Burrell v. United Parcel Service Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

SHOMARI BURRELL, )

)

Plaintiff,

)

v. ) 7:19-cv-01704-LSC

)

UNITED PARCEL SERVICE,

)

INC.,

)

Defendant.

MEMORANDUM OF OPINION

I. INTRODUCTION

Plaintiff Shomari Burrell (“Plaintiff” or “Burrell”), an African American

male, brings this action against his employer, United Parcel Service, Inc. (“UPS”).

Burrell asserts claims of racial discrimination and retaliation under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”).

Presently before the Court is UPS’s Motion for Summary Judgment (Doc.

33). The motion has been fully briefed and is ripe for review. For the reasons stated

below, UPS’s Motion for Summary Judgment is due to be GRANTED.

II. BACKGROUND1

1 The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed

to be undisputed, their respective responses to those submissions, and the Court’s own

examination of the evidentiary record. These are the “facts” for summary judgment purposes

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A. BURRELL’S EMPLOYMENT AT UPS

Burrell began working as an automotive mechanic at the UPS center in

Tuscaloosa, Alabama in 2012. (Doc. 1 at 3.) UPS is a unionized workplace, and UPS

mechanics are members of the collective bargaining unit. (Doc. 34 at 3.) The

collective bargaining agreement (“CBA”) governs the employment relationship

between collective bargaining unit employees and UPS. (Id. at 4.) The CBA governs

all aspects of employment, including how and when disciplinary actions may be taken

against bargaining unit employees. (Id.) Those in management at UPS are not

members of the collective bargaining unit and are not governed by the CBA. (Id.)

Under Article 52 of the CBA, dishonesty is a violation that may result in immediate

termination. (Id.) Prior to being hired by UPS, Burrell was aware that dishonesty

could result in termination. (Id.) Falsifying a timecard is a dishonesty violation under

the CBA. (Id. at 5.)

B. BURRELL’S TIMECARD INCIDENTS

only. They may not be the actual facts. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17

F.3d 1386, 1400 (11th Cir. 1994). The Court is not required to identify unreferenced evidence

supporting a party’s position. As such, review is limited to exhibits and specific portions of the

exhibits specifically cited by the parties. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d 1057,

1061 (11th Cir. 2011) (“[D]istrict court judges are not required to ferret out delectable facts buried

in a massive record . . .”).

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On November 11, 2014, Burrell was discharged for indicating on his timecard

that he was working while he was found to have been asleep on the job. (Doc. 35–3

at 17 & 19.) Burrell filed a grievance under the CBA seeking to have his discipline

reduced. (Id. at 17.) Subsequently, Burrell’s discharge was reduced to time-served

suspension without pay. (Id. at 19.) In return, Burrell committed to follow UPS

methods and procedures. (Id.)

In June of 2018, Automotive Supervisor, Jeremy Black (“Black”), a Caucasian

male, discovered various automotive parts in a locked container. (Doc. 35–32 at 15;

Doc. 38–1 at 55.) Black assessed the parts and determined that Burrell pulled the

parts but failed to install them on vehicles, despite his timecards reflecting

installation of the parts. (Doc. 35–32 at 15.) Black reported to the Area Automotive

Manager, Keith Washington (“Washington”), an African American male, and

informed him of this incident. (Doc. 38–1 at 21.)

On June 20, 2018, at a subsequent meeting regarding the incident, Burrell

explained that he was storing parts for later use and that he had installed component

parts in other vehicles. (Doc. 35–3 at 6 & 10.) Ultimately, Washington decided to

terminate Burrell for falsifying his timecards, an act of dishonesty under the CBA.

(Doc. 35–3 at 8; Doc. 35–32 at 15; Doc. 38–1 at 21.) Burrell filed a grievance

contesting the discharge. (Doc. 35–3 at 9.) Following a hearing, Burrell’s discharge

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was reduced to a time-served suspension without pay. (Id. at 11.) Burrell returned to

work at UPS approximately three weeks later. (Id.) On November 27, 2018, within

180 days of the last discriminatory act of which Burrell complains, Burrell filed a

Charge of Discrimination with the Equal Employment Opportunity Commission

(“EEOC”). Burrell’s Dismissal and Notice of Rights was mailed by the EEOC to

Burrell on July 19, 2019. Burrell filed this case within ninety days of receipt on

October 17, 2019.

C. BLACK’S TIMECARD INCIDENT

After June 2018, Black hired Joseph Deal (“Deal”), a Caucasian male, as a

second mechanic at the UPS center in Tuscaloosa. (Doc. 39 at 14.) On the final day

of Deal’s training, Black ended the training four hours early but did not indicate this

on Deal’s timecard. (Doc. 34 at 11.) Thus, Deal received compensation for a full

eight hours for the four-hour training shift. (Id.) Burrell later learned that Black

falsified Deal’s timecard and he filed a grievance under the CBA against Black for

race discrimination. (Id.) Burrell alleges that Black’s previous decision to discharge

him for falsifying his timecards was discriminatory, as Black himself later falsified

the timecard belonging to Deal, a Caucasian employee. (Doc. 39 at 9). Burrell also

notes that the only other African American mechanic under Black’s supervision,

Charlie White, was terminated. (Id. at 28.)

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This matter was reportedly identified as a “no contract violation,” because

Black, as a member of management, was not governed by the CBA, and because

Burrell could not raise a grievance based on discipline taken against another

employee. (Doc. 35–1 at 2–3.) However, Black informed Washington that he had

falsified Deal’s timecard, and Washington issued Black a verbal reprimand. (Doc.

35–33 at 37.) On January 17, 2019, four months after filing the grievance against

Black, Burrell received a written warning notice from Black for failure to follow

proper methods, procedures, and instructions. (Doc. 35–3 at 17.) The warning was

specifically for failing to follow Black’s instruction to update timecards more

frequently throughout the day. (Id.) Deal received a substantially identical warning

notice on the same day. (Id.)

III. STANDARD

Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact2 and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine if “the record taken as a

whole could lead a rational trier of fact to find for the nonmoving party.” Hickson

Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004). A genuine

2   A material fact is one that “might affect the outcome of the case.” Urquilla-Diaz v.

Kaplan Univ., 780 F.3d 1039, 1049 (11th Cir. 2015).

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dispute as to a material fact exists “if the nonmoving party has produced evidence

such that a reasonable factfinder could return a verdict in its favor.” Greenberg v.

BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.

Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge

should not weigh the evidence but determine whether there are any genuine issues

of fact that should be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986).

In considering a motion for summary judgment, trial courts must give

deference to the nonmoving party by “view[ing] the materials presented and all

factual inferences in the light most favorable to the nonmoving party.” Animal Legal

Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015) (citing

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However, “unsubstantiated

assertions alone are not enough to withstand a motion for summary judgment.”

Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987). Conclusory

allegations and “mere scintilla of evidence in support of the nonmoving party will

not suffice to overcome a motion for summary judgment.” Melton v. Abston, 841

F.3d 1207, 1219 (11th Cir. 2016) (per curiam) (quoting Young v. City of Palm Bay, 358

F.3d 859, 860 (11th Cir. 2004)). In making a motion for summary judgment, “the

moving party has the burden of either negating an essential element of the

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nonmoving party’s case or showing that there is no evidence to prove a fact necessary

to the nonmoving party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d

1236, 1242 (11th Cir. 2013). Although the trial courts must use caution when

granting motions for summary judgment, “[s]ummary judgment procedure is

properly regarded not as a disfavored procedural shortcut, but rather as an integral

part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327

(1986).

IV. DISCUSSION

A. Race Discrimination

Burrell brings a claim of racial discrimination under Title VII and 42 U.S.C. §

1981. Under Title VII and Section 1981, an employer may not discharge or otherwise

discriminate against an employee because of race. See 42 U.S.C. § 2000e-2 (a) (1); see

also 42 U.S.C. § 1981. To establish a Title VII claim, a plaintiff may proffer either

direct or circumstantial evidence of discrimination. Jefferson v. Sewon America, Inc,

891 F.3d 911, 920 (11th Cir. 2018). Direct evidence of discrimination consists of

“only the most blatant remarks, whose intent could mean nothing other than to

discriminate.” Rojas v. Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir.2002)

(quoting Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999)).

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Because Burrell neither offers nor contends there was direct evidence of racial

discrimination, this Court must evaluate whether he has produced sufficient

circumstantial evidence of racial discrimination. Absent direct evidence of racial

discrimination or retaliation, such as specific statements made by the employer’s

representatives, a plaintiff may demonstrate circumstantial evidence of disparate

treatment through the McDonnell Douglas burden-shifting framework. See McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Tex. Dep’t of Cmty Affairs v.

Burdine, 450 U.S. 248 (1981).

Under this framework, the aggrieved employee creates a presumption of

unlawful discrimination by first establishing a prima facie case of discrimination. See

Lewis v. City of Union City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). The

burden then shifts to the employer “to articulate a legitimate, nondiscriminatory

reason for its actions.” Id. at 1221 (citing Burdine, 450 U.S. at 253). The burden at

this stage “is exceedingly light.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142

(11th Cir. 1983). It is merely a burden of production, not a burden of proof. Id. If the

employer proffers a legitimate, nondiscriminatory reason, the burden returns to the

employee to prove that the employer’s reason is a pretext for unlawful

discrimination. Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008).

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Although the McDonnell Douglas framework is one way of showing

discriminatory intent, it is not the only way to show discriminatory intent in a Title

VII discrimination claim. See Smith v. Lockheed–Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011). “[T]he plaintiff will always survive summary judgment if he

presents circumstantial evidence that creates a triable issue concerning the

employer’s discriminatory intent.” Id.

1. McDonnell Douglas Framework

Burrell argues that the McDonnell Douglas burden-shifting framework is

inapplicable in light of the Supreme Court’s decision in Bostock v. Clayton County,

140 S. Ct. 1731 (2020). (Doc. 39 at 27.) In Bostock, the Supreme Court held that “[a]n

employer who fires an individual merely for being gay or transgender defies the law”

as that employment decision inherently takes into consideration an individual’s sex.

Id. at 1754. The Court made no ruling on the applicability of the McDonnell Douglas

framework. Rather, the Court examined the statutory text of Title VII, and discussed

what it means to be discriminated against “because of” a protected characteristic,

and what constitutes “but for” causation. Id. at 1739–40, 1743.

The McDonnell Douglas framework is an evidentiary framework to help courts

determine whether a plaintiff has submitted sufficient evidence to create a triable

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issue of fact to submit to a jury. The Eleventh Circuit has continued to apply the

McDonnell Douglas burden-shifting framework to analyze Title VII claims post-

Bostock, as have other circuits. See, e.g., Williams v. Hous. Auth. of Savannah, Inc.,

834 F. App’x 482, 488 (11th Cir. 2020) (per curiam)3; see also Riney v. Lockheed

Martin Corp., 831 F. App’x 698, 701–02 (5th Cir. 2020) (per curiam); Henderson v.

Mass. Bay Transp. Auth., 977 F.3d 20, 29–30 (1st Cir. 2020); Marshall v. Ind. Dep’t

of Corr., 973 F.3d 789, 791–92 (7th Cir. 2020); Black v. Grant Cnty. Pub. Util. Dist.,

820 F. App’x 547, 550 (9th Cir. 2020). There is no authority to support Burrell’s

position that Bostock abandoned the McDonnell Douglas framework for Title VII

claims; therefore, this Court continues to apply traditional methods of analyses to

Burrell’s claims.

a. Prima Facie Case

Burrell contends that he was discriminated against based on his race when

UPS discharged him in June 2018 for falsifying his timecard. (Doc. 1.) To establish a

prima facie case for race discrimination, a plaintiff must show: (1) he is a member of

a protected class, (2) he was qualified for his position, (3) he was subjected to an

adverse employment action, and (4) he was treated less favorably than similarly

3   “Unpublished opinions are not considered binding precedent, but they may be cited as

persuasive authority.” 11th Cir. R. 36-2.

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situated individuals outside his protected class. See Lewis, 918 F.3d at 1221. To

satisfy the fourth prong of the prima facie case, the proffered comparator must be

similarly situated to the plaintiff “in all material respects.” Id. at 1226.

As the Eleventh Circuit has explained, “a valid comparison will turn not on

formal labels, but rather on substantive likenesses.” Lewis, 918 F.3d at 1228. While

the precise “similarity” is “to be worked out on a case-by-case basis,” a similarly

situated comparator “will have engaged in the same basic conduct (or misconduct)

as the plaintiff”; “will have been subject to the same employment policy”; “will

ordinarily (although not invariably) have been under the jurisdiction of the same

supervisor”; and “will share the plaintiff’s employment or disciplinary history.” Id.

at 1227–28. Unionized employees are not similarly situated with non-unionized

employees. See Donnell v. Lee Cty. Port Auth., 509 F. App’x 903, 905 (11th Cir. 2013)

(citing Marshall v. W. Grain Co., Inc., 838 F.2d 1165, 1170 (11th Cir. 1988) (denying

Title VII discrimination claim)).

It is undisputed that Burrell satisfies the first three prongs of a prima facie case.

The parties dispute whether Burrell has provided any similarly situated comparators

to satisfy his prima facie case. Burrell provides two comparators: Black and Deal.

However, neither comparator is “similarly situated” to Burrell under Lewis.

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Here, Black is not an appropriate comparator to Burrell. At the time of the

incidents at issue, Black was a non-unionized manager, and Burrell was a unionized

employee. Black and Burrell were not subject to the same employment and

disciplinary policies. Burrell, as a union employee, was subject to Article 52 of the

CBA, and Black was not. Because union and non-union employees are subject to

different employment and disciplinary policies at UPS, Black is not similarly situated

to Burrell for purposes of satisfying Burrell’s prima facie case of race discrimination.

See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326–27 (11th Cir. 2011) (finding

employees were not comparators because they were subject to different policies).

Likewise, Deal is not an appropriate comparator to Burrell. Though Deal was

a unionized mechanic at UPS like Burrell, Deal did not engage in misconduct similar

to Burrell. Burrell was terminated in June of 2018 after Black discovered various

automotive parts in a locked container. Black assessed the parts and determined that

Burrell pulled the parts but failed to install them on vehicles, despite his timecards

reflecting installation of the parts. Burrell was terminated because of this falsification

on his timecard. On the other hand, Deal’s timecard was falsified by Black. Black

submitted Deal’s timecard for him and entered hours Deal did not work. Thus, Deal

did not take any affirmative steps to be dishonest with UPS. However, Burrell did.

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Burrell was subjected to disciplinary action for his act of dishonesty. Deal was not

subjected to disciplinary action, because he did not engage in an act of dishonesty.

Further, comparators will usually “share the plaintiff’s employment or

disciplinary history.” Lewis, 918 F.3d at 1228. Here, this is not the case. In 2014,

Burrell fell asleep on the job and then falsified his own timecard to show he was

working during that time. Burrell’s falsification of his timecard in 2018 was his

second timecard related incident. Accordingly, Burrell and Deal do not share the

same disciplinary history and are not proper comparators.

Plaintiff argues that summary judgment is inappropriate because Deal actively

participated in falsifying his timecard and failed to report Black for entering hours in

which Deal did not work. (Doc. 39 at 28–29.) However, even viewing the evidence

in the light most favorable to Burrell, a reasonable jury could not conclude that

Burrell and Deal were similarly situated in all material respects. There is a difference

between falsifying your own timecard and having a supervisor enter false time for

you. Further, there is no evidence that Deal even knew that this was a dishonest act

under UPS’s policies. Yet, Burrell knew that falsifying his own time was a dishonesty

violation that could end in his termination. (Doc. 34 at 4.)

In sum, Burrell has not met his burden to provide a similarly situated

comparator who engaged in similar conduct and was treated differently from Burrell.

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As Burrell has not provide any similarly situated comparators, he has not stated a

prima facie case of discrimination. Accordingly, UPS’s motion is due to be granted.

b. Legitimate, Nondiscriminatory Reason

Even if Burrell had stated a prima facie case of race discrimination, UPS argues

that it had a legitimate, nondiscriminatory reason for terminating Burrell. UPS

contends that Burrell was terminated for indicating on his timecards that various

automotive parts had been installed in vehicles when those parts were later

discovered unused in a locked bin. (Id. at 21.) Burrell does not contest that UPS had

a legitimate, nondiscriminatory reason in his brief opposing summary judgment.

However, even if he had, falsifying timecards is an act of dishonesty under the CBA

and is punishable by discharge. Accordingly, UPS has satisfied its exceedingly light

burden of production. As UPS has met its burden of production, the burden shifts

back to Burrell to demonstrate that UPS’s reason was pretextual.

c. Pretext

Burrell does not argue that UPS’s proffered reason for his discharge is a

pretext for race discrimination. Instead, Burrell just states the legal standard for

evaluating pretext. A “plaintiff can show pretext ‘either directly by persuading the

court that a discriminatory reason more likely motivated the employer or indirectly

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by showing that the employer’s proffered explanation is unworthy of credence,’”

Kragor v. Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting

Burdine, 450 U.S. at 256), such that a rational trier of fact could disbelieve the

employer’s proffered nondiscriminatory reason, Wilson v. B/E Aerospace, Inc., 376

F.3d 1079, 1088 (11th Cir. 2004). A prima facie case plus sufficient evidence of

pretext may permit the factfinder to find unlawful discrimination, making summary

judgment inappropriate. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

148 (2000). Again, Burrell has not argued and has not presented any evidence that

UPS’s reason for terminating his employment was pretextual. Thus, even if Burrell

had stated a prima facie case of race discrimination, UPS’s motion is due to be

granted because Burrell failed to demonstrate UPS’s reason for termination was

pretextual.

2. Convincing Mosaic

An employee may survive summary judgment if a jury may infer intentional

discrimination from a “convincing mosaic” of circumstantial evidence. Lewis v. City

of Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019) (quoting Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). An employee may

establish a convincing mosaic through evidence such as “(1) ‘suspicious timing,

ambiguous statements..., and other bits and pieces from which an inference of

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discriminatory intent might be drawn,’ (2) systematically better treatment of

similarly situated employees, and (3) that the employer's justification is pretextual.”

Id. (quoting Silverman v. Bd. Of Educ. Of City of Chi., 637 F.3d 729, 733–34 (7th Cir.

2011)). Burrell has not painted a “convincing mosaic” of discrimination from

circumstantial evidence.4

Burrell bears the burden of creating “an inference of discriminatory intent”

as to his employer’s conduct. Lewis, 934 F.3d at 1185. He has offered no evidence to

create such an inference regarding UPS’s decision to terminate him. Burrell has not

suggested that anyone made racially insensitive comments or engaged in racially

insensitive conduct during his time at UPS. Moreover, Burrell has not indicated that

anyone at UPS said or did anything that was remotely racially insensitive. As

discussed above, Burrell has not shown systematically better treatment of similarly

situated employees because Deal and Black are not similarly situated. Also, as

mentioned above, Burrell does not contend that UPS’s proffered reason for his

termination was pretextual. Accordingly, Burrell has not met his burden of creating

4 The Court notes that Burrell merely states what the legal standard is for a convincing mosaic of

racial discrimination in his response brief. He does not proceed to make a discrete argument as to

why his claims should move forward under this this theory. However, it appears to the Court as if

Burrell has scattered his mixed motive argument throughout other sections in his response brief.

And, UPS responded to Burrell’s argument in its reply brief. Thus, the Court will also address

Burrell’s claims under the convincing mosaic standard.

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“an inference of discriminatory intent" and this Court finds that Burrell has not

presented a “convincing mosaic” of racial discrimination as to survive a motion for

summary judgment. Thus, UPS’s motion is due to be granted as to the racial

discrimination claim.

3. Race as a Motivating Factor

Burrell also asserts that his race was a motivating factor in UPS’s decision to

terminate his employment.5 To succeed under a mixed-motive theory of liability, a

plaintiff must show “that illegal bias, such as bias based on [race], ‘was a motivating

factor for’ an adverse employment action, ‘even though other factors also

motivated’ the action.” Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th

Cir. 2016) (quoting 42 U.S.C. § 2000e-2(m)). This can be accomplished by

presenting either direct or circumstantial evidence of discrimination. See id. (citing

Desert Palace, Inc. v. Costa, 539 U.S. 90, 99–102 (2003)). But it is inappropriate to

use the McDonnell Douglas burden-shifting framework to evaluate mixed-motive

claims at summary judgment. Id. at 1238. Instead, “[t]o avoid summary judgment, a

plaintiff raising a mixed-motive claim must offer ‘evidence sufficient to convince a

5   The Court also notes that Burrell merely states what the legal standard is for mixed motive

claims in his response brief. He does not proceed to make a discrete argument as to why his claims

should move forward under this this theory. However, it appears to the Court as if Burrell has

scattered his mixed motive argument throughout other sections in his response brief. Thus, the

Court will also address Burrell’s claims under a mixed motive theory of liability.

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jury that: (1) the [employer] took an adverse employment action against [him]; and

(2) a protected characteristic was a motivating factor for the [employer’s] adverse

employment action.’” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1364

(11th Cir. 2018) (quoting Quigg, 814 F.3d at 1239). “In other words, the court must

determine whether the ‘plaintiff has presented sufficient evidence for a reasonable

jury to conclude, by a preponderance of the evidence, that [his protected

characteristic] was a motivating factor for [an] adverse employment decision.’”

Quigg, 814 F.3d at 1239 (quoting White v. Baxter Healthcare Corp., 533 F.3d 381, 401

(6th Cir. 2008)). An employer may terminate an employee for “a good reason, a bad

reason, a reason based on erroneous facts, or for no reason at all.” Flowers v. Troup

Cnty, Ga., Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015) (quoting Nix v. WLCY

Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984)). An employer is merely

prohibited from terminating an employee because of that employee’s protected

characteristic. See id.

It is undisputed that Burrell suffered an adverse employment action, thus the

only issue is whether his termination was in part motivated by his race. Burrell has

not presented any evidence from which a reasonable jury could conclude that he was

terminated in part because he is African American. Burrell argues that “white

employees were treated more favorably,” asserting that this demonstrates he was

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discriminated against because of his race. (Doc. 39 at 31.) As discussed above,

whether white employees were treated more favorably is not the correct inquiry for

this Court. Instead, this Court must determine whether similarly situated

comparators, who engaged in similar conduct, were treated differently from Burrell.

As previously mentioned, this Court concludes that no similarly situated employees

were treated differently from Burrell.

Burrell also argues that UPS never investigated his grievance against Black

which demonstrates UPS’s intent behind the termination was racial discrimination.

(Id.) Yet the record contradicts this claim. Washington testified in his deposition that

he received the grievance and met with Black, security, and human resources

employee Ken Glass. (Doc. 35–33 at 17.) Washington and Mr. Glass then instructed

Black that he was not allowed to enter time for which employees did not work and

issued him a verbal reprimand. (Id. at 17 & 24.) It is clear to this Court that Burrell

believes that he was treated unfairly and that his grievance wasn’t taken seriously.

However, it is not the role of the Court to determine whether UPS’s decision was

fair. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.

1999). The Court’s role is to determine if Burrell has provided evidence to create a

triable issue of fact as to whether his race was a motivating factor in his termination,

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which he has not. Accordingly, UPS’s motion is also due to be granted under a

mixed-motive theory of liability.

B. Retaliation

Burrell also brings a claim of retaliation under Title VII. Burrell claims that

the written warning he received for failure to follow proper procedures in January of

2019 was unlawful retaliation for his grievance against Black. (Doc. 39 at 23.) To

successfully establish a prima facie case of retaliation, Plaintiff must demonstrate that

(1) he engaged in statutorily protected activity; (2) he suffered an adverse

employment action; and (3) a causal link exists between the protected activity and

the adverse employment action. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160,

1181 (11th Cir. 2010). Causation may be inferred from close temporal proximity

between the protected activity and the adverse employment action. James v. City of

Montgomery, 823 Fed. App’x 728, 735 (11th Cir. 2020) (citing Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). However, a three-to-four-month

period between the protected activity and adverse employment action is insufficient.

Id. If a plaintiff establishes a prima facie case of retaliation, the burden of production

shifts to the employer to proffer a legitimate, nondiscriminatory reason for adverse

employment action. See Brown, 597 F.3d at 1181.

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Burrell cannot make out a prima facie case of retaliation. Burrell has failed to

establish a causal link between the grievance he filed against Black in September of

2018 and the written warning he received four months later in January of 2019. Here,

a four-month period existed between the protected activity and the adverse

employment action. This four-month period does not allow an inference of causation

to be made from close temporal proximity. Cooper Lighting, 506 F.3d at 1364.

Additionally, Burrell has not met his burden of establishing a causal link because Deal

also received a substantially identical warning letter on the same day for failing to

update his timecard. Thus, nothing suggests that this warning letter was in any way

tied to his grievance against Black.

Even if Burrell could demonstrate causation, Burrell has not suffered an

adverse employment action, as he only received a written warning for failure to

follow proper procedures. Where a letter of warning has no effect on employment, it

does not constitute an adverse employment action. See Clark v. Potter, 232 Fed.

App’x 895, 897 (11th Cir. 2007). Because Burrell has not presented any evidence

that it had an effect on his employment, it does not rise to the level of adverse

employment action contemplated for a prima facie case of retaliation.

For the reasons explained above, Burrell has failed to establish a prima facie

case of retaliation. However, even if Burrell had established a prima facie case of

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retaliation, UPS proffered a legitimate, nondiscriminatory reason for the warning

notice Burrell received in January of 2019. Specifically, Burrell received the warning

notice for failing to follow Black’s instruction to update his timecards more

frequently throughout the day. (Doc. 35-3 at 17.) Because Burrell failed to establish

a prima facie case of retaliation, and because UPS had a legitimate, nondiscriminatory

reason for issuing the written warning, summary judgment is due to be granted as to

Burrell’s claim of retaliation.

V. CONCLUSION

For the reasons stated above, UPS’s Motion for Summary Judgment (Doc.

33) is due to be GRANTED. An Order consistent with this Opinion will be entered

contemporaneously herewith.

DONE and ORDERED on October 20, 2021.

X Sx Cf

□ L Scott Coogffr

United States Distct Judge

206770

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