Kostic v. United Parcel Serv., Inc.

532 F.Supp.3d 513

Ivan KOSTIC, Plaintiff,

v.UNITED PARCEL SERVICE, INC., Defendant.

No. 3:18-cv-00556

United States District Court, M.D. Tennessee, Nashville Division.

Filed March 31, 2021

John Stephen Aymett, Jr., Rucker & Rucker, PC, Murfreesboro, TN, for Plaintiff.

Erin L. Malone, Matthew S. Perez, Phelps Dunbar, LLP (Tampa Office), Tampa, FL, John Day Peake, III, Phelps Dunbar, LLP (Nashville Office), Nashville, TN, for Defendant.

MEMORANDUM OPINION

ELI RICHARDSON, UNITED STATES DISTRICT JUDGE

Pending before the Court is Defendant's Motion for Summary Judgment (Doc. No. 43, "Motion"), accompanied by a Memorandum of Law in support thereof (Doc. No. 45). Plaintiff filed a Response (Doc. No. 50), Defendant filed a Reply (Doc. No. 53), Plaintiff filed a Sur-Reply (Doc. No. 58), and Defendant filed a Response to Plaintiff's Sur-Reply (Doc. No. 59). Plaintiff also filed a Response to Defendant's Statement of Undisputed Facts (which included Plaintiff's Statement of Additional Material Facts) (Doc. No. 49), and Defendant responded to that statement of additional material facts (Doc. No. 54). For the reasons set forth herein, the Motion will be granted in part and denied in part.

BACKGROUND

Plaintiff Kostic was born in Leskovac, Serbia¹ in 1972 and moved to Canada when he was three years old. He resided in Canada until 2002, when he moved to Middle Tennessee. (Doc. No. 54 at ¶¶ 1, 4). Plaintiff became a U.S. citizen on October 24, 2013. (Doc. No. 48-1 at 4-5 [Dep. at 9-10]). From January 2005 until June 2008, Plaintiff worked as a permanent part-time employee of Defendant UPS as a delivery truck loader. (Doc. No. 54 at ¶ 6). On June 12, 2008, Plaintiff became a full-time employee of Defendant as a "package car driver." (Id. at ¶ 7). Plaintiff identifies his race as Eastern European (Doc. No. 49 at ¶ 3) and his national origin as Serbia(n). (Id. at ¶ 4).

On July 17, 2017, Defendant discharged Plaintiff for "failing to treat his supervisors with dignity and respect." (Doc. No. 49 at ¶ 41). Plaintiff alleges that Defendant discriminated against him because of his race and national origin and subjected him to a hostile work environment. Plaintiff further maintains that he was fired because of his race and national origin and in retaliation for his protected activity of filing grievances and calling the Human Resources hotline about the alleged racial and national origin discrimination and harassment against him.

Plaintiff's Complaint (Doc. No. 1) asserts the following claims: COUNT I - discrimination in violation of Title VII based upon race and national origin; COUNT II – hostile work environment in violation of Title VII based upon race and national origin; COUNT III – retaliation for protected activity in violation of Title VII; COUNT IV – racial discrimination in violation of 42 U.S.C. § 1981 ; and COUNT V – discrimination in violation of the Tennessee Human Rights Act ("THRA") based upon race and national origin.²

SUMMARY JUDGMENT

Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion for summary judgment. See id. at 248, 106 S.Ct. 2505. On the other hand, "summary judgment will not lie if the dispute about a material fact is ‘genuine[.]’ " Id.

A fact is "material" within the meaning of Rule 56(c) "if its proof or disproof might affect the outcome of the suit under the governing substantive law." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Harris v. Klare , 902 F.3d 630, 634-35 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Pittman v. Experian Information Solutions, Inc. , 901 F.3d 619, 627-28 (6th Cir. 2018). If the summary judgment movant meets that burden, then in response the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id. at 628.

A party asserting that a fact cannot be or genuinely is disputed—i.e., a party seeking summary judgment and a party opposing summary judgment, respectively—must support the assertion by citing to materials in the record, including, but not limited to, depositions, documents, affidavits or declarations. Fed. R. Civ. P. 56(c)(1)(A). In reviewing a motion for summary judgment, this court must view the evidence in the light most favorable to the non-moving party. Tlapanco v. Elges , 969 F.3d 638, 647 (6th Cir. 2020) (quoting Anderson , 477 U.S. at 248, 106 S.Ct. 2505 ). Likewise, the court should view the facts and draw all reasonable inferences in favor of the non-moving party. Pittman , 901 F.3d at 628. Credibility judgments and weighing of evidence are improper. Hostettler v. College of Wooster , 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id. The court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient to survive summary judgment; rather, there must be evidence upon which the jury could reasonably find for the non-moving party. Rodgers v. Banks , 344 F.3d 587, 595 (6th Cir. 2003).

To obtain summary judgment on Title VII or THRA claims³ , a defendant either (i) must show that there is no genuine issue of material fact as to at least one of the elements of the plaintiff's prima facie case and it is entitled to judgment as a matter of law on that element; or, if it fails to do that, (ii) make an evidentiary showing⁴ that there was a legitimate, nondiscriminatory reason for its alleged actions and then show that there is no genuine issue of material fact as to pretext and that it is entitled to judgment as a matter of law on that issue. The plaintiff, on the other hand, to avoid summary judgment, (i) must present sufficient evidence to demonstrate a genuine issue of material fact as to any elements of his prima facie case as to which the defendant met its initial burden to show the lack of a genuine issue of material fact; and also (ii) show that the defendant (a) cannot make an evidentiary showing of a legitimate, nondiscriminatory reason for its alleged actions, or (b) demonstrate that there is a genuine issue of material fact as to pretext.⁵

DISCRIMINATION

Title VII and the THRA prohibit discrimination based on, inter alia , national origin. 42 U.S.C. § 2000e-2 ; Tenn. Code Ann. § 4-21-102(4). By contrast, Section 1981 prohibits discrimination on the basis of race but not discrimination on the basis of national origin. See Saint Francis College v. Al–Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987) ; Amini v. Oberlin Coll. , 259 F.3d 493, 502 (6th Cir. 2001) ("The Supreme Court has held in Saint Francis College that only claims of racial, as opposed to national origin, discrimination are cognizable under § 1981.").⁶

Plaintiff alleges disparate treatment because of his race and national origin in violation of Title VII, the THRA, and Section 1981. As noted above, Plaintiff contends that his race is "Eastern European" and his national origin is Serbia(n). The Court will address Plaintiff's race claim first.

1. Race

Plaintiff asserts that he is of the "Eastern European" race. (Doc. No. 53 at 2-3). However, Plaintiff does not define, identify, or explain what the "Eastern European" race is and what its features are that make it a distinct race, although he does claim that it is different from the Caucasian race. (Doc. No. 49 at 4). For reasons unknown, Defendant does not challenge the characterization of "Eastern European" as a race for purposes of Section 1981. But whether a purported race is actually a race for purposes of Section 1981 is an issue of law for the court. Vill. of Freeport v. Barrella , 814 F.3d 594, 616 (2d Cir. 2016) ("As a matter of law, ‘Hispanic’ is a race for purposes of § 1981"). Therefore, a court can resolve such issue even if (for whatever reason) the defendant did not raise it, and the Court will do so here. And the undersigned simply cannot accept the claim that "Eastern European" is a cognizable race for purposes of the anti-discrimination statutes.⁷

"Title VII does not define the term ‘race.’ And, in the more than 50 years since Title VII was enacted, the EEOC [Equal Employment Opportunity Commission] has not seen fit to issue a regulation defining the term." EEOC v. Catastrophe Mgmt. Sols. , 852 F.3d 1018, 1026 (11th Cir. 2016). So the question naturally arises as to what is meant by "race" for purposes of Title VII. The Court could pontificate at some length about the various different judicial takes on this issue, see , e.g. , id. at 1026-30, and then announce its take. Fortunately, it need not do so here to dispose of Plaintiff's claim that "Eastern European" is a race. Whatever it means to be a "race," it is axiomatic that the members of a "race" have personal attributes in common; that is what makes them members of a common race.⁸ Courts and commentators may disagree about what particular common personal attributes define a particular race and make persons with those attributes a member of such race, but there can be no question...