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 KENDALL S. PALMER
Richard P. Matsch Senior District Judge
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.
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. The 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 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.
following facts pertaining to Palmer's claims are
undisputed, except where otherwise stated.
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
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.
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.
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.'
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.
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.
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).
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.
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.
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.
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 ...