“Schedule”).
Any person with knowledge of an improperly or inaccurately prepared business
record is required to report this concern to the company. Additional information
about reporting such a concern is available in the section of this Code titled
“Reporting Concerns, Asking Questions, and Voicing Opinions.”
Id. at 58.
C. Falsification of Employee Engagement Surveys
As part of its efforts to improve its operations, UPS uses Employee Engagement Surveys
(“Surveys”) to give its employees an opportunity to provide feedback anonymously. Given the
anonymous nature of the Surveys, “if a Survey is falsified . . . [,] it is impossible to go back into
the data compilation and remove information from a falsified Survey and submit new information
from the employee who was supposed to have completed the Survey.” Id. at 10. Consequently,
falsification “taint[s]” the entire Survey process and “leave[s] UPS with meaningless data.” Id.
Based on the information in the Surveys, work teams receive a performance grade.
In March 2014, Wilkey reported to Day Sort Managers Jeff Stucker (“Stucker”) and Layne
Blinco (“Blinco”). On March 4, 2014, Blinco informed the full-time Day Sort Supervisors that

Memorandum Opinion and Order - Page 4

they needed to have four or five employees per day complete the Survey so that the Surveys would
be completed by the end-of-March deadline.
Rather than having the employees fill out the Surveys, which would require them to be
taken off the sort line and delay the package sorting, Wilkey suggested to her fellow Day Sort
Supervisors at a meeting, including Alvoid Lindsey (“Lindsey”), that she would instruct her
subordinate, Tunisia Banks (“Banks”), to complete the Surveys for the employees. Lindsey
agreed. On or about March 4, 2014, Wilkey provided Banks with a list of the Day Sort employees
she supervised with instructions to complete the Surveys for the employees. Lindsey then provided
Wilkey with the names of his employees. Wilkey also showed Banks how to log into the Survey
website without being discovered.
D. Investigation into Document Falsification
Although Banks completed the Surveys as instructed, she reported her concerns about
falsifying the Surveys to Pat Griggs (“Griggs”), a full-time supervisor. Banks’s concerns were
referred to Hub Division Manager Jon Korn (“Korn”), who directed Rickey Joiner (“Joiner”), the
Area Division Human Resources Manager, and Melissa Heinen (“Heinen”), the Security Manager,
to investigate the incident. Heinen and Joiner interviewed numerous employees about the incident,
including Wilkey, Lindsey, Banks, Jordan, Griggs, Blinco, and several employees whom Lindsey
and Wilkey supervised.
During the investigation, Wilkey and Lindsey both admitted they instructed Banks to
complete the Surveys for their employees and knew what they did was wrong. Heinen and Joiner
prepared summaries of the witness interviews and submitted the investigation file to Korn. Korn,
after consulting with the Director of Human Resources and the District Director of Security,
determined that Wilkey and Lindsey had violated the Integrity Policy by falsifying company

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records and involving a subordinate in the scheme, and that termination of their employment was
the appropriate action. 2 On March 25, 2014, Wilkey met with Korn, Joiner, and Stucker, and was
informed that she was being terminated for dishonesty in violation of the Integrity Policy. Lindsey
was terminated for the same reason.
Wilkey subsequently participated in UPS’s Employee Dispute Resolution Program
(“Program”), available to nonunion employees to challenge employment decisions, including
termination. As part of the Program, she requested a Peer Review Panel (“Panel”), which consisted
of two members chosen by her and one member designated by UPS. Wilkey appeared in person
before the Panel and also submitted a position statement. At no time did she claim she was
terminated based on her age. The Panel upheld her termination for dishonesty after hearing all the
evidence.
E. Wilkey’s EEOC Charge and This Lawsuit
On September 25, 2014, Wilkey filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) claiming age discrimination. The EEOC made
a “no cause” finding, dismissed the charges, and issued Wilkey a right-to-sue letter on September
29, 2016. On December 22, 2016, Wilkey filed this lawsuit alleging age discrimination in violation
of the ADEA. On November 17, 2017, UPS moved for summary judgment on Wilkey’s age
discrimination claim.
II.

Motion for Summary Judgment Standard
Summary judgment shall be granted when the record shows that there is no genuine dispute

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.

2

Wilkey asserts that she was terminated by Korn, Joiner, and Stucker. See Pl.’s Summ. J. Br. 7. The record
is undisputed, however, that the decision to terminate Wilkey was made by Korn, after consulting with the
Director of Human Resources and the District Director of Security, and that Stucker was not consulted or
involved with the decision to terminate Wilkey. Def.’s Summ. J. App. 7.
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R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas
Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). A dispute regarding a material fact is “genuine”
if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary
judgment, the court is required to view all facts and inferences in the light most favorable to the
nonmoving party and resolve all disputed facts in favor of the nonmoving party. Boudreaux v.
Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005). Further, a court “may not make
credibility determinations or weigh the evidence” in ruling on a motion for summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 25455.
Once the moving party has made an initial showing that there is no evidence to support the
nonmoving party’s case, the party opposing the motion must come forward with competent
summary judgment evidence of the existence of a genuine dispute of material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). On the other hand, “if the movant
bears the burden of proof on an issue, either because he is the plaintiff or as a defendant he is
asserting an affirmative defense, he must establish beyond peradventure all of the essential
elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780
F.2d 1190, 1194 (5th Cir. 1986) (emphasis in original). “[When] the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for
trial.’” Matsushita, 475 U.S. at 587. (citation omitted). Mere conclusory allegations are not
competent summary judgment evidence, and thus are insufficient to defeat a motion for summary
judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). Unsubstantiated assertions,

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improbable inferences, and unsupported speculation are not competent summary judgment
evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).
The party opposing summary judgment is required to identify specific evidence in the
record and to articulate the precise manner in which that evidence supports his or her claim. Ragas,
136 F.3d at 458. Rule 56 does not impose a duty on the court to “sift through the record in search
of evidence” to support the nonmovant’s opposition to the motion for summary judgment. Id.; see
also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n.7 (5th Cir. 1992). “Only disputes
over facts that might affect the outcome of the suit under the governing laws will properly preclude
the entry of summary judgment.” Anderson, 477 U.S. at 248. Disputed fact issues that are
“irrelevant and unnecessary” will not be considered by a court in ruling on a summary judgment
motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence
of an element essential to its case and on which it will bear the burden of proof at trial, summary
judgment must be granted. Celotex, 477 U.S. at 322-23.
III.

Analysis
A. Legal Standard for an ADEA Claim
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).
Unlike Title VII, the ADEA does not authorize an alleged mixed-motives age discrimination claim.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009). Instead, a plaintiff bringing a disparatetreatment claim under the ADEA must prove that age was the “but-for” cause of the challenged adverse
employment action. Id. at 176 (citations omitted); Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th
Cir. 2010) (citation omitted). It is, therefore, insufficient under the ADEA for a plaintiff to show that
age was a motivating factor. Gross, 557 U.S. at 175. “But-for” cause means the cause without which
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the challenged adverse employment action or event would not have occurred. Leal v. McHugh, 731
F.3d 405, 415 (5th Cir. 2013) (citation omitted).

A plaintiff may prove employment discrimination with either direct or circumstantial
evidence. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005) (citing Portis v.
First Nat’l Bank of New Albany, Miss., 34 F.3d 325, 328 (5th Cir. 1994)). When, as here, there is
no direct evidence of discrimination, ADEA claims based on circumstantial evidence are analyzed
under the framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 80204 (1973). See Jackson v. Cal–Western Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010)
(applying McDonnell Douglas burden-shifting framework to ADEA case based on circumstantial
evidence). To establish a prima facie case of age discrimination, a plaintiff must show that: “(1)
[s]he was discharged; (2) [s]he was qualified for the position; (3) [s]he was within the protected
class at the time of discharge; and (4) [s]he was either i) replaced by someone outside the protected
class, ii) replaced by someone younger, or iii) otherwise discharged because of [her] age.” Berquist
v. Washington Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007) (citing Rachid v. Jack in the Box,
Inc., 376 F.3d 305, 309 (5th Cir. 2004); Palasota v. Haggar Clothing Co., 342 F.3d 569, 575-76
(5th Cir. 2003)); see also Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).
Once a plaintiff establishes a prima facie case, the defendant must set forth a legitimate,
nondiscriminatory reason for the employment action it took against the plaintiff. Machinchick,
398 F.3d at 350. This is a burden of production, not persuasion, on the defendant’s part, and it
“can involve no credibility assessment.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993).
“If the [defendant] articulates a legitimate, non-discriminatory reason for the employment
decision, the plaintiff must then be afforded an opportunity to rebut the employer’s purported
explanation, to show that the reason given is merely pretextual.” Moss, 610 F.3d at 922 (citation
omitted). “In determining whether the plaintiff’s rebuttal precludes summary judgment, the
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question is whether the plaintiff has shown that there is a genuine dispute of material fact as to
whether this reason was pretextual.” Id. (internal punctuation and citation omitted). Pretext may
be shown “either through evidence of disparate treatment or by showing that the employer’s
proffered explanation is false or ‘unworthy of credence.’” Jackson, 602 F.3d at 378-79 (quoting
Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
“[A] mere scintilla of evidence of pretext[,] [however,] does not create a genuine dispute
of material fact.” Anderson v. Tupelo Regional Airport Auth., 568 F. App’x 287, 290 (5th Cir.
2014) (citing Wyvill v. United Companies Life Ins. Co., 22 F.3d 296, 301(5th Cir. 2000)). A
plaintiff must present enough competent summary judgment evidence to raise a genuine dispute
of material fact that the employer’s asserted justification is false, or “prove that the employer’s
asserted justification is false.” Reeves, 530 U.S. at 148. As the Supreme Court stated in Reeves:
For instance, an employer would be entitled to judgment as a matter of law if the
record conclusively revealed some other nondiscriminatory reason for the
employer’s decision, or if the plaintiff only created a weak issue of fact as to
whether the employer’s reason was untrue and there was abundant and
uncontroverted independence evidence that no discrimination had occurred.
Id. (citation omitted).
B. UPS’s Motion for Summary Judgment
UPS contends that it is entitled to summary judgment on Wilkey’s ADEA claim because
she “has produced no competent summary judgment evidence to support her claim that ‘but for’
her age[,] she would not have been terminated for dishonesty in light of UPS’s Integrity Policy.”
Def.’s Summ. J. Br. 25 (Doc. 18). In response, Wilkey argues that UPS selectively enforced work
rules to the detriment of older workers, that Stucker knew the Surveys were being falsified, that
Stucker asked her when she was planning to retire, and that at some unidentified time after she

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was terminated, a water jug she had left behind at the facility was placed next to a dinosaur outside
the office of human resources.
For summary judgment purposes, UPS concedes that Wilkey has established a prima facie
case. UPS, however, articulates a legitimate, nondiscriminatory reason for her termination. The
record makes clear that UPS’s stated reason for terminating Wilkey was her dishonesty in
falsifying Surveys by instructing Banks to complete the Surveys for Wilkey’s subordinates, and
that this conduct violated its Integrity Policy. See Def.’s Summ. J. App. 7; see also Def.’s Summ.
J. Br. 11:
Wilkey was terminated by UPS for dishonesty in falsifying UPS documents, i.e.,
the Employee Engagement Surveys that were supposed to be completed by
employees. Wilkey instructed a subordinate to complete Surveys for Wilkey’s
employees thereby tainting the Survey data and procedures, which actions violated
UPS’s Integrity Policy. Furthermore, Wilkey admitted to this misconduct.
UPS further notes that “Wilkey even logged into the Survey database to give part-time supervisor
Tunisia Banks access in such a way that she would not be identified as the employee completing
the Surveys.” Id. (citation omitted).
The court concludes that UPS’s explanation constitutes a legitimate, nondiscriminatory
reason for Wilkey’s termination. See Rachid, 376 F.3d at 313 (“[V]iolating a non-discriminatory
company policy is adequate grounds for termination[.]”); Mayberry v. Vought Aircraft Co., 55
F.3d 1086, 1091 (5th Cir. 1995); Watts v. L-3 Comm’ns Corp., 2013 WL 3789868, at *6 (N.D.
Tex. July 22, 2013) (Fish, J.) (“A violation of a company policy is unquestionably a legitimate,
nondiscriminatory reason for termination.”) (collecting cases). 3

3

In response, Wilkey contends that UPS’s proffered legitimate, nondiscriminatory reason for terminating
her is “neither neutral nor nondiscriminatory.” Pl.’s Resp. Br. 13 (Doc. 23-1). The court rejects this
contention. First, Wilkey fails to provide any explanation to support this bald assertion. Second, the case
she cites, Patrick v. Ridge, 394 F.3d 311 (5th Cir. 2004), is easily distinguished. In Patrick, the Fifth Circuit
held that the statement that an employee was “not sufficiently suited” for a position was not specific enough
to constitute a “legitimate, nondiscriminatory reason.” 394 F.3d at 316-17. “[J]ustifying an adverse

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Wilkey contends that there is a genuine dispute of material fact with respect to whether
UPS’s stated reason for her termination is a pretext for intentional age discrimination. As a
threshold matter, to satisfy her burden of establishing that UPS’s reason for terminating her was
pretextual, Wilkey relies heavily on her own declaration, which consists of many conclusory
statements aimed at rebutting UPS’s stated reason for her termination, as well as speculative
assertions including that is was common knowledge that the Surveys were inaccurate and that she
was terminated because of her age. See Pl.’s Summ. J. App. 3-5 (Declaration of Donise Wilkey)
(“Wilkey Decl.”).

As previously stated, and as noted below, conclusory statements and

speculation are not competent evidence to defeat summary judgment. See Eason, 73 F.3d at 1325;
Forsyth, 19 F.3d at 1533.
Wilkey first attempts to establish pretext by arguing that UPS failed to adhere to the
Integrity Policy and only selectively enforced it “against older long term employees.” Pl.’s Summ.
J. App. 4, Wilkey Decl. ¶ 17. According to Wilkey, “integrity for UPS is as flexible as the wind.”
Id. ¶ 18. In an attempt to provide evidentiary support for her conclusory statements, Wilkey has
submitted declarations of former and current UPS employees to show that other employees who
engaged in dishonest conduct or violated UPS’s policies were not terminated. See Pl.’s Summ. J.
App. 6-15. 4

employment decision by offering a content-less and nonspecific statement, such as that a candidate is not
‘sufficiently suited’ for the position, is not specific enough to meet a defendant employer's burden of
production under McDonnell Douglas. It is, at bottom, a non-reason.” Id. at 317. Unlike in Patrick, UPS
has provided a specific and concrete explanation for why it terminated Wilkey, namely, for her dishonesty
in violating its Integrity Policy by instructing a subordinate to complete the Surveys for other employees
under her supervision. Finally, to the extent Wilkey appears to suggest that she need not rebut UPS’s
nondiscriminatory reason because fact issues exist as to whether she knew of the Integrity Policy, UPS’s
burden is only one of production, and, at this point, it “need not persuade the court that it was actually
motivated by the proffered reasons.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993) (quoting
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
4

See Pl.’s Summ. J. App. 6-15 (Declarations of Shannon Hanson, Engleburg Toney, Josh Vanhoozer, and
Lindsey Cox). UPS objects to the court’s consideration of the Declarations of Josh Vanhoozer and Lindsey

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“In disparate treatment cases, the plaintiff-employee must show ‘nearly identical’
circumstances for employees to be considered similarly situated.” Berquist, 500 F.3d at 353; see
also Gilbert v. Brookshire Grocery Co., 354 F. App’x 953, 954 (5th Cir. 2009) (“[F]or employees
to be considered similarly situated, an employee alleging discrimination must show that the
employees’ circumstances, including their misconduct, were nearly identical.”). To meet this
requirement, “‘the alleged comparator employees [must have been] similarly situated from the
perspective of their employer at the time of the relevant employment decisions,’ taking into
consideration such factors as the employee’s job titles, work location with the company,
supervisors, and alleged misconduct.” Davis v. Farmers Ins. Exch., 2009 WL 1065159, at *5
(N.D. Tex. Apr. 17, 2009) (McBryde, J.), aff’d, 372 F. App’x 517 (5th Cir. 2010) (quoting Perez
v. Texas Dep’t of Criminal Justice, 395 F.3d 206, 210 (5th Cir. 2004)); see also Wyvill, 212 F.3d
at 302. Additional factors used to determine whether putative comparators are similarly situated
are whether the employees being compared shared the same supervisor or had their employment
status determined by the same person and whether the violations of the comparators occurred in
the same time frame, or were too remote in time to be deemed similarly situated. See Lee v. Kansas
City S. Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009).
Applying the foregoing factors to Wilkey’s proffered comparators, the court concludes that
she has failed to show that any of the identified UPS employees (former and current) were similarly
situated and treated differently under nearly identical circumstances. Specifically, the alleged
conduct of the proffered comparators was remote in time, involved different managers or
decisionmakers, or involved different conduct. Further, Wilkey does not attempt in her response

Cox because neither of these individuals was disclosed to UPS in Wilkey’s initial disclosures or in
subsequent discovery. This objection is overruled as moot, given the court’s conclusion, below, that
neither Declaration supports her claim that the Integrity Policy was selectively enforced to the detriment of
older workers.
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brief to satisfy the Fifth Circuit’s standard for similarly situated comparators. Instead, she argues
generally that other employees engaged in acts she considers integrity violations and that UPS did
not terminate them. Wilkey does not provide the ages of those employees that she states were
treated more favorably than she was. As a result, Wilkey fails to show that she was treated less
favorably than similarly situated employees outside her protected class. See Boyd v. Dallas Indep.
Sch. Dist., 2010 WL 1687665, at *6 and n.57 (N.D. Tex. Apr. 27, 2010) (Lynn, J.) (citation
omitted) (employee failed to show she was treated less favorably than proffered comparators based
on her age when she did not produce evidence of the ages of the employees allegedly treated more
favorably). 5
In addition, as UPS correctly notes in its reply brief, Wilkey ignores Lindsey, a similarly
situated comparator:
Lindsey held the same position as Wilkey and was terminated on the same day,
March 14, 2014, for the exact same reason as Wilkey—instructing a subordinate to
falsify Employee Engagement Surverys. Although Lindsey at age 47 was in the
protected age category, he was some eight years younger than Wilkey[,] and the
decision to terminate him was made by the same managers who terminated Wilkey.
. . . These facts further undermine Wilkey’s claim that her termination was a pretext
for age discrimination.
Def.’s Reply 10 (Doc. 24).
Wilkey also attempts to prove pretext by asserting that Stucker knew of her plan to have
Banks complete the Surveys and stated, “I don’t care how you get them done. Just get them done.”
Id. ¶ 5. Wilkey, however, provides no argument or evidence generally that this statement somehow
exonerates her from her violation of the Policy, evidences intentional age discrimination, or is

5

Further, Wilkey has not identified any employee of which she has personal knowledge who directed a
subordinate to falsify Surveys, whose conduct was reported to upper management, and who was not
terminated.

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related to her termination. It is undisputed that Korn, not Stucker, made the decision to terminate
Wilkey.
Wilkey further argues that Stucker’s questioning her about when she was going to retire
demonstrates, in conjunction with her prima facie case, that the asserted reason for her termination
is pretextual. The court disagrees. “[I]nquiry into [an employee’s] retirement plans is not evidence
of unlawful conduct” under the ADEA. Mayes v. Kelly Servs., Inc., 2004 WL 533951, at *4 (N.D.
Tex. 2004), aff’d, 108 F. App’x 932 (5th Cir. 2004); see also Moore v. Eli Lilly & Co., 990 F.2d
812, 818 (5th Cir. 1993) (questions by supervisor about plaintiff’s retirement plans and those of
team members “cannot be said to represent . . . a discriminatory intent” by the supervisor). In
addition, the Supreme Court has made clear that an employee’s age and her seniority are not
synonymous. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1991) (“[A]n employee’s age
is analytically distinct from [her] years of service” and the fact that an employee is treated
differently based on seniority is not “age-based.”). 6
Wilkey also seeks to establish pretext by stating in her declaration that after she was
terminated, “[her] water jug was put on a dinosaur outside the H.R. office.” Pl.’s Summ J. App.
5, Wilkey Decl. ¶ 22. This argument is baseless and has no support in the record.
Attached to Wilkey’s declaration is a photograph. From what the court can glean from the
photograph, it appears to show a small container placed next to what appears to be a toy or perhaps
a blow-up dinosaur. Nothing in the record indicates who took the photograph, when it was taken,

6

Even were Stucker’s questions about her retirement relevant, there is no evidence that these comments
reflected discriminatory animus based on age or related in any way to her termination. See Reed v. Neopost
USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012) (“Where a plaintiff offers remarks as circumstantial evidence
alongside other alleged discriminatory conduct . . .[,] a plaintiff need only show (1) discriminatory animus
(2) on the part of a person that is either primarily responsible for the challenged employment action or by
a person with influence or leverage over the relevant decisionmaker.”). It is undisputed that Korn, not
Stucker, was responsible for the decision to terminate Wilkey, and there is no evidence Stucker had
influence over the decisionmaker. See supra note 2.

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or how or why it was taken. The photograph, according to Wilkey’s handwritten notations, was
taken on May 5, 2015, approximately fourteen months after her termination. Apparently, Wilkey
wants the court to draw an inference that the photograph is probative of intentional age
discrimination. There is no evidence in the record that Korn, the person who made the decision to
terminate Wilkey after consulting with the Director of Human Resources and the District Director
of Security, was aware of her water container being next to the dinosaur. Further, the mere
placement of the water container next to the dinosaur is simply not reasonably susceptible to the
interpretation Wilkey seeks to ascribe to it. On the scant record before it, and with the abovedescribed gaps in crucial information concerning the photograph, and given the fourteen months
that elapsed between her termination and the purported date on which the photograph was taken,
this is a baseless and unreasonable inference to draw.
Contrary to her previous handwritten statement submitted to UPS admitting to her actions
in falsifying Surveys and stating that she knew her actions were “not the right thing to do and [she]
made a bad decision[,] (see Def.’s Summ. J. App. 221-23), Wilkey testified in her deposition that
she did not know that falsifying records was a terminable offense and that UPS should have
disciplined her less harshly based on her exemplary previous record with the company. The court
is not persuaded by this argument, however, as the only question before the court is whether UPS’s
decision to terminate Wilkey was because of intentional age discrimination. As stated by the Fifth
Circuit:
The ADEA was not intended to be a vehicle for judicial second-guessing of
employment decisions nor was it intended to transform the courts into personnel
managers. The ADEA cannot protect older employees from erroneous or even
arbitrary personnel decisions, but only from decisions which are unlawfully
motivated.

Memorandum Opinion and Order - Page 16

Moss, 610 F.3d at 926 (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507-08 (5th
Cir.1988)). In short, whether UPS should have disciplined Wilkey differently for falsifying
records in light of her previous work history is not relevant to this court’s analysis, as an employer
may manage its affairs as it sees fit, as long as its methods are nondiscriminatory. 7
In sum, viewing all evidence in the light most favorable to Wilkey as the nonmovant, the
court concludes that she has failed to raise a genuine dispute of material fact that UPS’s
nondiscriminatory reason for firing her—violating company policy—was a pretext for age
discrimination, and that “but for” Wilkey’s age, she would not have been terminated. Accordingly,
there is no genuine dispute of material fact as to Wilkey’s ADEA claim, and UPS is entitled to
judgment as a matter of law on this claim.
IV.

Conclusion
For the reasons stated herein, the court determines that no genuine dispute of material fact

exists with respect to Wilkey’s claim of age discrimination under the ADEA. UPS is, therefore,
entitled to judgment as a matter of law on this claim. Accordingly, the court grants Defendant
United Parcel Service, Inc.’s Motion for Summary Judgment (Doc. 17); and dismisses with
prejudice this action. Judgment will issue by separate document as required by Federal Rule of
Civil Procedure 58(a).
It is so ordered this 29th day of January, 2018.

_________________________________
Sam A. Lindsay
United States District Judge

7

Some may perceive UPS’s decision to terminate Wilkey as unduly harsh in light of her many years of
service and her lack of previous disciplinary actions. Notwithstanding these perceptions, the court
determines that there is no evidence of intentional age discrimination, which is the only issue before it.

Memorandum Opinion and Order - Page 17