Opinion
CIVIL ACTION No. 03-1380, SECTION: E/2
March 19, 2004
ORDER AND REASONS
Defendants United Parcel Service, Inc., ("UPS") and United Parcel Service Company of Delaware filed a motion for summary judgment. Rec. Doc. 8. Plaintiffs oppose the motion, which was submitted on the briefs without oral argument. For the reasons that follow, the motion is GRANTED.
BACKGROUND
Plaintiff Nicholas Manzella ("Manzella"), a white male, was employed by UPS as a package car driver. As such, he worked in a bargaining unit represented by the Local 270 of the International Brotherhood of Teamsters. The Collective Bargaining Agreement ("CBA") between UPS and the Teamsters governed the terms and conditions of Manzella's employment. Under the provisions of the CBA Manzella was employed as a "bonus driver." The UPS computer system registers the number of stops a bonus driver enters on his/her DIAD board each day and calculates the amount of time necessary to complete the day's work based on the number of stops entered. If the bonus driver completes the assigned work in less time than that calculated by the computer, he/she is still paid for any additional hours set by the computer. On the other hand, if the assigned work takes more time than the computer calculated, the driver is paid for the actual hours worked rather than that estimated by the computer.
The following facts are undisputed:
Manzella had been employed by UPS since 1979. In 1997, Gregory Patterson, a black male, became Manzella's manager. In May of 2001, UPS conducted an audit which determined that Manzella had been manually in — putting additional, fake stops into his DIAD board. As a result, he was credited by the computer for additional stops and received additional pay based on the nonexistent stops he entered into his DIAD board. UPS Security Officers Kent Bolin and Claxton Leblanc interviewed customers and confirmed that Manzella had not stopped at their businesses on some days when he had manually padded his daily stops.
Upon completing the investigation, Bolin, a white male, made the initial recommendation that Manzella be discharged for the payroll fraud. The discharge was approved by the Harvey Center Manager Gregory Patterson; Division Manager Ed Johnson, a black male; and finally, Labor Manager Tom Hawk, a white male. Following this decision — making process, Manzella was offered the choice of resignation or discharge. He chose discharge. Manzella's termination letter stared that he was discharged for "dishonesty".
Manzella filed a grievance with the Union protesting his discharge. Under the terms of the CBA the grievance process proceeds through various stages. At each step, the resolution of the grievance is considered to be "final and binding" on the employee, the Union, and UPS. Manzella's grievance proceeded from the local level to the Southern Region Area Parcel Grievance Committee ("SRAPGC"), then to the Deadlock Panel. Throughout the process, Manzella admitted that he had padded his stops, but argued that during that time period he was confronted with numerous extremely difficult personal problems and obligations, and that Patterson refused to allow him time off to deal with some of these family obligations. At the hearing before the Deadlock Panel, Manzella first complained that he believed that Patterson had discriminated against him. The Deadlock Panel denied the grievance and upheld the discharge.
The SRAPGC is comprised of three Union appointees and three UPS appointees. It has full authority to resolve issues submitted to it, including a determination of "whether there was good cause for disciplinary action by the Employer, up to and including discharge." CBA Supplemental Agreement Article 51, Section 2(C). If the SRAPGC vote splits evenly, the grievance may be referred to the SRAPGC Deadlock Panel, whose decision is final and binding. Id. at Sections 1-3.
On September 6, 2001, Manzella filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging disparate treatment and discriminatory discharge on account of race. On April 23, 2002, the EEOC issued a Notice of Right to Sue which was "Issued on Request" of Manzella. Less that a month later, Manzella and his wife filed suit in state court against UPS, United Parcel Service Company of Delaware, and Gregory Patterson. Docket No. 581-025, 24th Judicial District Court for the Parish of Jefferson. The lawsuit alleged that from the time Patterson became Manzella's manager, Manzella received disparate employment treatment, was subjected to a racially hosfile work environment, and that ultimately, he was discharged by Patterson based on his race. Complaint, ¶¶ VI.-IX. The lawsuit further alleges that UPS "is vicariously liable for the racially motivated adverse employment action" taken against Manzella by their employee, Patterson, id. at ¶ X., and that Patterson intentionally inflicted emotional distress upon Manzella "by subjecting him to disparate treatment on account of his race and by terminating" him when he was approximately two years from retirement. Id. at ¶ XI. Finally, Mrs. Manzella claims that she sustained a loss of consortium.Id. at ¶ XIII. The complaint prays for compensatory damages, including but not limited to, back pay, front pay, attorneys fees and punitive damages.
On June 14, 2002, defendants removed the case to this court based on both federal question jurisdiction, alleging that the lawsuit stated a claim for discrimination pursuant to Title VII of 42 U.S.C. § 2000(e) et seq., and diversity jurisdiction. See E.D.La. C.A. 02-1800 (Sec. "E", M.J. Wilkinson.) Upon the written consent of all parties, the matter was referred to the Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c). On September 10, 2002, after a careful and thorough analysis, Magistrate Judge Wilkinson granted the Manzellas' motion to remand. C.A. 02-1800, rec. doc. 18. In his Order and Reasons, Magistrate Judge Wilkinson stated the following conclusions:
(1) . . . I do not find that there is absolutely no possibility that Manzella will be able to prove his claim of intentional infliction of emotional distress against Patterson. Accordingly, defendants have failed to establish fraudulent joinder, there is not complete diversity of citizenship and this court lacks diversity jurisdiction.Id. pp. 4-5.
(2) . . . I find that even if plaintiffs' prayer for punitive damages is a vague reference to federal law, this reference and Manzella's exhaustion of the EEOC review process are insufficient to give rise to a Title VII claim or federal jurisdiction.Id. at p. 9.
(3) The Fifth Circuit has consistently held, on facts similar to those alleged by Manzella in his petition as expanded upon by his affidavit, that a unionized employee's claim of intentional infliction of emotional distress, when it is based on actions by the employer concerning such matters as job assignments and termination, is preempted by the Labor Management Relations Act because it will necessarily require interpretation of the collective bargaining agreement which governs the employment relationship.
. . . I find that Manzella's intentional infliction of emotional distress claim is preempted by the Labor Management Relations Act.Id. at 13-14.
(4) Defendants' second jurisdictional theory under the Labor Management Relations Act is a new, substantive, jurisdictional basis, which was not included in their Notice of Removal and was raised after the 30 — day removal period had expired. It is untimely and the case law establishes that it cannot be allowed. Therefore, federal question jurisdiction does not exist and this action must be remanded to state court.Id. at pp. 21-22.
After remand the parties engaged in extensive discovery. See Record of No. 581-025, 24th Judicial District Court, at C.A. 03-1330, rec. doc. 1. Ultimately, on May 12, 2003, the state court entered an order dismissing defendant Gregory Patterson without prejudice, pursuant to a voluntary motion to dismiss by Manzella and Patterson. On May 15, 2003, defendants again removed the lawsuit to federal court, where it was docketed as C.A. 03-1380. The Notice of Removal alleges diversity jurisdiction and federal question jurisdiction to the extent that any alleged tort claims against UPS are preempted by the Labor Management Relations Act, 29 U.S.C. § 185, et seq. Defendants subsequently filed this motion for summary judgment.
Record Document #1 of C.A. 03-1380 contains the entire record of C.A. C2-18CG, U.S.D.C. — E.D.La., and the entire record of No. 581-025, 24th Judicial District Court for the Parish of Jefferson.
Defendants filed an amended Notice of Removal on August 5, 2003, solely for the purpose of removing Gregory Patterson's name as a defendant. Rec. doc. 5.
ANALYSIS
A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L. Ed.3d 265 (1986); Bridgmon v. Array Systems Corp., 325 F.3d 572, 576 (5th Cir. 2003); Fed.R.Civ.P. 56(c). An issue is material if its resolution could affect the outcome of the action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether a fact issue has been created, we must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999). However, once a moving party properly supports a motion for summary judgment, the nonmoving party "must go beyond the pleadings and designate specific facts in the record showing that there is a genuine issue for trial." Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 311-12 (5th Cir. 1999), quoting Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047-48 (5th Cir. 1996). The nonmoving party cannot satisfy its burden with "unsubstantiated assertions" or "conclusory allegations."Id.
The Manzellas have chosen to assert their claims pursuant to Louisiana law. The crux of the lawsuit in its current posture is that UPS is vicariously liable for Patterson's alleged "racially motivated adverse employment action" and intentional infliction of emotional distress by subjecting Manzella to disparate treatment because of his race. Their opposition to the motion for summary judgment addresses only Manzella's claim of disparate treatment. They argue (1) that other similarly situated UPS employees, all African American, — were treated more favorably than Manzella, and (2) that his discrimination claim is not preempted by the LMRA or the CBA because the subject matter of this litigation is not the same as the subject matter of his grievance procedure.
Since the Manzellas' did not brief the allegation that he was subjected to a racially hosfile working environment, the court considers the claim to be abandoned. Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030 (5th Cir. Unit "B" 1980) ("Failure to brief and argue an issue is grounds for finding that the issue has been abandoned.")
1. LMRA Preemption of Manzella's Intentional Infliction of Emotional Distress Claim
The court adopts Magistrate Judge Wilkinson's conclusion that Manzella's intentional infliction of emotional distress claim is preempted by the Labor Management Relations Act, for the reasons stated in his Order and Reasons, r.d. 18, C.A. 02-1800 at pp. 10-14. The problem with Manzella's remaining discrimination claim is that the facts giving rise to his allegation that UPS is liable because of its employee's "racially motivated adverse employment action" are precisely the same facts that give rise his claim that UPS's employee intentionally inflicted emotional distress upon him by subjecting him to disparate treatment on account of his race and by terminating him when he was approximately two years from retirement. Id. at ¶ XI. These are the same facts that were presented during the CBA grievance process. If his intentional infliction of emotional distress claim is preempted by the LMRA, then so is his racial discrimination claim.
However, out of an abundance of caution, the court: will separately address his discrimination claim.
2. Disparate Treatment
In the context of a disparate treatment claim pursuant to Louisiana law, LSA-R.S. § 23:302 et seq., Louisiana courts apply theMcDonne11 Douglas framework: the plaintiff must establish a prima facie case of disparate treatment race discrimination by proving each of the following elements — (1) he belongs to a protected group; (2) he was qualified for his position; (3) he was discharged or suffered an adverse employment action; and (4) his employer treated other similarly situated individuals of a different race more favorably that it treated him. Bennett v. Corroon Black Corp., 517 So.2d 1245, 1246-47 (La.App. 4 Cir. 1987), writ denied, 520 So.2d 425 (La. 1988) (Courts look to Title VII precedent to interpret similar provisions of Louisiana's discrimination statute.); Smith v. Wal-Mart Stores, Inc., 891 F.2d 1177, 1179 (5th Cir. 1990).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817 (1973).
The parties agree that Manzella meets the first three elements of theMcDonnell Douglas framework. As for the fourth, Manzella argues that Gregory Patterson, Keith Simpson, Carrie Henderson, Kevin Richardson and Alien Leonard, all African Americans, were similarly situated employees who were treated more favorably that he was treated — that is, that each was discharged for "dishonesty", then reinstated with lesser discipline when he was not. Manzella attached a copy of Patterson's deposition (Exhibit A) and a copy of Alien Leonard's UPS discipline/grievance history (Exhibit B: MAN — 00450) to his opposition.
The fourth McDonnell Douglas element requires a showing that an African American employee was treated more favorabley than Manzella under "nearly identical circumstances". Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995). Similarly situated individuals are those who are employed (1) in the same position; (2) under the same supervisor; (3) at the same time; and who (4) engaged in the conduct as Manzella. Id.
Patterson's conduct must be eliminated from consideration because he was not "similarly situated" as Manzella. Patterson was nor employed in the same position or under the same manager as Manzella — at the time Manzella was terminated Patterson was Manzella's manager. As for the remaining employees identified by Manzella, Manzella cites a litany of misbehavior leading to discharge as follows: dishonesty (failure to timely submit COD money collected on the route); warning letters for poor attendance, failure to follow instructions and being involved in an "avoidable accident"; recording incorrect delivery times for next — day air packages; dishonesty for "misdelivering" a Rolex watch; and dishonesty for not reporting 22 packages that were not timely delivered.
At his deposition, Patterson acknowledged that each of the employees identified (with the exception of Patterson himself) had been terminated for "dishonesty" (Simpson was actually terminated twice for "dishonesty"), but that all had been reinstated with their discipline reduced to a lesser penalty. However, only one of those employees identified by Manzella, Carrie Henderson, was cited by UPS for "padding stops", the same dishonest acts for which Manzella was discharged. Patterson explained that Henderson was apparently terminated once for dishonesty, because of a suspected theft of a watch, but the termination was reduced to an all — time — lost suspension. He testified that when UPS later discovered that she was "padding stops", she was given the choice of discharge or resignation, like Manzella, but that she chose to resign and is no longer employed by UPS. Exhibit A, Patterson deposition, pp. 145-147, citing to MAN — 472 (Henderson's letter of termination for dishonesty dated August 26, 1999) and MAN — 473 (Henderson's letter of reinstatement dated September 7, 1999).
In his Supplemental Opposition to Defendants' Reply in Support of Motion for Summary Judgment (rec. doc. 22), Manzella produced as Exhibit F, MAN — 406, a letter dated February 18, 2002, from UPS (a signature is not shown) to Ms. Sandra Davis, EEOC Investigating Officer, in addition to the two letters cited by Patterson in his deposition. The letter states as follows:
Carrie Henderson — Discharged August 26, 1999 for "padding stops" (as Mr. Manzella had) over a long period of time. The Teamsters upheld her discharge and she is no longer employed with United Parcel Service.
Manzella argued that the letter shows that Henderson did receive more favorable treatment than he had because, according to the letter, Henderson was reinstated after having been discharged for padding stops.
UPS responded with a "Surreply on Summary Judgment and Request for Oral Argument", set for April 14, 2004. R.d. 24. Attached to the Surreply was the unsworn declaration under penalty of perjury by Terri Trammell, Workforce Planning Manager for UPS during the period when Manzella and Henderson were employed and terminated. Ex. "A". Ms. Trammell declared that the UPS letter dated February 18, 2002, was mistaken with regard to the reason for Henderson's termination on August 26, 19S9. According to Trammell, Henderson's August 26, 1999, termination for dishonesty was based on an accusation that she stole a watch, not for "padding stops" as stated in the letter, but that she was reinstated when, during the grievance process, UPS could not prove that she actually stole the watch.Id. Henderson subsequently chose to resign rather that be terminated when she was found to be "padding stops", so there is no termination letter or grievance procedure resulting from that dishonest action. Trammell and. Patterson both testified that Henderson no longer works for UPS and Manzella has not shown that she was rehired after her resignation.
The court concludes that Manzella has not met his burden to show that similarly situated African Americans, under nearly identical circumstances, were treated more favorably that he was treated.See, e.g., Solorzan v. Shell Chemical Co., 2000 WL 114766, *1 (E.D.La. Aug. 12, 1999) (employee disciplined for testing positive for drugs was not similarly situated as employee who adulterated his drug test specimen).
Accordingly,
IT IS ORDERED that defendants' motion for summary judgment be and is hereby GRANTED.
IT IS FURTHER ORDERED that defendants' request for oral argument is dismissed as moot, and the oral argument set for April 14, 2004, is CANCELLED.