Macon v. United Parcel Serv., Inc.

• Decision Date: 19 February 2014
• Docket Number: No. 12–3080.,12–3080.
• Citation: 743 F.3d 708
• Parties: Jeff MACON, Plaintiff–Appellant, v. UNITED PARCEL SERVICE, INC., Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

743 F.3d 708

Jeff MACON, Plaintiff–Appellant,

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

No. 12–3080.

United States Court of Appeals, Tenth Circuit.

Feb. 19, 2014.

Robert G. Harken (George A. Barton with him on the brief) of Law Offices of George A. Barton, P.C., Kansas City, MO, for Plaintiff–Appellant.

Laurence R. Tucker, Kansas City, MO, (Thomas B. Weaver, St. Louis, MO; Meredith J. Rund, Kansas City, MO, with him on the brief) of Armstrong Teasdale LLP, for Defendant–Appellee.

Before GORSUCH, EBEL, and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

United Parcel Service (UPS) fired Jeff Macon for dishonesty. He claims this stated reason was a pretext; he was actually fired because he exercised his rights under the Kansas worker's compensation statute. In entering a summary judgment in favor of UPS, the district judge concluded the uncontested facts showed UPS to have honestly believed Macon was dishonest and discharged him in good faith. Irrespectiveof his complaints about pretext and disparate treatment by supervisors, the final decisionmaker for UPS, a regional independent union/management grievance panel, conducted an investigation and decided discharge for dishonesty was appropriate. Based upon that independent and informed decision, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

UPS hired Macon in 2001 as a part-time preloader. In 2004, he became a package car driver in UPS's Lenexa, Kansas, “North Center.” In February 2007, he suffered the first of two separate work-related injuries to his right elbow. Both were covered under worker's compensation (WC). UPS paid about $678 to treat the first injury, which did not cause Macon to miss work. Later, on May 21, 2008, he suffered the second injury to his elbow, which required cortisone injections and surgery on August 21, 2008. He continued working up to the time of his surgery, but after surgery he was not able to return to work until December 4, 2008. UPS incurred $34,339 in costs for treatment of his second injury. Even after the surgery, Macon was unable to recover about 7% of the function in his right arm so UPS offered him a settlement of $6,976. On March 16, 2009, he accepted the offer.

Prior to his second injury and absence in 2008, Macon had only been disciplined once. That discipline commenced on April 30, 2008, about three weeks before his second injury. UPS sent him a termination letter for improperly signing for a customer's next-day air delivery. He invoked the union's grievance procedure, and on May 8, 2008, a local grievance panel, consisting of an equal number of union and management members, reduced the termination to a suspension.

Under the UPS grievance procedure, an employee may protest any discipline. A protest triggers review by a local grievance panel. If the grievance cannot be resolved at the local level, it escalates to a regional committee. The regional grievance panel also consists of an equal number of representatives from the union and UPS. But where, as here, the employee's home facility is in Kansas, the regional panel is made up of management representatives from Missouri or Nebraska and union representatives from a local union other than that of the grievant.

In deposition testimony relating to this case, both UPS management officials and union representatives testified about the May 2008 grievance proceedings. During those proceedings, they reviewed Macon's delivery records and observed that in addition to the improper signing for next day air, he was also improperly recording multiple stops at locations with a central receiving location like a mailroom. He was advised to stop doing so. As UPS explains, because “[t]aking credit for more stops increases a driver's ‘planned day,’ ” this improper recording practice would undeservedly increase Macon's compensation. (Appellee Br. 16.) In response, Macon claims he was “never ... trained on UPS' delivery and recording procedures” and says “UPS agreed to provide [him] with training on [its] delivery and recording method[s].” (Appellant Br. 10–11.)

After Macon returned to work in December 2008, he was repeatedly disciplined. Most of the incidents involved safety procedures and failing to properly document breaks and trips. On March 12, 2009, UPS sent Macon a termination letter for driving without a safety belt and leaving a package unattended. Later, on July 20, 2009, Macon's supervisor, Kelly Ceesay, issued a pending termination letter for safety-related infractions. Both terminationswere reduced to suspensions by local grievance panels. Finally, on November 3, 2009, after a review of drivers' delivery records, Ceesay determined Macon again improperly took credit for multiple stops at locations with centralized package delivery. Although Macon claimed “he did not understand that he was improperly recording the stops” (App'x Vol. VII at 1146), UPS issued another termination letter. This time, the local grievance panel could not resolve the matter, so it went to a regional grievance panel, which upheld the termination.

Macon then filed this action in federal district court. His complaint alleged “UPS terminated [his] employment ... because of his work related injury.” (App'x Vol. I at 13.) Following discovery, UPS moved for summary judgment arguing Macon failed to show the necessary causal connection between his 2007 and 2008 WC claims and his 2009 termination. In addition, it argued Macon's claims failed under the summary-judgment framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because he had not shown UPS's stated reason for his termination—dishonesty—was merely a pretext for retaliation.

The district judge agreed on both counts. First, noting a causal connection between a protected WC claim and termination is usually established through close temporal proximity, she concluded “[t]he period of fifteen months between the filing of [Macon's second WC] claim and the discharge does not demonstrate close temporal proximity.” (App'x Vol. VII at 1149.) She also rejected Macon's invitation to focus on the interval between the settlement of his second claim and his termination because, even if the date of claim settlement (March 16, 2009) rather than the date of claim filing was the proper focal point, the seven-month delay still failed to credibly demonstrate impermissible retaliation.

Finally, she rejected as inadequate Macon's attempt to demonstrate why UPS's stated explanation for his discharge could reasonably be considered pretext. Macon relied on his lack of training on the proper reporting of deliveries and inconsistencies in the way UPS disciplined other employees for similar violations. The judge, unconvinced, decided he had shown no reason to doubt UPS's good-faith belief that he knew how to record his package deliveries. She also concluded he had failed to show his situation was comparable to the other employees who were not disciplined.

DISCUSSION

Macon contends both prongs of the judge's conclusion are error. We see it differently. Even if we assume, arguendo, a causal connection between his WC claims and his discharge, Macon failed to produce evidence sufficient to enable a reasonable jury to conclude the stated reason for his discharge—dishonesty—was a mere pretext.

We review the district court's summary judgment de novo. Commerce Bank, N.A. v. Chrysler Realty Corp., 244 F.3d 777, 779 (10th Cir.2001). Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir.2011) (quoting Fed.R.Civ.P. 56(a)). A dispute is genuine when a reasonable jury could find in favor of the nonmoving party on the issue. Id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, “we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmovingparty.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir.2000).

This case arises from our diversity jurisdiction. See28 U.S.C. § 1332. We apply the substantive law of the forum state—in this case, Kansas. See Commerce Bank, 244 F.3d at 780. Under Kansas law, an employer cannot discharge an employee for filing a WC claim. Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1192 (10th Cir.2002); see Jones v. United Parcel Serv., Inc., 674 F.3d 1187, 1196 (10th Cir.), cert. denied,––– U.S. ––––, 133 S.Ct. 413, 184 L.Ed.2d 151 (2012). To establish a claim for a retaliatory discharge under Kansas law, a plaintiff must show: (1) a claim for worker's compensation benefits or an injury that might support a future worker's compensation claim; (2) the employer knew of the claim or injury; (3) the employer discharged the plaintiff; and (4) a causal connection between the claim (or injury) and the discharge. Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass'n, 272 Kan. 546, 35 P.3d 892, 899 (2001).

With respect to WC retaliation claims Kansas has adopted a common aspect of federal law. It applies the burden-shifting framework, as outlined in McDonnell Douglas Corp. v. Green,¹ to determine whether retaliatory discharge claims can survive a motion for summary judgment. Rebarchek, 35 P.3d at 898;Jones, 674 F.3d at 1196. Under this framework, once the plaintiff establishes a prima facie case, the burden of avoiding summary judgment shifts to the employer who must then identify a “non-retaliatory reason for the discharge.” Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116 (10th Cir.2001). If the employer does so, the plaintiff must then produce evidence showing the termination was a pretext for the impermissible retaliation. Rebarchek, 35 P.3d at 898;Kendrick, 220 F.3d at 1226. Such a showing, so long as it would allow a reasonable jury to find the discharge was pretextual, entitles the plaintiff to...