United States District Court, D. Colorado
JOSEPH R. HART and KENDALL S. PALMER, Plaintiffs,
UPS FREIGHT, Defendant.
ORDER FOR SUMMARY JUDGMENT DISMISSING ALL CLAIMS OF
PLAINTIFF JOSEPH R. HART
RICHARD P. MATSCH, SENIOR JUDGE
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.
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.
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.
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.
following facts pertaining to Hart's claims are
undisputed, except where otherwise stated.
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.
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
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.
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.
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
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.
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.
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.
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
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