Patton v. United Parcel Service, Inc.

Citation910 F. Supp. 1250
Decision Date21 December 1995
Docket NumberCivil Action No. H-94-2004.
PartiesDavid J. PATTON, et ux., Plaintiffs, v. UNITED PARCEL SERVICE, INC., United Parcel Service of Ohio, Inc., United Parcel Service of New York, Inc., United Parcel Service of America, Inc., Joe Liana, Bob Schultz and Clayton Clark, Defendants.
CourtU.S. District Court — Southern District of Texas









J. Ronald Tucker, Tucker & Muller, Houston, TX, for Plaintiffs.

John K. Rentz and Teresa Valderrama, Baker & Botts, Houston, TX, for Defendants.


CRONE, United States Magistrate Judge.

Pending before the court are Defendants United Parcel Service, Inc. ("UPS"), Joe Liana ("Liana"), Bob Schultz ("Schultz"), and Clayton Clark's ("Clark") Motion for Summary Judgment (# 41) and Defendants' Rule 12(b)(6) Motion to Dismiss Vera Patton's Claims for Failure to State a Claim (# 40).

Defendants seek summary judgment on David J. Patton ("David") and Vera Patton's ("Vera") (collectively the "Pattons") claims of reverse discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Texas Commission on Human Rights Act ("TCHRA"), Tex.Rev.Civ.Stat.Ann. art. 5221k (now recodified as Tex.Lab.Code § 21.001 et seq.), retaliation, constructive discharge, intentional infliction of emotional distress, defamation, invasion of privacy, wrongful discharge, and breach of the duty of good faith and fair dealing. The defendants also seek dismissal of Vera's federal and state law claims.

Having reviewed the motions, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that the defendants' motions should be granted.

I. Background

On September 2, 1975, David, a white male, was hired by UPS. After serving in various capacities and receiving several awards, on August 9, 1993, David was demoted from his position of River Oaks Center Manager at the UPS Sweetwater facility in Houston, Texas, to on-car supervisor at the UPS Lakeside facility in Stafford, Texas.

While at the River Oaks Center office on August 3, 1993, Dave Norstrom ("Norstrom"), the Inwood Center Manager, and Mike Cummins ("Cummins"), the Inwood Center Supervisor, mentioned to David that there were some new "souvenir" baseballs with "UPS" embossed on them. David told them that if they were able to obtain any of the baseballs he would like to have or see one. Later that day, David was talking on the telephone in the center office area, with his back to the door, when someone came inside and placed a white box on the counter/desk beside where he was sitting. According to David, he did not immediately turn around to see who had entered the office. A few minutes later, David turned around, and about that time, James Turner ("Turner"), the River Oaks Center Supervisor, entered the center office area. David asked Turner if he had brought the white box, to which Turner responded negatively. After noticing that the seal on the box had been broken, David opened the box and found a UPS baseball made in China and a sheet of blister-bubble plastic, with a note that said, "Congratulations, Shipper. We're glad that you've been involved in this test for UPS." After David and Turner looked at the ball, David told Turner that Norstrom or Cummins must have left it for him. Subsequently, David put the ball back into its original white box and left it sitting on the counter/desk in the center office. Unknown to David, Turner later put the baseball in David's personal office after David had left work for the day.

On August 4, 1993, sometime after lunch, David received a call from Norstrom asking David what he had done with the baseball he had given him. Norstrom advised David that Loss Prevention was searching for missing baseballs. David asked Turner where the white box was, and Turner said that he had placed the box in David's personal office the night before. According to David, he immediately went into his office and found the box sitting on his desk. David then took the box to Loss Prevention Supervisor, Jerry McGee ("McGee"), and said, "Here, I think this is what you're looking for." According to David, McGee responded, "Yes. Yes, we're looking for those baseballs." A few minutes later, Sharon Sylvie ("Sylvie"), Loss Prevention Manager, approached David in his office and asked him who had given him the baseball. David responded, "I really can't say."

The following afternoon, August 5, 1993, Clark, the Division Manager, went to David's office and asked him who had given him the baseball. David declined to answer. According to Clark, he told David that he needed to know who had been involved in removing the package(s) from their storage location. David again failed to answer Clark's question. Instead, Clark claims that David stated that he had talked with the individual and that he believed the person had no additional knowledge. Clark ended the meeting.

On Friday, August 6, Clark met with David again and asked him for the name of the person involved. David again refused to divulge the name. Clark informed David that he had no intention of disciplining the individual involved. Clark instructed David to tell him the name. Clark contends that David refused, stating that his loyalty to a "partner" prevented him from following the instruction. Clark maintains that he informed David that his loyalty was misplaced and that he could in fact lose his job for refusing to follow instructions. Clark then told David to report to the office of Liana, the Southeast Texas District Manager. David met with Liana, Clark, and Claude Anderson, the District Loss Prevention Manager, in Liana's office. Liana asked David who had brought the baseball to his office. According to Liana, David responded by saying that he would not sell out a partner. Liana claims that he told David that as a partner in UPS he was expected to cooperate during an investigation and that he had a duty to answer questions specifically pertaining to this incident or any other incident. Liana also told David nothing would happen to the person who gave him the baseball. After David refused to answer his question, Liana told David to go home and think about the situation and report back to him on Monday morning. Liana advised David that Clark had recommended that David be demoted and that unless David answered Liana's question, he would go along with that recommendation.

On Saturday, August 7, Norstrom telephoned David at home and said that he would come forward and explain that he had put the baseball in David's office. Norstrom attempted to telephone Sylvie at home but was unable to reach her. On Sunday night, Norstrom reached Sylvie by telephone and told her that he had brought the baseball to David. Sylvie called him back that evening and told him to meet with Clark and her on Monday morning.

On Monday morning, August 9, 1993, Norstrom met with Sylvie and Clark and admitted placing the baseball in David's office. No adverse action was taken against Norstrom as a result of this incident. Norstrom then told David what he had told management. Afterwards, David met with Schultz, the Human Resources Manager, and Clark. Schultz and Clark once again asked David who had given him the baseball. David still refused to answer. Liana met with David again in the presence of Anderson, Schultz, and Clark. When Liana asked David if he was going to tell them who had given him the baseball, David said, "I'm sorry, but I can't do that." David contends that because they already knew that information, there was no point in telling them. After David's final refusal to cooperate, Liana told David to take off the rest of the week and that he would be reassigned on Monday, August 16.

On August 16, David met with Schultz and Liana and, due to his refusal to cooperate, was demoted one level to an on-car supervisor. David was transferred to the Lakeside facility in Stafford, Texas, because the center was short-handed and needed supervisors. David's supervisor at the Lakeside facility was Mike Morrison ("Morrison"). David's salary of $4,500.00 per month did not change as a result of his demotion and reassignment.

On September 9, Morrison told David that there was a problem with his August expense report. David had sought reimbursement for the mileage difference between the Sweetwater and Stafford facilities. The Stafford facility is approximately fifty miles from David's home in Spring, Texas. Morrison refused to reimburse David and referred his questions to Schultz. On September 16, David telephoned Schultz, who confirmed that UPS does not reimburse employees for differences in mileage when transferred to a new assignment. David protested, claiming that he had been reimbursed in the past when his office had been moved from Sweetwater to Stafford. Schultz informed David that if that were the case, it was a mistake and should not have occurred. Therefore, David's request for reimbursement of mileage traveling to and from work was denied by UPS. The Pattons contend that this amounted to a $350.00 per month pay cut.

By letter dated September 17, 1993, David informed Liana of his resignation effective October 1, 1993. David's letter stated that his resignation was "due to both family and financial hardships incurred as a result of being transferred across Houston to the Stafford Building following your demotion of me without just cause...."

On November 1, 1993, David filed a charge against UPS with the Equal Employment Opportunity Commission ("EEOC") claiming that he had been discriminated against in violation of Title VII on the basis of sex. David's EEOC charge was amended on November 22, 1993, to include allegations of discrimination on the basis of race, color, sex, retaliation and disparate treatment. After...

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