Loving v. FedEx Freight, Inc.

CURTIS LOVING, Plaintiff, v. FEDEX FREIGHT, INC., Defendant.

CIVIL ACTION NO. 3:18-CV-508

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

May 8, 2020

(JUDGE MARIANI)

MEMORANDUM OPINION

I. INTRODUCTION

Defendant's Motion for Summary Judgment (Doc. 40) is pending before the Court. In the underlying action, Plaintiff alleges that Defendant violated Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), and the Pennsylvania Human Relations Act ("PHRA") when Defendant terminated him in June 2017 allegedly for using the "n word" in the workplace. (Doc. 18.) Plaintiff's Title VII violations are based on race discrimination and retaliation. (Id. at 5, 8.) His PHRA violations are based on race and age discrimination. (Id. at 6, 18.) Defendant seeks summary judgment on all claims, stating there is no genuine dispute as to any material fact and it is entitled to judgment as a matter of law. (Doc. 40 at 1.) For the reasons that follow, the Court will grant Defendant's Motion for Summary Judgment (Doc. 40) in part and deny it in part.

II. STATEMENT OF UNDISPUTED FACTS¹

Plaintiff Curtis Loving ("Loving" "Plaintiff") is an African-American male who began working for Defendant FEDEX Freight, Inc., ("FXF" "Defendant") in September 2016 as a driver's apprentice at Defendant's service center in Pocono Summit, Pennsylvania ("POS"). (Doc. 18 ¶ 1; Doc. 42 ¶ 1; Doc. 46 ¶ 1.) As a driver apprentice, Loving's employment was contingent upon successfully completing the requirements necessary to become a driver. (Id.) Loving was unable to satisfactorily complete the requirements to become a city driver. (Doc. 42 ¶ 2; Doc. 46 ¶ 2.) Instead of ending his employment, FXF offered him a position as a part-time dockworker. (Id.)

Loving transferred to the dockworker position on or around February 1, 2014. (Id.) In March of 2014, he requested FXF transfer him to the position of a fulltime dockworker, aposition which would offer "company advancement" and better pay. (Doc. 42 ¶ 4; Doc. 46 ¶ 4.) The request was made to Jeff Ulkoski ("Ulkoski"), an operations manager whom Loving knew. (Id.) Ulkoski, along with Dale Symons ("Symons"), the assistant service center manager at the time, approved the promotion. (Id.) Both Ulkoski and Symons were aware that Loving was African American. (Id.)

In May of 2015, FXF promoted Loving to operations supervisor. (Doc. 42 ¶ 5; Doc. 46 ¶ 5.) His new position was a promotion from an hourly worker to a salaried, supervisory position. (Id.) An operations supervisor's primary responsibility was to "[l]ead employees to ensure customer satisfaction by moving all shipments on time and damage free." (Id.) On any given shift, Loving could have supervised sixty dockworkers. (Id.) In his deposition, Loving described his role as an operations supervisor as "to lead [dockworkers], to supervise them, to be that guy to look up to on the dock." (Id.) He also said that dockworkers looked to operations supervisors for "guidance" on "conduct" and how to "carry themselves." (Id.) When Loving was promoted to operations supervisor, he underwent additional training on "company expectations" and "policies." (Doc. 42 ¶ 6; Doc. 46 ¶ 6.)

FXF maintains an employee handbook ("Handbook") which an employee is able to access through an online link referred to as "Knowledge Base." (Doc. 42 ¶ 7; Doc. 46 ¶ 7.) FXF instructed Loving how to access this Handbook, and he had access to the Handbook online during his employment with FXF. (Id.) As a part of this Handbook, FXF maintains a policy against discrimination and/or harassment based on age and race, as well as otherprotected traits. (Doc. 42 ¶ 8; Doc. 46 ¶ 8.) Harassment is defined in relevant part as the "[u]se of disparaging or defamatory slurs" based on a protected category. (Id.) Also, as a part of the Handbook, FXF maintains a "Code of Conduct" policy that that prohibits "profane, obscene, harassing, sexually explicit, discriminatory or abusive language." (Doc. 42 ¶ 9; Doc. 46 ¶ 9.)

FXF operates under a progressive discipline policy when employees, supervisors, or managers fail to meet expectations. (Doc. 42 ¶ 10; Doc. 46 ¶ 10.) The terms of progressive discipline differ between salaried and hourly employees. (Id.) For salaried employees, the first written disciplinary action is referred to as an "improvement plan" or improvement letter." (Id.) If the salaried employee fails to demonstrate improvement in the area addressed by the improvement plan, FXF may issue a "critical letter of commitment," the next stage of progressive discipline. (Id.) If the deficiencies persist, the employee may be terminated. (Id.) An employee may receive multiple improvement letters before moving on to a "critical letter of commitment." (Id.) Supervisors or managers may issue improvement plans or improvement letters. (Id.) Any discipline beyond an improvement letter (a critical letter of commitment or termination) requires the approval of human resources. (Id.) Depending on the severity, management may forego progressive discipline and proceed directly to termination. (Doc. 42 ¶ 11; Doc. 46 ¶ 11.)

Ulkoski, who supervised Plaintiff in Plaintiff's role as operations supervisor (Doc. 45-2 ¶ 1; Doc. 52 ¶ 1), stated in his deposition that grounds for immediate termination include:"violence, any threats, intimidation or harassment, racism, anything that would violate equal opportunity employment." (Doc. 42 ¶ 11; Doc. 46 ¶ 11.) Ulkoski further stated that cursing would not justify immediate termination. (Id.)

The Handbook contains a process where an employee may appeal a termination. (Doc. 42 ¶ 12; Doc. 46 ¶ 12.) The appeal is presented to a panel of three voting members who were not involved in the termination decision and at least one director from outside the employee's region. (Id.) At this appeal, the employee has the option to present his or her case to the panel. (Id.) After hearing from the terminated employee and the terminated manager, the panel renders a decision to uphold or overturn the termination. (Id.) FXF will determine the appropriate back pay for a reinstated employee. (Id.)

Nathan Pulaski ("Pulaski"), an operations manager at POS who supervised Loving, testified at his deposition that, on June 20, 2016, he learned of a potential incident earlier in the day between Loving and David Gallagher ("Gallagher"). (Doc. 42 ¶ 13; Doc. 46 ¶ 13.) Pulaski said that he believed one of the operations supervisors reported the incident to him in the late afternoon, and Pulaski understood that "some form of an altercation had occurred" and Gallagher was upset. (Id.) Pulaski spoke to and got written statements from, Gallagher, Loving and Thomas Naselli, an operations supervisor. (Doc. 42 ¶ 14; Doc. 46 ¶ 14.) Gallagher stated that Loving and he got into a verbal altercation when Gallagher went to retrieve some boards from Loving's area. (Id.) According to Gallagher's statement, Loving exclaimed "Look at my nigga getting all red." (Id.) Naselli stated that he sentGallagher to get boards, which led to a disagreement between Loving and Gallagher. (Doc. 42 ¶ 15; Doc. 46 ¶ 15.) According to Loving in his deposition, Pulaski informed him that he had been accused of calling Gallagher the "N-word" on the dock that day. (Doc. 42 ¶ 16; Doc. 46 ¶ 16.) In his statement, Loving denied that he used a racial slur during the altercation but stated that "we have joked around in the past using words like nigger please, Black boy and white boy sunflower seeds [and] brother from another mother." (Id.) In his deposition, Pulaski testified that he interpreted the language in the statement to mean that Gallagher also used the "n word" at times when interacting with Loving. (Doc. 45-2 ¶ 13; Doc. 52 ¶ 13.) Pulaski also stated that it "would have mattered, absolutely" if Gallagher joked back and used the same kind of language as Loving used. (Doc. 45-2 ¶ 14; Doc. 52 ¶ 14.)

On June 21, 2019, Pulaski sent the following email to Joe Cerda ("Cerda"), Employee Relations Specialist ("ERS") for POS, and copied Symons and Ulkoski:

Subject: Loving/Gallagher incident

Joe,

Attached are the statements from Naselli, Gallagher, and Loving. In talking to Curtis [Loving] as he wrote his statement, he claims he doesn't remember using any form of racial slur during the altercation. But shortly after, he admitted to me that he has used the terms "nigger", "nigga", "white boy", "white boy seeds/black boy seeds"([alluding] to sunflower seed(s), etc.[)]. [i]n the past with Dave. He also included that in his statement as well. Take what I say with a grain of salt but I think we can all agree that this is a direct violation of so many aspects of the employee expectations/guidelines, the expectations set [forth] for our leadership and the principles that this company is built uponand it should be treated as such and nothing less...as always, let me know what you think and ask any questions that you have.

(Doc. 42 ¶ 17 (alterations in Defendant's text); Doc. 46 ¶ 17.)

Loving testified in his deposition that he informed Cerda that Gallagher used phrases like "my nigga" with him, but he was not offended by it. (Doc. 42 ¶ 19; Doc. 46 ¶ 19.) At his deposition Cerda said that Loving never told him that Gallagher had used the "n-word" in the past with him. (Id.) There is no reference to Loving accusing Gallagher of using the "n-word" in Cerda's notes. (Id.) Cerda noted in his investigation that Loving told him that he and Gallagher joked around on the dock and talked about "black boy and white boy" sunflower seeds. (Doc. 45-2 ¶ 15; Doc. 52 ¶ 15.) In his deposition, Cerda said that comments about "black and white boy" sunflower seeds violated the code of conduct and were not appropriate. (Doc. 45-2 ¶ 17; Doc. 52 ¶ 17.)

Cerda interviewed James Mickens who stated that he witnessed the incident but did not overhear anything specific that was said. (Doc. 42 ¶ 21; Doc. 46 ¶ 21.) Cerda interviewed Thomas Naselli who...