# Bell v. UPS Ground Freight, Inc.

> District Court, M.D. Tennessee · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10436007

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10436007

## How later opinions describe it (automated extraction)

- explaining that the burden a plaintiff carries to establish a prima facie case is “not onerous”
- finding temporal proximity plus evidence that white employees were not disciplined for behavior plaintiff was disciplined for sufficient to establish causation

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JUSTIN BELL, 16-cv-2467

Plaintiff, HON. TERRENCE G. BERG

v.

UNITED PARCEL SERVICE, ORDER DENYING IN PART
INC., AND GRANTING IN PART
DEFENDANT’S MOTION FOR
Defendant. SUMMARY JUDGMENT,
DENYING DEFENDANT’S
MOTION TO STRIKE
Plaintiff Justin Bell claims he was discriminated against on the
basis of race by his employer, United Parcel Service, Inc., in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, the Tennessee
Human Rights Act, Tenn. Code Ann. § 4-21-401 et seq., and 42 U.S.C.
§ 1981. Specifically, he alleges that he was passed over for several
management-level promotions in favor of less-qualified white employees
and disciplined more harshly than his white peers. He further asserts
that he was retaliated against for lodging complaints with UPS and his
union and for filing a formal charge of discrimination with the Equal
Employment Opportunity Commission, in violation of Title VII, the
Tennessee Human Rights Act, and § 1981. For the reasons set forth in
detail below, Defendant UPS’s motion for summary judgment will be

granted in part and denied in part, and its motion to strike denied.
BACKGROUND
Plaintiff Justin Bell began working for United Parcel Service, Inc.
(“UPS”), Defendant in this case, in 2010. He began as a Part-Time Loader
at the company’s Whites Creek Center, in Nashville, Tennessee and was
promoted to Part-Time Preload Supervisor a few months later. ECF No.
60-1, PageID.521–22 (Plaintiff’s Dep.). Soon thereafter, at the
encouragement of his manager, Race Cholewinski, Plaintiff applied for

and was given a position as a Package Driver in June 2013, which came
with a significant pay raise. ECF No. 60-1, PageID.522, 525; ECF No. 60-
3, PageID.605 (Mike Lipscomb Dep.). In this role Plaintiff’s immediate
supervisor was Mike Lipscomb. ECF No. 60-1, PageID.522.
During much of the relevant timeframe, UPS used the Management
Assessment and Promotion Process (“MAPP”) to track minimum skills
requirements for full-time management positions. ECF No. 53,
PageID.304 (Def.’s Statement of Undisputed Facts). To qualify for
promotion under MAPP, interested employees had to: (1) submit a letter

of interest; (2) pass a supervisor evaluation; (3) pass an online
examination administered and scored by an outside testing agency; (4)
pass a written exam; and (5) interview with and receive approval from
management personnel. Id.; ECF No. 59, PageID.464 (Pl.’s Resp. to
Statement of Undisputed Facts). Plaintiff had completed these steps and
was accordingly MAPP-qualified. See ECF No. 59, PageID.465. But

becoming MAPP-qualified was “merely the minimum requirement” to
apply for a management-level position. ECF No. 52, PageID.188 (Def.’s
Response Br.).
In January 2015, UPS transitioned from the MAPP system to the
Management Career Opportunity (“MCO”) system to facilitate
management-level hiring. ECF No. 59, PageID.465. Employees
interested in these positions now had to pass a Management Readiness
Evaluation (“MRE”) to be considered for promotion after January 1, 2015.

ECF No. 59, PageID.465–66. Plaintiff claims that he was disqualified
from MAPP in December 2014 and was accordingly not grandfathered
into the new MCO system. See ECF No. 41, PageID.140 (Second Am.
Compl.). Although Plaintiff contends this disqualification was
intentional, he acknowledges that he brought the issue to Cholewinski
and Lipscomb’s attention and that after taking the MRE sometime in
January 2015 he became eligible for promotion again by January 17,
2015. ECF No. 60-1, PageID.553; ECF No. 59, PageID.466.
Whenever a UPS employee applied for a full-time management

position, an email would be sent to the employee’s manager requesting
approval for the employee to apply. ECF No. 60-2, PageID.579 (Race
Cholewinski Dep.). Cholewinski, Plaintiff’s manager, testified that he
granted every single such application request submitted by Plaintiff
because Plaintiff had a college degree. ECF No. 60-2, PageID.579; ECF
No. 60-3, PageID.603. Otherwise, Cholewinski generally provided no

other input about Plaintiff’s suitability for positions he applied to. ECF
No. 60-2, PageID.579. When Plaintiff applied for a Finance Manager
position, the Finance Division Manager asked Cholewinksi what kind of
employee Plaintiff was. ECF No. 60-2, PageID.579. Cholewinski testified
that he told him Plaintiff was “a good employee.” ECF No. 60-2
PageID.579. Cholewinski further testified that he had previously set up
a meeting between Gary Reed, the Division Manager to whom
Cholewinski reported, “about [Plaintiff’s] interest in a position that

[Plaintiff] had applied for in the division.” ECF No. 60-2 PageID.581, 583.
In total, Plaintiff applied for 34 management-level positions at UPS
between January 3, 2015 and September 16, 2017. ECF No. 59,
PageID.467–68. He was interviewed for Market Analyst, Customer
Profit, and Financial Specialist positions but ultimately did not receive
those promotions. ECF No. 60-1, PageID.553–54. Plaintiff acknowledges
he was not qualified for some of the jobs he applied for—specifically, the
positions with an engineering component. ECF No. 60-1, PageID.554.
The record makes clear that the working relationship between

Plaintiff and Cholewinski deteriorated sharply over time. Plaintiff
testified during his deposition that Cholewinski, as his manager, had
“power and control” to promote him to a management role but repeatedly
chose not to do so because of Plaintiff’s race. UPS, however, disputes that
Cholewinski had authority to promote Plaintiff to any of the
management-level positions he pursued. ECF No. 59, PageID.469; ECF

No. 60-1, PageID.562. Instead, hiring decisions were made by Human
Resources and by the Hiring Manager responsible for the available
position. See ECF No. 54-4, PageID.362–63 (Gary Reed Dep.); ECF No.
60-2, PageID.578; ECF No. 54-6, PageID.478–88 (Kathy Ferguson Dep.).
Adding to the tension between Plaintiff and Cholewinski was the fact
that Plaintiff incorrectly believed that within six months of his becoming
a Package Driver, Cholewinski would promote him to the management-
level position of Full-Time On-Road Supervisor. ECF No. 60-1,

PageID.522. UPS asserts Plaintiff was mistaken that being qualified to
apply for promotion under the MAPP system meant his promotion was
essentially guaranteed. And Lipscomb, Plaintiff’s immediate supervisor,
testified that neither Plaintiff nor any other Package Driver would have
been ready for promotion to On-Road Supervisor that quickly. ECF No.
60-1, PageID.522–24; ECF No. 60-3, PageID.614.
According to Lipscomb, Plaintiff “started off doing really well in
package [driving] . . . . He seemed pretty happy in the beginning.” ECF
No. 60-3, PageID.604. But things began to deteriorate, when Plaintiff lost

his original package route to another driver with “probably 20 years
more” experience. ECF No. 60-3, PageID.604. The amount of time it took
Plaintiff to complete his delivery route began “increasing as time went
on.” ECF No. 60-3, PageID.612. And Cholewinski asserts that Plaintiff
began “failing to follow the methods, failing to follow proper procedures,
failing to follow proper instructions, previous instructions given” and

“would use [allegations of] harassment . . . to try to stop [Cholewinski]
from holding him accountable of doing his job.” ECF No. 60-2,
PageID.584–85. Lipscomb testified that Plaintiff “had had over 20
accidents” as a Package Driver. ECF No. 60-3, PageID.603. He considered
this number unusually high. But see ECF No. 60-3, PageID.609
(explaining that under UPS policy, “an accident was anything that did
damage to property or your vehicle” and that Plaintiff may have
overreported such incidents).

In January 2015, Plaintiff approached Winona Marks, Human
Resources Manager at his facility, to discuss his concerns that he was
being harassed and discriminated against by Cholewinski because of his
race. ECF No. 60-5, PageID.635 (Winona Marks Dep.). Plaintiff further
expressed to Marks that he was worried filing union grievances about the
alleged discrimination would hurt his chances at promotion. Id. at
PageID.637. In addition, he called the UPS hotline number to complain
of discrimination in 2015 and harassment in 2016 and 2017. See ECF No.
58 (Plaintiff’s Decl.). Despite the concerns he had expressed to Marks, he

also later filed a number of grievances with his union on August 14 and
19, 2015 alleging perceived inequities in his treatment as well as
harassment by Cholewinski. See ECF No. 54-2, PageID.313–21.
Eventually, on August 21, 2015, Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”). ECF No. 60-13, PageID.758 (EEOC Charge of Discrimination).

He alleged that Cholewinski had intentionally disqualified him from
UPS’s MAPP process “to make it more difficult for [him] to apply for the
management positions.” ECF No. 60-13, PageID.758. He further asserted
that several white men with less seniority and experience than him were
hired for full-time management positions while he had been passed over.
ECF No. 60-13, PageID.758. It is undisputed that Plaintiff at this
juncture has presented no evidence of these employees’ qualifications or
disciplinary records. ECF No. 59, PageID.472. The EEOC charge also

referenced the union grievances Plaintiff had raised against Cholewinski
for “favoritism, retaliation, and his nitpicking of [Plaintiff’s] work.” ECF
No. 60-13, PageID.758; see ECF No. 60-1, PageID.572; ECF No. 60-13,
PageID.760, 762, 764–65.
Plaintiff alleges that after filing the union grievances and formal
EEOC complaint he was subjected to retaliatory discipline by
Cholewinski and others. Indeed, on several days in mid-to-late August
and September 2015, after Plaintiff had lodged internal and union
complaints and filed his EEOC charge, Cholewinski did use UPS’s

progressive-discipline system to file warnings about perceived issues
with Plaintiff’s performance. ECF No. 60-2, PageID.585. Cholewinski
sent Plaintiff six different warning letters on September 18, 2015 about
his “continued failure to follow proper procedures and previous
instruction,” and “failure to follow [Cholewinski’s] instructions.” ECF No.
54-2, PageID.328–34. Plaintiff contends these letters were issued in

retaliation for his filing of grievances and that Cholewinski disciplined
him more harshly than his white peers. ECF No. 60-1, PageID.532–33,
549; ECF No. 60-2, PageID.596.
For example, Plaintiff asserts that although white UPS employees
would wear “Bluetooth” wireless headsets in the workplace while on the
job without any problem, he immediately received a written warning
when he wore his Bluetooth device at the UPS facility. ECF No. 60-1,
PageID.572. According to Cholewinski, UPS drivers are not supposed to

have Bluetooth devices on at all during their shift because they create an
“in-cabin distraction.” ECF No. 60-2, PageID.591. But Moore, the union
representative for UPS employees, testified that UPS employees were
permitted to wear Bluetooth headsets—as Plaintiff says he was—just not
to use them while driving. ECF No. 60-7, PageID.683 (Rick Moore Dep.).
Although Cholewinski asserts Plaintiff was not the only employee he
chastised for wearing a Bluetooth device, and that he had also censured
the performance of several white employees for other reasons, Moore
testified that in his opinion the violations Cholewinski wrote Plaintiff up

for were minor and not the kind of serious violations that typically
resulted in formal disciplinary write-ups. ECF No. 60-7, PageID.682; see
ECF No. 60-2, PageID.594. Moore believed the write-ups “all stemmed
from whatever rift [Plaintiff and Cholewinski] had,” ECF No. 60-7,
PageID.682, that there was “some tension between the two” and “[a] lot
of egos.” ECF No. 60-7, PageID.682. Testifying based on his

contemporaneous notes, Moore explained that he had “asked
[Cholewinski] to back off” because he “felt . . . that he was being a little
bit too hard on [Plaintiff] or making the situation worse.” ECF No. 60-7,
PageID.683.
Plaintiff also asserts that Chris Swafford, his supervisor during
2016, “retaliated [against] and intimidated” him because of his race, at
the instruction of Cholewinski. ECF No. 60-1, PageID.537–38. Plaintiff
testified that every day Swafford followed him around, constantly

seeking to verify Plaintiff’s whereabouts “because of the color of [his]
skin.” ECF No. 60-1, PageID.536–37. Swafford also acknowledged
discussing guns and media reports about white police officers shooting
black men with Plaintiff while at work but asserts Plaintiff was
attempting to bring up these controversial topics to goad him into making
a statement he could report to UPS management as being racist. See ECF
No. 60-6, PageID.664–65. Plaintiff submitted letters to UPS explaining
that Swafford made him feel “intimidated and threatened for my life”
and, on July 13, 2017, he sent an email to UPS Human Resources, using

the name “David Clark” in which he stated that he was in fear for his life
and that the allegedly hostile work environment had driven him to the
point of entertaining suicidal ideations. ECF No. 60-13, PageID.770.1 He

also filed union grievances about Swafford’s allegedly harassing behavior
throughout 2017 and into 2018. See ECF No. 59-1, PageID.496, 503, 507.
According to Plaintiff, Swafford’s behavior towards him was carried out
at the instruction of Cholewinski. ECF No. 60-1, PageID.540.
Swafford testified during his deposition that he was unaware of any
allegations of discrimination Plaintiff had raised with UPS or the EEOC.
See ECF No. 59, PageID.475. He explained that he felt a need to
continuously monitor Plaintiff because he failed to follow instructions

and to complete his assigned tasks and acknowledged he had issued
Plaintiff disciplinary write-ups for failing to follow clock-in procedures.
ECF No. 60-6, PageID.654–56. Swafford was involved in issuing Plaintiff
numerous additional warning notices in 2017 about his “continued
unreliability and continued unacceptable attendance record” and “failure
to follow proper procedures and previous instruction” as well as notices
of UPS’s intent to discharge Plaintiff from the company. See, e.g., ECF
No. 59-1, PageID.490 (Feb. 10, 2017 Warning Notice); ECF No. 59-1,
PageID.491 (Feb. 14, 2017 Warning Notice); ECF No. 59-1, PageID.492

(Feb. 16, 2017 Intent to Discharge); ECF No. 59-1, PageID.494 (Mar. 1,
2017 Intent to Discharge); ECF No. 59-1, PageID.495 (Mar. 1, 2017

1 Plaintiff admitted during his deposition that he sent the email from an account he
controlled under the name of David Clark, but that he did not intend to obscure his
identity and planned for UPS to view the email as his own submission. See ECF No.
60-1, PageID.565.
Warning Notice); ECF No. 59-1, PageID.497 (June 20, 2017 Intent to

Discharge); ECF No. 59-1, PageID.498 (June 20, 2017 Warning Notice);
ECF No. 59-1, PageID.499 (Jul. 10, 2017 Intent to Discharge); ECF No.
59-1, PageID.500 (Jul. 11, 2071 Warning Notice). Plaintiff asserts that at
least some of these letters were issued in retaliation for complaints he
had filed against UPS. ECF No. 60-1, PageID.571. Shawn Campbell, a
coworker of Plaintiff’s at the Whites Creek UPS facility, also testified
that Swafford would let other employees do things that Plaintiff wasn’t
permitted to do, for example, leaving work early but still getting paid in

full for the shift, and taking longer lunch breaks. ECF No. 60-8,
PageID.688. Campbell also corroborated Plaintiff’s contentions that
Swafford retaliated against UPS employees who filed grievances. Id.
DISCUSSION
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.” See Fed. R. Civ. P. 56(a). A fact is
material only if it might affect the outcome of the case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). On a motion for summary judgment, the Court must view the
evidence and any reasonable inferences drawn from the evidence in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted);
Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001).
The moving party has the initial burden of demonstrating an

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the moving party carries this burden, the party
opposing the motion “must come forward with specific facts showing that
there is a genuine issue for trial.” Matsushita, 475 U.S. at 587. The trial
court is not required to “search the entire record to establish that it is
bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479–80 (6th Cir. 1989). Rather, the “nonmoving party
has an affirmative duty to direct the court’s attention to those specific

portions of the record upon which it seeks to rely to create a genuine issue
of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). The
Court must then determine whether the evidence presents a sufficient
factual disagreement to require submission of the challenged claims to
the trier of fact or whether the moving party must prevail as a matter of
law. See Anderson, 477 U.S. at 252.
I. Title VII of the Civil Rights Act of 1964
A plaintiff generally must file a discrimination claim with the Equal
Employment Opportunity Commission (“EEOC”) to bring a Title VII

lawsuit. Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001). The
statute of limitations for an EEOC charge begins to run from the date of
“the alleged unlawful employment practice[.]” 42 U.S.C. § 20003–5(e)(1).
Because Tennessee has enacted its own laws against employment
discrimination, a plaintiff in the state has 300 days from the date of the
alleged discrimination to file his EEOC charge. Alexander v. Local 496,

Laborers’ Int’l Union of N. Am., 177 F.3d 394, 407 (6th Cir. 1999); Tartt
v. City of Clarksville, 149 F. App’x 456, 460 (6th Cir. 2005). The plaintiff
must then obtain a right-to-sue letter from the EEOC and file a Title VII
law suit within 90 days of receiving that letter. Page v. Metro. Sewer Dist.
of Louisville and Jefferson City., 84 F. App’x 583, 584–85 (citing 42 U.S.C.
§ 20003–5(e), (f)).
Here, Plaintiff filed his charge of discrimination with the EEOC on
August 21, 2015, was issued a right-to-sue letter by the agency on May

9, 2016 and filed his lawsuit on July 28, 2016. ECF No. 54-15. Any alleged
discrimination or retaliation that occurred within or after the 300 days
preceding Plaintiff’s filing of the EEOC charge therefore falls within Title
VII’s statute of limitations. But any conduct that occurred before the 300
days (that is, before October 25, 2014) cannot support a timely Title VII
claim. Accordingly, to the extent Plaintiff claims Cholewinski and
Lipscomb discriminated against him when they encouraged him in 2013
to apply for the Package Driver position—a position Plaintiff was hired
for but contends foreclosed certain promotion opportunities—that

conduct cannot form the basis for a timely Title VII claim. See ECF No.
60-1, PageID.522, 525.
A plaintiff in a race discrimination action generally “has the burden
of proving by a preponderance of the evidence a prima facie case.” Texas
Dep’t of Comm. Aff. v. Burdine, 450 U.S. 248, 252–53 (1981). Once the
plaintiff presents a prima facie case, the burden shifts to the defendant

to articulate a legitimate, non-discriminatory reason for the adverse
employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802–03 (1973). If the defendant meets this burden, the plaintiff then
must show that the defendant’s stated reason is mere pretext for
discrimination. Id.
A. Failure to promote
To establish a prima facie case of race discrimination based on a
theory of failure to promote, a plaintiff must show that: “(1) he is a

member of a protected class; (2) he applied for and was qualified for a
promotion; (3) he was considered for and denied the promotion; and (4)
other employees of similar qualifications who were not members of the
protected class received promotions at the time the plaintiff’s request for
promotion was denied.” Nguyen v. City of Cleveland, 229 F.3d 559, 562
(6th Cir. 2000) (citing Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079,
1095 (6th Cir. 1996); Brown v. Tennessee, 693 F.2d 600, 603 (6th Cir.
1982)). Alternatively, a plaintiff can make his prima facie case by
presenting direct evidence of discriminatory intent. Nguyen, 229 F.3d at

563. The first and third elements of Plaintiff’s prima face case are not
disputed. The parties agree that Plaintiff, an African-American, is a
member of protected class and that he was considered for and was denied
several promotions. See ECF No. 52, PageID.186 (Def.’s Response Br.).
But UPS contends Plaintiff cannot fully establish the second and fourth
elements: that he was qualified for each of the management-level

positions he applied for; and that Plaintiff was passed over for promotion
in favor of other employees with similar qualifications who were not
members of the protected class. See id. As to the non-engineer positions,
the Court finds Plaintiff has met his prima facie burden of showing he
was qualified. But Plaintiff has not shown that other similarly qualified
employees who were not members of the protected class received
promotions at the time his requests for promotion were denied.
To establish that he was qualified for the management-level

positions he applied to, Plaintiff need only show that he fulfilled UPS’s
“objective qualifications” for those jobs. Upshaw v. Ford Motor Co., 576
F.3d 576, 585 (6th Cir. 2009) (internal quotations omitted) (citing Wexler
v. White’s Fine Furniture, 317 F.3d 564, 575–76 (6th Cir. 2003) (en banc)
(holding that assessment of qualifications at the prima facie phase
focuses only on objective qualifications). Here, it is undisputed that
Plaintiff passed the written examination and fulfilled the other
requirements necessary to become MAPP and MRE-qualified. ECF No.
59, PageID.465–66. He was therefore “eligible to apply for fulltime

management-level positions.” Id. Additionally, Plaintiff’s manager
testified that, for each position he applied to, he essentially permitted
Plaintiff to apply because he had a college degree. ECF No. 60-2,
PageID.579; ECF No. 60-3, PageID.603. Implicit in this testimony is
Cholewinski’s belief that Plaintiff met the objective qualifications to
apply for management-level jobs because he had a degree. Further, by

comparing his qualifications to those of candidates eventually hired to fill
the non-engineering positions he applied to, Plaintiff has presented
additional evidence that he was qualified for those positions. For
example, Plaintiff has a college degree and it appears UPS hired two
recent college graduates who Plaintiff asserts had less seniority to fill the
Finance Specialist positions to which he had applied. See ECF No. 54-13,
PageID.415. From this the Court infers that Plaintiff met the objective
qualifications for that position. The Court notes that Plaintiff has

conceded he was not qualified for the engineering positions he applied to,
which includes the IE Supervisor, IE Hub Planning Supervisor, Plant
Engineering Supervisor, and Processing Engineer positions. Viewing the
facts in the light most favorable to Plaintiff, the Court finds that Plaintiff
has shown he met the minimum objective qualifications for the other
applied-for positions. ECF No. 59, PageID.569; see Anthony v. BTR Auto.
Sealing Sys., Inc., 339 F.3d 506, 516 (6th Cir. 2003); see also See White v.
Baxter Healthcare Corp., 533 F.3d 381, 391 (6th Cir. 2008) (explaining
that the burden a plaintiff carries to establish a prima facie case is “not

onerous”).
That showing is not sufficient to carry Plaintiff’s burden, however.
To meet his prima facie case, Plaintiff must also show by a preponderance
of the evidence that other employees of similar qualifications who were
not members of his protected class received promotions while his
requests for promotion were denied. See Provenzano v. LCI Holdings,

Inc., 663 F.3d 806, 812–13 (6th Cir. 2011). To assess this fourth element
of Plaintiff’s prima facie case, the Court must “conduct an independent
review of the relative qualifications of the plaintiff and the person
selected for the position based on the evidence presented.” White v.
Columbus Metro. Hous. Auth., 429 F.3d 232, 243 (6th Cir. 2005). Plaintiff
must demonstrate that the employees who were hired instead of him
were “similarly situated in all respects.” Russsell v. Drabik, 24 F. App’x
408, 412 (6th Cir. 2001) (citing Slotts v. Memphis Fire Dep’t, 858 F.2d 289

(6th Cir. 1988)). The Sixth Circuit has explained that a plaintiff in this
context must show that the employees with allegedly similar
qualifications were “subject to the same standards and . . . engaged in the
same conduct without such differentiating or mitigating circumstances
that would distinguish their conduct or their employer’s treatment of
them for it.” Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992).
For several of the management positions Plaintiff applied to, UPS
has produced evidence that the individual hired or promoted instead of
him either was a member of the same protected class or was more

qualified. For example, Amiya Simmons, the UPS Materials Distribution
Center Director, signed a sworn declaration explaining that Plaintiff was
not selected for the Materials Distribution Center Pick Specialist or
Warehouse Supervisor positions “because he was not the most qualified
candidate.” ECF No. 54-7, PageID.381. Specifically, Simmons expressed
that in his opinion Plaintiff “lacked the analytical and leadership skills

necessary to fill” either of these positions. ECF No. 54-7, PageID.381.
Instead of Plaintiff, Simmons hired an African-American woman with
leadership and finance experience who had previously served as a
supervisor at another UPS facility for the Warehouse Supervisor
position, and a white woman with “excellent analytical skills” and
experience as a Data Supervisor to fill the MDC Pick Specialist position.
ECF No. 54-7, PageID.381–82, 389. Similarly, UPS’s Mid-South District
Human Resources Operation Manager averred that Plaintiff “was not the

most qualified candidate” for the Employee Services Specialist position.
ECF No. 54-8, PageID.394–95. That job instead went to an African-
American lateral candidate who had 36 years of experience in various
UPS departments. ECF No. 54-8, PageID.394–95. Further, Connor
Huber, a white man hired to fill the Finance Specialist position, had work
experience in finance and sales, which Plaintiff did not. UPS has also
produced additional affidavits by individuals in charge hiring for the
Solutions Engagement Supervisor, Finance Specialist, Finance Analyst
positions illustrating that the individuals hired for these positions were

more qualified than Plaintiff, or that those positions had previously been
filled by individuals who are members of Plaintiff’s protected class. ECF
No. 54-9 (Dan Barr Decl.); ECF No. 54-10 (Steve Boulton Decl.); ECF No.
54-11 (Scott Wade Decl.); ECF No. 54-12 (Woodretta Allen Decl.).
In response to UPS’s motion for summary judgment, Plaintiff has

failed to provide any affirmative evidence that he has qualifications
similar to those of each of the individuals who was promoted over him, or
that his work performance and disciplinary history were comparable.
Indeed, in Plaintiff’s response brief he spends only half a page responding
to UPS’s argument that he cannot prove his prima facie case for the
failure-to-promote claim and appears largely to abandon that claim. ECF
No. 58, PageID.461. The response brief addresses only six of the
promotion positions and, even for those six the Court finds that Plaintiff

has failed to adduce evidence that he was passed over in favor of other
employees of similar qualifications who were not members of the
protected class. Nguyen v. City of Cleveland, 229 F.3d 559, 562 (6th Cir.
2000). Plaintiff has provided no evidence of the other individuals’
disciplinary or employment history and has otherwise failed to produce
evidence that they were in all respects similarly situated to him. See ECF
No. 58, PageID.444. Because the undisputed material facts demonstrate
that Plaintiff cannot meet a required element of his prima facie case,
summary judgment in favor of UPS must be entered on his failure-to-

promote claim.
B. Retaliation
To establish a prima facie case of retaliation, a plaintiff must show
that: “(1) he engaged in activity protected by Title VII; (2) the exercise of
his civil rights was known to the defendant; (3) thereafter, the defendant
took an employment action adverse to the plaintiff; and (4) there was a

causal connection between the protected activity and the adverse
employment action.” Nguyen, 229 F.3d at 563. To establish the causal-
connection prong, a plaintiff must produce evidence “sufficient to raise
the inference that her protected activity was the likely reason for the
adverse action.” EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th
Cir. 1997) (quoting Zanders v. Nat’l R.R. Passenger Corp., 898 F.2d 1127,
1135 (6th Cir. 1990)). Evidence that defendant treated the plaintiff
differently from similarly situated employees or that the adverse

employment action quickly followed the plaintiff’s exercise of his
protected rights is relevant to assessing whether a causal connection
exists. Nguyen, 229 F.3d at 563. The Sixth Circuit instructs that
establishing a prima facie case of retaliation “is a burden easily met.”
Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir. 1987).
If a plaintiff succeeds in making out the elements of a prima facie
case of retaliation, the burden of production of evidence shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its
actions. Laster v. City of Kalamazoo, 746 F.3d 714, 730 (6th Cir. 2014). If

the employer satisfies that burden of production, the burden then shifts
back to the plaintiff to show that the employer’s stated reasons for the
adverse action was not the true reason for the employment decision.
Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir. 2007). As with a Title VII
discrimination claim, a plaintiff asserting retaliation can meet his
burden either by introducing direct evidence of retaliation or by

presenting circumstantial evidence that supports an inference of
retaliation. Laster, 746 F.3d at 730 (citing Imwalle, 746 F.3d at 730).
Excepting the fourth element of Plaintiff’s prima facie claim for
Title VII retaliation, the parties agree that Plaintiff has established the
other elements of his prima facie case. It is undisputed that filing union
grievances, internal employer complaints and a formal charge of
discrimination with the EEOC are all activities protected by Title VII.
See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000). And

UPS acknowledges plaintiff suffered adverse employment actions. But it
challenges Plaintiff’s ability to show a causal connection between the
protected activity and the adverse employment action.
The Court finds that Plaintiff has presented evidence of a causal
connection between his filing of internal and union complaints, as well as
the formal EEOC charge, and the adverse employment actions taken
against him sufficient to state a prima facie case of retaliation. Although
temporal proximity, standing alone, is generally not enough to establish
a causal connection, “a temporal connection coupled with other indicia of

retaliatory conduct may be sufficient to support a finding of a causal
connection.” Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 737
(6th Cir. 2006). The Sixth Circuit has found that inferring causation from
temporal proximity is appropriate where the adverse action occurred
three months after the protected activity. See Singfield v. Akron Metro.
Hous. Auth., 389 F.3d 555, 563 (6th Cir. 2004). Here, Plaintiff has

presented evidence that he suffered adverse employment actions shortly
after filing grievances with his union, and the EEOC complaint. He filed
grievances on August 14 and 19, 2015 alleging perceived inequities in his
treatment, and harassment by Cholewinski. See ECF No. 54-2,
PageID.313–21. Shortly thereafter, on August 21, 2015, Plaintiff filed his
discrimination complaint with the EEOC. ECF No. 60-13, PageID.758.
Less than one month later, on September 18, 2015, Cholewinski issued
Plaintiff six warning letters about his perceived failures to follow

instructions and mandated procedures. ECF No. 54-2, PageID.328–34.
Additionally, Moore, the union representative for UPS employees, echoed
Plaintiff’s assertions that Cholewinski disciplined him more frequently
and harshly than other employees. According to Moore, the violations
Cholewinski wrote Plaintiff up for were comparatively minor and not of
the magnitude that would typically warrant formal disciplinary action.
ECF No. 60-7, PageID.682; ECF No. 60-2, PageID.594. Moore felt it
appropriate to ask Cholewinski to “back off” because he was being “a little
bit too hard on [Plaintiff.]” ECF No. 60-7, PageID.683.

Chris Swafford, Plaintiff’s supervisor during 2016, also issued him
numerous warning letters and notices of intent to discharge Plaintiff
from his job at UPS. Some of those notices were sent just days after
Plaintiff filed union grievances about Swafford and after Plaintiff sent
emails to UPS Human Resources claiming Swafford made him feel
“intimidated and threatened for [his] life.” ECF No. 60-13, PageID.770.

For example, Plaintiff sent an email to UPS on July 13, 2017 complaining
that he felt intimidated and threatened by Swafford. ECF No. 60-13,
PageID.770. Just four days later, on July 17, 2017, Plaintiff was issued a
warning for engaging in unprofessional conduct. See ECF No. 59-1,
PageID.503. Additionally, the testimony of Campbell, who worked with
Plaintiff at the Whites Creek facility, supports Plaintiff’s assertion that
Swafford disciplined Plaintiff more harshly than other employees, and
that Swafford in general retaliated against employees who complained

about him to UPS or their union. See ECF No. 60-8, PageID.688. Courts
in this district have found similar evidence sufficient to establish the
causation prong of a prima facie case for retaliation. See, e.g., Norman v.
Rolling Hills Hosp., LLC, 820 F. Supp. 2d 814, 824–25 (M.D. Tenn. 2011)
(finding temporal proximity plus evidence that white employees were not
disciplined for behavior plaintiff was disciplined for sufficient to establish
causation).
UPS in turn has come forth with evidence of legitimate,
nondiscriminatory reasons for its actions. Cholewinski and Lipscomb

both testified that Plaintiff’s performance fell below expected standards.
See ECF No. 60-3, PageID.604, 612 (asserting that the amount of time it
took Plaintiff to complete his delivery route began “increasing as time
went on”); ECF No. 60-2, PageID.584–85 (stating that Plaintiff began
“failing to follow the methods, failing to follow proper procedures, failing
to follow proper instructions, previous instructions given”); ECF No. 60-

3, PageID.603 (explaining that Plaintiff “had had over 20 accidents” as a
Package Driver). While these proffered reasons offer legitimate non-
discriminatory explanations for the seemingly harsh disciplinary action
Plaintiff experienced, the record also contains evidence from which a jury
could conclude that the stated reasons were mere pretext for unlawful
retaliation. That evidence includes the comparatively harsh disciplinary
action to which Plaintiff appears to have been subjected, and testimony
that other white employees were not disciplined for engaging in similar

behavior. Relying upon such evidence, a reasonable jury could find that
UPS’s articulated non-discriminatory reasons are not the real reasons for
the adverse actions taken against Plaintiff. The question of retaliation
will therefore remain for trial. See Bryant v. Rolling Hills Hosp., 836 F.
Supp. 2d 591, 616 (M.D. Tenn. 2011) (citing Imwalle, 515 F.3d at 551).
C. Retaliatory hostile work environment
For reasons similar to those discussed in the previous section on
Plaintiff’s retaliation claim, the Court finds that Plaintiff has also
established a prima facie case that he was subjected to a retaliatory

hostile work environment under Title VII, the THRA, and § 1981. The
elements of a prima facie case for retaliation and a retaliatory hostile
work environment claims are largely the same except that in the
retaliatory hostile work environment context instead of showing that the
defendant took an adverse employment action against him, the plaintiff
must show that he “was subjected to severe or pervasive retaliatory

harassment by a supervisor.” See Morris v. Oldham Cty. Fiscal Court,
201 F.3d 784, 792 (6th Cir. 2000). Similarly, the plaintiff in a retaliatory
hostile work environment case must show a causal connection between
his engagement in an activity protected by Title VII, and the harassment
he was subjected to. See Cleveland v. S. Disposal Waste Connections. 491
F. App’x 698, 707, 2012 WL 3241561 (6th Cir. Aug. 9, 2012). As with other
Title VII claims, once the plaintiff establishes a prima facie case, the
burden of production of evidence shifts to the employer to articulate a

legitimate, nondiscriminatory reasons for its actions. Wiley v. Slater, 20
F. App’x 404, 406 (6th Cir. 2001). The plaintiff must then show that the
reason proffered by the employer was not the true reason for the
employer’s actions. Id.
The Court must consider the totality of circumstances to determine
whether the alleged conduct by the employer was sufficiently severe or
pervasive to constitute a hostile work environment. Williams v. General
Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999). This inquiry involves
considering the frequency and severity of the alleged conduct, whether it

is physically threatening, and if it unreasonably interferes with an
employee’s work performance. See Harris v. Forklift Sys., Inc., 510 U.S.
17 (1993). The severity and pervasiveness portions of this inquiry have
both objective and subjective components. Id. at 21–22. Here, there is
ample testimony by Plaintiff that he felt intimidated and harassed at
work—largely because of the conduct of Cholewinski and Swafford. See,

e.g., ECF No. 60-13, PageID.770 (email from Plaintiff to UPS Human
Resources stating that he feared for his life). The record also contains
evidence of a large number of written disciplinary warnings Plaintiff was
issued, as well as testimony that Plaintiff was monitored and disciplined
in a manner more exacting and harsh than other employees. See supra
at 7–11.
UPS has presented evidence in support of legitimate, non-
retaliatory reasons for its actions towards Plaintiff—namely its position

that Plaintiff’s job performance was deficient. See ECF No. 60-2,
PageID.584–85; ECF No. 60-3, PageID.603, 609. But Plaintiff has also
adduced evidence from which a reasonable jury could conclude that he
was subjected to a hostile work environment because of complaints of
harassment and discrimination he raised through UPS complaints, union
grievances, and his EEOC charge. See supra at 7–11. This claim is thus
best left to the jury to assess.
II. Tennessee Human Rights Act and 42 U.S.C. § 1981 claims
Plaintiff also asserts claims under the Tennessee Human Rights

Act (“THRA”), Tenn. Code Ann. § 4–21–101 et seq., and 42 U.S.C. § 1981.
These claims are subject to the same burden-shifting standards as
Plaintiff’s Title VII claims. See Mitchell, 964 F.2d at 582. Claims brought
under the THRA are, however, subject to a one-year statute of limitations
that begins to run on the date the alleged discriminatory practices ceases.
Tenn. Code Ann. § 4–21–311; Wade v. Knoxville Utilities Bd., 259 F.3d

452, 464 (6th Cir. 2001). Because no separate statute of limitations is
provided by § 1981, the Court must also apply the one-year statute of
limitations for personal injuries set forth under Tennessee law to
Plaintiff’s claims arising under § 1981. Tenn. Code Ann. § 28–3–104; see
Wade, 259 F.3d at 464. Plaintiff’s filing of a charge with the EEOC does
not toll these one-year statutes of limitations. Wade, 259 F.3d at 464.
Because Plaintiff filed this lawsuit on July 28, 2016, any claims
Plaintiff asserts under the THRA or § 1981 that accrued before July 28,

2015 are time-barred. See ECF No. 1-2 (Compl.). This includes Plaintiff’s
claim that UPS employees Cholewinski and Lipscomb pushed Plaintiff to
apply for a Package Driver position to derail future management-level
promotion opportunities. It also includes claims that Plaintiff was denied
promotions because of his race to the extent those claims rely on
management-level positions that were filled before July 28, 2015.
MOTION TO STRIKE
UPS also moves to strike Plaintiff’s declaration, which he attached
as an exhibit to his response brief. See ECF No. 60-15. UPS contends that

because Plaintiff seeks to introduce evidence through that declaration
that was produced after discovery in this matter had closed, the
declaration should be stricken or, in the alternative, UPS granted leave
to address the facts contained therein. See generally ECF No. 64 (Def.’s
Mot. to Strike).
District courts have discretion in determining whether to grant a

motion to strike. Starnfes Family Office, LLC v. McCullar, 765 F. Supp.
2d 1036, 1047 (W.D. Tenn. 2011) (citing Seay v. Tenn. Valley Auth., 339
F.3d 454, 480 (6th Cir. 2003)). The Court finds that although Plaintiff’s
declaration contains information about phone calls to a UPS employee
hotline, the recordings of which were produced well after the close of
discovery, UPS will in no way be prejudiced by permitting the Court to
consider Plaintiff’s declaration. The Court therefore in its discretion
denies the motion to strike.

CONCLUSION
For these reasons, the motion for summary judgment filed by
Defendant United States Postal Service, Inc., ECF No. 51, is GRANTED
IN PART and DENIED IN PART. Defendant’s motion to strike Plaintiff
Justin Bell’s declaration, ECF No. 64, is DENIED.

Dated: September 30, 2019 s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10436007. Public record. Not legal advice.