Alvarez v. United Parcel Service Co.

• Decision Date: 26 October 2005
• Docket Number: No. Civ.A. 304CV2173G.,Civ.A. 304CV2173G.
• Citation: 398 F.Supp.2d 543
• Parties: Joe ALVAREZ, Plaintiff, v. UNITED PARCEL SERVICE CO., d/b/a UPSCO United Parcel Service Co., Defendant.
• Court: U.S. District Court — Northern District of Texas

Page 543

398 F.Supp.2d 543

Joe ALVAREZ, Plaintiff, v. UNITED PARCEL SERVICE CO., d/b/a UPSCO United Parcel Service Co., Defendant.

No. Civ.A. 304CV2173G.

United States District Court, N.D. Texas, Dallas Division.

October 26, 2005.

COPYRIGHT MATERIAL OMITTED

Raul H. Loya, Matthew B. Abraham, Loya & Associates, Dallas, TX, for Plaintiff.

John V. Jansonius, Akin Gump Strauss Hauer & Feld, Dallas, TX, Clay A. Hartmann, Akin Gump Strauss Hauer & Feld, Houston, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

FISH, Chief Judge.

Before the court is the motion of defendant United Parcel Service Co. ("UPS") for summary judgment on all of the plaintiff's claims. For the reasons stated below, UPS's motion is granted.

I. BACKGROUND

This is an employment discrimination case brought by Joe Alvarez ("Alvarez") against his former employer, UPS, an international package delivery company. Declaration of Steve Huffman ("Huffman") ¶ 2, located in Appendix in Support of Defendant's Motion for Summary Judgment and Supporting Brief ("Appendix") at 55.¹

Alvarez is a Hispanic male and a resident of Texas. Plaintiff's Original Petition ("Petition") ¶¶ 1, 9, attached to Notice of Removal. On May 15, 1985, UPS hired Alvarez for the package cars department in Austin, Texas. Petition ¶ 9. But see Oral Deposition of Joe Alvarez ("Alvarez Dep.") at 26, located in Appendix at 8 (stating that Alvarez was hired by UPS in 1984). Alvarez worked there until 1996, when he joined the feeder department. Petition ¶ 9. He continued in that position until his transfer to the Dallas/Fort Worth Airport ("DFW") on September 30, 2001. Id.

Local 767 of the International Brotherhood of Teamsters ("IBT") represents all UPS drivers in north Texas, including Alvarez. Defendant's Motion for Summary Judgment and Supporting Brief ("Defendant's Motion") at 3; Huffman ¶ 3. As an IBT member, Alvarez's terms of employment were governed by a collective bargaining agreement known as the National Master United Parcel Service Agreement and Southern Regional Area Supplemental Agreement (collectively, the "CBA"). Huffman ¶ 3. The CBA contained the following provision governing discipline and discharge:

ARTICLE 52 — DISCHARGE OR SUSPENSION

(A) The Employer shall not discharge nor suspend any employee without just cause, but in respect to discharge or suspension shall give at least one (1) warning notice of a complaint against such employee to the employee, in writing, ... except that no warning notice need be given to an employee before discharge if the cause of such discharge is dishonesty....

Appendix at 44B ("Article 52").

Article 51 of the CBA outlines the mandatory grievance and arbitration procedures applicable to a UPS employee. Defendant's Motion at 3. If an employee feels he has been disciplined improperly, he may file a grievance. Huffman ¶ 5. The first step is for the employee's union steward and supervisor to meet within five days of the grievance filing to attempt to resolve it. Id. ¶ 6. The next step is the local hearing. Here, the local union business agent meets with UPS's district labor manager to attempt resolution. Id. If the grievance is not resolved at the local level, the matter is submitted to the Southern Region Area Parcel Grievance Committee ("SRAPGC"), a committee comprised of IBT and UPS representatives. Id. If the SRAPGC is deadlocked, the grievance is submitted to the Southern Region Deadlock Committee. If that panel is deadlocked, the grievance is submitted to a National UPS/Teamsters Panel. Finally, if there is still no resolution, the matter is sent to arbitration. Id.

Documents proffered by UPS reflect that UPS, as an interstate carrier operating large commercial vehicles on public roadways, must comply with Department of Transportation ("DOT") regulations. Huffman ¶ 7. Such compliance requires that UPS drivers accurately log their driving time for DOT purposes via a database system ("IVIS"). Id. ¶¶ 7, 11. In addition, drivers must accurately record their time for compensation purposes and to comply with provisions of the CBA governing breaks. Id. ¶ 8. Failure to accurately record driving time for DOT regulations or break time for compensation or CBA purposes ("stealing time") are violations constituting grounds for immediate discharge for dishonesty under Article 52. Id. ¶ 8.

Due to the time-sensitive nature of UPS's delivery business, feeder drivers are expected to make their runs each day within a prescribed amount of time. Id. ¶ 9. When drivers do not make their run within the time allotted, they are considered "overallowed." Id. While being "overallowed" is permissible from time to time, UPS will take corrective and/or disciplinary action if it occurs on an excessive basis. Id. ¶ 10.

In January 2002, Phil Russell ("Russell") became supervisor of the DFW feeder department. Petition ¶ 10. It was at this time that Alvarez felt he was being harassed about his race, but pretextually about his job performance. Id. In particular, Alvarez felt his co-workers received preferential treatment, Alvarez Dep. at 68-78; Petition ¶ 10; that Russell had an "aggressive" attitude towards Alvarez, Alvarez Dep. at 90; Defendant's Motion at 11; and that Russell referred to another employee as a "fucking Mexican." Alvarez Dep. at 92-95. In late 2002, Russell and Alvarez had an altercation regarding unpaid wages, in which Alvarez threatened to file a grievance against Russell. Petition ¶ 11; Defendant's Motion at 14-15 (citing Alvarez Dep. at 144-45).

In the regular course of monitoring feeder driver performance, management noticed that Alvarez was consistently overallowed for January 2003. Defendant's Motion at 5. This prompted an audit of his IVIS records, which revealed Alvarez making regular stops exceeding his allowed break time. Declaration of Steve Walton ("Walton") ¶¶ 3-5, located in Appendix at 66-68. In addition, UPS discovered that Alvarez had a pattern of parking his rig while DOT records showed him driving. Id. ¶ 5.

To confirm the discrepancies and overallowances, Steve Walton ("Walton") and Rick Blakey ("Blakey"), feeder supervisors at UPS's DFW hub, followed Alvarez on his route for three days in late January of 2003. Petition ¶ 12; Walton ¶ 6. Besides not logging out non-driving time as breaks or properly recording breaks for DOT purposes, Alvarez charged UPS for over four hours of "unworked time" in the three days he was observed. Defendant's Motion at 6-7 (citing Alvarez Dep., Huffman, and Walton). Subsequent to this surveillance, Alvarez was terminated from his position at UPS under Article 52 for "stealing time" and falsifying DOT logs. Id. at 7; Walton ¶ 11; Huffman ¶ 13. Alvarez filed a grievance challenging this termination. Alvarez Dep. at 150; Appendix at 39, 53. This grievance was heard on February 18, 2003, before a panel of UPS and IBT representatives, and was ultimately denied. Defendant's Motion at 8 (citing Alvarez Dep. at 70-71, 152).

Alvarez filed charges of racial discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC") and received notice of right to sue. Petition ¶¶ 24, 32; EEOC Dismissal and Notice of Rights, attached to Petition as Exhibit A. On September 2, 2004, Alvarez filed a civil action against UPS in the 160th Judicial District Court of Dallas County, Texas. Notice of Removal ¶ 2; Petition. The case was removed to this court on October 6, 2004, on the basis of federal question jurisdiction. Notice of Removal. In his petition, Alvarez asserted claims of racial discrimination, in violation of the Texas Commission on Human Rights Act, TEX. LAB.CODE § 21.051 (the "TCHRA"); retaliation, in violation of the TCHRA; violations of 42 U.S.C. § 1981 and Title VII;² intentional infliction of emotional distress; and negligent supervision of UPS's employees. See generally Petition. On August 26, 2005, UPS filed this motion for summary judgment. Docket Sheet; Defendant's Motion. Alvarez did not respond to the motion.

II. ANALYSIS

A. Evidentiary Burdens on Motion for Summary Judgment

Summary judgment is proper when the pleadings and evidence on file show that no genuine issue exists 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).³ "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant makes such a showing by informing the court of the basis of its motion and by identifying the portions of the record which reveal there are no genuine material fact issues. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The pleadings, depositions, admissions, and affidavits, if any, must demonstrate that no genuine issue of material fact exists. FED. R. CIV. P. 56(c).

Once the movant makes this showing, the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. To carry this burden, the "opponent must do more than simply show ... some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmovant must show that the evidence is sufficient to support a resolution of the factual issue in his favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. The nonmovant cannot survive a motion for summary judgment by merely resting on the allegations in his pleadings. Isquith for and on Behalf of Isquith v. Middle South Utilities, Inc., 847 F.2d 186, 199 (5th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 310, 102 L.Ed.2d 329 (1988); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548...