NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-2962 _____________

KENDRICK LANGLEY, Appellant

v.

UNITED PARCEL SERVICE, INC.; SHAWN MCNEIL; ORLANDO RUIZ; CHARLES PENA; JOHN DOES 1-5; XYZ CORPS. 1-10 ______________

Appeal from the United States District Court for the District of New Jersey (D.C. Civ. Action No. 2-18-cv-08807) District Judge: Honorable Madeline C. Arleo _____________

Submitted Under Third Circuit L.A.R. 34.1(a) October 21, 2022 ______________

Before: GREENAWAY, JR., MATEY and ROTH, Circuit Judges.

(Opinion Filed: February 1, 2023) ______________

OPINION* ______________

GREENAWAY, JR., Circuit Judge.

This suit arises from Plaintiff-Appellant Kendrick Langley’s (Appellant or

Langley) termination from the United Parcel Service, Inc. (UPS). Langley alleges that he

was terminated because of his race and seeks relief under the New Jersey Law Against

Discrimination (NJLAD) (

(a)). The United States District Court

for the District of New Jersey granted summary judgment for UPS. Because there is no

genuine dispute of material fact, we will affirm the District Court’s judgment.

I. FACTS AND PROCEDURAL HISTORY

Langley, an African American male, began working at UPS in 1995. In 2009, he

became an On Road Supervisor and held this position until his termination in 2015.

This was a safety-sensitive position, meaning it required him to ensure UPS drivers were

operating vehicles safely. Langley was terminated because he tested positive for cocaine

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 under UPS’s random drug policy for employees in “safety-sensitive” positions. App. J-

77–79.

Shawn McNeil, Langley’s direct supervisor, allegedly told Langley that Ray

Barczak, UPS’s Director of Transportation, “has racist tendencies.” App. D-27. Barczak

purportedly made racist comments about African Americans. Although McNeil denies

that he told Langley about Barczak’s racist comments, it is the lynchpin of Langley’s

argument.

A. Drug and Alcohol Testing Policies

At the time of the incident and at present, UPS has had two drug testing policies in

place. The first is a random drug test pursuant to the Department of Transportation

(DOT) regulation for commercial drives. All employees who hold positions impacting

safety are covered employees under this testing protocol. The employees’ identification

numbers or social security numbers are inputted into a computerized program and

randomly selected throughout the year to be tested. The test consists of a urine screen

that is administered in a lab certified by the Department of Health and Human Services.

The urine sample is split into two specimens and then shipped to a testing lab. If the

primary specimen tests positive for a drug, then another test is performed to confirm that

first test.

A Medical Review Officer (MRO) receives the test results and then informs

employees about a positive or invalid test result. It is up to the MRO to determine

whether a positive test result arose from routine medicine intake by an employee. An 3 employee can request that the MRO send the split sample to another certified lab for

further testing. An MRO must review the confirmation test and determine with finality

whether an employee has tested positive. Such an employee is removed from performing

their duties and must also be disciplined. The employee can also be referred to a

substance abuse program: SAP. The second relevant type of procedure is for reasonable

suspicion drug or alcohol testing. The DOT, and thus UPS, require this type of testing

“whenever a manager . . . ha[d] reason to believe that a covered employee’s appearance

or behavior may indicate the use of drugs or alcohol.” App. J-81.

There are a series of steps a supervisor must take before requiring an employee to

test. First, the manager who suspects an employee was under the influence of drugs or

alcohol must have been trained on alcohol misuse and controlled substance use. Second,

the manager must make “specific contemporaneous, articulable and documentable

observations concerning the appearance, behavior, speech, or unusual characteristics of

the employee.” App. J-81. Third, two persons in management must observe an

employee and provide written notice to the employee of what was observed. The

behavior must have been observed immediately preceding, during, or right after the

4 workday. Only then will UPS require an employee to submit to “a fitness-for-duty

medical evaluation, which may include drug and alcohol testing.” App. at J-82.

B. Langley’s Random Drug Test

Langley submitted to a random drug test on January 29, 2015,

the resulting specimen tested positive for cocaine. Langley denied using cocaine then,

and still remains adamant in his denial. On February 6, 2015, an MRO notified Langley

of this result. After a series of back and forth among the UPS Division Manager, Chuck

Pena, McNeil, and the human resources manager, Orlando Ruiz, Langley was ultimately

instructed to enter a substance abuse program (SAP) or he would face termination.

Langley informed Ruiz and McNeil that he is usually on blood pressure medications, but

he did not remember whether he was taking that or any other medication immediately

before the drug test.

On February 6, 2015, Langley met with Ruiz and McNeil. They relayed that

Langley could not work until the results of his second specimen were available and an

investigation was complete. Langley again denied using drugs. Langley also learned that

if he enrolled in a SAP and complied with testing for an extended period, he could have

been allowed to leave the program and return to work. There was no decision made on

this date on whether UPS would terminate Langley.

Langley’s second specimen tested positive for cocaine, and he undertook various

efforts to prove both tests wrong. Langley voluntarily underwent a polygraph test. The

results showed that Langley truthfully denied using cocaine. Langley also voluntarily 5 underwent another examination by his physician, Dr. John Penek. Dr. Penek concluded

that within a “reasonable degree of medical certainty,” Langley had received a false

positive cocaine test. Although Langley did not want to participate in the SAP program

at first, he eventually completed the three-hour program.

Ultimately, a UPS District Human Resources Manager entered the picture: Glenn

Henry. He was tasked with deciding whether UPS should terminate Langley. On

February 17, 2015, Henry determined that Langley would be terminated because his

random drug test had come back positive.

On March 9, 2015, Ruiz and Pena met with Langley for a termination meeting.

Pena offered Langley the opportunity to resign but Langley refused. He was terminated,

and it was Henry who made the decision to do so.

C. The Employee Dispute Resolution (EDR) Process and the Last Chance Agreement (LCA)

After his termination, Langley participated in UPS’s EDR process. Langley was

encouraged to participate in the EDR process post-termination as a means of challenging

the termination itself. He was given this option post-termination because his

management team felt positive about Langley’s performance as an employee. The first

step was the “open door process.”1

at D-25. He met with Henry as a part of this

process and never brought up race. Henry offered reinstatement to Langley’s former

1 The “open door process” encourages an employee to resolve their dispute informally by bringing a complaint to their supervisor or manager. S.A.23. 6 position as On Road Supervisor in exchange for signing the LCA. This agreement settled

all disputes between Langley and UPS, including but not limited to Langley’s

termination. The LCA outlined what Langley would receive in return if he agreed to

release all future legal claims against UPS. Langley was offered his same supervisory

position with the same pay and benefits including restricted stock units, but no back-pay.

Langley declined to sign the LCA and permanently separated from UPS.

D. Comparators Shawn McNeil and Phil Venello

To support his wrongful termination claim, Langley argues that his direct

supervisor McNeil is a valid comparator. McNeil was convicted for driving under the

influence outside of work hours. McNeil himself reported the DWI to UPS. UPS did not

take any formal action but disallowed him from participating in any safety rides. McNeil

was never subject to any testing at UPS because of his DWI, whether it be random or the

reasonable suspicion drug testing.

To rebut, UPS provides what it argues are appropriate comparators. First, a

similarly situated Caucasian employee who was treated the same as Langley, Phil

Venello. Venello was terminated from UPS around the same time as Langley. He held

the same position of On Road Supervisor and was found to be using marijuana while at

work. He was arrested for marijuana during off-work hours but tested positive after a

7 reasonable suspicion test. He participated in the EDR process after termination. He

signed an LCA and retained his position at UPS.

Two other Caucasian employees were terminated for possessing drugs and being

under the influence of alcohol. Christian Buitrago was terminated after possessing

marijuana as he was leaving a UPS facility, and Greg Devaney was terminated for

abusing alcohol while working.

E. Procedural History

Langley commenced this action in the Superior Court of New Jersey. Among

other things, he claimed that UPS violated the NJLAD. After two removals to the

District of New Jersey and dismissal of various parties and claims, the Parties proceeded

to discovery. UPS moved for summary judgment, arguing that Langley had failed to

establish a prima facie wrongful termination claim and that Langley’s termination was

voluntary, considering his rejection of the LCA.2 The District Court granted summary

judgment for UPS. This timely appeal followed.

II. JURISDICTION3 AND STANDARD OF REVIEW

The District Court had jurisdiction over this matter under

(a).

“We have jurisdiction under

to review the District Court’s grant of

2 Because the District Court held that Langley did not make a prima facie claim of wrongful termination, it did not reach the second issue of whether Langley’s termination was an “adverse action.” 3 Both Parties incorrectly cite

(a)(1) as the authority for our jurisdiction. That statute articulates the jurisdictional rules relevant to the United States 8 summary judgment.” Busch v. Marple Newtown Sch. Dist.,

, 95 n.7 (3d Cir.

2009).

Our review is plenary, and we apply the same standard as the District Court.

Halsey v. Pfeiffer,

(3d Cir. 2014). Under that standard, summary

judgment is appropriate only if, construed in the light most favorable to the non-moving

party, the record shows that there is no genuine dispute of material fact and that the

moving party is entitled to judgment as a matter of law. See Wharton v. Danberg,

(3d Cir. 2017); Fed. R. Civ. P. 56(a). A fact is material only if it might

affect the outcome of the suit under the governing law. Scheidemantle v. Slippery Rock

Univ. State Sys. of Higher Educ.,

(3d Cir. 2006). We must review the

record and draw all inferences in favor of the non-moving party when determining

whether there is a dispute of material fact. Shelton v. Bledsoe,

(3d Cir.

2015).

III. ANALYSIS

Langley appeals the District Court’s grant of summary judgment for Defendant on

his NJLAD wrongful termination claim. He raises two issues. First, Langley argues that

the District Court erred in holding that he had failed to make a prima facie race

discrimination claim because he had failed to put forth a valid comparator. Second,

Langley argues that the District Court erred in finding that he had failed to provide

Court of Appeals for the Federal Circuit.

. We have jurisdiction under

. 9 sufficient evidence to show an inference of intentional discrimination (the fourth element

required for a prima facie race discrimination claim). Because Langley cannot show that

there is a genuine dispute of material fact to be resolved at trial, we will affirm the

District Court’s decision.

NJLAD makes it unlawful for an employer to discharge an employee on the basis

of race.

(a). Discrimination claims brought under NJLAD are

subject to the McDonnell Douglas burden-shifting framework. Grigoletti v. Ortho

Pharm. Corp.,

, 906–07 (N.J. 1990); see also McDonnell Douglas Corp. v.

Green,

(1973). A plaintiff must establish that “(1) s/he is a member of

a protected class; (2) s/he was qualified for the position s/he sought to . . . retain; (3) s/he

suffered an adverse employment action; and (4) the action occurred under circumstances

that could give rise to an inference of intentional discrimination.” Makky v. Chertoff,

(3d Cir. 2008). Once a plaintiff meets the initial burden of making out a

prima facie case of discrimination, the burden shifts to the defendant-employer to

articulate legitimate, nondiscriminatory reasons for the employment decision. See Burton

v. Teleflex Inc.,

(3d Cir. 2013). Finally, the burden of production

shifts back to the plaintiff, who must show through direct or circumstantial evidence that

the legitimate, nondiscriminatory reason given is merely pretext and the protected status

10 of the plaintiff was the determinative factor of the adverse employment action. See

Makky, 541 F.3d at 214–20.

The only element at issue4 is whether Langley presented sufficient evidence to

support an inference of race discrimination. The District Court held that Langley had not

provided evidence that would allow a reasonable factfinder to conclude that there was an

inference of intentional discrimination. McNeil was not a valid comparator because he

was unlike Langley in all relevant respects. UPS presented evidence of similarly situated

Caucasian comparators who were treated the same as Langley, showing that UPS applied

its drug testing policy in a race-neutral way. We agree.

A plaintiff can show an inference of intentional discrimination by identifying a

similarly situated individual outside the protected class, who engaged in the same

conduct as a plaintiff but was treated more favorably. Mandel v. M&Q Packaging Corp.,

(3d Cir. 2013). We look at several factors when determining whether

a person qualifies as similarly situated. Monaco v. Am. Gen. Assur. Co.,

,

4 Langley raises a new theory of recovery in his Reply in arguing that the totality of the circumstances illustrates his race was one motivating factor for his termination, even if other legitimate reasons existed. Because this theory was never raised in his opening brief or below in the District Court, we consider this argument forfeited. Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist.,

, 146–47 (3d Cir. 2017) (“Forfeiture is the failure to make the timely assertion of a right, an example of which is an inadvertent failure to raise an argument.”) (cleaned up); Daggett v. Kimmelman,

, 795 n.1 (3d Cir. 1987) (not considering an issue appellants failed to raise in their original briefs) (citing Fed. R. App. P. 28(a)(2) and 28(a)(4)). We decline to reach the merits of this claim.

11 305 (3d Cir. 2004). “[W]e must look to the job function, level of supervisory

responsibility and salary, as well as other factors relevant to the particular workplace.”

This inquiry is fact-intensive and must be done on a “case-by-case basis rather than a

mechanistic and inflexible manner.”

McNeil is not a valid comparator because he is not similarly situated. Contrary to

what Appellant suggests, McNeil and Langley had different job functions and a different

level of supervisory responsibility. McNeil was an On Road Manager. He managed the

performance of all UPS drivers and ensured they complied with safety protocols. But

Langley was a subordinate as an On Road Supervisor. He took part in safety rides with

UPS drivers and observed the employees day to day. Moreover, operating motor vehicles

was not a part of McNeil’s core responsibility. Although both positions involve driving

to some degree, these differences in responsibility suggest that they were not similarly

situated. See Mandel,

; Monaco, 359 F.3d at 305–06 (refusing to treat

vice presidents and branch managers as similarly situated even where they had some

identical responsibilities).

Appellant’s argument that McNeil should have been drug tested under the

reasonable suspicion drug testing policy disregards UPS policy. Even if McNeil’s DWI

conviction implicated his duties at UPS, he could not be tested for alcohol abuse. The

policy requires that a manager must suspect an employee is under the influence of alcohol

at work to initiate this process. No manager at UPS observed McNeil under the influence

12 of alcohol at work.5 Nothing in either of UPS’s substance testing policies allows for

testing of employees based on these convictions that occurred outside of work. This

DWI differs from Langley’s failure of a random drug test on a day he was at work during

work hours.

Appellant’s position that we should treat his random drug test result and McNeil’s

non-work-related DWI of “comparable seriousness” is not supported in this Circuit.

Langley relies on an out-of-circuit decision, Clayton v. Meijer, Inc.,

(6th Cir. 2002). The Sixth Circuit merely allows an employer to “more severe[ly]” treat

employees involved in “more egregious circumstances.” Clayton,

. The

record proves that—according to UPS policy—the on-duty random drug test versus off-

duty DWI was not of “comparable seriousness” as Appellant suggests.6

Undisputed evidence by UPS disproves Langley’s claim that he was treated

unfairly. No one in management had previously been terminated under the random drug

testing policy, so the only valid comparators presented were all Caucasian and terminated

under the reasonable drug testing policy. Butriago was terminated after possessing

5 This is why none of Appellant’s arguments about McNeil’s responsibility of overseeing UPS drivers and being suspended for three months from driving matter. Langley’s argument boils down to the fact that McNeil should have been drug tested under the reasonable drug testing policy and potentially terminated if there was no racially motivated termination. Nothing in the UPS policy mandates or even allows for such testing. After being convicted of the DWI, McNeil was not observed to be impaired or in any other manner that would suggest abuse of alcohol while he was working. 6 To be sure, DOT regulations prohibited UPS from testing McNeil under the reasonable suspicion policy. See

(a).

13 marijuana as he was leaving UPS. Devaney was terminated for being intoxicated while

at work. Importantly, Venello held the same position of On Road Supervisor and was

terminated after it was discovered that he was using marijuana at work. The key

difference between Langley and Venello is that Venello signed the LCA after

participating in the EDR process, and thus remains employed by UPS.

Lastly, any potentially racist statements made by Barczak are irrelevant. The

District Court correctly found, and Appellant does not challenge, that Barczak’s

potentially problematic views cannot prove an inference of intentional discrimination.

Henry, not Barczak, made the final decision to terminate Langley. Barczak’s statements

are disconnected from Langley’s termination because we do not know how much time

had passed since Barczak made these statements. These “[s]tray remarks” were made by

a decision-maker “unrelated to the decision process” and should not be given “great

weight.”7 Fuentes v. Perskie,

(3d Cir. 1994) (quoting Ezold v. Wolf,

Block, Schorr & Solis-Cohen,

(3d Cir. 1992)).

IV. CONCLUSION

For the foregoing reasons, we will affirm the District Court’s decision to grant

summary judgment in favor of Defendant on all of Langley’s claims under NJLAD.

7 Even assuming arguendo that Langley had satisfied the prerequisites of a prima facie case, there is not sufficient evidence to establish pretext. We address this solely because Langley presses the issue. Pretext would still fail because Langley has not produced evidence to refute UPS’s justification for why he was terminated. Langley’s argumentation, as supported by evidence in the record, amounts to no more than his 14 “personal view of his employer’s explanation and falls far short of establishing pretext.” Sarullo v. U.S. Postal Serv.,

, 800 (3d Cir. 2003). 15