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Green v. Fed Ex National LTL

September 8, 2010


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff Bruce Green worked for Defendant FedEx National LTL, Inc. ("FedEx") as a Pick Up and Delivery Driver ("P & D Driver") until August 2007, when he was discharged after failing to complete a task scheduled during his overtime hours. In this lawsuit, Green asserts that his discharge was in fact racially motivated. Defendant FedEx has moved for summary judgment, but for the reasons explained here, the court concludes that Green has offered sufficient circumstantial evidence of discrimination to reach a jury. FedEx's motion for summary judgment is thus denied. The court notes, however, that this may be a "mixed motive" case; thus, even if Plaintiff can prove a racial motivation for his termination, FedEx will not be liable if it can show that he would have been terminated regardless of the alleged unlawful motivation.


A. Factual Background

Plaintiff Bruce Green began his employment with Watkins Motor Lines in 2005, and worked there until Watkins' assets were purchased by FedEx. (Def.'s Rule 56.1 Statement of Material Facts (hereinafter "Def.'s SOF") at ¶ 5.) Beginning on or about September 3, 2006, Green worked for FedEx as a P & D Driver from the FedEx terminal in Lyons, Illinois. (Def.'s SOF at ¶ 7.)

Green signed a written acknowledgment that FedEx was adopting Watkins' Employee Handbook with certain changes, effective August 2, 2006. (Def.'s SOF at ¶ 8, 9.) Then, in or around February 2007, FedEx distributed an updated Employee Handbook (hereinafter "2007 Handbook"), identifying certain conduct that could result in termination. (Id. at ¶ 10.) The 2007 Handbook included provisions for "Progressive Corrective Action," in which an employee being disciplined would receive three stages of warnings-"Verbal Problem Solving Discussions," "Written Corrective Action," and "Final Written Warning"-before the final penalty of "Termination." (FedEx Employee Handbook at 2-3, Ex. 9 to Def.'s SOF.) The policy provided that ordinarily, "termination occurs when an employee's performance or conduct problems continue following prior corrective action." (Id. at 3.) It makes clear, however, that "under certain circumstances, termination may occur without prior corrective action, depending upon the severity of the conduct at issue." (Id.) The 2007 Handbook includes a non-exhaustive list of examples of conduct that are subject to corrective action, including: "[u]nsatisfactory work performance, attitude, and/or behavior patterns, inefficiency or lack of application or effort on the job" and "[f]ailure to perform assigned duties or to accept work as assigned by a supervisor, or failure to take instruction from any individual assigned by the supervisor." (Id.) The 2007 Handbook does not specifically identify consequences for failure to perform a task requiring overtime work (id. at 24), but FedEx employees testified that, when assigned, overtime work was mandatory. (See Kearney Dep. at 137:2-3, Ex. 15 to Def.'s SOF ("To the best of my knowledge, you cannot refuse overtime work at FedEx."); Wright Dep. at 34:1-7, Ex. 13 to Def.'s SOF (confirming that FedEx requires employees to work overtime on occasion).)

As of August 2007, Green reported directly to dispatcher Bobby Jones and to the service center manager, Marty Howland. (Def.'s SOF at ¶ 16.) Jones's job as the dispatcher was to supervise the P&D drivers and their runs. (Id. at ¶ 17.) On August 3, 2007, Green was directed to make a pick-up at a Sony Music station. (Id. at ¶ 18.) The load was not ready when Green arrived, however, so Green called Lyons Terminal's dispatch office, and Howland instructed him to make a separate pick-up and delivery before returning to Sony to pick up the delayed load. (Id. at ¶ 19-22.) Howland advised Green that he would be eligible for overtime if he worked beyond his scheduled work hours. (Id. at ¶ 23.) It is undisputed that Green did not tell Howland whether or not he would comply with his instructions. (Id. at ¶ 24.) What happened next is a matter of dispute. According to FedEx, upon Green's return to Lyons Terminal with the second load, he received paperwork from Jones directing him to return to the original Sony station as Howland had instructed. (Id. at ¶ 25.) In support, FedEx cites Jones's deposition testimony that he handed Green a "manifest" instructing him to perform the original Sony job. (Jones's Dep. at 73:6-18, Ex. 14 to Def.'s SOF.) Green insists that he was not given a manifest to return to the original Sony location when he returned to the Lyons Terminal. (Pl.'s Local Rule 56.1(b)(3) Resp. and Counterstatement to Def.'s Local Rule 56.1(a)(3) Statement of Material Facts (hereinafter "Pl.'s Resp.") at ¶ 25.) Green did not in fact return to the original Sony location to pick up the previous load; he left Lyons Terminal for the day after informing Jones that he could not perform the pick-up. (Def.'s SOF at ¶ 27, 28.)

At Howland's request, Jones prepared an e-mail report concerning the incident. Also at Howland's request, Jones made several changes to the report after it was complete, and although he could not recall the specifics, Jones testified at his deposition that the changes he made were "inaccurate." (Def.'s SOF at ¶ 29; Pl.'s Resp. at ¶ 29; Jones's Dep. at 80:1-14, Ex. 14 to Def.'s SOF.) Relying on the information in this e-mail message, Howland determined that Green should be terminated for refusal to carry out a direct work order. (Def.'s SOF at ¶ 31.) Green's termination was approved by various levels of FedEx National Management, including the Regional Human Resources Manager, the Senior Human Resources Manager, and the Vice President of Human Resources. (Id. at ¶ 32.) As part of the process of reviewing the termination decision, Dan Kearney, the Regional Human Resources Manager for FedEx's Lyons Terminal at the time of Green's termination, conducted an investigation of the incident. (Id. at ¶ 33, 34.) Kearney approved of the discharge, as did the Human Resources Senior Manager Ted Clinnin, Managing Director of Operations Butch Davis, District Manager Scott Kaman, and Vice President of Human Resources Steve Newhouse. (Id. at ¶ 33, 34.) On August 9, 2007, Howland informed Green that he was terminated for "refusing a work assignment." (Id. at ¶ 35.)

B. Procedural History

Green filed a charge of discrimination on September 11, 2007 with the Illinois Department of Human Rights, and was granted notice of a right to sue by the U.S. Equal Employment Opportunity Commission on January 6, 2009. (Ex. A to Pl.'s Resp.) On January 22, 2009, Green filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Pl.'s Compl. ¶ 4.) In his complaint, Green alleged that his termination was racially motivated, and requested reinstatement, back pay and front pay and associated benefits, and compensatory and punitive damages. (Id. at 4.) FedEx's motion for summary judgment is now before the court.


A. Summary Judgment Standard

The court will grant summary judgment where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56.

The party seeking summary judgment "bears the initial responsibility of informing the court of the basis for its motion. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party has met its burden in showing that there is no genuine issue of material fact, the nonmoving party must offer "admissible evidence" to support his allegations. McKenzie v. Ill. Dep't. of Transp., 92 F.3d 473, 484 (7th Cir. 1996). The moving party will prevail if "the nonmoving party has failed to make a ...

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