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BICKHEM v. UPS

December 2, 1996

MACARTHUR BICKHEM, Plaintiff,
v.
UNITED PARCEL SERVICE, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff MacArthur Bickhem ("Bickhem") has filed a two-count second amended complaint against defendant United Parcel Service ("UPS") alleging that defendant failed to promote plaintiff to various management positions because of his race (African-American), in violation of the Civil Rights Act of 1866 as amended, 42 U.S.C. 1981 ("Section 1981") (Count I) and the Civil Rights Act of 1964 as amended, 42 U.S.C. 2000e et. seq. ("Title VII")(Count II). Defendant has moved for summary judgment on all counts. For the reasons set forth below, defendant's motion is granted in part and denied in part.

 PROCEDURAL HISTORY

 Plaintiff filed his original complaint on December 19, 1994. By order dated June 7, 1995, the court dismissed plaintiff's complaint for failure to state a claim and granted plaintiff leave to file an amended complaint. On June 23, 1995, plaintiff filed an amended complaint alleging that defendant discriminated against him because of his race by denying him a promotion in 1992, four promotions in 1993, and a promotion in 1995. Defendant filed a motion to dismiss portions of plaintiff's first amended complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). In its order dated October 11, 1995, the court granted defendant's motion and gave plaintiff leave to file a second amended complaint. Plaintiff filed a second amended complaint on October 31, 1995, pursuant to which defendant brings the instant motion for summary judgment.

 FACTS

 Plaintiff began his employment with defendant as a part-time Customer Service Telephone Representative ("Telephone Representative") in September 1987. He held this position until December 1990, after which he became a full-time representative. In August 1995, Joe Lemens, a UPS Technology Support Supervisor, recommended plaintiff for the position of Tech I Associate. Plaintiff was promoted to Tech I Associate in the same month, and currently holds this position.

 Defendant did not post the opening of management positions when they became available, nor did it publicize the qualifications necessary for such positions. Rather, defendant instructed employees to submit letters of intent, expressing their interest in management positions. To be considered for such a position, an employee had to be recommended by his supervisor.

 On May 4, 1989, April 14, 1992, and January 14, 1993, plaintiff submitted letters to UPS management, expressing his interest in management positions and requesting that he be considered for promotion to such positions. In January 1993, Rick Aardsma, Officer Manager of UPS Oak Brook Customer Service Telephone Center, recommended to District Customer Service Manager, Al Czachowski, that Deborah Batovski be promoted to the management position of Account Executive; Batovski was promoted to the position shortly thereafter. From June 1990 until the time of her promotion, Batovski had worked for defendant as a Telephone Representative and, at the time she was promoted, held a bachelor's degree. Both Batovski and plaintiff took defendant's Sales Assessment Test. Batovski scored a 5; plaintiff scored a 3.

 In February 1995, Lemens recommended Steve Cappitelli, a Telephone Representative, to the position of Tech I Associate, to which Cappitelli was promoted shortly thereafter. At the time of Lemens' recommendation, Cappitelli was pursuing a bachelor's degree in computer science. Prior to this promotion decision, both Cappitelli and plaintiff took a written test which, defendant asserts, was designed to measure their DOS computer knowledge. Cappitelli scored higher on the test than plaintiff.

 In January 1994, Mike Donoghue, an on-car supervisor at defendant's Bedford Park facility, was transferred to a Human Resource Representative position. From January 1988 until the time of his transfer, Donoghue held various management positions with defendant. Donoghue received a bachelor's degree in Human Resources in December 1992.

 In Count One, *fn1" plaintiff asserts that, in making the aforementioned promotion decisions, defendant discriminated against plaintiff in violation of Section 1981. In Count Two, plaintiff alleges that defendant's decision to promote Batovski to Account Executive in January 1993 *fn2" constituted race discrimination in violation of Title VII.

 DISCUSSION

 I. Summary Judgment ...


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