McCullough v. Fed. Express Corp.

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SHAWN MCCULLOUGH, Plaintiff, v. FEDERAL EXPRESS CORPORATION, Defendant.

No. 2:20-cv-00170

United States District Court, D. Vermont

April 21, 2023

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 52)

Christina Reiss, District Judge United States District Court

Plaintiff Shawn McCullough (“Plaintiff') brings this action against Defendant Federal Express Corporation (“Defendant”) alleging that Defendant terminated his employment in retaliation for filing three wage claims with the Vermont Department of Labor and submitting three internal complaints to Defendant, in violation of 21 V.S.A ch. 5, subchapter 2 and Vermont's Fair Employment Practices Act (“VFEPA”), 21 V.S.A. §§ 495-496a.

Pending before the court is Defendant's motion for summary judgment. (Doc. 52.) Plaintiff responded on July 18, 2022 (Doc. 55), and Defendant filed its statement of undisputed material facts on August 16, 2022. (Doc. 60.) Plaintiff filed a revised response in opposition on August 29, 2022. (Doc 61.) Defendant replied on September 7, 2022. (Doc. 63.) The court held a hearing on October 27, 2022, after which it took the pending motion under advisement.

Plaintiff is represented by Norman E. Watts, Jr., Esq. Defendant is represented by Elizabeth K. Rattigan, Esq., and Gabriel P McGaha, Esq.

I. Undisputed Facts.^[1]

Plaintiff first began working for Defendant in 1988 as a part-time courier in Kentucky. After approximately two years he transferred to Iowa, where he worked as a courier until 2000, when he left to take employment elsewhere. In September 2010, Defendant rehired Plaintiff to work as a part-time courier at Defendant's Williston, Vermont station (“BTVA”).

Plaintiff s employment with Defendant was at-will. In his application for the BTVA courier position, Plaintiff acknowledged that he had received a copy of Defendant's Employee Handbook and read the following statement:

That during the term of my employment, which I understand is INDEFINITE IN DURATION, I will comply with guidelines established in the Company's policies, rules, regulations, and procedures. I acknowledge and agree that [Defendant] has the absolute unfettered right to change its policies, rules, regulations, and procedures unilaterally at any time, without prior notice. I ALSO AGREE THAT MY EMPLOYEMNT AND COMPENSATION CAN BE TERMINATED WITH OR WITHOUT CAUSE AND WITHOUT NOTICE OR LIABILITY, WHATSOEVER, AT ANY TIME.

(Doc. 60 at ¶ 4) (emphasis in original).

Defendant's “Acceptable Conduct Policy” provides employees with specific guidance regarding workplace standards and consequences for misconduct. Pursuant to the Acceptable Conduct Policy, managers may issue an “Online Compliment/Counseling” (“OLCC”) to provide feedback on an employee's performance. An OLCC is not a disciplinary measure and may include positive performance feedback. Defendant may consider an employee's OLCC record to identify behavioral patterns and to determine appropriate disciplinary measures. An OLCC may consist of a “Warning Letter,” a “deficiency” notification that remains “active” for the twelve-month period following the letter's issuance date. (Doc. 52-6 at 4-5.) Receiving three Warning Letters within twelve months is grounds for termination. Plaintiff was aware of this policy.

From 2010 to 2016, Plaintiff received OLCCs with both positive and negative feedback and performance evaluations. In February 2015, Plaintiff received a Warning Letter for violating the Acceptable Conduct Policy after a customer contacted the BTVA station about a confrontation he had with Plaintiff during a delivery attempt in which Plaintiff told the customer that he “didn't have to be such an idiot about it.” (Doc. 52-8 at 1) (emphasis omitted). On June 18, 2015, Operations Manager Angel Lane suspended Plaintiff with pay pending an investigation of the incident. Plaintiff has admitted that, at times, he loses his temper when he is angry, although he maintains he gets along well with his co-workers.

On June 27, 2016, Defendant offered Plaintiff a position as a full-time courier at BTVA and Plaintiff accepted the offer. Plaintiff bid for and was assigned Route 745. Defendant's letter confirming Plaintiffs assignment to the route stated, “Your route runs Monday-Friday 0800-1700. These hours are subject to change to meet the business needs of the company.” (Doc. 52-11 at 1.) Plaintiffs route covered primarily rural areas, including the Lake Champlain islands in Grand Isle County, Vermont.

While Plaintiff was employed by Defendant, Defendant's break policy varied between requiring couriers to take a daily thirty-minute break and a sixty-minute break based on Defendant's business needs. Although Plaintiff contends Defendant applied its policy “inconsistently” (Doc. 61-1 at 6, ¶ 71), the evidence he cites indicates that Defendant's Managing Directors announced the break lengths for all workers based upon Defendant's business needs. He concedes that supervisors did not have authority and did not alter the break policy the Managing Director set.

In 2013, when Plaintiff was a part-time courier, Plaintiff received five OLCCs notifying him that he had failed to take the required sixty-minute break on July 8, July 11, and August 6, 2013; March 14, 2014; and March 4, 2015.

After Plaintiff became a full-time courier, in January 2017 Defendant changed its policy for BTVA to require couriers who drove longer than eight hours to take a sixty-minute break, although BTVA management could and did approve exceptions to the sixty-minute requirement. Even when the break policy required a thirty-minute break, Plaintiff estimates that he did not take a break ninety-five percent of the time, although he would usually log that he had taken a break.

In August 2014, Plaintiff successfully filed a wage claim with the Wage and Hour Unit of the Vermont Department of Labor (the “August 2014 Wage Claim”) in an unidentified amount. On February 28, 2017, he filed a claim for $276.75 in unpaid wages (the “February 2017 Wage Claim”), claiming that Defendant failed to pay him for fifteen hours of wages pursuant to its minimum weekly guarantee policy. This claim was also successful.

In March 2017, Plaintiff received OLCCs for failing to take a sixty-minute break on March 3, March 6, March 7, and March 8, 2017. On April 27, 2017, at the suggestion of Senior Manager John Frimodig, Plaintiff submitted an “Open Door Inquiry” letter to Defendant's Human Resources team explaining his opposition to BTVA's break policy. In the letter he wrote:

[A]ccording to Vermont statute at 21 V.S.A. §[]304, the purpose of a break is to “... provide an employee with reasonable opportunities during work periods to eat and to use toilet facilities in order to protect the health and hygiene of the employee.” Clearly, breaks are purposed by law for the employees' benefit (i.e., health and hygiene), not as a means for employers to coerce productivity, circumvent compensation, or manipulate statistical data. If any mandate in [Defendant] 's break policy creates a detriment to the employee, such that it diminishes a lawfully intended benefit, then it tends to violate the spirit if not the letter of Vermont's law.

(Doc. 52-15 at 1-2.) Approximately two weeks later, on May 11, 2017, District Manager Director Daniel Doherty replied to Plaintiffs Open Door Inquiry, stating that BTVA management had discretion to allow exceptions to the sixty-minute break policy.

On October 20, 2017, Plaintiff sent a memorandum to Operations Manager Jared Norris, in which he wrote:

As discussed at length with FedEx management, I have serious legal and ethical concerns regarding the inequity of a mandated [one] hour mealbreak policy for couriers at station BTVA. Consequently, complicity in adherence to said policy creates an ethical conflict to which I am, in good conscience, unable to yield.

(Doc. 52-17 at 1.)

On November 15, 2017, Mr. Norris issued a Warning Letter (the “first November 2017 Warning Letter”) to Plaintiff for failing to comply with the sixty-minute break policy on six days in October. Mr. Norris suspended Plaintiff with pay while Defendant investigated Plaintiffs violations. Plaintiff challenged the first November 2017 Warning Letter through Defendant's internal appeal process, and Defendant upheld Mr. Norris's decision to issue the letter. On November 21, 2017, Plaintiff received another Warning Letter (the “second November 2017 Warning Letter”) for violating the sixty-minute break policy during a “checkride” with his manager. (Doc. 52-19 at 1.) Plaintiff appealed the second November 2017 Warning Letter and Defendant modified it to a “documented counseling.” Id. at 5.

On May 20, 2019, Plaintiff received a Warning Letter for not completing deliveries as directed (the “May 2019 Warning Letter”). Plaintiff appealed the May 2019 Warning Letter and Defendant upheld its decision. On July 3, 2019, Plaintiff received a Performance Reminder/Decision Day for failing to comply with the break policy on July 1, 2019. Plaintiff appealed the Performance Reminder/Decision Day, and Defendant modified it to a Warning Letter because “[a]t the [internal appeal process] Step 1 hearing, it was determined that the issue for which [Plaintiff] was being disciplined was a result of conduct not performance[]” (the “July 2019 Warning Letter”). (Doc. 60 at 8, ¶ 46.) Plaintiff appealed the issuance of the July 2019 Warning Letter (the “July 2019 Appeal Letter”), but Defendant upheld its decision to issue the letter.

On July 17, 2019, Plaintiff re-submitted his April 2017 Open Door Inquiry letter to Human Resources contesting the sixty-minute break policy (the “July 2019 Open Door Inquiry”). Defendant responded to the letter on July 19, 2019, explaining the break's...