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Hart v. UPS Freight

United States District Court, D. Colorado

July 19, 2017

JOSEPH R. HART and KENDALL S. PALMER, Plaintiffs,
v.
UPS FREIGHT, Defendant.

          ORDER FOR SUMMARY JUDGMENT DISMISSING ALL CLAIMS OF PLAINTIFF JOSEPH R. HART

          RICHARD P. MATSCH, SENIOR JUDGE

         Joseph R. Hart (“Hart”) and Kendall S. Palmer (“Palmer”) are African-American men who were formerly employed by UPS Freight (“UPS”). Their amended complaint, filed September 24, 2015, alleges four claims for relief against UPS, styled as: (1) race-based discrimination, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); (2) gender discrimination in violation of Title VII; (3) retaliation in violation of Title VII, and (4) racial discrimination, gender discrimination, retaliation and hostile work environment in violation of the Colorado Anti-Discrimination Act, C.R.S. § 24-34-402.

         Jurisdiction is provided by 28 U.S.C. § 1331 and Title VII. Supplemental jurisdiction for the plaintiffs' state law claims is provided by 28 U.S.C. § 1367.

         UPS filed two motions pursuant to Fed.R.Civ.P. 56, separately addressing the claims alleged by Palmer and Hart and seeking dismissal of all claims. Plaintiffs opposed the motions in a combined response, and UPS replied. The Court heard arguments of counsel on June 21, 2017.

         Palmer and Hart were coworkers and they allege the same legal claims, but the facts regarding each plaintiff's employment, disciplinary history, and discharge are different and are considered in separate rulings.

         The following facts pertaining to Hart's claims are undisputed, except where otherwise stated.

         UPS is in the freight delivery business. Hart was hired by UPS in June, 2013, as a tractor-trailer freight driver/dockworker at its Denver Service Center. Hart received varying assignments from UPS each day and would start work at different shifts. Def.'s Ex. 1, Hart Dep. at 234:21-25; 235:1-10. At times he would be called upon to pick up or deliver freight apart from the route assigned that day. Id. at 190:5-20.

         There is a collective bargaining agreement, entitled National Master UPS Freight Agreement, between UPS and the Teamsters Local Union No. 17. Def.'s Ex. 2 (“the CBA”). Hart was a union member, and the CBA applied to his employment.

         Article 6 of the CBA addresses suspension, discipline and discharge. Article 7 addresses grievance procedures. The agreement also provides in Article 28:

The Company and the Union agree not to discriminate against any individual with respect to hiring, compensation, terms or conditions of employment because of such individual's race, color, religion, sex, age or national origin nor will they limit, segregate or classify employees in any way to deprive any individual employee of employment opportunities because of race, color, religion, sex, age, or national origin or engages [sic] in other discriminatory acts prohibited by the American With Disabilities Act.

CBA at p. 74.

         Dara Bossio, a woman, worked for UPS as a dispatcher. She was one of Hart's supervisors. Hart heard Bossio say that the problem at UPS was that she had to work with “a bunch of fucking men.” There is a factual dispute about how often Bossio made such a remark. It is assumed that Bossio made that comment on several occasions.

         In August, 2013, Hart and other men complained about Bossio to terminal manager Marc Snyder. In September, 2013, Hart and others spoke with someone in UPS's Human Resources department about Bossio's conduct. Bossio was not disciplined.

         Kendall Palmer was one of Hart's coworkers and a union steward. On November 27, 2013, Palmer filed Union Grievance No. 45991 on behalf of Hart and others, asserting that Bossio's comments about men were discriminatory and violated Article 28 of the collective bargaining agreement. Pls.' Ex. 4. That grievance was withdrawn because it was not timely.

         On December 3, 2013, Hart filed a National Labor Relations Board charge, complaining that UPS had retaliated against him for “standing up for coworkers and for asserting rights under the collective bargaining agreement, including seniority rights.” Def.'s Ex. 7. Hart dismissed that NLRB charge on January 14, 2014, and instead filed an EEOC charge of racial discrimination, gender discrimination, and retaliation. Def.'s Ex. 5; Pls.' Ex. 22. In that EEOC charge, Hart stated that he had received numerous disciplinary actions on the “Pittsburgh form, ” which is the first step in the disciplinary process, and that employees of color were disciplined more frequently and more severely than white employees for the same or similar incidents. The EEOC charge cited Bossio's comments, stating that Bossio harassed all the men, and men of color were harassed even more. Hart's charge also stated that he had been retaliated against for complaining about discrimination and harassment. Id.

         Hart filed Union Grievance No. 47549 on January 30, 2014, complaining that drivers with less seniority were given work when he was given part of the day off due to weather and a shortage of freight volume. Def.'s Ex. 8 & 9; Pls.' Ex. 25. On the grievance form, Hart said that was discrimination and harassment, and he requested compensation for the time off. That grievance was settled and withdrawn. Id.

         On August 26, 2014, Hart was called to a meeting with terminal manager Marc Snyder (“Snyder”), service center manager Rick Etzler (“Etzler”), and Union representative Lonnie Sansburn. See Def.'s Ex. 9 at UPS 1690. At the meeting, Hart was told that he was going to be given a warning letter for being “on property” too long without notifying his supervisor of yard delays and for failing to begin his route on time. “On property time” refers to how long a driver is on the UPS property in the morning before taking off to start his assigned route. Hart Dep. at 261:22 - 262:1. Hart then filed Union Grievance No. 48505, complaining that he was being harassed and targeted. Pls.' Ex. 26. Hart was given the warning letter on August 29, 2014. Def.'s Ex. 9 at USPS 1690.

         Months later, on the morning of April 22, 2015, Hart missed the morning meeting of drivers because he spent approximately 10 minutes in the bathroom after he clocked in. When Hart emerged from the bathroom, Bossio told him that he would not be paid for the time he spent in the bathroom. Bossio said that to Hart in front of his coworkers. Hart filed Union Grievance No. 49502, complaining about Bossio's conduct and stating that assistant terminal manager Ray Jenkins (“Jenkins”) took a special interest in the bathroom habits of Black employees. On the grievance form, Hart described Bossio and Jenkins as “tag team bigots, ” and requested that Bossio and Jenkins be discharged for violating Article 28 of the CBA. Def.'s Ex. 10; Pls.' Ex. 27. After discussion, Etzler determined that Hart would be paid for the time he spent in the bathroom and told Hart not to make a habit of that behavior. Def.'s Ex. 4, Etzler Dep. at 119:14-25; 120:1-21. Hart still insisted he had been the target of discrimination and ...


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