United States District Court, N.D. Alabama, Southern Division
KARON OWEN BOWDRE, Didtrict Judge.
Plaintiff Guy Redd asserts claims of race discrimination, brought pursuant to Title VII and § 1981, and retaliation, brought pursuant to Title VII and the Civil Rights Act of 1866, as amended. The matter comes before the court on "Defendant United Parcel Service, Inc.'s Motion for Summary Judgment." (Doc. 34). The Plaintiff responded (doc. 40), and the Defendant has replied (doc. 45); this motion has received thorough briefing. For the reasons stated in this Memorandum Opinion, the court FINDS that the motion for summary judgment is due to be GRANTED as to all remaining claims.
In 1984, the Defendant, United Parcel Service, hired the Plaintiff, Guy Redd, an African American male. Redd has held a number of different positions over the years, both hourly and in management. In 2005, after more than twenty years at UPS, Redd assumed his first management role, and the next year he became a Business Manager at UPS's Birmingham facility. The Birmingham facility includes three package centers as well as a Preload operation-an early operation during which packages are unloaded from trailers and loaded onto UPS trucks-and a Local Sort operation-a late afternoon operation during which the packages obtained from customers during the day are sorted onto feeder trucks for further processing.
UPS Business Managers report directly to a Division Manager who oversees multiple UPS facilities. When Redd first became a Business Manager, he reported to Division Manager Stan Garrett, also African American. Garrett testified that Redd's performance in 2006 and 2007 did not fully meet expectations, and he placed him on a Management Performance Improvement Plan (MPIP) at least one of those years, a plan that is intended to help a member of management succeed.
Redd next reported to Division Manager Dale Mowery, a Caucasian, and UPS reassigned Redd from the Birmingham Central package center to the early morning Birmingham Preload operation. Although the exact period that Mowery supervised Redd is unclear, Mowery ceased to be Redd's division manager in the summer of 2009.
On October 23, 2008, Redd claims to have complained to former UPS Employee Relations Manager Guy Sciro about alleged discrimination against him by Mowery and UPS Security Manager, Tim Breedlove, also a Caucasian. Both Redd and Sciro confirm that Redd met Sciro at a Jack's Hamburger's fast food restaurant, and asked Sciro to read a four-page memorandum from Redd to "UPS" with a copy to Jeff Poulter, UPS's Alabama Human Resource Manager regarding "Unmerited Treatment." In the memo, Redd identified himself as a "Black male"; complained about the manner in which Dale Mowery, a Caucasian Division Manager, and Tim Breedlove, a Caucasian Security Manager, treated him and questioned his integrity during an August 2008 interview regarding a weekend security audit; queried on page four whether the motivation behind their treatment was a "racial issue"; mentioned his fear that he was being "targeted"; and requested that UPS undertake a "formal investigation." (Redd Dep. Doc. 36-2, at 10-13).
According to Redd, he told Sciro specifically that he thought he was being discriminated against because of his race, and gave Sciro a copy of the memo to take with him. Redd did not give a copy of the memo to Poulter directly, but Redd testified that Poulter knew about the memo because Poulter came out to the Preload operations on October 24, 2008, the next day, and said to Redd: "I've got your memo, but I've got to find somebody and do something, and I'll get with you later." (Redd Dep. Doc. 36-1, at 82, p. 327). However, Poulter never got back with Redd about his complaints in the memo, and no evidence exists that UPS conducted an investigation of the memo's complaints.
In the summer of 2009, UPS demoted Mowery, transferring him out of Alabama, and Redd reported to an interim manager for a few months. From September 2009 until early April 2010, Redd next reported to Jaime Diaz, who is Hispanic and was new to Alabama, having transferred in from Kansas on August 1, 2009. Diaz had no communication with Redd's former manager Mowery about Redd; Diaz testified that he did not receive any assessments of his new charges and considered all to have a clean slate.
When Diaz became his Division Manager in August, Redd was responsible for the Preload operation and Birmingham Central package center. Diaz testified that he concluded Redd was struggling with his responsibilities. The Business Manager on the Local Sort at that time, Bob Kibler, a Caucasian, had several more years of operations experience than Redd, including more experience with the Preload operations. Diaz testified that the months before the winter holidays represent UPS's peak season, so with peak season approaching, he switched Kibler and Redd, moving the more experienced Kibler to the Preload position, a job that handled twice the volume of packages that Local Sort handled. According to Diaz, he considered the move a lateral one for Redd, as Redd retained the title of Business Manager and no change occurred in his pay or benefits. Redd retained the responsibility for the Birmingham Central package center.
Redd, however, did not like the change in job duties or the evening hours, considering the Local Sort position less desirable. Redd considered Diaz to be overly critical of him, holding him accountable for improper actions and poor attendance of Presort hourly employees and supervisors, and Redd believed that the job change and Diaz's criticism of him was based on racial discrimination and retaliation for the 2008 complaint about Mowery.
After Redd's move to Local Sort, two serious service failures occurred in Local Sort operation under his management, one in January of 2010 and in March of 2010. The January 2010 incident resulted in a service failure involving more than 2, 400 packages.
Diaz testified that he continued to view deficiencies in Redd's performance after the move to Local Sort, determining that Redd needed to improve his performance on late and missed service issues and that Redd's operation needed improvement in the area of net delivered pieces per hour (a measure of time required to complete delivery of packages for Redd's package center); the range of dispatch (the distribution of package volume among the package cars for Redd's package center); and Local Sort pieces per hour (a measure of the efficiency of the flow of packages). According to Diaz, he evaluated Redd's performances in these areas as worse than the other Business Managers reporting to Diaz, and therefore, placed Redd on an MPIP on or about January 15, 2010.
Redd proffers UPS's Alabama District Balanced Scorecard for January of 2010 as evidence that he was not performing poorly, showing that the Birmingham Central unit under his management ranked nine out of thirty-one Alabama units. The scorecard does not purport to rank individual employees, but ranks whole units by location. The other Birmingham units under Diaz's control were Birmingham SE-ranked seven out of 31 Alabama units-and Birmingham SW-ranked 21 out of 31 Alabama units. During the latter half of January, Redd was on MPIP with increased monitoring and accountability, and the evidence does not reflect the ranking of the unit under Redd's management in the months before Diaz placed him on MPIP. Redd provided no other Scorecard and no other evidence evaluating the performance of other Business Mangers under Diaz.
In his declaration, Diaz testified that the purpose of the Scorecards is not to measure the performance of individual Business Managers, and the Scorecards are not valid measures of any particular Business Manager's performance because "many of the elements reflected on the scorecard do not correlate to things within an individual manager's control and there are factors that might improve or reduce the ranking of areas of operation listed on the [Scorecards] for which a Business Manager has no accountability or right to claim credit." (Diaz Decl. Doc. 36-5 at 10).
From Redd's point of view, Diaz continued to treat him unfairly after the move to Local Sort, and Redd characterizes as discriminatory and/or retaliatory the following actions that Diaz took after the move: requiring Redd to complete the tasks of others, including Kibler; requiring Redd to investigate overtime for employees not assigned to him; requiring Redd to review concerns that were not part of his center; requiring Redd to monitor drivers in other centers as well as his own; continuing to hold Redd accountable for Preload employees' actions and errors even though Redd was no longer the Preload manager; and, ultimately, placing Redd on an MPIP.
The MPIP was intended to be a useful tool for performance improvement, and during the pendency of the MPIP, Redd's position, job duties, salary, and benefits remained the same. The MPIP called for specific corrective steps and enumerated objective goals with processes to be in place by January 22, 2010, a week after Redd's placement on the MPIP, with a final review in 90 days. Redd, Diaz, and Poulter signed the MPIP, and Redd understood the consequences of failing to improve. In his deposition testimony, Redd objected to the fairness of the piece-per-hour number because Local Sort had not achieved that number in ten years. Diaz held follow-up meetings with Redd on at least three occasions but those meetings ceased when Redd submitted a complaint against Diaz in February 2010.
On February 14, 2010, Redd submitted a two-page memo to HR personnel at UPS, entitled "Unjust Treatment, " asserting that Diaz's placing him on MPIP was discriminatory and represented retaliation for his October 2008 complaint about Mowery's treatment of him:
I assert that I am experiencing retaliation for Dale Mowery's disciplinary reassignment, in the form of unfair and unjust treatment, racial discrimination, and disparate treatment.
After Mr. Mowery was reassigned... the disparate action by the Alabama District, and more specifically, Jaime Diaz, the new Central Division Manager began.
The most current example is I was placed on MPIP. I will forward this report and other substantiating information at a later date.
Although I realize some time has passed since my original EDR concern, it still concerns me that the program failed to work for me, and the parties cited in the complaint. It is a possibility that if my original concern had been addressed, there would be little aftermath and no need for this subsequent request for assistance.
(Redd Dep. Doc. 36-2, at 8-9). The attachments to the memo were 29 pages long, focused on the period before Mowery's demotion, and included a copy of Redd's October 23, 2008 memo questioning whether Mowery 's treatment of him was a racial issue and requesting a formal inquiry. (Redd Dep. Doc. 36-2, at 10-13).
After UPS received this February memo, Poulter met with Redd on a Sunday afternoon at a restaurant. Poulter recalls that the purpose of the meeting was to listen to Redd's concerns and to see if he could assist Redd with making his job more tolerable. Poulter did not take notes during the meeting and did not ask Redd to discuss treatment he believed to be discriminatory. Poulter acknowledged that the February memo from Redd was not the first complaint Poulter had received accusing Diaz of misconduct at work; within a few months of Diaz's move to Alabama, Poulter began receiving complaints of Diaz's harassment, discrimination, and retaliation. One anonymous complaint accused Diaz of holding African American members of management to a higher standard of accountability than white management, and some of the other complaints that were not anonymous involved African Americans complaining of Diaz's demeaning behavior and race discrimination.
On March 4, 2010, Sciro met with Redd at Redd's request, and Redd was so upset about Diaz's treatment of him that he was in tears. Redd submitted a write-up to Sciro that Sciro sent along to Poulter, presenting documentation showing, from Redd's perspective, that Diaz's treatment of him was unwarranted and that Diaz did not have all the facts when he accused Redd of not doing his job. Redd subsequently left work to go to the doctor and Sciro advised Poulter that Redd would be off work for a week.
On March 5, 2010, a meeting took place at corporate headquarters in Atlanta with Diaz, Poulter, and two HR personnel, Tim Robinson and Major Warner, to discuss complaints against Diaz. After this meeting and an investigation, UPS determined that Diaz was not sufficiently credible with his answers to questions at this meeting, and the company would later transfer Diaz out of the Birmingham center. UPS transferred Poulter in March of 2010, and the investigation of Redd's complaints, which Poulter had begun, was still open at the time of Poulter's transfer.
Also on March 5, 2010, Redd filed an EEOC Charge checking boxes for race discrimination and retaliation. The charge mentioned an October 2008 complaint of discrimination, focused on a manager who was "eventually demoted, " and subsequent retaliation and discrimination as follows: "I have been denied leave, denied the use of my expense account, assigned raters who are at pay Grade 18, and assigned tasks that do not relate to my duties which should have been given to other managers. In September 2009, I was moved from Preload Sort to Local Sort, which is a less desirable position. In January 2010, I was placed on an improvement plan." (Redd's Dep. Doc. 36-2, at 6).
Redd's EEOC Charge occurred the same month as UPS's announcement of its reorganization and consolidation of its package operation, resulting in a consolidation of UPS's Alabama District into its Mid-South District and extensive changes in management and HR personnel responsible for the Birmingham package facility.
On April 20, 2010, UPS transferred Diaz to Tuscaloosa, Alabama, a move that UPS characterized as a demotion, and he worked there and received similar complaints from African American employees until he retired. After Diaz's transfer, Stan Garrett, who is African American, once again took the position of Division Manager at the Birmingham location, and Redd reported to him. Garrett continued Redd's assignment as Business Manager of Local Sort, but shifted Redd's package center responsibility from the Birmingham Central package center to the Birmingham Southwest package center. When Garrett took over the Division Manager position, no one advised Garrett that Redd was operating under an MPIP. After he took this position, Garrett did not discipline Redd in the intervening months between April 2010 and June 2010, when, as discussed below, a serious service failure occurred in the area Redd managed.
Also in April of 2010, Harry Wilson, the African American HR Director for UPS who was located in Nashville, came to Birmingham to meet with Redd and two other people: Stan Garrett, Redd's African American supervisor; and Lonzell Wilson, the African American in charge of investigating EEOC charges in Alabama, including Redd's charges. Harry Wilson acknowledged that the reason for the meeting was to review Redd's recent complaint about Diaz, to see if they could help Redd with the situation, and to encourage Redd to move forward. At the meeting, Redd was told that if he dropped his EEOC charges others would drop theirs as well. Harry Wilson also asked Redd if he could do anything to help him.
On June 3, 2010, another serious service failure occurred on the Local Sort operation that Redd managed, causing untimely delivery of a substantial number of UPS packages. A serious service failure involves a failure to make timely delivery of a substantial volume of packages entrusted to UPS. The problem began with a belt failure after Redd had left the UPS premises. When a supervisor called Redd and notified him of the belt problem, Redd came back to the UPS building that evening to address the issue, and directed Ryan Martin, an employee under Redd's control, to ensure that all packages left in the building were counted and scanned so that UPS would know how many and which packages were involved. After Redd had left the building but was still in the parking lot, Martin told Redd over the phone that a total of 114 packages were impacted, 80 of which were ground and the remainder of which were next-day air packages. Redd did not return to the building to walk through and confirm that Martin and other employees had counted and scanned all remaining packages, but, relying on Martin's information, Redd reported the 114 number to Operations Manager Linda Nelson.
At 7:00 AM on the morning of June 4, 2010, another Business Manager informed Redd that the count of the remaining packages was not 114 but over 300: an additional 161-162 air packages for which the customers had paid a premium had been left in the building, had not been scanned, and were not part of the package count Redd had provided to Nelson on June 3. Redd never saw documentation and confirmation of the additional numbers, and when Redd arrived on June 4, he did not confirm the additional numbers of remaining packages.
According to Nelson, Redd did not notify her of the change in numbers on June 3, although she had asked him the night before to notify her of any changes regarding the remaining packages. Rather, she learned of the problem on the morning of June 4 when another manager called her and advised her that the numbers of remaining packages were substantially greater than 114. Upon learning of the discrepancy, Nelson immediately went to the unload area where the packages remained. Although Redd had told her the night before that all the remaining packages had been scanned, Nelson found remaining packages with no scans. She also learned that Redd had received notification at 7:00 AM of the increase in remaining package numbers, that he had arrived in the building, but that an hour and forty-five minutes after receiving notice of the enlargement of the problem, he had not notified her of the additional packages, he had not gone back to the unload area to confirm the status of the packages, he had not ordered scans of the additional unscanned packages, and he had not otherwise addressed the additional service failures. Nelson testified that when she confronted Redd about the problem at 8:45 AM, he was sitting in his office, and he hung his head and told her he did not know about the true scope of the problem until that morning. Nelson walked Redd back to the unload area, which Nelson estimates as being about a hundred yards from Redd's office, and Nelson accused Redd of hiding the enlarged scope of the problem when he learned about it that morning. Nelson requested that an investigation of the service failure be conducted.
Consistent with UPS protocol for serious service failures, the company conducted an investigation of the service failure at Nelson's request; Ron Headley, who was unaware of Redd's EEOC Charge, performed the investigation, and provided the materials collected during the investigation to Garrett, Redd's supervisor. Garrett had been on vacation during the service failure, and received the investigation material when he returned. Included in the investigation materials were emails from Headley; and UPS reporting documents regarding exception scans package movements, and tracking numbers. The materials also contained statements from witnesses to the event, including the following: Redd; Nelson; Martin; Ryan Baker, Birmingham Local Sort Supervisor; Fred, who was in charge of the airport shuttle on June 3; Josh Young, inspector of packages on June 4; and Mike Boone, inspector of packages on June 4 with Young. Headley's email, included in the investigative materials, noted that the June 2011 investigation was the "4th Serious Service Failure Investigation conducted on the Local Sort since Sept. 2009, " which was approximately the time Redd took over Local Sort responsibilities. (Garrett Decl. Doc. 36-6, at 52). As is typical when an investigation ensues, Garrett required Redd to prepare his own write-up of the event. In Garrett's judgment, Redd failed to acknowledge his own failures in the first write-up, so he instructed Redd to prepare a second write-up including and addressing those failures.
On June 11, 2010, UPS's attorneys responded to Redd's EEO charge with a "position statement." (Doc. 39-19, at 2-6).
On July 19, 2010, UPS demoted Redd from Business Manager to On-Road Supervisor, based in part on the information received during the investigation into the June service failure. Garrett was the sole decision maker in his demotion, but, before making the decision, he spoke with Nelson, who agreed with the decision, and he probably spoke with HR personnel such as Lonzell Wilson. Garrett testified in his declaration that he demoted Redd in part because he did not manage the June 3-4, 2010 incident properly after he returned to the UPS building on the evening of June 3 and on the morning of June 4: specifically, Redd left the building a second time without ensuring that all remaining packages were properly scanned and counted and without ensuring that all efforts had been exhausted to dispatch the packages that evening. Garrett also stated that other matters factored into his decision: Redd's failure to notify Nelson when he learned before she did that significantly more than the reported 114 packages were affected, waiting for her to learn from another source; Redd's failure to acknowledge his own accountability for the June 3-4 service failure, attempting to deflect responsibility onto employees under his management; and Garrett's knowledge that other serious service failures had previously occurred on the Local Sort in 2010 under Redd's management. In his deposition testimony, Garrett similarly explained that he demoted Redd because of service failures. Garrett did not demote Martin, the supervisor working under Redd on June 3-4, and the record does not reflect that anyone other than Redd received discipline as a result of that incident.
Nelson testified that she concurred with the Division Manager's demotion recommendation and stated that, from her perspective, Redd had responsibility for the service failure regardless of whether he had delegated counting packages and scanning to somebody else because, as the senior person in charge, Redd had the obligation to follow up and make sure his orders were carried out, but he did not do so. Further, she testified that, from her perspective, Redd had an integrity issue in failing ...