Kenneth Brown v. United Parcel Service, Inc.

Case: 10-60398 Document: 00511333655 Page: 1 Date Filed: 12/28/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 28, 2010

No. 10-60398 Lyle W. Cayce

Summary Calendar Clerk

KENNETH E. BROWN,

Plaintiff - Appellant

v.

UNITED PARCEL SERVICE, INC.,

Defendant - Appellee

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:08-CV-837

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:*

In this Title VII retaliation case, the Court must determine whether

plaintiff-appellant Kenneth E. Brown engaged in activity protected by Title VII

when he complained to his employer about unfair work distribution, unpaid

overtime, and selective enforcement of a lunch policy. We conclude that Brown’s

complaints were not protected by Title VII because they did not concern

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5th Cir.

R. 47.5.4.

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No. 10-60398

discrimination based on “race, color, religion, sex, or national origin.”

Accordingly, Brown failed to establish a prima facie case of retaliation under

Title VII, and the district court properly granted summary judgment on Brown’s

Title VII retaliation claim.

I. BACKGROUND

Brown, an African American, was an experienced driver for United Parcel

Service, Inc. (UPS) in Gulfport, Mississippi. Michael Bates, a Caucasian,

became Brown’s supervisor in January 2007. It appears that the two did not get

along. In the summer of 2007, Brown allegedly was being given ten to thirty

stops per day more than other drivers, causing Brown to work unwanted

overtime. Brown complained to Bates about the extra work, but Bates allegedly

refused to acknowledge the problem or authorize Brown’s overtime pay. On July

20, 2007, Brown filed a union grievance requesting reduced hours and unpaid

overtime. When no action was taken, Brown filed a second, substantially

identical union grievance on September 14, 2007. Brown ultimately received his

unpaid overtime.

On September 28, 2007, Bates allegedly threatened to terminate Brown’s

employment because Brown took a lunch break at home. Brown asserts that he

and other UPS employees commonly took lunch breaks at home, and that this

practice never before caused a problem. Thus, on October 1, 2007, Brown filed

a third union grievance alleging that Bates’s threat was “an act of retaliation on

his part because of the grievance I had filed for being over 9/5 2 weeks in a 4

week period.” The grievance requested that “[i]n reference to lunch, same rules

should apply to all drivers with no exceptions.” The grievance concludes that “I

do feel discriminated upon by CTRMGR Mike Bates because of his actions.”

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During a delivery on October 19, 2007, Brown’s truck rolled 15 feet across

a parking lot and collided with a small security vehicle. There was no significant

property damage. There is, however, a dispute as to whether Brown engaged the

parking brake, and whether the parking brake was functioning properly. Bates

ultimately concluded that the accident was an “avoidable runaway accident” and

terminated Brown’s employment on October 25, 2007. The collective bargaining

agreement governing Brown’s employment provides:

ARTICLE 52 - DISCHARGE OR SUSPENSION

(A) The Employer shall not discharge nor suspend any employee

without just cause, but in respect to discharge or suspension shall

give at least one (1) warning notice of a complaint against such

employee to the employee, in writing, and a copy of the same to the

Local Union, except that no warning notice need be given an

employee before discharge if the cause of such discharge is . . . an

avoidable runaway accident . . . .

On October 25, 2007, Brown filed a fourth union grievance essentially

explaining his version of the accident. A grievance committee including UPS

and union representatives denied Brown’s request for reinstatement. Brown

then filed discrimination charges with the Equal Employment Opportunity

Commission (EEOC) on December 15, 2007 and January 8, 2008. The charges,

substantively identical to each other, allege that Brown’s termination was

racially motivated and retaliatory. Brown specifically charged that other

Caucasian employees had been involved in runaway accidents but had not been

terminated.

The EEOC issued a notice of right to sue on June 30, 2008, and Brown

timely filed this action asserting claims of race discrimination and retaliation in

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violation of Title VII of the Civil Rights Act of 1964. The district court granted

summary judgment against Brown on all claims. The district court found, inter

alia, that Brown failed to establish a prima facie case of retaliation because he

did not engage in any activity protected by Title VII. Although the district court

granted summary judgment on all of Brown’s claims, Brown has appealed only

the dismissal of his Title VII retaliation claim.1 For the following reasons, we

affirm.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo and apply the same legal

standard as the district court. See Floyd v. Amite Cty. Sch. Dist., 581 F.3d 244,

247-48 (5th Cir. 2009). Summary judgment is appropriate when “the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” F ED. R. C IV. P. 56(c)(2); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). Issues of fact are reviewed in light most

favorable to the nonmoving party, and questions of law are reviewed de novo.

Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 327 (5th Cir. 2009).

1

Brown’s statement of the issues on appeal is limited to his retaliation claim, and

Brown’s brief addresses only his retaliation claim. Because Brown has not identified or briefed

any other challenges to the district court’s decision, they are waived. See, e.g., FED . R. APP .

P. 28(a)(9)(A) (requiring appellant’s brief to include appellant’s contentions and the reasons

for them); Smith v. Xerox Corp., 602 F.3d 320, 335 n.61 (5th Cir. 2010) (“Because it fails to

make any similar argument on appeal, however, that issue is deemed waived, and we do not

consider it.”); Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1 (5th Cir. 2004)

(“Failure adequately to brief an issue on appeal constitutes waiver of that argument.”).

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III. DISCUSSION

Title VII makes it unlawful for an employer to retaliate against an

employee who opposes an employment practice made unlawful by Title VII. 42

U.S.C. § 2000e-3(a). The district court analyzed Brown’s Title VII retaliation

claim under the familiar McDonnell Douglas burden shifting framework, and we

see no reason to deviate from this approach in this case.2 See McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Under McDonnell Douglas,

a plaintiff first must establish a prima facie case of retaliation. Id. This

requires evidence that: (1) the plaintiff engaged in an activity protected by Title

VII; (2) the employer took an adverse employment action against the plaintiff;

and (3) a causal connection exists between the protected activity and the adverse

employment action. See, e.g., Stewart, 586 F.3d at 33; McCoy v. City of

Shreveport, 492 F.3d 551, 556-57 (5th Cir. 2007). We have defined protected

activity as “opposition to any practice rendered unlawful by Title VII, including

making a charge, testifying, assisting, or participating in any investigation,

proceedings, or hearing under Title VII.” Ackel v. Nat’l Commc’ns, Inc., 339 F.3d

376, 385 (5th Cir. 2003). If the plaintiff carries his initial burden, the employer

must respond by producing evidence of a “legitimate, nondiscriminatory reason”

for the adverse employment action. Okoye v. Univ. of Tex. Houston Health Sci.

Ctr., 245 F.3d 507, 512 (5th Cir. 2001). Finally, if the employer carries its

burden, the plaintiff must put forward evidence that “the legitimate reasons

2

Although Brown pointed out to the district court that in some cases a plaintiff may

be entitled to a mixed-motives framework, Brown did not assert that he was entitled to a

mixed motives framework, and indeed Brown analyzed his own case under the McDonnell

Douglas framework. The district court did not err in applying McDonnell Douglas at summary

judgment.

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offered by the employer were not its true reasons, but were a pretext for

discrimination.” Id.

We find that Brown has failed to establish the first prong of his prima facie

case, namely, that he engaged in activity protected by Title VII. Title VII does

not protect opposition to all forms of unscrupulous conduct. See, e.g., Stewart,

586 F.3d at 332 (observing that Title VII is not a “general civility code for the

American workplace”). Instead, Title VII protects only opposition to

discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1). Magic words are not required, but protected opposition must at

least alert an employer to the employee’s reasonable belief that unlawful

discrimination is at issue. See, e.g., Turner v. Baylor Richardson Med. Ctr., 476

F.3d 337, 348-49 (5th Cir. 2007); Broderick v. Donaldson, 437 F.3d 1226, 1232

(D.C. Cir. 2006); Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 727 (7th Cir. 2003);

Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Here,

the record indicates that although Brown complained about unfair work

distribution, unpaid overtime, and selective enforcement of a lunch policy shortly

before his termination, Brown did not complain about race, color, religion, sex,

or national origin discrimination. Because unfair work distribution, unpaid

overtime, and selective enforcement of a lunch policy, without more, are not

prohibited by Title VII, Brown’s opposition to these practices was not protected

by Title VII.

It is true that Brown asserted in his October 1, 2007 grievance that “I do

feel discriminated upon by CTRMGR Mike Bates because of his actions.” But

read in context, this statement refers to Brown’s belief that he was being singled

out, not because of his race, but “because of the grievance I had filed for being

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over 9/5 2 weeks in a 4 week period.” As already explained, Title VII did not

prohibit UPS from terminating Brown because he complained about unfair work

distribution and unpaid overtime.

IV. CONCLUSION

For the reasons stated, the district court properly granted summary

judgment on Brown’s Title VII retaliation claim.

AFFIRMED.

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