Daniels v. United Parcel Serv., Inc.

• Decision Date: 11 December 2012
• Docket Number: No. 11–3211.,11–3211.
• Citation: 701 F.3d 620
• Parties: Regina DANIELS, Plaintiff–Appellant, v. UNITED PARCEL SERVICE, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

701 F.3d 620

Regina DANIELS, Plaintiff–Appellant,

v.UNITED PARCEL SERVICE, INC., Defendant–Appellee.

No. 11–3211.

United States Court of Appeals, Tenth Circuit.

Dec. 11, 2012.

Dennis E. Egan, Popham Law Firm, Kansas City, MO (with Frederick D. Deay II, Law Office of Frederick D. Deay II, Overland Park, KS, with him on the briefs) for Appellant.

Thomas B. Weaver, Armstrong Teasdale LLP, St. Louis, MO (Jennifer Arendes, Armstrong Teasdale LLP, St. Louis, MO and Laurence R. Tucker, Armstrong Teasdale LLP, Kansas City, MO, with him on the brief) for Appellee.

Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Regina Daniels, a former United Parcel Service dispatcher who worked in UPS's Kansas City, Kansas facility, brought suit against UPS alleging discrimination based on her sex and age. The district court granted summary judgment in favor of UPS, and Daniels appeals. We conclude the district court did not err in finding (1) most of Daniels's discrimination claims were untimely; and (2) the claims of discrimination and retaliation that were timely failed as a matter of law.

Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

UPS is an international shipping company that maintains a nationwide network of distribution centers in the United States, including its James Street distribution center (James Street Station) in Kansas City, Kansas. Regina Daniels, a woman born in 1952, began working for UPS in 1984. In 1999, she became a full-time dispatch specialist at James Street Station. Dispatch specialists coordinate the movement of truck drivers shipping packages between UPS's distribution centers. Daniels held this position until she retired in 2009, at the age of 57.

There are three dispatch shifts—or “windows,” in UPS jargon—at the James Street Station: day, twilight, and night. The twilight window is the busiest and has the most functions. Dispatch specialists are normally assigned to a single shift, but sometimes a dispatch specialist is assigned to a “cover” position, filling in for absences or vacancies on any shift.

Daniels was assigned to the night window from 1999 to 2004. In 2005, she accepted a transfer to the cover position. This did not change her job classification or pay grade. While working the cover position, Daniels primarily worked the day and night windows. She occasionally worked on the twilight window, but never without supervision.

UPS classifies dispatch specialists as entry-level managers, a level below full-time supervisors. Dispatch specialists do not have formal supervisory authority, cannot discipline or fire employees, and are not responsible for training or evaluating employees. Despite this, Daniels says she performed some tasks normally performed by full-time supervisors, such as giving drivers instructions, hand-delivering certain packages, and supervising administrative assistants.

UPS has detailed salary guidelines setting pay grades and ranges for each position. Specialists and supervisors are different grades, and specialists receive lower pay than supervisors. Daniels's salary was within the range established by the UPS salary guidelines. She received a raise every year between 2006 and 2009.

Although subordinate to feeder supervisors, dispatch specialists report directly to the James Street Station feeder manager. Three feeder managers are relevant to this discussion. Mic Haynes held this position from 2004 to 2006, Joe Dooley from 2006 to 2007, Allen Kirby from 2007 to 2008, and Joe Dooley again from 2008 onwards. The feeder manager reports to the Kansas Feeder Division Manager.

In 2004 or 2005, Daniels began training on the twilight window. Then Kansas Feeder Division Manager, Guy Albertson, instituted a policy that only full-time supervisorscould cover the twilight window. His stated reason for doing so was that the twilight window was the busiest and most complex shift, and requiring a supervisor to cover the shift would reduce the risk of service failures. When this policy was implemented, all full-time supervisors in the James Street Station feeder department were men. Thereafter, Daniels ceased training on the twilight window, having completed only a week of training.

In 2005 and again in 2006, Daniels submitted letters to Human Resources (HR) expressing interest in a promotion to a full-time supervisor position, as required by UPS's promotion policy. HR notified Daniels it received her letters, and advised her that her supervisor or manager would contact her regarding further assessments. It also informed her that her letter of interest would expire at the end of the year, and she would need to resubmit a letter each year if she wished to maintain her eligibility for a promotion. HR did not receive an assessment of Daniels from her manager, at that time Mic Haynes, nor did UPS follow up with her regarding her applications.

Sometime in 2006, Daniels began covering the night window on a long-term assignment. She completed this assignment in late 2006 or early 2007, but in October 2007, after the night dispatcher was on extended leave, she was again assigned to cover the night window until July 2008. In July 2008, Daniels's supervisor, Joe Dooley, permanently assigned her to the night window. At the same time, Dooley promoted a younger male, Jason Isabell, to dispatch specialist and assigned him to the cover position. Isabell, who had been the yard control supervisor during the twilight window, had obtained informal dispatch training on the twilight window and was allowed to cover that window by virtue of that training, even though he was not a supervisor. Daniels was unaware prior to this date that UPS was considering assigning her permanently to the night window and assigning someone else to the cover position.

On July 31, 2008, Daniels met with UPS Kansas District Human Resources Manager Gary Liberti to complain about her replacement by Jason Isabell and her permanent assignment to the night shift. She also complained about the termination of her twilight window training in 2005 and told Liberti she believed she was transferred to the night window because she complained to HR in 2006 about an incident where Dooley came to her home to ask her to work an extra shift.

Daniels and Liberti also discussed Daniels's job classification and her failure to receive a response to her 2005 and 2006 promotion applications. Liberti reportedly asked Daniels why she was not classified as a full-time supervisor, given her duties. Liberti also admitted management should have conducted a follow-up interview to her promotion applications, but failed to comply with UPS policy. He promised to investigate her complaints and follow up with her.

In August of 2008, Daniels filled out an Equal Employment Opportunity Commission (EEOC) intake questionnaire. On November 21, 2008, having heard nothing from Liberti, Daniels filed an EEOC complaint. Soon after, she experienced a significant decrease in work-related communication from her supervisor, Dooley, although she admits this did not affect her job performance.

In February 2009, Daniels met with Dooley to discuss her EEOC complaint. At this meeting, Dooley informed Daniels there were discrepancies in her time records, and told her to properly record her time. Approximately one month before this meeting, UPS had audited the time records of several employees it suspected were not properly recording their time, including Daniels. Daniels claims she was often forced to work without taking breaks or lunch, and this affected the time she left.

Later that month, Daniels again met with Liberti. Liberti reportedly threatened to call the EEOC, and also warned Daniels about the discrepancies in her time records. Despite these warnings about the time records, UPS never took any disciplinary action against Daniels. Daniels later retired in 2009.

In June 2009, Daniels filed a complaint against UPS in United States District Court alleging sex and age discrimination and retaliation in violation of Title VII, the Age Discrimination in Employment Act (ADEA), and Kansas law.¹ She also alleged unequal pay in violation of the Equal Pay Act (EPA) and breach of contract pursuant to Kansas law. In December 2010, the district court granted UPS's motion for summary judgment, finding Daniels failed to allege sufficient facts to support her claims.

This appeal followed.

II. Discussion

It is unlawful for employers to deprive an individual of employment opportunities based on his or her sex. 42 U.S.C. § 2000e–2(a)(2). It is also unlawful for any employer to refuse to hire, fire, or otherwise discriminate in compensation or employment terms against any individual based on age. 29 U.S.C. § 623(a)(1).

When a plaintiff asserts a sex or age discrimination claim but cannot produce any direct evidence of discrimination, as here, the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972), applies. Under this framework, a plaintiff must first establish a prima facie case of discrimination by showing (1) membership in a protected class and (2) an adverse employment action (3) that took place under circumstances giving rise to an inference of discrimination. EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir.2007). If a plaintiff can establish a prima facie case, the burden shifts to the employer to assert a legitimate nondiscriminatory reason for its actions. If it can do so, the burden shifts back to the plaintiff to introduce evidence that the stated nondiscriminatory reason is merely a pretext for discriminatory intent. Simmons v. Sykes Enters., 647 F.3d 943, 947 (10th Cir.2011).

We review the district court's order granting summary judgment de novo. Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.1999). In so doing, we must view the facts in the light most favorable to...