Howard v. Fed. Express Corp.
Howard v. Fed. Express Corp.
Opinion of the Court
Alfred Howard Jr. and Hikiem Cain are African-American males who were employed as full-time couriers by Federal Express Corporation ("FedEx") prior to their terminations in December 2015 and June 2016, respectively. According to Defendants FedEx and John O'Reilly, their former supervisor, Plaintiffs were terminated for failing to follow internal policies regarding loss of packages while in transit. In December 2016, Plaintiffs filed a complaint against FedEx alleging, among other things, employment discrimination on the basis of race in violation of
Before the court are Defendants' Motions for Summary Judgment as to these claims. For the reasons stated below, the court grants Defendants' Motions for Summary Judgment.
II. BACKGROUND
A. Factual Background
1. Howard's Employment and Termination
Alfred Howard was employed by FedEx as a courier from October 27, 1997, to December 23, 2015. Pls.' Errata, ECF No. 23, Ex. 1, ECF No. 23-1 [hereinafter Am. Compl.], ¶ 5. In September 2015, Howard was issued a warning letter by one of his managers, admonishing him for losing packages while on his route, failing to report a defective door on his truck, and improperly scanning packages. Defs.' Mot. for Summ. J. as to All Claims Filed by Howard, ECF No. 34 [hereinafter Defs.' Mot. as to Howard] Ex. B, ECF No. 34-4 [hereinafter Howard Depo.], at 51, 164-65.
Less than three months later, on December 2, 2015, more packages went missing on Howard's route.
2. Cain's Employment and Termination
Hikiem Cain was employed by FedEx as a courier from November 20, 2008, to June 24, 2016. Am. Compl. ¶ 6. During his employment, Cain was reprimanded for forgetting to scan packages after delivering them on four separate occasions: on December 15 and 22, 2015; March 8, 2016; and April 29, 2016. See Defs.' Mot. for Summ. J. as to All Claims Filed by Cain, ECF No. 35 [hereinafter Defs.' Mot. as to Cain], Ex. B, ECF No. 35-4 [hereinafter Cain Depo.], at 43-45, 49-53.
3. John O'Reilly's Behavior
John O'Reilly was Plaintiffs' immediate supervisor at the times of their terminations. Am. Compl. ¶ 9. O'Reilly ultimately made the decision to fire both Plaintiffs. Howard Depo. at 59; Cain Depo. at 216-17. FedEx promoted O'Reilly to his current supervisory position on November 15, 2015, just one month before Howard's termination. Defs.' Mot. as to Howard, Ex. D, ECF No. 34-6 [hereinafter O'Reilly Depo.], at 5-6.
Both Plaintiffs claim that O'Reilly did not like them because of their race and that O'Reilly was motivated by racial animus when he made the decision to fire them. See Am. Compl. ¶¶ 9, 20; Howard Depo. at 79, 83; Cain Depo. at 82-83. Howard's contention that O'Reilly did not like him is not based on any specific instance but instead because O'Reilly was "short" with Howard and "didn't believe what [Howard] would say." Howard Depo. at 79. Howard also recounts that O'Reilly once bragged to Howard that a song reminded *240O'Reilly of beating up Jewish boys as a child, saying "yea man[,] we used to beat those little Jewish boys back home and pull them by their burns."
Cain provided additional examples of O'Reilly's attitude towards Plaintiffs. On one occasion, Cain was at a conveyor belt loading packages onto his truck when he stopped the conveyor belt to offload the packages, which seemed to upset O'Reilly. Cain Depo. at 79. O'Reilly told Cain "[s]top fucking-don't fucking do that shit again."
Three other FedEx couriers-Randy Baldwin, Glennis Cole, and James Snyder-were not fired by O'Reilly despite losing custodial control of packages. See Howard Depo. at 67, 70, 72-73. Baldwin, Cole, and Snyder are all African-American.
4. Alleged Defamatory Incidents
Following Plaintiffs' terminations, O'Reilly announced Plaintiffs' terminations to their former coworkers. Am. Compl. ¶¶ 179-80. Neither Plaintiff was present at the announcement of his own termination, but Cain was present when O'Reilly announced Howard's termination. Cain Depo. at 93; Defs.' Mot. as to Howard, Ex. C, ECF No. 34-5 at 13-14. At the meeting announcing Howard's termination, O'Reilly never told the work group why Howard was fired, though Howard states that another courier, Terry Nolan, told Howard that O'Reilly used "some explicits (sic)" when announcing Howard's termination. Howard Depo. at 97-98. Specifically, O'Reilly said "F-U-C-K" three times.
Howard's termination was further discussed in a conversation between the security guard who led the investigation into Howard's missing packages, Marcus Lyers, and Howard's former coworker, Nolan. Howard Depo. at 100-01. Lyers and Nolan were discussing the investigation into Howard when Lyers told Nolan "[f]orget about Al. You don't know the whole truth about Al."
B. Procedural Background
Plaintiffs filed their complaint against FedEx on December 23, 2016, alleging eight claims: (1) racial discrimination in the making and enforcement of contracts in violation of
Evaluating Defendants' arguments for dismissal against the claims and allegations presented in proposed Amended Complaint, the court permitted Plaintiffs to amend their complaint, but dismissed Counts I, III, IV, V, and VI for failure to state a claim. See generally Mem. Op. The court stayed proceedings as to Count VII, the negligence claim.
Defendants filed two Motions for Summary Judgment: one as to all claims filed by Howard and one as to all claims filed by Cain. See Defs.' Mot. as to Howard; Defs.' Mot. as to Cain. Plaintiffs responded to Defendants' Motions in a consolidated opposition. See Pls.' Opp'n to Defs.' Mots., ECF No. 39 [hereinafter Pls.' Opp'n].
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Defendants, as the moving party, have the "burden of coming forward with proof of the absence of any genuine issues of material fact." Celotex Corp. v. Catrett ,
"A dispute over a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Arrington v. United States ,
*242In addition, the evidence relied upon by the non-movant to support their case must be admissible to be taken into account for the purposes of summary judgment. See Gleklen v. Democratic Cong. Campaign Comm., Inc. ,
IV. DISCUSSION
Defendants move for summary judgment as to Howard's claims based upon a time-barring provision within Howard's employment contract that prohibits him from bringing suit against FedEx after a six-month limitations period has run. Additionally, Defendants argue, as to both Plaintiffs, that there is no genuine dispute as to any material fact to support their claims.
Because the court holds that the record evidence does not support Plaintiffs' employment discrimination and defamation claims as a matter of law, the court does not address the validity of the contract or its time-barring clause.
A. Plaintiffs' Section 1981 Claims
"The burdens of persuasion and production for claims raised under § 1981... are identical to those for claims alleging discriminatory treatment in violation of Title VII." Mungin v. Katten Muchin & Zavis ,
Defendants in this case have proffered a legitimate, nondiscriminatory reason for firing Plaintiffs, namely, their violation of the Acceptable Conduct Policy relating to "[c]ustodial loss of Company or customer property." Howard Depo. at 132, 166; Cain Depo. at 216. In Howard's case, $1800 worth of packages were lost. Howard Depo. at 166. In Cain's case, $2490 worth of packages were lost. Cain Depo. at *243216. Both Plaintiffs were issued termination letters stating these reasons and both had their terminations upheld through each step of the GFTP process. Howard Depo. at 94, 166; Cain Depo. at 69, 216. In Howard's case, he was issued a warning letter for a prior incident where he had a similar infraction. Howard Depo. at 164. And, in Cain's case, he had a history of disciplinary infractions at FedEx before the incident where he lost the packages. See Cain Depo. at 43-53. Given that "[t]he most common legitimate reason on which an employer might rely in disciplining an employee would be that the employee had violated an employment regulation or policy," Defendants have offered a legitimate, nondiscriminatory reason for firing Plaintiffs. Williams v. Chertoff ,
Plaintiffs offer three reasons why Defendants' explanation is pretext: (1) Defendants' justification for firing Plaintiffs-their "loss of custodial control"-is too vague to be legitimate; (2) other FedEx couriers were not fired despite losing packages while on their routes; and (3) O'Reilly's conduct and attitude towards Plaintiffs demonstrates racial animus. See Pls.' Opp'n, Mem. in Supp., ECF No. 39-1 [hereinafter Pls.' Mem.], at 8-30. None of these reasons, alone or taken together, warrant sending this case to a jury.
Plaintiffs' first argument does not support an argument of pretext. "Custodial loss of ... customer property" is clearly stated as one of the violations listed in FedEx's Acceptable Conduct Policy and it plainly means that a courier cannot lose packages while under his control. See Howard Depo. at 132. Neither Plaintiff disputes having received the Acceptable Conduct Policy. Howard Depo. at 13-16; Cain Depo. at 25. And neither Plaintiff claims any confusion about the meaning of the prohibition against "custodial loss of ... customer property." Cain Depo. at 26. That comes as no surprise. After all, a delivery company like Federal Express cannot effectively function if its couriers lose customers' packages with impunity. Accordingly, Plaintiffs' first proffered reason does not establish pretext.
Next, Plaintiffs' comparator evidence provides no help. Plaintiffs point to three other couriers-Randy Baldwin, Glennis Cole, and James Snyder-who lost packages while on their routes, but who were not fired, as evidence that Plaintiffs were treated differently because of their race. See Pls.' Mem. at 22-23; Howard Depo. at 67, 70. Plaintiffs, however, fundamentally misunderstand how comparator evidence works. A plaintiff may prove that an employer had a discriminatory motive by producing "evidence suggesting that the employer treated other employees of a different race ... more favorably in the same factual circumstances." Brady v. Office of the Sergeant at Arms ,
Finally, O'Reilly's vulgar statements and profanity do not supply sufficient evidence of pretext. " '[M]any bosses are harsh, unjust, and rude,' " but "Title *244VII only protects against invidious discrimination." Winston v. Clough ,
For the above reasons, no reasonable jury could find that Defendants' reasons for firing Plaintiffs were pretext for race discrimination. Therefore, this court grants Defendants' Motions for Summary Judgment as to Plaintiffs' Section 1981 claims.
B. Defamation
To prove defamation under District of Columbia law, a plaintiff must show "(1) that he was the subject of a false and defamatory statement; (2) that the statement was published to a third party; (3) that publishing the statement was at least negligent; and (4) that the plaintiff suffered either actual or legal harm." Farah v. Esquire Magazine ,
Both Plaintiffs claim they were defamed by innuendo when O'Reilly announced their terminations to their coworkers. In Plaintiffs' view, by publicly announcing their firings FedEx insinuated that Plaintiffs had stolen the lost packages or were somehow responsible for the lost packages. Am. Compl. ¶¶ 179-80. Plaintiffs' theory of defamation is fatally flawed. Although the District of Columbia recognizes a cause of action for defamation by implication, "[c]ourts in the District refuse, as a matter of law, to find defamatory meaning where the claim of defamation is based on the interpretation third parties place upon the termination of an at-will employee." LeFande v. District of Columbia ,
Howard's separate defamation claim fares no better. Howard alleges that Lyers defamed him when he told Nolan "[f]orget about Al. You don't know the whole truth about Al," when discussing Howard's termination. Am. Compl. ¶ 57. The problem with this claim is that there is no admissible evidence to support it. To survive a motion for summary judgment, a *245plaintiff must rely on evidence that is "capable of being converted into admissible evidence." Gleklen ,
Accordingly, the court grants FedEx's Motion for Summary Judgment with respect to Plaintiffs' defamation claims.
V. CONCLUSION
For the foregoing reasons, this court holds that a reasonable jury, drawing all inferences in the light most favorable to Plaintiffs, could not find for them. Accordingly, the court grants Defendants' Motions for Summary Judgment.
Because Plaintiffs' negligence claim remains stayed, see n. 1 supra, the court does not yet enter a final order in this matter. The court, however, may request that the parties submit briefing on the negligence claim depending on Plaintiffs' next status report.
Count VII, negligence, was stayed by the court pending proceedings before the D.C. Department of Employment Services and thus is not resolved in this Memorandum Opinion. See Mem. Op. and Order, ECF No. 29 [hereinafter Mem. Op.], at 10-12.
All page numbers for Howard Depo. are based upon the ECF pagination.
All page numbers for Cain Depo. are based on the ECF pagination.
All page numbers for O'Reilly Depo. are based upon the ECF pagination.
Even if Lyers' statement were admissible, it would still not be defamatory as a matter of law because it is too vague to carry any defamatory meaning. It is not enough that one can possibly draw a defamatory inference from the statement; instead, "the recipient must be able to reasonably understand the statement to convey the defamatory meaning" for the statement to be defamatory. White I ,
Reference
- Full Case Name
- Alfred Wendell HOWARD, Jr. and Hikiem Sharodd Cain v. FEDERAL EXPRESS CORPORATION and John O'Reilly
- Cited By
- 2 cases
- Status
- Published