No. C 04-02866 CRB.
July 27, 2005
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This employment discrimination action arises from plaintiff Rudolph Cole's termination from his position as a package car driver for United Parcel Service ("UPS"). Plaintiff alleges that he suffered discrimination on the basis of his age and race, and was eventually terminated in retaliation for a letter he wrote to the alleged CEO of UPS. Now before the Court is defendant UPS's motion for summary judgment. After carefully considering papers filed by both parties, the Court GRANTS defendant's motion for summary judgment.
I. Undisputed Facts
Cole began working for UPS as a package car driver in October, 1984. As a package car driver, Cole's duties included making deliveries to and picking up packages from UPS customers along a downtown Oakland route. Cole was a member of the Teamsters Union ("Union"), and the collective bargaining agreements between UPS and the Union governed the terms and conditions of Cole's employment.
Cole consistently failed to meet UPS's performance standards. His performance problems included: (1) consistently running 3 to 4.5 hours "overallowed" on an almost daily basis; (2) working excessive overtime; (3) working over 12 hours without notifying the center; (4) chronic tardiness; (5) not following UPS's lunch and break policies; (6) security violations (e.g. he was caught leaving packages unattended on the sidewalk and leaving his vehicle unlocked when he entered a building to make a delivery); (7) safety violations (e.g. making illegal U-turns in busy intersections). Management and Union representatives spoke with Cole on multiple occasions about his performance, and repeatedly warned him that failure to improve his performance could lead to disciplinary action, including termination. Additionally, between May 1999 and February 2003 (Cole's last month of employment), UPS issued at least 27 disciplinary letters to plaintiff for his failure to follow UPS standards.
"Overallowed" time is time taken in excess of the amount determined by UPS to be appropriate for a specific route.
On April 6, 2002, Cole wrote a letter to Eric Huffman, who Cole addressed as the CEO of UPS. Mr. Huffman, however, has never been UPS's CEO. The letter outlined the various problems that Cole alleged to have had with UPS including his belief that he was being targeted by UPS management because of his age and race. The letter asked Mr. Huffman to intervene and help Cole so as to improve conditions on the job and Cole's overall stress level. This letter was also allegedly sent to eight other individuals including five managers from the East Bay District.
At the time the letter was sent, Mr. Huffman was UPS's Corporate Human Relations Manager at UPS's corporate headquarters in Atlanta, Georgia.
Also in mid-2002, UPS's East Bay District Manager instructed management employees to take steps to improve employee performance in the District. As a result, Bob Pedulla, the Oakland Package Division Manager, began to closely monitor his drivers through "Morning Reports." These reports are issued to management each day to identify, through objective criteria, the drivers in each center who performed the worst in three specific categories the previous day. The three categories were: (1) the last driver to return to his/her center; (2) the driver who was most overallowed; (3) the driver who worked the most hours. While it is not unusual for satisfactorily performing drivers to be listed in one of these categories on occasion, a record of consistent listings suggests substandard performance. Cole's name repeatedly showed up on these morning reports. In fact, between February 2002 and February 2003, Cole's name appeared a total of 173 times. The driver with the next most occurrences appeared a total of 52 times. Further, not only did Cole's name appear on the morning reports more than any other driver in the Oakland Division, it appeared more than any other driver in the entire East Bay District which spans from Napa to Bakersfield.
Because of Cole's poor record, UPS began to suspect that Cole was "stealing time" — that is, he was taking personal time while on the clock or otherwise artificially inflating his work day in order to receive overtime pay. "Stealing time" is a terminable offense under the collective bargaining agreement. UPS however, is not allowed to terminate drivers for theft based solely on suspicion. Therefore, UPS must conduct surveillance of any driver suspected of stealing time to determine whether the problems indicated by the statistical reports are intentional or unintentional and due to factors beyond the driver's control. Thus, UPS conducted a three-day surveillance of Cole to determine if he was in fact "stealing time." On February 18, 19, and 21, 2003, private investigators watched Cole deliver his regular route. The surveillance reports, including videotapes, revealed that Cole took excess personal time while on the clock and manipulated the delivery information he recorded to cover up his delayed deliveries and time spent socializing. Additionally, on each of these days, Cole worked overtime and called to request assistance in completing his deliveries.
Following the last day of surveillance, management met with Cole to discuss the surveillance findings, and to show him videotape clips that revealed him socializing rather than working. Cole was asked if he had any explanation for his behavior, but offered none. At the conclusion of the meeting, Pedulla decided to terminate Cole for theft of time and falsification of records.
II. Procedural History
Pursuant to the collective bargaining agreement between the Union and UPS, the Union automatically filed a grievance on plaintiff's behalf challenging the termination. The joint Union-Management Grievance Panel considered the evidence and upheld the termination as being justified. On August 3, 2003, Cole filed a Charge of Discrimination with the Department of Fair Employment and Housing ("DFEH") alleging that UPS had discriminated against him on the basis of race and age, and retaliated against him for opposing discrimination in a letter to Huffman dated April 6, 2002. On April 23, 2004, after investigation of the matter, the DFEH issued a notice of case closure and a "no probable cause" finding.
Cole filed the present lawsuit on June 2, 2004 alleging race and age discrimination and retaliation.
I. Standard for Summary Judgment
Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party.See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if the fact may affect the outcome of the case. See id. at 248. "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party."Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986).
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits which demonstrate the absence of a genuine issue of material fact. See id. at 323. Where the moving party will have the burden of proof on an issue at trial. I must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. See id. Once the moving party meets this initial burden, the non-moving party must go beyond the pleadings and by its own evidence "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995), and noting that it is not a district court's task to "scour the record in search of a genuine issue of triable fact"). If the non-moving party fails to make this showing, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 323.
The Ninth Circuit "Has set a high standard for the granting of summary judgment in employment discrimination cases." Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1410 (9th Cir. 1996). When a plaintiff "seeks to establish a prima facie case [of discrimination] through the submission of actual evidence, very little such evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a factfinder." Lowe v. City of Monrovia, 775 F.2d 998, 1009 (9th Cir. 1985).
II. Plaintiff's Claim of age and Race Discrimination in Violation of the FEHA
A. The Parties' Respective Burdens
In considering employment discrimination claims, a burden-shifting test has been set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354 (2000). Under this test, the plaintiff bears the initial burden to establish a prima facie case of discrimination. Id. At 354-55. Assuming this is done, the burden shifts to defendants to show a legitimate nondiscriminatory reason for their actions. Id. at 355. The ultimate burden then lies with plaintiff to prove that the articulated reason is pretextual. Id. at 355-56.
B. Plaintiff's Prima Facie Case
To establish a prima facie case of discrimination based upon age and/or race, an employee must show that: (1) he was a member of a protected class; (2) he was competently performing in the position held; (3) he suffered an adverse employment action; and (4) people outside the protected class with equal or lesser qualifications were given more favorable treatment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);Nesbit v. Pepsico, Inc., 994 F.2d 703, 704-705 (9th Cir. 1993);Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 355-356 (2000).
Although the burden for establishing a prima facie case is an easy one to satisfy, Cole fails to do so. While plaintiff's race and age make him a member of two protected classes, and his termination qualifies as an adverse employment action, he nonetheless fails the other two prongs of the McDonnell Douglas analysis. It is undisputed that Cole's performance consistently fell short of company standards and that he had engaged in conduct meriting termination under company policies. His name was present on the morning reports a total of 173 times in one year, and surveillance proved that he was taking excess personal time and manipulating his records to cover this up. He therefore fails the second prong of the McDonnell Douglas test.
Plaintiff also has not shown that other employees outside of the protected class were treated more favorably. He identifies three individuals whom he claims were treated better than him: John Edwards, Kevin Jones, and Steve Rodrigues. "It is fundamental that to make a comparison of a discrimination plaintiff's treatment to that of non-minority employees, the plaintiff must show that the `comparables' are similarly situated in all respects." Mitchell v. Toledo Hospital, 964 F.2d 577, 582 (6th Cir. 1992); See also Aragon v. Republic Silver State Disposal Inc., 292 F.3d 654, 658 (9th Cir. 2002). The individuals listed by plaintiff cannot be considered comparators as none of the three had a record of consistently poor performance. In addition, other important factors distinguish these individuals from plaintiff. Mr. Edwards is not a package car driver; and as a member of management he is not subject to the employment standards laid out by the Collective Bargaining Agreement. Mr. Jones also does not drive package cars. Mr. Rodrigues has no disciplinary record and has consistently performed up to standards. Cole also lists a fourth individual, Marquel Pea, a younger driver who plaintiff claims was given additional stops when he replaced plaintiff while plaintiff was away from work. However, a driver who is given a greater burden cannot reasonably be thought of as having been treated more favorably.
Because defendant has not met his burden of demonstrating a prima facie case, defendant's motion for summary judgment regarding plaintiff's discrimination claim is granted. However, even assuming, arguendo, that plaintiff had established a prima facie case, summary judgment would still be warranted because UPS has asserted a legitimate non-discriminatory reason for terminating Cole and plaintiff has failed to demonstrate pretext.
C. Defendant's Non-Discriminatory Explanation for Plaintiff's Termination
UPS asserts that Cole's poor record evidenced by the morning reports, along with the surveillance footage, are proof that they had a legitimate non-discriminatory explanation for Plaintiff's termination. The operational reports confirm that Cole was the worst-performing of 1250 package car drivers in the East Bay District. These are objective criteria that have not and cannot be refuted by Cole. Thus, UPS has articulated a legitimate, non-discriminatory explanation for terminating Cole.
D. Plaintiff's Proof of Pretext
In order to survive summary judgment, plaintiff must come forward with specific and substantial evidence that UPS's reasons were pretextual. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 659 (9th Cir. 2002). "[A] plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer's proffered explanation is `unworthy of credence' because it is internally inconsistent or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely motivated the employer." Chuang v. University of California Davis, Board of Trustees, 225 F.3d 1115, 1127 (9th Cir. 2000) (citations omitted).
Cole has not provided direct evidence of discrimination. During his deposition, when asked if any UPS management employee had made any race-related or age-related comments to him, Plaintiff responded: "Not that I can recall now." Nor has Cole created an inference of discriminatory purpose by showing that other similarly situated individuals outside of the protected class were treated differently. As discussed above, Cole has failed to identify any individual with a comparable record who was treated more favorably. Finally, Cole has provided no evidence challenging the veracity of UPS's stated reasons for terminating him.
Cole has failed to demonstrate an issue of material fact requiring trial. Therefore, summary judgment in defendant's favor is appropriate.
III. Plaintiff's Claim of Retaliation in Violation of Fair Employment and Housing Act
A. The Parties' Respective Burdens
To make a prima facie claim of retaliation, a plaintiff must show "(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). See also Morgan v. Regents of University of California, 88 Cal.App.4th 52 (2000). With respect to the third element, the Ninth Circuit has explained that "[t]o show the requisite causal link, the plaintiff must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. . . . Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity." Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982).
Once a plaintiff has met his prima facie burden, the burden of production shifts to the employer to present legitimate reasons for the adverse employment action. See Brooks, 229 F.3d at 928. "Once the employer carries this burden, plaintiff must demonstrate a genuine issue of material fact as to whether the reason advanced by the employer was a pretext. Only then does the case proceed beyond the summary judgment stage." Id. "`The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
B. Plaintiff's Prima Facie Case of Retaliation
Cole claims that he was terminated in retaliation for a letter he wrote on April 6, 2002 complaining about the discrimination to Eric Huffman, the supposed CEO of UPS. Plaintiff can prove the first two requirements for establishing a prima facie case: he was engaged in the protected activity of writing a letter to complain to his employer, and he suffered an adverse employment action when he was terminated. However, he fails to present evidence establishing a causal link between the two.
Cole sent the letter to eight additional individuals other than Huffman. However, he did not send a letter to Bob Pedulla, the manager that terminated him. Plaintiff claims that the letter he sent to Zack Scott, the East Bay District manager, is evidence of discrimination. However, Cole provides no evidence that Scott took part in the decision to terminate him or that Scott told Pedulla about the letter. As plaintiff has not presented any evidence of causation, he fails to establish a prima facie case of retaliation.
C. Defendant's Legitimate Reasons for Plaintiff's Termination
UPS has shown through direct evidence that Cole had a history of poor performance with both surveillance and constant objective morning reports. Furthermore, Cole's direct manager, Bob Pedulla, had no knowledge of this letter. Therefore, it is clear that UPS had legitimate reasons for Cole's termination.
D. Plaintiff's Proof of Pretext
Assuming arguendo that Cole established a prima facie case, Cole presents no evidence that UPS's reasons for his termination were pretext for their retaliation. Therefore, summary judgment on this claim is granted.
For the foregoing reasons, Defendant's motion for summary judgment is GRANTED.
IT IS SO ORDERED.