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Drape v. UPS, Inc.

United States District Court, Tenth Circuit

December 23, 2013

JOHN DRAPE, Plaintiff,
UPS, INC., Defendant.


KATHRYN H. VRATIL United States District Judge.

John Drape brings suit pro se against UPS, Inc. for age discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. This matter is before the Court on Defendant United Parcel Service, Inc.’s Motion For Summary Judgment (Doc. #68) filed March 26, 2013. For reasons stated below, the Court sustains the motion in part.

I. Legal Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hill v. Allstate Ins. Co., 479 F.3d 735, 740 (10th Cir. 2007). A factual dispute is “material” only if it “might affect the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248. A “genuine” factual dispute requires more than a mere scintilla of evidence in support of a party’s position. Id. at 252.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which he carries the burden of proof. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry his burden, the nonmoving party may not rest on his pleadings but must instead set forth specific facts supported by competent evidence. Nahno-Lopez, 625 F.3d at 1283. Although the Court holds pro se filings to a less stringent standard than formal pleadings drafted by lawyers, it does not assume the role of advocate for a pro se litigant; he must follow the same rules that govern all other litigants. See Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary judgment if the nonmoving party’s evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. In response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988); Olympic Club v. Those Interested Underwriters at Lloyd’s London, 991 F.2d 497, 503 (9th Cir. 1993). The heart of the inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52.

II. Facts

The following facts are either uncontroverted, deemed admitted or construed in the light most favorable to plaintiff, the nonmovant.[1]

UPS is a package delivery company which has an interest in processing packages as efficiently and quickly as possible. It has a Professional Conduct and Anti-Harassment Policy which expressly prohibits discrimination, harassment and retaliation.

At UPS, loaders take packages off of conveyor belts and load them onto trailers designated for certain destinations. The different belts are identified by color. For example, packages on the red belt are designated for locations in Iowa and Kansas, while packages on the pink belt are designated for the Kansas City metropolitan area. Each loader performs the same function – loading packages – regardless of the belt on which he works.

Loading requires physical labor, including lifting, bending, climbing ladders, picking up packages, removing and stacking packages from carts, and walking repeatedly back and forth in trailers. Loaders report to part-time supervisors, full-time supervisors, and ultimately to the business manager. Full-time supervisors also report to the business manager. Part-time supervisors generally do not have authority to hire, fire, suspend or move employees. The business manager and/or full-time supervisor are responsible for ultimate employment decisions.

From August of 2008 through September of 2011, Mark Bowen was the business manager over the day sort in Lenexa. His duties included overseeing loaders and making personnel and disciplinary decisions.

In August of 1998, UPS hired plaintiff as a part-time loader in its facility in Lenexa, Kansas. At the time, he was 44 years old. Plaintiff worked on the red belt until December 6, 2010, when Bowen moved him to the pink belt. Plaintiff continues to work for UPS, and he likes working there. Plaintiff is a union member represented by Local 41. As such, plaintiff is entitled to file grievances and be represented by the union.

A. Summer of 2009 – Plaintiff “Locked In” To Load Most Difficult Trailer And Counseled For Harassing His Supervisors

In July of 2009, Rebecca Aciego became full-time supervisor over the red belt. As noted, almost a year earlier, in August of 2008, Bowen became business manager over the day sort, which included the red belt. When management over the red belt changed, plaintiff observed that management was trying to get more work out of everyone, regardless of age.

Bowen, Aciego and other supervisors generally expected loaders at the Lenexa facility to load 300 packages per hour (“PPH”).[2] Aciego set goal of 300 PPH for her loaders. Supervisors discussed PPH with each of their loaders every day. Although the goal for all loaders was 300 PPH, UPS generally did not discipline loaders for not reaching the goal because it assumed that loaders would work to their full potential.

Prior to the summer of 2009, plaintiff had worked at UPS for 10 years and no one had complained about his PPH. Within a month after Aciego arrived on the red belt, she observed that plaintiff exhibited inappropriate and combative behavior toward herself and Breanne Knaebel, the part-time supervisor on the red belt.[3] Knaebel treated people erratically and plaintiff had a difficult relationship with her.[4] Knaebel put plaintiff in particular trailers based on PPH, i.e. the number of packages that he loaded per hour. Plaintiff’s Depo. at 96:8-97:7. On several occasions, Knaebel told plaintiff that she would let him work in more desirable trailers if he reached over 300 PPH. Id. at 96:11-13. Plaintiff contends that at times, he did reach over 300 PPH. Id. at 97:3-6.

Bowen and Aciego punished plaintiff by putting him in the hardest trailer to load, i.e. the Garden City trailer. Affidavit of Rodney Taylor (Doc. #78-8) ¶ 25, Exhibit 7 to Plaintiff’s Response (Doc. #78). They gave him less help than others who worked in this trailer. Id. Normally, loaders received help while loading the Garden City trailer but plaintiff did not. Id. ¶ 28. The Garden City trailer is the hardest trailer to load; the loader has to stack his boxes on the floor until the next trailer arrives, but while he is stacking he does not get PPH credit. Id. ¶ 29.

On August 5, 2009, plaintiff was “locked” in the Garden City trailer.[5] Plaintiff complained and asked to be moved to a different trailer. He then left his trailer and instead of loading, yelled at Aciego and Knaebel. Aciego complained to management that plaintiff had harassed her and Knaebel.

The next day, on August 6, 2009, Employee Relations Manager Brad Williams, Labor Manager Don Lewick, Manager Gary Watkins and Aciego met with plaintiff for an informal review. They reviewed the UPS anti-discrimination/harassment policy and plaintiff signed the policy. At the meeting, plaintiff complained that Knaebel locked him into trailers without help and micro-managed him. Plaintiff’s Depo. at 94:4-9, Exhibit 2 to Plaintiff’s Response (Doc. #78). Watkins called plaintiff difficult, obstinate and intimidating and said that if he were in charge, he would fire plaintiff on the spot. Id. at 92:5-21. Following the meeting, plaintiff wrote a letter to Williams which complained about Watkins’ conduct at the meeting. Id. at 95:14-21.

B. Fall Of 2009 – Plaintiff Fired For Refusing To Stretch And Reinstated

On October 15, 2009, Bowen directed supervisors to lead over 300 employees in stretching.[6]As a result, Knaebel encouraged employees on the red belt to stretch. Plaintiff’s Depo. at 100:23-25. The employees participating in the stretching activity were down on the floor and had not yet clocked in. Id. at 101:4-11. Plaintiff was on the clock and in a trailer working. Id. at 100:9-11, 101:4-11. Knaebel told plaintiff to stop what he was doing and stretch. Id. at 100:9-11. Plaintiff replied that he had already started work and that he was not going to stretch. Id. at 100:15-16. Plaintiff stated that he felt like it was an intrusive personal thing and that she was jerking him around.[7] I d . at 100:17-19. When plaintiff refused to stretch, Knaebel contacted Aciego and Bowen.

When Aciego and Bowen arrived, Aciego asked plaintiff if he had refused to stretch. Plaintiff replied: “Yes I refused to stretch, and if [Knaebel] wanted to, she could also instruct me to bark like a dog and I wouldn’t do that either.” Bowen then asked plaintiff if he refused to follow instructions. Plaintiff answered, “Yes I did.” Bowen explained that plaintiff could only refuse to follow instructions if they were illegal, immoral or unethical. Plaintiff responded that Knaebel’s instruction was unethical and harassing. Bowen disagreed and asked plaintiff whether he would participate in stretching or not. Plaintiff responded that he would not follow the instruction. Bowen then terminated plaintiff for refusing to follow instructions. Bowen ultimately reduced the termination to a suspension.

On October 16, 2009, plaintiff wrote a letter to Williams which stated in part as follows:

[T]he actions of other full time managers make me question whether there is pressure to remove me from the red belt. A half dozen times in the last month I have been asked to sign up for openings in the small sort. These invitations have come from Rebecca, Dave O’Bryan, and Tyler Dawson. The context of these invitations has been friendly but also linked to the difficulty I continue to have with Breanne [Knaebel].

Letter to Williams (undated, unsigned and unauthenticated), Exhibit 6 to Plaintiff’s Response (Doc. #78).[8]

Plaintiff filed a grievance regarding the suspension. When he arrived for the hearing, Bowen gave him an option of having a hearing or returning to work on the red belt and Bowen would transfer Knaebel to the orange belt. Plaintiff’s Depo. at ...

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