Sifuentes v. United Parcel Serv., Inc., CASE NO. 10-2178-RDR
| Decision Date | 26 November 2012 |
| Docket Number | CASE NO. 10-2178-RDR |
| Parties | William Sifuentes, Plaintiff, v. United Parcel Service, Inc., Defendant. |
| Court | U.S. District Court — District of Kansas |
Plaintiff, a retired UPS truck driver, alleges constructive discharge, illegal discrimination and retaliation during his employment with defendant. According to the pretrial order (Doc. No. 132, pp. 17-18), plaintiff asserts discrimination on the basis of age, race and physical disability. He alleges retaliation for and interference with asserting his rights against disability discrimination. He further claims harassment and hostile work environment, as well as a failure to accommodate, in violation of federal disability law. In addition, plaintiff alleges workers' compensation retaliation in violation of Kansas law. Plaintiff's federal statutory claims are brought under: Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621; and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101. Plaintiff's state statutory claims are brought under theKansas Act Against Discrimination ("KAAD"), K.S.A. 44-1001 and the Kansas Age Discrimination in Employment Act ("KADEA"), K.S.A. 44-1111.
This case is before the court upon defendant's motion for summary judgment. After spending considerable time examining the parties' lengthy submissions and the extensive citations to the discovery record, the court concludes that summary judgment is warranted largely because plaintiff's constructive discharge claim has procedural and substantive deficiencies and because plaintiff cannot demonstrate that defendant took a legally cognizable adverse employment action against plaintiff.1
Summary judgment is warranted if the materials on record 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.CIV.P. 56(a). The court views "all of the facts in the light most favorable to the non-movant and reasonable inferences from the record must be drawn in favor of the non-moving party." Piercy v. Maketa, 480 F.3d 1192, 1197 (10th Cir. 2007). From this viewpoint, the court attempts to determine whether a reasonable jury could return a verdict in favorof the non-moving party. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). "While we view the record in the light most favorable to the non-moving party, that party must still identify sufficient evidence requiring submission to the jury to survive summary judgment." Piercy, 480 F.3d at 1197. In other words, the court may consider evidence produced by the moving party as well as the absence of admissible evidence in favor of an essential element of the non-moving party's claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000). "If the evidence [in support of a claim] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-250 (1986)(interior citations omitted). "[P]urely conclusory allegations of discrimination" which are devoid of "concrete particulars" are not sufficient to avoid summary judgment. Pucino v. Verizon Wireless Communications, Inc., 618 F.3d 112, 119 (2d Cir. 2010)(interior quotations omitted); see also, Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998)(non-moving party must set forth specific facts admissible in evidence from which a rational jury could find for non-movant). "Unsubstantiated allegations carry no probative weight . . . evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise." Bones, 366 F.3d at 875.
The following factual statements are considered uncontrovertedfor the purposes of this order. Plaintiff was born in 1948 and began working for defendant in 1971, according to the parties' stipulation in the pretrial order. Doc. No. 132, p. 2. Plaintiff was a feeder driver during most of his career with defendant, including the years 1977 through February 2011, when he retired upon reaching 40 years with the company. From 2001 forward, plaintiff drove trucks out of defendant's James Street facility in Kansas City, Kansas. Feeder drivers drive tractor-trailer trucks long distances along various routes. The drivers bid for the routes, also called "jobs," in accordance with a labor contract and defendant's policies. Seniority was given precedence. At the end of plaintiff's career, the bids were made annually. But, a few years earlier the bids were done each April and December. In 2009 and 2010, plaintiff generally worked Monday through Friday, driving 9 to 11 hours per day.
There were approximately 80 feeder drivers who worked out of the James Street facility. As of January 2011 only 5 of the drivers were under age 40; 59 drivers were over age 50 and 13 drivers were over age 60. Doc. No. 140-1, p. 19. These numbers were roughly the same between the years 2007 and 2011. Doc. No. 140-2, p. 17. Plaintiff recalled having four Hispanics in the feeder department at the facility and one of those men did not drive out on the road. Plaintiff's deposition at pp. 185 & 265. Plaintiff was among the top ten drivers in terms of seniority from 2008 until his retirement. Plaintiff was paid an hourly wage, plus a certain dollar amount permile driven. Sometimes plaintiff earned overtime as well.
Tractors were assigned to bid jobs, not to drivers, by the "Kansas Feeder Scheduler." The Feeder Scheduler who assigned the tractors plaintiff drove during most of the time relevant to this case was a man named Gerald Reeves. Each tractor was identified by number. Generally, the Feeder Scheduler did not know or consider which driver was performing or would perform each job when he made tractor assignments. Indeed, tractor assignments were made before drivers made bids on the jobs. Id. at p. 258. The drivers saw the tractor numbers assigned to a job when they made a bid for the job. The tractor assignments, however, could and did change for various reasons after the bidding process was completed and the drivers were assigned to jobs. Numerous factors, including load, terrain and equipment availability, were relevant to making tractor assignments. The Feeder Scheduler was also responsible for changing job start times and schedules. Plaintiff testified that he had very little contact with Gerald Reeves when he was the Feeder Scheduler. Id. at p. 248.
UPS employees are trained and required to immediately report any unsafe condition or equipment to management and to notify their supervisor or manager of any work-related injuries or vehicle accidents, regardless of severity. When an employee reports a work-related injury or accident, the employee receives follow up safety training.
Drivers are trained to fill out "DVIR" forms to give notice ofissues regarding the performance or safety of the tractor-trailers. Drivers are required to do a pre-trip inspection of their tractors before they drive their routes and to make a post-trip report regarding any safety or non-safety issues. Mechanics and supervisors determine whether the tractor-trailers are safe to drive and comply with Department of Transportation ("DOT") requirements. Drivers are required to note any safety issue on the DVIR. Id. at p. 61. If safety issues cannot be fixed, then the tractor is "red-tagged" and cannot be taken on the road. Id. at pp. 61-62, 65. According to DOT regulations and union directives, drivers did not have to drive unsafe tractors. Id. at pp. 62, 208.
Plaintiff asserts in his deposition that he was assigned old junky tractors by defendant from 1989 forward (Id. at pp. 124, 451), and that the best tractor he drove was assigned in 2010. Id. at p. 257. Plaintiff's major complaint was that the tractors were rough-riding. Several drivers made similar complaints. Id. at pp. 187 & 189; see also, Id. at p. 242 (); Doc. No. 174-3, p. 73 (); Doc. No. 175-4, p. 29 (); Doc. No. 175-1, p. 72 (); Doc. No. 175-2, pp. 75-76 (); Doc. No. 140-5, p. 8 (). Some of the tractors assignedto plaintiff's job were driven by other drivers when plaintiff's shift was over. Id. at 183 & 196; Doc. No. 141-3, p. 7. Some tractors were driven 24 hours a day. Id. at p. 67. Plaintiff had other problems with the tractors he was assigned which included: broken seats; fumes in the cab; broken shocks; and a broken seat belt system. These problems were resolved with repairs or some other fix, but not immediately. Id. at p. 94. Rough-riding tractors were more of a constant complaint. Plaintiff often complained about the condition of his tractors and often requested a smoother-riding tractor.
Plaintiff was assigned a new tractor in 2008, but it had a stiff seat. Id. at p. 195. He complained, but drove it for quite a while before he got a different tractor. Id.
Plaintiff testified that from 2006 until he retired, he never knowingly put himself or the public at risk by driving an unsafe tractor or knowingly violate any DOT rules or regulations. Id. at p. 208. Plaintiff also testified that he drove a tractor with a broken stop on a seat belt in 2009 or 2010. He considered this to be a safety issue. Id. at pp. 92-93 & 524-25.
Plaintiff had permanent physical restrictions, but none which permanently prevented him from doing the essential functions of his job. He testified and alleged in the final pretrial order that he could and did perform his feeder driver job duties without accommodation. Id. at p. 224; Doc. No. 132, p. 4. He...
To continue reading
Request your trial