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Flatten v. United Parcel Service

July 27, 2009


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff George Flatten ("Flatten") brought this action against United Parcel Service, Inc. ("UPS") alleging violations of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. and the Age Discrimination in Employment Act of 1967 ("ADEA"), as amended, 29 U.S.C. § 621, et. seq., as a result of defendant's termination of plaintiff's employment. Pursuant to Fed. R. Civ. P. 56, defendant has moved for summary judgment. For the reasons discussed below, defendant's motion for summary judgment on both counts is granted.


Plaintiff, a forty-four year old male, had been a UPS employee for nearly twenty-three years, prior to his termination on June 2, 2008. He began as a loader/unloader, ultimately working his way up to a Level 16 manager of part-time non-driving employees who sorted packages for trans-shipment in Addison, Illinois. Plaintiff had been employed by defendant since on or about October 14, 1985. In the fall of 2007, plaintiff started to date a fellow UPS co-worker and Level 16 manager, Nicole Pietrangeli ("Pietrangeli"). Pietrangeli, 11 years plaintiff's junior, has been a level 16 manager since January 2006, and has been employed by defendant since March 1998. At all relevant times, she has been the Center Manager in UPS's DeKalb and Peru, Illinois facilities, supervising UPS drivers.

For the last 30 years, defendant has had a non-fraternization policy (the "Policy") that warns all management employees to "strictly avoid" entering into romantic, dating, and/or sexual relationships with co-workers. Management employees are also warned to "strictly avoid entering into [close personal] relationships that present issues that may in any manner negatively impact the workplace, such as issues of security, supervision/evaluation, morale or confidentiality." Where two managers engage in a romantic relationship, the Policy states as follows:

"If both employees hold management positions, they should be given the opportunity to choose which of them will voluntarily leave the company. If they are unable or unwilling to make this decision, the employment of the individual who holds the higher management position should be terminated. If they are employed at the same management level, the employment of the individual who has longer tenure with the company should be terminated."

Plaintiff and Pietrangeli did not disclose their relationship until May 29, 2008, when Pietrangeli informed her supervisor, Randy Dunn, who encouraged Pietrangeli to keep her job with defendant. On May 30, 2008, plaintiff and Pietrangeli jointly informed Defendant's Illinois District Human Resources Manager, James Baier, about their relationship. Baier reminded plaintiff and Pietrangeli about UPS's Policy and gave them until June 2, 2008, to decide which one of them would leave UPS, pursuant to the Policy. Baier explained that the Policy required plaintiff to leave in light of his longer tenure if plaintiff and Pietrangeli were unable to decide. Subsequent to this meeting, plaintiff informed his boss and Division Manager, Robert Notaro, of the relationship. Notaro acknowledged that plaintiff and Pietrangeli had a tough decision to make. Notaro invited plaintiff to contact him over the weekend if plaintiff had made a decision.

Following his discussion with plaintiff, Notaro met with Barbara Schweihs, a full-time training supervisor, and Mark McNicholas, a hub manager. During that meeting, Notaro directed Schweihs to prepare a requisition form to fill plaintiff's position, in the event that plaintiff would vacate his position on Monday, June 2.*fn3 Also that day, defendant identified a twenty-seven year old male employee, Jeff Schultz, to replace plaintiff if plaintiff's employment ended.

Later in the afternoon of May 30, McNicholas called plaintiff to apprise him of comments Notaro had allegedly made about plaintiff during the meeting with McNicholas and Schweihs. Allegedly, Notaro stated that plaintiff's name would be mud if he chose to remain employed by defendant after violating the Policy and wondered "why would we want to keep a 40-year old balding white male" as opposed to a promotable female (Pietrangeli). Soon after the conversation with McNicholas, plaintiff contacted Baier to express concern about the negative impact Notaro's statements had on plaintiff and Pietrangeli's decisionmaking. On Sunday, June 1, plaintiff and Pietrangeli concluded that neither of them would resign, even though Pietrangeli had prior intentions of leaving the company and had gone on interviews. The couple was concerned that, based on Notaro's statements, plaintiff would face a very negative work environment, or would otherwise be terminated, if Pietrangeli chose to resign, thus, potentially leaving both of them without a job.

Plaintiff's employment with UPS ended on the morning of June 2, 2008, after a telephone conversation with Baier, as a result of both plaintiff's and Pietrangeli's refusal to resign. Pietrangeli remained employed by defendant and did not suffer any repercussions as a result of her violation of the Policy. Although plaintiff does not dispute that the Policy applies to the instant case, plaintiff contends that defendant's discriminatory conduct and intent was "manifested through [d]efendant's failure to follow the process promulgated by [d]efendant's non-fraternization policy." Defendant further contends that, "[a]s a result of defendant's strong-arm discriminatory tactics manifested through its more favorable treatment of Pietrangeli, plaintiff and Pietrangeli re-evaluated their decision [that Pietrangeli would resign] out of fear for retaliation" against plaintiff.


I. Summary Judgment Standard

A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir. 1993). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir. 1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir. 1992).

A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir. 1993). This standard is applied with added rigor in employment discrimination cases, where issues of intent and credibility often dominate. Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir. 1993) (citations omitted). However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence ...

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