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Ewing v. United Parcel Service, Inc.

United States District Court, D. Kansas

January 26, 2018

Shenitta Ewing, Plaintiff,
United Parcel Service, Inc., Defendant.


          John W. Lungstrum United States District Judge

         Plaintiff filed this lawsuit against her former employer, United Parcel Service, Inc. (“UPS”), alleging that UPS terminated her employment on the basis of her race. Plaintiff's race discrimination claim is asserted under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter is presently before the court on defendant's motion for summary judgment (doc. 20). As will be explained, the motion is granted.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Defendant United Parcel Service, Inc. (“UPS”) is a package delivery company. Plaintiff Shenitta Ewing, an African-American, began her employment with UPS in March 2012 as a Customer Service Representative in the auto injury claims department at UPS's facility in Overland Park, Kansas. During plaintiff's employment, all UPS employees at the Overland Park facility were subject to UPS's Personal Appearance Guidelines, which state: “Hairstyles and hair color should be worn in a businesslike manner.” The policy seeks to avoid those extremes in appearance that UPS believes are out of place in a business environment. It is uncontroverted that the policy prohibits UPS employees from maintaining hair colors such as purple, pink, fuchsia, crimson and burgundy.

         The evidence is uncontroverted that UPS management enforced the Personal Appearance Guidelines on several occasions with respect to hair color. For example, in April 2014, Jessica Fox, a Caucasian employee who, like plaintiff, worked as a customer service representative at the Overland Park facility, reported to work with fuchsia-colored hair. Ms. Fox was instructed by her supervisors that her hair color did not comply with UPS's guidelines and that she needed to change it. Ms. Fox changed her hair color within one week in order to comply with the guidelines. In June 2014, plaintiff reported to work with “micro braid extensions” in her hair. Plaintiff testified that she had approximately 150 braids put into her hair. Plaintiff testified that the braid extensions were burgundy with blond highlights. The burgundy color of the extensions was intended to match the color that plaintiff typically wore in her hair-a crimson rinse that plaintiff has utilized in her hair for the duration of her employment with UPS.[1]

         An employee reported the guideline violation to Kyra McDonald, who is African-American and has worked at the facility as a human resources manager for 13 years. Ms. McDonald counseled plaintiff that her hair style and color did not comply with the guidelines and that she needed to change it. Two other members of UPS management were present at this meeting-Brenda Ransburg, an African-American female who was (and remains today) an Operations Manager at the Overland Park facility, and Gayle O'Grady, a Caucasian female who was plaintiff's immediate supervisor at the time. Plaintiff asserts that Ms. O'Grady was the person who reported plaintiff's hair color to Ms. McDonald. Although Ms. O'Grady wanted plaintiff to remove the braids immediately, Ms. McDonald understood that the braids were expensive to get put in and she told plaintiff that she could wear the braids for several weeks so long as she kept the braids pinned up rather than hanging down. Plaintiff testified that she removed the braids within two months of this meeting. According to plaintiff, after she removed the braids, she simply wore her “normal” hair color that she achieves by utilizing a crimson or burgundy rinse once a month.

         In April 2015, plaintiff changed her hair again in preparation for a wedding. According to plaintiff, she went through “another expensive hair process” that involved a “perm” on her hair, a rinse, and hair extensions. Plaintiff testified that her hair color was a “brighter burgundy” in light of the changes she made to it.[2] On April 27, 2015, Ms. McDonald received complaints from other employees that plaintiff's hair color violated the guidelines and that it would be unfair to allow plaintiff to violate the guidelines when the guidelines were enforced with respect to other employees. Ms. McDonald averred that plaintiff's hair color was “bright fuschia.” Regardless, it is uncontroverted that plaintiff's hair color was almost identical to the color that Ms. Fox was instructed to change the previous year. Several of plaintiff's supervisors told Ms. McDonald that they had previously counseled plaintiff on multiple occasions about the fact that her hair color violated the guidelines. Ms. McDonald avers that she believed that plaintiff's hair color was creating a distraction in the workplace. Ms. McDonald met with plaintiff and reminded plaintiff of the previous counselings she had received regarding the guidelines and informed her that her hair color did not comply with the guidelines and needed to be changed. Plaintiff testified that Ms. McDonald again understood the expense that plaintiff had incurred in connection with the hair style and color and further understood that plaintiff could not immediately put another chemical on her hair because her hair would come out. For these reasons, Ms. McDonald allowed plaintiff additional time to change her hair color. Plaintiff testified that Ms. McDonald told her that she had until mid-June to change her hair color and that, in the meantime, she could wear a scarf over her hair or a wear a wig.[3] Ms. McDonald issued plaintiff a final written warning on April 29, 2015 that indicated that any further violations could result in the termination of plaintiff's employment. Plaintiff signed the warning that same day and she agreed to change her hair color by mid-June 2015.

         On June 16, 2015, both Ms. McDonald and Ms. Ransburg observed that plaintiff's hair color did not comply with UPS's guidelines.[4] Ms. Ransburg discovered that plaintiff was subject to a final written warning concerning her hair color and that she had failed to comply with the guidelines despite having ample time to change her hair color. Ms. Ransburg met with plaintiff that day and terminated plaintiff's employment for failure to comply with UPS's Personal Appearance guidelines. Plaintiff does not dispute that Ms. Ransburg told her that she was terminating plaintiff's employment because plaintiff's burgundy hair color violated UPS's Personal Appearance guidelines. Plaintiff, however, told Ms. Ransburg that she had changed her color as she had been instructed to do. According to plaintiff, she had had a brown hair dye put over her burgundy rinse at some point prior to June 16, 2015. Nonetheless, plaintiff conceded in her deposition that there was still “burgundy” in her hair at the time of her termination and she expressly stated in response to an Interrogatory that her hair color on the date of her termination was “burgundy.”

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Race Discrimination Claim

         In the pretrial order, plaintiff asserts that UPS terminated her employment on the basis of her race. Plaintiff concedes that she has no direct evidence of discrimination, and her claim is therefore analyzed using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th Cir. 2012). Under McDonnell Douglas, plaintiff has the initial burden of establishing a prima facie case of discrimination. Id. To set forth a prima facie case of discrimination, plaintiff must establish “(1) membership in a protected class and (2) an adverse employment action (3) that took place under circumstances giving rise to an inference of discrimination.” Id. (citing EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007)). If she establishes a prima facie case, the burden shifts to defendant to assert a legitimate, nondiscriminatory reason for the adverse employment action. Id. If defendant meets this burden, summary judgment against plaintiff is warranted unless she introduces evidence “that the stated nondiscriminatory reason is merely a pretext for discriminatory intent.” Id. (citing Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir. 2011)).

         A. ...

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