Essex v. United Parcel Service, Inc.

• Decision Date: 17 April 1997
• Docket Number: No. 96-2756,96-2756
• Citation: 111 F.3d 1304
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 427, 70 Empl. Prac. Dec. P 44,642 Wilbert ESSEX, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1304

111 F.3d 1304

75 Fair Empl.Prac.Cas. (BNA) 427,

70 Empl. Prac. Dec. P 44,642

Wilbert ESSEX, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.

No. 96-2756.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 18, 1997.

Decided April 17, 1997.

Angela Marotto, Christopher Timmons (argued), Valparaiso University Law Clinic, Valparaiso, IN, Lewis H. Griffin, Fort Wayne, IN, for Plaintiff-Appellant.

Daniel C. Emerson (argued), Steven G. Rudolf, Bose, McKinney & Evans, Indianapolis, IN, for Defendant-Appellee.

Before ESCHBACH, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

ESCHBACH, Circuit Judge.

In February 1993, United Parcel Service, Inc. ("UPS") fired Wilbert Essex from his job as a package car driver. Essex claims that the real reason behind this discharge was either race discrimination or retaliation for previous claims he had filed. Thus, he brought the instant suit alleging that UPS violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The district court granted summary judgment to UPS on both claims and Essex appealed. For the reasons set forth below, we affirm.

I. Background

Wilbert Essex, hired as a part-time loader in 1969, was one of the first African-American employees at UPS's Fort Wayne South center. In 1983, UPS hired Essex as a full-time package car delivery person. In this capacity, Essex drove one of those brown UPS trucks and made deliveries and pick-ups in the Fort Wayne area. The distinguishing feature of Essex's time with UPS has been the number of complaints and union grievances ¹ he filed while employed there. During his last year at UPS alone, Essex filed over 400 grievances. In 1992, Essex grieved the imposition of a three-day suspension for not meeting performance standards. During the arbitration of this grievance, Essex stated that he worked approximately 32 to 40 hours at a second job as a bail commissioner with Allen County. This statement sparked a chain of events leading eventually to the appeal now before this court.

Department of Transportation ("DOT") regulations limit the amount of "on-duty" time certain drivers can work to 60 hours per week. 49 C.F.R. § 395.3(b)(1). On-duty time includes work at any job, even if some of that work is not for a motor carrier. 49 C.F.R. § 395.2. ² In light of these regulations, the news that Essex moonlighted 32 to 40 additional hours at a second job set off alarm bells in UPS's proverbial mind. According to UPS, this was the first time it had ever become aware of an employee who worked so many outside hours that it resulted in excessive on-duty time. Thus, in a letter dated January 6, 1993 (the "January 6 letter"), UPS requested that Essex verify the number of hours he worked outside UPS. On January 7, 1993, UPS met with Essex to discuss the request. When Essex arrived at work the next day without verification of his outside hours, UPS suspended him. On January 11, Essex gave his supervisors a letter requesting 30 days to consult with his attorneys and research the request. The letter also stated that Essex would, in the meantime, request the information from his second employer. UPS granted Essex's request for a 30 day extension provided that he orally report his hours during that time. UPS claims that Essex did not honestly report his hours, making independent verification that much more important. Essex orally reported only 54 outside hours during the next 30 days, but UPS obtained payroll records which revealed that Essex was paid for 120 hours between January 7 and January 31. At the end of the 30 day extension, on February 10, UPS again sought independent verification of Essex's hours. When Essex still did not produce verification of his outside hours after five days, UPS suspended him. As a result, Essex was suspended on February 17, 18, 19, and 22. In a letter dated February 18, 1993, Essex asked John Higgins, the UPS District Labor Manager for the Indiana District, for a letter he could give to his second employer regarding the hours verification. Essex had previously made this request to other supervisors and was told, as he was again by Higgins, that he should show his second employer a copy of the January 6 letter. In a warning letter dated February 22, 1993, but issued the next day, UPS also informed Essex that he must provide the requested verification within 72 hours or be discharged. Essex still did not produce the requested documentation of his hours. On March 1, 1993, over a month and a half after its original request, UPS notified Essex that on February 26 he was discharged for insubordination because he had failed to provide the requested verification of the hours he worked outside of UPS.

Essex paints a different picture of the events surrounding his discharge. According to Essex, the verification requirement was just the last example of a long series of acts of discrimination and harassment against him by UPS. It is undisputed that UPS has never required another employee to obtain written verification of her outside on-duty hours. Essex asks the question, "why me?" and answers that it must be because UPS wanted him out, either because he is African American or because UPS wanted to retaliate for the many grievances and complaints he had filed in the past. Essex does not dispute that he failed to comply with the UPS request to provide independent verification of his hours. Rather, he claims his discharge was discriminatory because it was based on disobedience to a discriminatory request. UPS had no policy of requesting such verifications and did not request verification from any other employee, even though it knew other employees worked outside jobs. Essex argues that, although UPS may not have known of others' exact hours, it knew that there was a danger that the outside employment of other employees jeopardized compliance with DOT regulations. Because the DOT limit is only 60 hours per week, even a part-time job in addition to full-time work at UPS could violate these regulations. Yet UPS did not require any other employee to report her hours.

Moreover, Essex claims that UPS sabotaged his efforts to comply with its request so that it could use Essex's disobedience as an excuse to fire him. Essex argues that it was not his fault that he did not produce independent verification of his hours. According to Essex, he repeatedly requested that UPS send a written request to his employer explaining the need for verification. Without this request, his second employer would not provide the verification of his hours. UPS refused to send any such letter, but instead told Essex to show his second employer the January 6 letter. Essex says the January 6 letter did not satisfy the request, though, because his second employer needed a request directed to it, not a letter to Essex. Not until UPS received a letter from Essex's second employer on March 1 (the letter was dated February 25) did UPS correspond directly with that employer. In doing so, UPS merely enclosed a copy of its January 6 letter to Essex. Of course, this was all too late because Essex was fired on February 26. Essex also maintains that he did honestly report his hours. He claims that the payroll records UPS relied on are not an accurate reflection of hours worked because he gets paid for times when he is not actually working, for example, sick days.

Essex grieved his discharge and the arbitrator ruled in favor of UPS. ³ Essex also filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). When Essex received a right to sue letter from the EEOC, he filed the instant action charging UPS with race discrimination and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ⁴ The district court granted UPS's motion for summary judgment and Essex now appeals.

II. Discussion

We review the grant of summary judgment de novo. Johnson v. City of Fort Wayne, 91 F.3d 922, 930 (7th Cir.1996). In evaluating a motion for summary judgment, we read the record, and resolve all inferences, in the light most favorable to the nonmovant. Id. A court may grant summary judgment only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)); see also Johnson, 91 F.3d at 931. Although the moving party has the initial burden to show that the record presents no genuine issue of material fact, if the nonmovant bears the burden of proof, "he must then go beyond the pleadings and affirmatively demonstrate a genuine issue of material fact for trial." Johnson, 91 F.3d at 931; see also Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53. To withstand summary judgment, the nonmovant must demonstrate that the record as a whole permits a rational fact-finder to rule in his favor. Johnson, 91 F.3d at 931. Where the nonmovant bears the burden of proof at trial, as he does here, he must put forth "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)). A mere scintilla of evidence in support of the nonmovant's position is insufficient. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). The question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52, 106 S.Ct. at 2512.

There are two ways to prove a violation of Title VII. First, a plaintiff could present direct evidence of an illegal motive. Smart v. Ball State University, 89 F.3d 437, 439 (7th Cir.1996); Sample v. Aldi Inc., 61 F.3d 544, 547 (7th Cir.1995). Essex does not argue on appeal that he has presented direct evidence of either race discrimination or retaliatory...