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Scales v. Fedex Ground Package System, Inc.

United States District Court, N.D. Illinois

January 24, 2017

Corey Scales, Plaintiff,
v.
FedEx Ground Package System, Inc., Defendant.

          ORDER

          FREDERICK J. KAPALA District Judge

         Defendant's motion for summary judgment [31] is granted. This case is closed.

         STATEMENT

         Plaintiff, Corey Scales, has sued his former employer, FedEx Ground Package System, Inc. (“FedEx”) alleging violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. FedEx has moved for summary judgment. For the reasons that follow, the motion is granted.

         I. FACTS[1]

         Plaintiff began working at FedEx as a part-time package handler in October 2005. In January 2008, plaintiff was promoted to a part-time operations manager position requiring him to supervise package handlers. Plaintiff reported to Sort Manager Tim Olexa, who in turn reported to Station Senior Manager Jeremy Sword.

         Throughout his employment, plaintiff was advised of and received training on: (1) the FedEx Ground Acceptable Conduct Policy-010, which prohibits comments or communications that reasonably could be viewed as discriminatory or that might constitute harassment or bullying; or that disparage, belittle, or demean employees; and (2) the FedEx Ground Anti-Harassment & Anti-Discrimination Policy-020, which prohibits harassment that creates a hostile, intimidating, or offensive working environment and prohibits any act that creates the potential for harassment, including sexual harassment or harassment based on any other protected characteristic as well as inappropriate conduct that is harassing in nature but does not rise to the level of being unlawful.

         Plaintiff's personnel records include the following disciplinary history. On November 26, 2008, plaintiff received a written warning and counseling because he failed to conduct a yard check and failed to ensure that a trailer was unloaded. In June 2010, package handler Jeff Heisler, complained about plaintiff's use of profanity towards him. During the investigation, plaintiff admitted that he used inappropriate language and did not handle the situation appropriately. Sword conducted a formal counseling session with plaintiff who “agreed with the corrective action steps discussed with [Sword] and [to] make sure that future conversations with package handlers are conducted in a professional and respectful manner.” On August 17, 2010, plaintiff received performance counseling because he failed to conduct an accurate yard check to ensure all trailers were unloaded.

         On August 10, 2011, Heisler complained again about plaintiff's temper and use of profanity. In order to verify Heisler's complaint, Sword spoke with other package handlers who confirmed that plaintiff engaged in yelling and the use of profanity. Sword conducted a formal counseling session and discussed the Acceptable Conduct Policy-010 with plaintiff. Plaintiff admitted that his inappropriate behavior had to stop and he said he would work on managing his temper. Sword advised plaintiff “that this and similar types of behavior would not be tolerated any longer and another report of a similar incident could and likely would result in termination under [Acceptable Conduct] Policy-010.” On June 29, 2012, package handler Jessica Taylor called Laura O'Neal in Human Resources (“HR”) and filed a report regarding inappropriate text messages from plaintiff.[2] Taylor indicated that she wished to resign from her position because she did not want to work in an environment where she felt uncomfortable. O'Neal explained the Anti-Harassment and Anti-Discrimination Policy to plaintiff and he admitted that he had in fact sent text messages to Taylor. However, he claimed he was just trying to be friendly and to get to know her better. Plaintiff denied the purported content of the text messages, but admitted that he had seen Taylor working and his messages commented on how he admired what a hard worker she was. Plaintiff promised that he would be more mindful in the future about any contact outside of work with package handlers. Plaintiff received a written warning from Sword for violating the Anti-Harassment and Anti-Discrimination Policy-020. Plaintiff was advised that his failure to comply with policy may result in disciplinary action up to and including termination.

         In September 2012, plaintiff received performance counseling because he failed to follow proper procedures for a yard check. As a result of his actions, a trailer with packages still inside sat in the station yard on September 27 and 28. On September 13, 2013, plaintiff received a written warning because he failed to report for his scheduled shift and failed to properly inform his manager or get approval for his absence. In September 2013, package handler Brianna Carroll reported that, she had heard plaintiff call another package handler a “homo, ” and that plaintiff said to him “go ahead and go to HR, I dare you.” Carroll also indicated that plaintiff mocks people, talks behind their backs, and that plaintiff had been asking her for her phone number. Carroll reported that plaintiff made comments to her like “you seem interesting, I bet you're a real goody-goody, ” “I want to get to know you-the real you-outside of work.” When interviewed, plaintiff admitted to calling a package handler a “homo, ” and that he told Carroll to put her phone number in his phone, but he claimed he was joking on both occasions. FedEx conducted interviews of other employees who confirmed that plaintiff often called people “homos” behind their backs. As a result, it was determined that plaintiff violated the Acceptable Conduct Policy-010 and the Anti-Harassment and Anti-Discrimination Policy-020. Plaintiff was advised that “an inability on [his] behalf to modify his behavior and conduct himself in a manner befitting that of a FedEx manager and/or any confirmed future reported incidents of this nature will result in termination of his employment with FedEx Ground.” Given plaintiff's history of misconduct, he was also advised that he would be placed on a Performance Improvement Plan (“PIP”).

         On December 14, 2013, Olexa had a documented discussion with plaintiff due to his failure to turn in required paperwork and advised that a PIP may be initiated. On December 27, 2013, Olexa had a documented discussion with plaintiff due to his failure to properly scan packages which resulted in a rating of “less than satisfactory service.”

         On January 4, 2014, plaintiff was placed on a formal 90-day PIP focusing on improvement in: 1) communication skills including listening, presenting and conversing with managers, package handlers, and drivers; and 2) accountability including completing assigned duties promptly and with proper follow up. It was specifically noted that plaintiff's performance with respect to package handler interaction was:

Less than expected or no communication with packager handlers on an individual basis regarding individual package handler performance; Complaints of harassment or hostile work environment for package handlers as documented in [his personnel records] . . .; and [i]nappropriate comments made about package handlers and managers to others on dock and in office.

         On January 18, 2014, Olexa had a documented discussion with plaintiff because he failed to follow the proper procedure to make an adjustment to an employee's time card which was a violation of time-keeping policy and an integrity issue. On February 12, 2014, Olexa had a documented discussion with plaintiff because he failed to inspect his assigned area, and after the delivery trucks had already been dispatched for the day, 22 packages were left behind in his assigned area.

         At the end of the 90-day PIP in April 2014, plaintiff had made improvements, however, it was noted that plaintiff only did what was asked of him when he knew someone was watching him and the majority of the improvement he showed occurred in the last 30 days, if not the last 15 days, of the PIP. Consequently, a second 90-day PIP was initiated on April 15, 2014, to ensure plaintiff's improvements could be sustained.

         In Olexa's annual performance review of plaintiff for the fiscal year June 1, 2013 to May 31, 2014, he noted “[plaintiff] has put a lot of time and effort into improving himself and that he had grown his skills and abilities, ” and gave plaintiff an overall rating for the year at 2.92 out of 5. A score of 3.00 means an employee has fully ...


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