Meuser v. Federal Express Corp.

• Decision Date: 04 May 2009
• Docket Number: No. 08-1106.,08-1106.
• Citation: 564 F.3d 507
• Parties: David MEUSER, Plaintiff, Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

564 F.3d 507

David MEUSER, Plaintiff, Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant, Appellee.

No. 08-1106.

United States Court of Appeals, First Circuit.

Heard July 30, 2008.

Decided May 4, 2009.

Dan V. Bair, II with whom Lisa Brodeur-McGan and Bordeur-McGan, P.C., were on brief for appellant.

Kathy Laughter Laizure was on brief for appellees.

Before TORRUELLA and SELYA, Circuit Judges, and DOMÍNGUEZ,^* District Judge.

DOMÍNGUEZ, District Judge.

This appeal arises from a complaint filed by David Meuser ("Meuser/Appellant") against Federal Express Corporation ("FedEx") on February 9, 2006, in the Hampshire Superior Court, in the Commonwealth of Massachusetts, alleging violation of the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 149, § 52C, intentional infliction of emotional distress, and discharge in violation of public policy, Counts I, II, and III, respectively. On March 17, 2006, FedEx filed a notice of removal in the United States District Court for the District of Massachusetts on the basis of diversity and federal question jurisdiction.

FedEx filed a motion for summary judgment, on all counts, on September 4, 2007, contending that the facts, even when viewed in the light most favorable to the Plaintiff, could not lead a reasonable jury to conclude that any action was taken against Plaintiff via "threats, intimidation or coercion" as required by the MCRA, and that Plaintiff was not constructively discharged. Meuser filed his opposition to FedEx's motion for summary judgment on October 1, 2007. On December 14, 2007, District Court Judge Michael A. Ponsor, entered a memorandum and order granting summary judgment in favor of FedEx, on Counts I (violation of the MCRA) and III (wrongful termination in violation of public policy).¹ Meuser timely filed his notice of appeal on January 14, 2008.

I. BACKGROUND

The events underlying this case commenced on October 10, 2002, when Appellant, a FedEx courier since April 1992, noticed fumes in his delivery truck. Thereafter, Appellant made a visit to the hospital and was out of work for three days as a result of his exposure to the fumes. Consequently, on October 11, 2002, Meuser filed a worker's compensation claim, and on October 14, 2002, he filed a Safety First Report with FedEx. Around that same time Meuser, because he was concerned about his exposure and the nature of the fumes, asked his supervisors for the Material Safety Data Sheets ("MSDS") containing the safety information regarding the faulty pump that was believed to have caused the fumes. On October 21, 2002, he requested that the Occupational Safety and Health Administration ("OSHA") perform an investigation regarding the fumes emanating from his delivery truck. Appellant further filed a written formal complaint. OSHA found that the hazard had already been investigated identified as a leaking pump, and had been corrected; on October 28, 2002 OSHA closed the file. On January 17, 2003, Meuser wrote to OSHA formalizing a complaint as to FedEx's refusal to provide him the MSDS sheets. After some time, the MSDS sheets were obtained from the vendor and provided to Meuser on January 24, 2003, after Meuser's return from a two week vacation. Although OSHA cited FedEx for not having the MSDS on site, no imposition of any monetary penalty was made.

In February 2003, Meuser contracted a respiratory illness and received one-week's leave under the Family Medical Leave Act ("FMLA"). Later in Spring 2003, Meuser's route was changed as part of a comprehensive overhaul of courier assignments, which had been determined since November 2002, but postponed at the request of the drivers. The new route resulted in a larger geographical area, but nonetheless required from Meuser fewer stops per hour.

In April 2003, Meuser requested from his supervisor a replacement truck because the vehicle he was driving was too "dusty." FedEx Senior Manager, Joseph Marotta, suspected that this complaint was merely a tactic to have someone deliver to Meuser, with the requested replacement truck, a package that he had left behind at the station that morning, enabling Meuser to avoid returning to pick up the package and/or being disciplined for leaving the package behind. Consequently, Appellant was provided online counseling, which constitutes the first step in FedEx's progressive discipline process, for failing to take the package on his route.

On or about April 15, 2003, Meuser used his truck dispatch system to send a female courier a communication ("DADS message") in which he accused her of falsifying documents (specifically DEX 17 scans), which is considered a serious offense by FedEx. On April 16, 2003, due to Meuser's use of the dispatch system to make serious accusations against a courier, he was suspended with pay pending an investigation of the incident by the Operations Manager, James Langone. On April 17, 2003, after completion of Langone's investigation, Meuser received documented counseling for his behavior and was sent a copy of FedEx's Acceptable Conduct policy, Section 2-5 in The People Manual.

On September 3, 2003, a FedEx customer on Appellant's route, Mrs. Emily Robertson, complained to FedEx about a late package delivery. Meuser admitted that although the package was mislabeled and misaddressed, he knew the correct delivery address. Nevertheless, since he noticed the mistake at the end of the day it was too late to deliver the package and therefore he classified the package as a "DEX3", a code for "Delivery Exception 3." Said codification is only appropriate when the courier has no knowledge of where to deliver the package.² Consequently, there was a delay in the package delivery. After Mrs. Robertson's complaint of the non-delivery of the package, Meuser was instructed by his supervisor to deliver the package early the next morning and to smooth over the matter with the customer. (FedEx considers recipients of packages to be customers). The next morning Meuser alleges that he delivered the package, apologized and conversed with Mrs. Robertson in the spirit of trying to establish a rapport with her. Meuser further alleges that after he left the customer, he thought he had done a great job and understood that Mrs. Robertson was content. Nevertheless, after the delivery, Mrs. Robertson complained to FedEx again and stated that Meuser's comments were unprofessional, that his manner was threatening and that he accused her of possibly causing him to be subsequently fired because of her complaint.³ Based on this incident, FedEx supervisors shifted Meuser to a different route and placed him on paid investigative suspension. As a result of the investigation, FedEx issued a warning letter to Meuser. Appellant proffers that couriers are almost never removed from their routes unless they have been terminated and that he was removed from his route after seven years with just one customer complaint.

Subsequent to his assignment to the new route, Meuser contacted a number of FedEx customers whom he knew personally and asked them to write to FedEx complaining about FedEx's decision to change his route. Meuser received a second warning letter on September 25, 2003, for involving FedEx customers and for divulging internal FedEx confidential information. Meuser was further informed that his three-day paid investigative suspension was converted into an unpaid suspension. Nevertheless, Meuser continued on his new route with no other changes in pay or benefits.

On November 17, 2003, Meuser submitted two letters to his supervisor, one requesting his personnel file under Mass. Gen. Laws ch. 149, § 52C, and the other asking for a written statement as to why as of that day his personal tuition reimbursement had not been reimbursed. In a meeting held that same day between Meuser, James Langone and Ms. Lisa Patterson, the recently appointed Senior Manager who had minimal knowledge of Meuser's history and no knowledge of the OSHA complaints, Ms. Patterson told Meuser that the letter regarding his tuition reimbursement was disrespectful in tone. During the meeting Ms. Patterson leaned across the table, slammed her hands on the table and "screamed" that "this would not be tolerated." Appellant further alleges that since he was terrified at Patterson's reaction, he withdrew his letter.⁴

Subsequently, Meuser resigned from his position on December 5, 2003. Appellant claims that he thought he was on the verge of being terminated anyway and had been told by Langone that he would have a positive rehire status. Nevertheless, one day after submitting his resignation, Meuser learned that he would be ineligible for positive rehire status because of his two warning letters and attempted to rescind his resignation. FedEx declined to accept his rescission. Consequently, the employment relationship ended.

This suit, the district court's summary judgment order and Meuser's timely appeal followed.

II. ANALYSIS

A. Standard of Review

We review the district court's grant of a summary judgment de novo. See Collazo v. Nicholson, 535 F.3d 41, 44 (1st Cir.2008). Nevertheless, "`[w]e may affirm the district court's decision on any grounds supported by the record.'" Id. (quoting Estades-Negroni v. Assocs. Corp. of N. Am., 377 F.3d 58, 62 (1st Cir.2004)). In reviewing a grant of summary judgment, this court "constru[es] the record in the light most favorable to the nonmovant and resolv[es] all reasonable inferences in the party's favor." Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 38 (1st Cir.2002).

Summary judgment is appropriate only if, viewing all factual disputes in the light most favorable to the nonmoving party, there is no genuine issue of material fact that would prevent judgment for the moving party as a matter of law. Fed. R.Civ.P. 56(c); Montfort-Rodriguez v. Rey-Hernandez, 504 F.3d 221, 224 (1st Cir.2007). A genuine issue exists where "a reasonable jury could resolve the point in favor of the nonmoving pa...