Savage v. Fed. Express Corp.

KENNETH E. SAVAGE, Plaintiffs, v. FEDERAL EXPRESS CORPORATION d/b/a FEDEX EXPRESS,FEDEX CORPORATION EMPLOYEES' PENSION PLAN,FEDEX CORPORATION RETIREMENT SAVINGS PLAN, Defendants.

No. 14-2057-STA-dkv

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION AT MEMPHIS

February 10, 2016

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendants Federal Express Corporation d/b/a FedEx Express, FedEx Corporation Employees' Pension Plan, and FedEx Corporation Retirement Savings Plan (collectively "Fed Ex")'s Motion for Summary Judgment (ECF No. 90) filed on August 5, 2015. Plaintiff Kenneth E. Savage has responded in opposition, and Defendants have filed a reply brief. For the reasons set forth below, Defendants' Motion for Summary Judgment is GRANTED.

BACKGROUND

I. Factual Background

Defendants seek summary judgment on Plaintiffs' claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). Pursuant to Local Rule 56.1(a), Defendants have prepared a statement of facts "to assist the Court in ascertaining whether there are any material facts in dispute."¹ For purposes of summary judgment, a party asserting that a material fact is not genuinely in dispute must cite to particular parts of the materials in the record and show that the materials fail to establish a genuine dispute or that the adverse party has failed to produce admissible evidence to support a fact.² As the non-moving party, Plaintiff must respond to Defendants' statements of fact "by either (1) agreeing that the fact is undisputed; (2) agreeing that the fact is undisputed for the purpose of ruling on the motion for summary judgment only; or (3) demonstrating that the fact is disputed."³

Additionally, Plaintiff may "object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence."⁴ Where Plaintiff asserts that a genuine dispute of material fact exists, Plaintiff must support his contention with a "specific citation to the record."⁵ If Plaintiff fails to demonstrate that a fact is disputed or simply fails to address Defendants' statement of fact properly, the Court will "consider the fact undisputed for purposes" of ruling on the Motion.⁶ Under Rule 56 of the Federal Rules of Civil Procedure, the Court "need consider only the citedmaterials" but has discretion to "consider other materials in the record."⁷ Plaintiff also has the opportunity to present a statement of additional facts, which Plaintiff contends are material and present a genuine dispute for trial.

A. Plaintiff's Employment with FedEx and Military Service

The Court finds that there is no genuine dispute as to the following material facts, unless otherwise noted. Plaintiff Kenneth E. Savage, Jr., is a former FedEx Senior Aircraft Mechanic who worked at FedEx's Memphis hub from August 2001 to September 20, 2012, the date his employment was terminated. (Defs.' Statement of Undisputed Fact ¶ 1; Pl.'s Statement of Add'l Fact ¶ 1.) Plaintiff received a number of awards during his tenure with FedEx, including "Bravo Zulu" awards and "Ruby" and "Diamond" awards from the Federal Aviation Administration. (Pl.'s Statement of Add'l Fact ¶ 3.) Plaintiff received performance review scores from his managers of seven out of a possible score of seven throughout his tenure with FedEx. (Id. ¶ 4.; Defs.' Statement of Undisputed Fact ¶ 26.) None of Plaintiff's FedEx managers ever issued him a disciplinary letter or performance improvement plan while he was employed at FedEx, even though he was once caught sleeping while on-the-clock. (Id. ¶ 27; Pl.'s Statement of Add'l Fact ¶¶ 4, 6.)

Throughout Plaintiff's employment with FedEx, he was also a lieutenant in the United States Naval Reserves where he served as an aircraft maintenance officer. (Id. ¶ 2; Defs.' Statement of Undisputed Fact ¶ 2.) FedEx consistently allowed Plaintiff to taketime off to fulfill his military duties. (Id. ¶ 28.)⁸ FedEx allowed Plaintiff to fly on FedEx cargo planes to a military site to perform his military drill duty in New Orleans. (Id. ¶ 29.) Plaintiff's managers also allowed Plaintiff to use FedEx computers to complete computer-based military training while Plaintiff was on-the-clock and receiving pay from FedEx. (Id. ¶ 25.)

Plaintiff never heard any FedEx manager make a derogatory comment about his military status or military service. (Id. ¶ 35.)⁹ Dana Jones, Plaintiff's manager from 2005 to 2008, was in the United States Marine Corp. (Id. ¶ 36.) Thomas Lott, Plaintiff's human resources advisor, served in the United States Navy Reserves. (Id. ¶ 37.) Maureen Patton, the managing director who upheld Plaintiff's termination at step 1 of his GFTP appeal, is a former second class petty officer in the United States Navy. (Id. ¶ 38.)¹⁰

B. Plaintiff's Use of FedEx Reduced-Rate Shipping

Under FedEx's reduced-rate shipping policy, FedEx employees, their spouses, and dependents are allowed to ship items via FedEx at a discount. (Id. ¶ 4.) During the entire time Plaintiff was employed at FedEx, the reduced-rate shipping policy prohibited FedEx employees from using their discount for any type of commercial benefit or commercial purpose not related to FedEx Express. (Id. ¶ 5.) The policy also prohibited employees from using their discount shipping privileges for any commercial enterprise or business, whether or not the business is for profit or non-profit. (Id.)¹¹ FedEx's acceptable conduct policy provides, in part, that "[v]iolation of guidelines and policy for employee reduced-rate shipping . . . may result in severe disciplinary action up to and including termination." (Id. ¶ 11.)

The FedEx People Manual is a personnel policy manual that contains all FedEx employment policies, including the acceptable conduct policy and the reduced-rate shipping policy. (Id. ¶ 2.) Plaintiff had access to and was familiar with the People Manual when he was employed at FedEx and knew where to look up a FedEx policy. (Id.) The People Manual was available to Plaintiff electronically through the FedEx intranet, though the parties dispute whether Plaintiff had access to a hard copy paper formof the manual at the time of his termination. (Id.)¹² FedEx's Employee Handbook also contained summaries of FedEx's personnel policies, including FedEx's reduced-rate shipping policy and acceptable conduct policy. Plaintiff received copies of FedEx's Employee Handbook in August 2001, February 2002, and June 2006. (Id. ¶ 3; Pl.'s Statement of Add'l Fact ¶ 44.) Plaintiff has no reason to doubt having gone into the FedEx computer system and acknowledged his receipt of the 2011 Employee Handbook. (Defs.' Statement of Undisputed Fact ¶ 3.)¹³

FedEx's written reduced-rate shipping policy had been in effect during the entire time Plaintiff was employed at FedEx. (Id. ¶ 6.) Plaintiff signed up for his reduced rate shipping account in 2005 or 2006. (Id.) When an employee signs up for a discount shipping account, he has to agree to the terms and conditions of the reduced-rate shipping policy and acknowledge an understanding that improper use or abuse of the privilege may lead to termination of employment. (Id. ¶ 7a.) Plaintiff adds that the policy allowed employees to use the discount for their "personal benefit." (Pl.'s Statement of Add'l Fact ¶ 29.) Plaintiff further notes that FedEx revised the policy on September 2, 2012, to explicitly prohibit employees from using the reduced-rate shipping privilege to shipmerchandise sold on eBay. (Id. ¶¶ 26, 29.) According to Plaintiff, FedEx did not give him notice of the September 2, 2012 revision to the policy. (Id. ¶ 28.)¹⁴ On September 4, 2012, Plaintiff's wife shipped one or two household items she had sold on eBay and used her husband's employee discount to ship them. (Id. ¶ 30.)

Plaintiff and his wife sold various items on commercial websites like Craigslist and eBay and then shipped the items to their customers using Plaintiff's employee shipping discount. (Defs.' Statement of Undisputed Fact ¶ 9.) When they listed the items for sale, Plaintiff and his wife would advertise free shipping. (Id.) Plaintiff and his wife sold various items using his employee shipping discount, including at least half a dozen saddles, toys, bridals, horse tack, head pieces, headstalls, breast collars, blankets, musical instruments, dolls, tool boxes, kitchen appliances, show clothing, car tires, a workout set, and a Stratocaster. (Id. ¶ 10.) Some items sold for hundreds of dollars; for example, a saddle listed on Craigslist sold for over $400. (Id.)

FedEx's security department routinely investigates whether employees abuse their discount shipping privileges. (Id. ¶ 13.) In 2012, FedEx's legal department generated a quarterly audit, identifying the ten FedEx employees who had used their employee discount the most. (Id.)¹⁵ The legal department then sent the audit list to the security department for investigation into each listed employee's shipping history to determine if the employee was abusing the reduced-rate shipping policy. (Id.) Plaintiff used his reduced-rate shipping discount ninety (90) times during the period between March 2012and August 2012 and appeared on the automatically-generated audit for that quarter because of his high volume of shipments. (Id. ¶ 14.) Plaintiff disputes that he was on the initial audit list for that quarter. According to Plaintiff, his name came up as part of an "additional pull" because other employees already under investigation for abuse of the reduced-rate shipping policy came up in the initial top ten. (Pl.'s Resp. to Defs.' Statement ¶ 14.) Plaintiff adds that he appeared on the additional pull at a time close in proximity to his protected military service. (Id.)

Patricia Williams is the senior security specialist who investigated Plaintiff's use of his reduced-rate shipping privilege. (Defs.' Statement of Undisputed Fact ¶ 15; Pl.'s Statement of Add'l Fact ¶ 33.) Williams's...