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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 KENDALL S. PALMER

          Richard P. Matsch Senior District Judge

         Kendall S. Palmer (“Palmer”) and Joseph R. Hart (“Hart”) are African-American men 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. The 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 allege the same legal claims, but the facts regarding each plaintiff's employment, disciplinary history, and discharge are different. The two motions are addressed in separate rulings.

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

         UPS is in the freight delivery business. Palmer was hired by UPS in August, 2008, as a tractor-trailer freight driver/dockworker at its Denver Service Center. When Palmer began working for UPS, he worked at different times, receiving various assignments. Later he successfully bid for routes based upon seniority and was assigned a daily route. He could be called upon by UPS to pick up or deliver freight apart from his regular route.

         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”). Palmer was a union member, and the CBA applied to his employment. Palmer served as a union steward.

         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.

         On November 22, 2013, Palmer was criticized for taking too much time on pre-trip inspections of his truck. Pls.' Ex. 14, Palmer Aff. ¶ 17. He filed a complaint with the Motor Carrier Safety Section of the Colorado State Patrol, complaining that UPS was not allowing employees enough time to do thorough pre-trip inspections of their trucks and that employees were being disciplined for taking more than 25 minutes to perform inspections. Id. & Pls.' Ex. 14-2.

         Palmer filed a National Labor Relations Board (“NLRB”) charge against UPS on November 22, 2013, complaining that he had been “disciplined, harassed, and micromanaged” on account of “his status as a Shop Steward and other protected concerted activity.” Palmer Aff. ¶ 16 & Pls.' Ex. 12. Shortly thereafter he filed a second NLRB charge, complaining that UPS had increased its discipline after he filed his first charge. Pls.' Ex. 13. The NLRB dismissed Palmer's second charge, concluding there was no evidence to support it. Id. Palmer then withdrew his first NLRB charge. Def.'s Ex. 1, Palmer Dep. at 130:9-12.

         Dara Bossio, a woman, worked for UPS as a dispatcher. She was one of Palmer's supervisors. Some of Palmer's coworkers 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 she said it on several occasions.

         Palmer did not hear Bossio make the remark but others told him about it. Palmer felt that Bossio talked to him in a belittling manner, and he found Bossio's demeanor to be offensive. Palmer Dep. at 95-100 (all).

         On November 27, 2013, Palmer filed a union grievance on behalf of coworker Joseph Hart and others, complaining that Bossio's comments about men were discriminatory. Pls.' Ex. 4. That grievance was untimely, and Palmer withdrew it. Palmer Aff. ¶ 8. Bossio was not disciplined for her comments.

         Palmer filed another union grievance, claiming that he was being disciplined unfairly due to his race after he was issued a warning for not following company rules about clocking in and out for lunch. That grievance was denied by the UPS/Union panel. Christensen Dep. at 60:4-20.[1]

         On another occasion, Palmer received discipline for using the restroom before he took a break. Palmer Aff. ¶ 20. He filed a union grievance about that matter, but withdrew it and instead filed EEOC Charge No. 541-2014-00383 on December 19, 2013, complaining of racial and sex discrimination based on allegations of harassment and discriminatory discipline. Pls.' Ex. 10. Palmer's EEOC charge stated that he had received disciplinary notices for taking five-minute bathroom breaks and also described Bossio's comments about having to work with “a bunch of fucking men.” Id. The EEOC charge stated that other drivers within his protected groups had been similarly harassed and disciplined, whereas non-Black drivers had received more lenient discipline or no discipline when they committed similar violations of company policies and rules. Id.

         On September 24, 2014, Palmer attempted to initiate a grievance to complain that UPS was assigning the most undesirable late-day pick-up jobs to minority drivers. Palmer Aff. ¶ 19; Pls.' Ex. 14-4. When he asked Bossio to sign the grievance form, there was a confrontation, and Palmer walked away and clocked out. As Palmer was walking away, he was paged by intercom, but he did not respond. The next day, Rick Etzler, the manager of the Denver Service Center, told Palmer that his employment was being terminated for ...


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