White v. Federal Exp. Corp.

• Decision Date: 30 January 1990
• Docket Number: Civ. A. No. 89-1094-A to 89-1096-A.
• Citation: 729 F. Supp. 1536
• Parties: John A. WHITE and Claude C. Allen, Plaintiffs, v. FEDERAL EXPRESS CORP., Defendant. Terri L. HOUSE, Plaintiff, v. FEDERAL EXPRESS CORP., Defendant. Kevin BOYKINS, Plaintiff, v. FEDERAL EXPRESS CORP., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

729 F. Supp. 1536

John A. WHITE and Claude C. Allen, Plaintiffs, v. FEDERAL EXPRESS CORP., Defendant.

Terri L. HOUSE, Plaintiff, v. FEDERAL EXPRESS CORP., Defendant.

Kevin BOYKINS, Plaintiff, v. FEDERAL EXPRESS CORP., Defendant.

Civ. A. Nos. 89-1094-A to 89-1096-A.

United States District Court, E.D. Virginia, Alexandria Division.

January 30, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William H. Horkan, Horkan & Berry, Fairfax, Va., for plaintiffs.

R. Mark Dare, Local Counsel, Hazel Thomas Fiske Beckhorn & Hanes, P.C., Falls Church, Va., Fred C. Begy, III and Martin K. LaPointe, Adler Kaplan & Begy, Chicago, Ill., and James R. Mulroy, II, Federal Express Corp., Legal Dept., Memphis, Tenn., for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

In these three related civil actions, four black, present or former employees of the Federal Express Corporation ("Federal Express") allege disparate treatment and racial harassment claims in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"). Additionally, plaintiffs assert pendent state claims for breach of contract and unlawful discharge.¹ The § 1981 claims present substantial questions concerning the scope of that statute after Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), including whether certain racially motivated job assignment denials are actionable. The pendent state claims raise questions under Virginia law regarding incorporation of employee handbooks and employer personnel manuals into employment contracts, as well as the scope of the tort of unlawful discharge. And in addition to the questions on the merits, the motions for summary judgment on the Title VII claims raise several threshold abatement issues, including: (i) whether the Title VII claims are barred by the statute of limitations, (ii) whether those claims must be dismissed because they were filed before the expiration of the statutory conciliation period, and (iii) whether the claims must be dismissed on the ground that the allegations in the plaintiffs' complaints were not included in the charge filed with the EEOC.

This matter is before the Court on Federal Express's Motion for Summary Judgment on all claims in each case. No dispute exists as to the dispositive facts concerning the § 1981 and pendent state claims. These claims, then, are ripe for summary disposition. See Rule 56, Fed.R. Civ.P. Because the § 1981 claims are barred by Patterson and because the state claims fail under settled state law principles, summary judgment is appropriate for those claims. But the same result is not appropriate for the Title VII claims. Close scrutiny of Federal Express's abatement arguments discloses their lack of merit. And on the merits of the Title VII claims, disputed material fact issues preclude summary judgment.

Background

At all relevant times, the plaintiffs were employed by Federal Express as couriers at its Springfield, Virginia facility. White was initially hired in 1979,² Allen in 1984, Boykins in 1983, and House in 1980.³ White, Allen, and Boykins were discharged by Federal Express in 1988, ostensibly for misconduct. House remains employed by Federal Express.

White and Allen were discharged on August 3, 1988 after Allen allegedly punched in White's time card indicating that White was present when he was not. At approximately 8:25 a.m. on July 29, Allen was observed by two managers entering the room where the time clock was located. A subsequent review of the time cards for that day revealed that Allen had punched in at 8:26. White's time card indicated he had punched in at 8:30, but White, at that time, had not yet reported for work. A review of the time records disclosed that Allen and White had punched in at approximately the same time on a number of other occasions over the preceding six weeks. On August 1, White and Allen were suspended pending the outcome of an investigation. When confronted with the evidence, Allen admitted in a signed confession that he had been punching in for White for a period of one month to accommodate White's commuting traffic problems. Based on this confession, Federal Express discharged both White and Allen.⁴ Allen unsuccessfully appealed his discharge through Federal Express's three step grievance procedure⁵ as set out in the Federal Express Employee Handbook ("the Handbook")⁶ and the Personnel Policy and Procedure Manual ("the Manual")⁷. White filed an appeal, but chose not to pursue it after Federal Express was late in responding to his grievance complaint.

In addition to the claim based on his discharge, White also alleges two other disparate treatment claims. The first arises from the aggravation of a work related back injury. White suffered a herniated disc in September 1986 while lifting heavy boxes on the job. As a result, he was forced to take extended periods of leave over the next year. When he returned to work, White alleges that management refused to assign him to light duty, either in the office or on a route with little heavy lifting. An injured white employee, he claims, would have received such a light duty assignment. Instead, he was ordered to return to his regular duties, which involved some heavy lifting. In performing these duties, he reinjured his back, an injury he contends was caused by management's discriminatory refusal to assign him to light duty. White's final disparate treatment claim arises from the denial of his three requests for transfer to a dispatcher's position. White applied for these transfers in February, April, and November of 1987, but each time, he claims, the position was filled by a white employee.

Boykins disparate treatment claim arises from his discharge for a poor record of unexcused tardiness and absenteeism. Boykins was discharged on December 7, 1988. During the preceding two and one half years, Boykins had been late 16 times, and absent eight times. During the six months preceding September 29, 1988, he had been late three times and absent four. He had also been issued two written warnings: one for tardiness and one for overlooking a container of freight. After being late on September 28, he was given a "decision day" on September 29.⁸ Following this decision day, Boykins's attendance was apparently perfect until he was late on December 5. He was immediately suspended and subsequently discharged on December 7. Boykins unsuccessfully appealed his discharge through the first step of Federal Express's grievance procedures. His request to proceed to the second step of the grievance procedures was remanded to Federal Express's Equal Opportunity Office in light of his allegation that his dismissal was racially motivated.

House, unlike the other plaintiffs, remains employed as a courier by Federal Express at the Springfield station. But she claims that her supervisors acted with racial animus when they gave her a low performance review and denied her a transfer from the night shift to the day shift, while granting such transfers to white employees with less seniority. The adverse performance review occurred in October 1988, and House alleges that it was directly related to her complaints to management about racial discrimination in the Springfield station. As a result of this adverse review, House claims to have lost a bonus of approximately $500. House also states that in both April 1988 and March 1989, management refused to transfer her to the day shift, where she could have made more money, but transferred instead less senior white employees.

In addition to these individual disparate treatment claims, all plaintiffs assert that Federal Express maintained a racially hostile environment at the Springfield station. This hostile environment allegedly included (i) discriminatory performance reviews, (ii) documenting and disciplining only black employees for minor rule violations, (iii) discriminatorily discharging and refusing to rehire blacks, (iv) refusing to place black employees on light duty, (v) discourteous treatment of black employees by managers, (vi) assigning black employees to less desirable shifts, (vii) refusing to permit black employees to split heavy loads between drivers, (viii) use of racial epithets and slurs by white employees to black employees, (ix) retaliation for complaints about racial discrimination and harassment, and (x) not following the company's grievance procedures for black employees.

Analysis

A. The Section 1981 Claims

All four plaintiffs assert racial harassment and disparate treatment claims under § 1981. These claims fail given the Supreme Court's recent ruling in Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), sharply limiting the scope of § 1981. By its terms, that section applies to the "right ... to make and enforce contracts...." Patterson, in the context of an employment discrimination suit, reaffirmed § 1981's applicability to private contracts. 109 S.Ct. at 2372. But Justice Kennedy, speaking for the majority, significantly restricted the scope of this statute to its plain language. He wrote:

The most obvious feature of § 1981 is the restriction of its scope to forbidding discrimination in the "making and enforcement" of contract's alone. Where an alleged act of discrimination does not involve the impairment of one of these specific rights, § 1981 provides no relief. Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts.

Id. Justice Kennedy went on to define narrowly the rights to "make" or to "enforce" a private employment contract. In this regard, the right to "make" a contract was held to

extend only to the formation of a

...