Mathews v. United Parcel Service, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ADRIAN MATHEWS,

Plaintiff,

v. Case No. 8:22-cv-01801-TPB-SPF

UNITED PARCEL SERVICE, INC.,

Defendant.

________________________________/

ORDER GRANTING “DEFENDANT UNITED PARCEL

SERVICE, INC.’S MOTION FOR SUMMARY JUDGMENT”

This matter comes before the Court on “Defendant United Parcel Service,

Inc.’s Motion for Summary Judgment.” (Docs. 19; 20). Plaintiff submitted a

response in opposition. (Doc. 40). Defendant then submitted its reply. (Doc. 41).

Upon review of the motion, response, reply, court file, and record, the Court finds as

follows:

Background

Defendant United Parcel Service, Inc. (“UPS”) hired Plaintiff Adrian

Mathews in 2014. In 2017, Mathews began his current role as a Package Car

Driver, in which he transports packages to and from residential properties. The

employer-employee relationship here has not been a smooth one. Mathews has a

lengthy disciplinary history at UPS, dating back to March 2018. Prior to March

2020, he had received over ten warning letters and intent to discharge notices from

various supervisors. In March 2020, UPS terminated Mathews for excessive

absences after he requested leave under the Family and Medical Leave Act

(“FMLA”). In May 2020, Mathews filed a lawsuit against UPS for FMLA

interference and retaliation. In October 2020, UPS and Mathews resolved the suit

and UPS reinstated Mathews to his position.

Mathews returned to work on October 5, 2020. UPS management

subsequently issued warning notices to him for attendance on October 19, 2020, and

for failing to wear a seatbelt on November 18, 2020. On January 6, 2021, UPS

denied Mathews his accrued vacation leave and optional time off even though the

settlement agreement with him required UPS to reinstate him as if he had missed

no time at work. On March 16, 2021, UPS issued Mathews another warning for

attendance.

On May 12, 2021, officers with the Lake Wales, Florida, Police Department

visited Mathews’ UPS facility and asked the Center Manager, James Henry, for

permission to insert a tracking device into a package as part of a police

investigation. Henry agreed, but denied the officers’ request to place an undercover

officer on the delivery truck because doing so would require clearance from UPS

upper management.

On the morning of May 13, 2021, the tracked package was loaded onto the

Route 34C delivery truck. Route 34C is an unassigned route, so drivers may select

it when it is available. Mathews often chose Route 34C, and he chose it on May 13.1

1 In his response, Mathews argues that UPS assigned this route to him. However, in his

deposition Mathews stated that he could choose his own route because he was an

unassigned driver and he preferred to choose Route 34C when it was available. Because

Mathews had the second highest seniority, he was generally able to pick Route 34C unless

It is undisputed that Mathews was not told he was carrying a package that had

been tracked by law enforcement. While driving Route 34C, Mathews received a

message from dispatcher Carly Henry directing him to reroute and deliver the

tracked package before noon. Mathews complied and arrived at the relevant

delivery location to deliver the package. After he walked the package onto the

porch, armed police officers swarmed the yard and arrested the recipient. Mathews

returned to the truck and called Carly Henry to ask about the incident. According

to Mathews, Carly Henry laughed hysterically. Unbeknownst to Mathews, James

Henry was also listening to the conversation on speakerphone.

Due to the anxiety, stress, and depression caused by this experience Mathews

took a leave of absence from UPS on May 14, 2021. Mathews received treatment

and returned to UPS as a driver several weeks later. On July 11, 2022, Mathews

filed suit against UPS asserting claims for Intentional Infliction of Emotional

Distress (Count I) and FMLA Retaliation (Count II). UPS moves for summary

judgment, arguing Mathews cannot present evidence to create an issue of fact on

his claims for intentional infliction of emotional distress or FMLA retaliation.

Legal Standard

Summary judgment is appropriate “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). A properly supported motion for summary

judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty

it was being used for training. UPS management was aware of his strong preference for

Route 34C.

Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of

material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no

genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1260 (11th Cir. 2004). When the moving party has discharged its burden, the

nonmoving party must then designate specific facts showing the existence of

genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or

evidence, the nonmoving party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the nonmoving party’s favor. Shotz v. City of

Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).

Analysis

Intentional Infliction of Emotional Distress (Count I)

To establish a prima facie case for intentional infliction of emotional distress

(“IIED”), a plaintiff must show that “(1) the defendant's conduct was intentional or

reckless; (2) the conduct was outrageous, beyond all bounds of decency, and odious

and utterly intolerable in a civilized community; (3) the conduct caused emotional

distress; and (4) the distress was severe.” Moore v. Pederson, 806 F.3d 1036, 1053

(11th Cir. 2015).

The cause of action for IIED is “sparingly recognized by the Florida

courts.” Vamper v. United Parcel Serv., Inc., 14 F. Supp. 2d 1301, 1306 (S.D. Fla.

1998). “A plaintiff alleging IIED faces an extremely high burden, as Florida courts

have repeatedly found a wide spectrum of behavior insufficiently ‘outrageous.’”

Parkey v. Carter, No. 23-22192-CIV, 2023 WL 7523859, at *3 (S.D. Fla. Nov. 14,

2023). The determination whether the conduct alleged meets this high standard is

an objective one, and the “the subjective response of the person suffering emotional

distress does not control.” Lincoln v. Fla. Gas Transmission Co., 608 F. App’x 721,

722 (11th Cir. 2015) (citing Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 595

(Fla. 2d DCA 2007)). The question whether the conduct is sufficiently outrageous to

make out a claim of IIED is a question of law for the court. Id.

The conduct alleged here, even if proven, does not meet the high standard

required by Florida law. Mathews cites no case in which a court found that conduct

similar to that UPS allegedly engaged in qualified as sufficiently “outrageous”

conduct. In contrast, UPS cites cases in which courts have held that conduct

significantly more severe than that alleged here failed to satisfy the requirements

for IIED. See, e.g., Rubio v. Lopez, 445 F. App’x 170, 175 (11th Cir. 2011) (granting

summary judgment on IIED claim where police officer bound arrestee and left him

on hot asphalt, resulting in second-degree burns to the face and chest).2 Mathews

2 See also Vamper, 14 F. Supp. 2d at 1306-07 (finding no “outrageous” conduct where a UPS

package driver alleged that UPS fabricated a reckless driving charge against him so that

UPS could terminate him, did not pay him bonuses other drivers received, allowed a UPS

manager to call him the “n” word without consequence, and allowed another employee to

physically strike him); Garcia v. Carnival Corp., 838 F. Supp. 2d 1334, 1339 (S.D. Fla.

2012) (finding conduct insufficient where cruise line employees assaulted a passenger and

temporarily prevented her from leaving her room); Blair v. NCL (Bahamas) Ltd., 212 F.

Supp. 3d 1264, 1269-70 (S.D. Fla. 2016) (finding no sufficiently outrageous conduct where

plaintiff's child drowned in a pool advertised as “kid friendly” despite lacking life guards,

lifesaving equipment, and personnel prepared to respond to a drowning event).

has thus failed to present evidence to create a genuine issue of material fact on his

IIED claim. Accordingly, UPS’s motion for summary judgment as to Count I is

granted.

FMLA Retaliation (Count II)

The parties agree that Mathews’ FMLA retaliation claim should be analyzed

under the burden-shifting framework used in Title VII cases pursuant to McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas

framework, to avoid summary judgment, the plaintiff must offer evidence

presenting a prima facia case of retaliation. To establish a prima facie case of

retaliation, the plaintiff must show that (1) he engaged in statutorily protected

conduct, (2) he suffered a materially adverse action, and (3) the adverse action was

causally related to the protected conduct. See Schaaf v. Smithkline Beecham Corp.,

602 F.3d 1236, 1243 (11th Cir. 2010).

A materially adverse action is any “conduct by an employer [that] clearly

might deter a reasonable employee from pursuing a pending charge of

discrimination or making a new one.” Crawford v. Carroll, 529 F.3d 961, 974 (11th

Cir. 2008).3 The required causal connection may be shown by a “close temporal

3 Both parties appear to agree, and the Court assumes, that the applicable standard for

adverse actions in the context of FMLA retaliation claims is the “materially adverse action”

standard used in Title VII retaliation claims, which requires “conduct by an employer [that]

clearly might deter a reasonable employee from pursuing a pending charge of

discrimination or making a new one.” Crawford, 529 F.3d at 974. Although the Eleventh

Circuit has not yet stated that this standard applies to FMLA retaliation claims, it has

applied the standard in unpublished decisions, and district courts in this Circuit have done

so as well. See Pennell v. Judd, No. 8:19-cv-2433-CEH-TGW, 2022 WL 3345630 (M.D. Fla.

2022).

proximity” between the plaintiff’s protected expression and the alleged adverse

action. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). However, “mere

temporal proximity, without more, must be very close.” Johnson v. Miami-Dade

Cty., 948 F.3d 1318, 1327 (11th Cir. 2020). “[I]f there is a substantial delay between

the protected expression and the adverse action in the absence of other evidence

tending to show causation, the complaint of retaliation fails as a matter of law.”

Brisk v. Shoreline Found., Inc., 654 F. App’x 415, 416 (11th Cir. 2016) (internal

quotation omitted).

If the plaintiff successfully establishes a prima facie case for retaliation, the

burden then shifts to the defendant to offer a non-retaliatory reason for its actions.

If it does so, the burden shifts back to the plaintiff to demonstrate that the proffered

reasons are pretextual. See, e.g., Batson v. Salvation Army, 897 F.3d 1320, 1328

(11th Cir. 2018) (ADA retaliation); Wood v. Calhoun Cty. Fla., 626 F. App’x 954, 956

(11th Cir. 2015) (workers’ compensation retaliation); Toliver v. City of Jacksonville,

No. 3:15-cv-1010-J-34JRK, 2017 WL 1196637, at *5 (M.D. Fla. Mar. 31, 2017) (ADA

and FCRA disability discrimination).

Sting Operation

Mathews alleges that in May 2021, UPS allowed law enforcement to place a

tracking device on a package in the truck he was driving, and to engage in a sting

operation to arrest the recipient of the package, all without informing him, in

retaliation for his May 2020 FMLA lawsuit. Even if the sting operation constituted

a “materially adverse action,” it must be recognized that it occurred approximately

one year after the filing of Mathews’ discrimination lawsuit in May 2020 as well as

some seven months after the conclusion of that suit and his return to work in

October 2020.4 Accordingly, it lacks the required temporal proximity to the alleged

protected conduct. See Johnson, 948 F.3d at 1328 (holding period of nearly two

months insufficiently close); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007) (holding three to four months insufficiently close); Wascura v. City

of S. Miami, 257 F.3d 1238, 1248 (11th Cir. 2001) (holding that a “three and one-

half month temporal proximity is insufficient to create a jury issue on causation”).

Mathews therefore fails to make out a prima facie case of retaliation under the

McDonell Douglas framework based on the sting operation.

Warning Letters and Vacation Denial

Mathews argues that warning letters he received in late October 2020,

November 2020, and March 2021 for attendance and other issues, a denied vacation

request in January 2021, and the May 2021 sting operation together constitute a

“series” or an “unbroken chain” of adverse employment actions that began shortly

after his reinstatement in October 2020. This series of actions, he argues,

establishes the necessary causal connection.

The Court disagrees. First, even the earliest of these events occurred

approximately five months after Mathews filed his prior lawsuit, which is too

removed in time to support an inference of causation. Second, Mathews had

4 Where, as in this case, the alleged protected activity is the filing of a lawsuit, “the relevant

date in determining temporal proximity . . . is the filing of the lawsuit, not the entry of

dispositive orders in the case by the district court.” See Simpson v. Ala. Dep’t of Human

Res., 501 F. App’x 951, 953 (11th Cir. 2012).

already received numerous warning letters and “intent to discharge” letters even

prior to his filing the prior suit in May 2020. This undercuts any inference of

causation that otherwise might arise from the warning letters Mathews received

after his reinstatement.

Finally, Mathews has presented no evidence that the warning letters caused

him any harm, such as impacting his pay or job status, or that in the circumstances

of this case they would deter a reasonable employee from engaging in protected

conduct. As such, they do not constitute materially adverse actions, and cannot

support Mathews’ retaliation claim. See Baroudi v. Sec’y, U.S. Dep’t of Vet. Aff., 616

F. App’x 899, 903 (11th Cir. 2015) (holding that a causal relationship may be shown

by a series of adverse actions only where the “intervening retaliatory acts” are

material or substantial); Barnett v. Athens Reg’l Med. Ctr. Inc., 550 F. App’x 711,

715 (11th Cir. 2013) (holding that reprimands and negative evaluations that did not

affect the plaintiff’s salary or job status were insufficient); Fratarcangeli v. UPS,

No. 8:04-cv-2812-T-TGW, 2008 WL 821946, at *10-11 (M.D. Fla. Mar. 26, 2008)

(holding that a warning letter with no effect on the plaintiff’s employment was a

“trivial harm” with “no materially adverse effect on the plaintiff.”).

The same is true for Mathews’ argument that UPS denied him his accrued

vacation time and optional time off even though UPS was supposed to reinstate him

as if had missed no time. See Barnett, 550 F. App’x at 715 (vacation denials were

not materially adverse employment actions because they were not a “harm . . . that

would have deterred a reasonable employee from making or supporting a charge of

discrimination.”).

For the foregoing reasons, Mathews has failed to present a prima facie case of

retaliation. Accordingly, UPS’s motion for summary judgment as to Count II is

granted.

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED:

(1) “Defendant United Parcel Service, Inc.’s Motion for Summary Judgment”

(Doc. 20) is hereby GRANTED.

(2) The Clerk is DIRECTED to enter final judgment in favor of Defendant

United Parcel Service, Inc., and against Plaintiff Adrian Mathews.

(3) Following the entry of judgment, the Clerk is directed to terminate any

pending motions and deadlines, and thereafter close this case.

DONE and ORDERED in Chambers, in Tampa, Florida, this 23d day of

February, 2024.

FY 2A

Yh

‘TOMBARBER OS™

UNITED STATES DISTRICT JUDGE

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