Vickers v. Federal Express Corp.
| Decision Date | 26 October 2000 |
| Docket Number | No. 98-2112-CIV.,98-2112-CIV. |
| Parties | Sheldon VICKERS, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Leslie Holland, Coral Gables, FL, for plaintiff.
David Hanan Spalter, Fort Lauderdale, FL, Harry N. Turk, Epstein, Becker & Green, Miami, FL, for defendant.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE comes before the Court on Defendant's Motion for Summary Judgment, filed April 28, 2000, and Plaintiff's Motion for Summary Judgment, filed May 22, 2000. The Court heard oral arguments on these motions on October 18, 2000. Having been advised in the premises, it is ORDERED AND ADJUDGED as follows:
(I) Defendant's Motion for Summary Judgment is GRANTED.
(II) Plaintiff's Motion for Summary Judgment is DENIED.
Plaintiff worked as a courier for Federal Express from February 17, 1993, until his discharge on November 21, 1997. During the nearly five years Plaintiff worked for Defendant, approximately two of those years (July 1995 to August 1997) Plaintiff worked a bulk route under the supervision of Walkyria "Val" DeMello, a white female. During that time Plaintiff was counseled by DeMello on many occasions. For example, on January 23, 1996, Plaintiff was counseled for road efficiency, communications with dispatch, missed pickups, and time card accuracy. See Defendant's Exhibit C.1 On February 19, 1996, DeMello drafted a memo (which Plaintiff did not sign) citing Plaintiff for insubordination for ignoring her attempts to communicate then finally responding "I am off the clock." See Defendant's Exhibit D. On December 2, 1996, Plaintiff was counseled for using ten sick days in the preceding twelve months, all of which fell in conjunction with a weekend, vacation, or holiday. See Defendant's Exhibit H.
Plaintiff appealed the December citation under the Defendant's "guaranteed fair treatment program." As a result of the appeal, three of the absences were excused under Defendant's family and medical leave policy, reducing the total number of absences to just barely within acceptable limits, though the counseling was still upheld due to the suspicious proximity of the absences to holidays and weekends. See Defendant's Exhibits J & K. By February 1997, Plaintiff's attendance record once again fell below acceptable levels as a result of four additional absences. See Defendant's Exhibit J. Plaintiff was issued an additional counseling memorandum relating to attendance on February 17, 1997. See id. This time, however, Plaintiff did not challenge the memo, in fact, he even signed an action plan acknowledging the problem and agreeing to take steps to improve. See id. Aside from the attendance policy and insubordination, DeMello also counseled Plaintiff on two occasions for failing job knowledge tests on August 20, 1996, and February 11, 1997.2 See Defendant's Exhibits F & G.
In August of 1997, shortly after DeMello transferred to a different office, Plaintiff volunteered for a morning route (Rt.198) where he worked for approximately three months under the supervision of Kathi Morgan, another white female. See Defendant's Exhibits A & K. Both parties to this suit concede that the morning route was more difficult than the bulk route because the bulk route consisted of relatively few stops with a high volume of packages at each stop, whereas the morning route entailed a much higher number of stops,3 as well as greater familiarity with delivery codes and street addresses.
Plaintiff underwent a brief training period with the courier formerly responsible for the morning route, Francesco "Frank" Montelli. Shortly thereafter Plaintiff was again counseled — this time by his new supervisor, Kathi Morgan. For example, on September 9, 1997, the first time Plaintiff worked the route alone, Morgan verbally counseled Plaintiff for several improper entries which created the false impression of additional stops. See Defendant's Exhibit A (Vickers Depo.) at 72. Plaintiff also signed a "tracker printout" acknowledging that he was aware of the correct coding methods. See Defendant's Exhibit O. Plaintiff's excuse was that he did not know that the entries were improper, since he had seen Montelli make the same type of entries. Morgan then counseled Montelli, who admitted using the same procedures. See Defendant's Exhibit N (Montelli Depo.) at 28. After Morgan spoke with Montelli, Montelli also told Plaintiff that they must avoid such making these types of entries. See Id. at 35-36.
Ten days later, on September 19, 1997, Morgan noticed that Plaintiff had coded a package as delivered at 10:29 a.m.4 when Morgan herself had visited Plaintiff and knew that the package was not delivered as of 10:40 a.m. See Defendant's Exhibit P. Plaintiff was confronted with this discrepancy and suspended pending the outcome of an investigation by Morgan and Senior Manager Tex Ziadie. Id.
The resulting investigation of Plaintiff's September 19, delivery record revealed a series of coding errors and misrepresentations. For example, Plaintiff entered two signatures for one stop ") thereby creating two stops which would make Plaintiff's stops-per-hour look better. Id. Plaintiff even admitted that he changed the name on the second package so that his supervisors would not suspect that he recorded a single stop as two stops. See Defendant's Exhibit A (Vickers Depo.) at 77-78. Another entry showed the delivery of two packages at the same time (10:27 a.m.) even though the stops were across the street from one another and both on the second floor of their respective buildings. See Defendant's Exhibit P. And yet another entry showed that Plaintiff had indicated delivery to the person whose name was on the package, rather than the person who actually signed for it. Id. The investigation also revealed (and Plaintiff admitted) that Plaintiff even entered a customer's name in the customer record after neglecting to obtain the customer's signature. See Defendant's Exhibit A (Vickers Depo.) at 99. After the investigation, Plaintiff was counseled in writing on September 24, 1997, and allowed to return to work. See Defendant's Exhibit P.
Not withstanding the verbal warning on September 9, and the written warning on September 24, a subsequent audit conducted on November 13, 1997, revealed that Plaintiff had once again falsified his delivery record. See Defendant's Exhibit M. Plaintiff recorded eighty (80) stops for the day, whereas the "stop count" sheet indicated that Plaintiff had only made fifty-six (56) stops. Id. The discrepancy apparently caused, to a large extent, by the same coding errors Plaintiff was advised not to use on September 9. On November 14, 1997, Plaintiff was once again suspended pending another investigation. Id. The results of that investigation ultimately led to the Plaintiff's termination on November 21, 1997. See Defendant's Exhibit U. Plaintiff then requested an internal review of his discharge pursuant to both Defendant's "guaranteed fair treatment policy" and Equal Employment Opportunity procedures. See Defendant's Exhibit V. This was the first time that Plaintiff claimed to have been subjected to racial discrimination (as opposed to unfair treatment in general). Id.
Plaintiff, a black male, alleges that he was terminated because of his race in violation of Title VII (42 U.S.C. § 2000e et. seq.), 42 U.S.C. § 1981, and the Florida Civil Rights Act (Fla.Stat. § 760) and seeks compensatory and punitive damages, reinstatement, back pay, attorney's fees, and prejudgment interest. Therefore, jurisdiction is properly invoked pursuant to 28 U.S.C. § 1331 ().
The complaint asserts that DeMello, a white female, used racial slurs when referring to Plaintiff and other black employees, that she encouraged Plaintiff to take sick leave and then referred to those days when citing Plaintiff for excessive absences, and that DeMello and Morgan, both white females, subjected Plaintiff to closer scrutiny and criticism than his white counterparts which led to the compilation of a bogus disciplinary record falsely alleging violations of company policy. Defendant denies that DeMello used racial slurs and asserts that the discharge was based on legitimate, nondiscriminatory reasons - i.e., Plaintiff's repeated violations of company policy and procedures. Specifically, Defendant cites two grounds for termination: (1) Plaintiff's unwillingness or inability to abstain from the falsification of delivery records (a serious offense punishable by termination after the first instance); and (2) having three or more written reprimands within a one-year period. Defendant further denies that any willful violation exists to justify punitive damages claim and notes that Plaintiff's claim may be barred by the after-acquired evidence doctrine.
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). On summary judgment, the district court must view all of the evidence "`in the light most favorable to the nonmoving party.'" See Continental Casualty Co. v. Wendt, 205 F.3d 1258, 1261 (11th Cir.2000). The party seeking summary judgment bears the initial burden of showing that there is no genuine issue of material fact. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The opposing party then must offer specific facts demonstrating that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). That party may not rely upon general averments, but rather must show that there...
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