Carey v. Fedex Ground Package System, Inc.

• Decision Date: 15 June 2004
• Docket Number: No. 2:02-CV-1052.,2:02-CV-1052.
• Citation: 321 F.Supp.2d 902
• Parties: Don CAREY, Plaintiff, v. FEDEX GROUND PACKAGE SYSTEM, INC., Defendant.
• Court: U.S. District Court — Southern District of Ohio

321 F.Supp.2d 902

Don CAREY, Plaintiff, v. FEDEX GROUND PACKAGE SYSTEM, INC., Defendant.

No. 2:02-CV-1052.

United States District Court, S.D. Ohio, Eastern Division.

June 15, 2004.

COPYRIGHT MATERIAL OMITTED

Michael Garth Moore, Columbus, OH, Susan M. DiMickele, Squire Sanders & Dempsey, Columbus, OH, for Plaintiff.

Amy Ruth Ita, Squire Sanders & Dempsey, Columbus, OH, for Defendant.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on the Motion for Summary Judgment filed by Defendant, FedEx Ground Package System, Inc. ("FedEx Ground"). Plaintiff, Don Carey, seeks to recover from Defendant on theories of (1) race discrimination in violation of 42 U.S.C. § 1981; (2) breach of contract; (3) promissory estoppel; and (4) fraud. Plaintiff's claims are based on Defendant's failure to provide him with a delivery route as an independent contractor. Jurisdiction is proper under 28 U.S.C. § 1331 and 28 U.S.C. § 1367. For the following reasons, Defendant's Motion is GRANTED in part and DENIED in part.

II. BACKGROUND

For purposes of summary judgment, the Court will consider the facts in the light most favorable to Plaintiff.

Plaintiff, Don Carey, is an African American man. Since 1999, Carey has been a full time employee of Volvo. He works as a warehouseman on second shift, with an inflexible start time of 5:00 p.m. In early 2001, Carey, interested in owning his own business and in eventually leaving Volvo, saw an advertisement in the paper for contractor opportunities with FedEx Home Delivery, a division of FedEx Ground. On January 9, 2001, Carey attended a meeting at a local hotel to learn more about the contractor opportunities. The meeting was conducted by Phil Kelleher, a white man who was the terminal manager at FedEx Home Delivery's Groveport hub. As terminal manager, Kelleher had the discretion to add or revise a route, or to add or not add a contractor. He also had the authority to bind FedEx Home Delivery to a contract.

FedEx Ground is an Authorized Motor Carrier under the federal Motor Carrier Act pursuant to 49 U.S.C. §§ 13901 and 13902. As an Authorized Motor Carrier, FedEx Ground is required to comply with minimum safety standards published by the Department of Transportation ("DOT"). 49 U.S.C. § 13902; 49 U.S.C. § 31136. FedEx Home Delivery contracts with independent contractor drivers to perform delivery services. All such drivers operate under the motor carrier authority and registration of FedEx Ground. The Motor Carrier Act and corresponding regulations impose rigorous standards on all drivers, including, inter alia, that they take drug and alcohol tests, that they complete a road test, that they meet certain physical qualifications, and that they meet various vehicle inspection requirements. Based on these requirements and its own business needs, FedEx Home Delivery developed the FHD Safe Driving Program that is set forth in the FedEx Home Delivery Standard Contractor Operating Agreement.

At the January 9 meeting, Kelleher gave Carey a copy of a document entitled, "Build Your Future as a FedEx Home Delivery Contractor." The only identification of requirements in this document was the statement, "To become an independent contractor, candidates must be 21 or older; pass a Department of Transportation physical and drug scan; and have a satisfactory driving record." Also at this meeting, Carey filled out a three page "Contractor/Driver Information Sheet." On this form, Carey indicated that he would not be available to start working until February or March of 2001. On January 9, Kelleher submitted Carey's application to InQuest for a criminal background check. On January 10, InQuest cleared Carey for hire.

On January 11, 2001, Kelleher met with Carey individually. At this meeting, Carey and Kelleher both completed and signed a DOT form listing Carey's traffic offenses. Carey also filled out reference forms and alcohol and drug test verifications. In discussing his interest in the position, Carey informed Kelleher that his wife, Jackie, wanted to quit her job at Honda in order to be a housewife and to go back to school part time, and that he was trying to increase his income to compensate. When asked, Carey told Kelleher that he was not going to quit his job at Volvo. Upon further discussion, Kelleher agreed that Carey could hire a backup driver to eliminate any potential conflict between the two jobs.¹ Carey testified at deposition that he understood it was his responsibility to secure a reliable backup driver before he could contract with FedEx Home Delivery.

On January 15, Kelleher received a motor vehicle record ("MVR") traffic offenses report for Carey. On January 18, Carey took, and passed, DOT physical and drug tests. On January 20, Kelleher provided his approval of Carey's application. On February 3, 2001, Carey spent all day at the terminal. He underwent a series of tests, including a full road test; he completed safety training; he met with Kelleher for a full interview; and he received numerous documents. Among these documents was a booklet entitled, "Becoming a QHD Pickup and Delivery Contractor," for which Carey signed an acknowledgment of receipt.²

Another one of the documents he received was the FedEx Home Delivery Standard Contractor Operating Agreement (the "Agreement"). Carey never read the Agreement and never signed that or any other contract with FedEx Home Delivery. When Kelleher gave him the documents, Kelleher told Carey not to worry about reading the documents because he would go over them in detail with Carey when Carey was assigned a route.

The Agreement provides that a contractor may employ "Qualified Persons" as drivers and that such drivers must meet the FHD Safe Driving Program standards:

Contractor may employ or provide person(s) to assist Contractor in performing the obligations specified by this Agreement. All persons so employed or provided by the Contractor, either driving or non-driving, shall be qualified pursuant to applicable federal, state and municipal safety standards and FHD Safe Driving Program standards as published from time to time.

The FHD Safe Driving Program standards are set forth as an addendum to the Agreement and list 13 minimum requirements for all drivers, including, inter alia, (1) no record of conviction for a felony; (2) a history of safe commercial driving experience and satisfactory work history; (3) evidence of a valid commercial driver's license; and (4) a current and satisfactory MVR abstract. All drivers also are required to comply with all applicable federal, state, and local laws.

At some point after the January 11 conversation, Carey contacted his brother, Greg Cross, about serving as a backup driver. After Cross agreed, Carey informed Kelleher that Cross was willing to serve as a backup driver and that his wife, Jackie, would also be available to fill in if necessary. Sometime in February 2001, Kelleher gave Carey an application form³ and a consent form for his brother to complete. Cross completed these forms, and Carey returned them to Kelleher. Carey did not understand that his backup driver had to meet the same standards and training required of all drivers. Kelleher told Carey that the backup driver was solely Carey's responsibility since he would be working for Carey and that the "[o]nly thing we want to do is just check his application out just to make sure he fits our criteria." Kelleher did not tell Carey about a drug screen or any other requirements that Cross had to fulfill. When Carey inquired further, Kelleher specifically told Carey that nothing else was needed at the time and that it was sufficient that Cross had filled out an application.

At the February 3, 2001, meeting, Kelleher and Carey discussed the route that Kelleher intended to give Carey. Kelleher pointed out a display of the area's routes and told Carey that he was splitting up a Westerville/Worthington route and that this was the route he was going to give Carey. Kelleher said that the split probably would not occur until the end of March or early April. According to Carey, Kelleher specifically stated, "This is the route I'm going to give you."⁴ Kelleher also at this time told Carey that he needed to start looking for a delivery van to purchase.

It appears that on February 23, 2001, Regional Manager/Safety Manager Paul Molnar executed a "Driver Qualification File Control Form-TSM034" approving Carey as a FedEx Home Delivery "Temp A Driver" with a start date of February 23, 2001.⁵ Molnar also, on that date, signed Carey's "Contractor/Driver Information Sheet," indicating his approval of that application.⁶ By this time, Kelleher had the forms that Cross had completed. Kelleher had told Carey that he had to send everything out to the Safety Manager for approval. At some point, presumably after the approval was received, Kelleher informed Carey that "everything was a go." Carey understood this statement to mean that he was approved as an independent contractor and that his backup driver also was fully approved. Kelleher never subsequently raised the question of a backup driver or informed Carey that he needed to meet any further requirements.

Around March 1, Kelleher called Carey and told him to "hold up" on buying a van because the new route had not been approved yet. On March 1, Jackie provided Honda with her resignation, to be effective March 14, 2001. Carey told Kelleher that Jackie had submitted her resignation. Around the second week in March, Kelleher called Carey and said, "[T]hat route's coming available. You need to go ahead and get that van." During this conversation, Kelleher told Carey, "I can't approve you if you don't have the van." When Carey responded that he was going to go buy it, Kelleher replied, "That's the only thing you need to do."

On March 22, 2001, Carey purchased a van from Krieger Ford for $21,019. Both he and his wife signed the financing agreement, and he took...