Clay v. United Parcel Service, Inc.

Decision Date31 August 2007
Docket NumberNo. 05-4243.,05-4243.
Citation501 F.3d 695
PartiesOlin CLAY, Marie Moss, Marcus Miller, Plaintiffs-Appellants, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Dennis R. Thompson, Thompson & Bishop, Akron, Ohio, for Appellants. Margaret M. Koesel, Porter, Wright, Morris & Arthur, Cleveland, Ohio, for Appellee. ON BRIEF: Dennis R. Thompson, Christy B. Bishop, Thompson & Bishop, Akron, Ohio, for Appellants. Margaret M. Koesel, Tracey L. Turnbull, Porter, Wright, Morris & Arthur, Cleveland, Ohio, for Appellee.

Before: BATCHELDER and MOORE, Circuit Judges; MILLS, District Judge.*

MOORE, J., delivered the opinion of the court, in which MILLS, D. J., joined. BATCHELDER, J. (pp. ___-___), delivered a separate opinion concurring in part and dissenting in part.



Plaintiffs-Appellants Marie Moss ("Moss"), Olin Clay ("Clay"), and Marcus Miller ("Miller")1 (collectively "the plaintiffs") appeal the district court orders granting summary judgment to Defendant-Appellant United Parcel Service, Inc. ("UPS") on a variety of Title VII-based claims, and denying the plaintiffs' motion to reconsider. Moss appeals the grant of summary judgment on her disparate-treatment claim and hostile-work-environment claim. Clay appeals the grant of summary judgment on his disparate-treatment claim and retaliation claim. Miller appeals the grant of summary judgment on his disparate-treatment claim and retaliation claim. Because the district court correctly applied the summary-judgment standard with respect to Moss's hostile-work-environment claim, Moss's disparate-treatment claim insofar as it pertains to the Akron position, and Miller's retaliation claim, we AFFIRM the district court's grant of summary judgment on these claims. Because there are genuine issues of material fact with respect to Moss's disparate-treatment claim insofar as it pertains to the Middleburg Heights position, Clay's disparate-treatment claim, Clay's retaliation claim, and Miller's disparate-treatment claim, we REVERSE the district court's grant of summary judgment on these claims and we REMAND the case for further proceedings consistent with this opinion.


All of the plaintiffs are African-American, have worked for UPS, and claim that UPS subjected them to adverse employment actions based on their race. Beyond this, the similarities between these plaintiffs end, and the facts leading up to their claims are distinct. Accordingly, the relevant facts for each plaintiff appear where appropriate below.

A. Standard of Review

We review de novo a district court's order granting summary judgment. Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir.2006). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). Conversely, "[s]ummary judgment is inappropriate when the evidence raises a genuine issue about a material fact, `that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Wright, 455 F.3d at 706 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). We "view all evidence in the light most favorable to the nonmoving party." Id. Appellate jurisdiction is proper in this case pursuant to 28 U.S.C. § 1291.

B. Marie Moss

With respect to Moss, the issues before us are whether the district court erred in granting summary judgment to UPS on Moss's disparate-treatment claim and whether the district court erred in granting summary judgment to UPS on Moss's hostile-work-environment claim.

1. Facts
a. Customer-Counter-Clerk Position

At the UPS center located in Akron, Ohio there are two shifts: pre-load (the morning shift) and re-load (the evening shift). In pre-load, packages are shipped to the Akron center, where they are unloaded and placed on a conveyor belt for sorting ("Primary Sort"). From the Primary Sort, the main conveyor breaks off into two parallel, smaller conveyor belts known as the Metro Sort and the East Sort.

Moss has worked for UPS since 1976. From 1978 until 1993 (when the position was eliminated) Moss was a part-time, customer-counter clerk at the Akron center. Customer-counter clerks wait on customers and deal with the public. In 1993, Moss became a part-time, pre-load clerk, and worked at the East Sort, where she was the only black employee. As a pre-load clerk, Moss's duties included making address corrections, repairing damaged packages, repacking opened packages, retaping packages, and handling telephone inquiries. Moss was a member of the International Brotherhood of Teamsters, and was subject to a collective bargaining agreement ("CBA").

In 1999 or 2000, Moss learned that UPS was going to build another center in Wadsworth, Ohio. The CBA contained a "Change of Operations" ("COO") provision which under the circumstances of this case would allow employees from the Akron center to "follow their work" to Wadsworth. Joint Appendix ("J.A.") at 619, 624 (CBA at 106; Supp. to CBA at 148). In other words, if a position in Akron was transferred to Wadsworth, the person working in that position in Akron had the right to take the position in Wadsworth. Further, the COO provision provided that when a new center (in this case Wadsworth) opened, any part-time support jobs that were created within thirty days of the opening must be offered, by seniority, to existing part-time support employees from the affected center (in this case Akron).

Part-time job openings were filled using intent sheets. According to Moss, as a matter of practice, intent sheets were posted indefinitely until the position was filled and the employee actually began working in that position. Employees interested in the position signed the intent sheet, and the position went to the person with the greatest seniority.

In late 2000, intent sheets were posted in Akron for various part-time positions for the Wadsworth facility. Moss saw a posting for her current position (pre-load clerk) even though she had not first been offered the opportunity to follow her work as required by the CBA. She did not see an intent sheet for a customer-counter-clerk position. When Moss inquired about the customer-counter-clerk position, the Metro-Center Manager, Brian Bachiari, told her that UPS had posted and taken down the intent sheet in August 2000, and that the customer-counter-clerk position had been filled. Moss signed the intent sheet for her second choice of pre-load clerk.

Later, Moss learned that there were actually two open customer-counter-clerk positions available, but only one of those open positions had been posted at the Akron facility. The two positions were both given to white employees: one was given to a white male, Tom Gradwohl, from the Akron facility, the other to a white female, Margaret Ruddy ("Ruddy"), from the facility in Middleburg Heights, Ohio.

Moss filed a grievance with respect to the manner in which the customer-counter-clerk intent sheet had been posted, alleging that UPS failed to follow policy and the CBA. A grievance hearing was held, resulting in a deadlock decision. At the hearing, Moss made clear that if she could not get a customer-counter-clerk position in Wadsworth, she wanted the pre-load-clerk position in Wadsworth.

The next day, Human Resources Manager, Mike Mick ("Mick"), who had attended the grievance hearing, approached Moss with the Wadsworth pre-load-clerk intent sheet and said, "You wanted me to take your name off the pre-load clerk position." J.A. at 586 (Moss Aff. at ¶ 34). Mick told her to cross out her name and initial it. Moss took Mick to mean that UPS would give her the customer-counter-clerk position if she first took her name off the pre-load-clerk-intent sheet, and so she complied with his request. When Moss asked for the intent sheet for the customer-counter-clerk position, Mick informed her that the customer-counter-clerk position had already been filled, and then he walked away.

b. Supervisor Joseph Terlop

The Wadsworth facility opened on February 2, 2001. On January 30, 2001, Moss's manager, Joseph Terlop ("Terlop"), approached Moss at the end of her shift and told her to report on Monday to the evening shift, because her current job had moved to Wadsworth. Moss did not want to work the evening shift, and so she informed Terlop that she was going to use her seniority to take a position in the Primary Sort to avoid the adverse shift transfer.

On February 2, 2001, Moss reported to work in the morning and was administered a Primary-Sort qualifying test which she passed. Instead of placing her on the Primary-Sort, however, Terlop assigned her to unload trailers. Moss filed another grievance. The next day and for the next several days, Terlop assigned Moss to load package cars, a task involving heavy lifting. Eventually, Moss was assigned to the Primary Sort, where she remained for approximately two weeks.

The work was too strenuous for Moss, and she requested reassignment to an open, small-sort position which was another position on the Primary-Sort for which she was qualified. The small-sort position involved smaller and lighter packages. Terlop refused. Instead, Terlop assigned Moss to the boxline charger position—a position for which she was not qualified, involving very heavy lifting. Despite the fact that Moss does not believe that she passed the qualifying test (she was never shown the results, even after asking for them), Terlop kept her in the boxline charger position. Moss injured her groin on the job and was unable to work for six months.

Moss alleges that Terlop constantly criticized Moss regarding matters for which he did...

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