Petition for Writ of Certiorari — Ardrey v. United Parcel Service

ed

IN THE

SUPREME COURT OF THE UNITED STATES

Term, 198 _

MARCUS ARDREY, et al.,

individually and on behalf

of all others similarly situated,

Petitioners,

UNITED PARCEL SERVICE,

a corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Michael A. Sheely

RUSSELL & SHEELY

418 Law Building

730 East Trade Street

Charlotte, North Carolina 28202

(704) 376-6591

Counsel for Petitioners

I. QUESTIONS PRESENTED FOR REVIEW

l. Are plaintiffs - in a racial discri-

mination employment action brought pursuant

to 42 USC §§ 1981 and 2000e et seq - entitled

to pattern and practice discovery in an

effort to prove their individual claims when

said claims are pleaded within the context of

the pattern and practice theory approved by

this Court in International Brotherhood Of

Teamsters v. United States, 431 U.S. 324

(1977).

2. Are plaintiffs entitled to discovery

commensurate to the pleaded theory of liabi-

lity?

3. Does a requirement by a District

Court that plaintiffs establish their indivi-

dual claims before considering any class

discovery requests conflict with this Court's

decision in Eisen v. Carlisle and Jacqueline,

417 U.S. 156 (1974), and the requirements of

Federal Rules of Civil Procedure, Rule 23.

=l-

4, When plaintiffs - in a racial

discrimination employment action - have

pleaded their individual claims within the

theortes of individual and pattern/ practice

class discrimination, can a District

Court, in reliance upon Federal Rules of

Civil Procedure 26(b)(1) and 26(c): define

the pending action as being limited to the

individual claims of the named plaintiffs;

limit discovery to the individual claims of

the platntiffs; prohibit adequate pattern and

practice discovery; and require that the

individual claims be established before |

requests for class discovery would be con-

sidered.

5. Are the Findings of Fact of a

District Court in reference to the individual

claims of the named plaintiffs clearly erro-

neous when they: deny the plaintiffs "pat-

tern and practice" discovery even though

their individual claims are pleaded within

the context of the pattern and practice

~

theory; and, require the establishment of

individual claims before considering any

class discovery.

II. LISTING OF ALL PARTIES IN THE CASE

The plaintiffs (Petitioners herein) are

Marcus Ardrey, James Cnerry, Besste Brown,

Louis Funderburk, Horace Jenkins, Joyce

Massey, Jerome Morrow, Sr., Eugene Neal,

Matthew Smith, Jr., Henry Tyson, Sr., Cheryl

Pettigrew, and Carl Watts, individually and

on behalf of all others similarly situated.

The defendant (appellee in the Court of

Appeals; Respondent herein) ts United Parcel

Service, a corporation (UPS).

III. TABLE OF CONTENTS

PAGE(S)

I. QUESTIONS PRESENTED FOR REVIEW 1

II. LISTING OF ALL PARTIES IN THE 3

CASE

III. TABLE OF CONTENTS 4

IV. TABLE OF AUTHORITIES >

V. REPORT OF OPINIONS T

VI. JURISDICTION T

VII. STATUTES AND RULES INVOLVED T

VIII. STATEMENT OF THE CASE 8

IX. REASONS WHY THE WRIT SHOULD 17

BE GRANTED

1. Reason One 17

2. Reason Two 22

3. Reason Three 25

4. Reason Four 27

5. Reason Five 28

6. Reason Six 34

X. CONCLUSION 35

XI. APPENDIX 1A

XII. CERTIFICATE OF SERVICE 279A

IV. TABLE OF AUTHORITIES

CASES

SUPREME COURT CASES

Burdine v. Texas Dept of Community

Affairs, 450 U.S. 245 (1981)

East Texas Motor Freight v.

Rodriguez, 431 U.S. 395 (1977)

Eisen v. Carlisle and Jacqueline,

417 U.S. 156 (1974)

General Telephone Co. v. Falcone,

457 U.S. 147 (1982)

International Brotherhood of

Teamsters v. United States,

431 U.S. 324 (1977)

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)

Oppenheimer Fund Inc. v. Sanders,

437 U.S. 340 (1975)

United States Postal Service Board

v. Atkens, 460 U.S. 711 (1983)

OTHER CASES

Burns v. Thiokol Chemical Co.,

453 F.2d 300 (5th Cir. 1973)

Diaz v. AT&T,

752 F.2d 1356 (9th Cir. 1985)

Rich v. Martin Marietta,

522 F.2d 333 (10th Cir. 1975)

-5-

PAGE(S)

23

29,30,31

29,30, 33

34

30,31

22

22,23,27

28

21,26,27

33,34

16

17,34,35

17,18,34

17,18,19

34,35

TABLE OF AUTHORITIES

CASES PAGE(S)

Trevino v. Celanese, 17,18,25

701 F.od 397 (5th Cir. 1983) 26,27, 34

TREATISES

Wright and Miller, Federal Practice

and Procedure §§ 2008 21

STATUTES

42 usc §§ 1981 8

42 USC § 2000e et seq 7,8

RULES

Federal Rules of Civil Procedure

26(c) 31,33

26(b) 8,26, 31, 33

23 8,29, 30,31, 34

V. REPORTS OF OPINIONS

The Order of the District Court is

reported at 615 F.Supp. 1250 (WDNC 1985).

The Opinion of the Court of Appeals is

reported at 798 F.2d 679 (4th Cir. 1986).

VI. JURISDICTION

The Opinion of the Court of Appeals was

decided and entered on August 18, 1986. A

Petition For Rehearing and suggestion for

Rehearing en banc was denied and entered on

November 4, 1986. Jurisdiction of this

Honorable Court is invoked pursuant to 28

U.S.C. § 1254(1).

VII. STATUTES AND RULES INVOLVED

42 USC § 2000e-2(a) provides, in part,

as follows:

(a) Employer Practices

It shall be an unlawful employment prac-

tice for an employer -

(1) to fail or refuse to hire or to

discharge any individual or otherwise

discriminate against any individual with

respect to his compensation, terms, con-

ditions, or privileges of employment

because of such individual's race....

-7-

42 USC § 1981 provides, in part, as

follows:

All persons within the jurisdiction of

the United States shall have the same

right in every State and Territory to

make...contracts...as it enjoyed by

white citizens...

Federal Rules of Civil Procedure Rule

26(b)(1) provides, in part, as follows:

(b) Unless otherwise limited by order

of the court in accordance with these

rules, the scope of discovery is as

follows:

(1) In General. Parties may obtain

discovery regarding any matter, not grip

vileged, which is relevant to the sub-

ject matter involved in the pending

action...

Federal Rules of Civil Procedure, Rules

23 and 26(c)1 (FRCP Rules )-

VIII. STATEMENT OF THE CASE

This action, designated as a class

action and brought pursuant to 42 USC §§ 1981

(Civil Rights Act of 1866) and 2000e et seq

(Title VII of the 1964 Civil Rights Act),

sought both individual and class/pattern and

1 As provided by Supreme Court Rule 2l1(f),

the provisions of Rules 23 and 26(c) are set

forth at Appendix, pp. 269A-271A.

aie

practice relief (A 272A-275A.).2 The

District Court had jurisdiction pursuant

to 42 USC § 2000e-5(f) and 28 USC § 1343.

The trial court, Subsequent to a non-jury

trial limited to the individual claims of the

plaintiffs, found for UPS on all issues

(A.30A-230A).

The Petitioners had individual race

discrimination claims as follows: failure to

qualify for full-time jobs of Preloader or

package car driver (Ardrey, Watts, Cherry);

warnings (Watts, Brown, Cherry, Smith);

Suspensions (Watts, Smith); terminations

(Smith, Pettigrew, Massey); training

(Pettigrew); assignment of equipment

(Funderburke, Smith, Neal, Jenkins); removal

of duties (Jenkins); assignment of overtime

(Neal, Brown); dental of days off (Brown);

Supervisory harassment (Brown, Neal,

Pettigrew); promotion to supervisor (Neal);

2

References to A. - refer to the

attached Appendix and page numbers.

-9-

not presently plaintiffs of record, or

to statistical information regarding

groups or classes of employees, unless

such discovery would produce information

relevant to the individual claims

(A.238A-239A) (emphasis added).

In denying plaintiffs' motion to recon-

sider the district court reiterated this

ruling (A.241A-244A).

The plaintiffs' First Set of Interroga-

tories, limited to the individual claims of

the plaintiffs, was answered by UPS. The

Second Set sought pattern/practice informa-

tion (A.276A-277A). UPS limited its answers

to: identity of locations, job titles, de-

partments, hetrarchy, EEO-1 report job

classification, and lines of progression; and

descriptions of the policies of job perfor-

mance review; the bidding/vacancy filling

process; seniority, promotion, transfer,

discipline, and movement from part to full-

time positions. UPS, on the grounds of "not

relevant to plaintiffs' individual claims",

objected to each interrogatory seeking infor-

=12<

mation about: the employment history of

employees; statistics; and, the duties/pay

grades/minimum qualifications for jobs.

(A.276A-277A).

In their first and second Motions To

Compel, plaintiffs sought to compel only as

to the employment practices each was affected

by and in the departments where their indivi-

dual claims arose. The trial court, denying

the motions, stated that UPS had provided

sufficient "class discovery" with its answers

to the First Set. (A.245A-262A)

In their Third Set of Interrogatories,

plaintiffs sought information as to the iden-

tity of persons who were: disciplined; pro-

moted into/qualified for/failed to qualify

for specified jobs;> considered for promo-

tion; and, the identity of supervisors who

supervised persons holding the specified

5 ©6 The specified jobs were those: jobs

unsuccessfully sought by plantiffs; first

level supervisory jobs; held by Massey and

Pettigrew when each was terminated; and

clerical vacancies for a 6 month pertod.

-13-

jobs. UPS, in its responses: provided the

annual number of whites and blacks in various

jobs as of 12/31 for each year between 1979-

1982; objected to disciplinary information as

ltrrelevant; limited its responses to the

identity of persons promoted, etc., to those

already made in response to the First Set,

and objected to further responses as being

irrelevant (A.277A-278A). In their Third

Motion To Compel, dented by the trial court,

plaintiffs moved to compel as to the interro-

gatortes objected to (A.265A-268A).

Throughout this case, the plaintiffs

repeatedly pointed out that their individual

claims were made pursuant to the Teamster

pattern/practice/class discrimination theory

as well as the McDonnell-Douglas/Burdine

theory.

UPS provided the following limited

information for persons who: either

=

The jobs were feeder drivers, package

car drivers, loader/unloader, carwash/shif-

ters, part-time clerk, and tracing clerk.

«tie

qualified or failed to qualify for the posi-

tions of package car driver and preloader;

were promoted to first level supervisory

positions; were tracing clerks and their pro-

duction rates; were dispatchers; and, held

certain jobs as of the last day for each year

between 1979-1982. UPS also provided

incomplete disciplinary information about

individuals whose names were provided by the

plaintiffs. Finally, UPS provided infor-

mation as to how vacancies were filled, and

other policies. No pattern and practice

information was provided for promotions/job

placement for jobs other than those sought

by the plaintiffs. No pattern and practice

information of any type was provided for

discipline, termination, and assignment of

equipment. Plaintiffs sought information as

to those matters and had individual claims

based on alleged discrimination resulting

-15-

a> Sera 7

es

rice <

as Sa

=

7

v4 mL

i

from these practices.!/ The Court of Appeals

held that the District Court did not abuse

its discretion by imposing its discovery

limitations.

The opinion below incorrectly stated

that the District Court found that not a

single plaintiff proved a prima facie case of

discrimination. 798 F.2d 679, 685; (A.29A).

The District Court stated it had reservations

whether some of the plaintiffs failed to

prove a prima facie case. 615 F.Supp. 1250,

1299, n.3 (A.225A, n.3). Such an observation

itself is irrelevant since after an employer

produces evidence, the issue is whether pre-

text and intentional discrimination are pro-

ven. Postal Service Board v. Aikens, 460

U.S. 711, 714-717 (1983).

a

Plaintiffs with these claims were: war-

nings (Watts, Brown, Cherry, Smith); suspen-

sions (Watts, Smith); terminations (Smith,

Pettigrew, Massey); and, assignment of equip-

ment (Smith, Neal, Funderburke).

atte

IX. REASONS WHY THE WRIT SHOULD BE GRANTED

1. The decision of the Court of

Appeals below conflicts with the Circuit

Court decisions of Diaz v. AT&T, 752 F.2d

1356, 1362-1364 (9th Cir. 1985); Trevino v.

Celanese, 701 F.2d 397, 404-408 (5th Cir.

1983); Rich v. Martin-Marietta, 522 F.2d 333,

342-349 (10th Cir. 1975), and Burns v.

Thiokol Chemical Company, 483 F.2d 300 (5th

Cir. 1973).

In each of the foregoing cases, the

Court of Appeals reversed either the District

Court's granting of summary judgment in favor

of the employer (Diaz; Trevino) or trial fin-

dings of no discrimination (Rich; Burns).

The major reason for each reversal was

each District Court's failure to consider

relevant pattern and practice information

which was not present because of

inappropriate discovery restrictions placed

by the court. In each instance, the appellate

court ruled that the erroneous limitation on

-17-

discovery deprived each plaintiff of disco-

very that was necessary to the pleaded

theory. For example, in Diaz, the plaintiff

had a promotion claim at one facility. He

sought pattern/practice information for the

region in which the facility was located.

The employer objected to the pattern and

practice discovery. The plaintiff filed a

motion to compel. The employer filed a

motion for summary judgment. The District

Court, without deciding the motion to compel,

granted the employer's motion for summary

judgment. The Ninth Circuit held that it was

error for the District Court to consider the

motion without examining the pattern/practice

discovery sought by the plaintiff. A second

example its Rich, supra. The fact situations

in Rich and Ardrey are very similar. The

plaintiffs filed a pattern and practice case.

The plaintiffs' first set of interrogatories

sought practice/class/pattern discovery. The

District Court upheld the employer's objec-

othe

tions. The plaintiffs' second set was

limited to named persons and persons who

worked in the vicinity of the plaintiffs.

The case proceeded to trial on the plain-

tiffs' individual claims. The focus of the

trial, for the most part, was limited to the

individual claims. The trial court found no

discrimination. The Tenth Circuit reversed

said findings. The major reason for said

reversal was the inappropriate limitations

placed on the plaintiffs' discovery. The

Tenth Circuit stated that the trial court

should have allowed factual exploration since

there was no other way to determine the

merits of the plaintiffs' claims.

The conflict arises since the Courts

below upheld limitations on discovery which

were held to be erroneous by the above cited

courts. In this case, the appellate court

below held that denial of pattern/practice

information (e.g. the District Court dented

any pattern/ practice disciplinary or ter-

-19-

mination information except for a few indivi-

duals named by the plaintiffs even though

several plaintiffs had individual discipline/

termination claims pleaded in the context of

the pattern or practice theory) was

appropriate. Discovery in each of the cited

authorities was allowed on a facility or

regional basis while in the case below it was

limited to the jobs sought by plaintiffs or

individuals named by the plaintiffs. In

the case below, several plaintiffs were

denied any pattern/practice discovery for the

practice which they had been subjected to.8

It is crucial that this conflict be

resolved by a review and reversal of the opi- '

nion below. The ruling of the appellate

court below inappropriately allows a District

Court to unduly restrict pattern and prac-

tice discovery even though the Teamster

approved theory is pleaded by the plain-

5

See pp. 15-16 and f.n. 7, supra.

-20-

ee ee eT

tiffs. The opinion below creates a restric-

ive standard of discovery? for plaintiffs

who bring employment discrimination cases

within the Fourth Circuit. This standard is

entirely different than those prevalent in

other Circuits. This standard defeats the

purpose of the employment discrimination sta-

tutes and the Teamsters approved pattern and

practice theory by denying an adequate scope

of discovery.

i) Such discovery is unduly restric-

ted given that: employment discrimination

cases are based on statutes which reflect a

national policy of primary importance; such

restricted discovery deprives plaintiffs of

any meaningful opportunity to utilize the

pattern and practice theory specifically

approved by this Court in Teamsters; and, the

restrictions conflict with the language of

this Court's unanimous opinion in

Oppenheimer Fund, Inc. v. Sanders, 437 U.S.

) that the term "relevancy" in

Rule 26(b)(1) encompasses any matter that

bears on or could lead to other matter that

could bear on any issue that is or may be in

the case. It is important to remember that

attempts to replace the term "relevancy" in

Rule 26(b)(1) with more restrictive language

were rejected. See Wright and Miller,

Federal Practice and Procedure Civil § 2008

ocket Part, ; 08, p.20 (text)

and pp.21-22 at f.n. “Th, 3-14.6). (West

Publishing, 1986).

@2j<

2. The limitations of discovery

affirmed by the court below conflict with

this Court's decision in International

Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977). In Teamsters, this

Court held that a plaintiff is entitled to a

presumption of discrimination in the resolu~

tion of his individual claim once he has met

his burden of proving a pattern and practice

of discrimination. Such a pattern is proven

by evidence (e.g. statistics, comparative

treatment, combination thereof) which shows

that discrimination is the rule rather than

the exception. Once a plaintiff is armed

with this rebuttable presumption of discrimi-

nation in the resolution of his individual

claim, the burden shifts to the employer to

prove a legitimate non-discriminatory reason

for the challenged action. This theory is

different than the resolution for individual

claim within the format set forth in this

Court's decisions itn McDonnell-Douglas Corp.

atin

ee

v. Green, 411 U.S. 792 (1973) and Burdine v.

Texas Department of Community Affairs, 451

U.S. 248 (1981). In the McDonnell-Douglas/

Burdine format, the plaintiff always retains

the dual burdens of persuasion and proof as

to his individual claim, and the employer

never has to prove anything since he only has

to articulate - not prove - a legitimate, non

discriminatory reason.

The discovery limitations of the court

below conflict with Teamsters since they

deprived the plaintiffs of any meaningful

opportunity to prove their individual claims

within the specifically pleaded context of

the Teamster approved pattern and practice

theory. In effect, the discovery rulings

below: limited the analysis of plaintiffs'

individual claims to the McDonnell-Douglas/

Burdine format which imposes the never

shifting burdens of proof and persuasion upon

the plaintiff; and, deprived plaintiffs of

any meaningful attempt to prove their indivi-

-23-

De

dual claims within the context of the pat-

tern/practice theory approved by this Court

in Teamsters and specifically pleaded by the

plaintiffs in their Complaint.

The appellate court below incorrectly

stated that plaintiffs were confusing their

class based claims with their individual

attempts to prove pattern/practice discrimi-

nation. 798 F.2d 679, 685; (A.26A).

Plaintiffs are entitled to an adequate

attempt to prove a pattern and practice of

discrimination. If successful, the plain-

tiffs will have the presumption of discrimi-

nation when it comes time to resolve their

individual claims. With this presumption,

the employer has the burden of proving no

discrimination.

It is important that the conflict be

resolved by a review and reversal of the opi-

-2h-

nion below. The appellate opinion below

effectively removes the Teamster pattern and

practice theory as a viable theory to prove

an individual claim. It does so by denying

discovery which is necessary for proving

discrimination as the rule rather than the

exception. At best, the opinion below allows

discovery which may prove "isolated" inci-

dents of discrimination. This, of course,

fails to meet the Teamster standard.

3. The Court of Appeal's ruling

conflicts with the Fifth Circuit Court opi-

nion in Trevino, supra. In Trevino, supra,

the Fifth Court stated that a plaintiff was

entitled to discovery commensurate with the

pleaded theory. 701 F.2d 397, 405. As stated

above, the discovery rulings below deprived

plaintiffs of any meaningful opportunity to

prove their individual claims within the fra-

mework of the specifically pleaded Teamsters

approved pattern and practice theory. The

conflict arises because the appellate opinion

-25-

below allows a district court, without

abusing its discretion, to limit discovery in

a manner which deprives plaintiffs of a

meaningful attempt to prove the pleaded

theory while Trevino dictates that discovery

commensurate with the pleaded theory is to be

allowed, and the failure to do so constitutes

an abuse of discretion by the District Court.

The appellate opinion below is in

conflict with this Court's description

of the meaning of the term "relevancy" as

used itn FRCP Rule 26(b)(1). In Oppenheimer,

supra, this Court, after quoting the text of

Rule 26(b)(1),19 stated that relevant encom-

passes "any matter that bears on, or reaso-

10

The quoted rule in Oppenheimer was the

1978 version. The 1980 amendments to the

Federal Rules did not change the term

"relevant" in Rule 26(b)(1) even though there

had been suggestions for change. See footnote

10, supra. The text of the first paragraph

of Rule 26(b)(1) ts the same now as it was in

1978. The 1980 amendments, which add the

second paragraph to Rule 26(b)(1), do not

reduce the Oppenheimer definition of rele-

vancy. Said paragraph allows a court to pro-

“tect a party from abusive discovery

requests in a given situation.

=26-

nably could lead to other matter that could

bear on, any issue that is or may be in the

case." 437 U.S. 340, 351. The appellate

opinion below conflicts with Oppenheimer in

that discovery which was relevant to the

individual claims of the plaintiff within the

context of the pleaded theory of a pattern

and practice of discrimination was not

allowed.

It ts important that the conflict bet-

ween the appellate court opinion below and

the Trevino and Oppenheimer decisions be

resolved for the reasons set forth in the

last paragraph of Section IX(1), and footnote

11, supra.

4, The discovery rulings below conflict

with this Court's language in McDonnell-

Douglas, supra, that statistical data (i.e.

pattern/practice information) was to be con-

sidered because it may be reflective of

restrictive or exclusionary practices. 411

-27-

U.S. 792, 806, f.n.19.11 The discovery

rulings below deprived the plaintiffs of any

meaningful opportunity to fully utilize this

aspect of the McDonnell-Douglas/Burdine for-

mat. It did so by depriving them of pattern/

practice information described by this Court

in McDonnell-Douglas as being helpful.

5. The opinion of the appellate court

below dose not appear to explicitly address

the issue of whether the District Court's

ruling that the plaintiffs had to establish

their tndividual claims before any class

discovery would be considered (A.238A-239) is

in conflict with this Court's language in

i

Petitioners recognize that in McDonnell-

Douglas this Court stated that such sta-

tistics "may" be of assistance, and further-

more that such determinations, though

helpful, may not, standing alone, be deter-

minative of challenged individual decisions.

Petitioners submit however that such a

restriction further underscores their argu-

ment concerning the pleaded/proven pattern

and practice theory wherein such general evi-

dence can prove a pattern which gives rise to

the presumption of discrimination when ana-

lyzing the individual claim.

ujite

Eisen v. Carlisle-Jacqueline, 417 U.S. 156,

177-178 (1974). In Eisen, this Court stated

that there is nothing in the history or

language of Rule 23 that gives a court any

authority to conduct a preliminary inquiry

into the merits of a suit in order to deter-

mine class action maintenance.1* The

District Court's requirement is an inquiry in

12

This Court's decision in East Texas Motor

Freight v. Rodriguez, 431 U.S. 395, 91 S.Ct.

1891 (1977) is not applicable. In East

Texas, this Court, concerned with the careful

application of Rule 23 in Title VII cases,

held that the appellate certification of a

class was inappropriate. The plaintiffs

never moved for class certification and lost

their individual claims in a trial limited to

said claims. In footnote l2 of East Texas,

this Court recognized that an appropriately

certified class would not be destroyed

because the class representatives lost their

individual claims. In this case plainitffs

failure to prove their individual claims,

as argued above, is due, at this point, to

the prejudicial and erroneous dential of

necessary pattern/practice discovery. East

Texas is concerned with adherence to Rule 23;

this matter its concerned with the appropriate

scope of discovery.

-29-

to the merits in that it requires, before

considering whether the requisites of Rule

23(a) are met, a plaintiff prove his indivi-

dual claim.13 The District Court's action

engrafted an unauthorized preliminary

requirement upon those set forth in Rule

23(a). The plain language and history of

Rule 23, neither authorizes any preliminary

inquiry into the merits, nor do they require

a plaintiff to prove his individual claim

before class certification is granted. See

Eisen, supra.

The East Texas, supra, and General

Telphone Company. v. Falcone, 457 U.S. 147,

102 S.Ct. 2364 (1982) decisions of this Court

do not justify either the requirement or

13

The conflict is further augmented by the

deprivation of necessary discovery. This

deprivation, described above, resulted in

the plaintiffs not being afforded a meaning-

ful opportunity to prove their individual

Claims within the pleaded theory.

-30-

ieee

discovery limitations of the courts below. 14

In each of these cases, this Court held that

a District Court was to carefully follow Rule

23 in employment discrimination cases.

Neither decision comes remotely close to sup-

porting the actions of the Courts below in

denying pattern/practice discovery and

requiring a plaintiff to prove his individual

case before any class discovery will be con-

sidered.

The District Court was able to deny the

necessary pattern/practice and impose the

challenged requirement by utilizing the

discretion it has pursuant to FRCP Rule 26(c)

to define "pending action" in FRCP Rule

26(b)(1) to be limited to the individual

claims of the named plaintiffs, and removing

Ty

The Court of Appeals below justified its

affirmation of the District Court by its

reliance on East Texas and Falcone. 798 F.2d

at 685; (A.26A-o7A).

-31-

the claims of class/pattern/practice discri-

mination (A.243A). This is an abuse of

discretion, particularly since the plaintiffs

pleaded their individual claims within the

context of the Teamsters approved practice/

pattern of discrimination. Under the

District Court's approach, a trial judge may

define the theories of liability by defining

the scope of the pending lawsuit. The theory

of liability of any action is defined by its

pleadings. A court is not free to add to or

detract from the scope of the allegations set

forth in the pleadings itn such a manner which

removes a theory of liability or defense.

The scope of an action may be reduced or in-

creased because: the resolution of one issue

(e.g. statute of limitations) may resolve the

entire matter; and, the presence or absence

of a meritorious claim or defense. juan a

determination is based upon the evidence that

is present in the record. In this case, the

-32-

determination was not based upon record evi-

dence. It was determined solely by the

District Court stating "this its in" or "this

1s out." This is an abuse of discretion.

There is nothing present in either the

language or history of Rules 26(b)(1) and

26(c) which allow a judge to rule that a por-

tion of the allegations are not part of the

law suit. Such action simply constitutes an

abuse of discretion.

Finally, the District Court's use of

Rules 26(c) and 26(b)(1) allows a trial court

to define "relevancy" in rule 26(b)(1) in

such a manner so as to defeat the broad

meaning given to relevancy by this Court in

Oppenheimer, supra. It does by removing

issues clearly present in the pleadings.

This removal is simply accomplished by

defining what is "pending." This defeats the

broad definition in Oppenheimer which defines

relevancy as "any issue that ts or may be in

the case." 437 U.S. 340, 351.

-33-

It is important that the conflict bet-

ween the opinion below and the above quoted

language of Eisen, Rule 23, and Oppenheimer

be resolved by a review and reversal of the

opinion below. The actions of the courts

below: are clearly inconsistent with the

purposes of Eisen, Oppenheimer, and Rule 23;

allow a trial court to impose an additional

requirement on Rule 23; and, allow a trial

court to deny appropriate discovery through

improper use of the Rules of Civil Procedure.

6. For each of the five foregoing

reasons, the findings of the District Court

below are clearly erroneous. These findings

- like the Diaz and Trevino summary judgments

and the Burns and Rich trial findings - were

based upon incomplete evidence, and a failure

to consider pattern and practice evidence.

The failure to consider the pattern and prac-

tice evidence was due to the inappropriate

iscovery limitations. The process below is

the same as what happened in Diaz, Trevino,

«a Rite

Rich, and Burns except that in those cases

the appellate courts corrected the error,

while in this case, the appellate court below

compounded the error by joining in and

affirming its commission.

X. CONCLUSION

For each of the reasons set forth above,

this Court should grant the writ.

This the Het day of. Jan. » 1987.

RUSSELL & SHEELY

by Melek 2 S

MICHAEL A. SHEELY

418 Law Building

730 East Trade Street

Charlotte, NC 28202

(704) 376-6591

Attorney for Petitioners

-35-

XI. APPENDIX

TABLE OF CONTENTS

PAGE(S)

Opinion of the Court of Appeals 2A-29A

Order of the District Court 30A-230A

(8-19-85)

Order of the Court of Appeals 231A-232A

Denying Petition For Rehearing

Order of the District Court(9-6-85) 233A-234A

Final Judgment of the District Court 235A

(9-6-85)

Discovery Procedure Order of the 236A-240A

District Court (10-26-82)

Discovery Procedure Order of the 241A-244A

District Court (11-22-82)

Discovery Order of the District 245A-262A

Court (4-1-83)

Discovery Order of the District 263A-264A

Court (7-15-83)

Discovery Order of the District 265A-268A

Court (4-19-84)

Text of FRCP Rules 23 and 26(c) 269A-271A

Complaint 272A-275A

Description of Interrogatortes 276A-278A

/Responses

-lA-

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 85-2239

Marcus Ardrey,

James Cherry,

Bessie Easterling Brown,

Louis Funderburk,

Horace Jenkins,

Joyce Massey,

Jerome Morrow, Sr.,

Eugene Neal,

Matthew Smith, Jr.,

Henry Tyson, Sr.,

Cheryl Pettigrew,

Carl Watts, individually and

on behalf of all others similarly

situated,

Appellants,

versus

United Parcel Service,

a corporation,

Appellee.

Appeal from the United States District

Court for the Western District of North

Carolina, at Charlotte. Robert D. Potter,

Chief Judge. (C/A 82-323).

Argued: May 6, 1986 Decided: August 18, 1986

Before MURNAGHAN and WILKINSON, Circuit

Judges, and HAYNSWORTH, Senior Circuit

Judge.

-2A-

|

Michael A. Sheely (Russell, Sheely &

Hollingsworth on brief) for Appellants;

William W. Sturges (Weinstein, Sturges,

Odom, Groves, Bigger, Jonas & Campbell,

P. A. on brief) for Appellee.

MURNAGHAN, Circuit Judge:

I

Numerous plaintiffs employed by the

West Carolina district of United Parcel

Service ("UPS"), which encompasses the

western part of North Carolina and all of

South Carolina and is centered in Charlotte,

North Carolina, by complaint dated May 20,

1982 moved for class certification, filed

individual discrimination claims pursuant

to 29 U.S.C. Section 621, Age Discrimination

in Employment Act ("ADEA"), Section 1981 of

the 1866 Civil Rights Act, and Title VII of

the 1964 Civil Rights Act. The plaintiffs

alleged class discrimination against them

as a race. Specifically, they alleged that

UPS had engaged in a “policy and practice

whereby UPS deprives blacks of their rights

to equal employment opportunities." On

-3A-.

information and belief plaintiffs alleged

four ways in which UPS's policy and practice

operated, namely through 1) termination,

discipline and suspension; 2) promotion;

3) transfer of employees from parc-time to

full-time positions; and 4) racist

atmosphere.1

1 The various individual plaintiffs

alleged discriminatory acts:

(1) Marcus Ardrey--alleged he was

prevented from moving from a part-time

to a full-time position because of his

race; (2) James Cherry-- alleged he

was denied a full-time position (he

was employed half-time) and received

unjustified warnings because of his

race; (3) Bessie Easterling [Brown] --

was denied days off, subjected to

unwanted physical contact by junior

white employees and subjected to

harassment by white dispatchers because

of her race; (4) Louis Funderburk-- was

treated differentially as a UPS driver

because of his race; (6) Joyce Massey--

was discharged because of her race;

(7) Jerome Morrow, Sr.--was denied

promotion and required to work in a

racist atmosphere because of his race;

(8) Eugene Neal-- was harassed and

denied promotion because of his race;

(9) Matthew Smith, Jr.--was given poor

work runs, poorer equipment, and

warning letters for infractions he did

not commit because of his race;

(Continued)

-4A-

The instant appeal concerns the

district court's handling of the discovery

phase of the case. In their first set of

interrogatories the named plaintiffs

requested information related to their

individual claims, as alleged in their

complaint. UPS answered these interroga-

tories and provided information not only

about the specific UPS employee in question,

but also about others who had been promoted,

transferred or qualified for various

positions. 2 At the same time as they served

their first set, plaintiffs served a second

(10) Henry Tyson, Jr.--was subject to

working in a racist atmosphere; (11)

Carl Watts--was disciplined because of

his race; (12) another plaintiff, who

was allowed to intervene, Cheryl

Pettigrew, alleged racial discrimination

in her treatment by her supervisor,

training and subsequent discharge.

2 For example, for plaintiff Marcus

Ardrey, UPS provided the "name, race,

prior experience, prior education,

qualifications, date of hire, date

became full-time of each person who

obtained a full-time package car

driving position between January l,

1980 and December 31, 1982"; for

(Continued) cA

si»

set of interrogatories seeking "class

pattern/practice information" about the

Charlotte, North Carolina headquarters of

the UPS West Carolina region. Plaintiffs

sought information about the employment

history of all employees who had worked in

the Charlotte headquarters since January l,

1979, about all vacancies which occurred in

all job titles since January 1, 1979, the

mame and race of each person who filled the

vacancies and the date the facancies

occurred and were filled, about transfer and

promotion system policies, and the names,

race and job titles of persons with

knowledge of various personnel practices,

including hiring, promotion and transfer and

the methods by which employees were disci-

plined and the ways employees were

plaintiff James Cherry, UPS provided

similar information on those part-time

bargaining unit employees who were

promoted to and qualified for full time

package car driving positions.

-6A-

transferred from part-time to full-time

positions. Plaintiffs also requested

information about the number of whites and

blacks who were promoted, transferred,

employed, or qualified for full-time jobs.

In response to the second set of

interrogatories, UPS filed many answers and

documents, but objected to interrogatories

seeking information about the employment

history of employees, statistics, and

duties, pay grades and minimum qualifica-

tions for jobs that were not related to the

claims of individual plaintiffs.?

For example, UPS refused to provide

the number of whites and blacks in

various broad categories of employment

for 1979 to date because “such data

would be irrelevant to plaintiff

Pettigrew's claim" and objected "to

providing information on the job duties

and pay rates of management, supervisory

and clerical jobs that are not involved

in any of plaintiffs' individual

claims."

tie

7 ee

Before these two sets of interrogato-

ries were served on defendant, UPS had

moved for (and the district court had

granted on October 22, 1982) a limitation

on initial discovery which restricted

plaintiffs to discovery about information

related to their individual claims as

opposed to information regarding their

class action. In granting such a limitation,

the court stated that "[o]nce such

individual action or actions are established,

the Court will consider requests for

further discovery of a class-wide nature.

The plaintiffs have failed to allege or show

how they would be prejudiced by this

bifurcated discovery process." The court

noted it agreed with counsel for UPS that

plaintiffs would be required "to establish

viable individual actions" before class

discovery would be allowed. The court

relied on East Texas Motor Freight System,

Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)

-SA-

and General Telephone Co. of Southwest v.

Falcon, 457 U.S. 147 (1982) in so deciding.4

Subsequent to UPS's refusal to answer

various of their second set of interrogato-

ries, plaintiffs filed motions to compel.

On April 1, 1983, the court denied these

motions on the ground that the information

requested (e.g., name and race of all

persons qualified to be package drivers,

statistical information about promotions to

other jobs, movement from part-time to other

full-time jobs, which were not sought by

plaintiffs), was "hardly germane to [the

individual plaintiffs'] claims in view of

the statistical data already furnished in

respect to the specific jobs they sought."

4 The district court established a

guideline "that discovery at this time

will not be allowed as to other indi-

viduals who are not presently plaintiffs

of record, or to statistical information

regarding groups or classes of employ-

ees, unless such discovery would produce

information relevant to the individual

claims."

-9A-

(Emphasis provided.) The court reasoned

that because UPS had already provided

information about individuals and their

claims pursuant to the first set of

interrogatories, UPS was not required to

produce the "comprehensive employment

history" requested in the second set which

was not relevant to individual claims. The

court also noted such information would be

inordinately burdensome for defendant to

prepare.

Plaintiffs served defendant with a

third set of interrogatories on April 6,

1983. UPS objected to providing discipli-

nary information about the number of blacks

and whites who had received warnings, or who

were suspended or disciplined, and limited

its responses to information about individual

employees which it had already provided.? A

5 Defendant again noted that it

objected "to furnishing the requested

information for all employees in the

(Continued)

-10A-

third motion to compel ensued which the

district court denied. The plaintiffs

moved for reconsideration, on the grounds

of our opinions in Lilly v. Harris-Teeter,

720 F.2d 326 (4th Cir. 1983), cert. denied,

466 U.S. 951 (1984), and Knighton v. The

Laurens School District, 721 F.2d 976 (4th

Cir. 1983). The district court subsequently

modified its order and compelled UPS to

provide the names of those in the Charlotte

office who made various employment decisions,

pursuant to our decision in Lilly, 720 F.2d

at 338, which held that where the "same...

managerial personnel were responsible for

decision making" in several allegedly

discriminatory contexts, a case of discrim-

inatory intent might be made out. In other

regards, the district court reaffirmed its

earlier order.

requested job classifications ...

Since the information would not be

relevant to the individual claims of

any plaintiff and would be unduly

burdensome to obtain.

-l1A-

The case was heard by the court without

a jury and trial was limited to plaintiffs'

individual claims. The district court

found for UPS on all issues and dismissed

plaintiffs' claims. The court found no

evidence that individual black plaintiffs

had been discriminated against in regard to

warnings, suspensions, terminations,

promotions, = moves into full-time jobs,

or had been treated in any way different

from whites. After lengthy findings of

fact, the court examined the relevant law as

set forth in McDonnell Douglas Corp, v.

Green, 411 U.S. 792 (1973) and Texas

Department of Community Affairs v. Burdine,

450 U.S. 248 (1981), which establishes a

shifting burden for Title VII discrimination

suits. The court examined the specific

legal elements of the individual plaintiffs'

claims and found that "Defendant offered

substantial evidence that the alleged

adverse employment actions concerning the

-12A-

Plaintiffs were based upon legitimate,

nondiscriminatory business considerations."

In addition, the court found that plaintiffs

had not shown that the reasons offered by

defendant to explain its employment actions

were pretextual. The district court

concluded that defendants had not discrim-

inated against plaintiffs on account of race

or sex in violation of Title VII or Section

1981. Because it only reached plaintiffs'

individual allegations of discriminatory

treatment, the court did not discuss

plaintiffs' class-based pattern/practice

claim, i.e., that UPS had a “policy and

practice whereby [it] deprives blacks of

their rights to equal employment oppor-

tunities."

The district court retained jurisdiction

of the case as a possible class action for

fourteen days in order to allow preparation

by plaintiffs of a class certification

motion. Because the parties did not submit

-13A-

oo a

a schedule for class certification, the

court dismissed that portion of plaintiffs'

case and entered judgment for the defendants

on September 6, 1985.

If

On appeal, plaintiffs contend that the

district court's limitation of discovery to

their individual discrimination claims

thwarted their efforts to establish that UPS

engaged in a “pattern and practice" of

discrimination against blacks. Because

"class-wide" discovery was not allowed,

plaintiffs were unable to establish pattern

and practice discrimination according to

Teamsters v. United States, 431 U.S. 324,

331, 335-36 (1977). Teamsters discrimination

differs from a McDonnell Douglas/Burdine

Title VII claim in that it allows a plaintiff,

by preponderance of the evidence, to show

that an employer had "a pattern or practice

of emplcyment discrimination" or that

"disparate treatment" of black employees was

-14A-

ciiaditiiretaiiien iaiiieeeaeaeeaeaisiall

the "company's standard operating proce-

dure--the regular rather than the unusual.

practice." Teamsters, 431 U.S. at 436. For

a Teamsters claim, the plaintiff, after

establishing a prima facie case of discrim-

ination, must then, by the preponderance of

the evidence, establish that discrimination

was the "standard operating procedure" of

the defendant. Most often, the plaintiff

establishes such a case by statistics,

bolstered by other testimony. 431 U.S. at

336, 339.

Plaintiffs' argument is that they were

prevented from obtaining the class-wide

discovery related to other black and white

employees of UPS which would allow them to

establish through statistics that UPS had a

"pattern or practice" or standard operating

procedure of discrimination against blacks.

Iit

We begin with the familiar principles

that a district court has wide latitude in

controlling discovery and that its rulings

will not be overturned absent a showing of

clear abuse of discretion. Rabb v. Amatex

Corp., 769 F.2d 996, 999 (4th Dir. 1985);

Belcher v. Bassett Furniture Industries,

Inc., 588 F.2d 904, 907 (4th Cir. 1978);

Ellis v. Brotherhood of Railway, Airline and

Steamship Clerks, 685 F.2d 1065, 1071 (9th

Cir. 1982), aff'd in part and rev'd in part,

466 U.S. 435 (1984). The latitude given the

district court extends as well to the manner

in which it orders the course and scope of

discovery. Eggleston v. Chicago Journeymen

Plumbers Etc., 657 F.2d 890, 902 (7th Cir.

1981), cert. denied, 455 U.S. 1017 (1982);

Sanders v. Shell Oil Co., 678 F.2d 614, 618

(Sth Cir. 1982). Although it is "unusual to

find an abuse of discretion in discovery

matters," Sanders, 678 F.2d at 618, a

district court may not, through discovery

restrictions, prevent a plaintiff from

pursuing a theory or entire cause of action.

-16A-

Diaz v. American Tel. & Tel., 752 F.2d 1356

1363 (9th Cir. 1985); Trevino v. Celanese

Corp., 701 F.2d 397 (5th Cir. 1983).

To put plaintiffs' claims that they

were improperly denied discovery into

perspective, it is necessary to examine the

two broad theories of Title VII cases--

disparate treatment and disparate impact.

At the outset, it is important to note that

the two theories are not applied "with

wooden inflexibility and in unvarying

accordance with the details of their

Original formulations, nor in mutually

exclusive fashion." Lewis v. Bloomsburg

Mills, Inc., 773 F.2d 561, 572 (4th Cir.

1985). Nonetheless, the two theories are

also not "simply interchangeable"--they

indeed do "reflect critical substantive

differences as to discrimination in the

context of Title VII."

The first theory advanced by plaintiff

was that they were discriminated against by

-17A-

Se a Te ene ea

U their employer because of their race, i.e.,

they were subject to "disparate treatment."

Those claims require a determination of

whether the individual plaintiffs were

victims of racial discrimination. In order

to show this, the plaintiffs at all times

have the “ultimate burden of persuading the

court that [they were] the victim[s] of

intentional discrimination." Burdine, 450

U.S. at 256. Whether plaintiffs have in

fact shouldered the burden is subject to the

"analytical framework" of McDonnell Douglas

Corp. v. Green, supra, which is "'intended

progressively to sharpen the inquiry into

the elusive factual question of intentional

discrimination’ in private, nonclass Title

VII cases," Coates v. Johnson & Johnson, 756

F.2d 524, 541 (7th Cir. 1985), citing

Burdine, 450 U.S. at 255 n.8. The district

court here applied the schema of Burdine and

s McDonnell Douglas and plaintiffs make no

objection to the district court's finding

-18A-

that they did not surmount the hurdel of

showing that the legitimate, nondiscrimina-

tory reason {[s]" for UPS's treatment of the

individual plaintiffs were pretextual.

McDonnell Douglas, 411 U.S. at 802; Burdine,

450 U.S. at 254.

A second inquiry is necessary where

plaintiffs, as here, advance a second

theory--a claim that they were subject to

disparate treatment in such a way as to make

them proper representatives of a class

subject to such treatment. The plaintiffs

(if proper class representatives) must

establish individual claims factually

related to the alleged class claims, since a

class-based disparate treatment suit proceeds

on the theory that a company discriminates

against its black employees by treating them

differently than its white employees. In

order to establish a disparate treatment

claim, otherwise known as a "pattern and

practice case," plaintiffs must "'prove more

-19A-

than the mere occurrence of isolated or

"accidental" or sporadic discriminatory

acts. [They need] to establish by a

preponderance of the evidence that racial

discrimination was the company's standard

operating procedure--the regular rather than

the unusual practice.'" Teamsters, 431 U.S.

at 336, quoted in Pouncy v. Prudential Ins.

Co. of America, 668 F.2d 795, 802 (5th Cir.

1982). Statistical evidence may be used in

a disparate treatment case to show "both

motive and a pattern or practice of racial

discrimination. In a proper case, [the

court] may infer racial discrimination if

gross statistical disparities in the

composition of an employer's work force can

be shown." Teamsters, 431 U.S. at 335 n.15,

quoted in Pouncy, 668 F.2d at 802. Once

plaintiffs have established that unlawful

discrimination has been the company's

standard operating procedure by way of

statistical evidence, the burden shifts to

-20A-

defendants to articulate a reason why such

proof is "inaccurate" or "insignificant" or

to show that they had a nondiscriminatory

reason for the "apparently discriminatory

result." Teamsters, 431 U.S. at 360 n.46;

Coates v. Johnson & Johnson, 756 F.2d at 532.

In summary, the "liability portion of

a. . . Class disparate treatment case is

essentially comparable to the framework

outlined in McDonnell Douglas-Burdine for

individual disparate treatment actions," but

[t]he focus in a class action is

“on a pattern of discriminatory

decision-making," of which specific

allegations of alleged discrimina-

tion may be a part, although not

always controlling if the number

of such instances is not signifi-

cant. The class action "may fail

even though discrimination against

one or two individuals have been

proved." The pattern or practice

claim may also fail--despite any

statistical evidence offered by

plaintiffs--if the defendant

articulates a nondiscriminatory,

nonpretextual reason for every

discharge. On the other hand,

the class claim does not fail

just because the district court

finds that the company has satis-

factorily explained the discharges

of the named class representatives

-21A-

and any other testifying employees.

Since strong statistical evidence,

without anecdotal evidence, may in

some cases form a prima facie case,

a defendant's successful rebuttal

of each alleged instance of dis-

crimination weakens, but does not

defeat, a plaintiff's class claim.

Neither statistical nor anecdotal

evidence is automatically entitled

to reverence to the exclusion of

the other.

Coates v. Johnson & Johnson, 756 F.2d at

532-33 (citations ommitted).

The scope of discovery in Title VII

cases is geared to allowing plaintiffs to

proceed under either a disparate treatment

or pattern or practice theory or both.

Generally, undue restrictions of discovery

in Title VII cases are "especially frowned

upon." Trevino, supra, 701 F.2d at 405.

The restrictions placed on such discovery

are dictated "only by relevance and burden-

someness." Rich v. Martin Marietta

Corporation, 522 F.2d 333, 343 (10th Cir.

1975).

In addition, "statistical evidence is

unquestionably relevant in a Title VII

-22A-

disparate treatment case." Diaz, supra, 752

F.2d at 1362. Such evidence may help

establish a prima facie case and is often

crucial for the plaintiff's attempt to

establish an inference of discrimination.

Id. Such evidence may also aid the plain-

tiff in showing that a "defendant's articu-

lated nondiscriminatory reason for the

employment decision in question is pretext-

ual." Id. at 1363. In a pattern and

practice case, "[{s]tatistical data is

relevant because it can be used to establish

a general discriminatory practice in an

employer's hiring or promotion practices.

Such a discriminatory pattern is probative

of motive and can therefore create an

inference of discriminatory intent with

respect to the individual employment decision

at issue. In some cases, statistical

evidence alone may be sufficient to establish

a prima facie case." Id.

The question here presented is whether

the restrictions placed on discovery by the

individual claimants prevented them from

gathering evidence to show that there was

such a "general discriminatory practice" on

the part of UPS. Plaintiffs claim they were

prevented from getting discovery of a

"class-wide nature," i.e., discovery relat-

ing to their proposed class action. They

were restricted to discovery on their

individual claims and were not allowed to

get discovery "regarding groups or classes

of employees, unless such discovery would

produce information relevant to the

individual claims."

However, the district court did allow

discovery as to information regarding others

Similarly situated to the individual

plaintiffs. For example, UPS provided the

name, race, prior job, hire date and date the

individual became a driver for thirteen

individuals who were part-time bargaining

employees promoted to full-time package car

-24A-

driving positions from January 1, 1980 until

December 31, 1981, in regard to Marcus

Ardrey's claim; for James Cherry, UPS

provided similar information as to the

twenty-five persons who were part-time

employees who were promoted to full-time

package car drivers from January 1, 1978

until December 31, 1979 and for twenty-four

who failed to qualify as package car drivers

in the same period; for plaintiff Joyce Y.

Massey, UPS provided similar information on

those promoted to supervisory jobs since

January 1, 1979.

Conversely, what UPS refused to provide

was information about promotion to other

positions, positions which plaintiffs did

not seek, or concerning the employment

histories of employees who held jobs which

were not relevant to individual claims. The

reason articulated by the district court for

refusal to grant such discovery was that it

would be burdensome. We are satisfied that

the district court did not exceed its dis-

cretion in so restricting discovery.

Plaintiffs' argument that the restrictions

foreclosed their opportunity to develop a

pattern and practice case is without merit.

The discovery allowed as to their individual

claims was sufficient to develop evidence,

statistical and otherwise, relating to

whether discrimination was the "standard

operating procedure" of UPS in regard to

their positions, or concerning promotions,

transfers, Suspensions or discipline,

related to their individual claims.

Plaintiffs confuse their "class-based"

claims--as potential representatives of a

class of UPS employees--with their individual

attempts to show a discriminatory pattern and

practice by UPS. The district court has the

responsibility of managing complex Title VII

litigation under guidelines established by

the Supreme Court. In East Texas Motor

Freight v. Rodriguez, supra, the Court has

-26A-

held that district courts must pay close

attention to certification of class

representatives in a Title VII suit. In

General Telephone Co. of Southwest v.

Falcon, supra, the Court rejected the Fifth

Circuit's "across the board" rule which

permitted a class action representative to

represent, on the basis of his or her

discrimination claim, a class of persons who

have no claim in common other than an

allegation that a defendant company has a

policy of discrimination. Falcon, 457 U.S.

at 157. A proper class representative must

"bridge the gap" between his individual

claim and the allegation that the defendant

has a general policy of discrimination

against others of his or her race. The

prospective representative must offer proof

of

much more than the validity of his

own claim. Even though evidence

that he was passed over for promo-

tion when several less deserving

whites were advanced may support

the conclusion that repondent was

-27A-

denied the promotion because of

his [race], such evidence would

not necessarily justify the

additional inferences (1) that

this discriminatory treatment is

typical of petitioner's promotion

practices, (2) that petitioner's

promotion practices are motivated

by a policy of ethnic discrimina-

tion .. ., or (3) that this

policy of ethnic discrimination

is reflected in petitioner's

other employment practices. ...

Falcon, 457 U.S. at 158. A district court

errs if it fails "to evaluate carefully the

legitimacy of the named plaintiff's plea

that he is a proper class representative

under Rule 23(a)." Id. at 160. See also

Lilly v. Harris-Teeter Supermarket, supra,

720 F.2d at 333; Holsey v. Armour & Co., 743

F.2d 199, 216 (4th Cir. 1984), cert. denied,

_ - §.8.. _._ _, 105 &.Ce.. 1395. (1985).

The district court here correctly

following the dictate of Falcon to evaluate

carefully the claims of the individual

plaintiffs in a Title VII suit. We are not

in a position to second-guess the district

court's determination of such matters, given

-28A-

the complext task of managing the multi-

farious questions which arise in such liti-

gation. While we do not hold that the

procedure followed by the district court in

allowing individual discovery, while delay-

ing class-wide discovery, would invariably

be proper or required under Falcon, it was

no abuse of discretion here.

Given the wide discovery allowed on the

individual plaintiff's claims, we hold that

the district court did not abuse its discre-

tion by foreclosing discovery on plaintiffs'

pattern and practice claims. The district

court found that no one of the individual

plaintiffs had established a prima facie

case of discrimination by UPS. For the

foregoing reasons, the decision of the

district court is

AFFIRMED.

-29A-

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

D-C-82-323-P

MARCUS ARDREY, JAMES CHERRY, )

BESSIE EASTERLING, et al., )

Plaintiffs,

vs. ) ORDER

UNITED PARCEL SERVICE,

Defendant. )

The Plaintiffs filed this action on May

20, 1982 alleging they were discriminated

against by the Defendant because of race,

sex, and age in violation of 42 U.S.C.

Section 2000e et seg. ("Title VII"), 42

U.S.C. Section 1981 (Section 1981) and 29

U.S.C. Section 621 et seq. ("ADEA"). By

Order of April 9, 1984 the ADEA claims were

dismissed. The trial was heard before the

undersigned on November 26, 27, 28 and

December 21, 1984 in Charlotte, North

Carolina. The Plaintiffs were represented by

- 30A-

Michael A. Sheely and the Defendant was

represented by William W. Sturges. After a

full trial of the matter, the Court, having

carefully considered the testimony and

exhibits, enters the following findings of

fact and conclusions of law:

(1)

(2)

FINDINGS OF FACT

The Defendant, United Parcel

Service ("UPS") is a corporation

engaged in the interstate trans-

portation of parcels. It employs

in excess of fifteen employees and

is an "employer" within the meaning

of 42 U.S.C. Section 2000e-(b) and

a "person" within the meaning of

42 U.S.C. Section 1981.

Local Union No. 71 of the Teamsters

is the bargaining agent at UPS for

the bargaining unit in which the

majority of the Plaintiffs are

members. The positions covered by

the collective bargaining agreement

include package car drivers, feeder

drivers, part-time loader/unload-

ers, sorters, car washers, mechan-

ics, and building maintenance. The

-31A-

policy of UPS in reference to

full-time bargaining unit posi-

tions provides that for every

three openings two openings would

be filled by part-time bargaining

unit employees and the third open-

ing would be filled from the

street.

(3) There are twelve Plaintiffs in

this litigation who were all

employed at the West Carolina

District of UPS. ‘This district

encompasses the western part of

North Carolina and all of South

Carolina.

(4) The Plaintiff, Marcus Ardrey, a

black male is currently employed by

UPS as a full-time car washer

shifter. He asserts claims of

racial discrimination in the denial

of package car driver position and

preloader position.

(5) The Plaintiff, James Cherry, a

black male, is currently employed

by UPS as a full-time package car

driver. He asserts claims of

racial discrimination in the denial

-32A-

of a preloader position and in the

issuing of warnings to him. In

addition, he claims the warnings

were issued in retaliation for his

opposition to practices illegal

under Title VII.

(6) The Plaintiff, Bessie Easterling

Brown, a black female, is cur-

rently employed by UPS as a feeder

driver. She alleges racial dis-

crimination in the issuance of

warnings to her, the denial of

time off, her one day discharge

and her general treatment by the

supervisors.

(7) The Plaintiff, Lewis Funderburk, a

black male, is currently employed

by UPS as a feeder driver. He

alleges racial discrimination in

the assignment of feeder driver

equipment.

(8) The Plaintiff, Horace Jenkins, a

black male over forty, was for-

merlyl employed by UPS as a package

1

There is a pending EEOC charge about

(continued)

-33A-

liicnssicieeneiiieiiiieerenenmaeiill,

car driver. He alleges age and

racial discrimination in the

denial of light duty work, the

removal of the responsibility of

"call tags” and "one shots" and

the assignment of equipment. His

ADEA claim has already been dis-

missed and summary judgment in

favor of UPS was granted on his

light duty ciaim.

(9) The Plaintiff, Joyce Massey, a

black female, was formerly

employed by UPS as a part-time

Simulator. She alleges sex and

race discrimination in her dis-

charge after she was laid off by

UPS. She was not a member of Local

Union No. 71.

(10) The Plaintiff, Eugene Neal, a black

male, is currently employed by UPS

as a feeder driver. He alleges

racial discrimination and retalia-

tion in the denial of a supervisor

position and in assigning overtime

work. He further testified that

Mr. Jenkins' possible reemployment in 1984.

The charge is still pending before the EEOC

and is not included in this litigation.

_ -34A-

racial discrimination exists in

the assignment of feeder driver

equipment.

(ll) The Plaintiff, Matthew Smith, a

black male, is currently employed

by UPS as a feeder driver. He

alleges racial discrimination in

the assignment of feeder driver

equipment and the issuance of

warnings and suspensions.

(12) The Plaintiff, Carl Watts, a black

male, is currently employed by UPS

as a part-time loader. He alleges

racial discrimination in the denial

of a package car position and in

the issuance of warnings.

(13) The Plaintiff, Cheryl Pettigrew, a

black female, was formerly

employed by UPS as a tracer clerk.

She alleges racial discrimination

in her treatment by her supervisor,

her training and her subsequent

discharge.

(14) The Plaintiffs, Jerome Morrow and

Henry Tyson, black males, are cur-

rently employed by UPS as full-

= 35A-

time car wash shifters. They

allege racial discrimination by

having to work in a racist atmos-

phere.

(15) All of the Plaintiffs allege

racial discrimination by being

subjected to work in a racist

atmosphere.

(16) All of the Plaintiffs filed a

timely charge with the Equal

Employment Opportunity Commission

("EEOC") and exhausted their

administrative remedies.

A. ARDREY - PACKAGE CAR DRIVER

(1) On April 7, 1980 Mr. Ardrey

applied for a full-time package

car position. His application

revealed he was convicted on July

16, 1979 of a DUI and his license

was suspended for six months.

(2) Applicants for driving jobs must

meet designated pre-qualification

requirements before they are

accepted as candidates to qualify

as drivers. One of these require-

- 36A- .-

ments is that an applicant must

have an acceptable driving record

for the past three years. Such a

record has been defined as one

that does not have a license

suspension or revocation within

the past three years for, among

other reasons, driving under the

influence.

(3) Mr. Ardrey was denied the opportu-

nity to qualify for a driving job

because he did not have an accept-

able driving record for the pre-

ceding three years because of the

DUI conviction.

There is not any evidence that any

white person was allowed to qualify

without meeting the three year

clean record requirement. Mr.

Ardrey does not contend that the

Company's failure to qualify him

because of his DUI was a pretext

for discrimination.

(4) Mr. Ardrey complains because he was

mistakenly told by two white

management employees that it was

only two years. Mr. Johnson, a

-37A-.

(5)

black supervisor, told Mr. Ardrey

that it was three years. It is

not clear why Mr. Ardrey contends

the mistake is suppose to corre-

late to race.

The Court finds that Mr. Ardrey

failed to show that in applying

for the package car position he

was treated differently because of

his race. (The Plaintiff's

Proposed Findings of Fact also

state that Mr. Ardrey failed to

prevail on this claim.)

B. PRELOADER - ARDREY AND CHERRY

1.

(1)

(2)

Ardrey's Training

Mr. Ardrey was hired by UPS in

August 1973 as a part-time trailer

unloader. He was in the military

between August 1975 and August

1979. In October 1979 he

returned to UPS as a part-time

unloader.

On February 11, 1980 Mr. Ardrey

began training for a full-time

preloader position on the sortrac.

The qualification period is thirty

- 38A-

(3)

(4)

(5)

days.

The sortrac is a 250 feet long

conveyor belt with twelve slides

on each side of the conveyor belt.

Belts carry packages which are

diverted down the slides for load-

ing into package vans. There are

approximately forty package cars

parked. on each side at the end of

the slides for loading. The

Slides are eight to ten feet long

and ten feet wide. The higher end

of the slide is about five and a

half feet and the lower end is

about three feet. There are return

conveyor belts beneath the slides.

Preloaders also work in the "box-

line" area which is next to the

sortrac. Packages in the boxline

are delivered to the preloaders by

being placed in cages which are on

a continually running conveyor

belt. The parties disagree as to

what is the easiest area to work

on the sortrac.

The keyers divert packages to the

slides and cages. A package which

- 39A--

is incorrectly keyed and does not

belong on a slide is a missort or

miskey.

(6) Ken Hudson, a white male, super-

vised six employees on one side of

the sortrac and Jim Stone super-

vised the employees on the other

side. Mr. Hudson's immediate

supervisor was Rich Young, the

sortrac manager.

(7) Mr. Ardrey's qualification super-

visor was Ken Hudson. Mr. Ardrey

was assigned slides A-54 and A-25,

side by side in the sortrac area.

(8) The job of preloader is to remove

the packages from the slide and

load them in the designated loca-

tions inside the package cars.

There were three to four vans

assigned to each slide. The pack-

ages were placed in the package

cars in terms of a sequence deter-

mined by the route of the package

car. A "sequence chart" estab-

lished the order. A "sequence

number" was determined by an

address. Certain customers, due to

-40A-

(9)

(10)

(11)

their volume, receive sequence

numbers. Eighty percent of the

packages loaded on the cars are

placed within twenty percent of

the sequence numbers in the car.

The sequence chart was a computer

print out which was usually

received daily at the beginning of

the shift. The sort work hours

were from 11:00 p.m. to 8:00 or

8:30 a.m.

UPS implemented standard training

programs for training employees

attempting to qualify for the var-

ious positions. Each training

program was designed for the needs

of the particular position.

UPS utilized a standard training

program for training preloaders.

At the completion of the training

period the employee is required to

meet an established minimal level

of competency in order to be quali-

fied (receive seniority) as a pre-

loader.

To attain seniority as a preloader

the employee must meet at least a

-4TA-

200 package production rate at the

end of his training period. There

was not any evidence that any

employee, black or white, was

allowed to gain seniority as a

preloader without satisfying this

200 package set level of compe-

tency.

(12) Mr. Ardrey failed to meet the 200

package quota and therefore was

not allowed to qualify as a pre-

loader. Mr. Ardrey testifies that

he was unable to satisfy the

requirement because he received

inferior training and harder

assignments because of his race.

(13) Mr. Ardrey testified that his

training was sparse and that the

only training he received was on

"stop count" and "off load" of

packages. This training was

received during the first three

days of his qualification period.

Although Mr. Ardrey conceded that

he received help from other

employees when his belt jammed, he

contended that the help was "late"

-42A-

liaise

(14)

and caused Mr. Ardrey to lose his

production level since efforts

would be spent in clearing the

Slides. Mr. Ardrey further testi-

fied that training on slides A-54

and 25 was more difficult because

these slides were at the beginning

of the main belt and were more

likely to jam. Each time the belt

jammed packages not belonging in

the A-54 and 25 slides were pushed

on the slides which would slow Mr.

Ardrey's production. Mr. Ardrey,

in addition, testified that he

knew the A-54 slide chart "pretty

well”. He was tested twice on his

chart knowledge and only scored

-30% on each test. Finally, Mr.

Ardrey testified that he received

more missorts and miskeys than

white trainees and was not promptly

informed of added or deleted stops

during his shift.

UPS contends that Mr. Ardrey

received the same training,

assistance and opportunity to

qualify as any other employee,

black or white. On Mr. Ardrey's

-43A-

first day of training he received

orientation on personnel matters

from Martin Taylor. Mr. Ardrey

began his on-the-job training the

second day. This training

involved personal training in all

aspects of the job by Mr. Hudson.

The same training was repeated the

next day. Mr. Hudson testified

that he spent approximately 70% of

his time with Mr. Ardrey during

these initial two days.

(15) On the fourth day Mr. Ardrey

received his first sortrac trainee

evaluation by Mr. Hudson. At this

time Mr. Ardrey was only loading

the A-54 area. Mr. Hudson reviewed

this evaluation with Mr. Ardrey.

Mr. Hudson rated Mr. Ardrey good in

attendance, attitude, follows

instructions, and parcel knowledge.

He was rated fair in production,

retention, personal safety and

knowledge of job. At this time

Mr. Ardrey was averaging eighty-

five pieces per hour which is

average progress at this stage.

Mr. Hudson recommended that

-44A-

Mr. Ardrey become more familiar

with 80/20 (chart) knowledge.

This evaluation is documented by

a contemporaneously written evalu-

ation signed by Mr. Ardrey (Def.

Ex. 13).

(16) On the fourth day another written

evaluation was prepared, which

evaiuation is signed by Mr. Ardrey.

It states that Mr. Ardrey needs to

become more aggressive and enthu-

Siastic, although his lack of

enthusiasm is in part due to his

lack of job knowledge. The evalu-

ation further provides that his

attitude, retention, service, and

personal safety is good, he fol-

lows instructions well and his

production is acceptable. (Def.

Ex. 14).

(17) On his fifth training day, Mr.

Ardrey was evaluated on his slide

to car methods. These methods

involve essentially activities at

the slide pre-sorting packages so

that optimum carries can be made in

loading the package cars and

-445h-

(18)

(19)

activities within the car in

shelving the packages properly.

In the slide to car evaluation

Mr. Ardrey received a good in the

majority of the categories. Mr.

Hudson, however, stressed that Mr.

Ardrey needs to improve his speed,

chart knowledge, and optimum car-

ries. This evaluation was docu-

mented and signed by Mr. Ardrey.

(Def. Ex. 15).

Mr. Ardrey's average package per

hour rate at the end of his first

week was eight-three packages.

This end-of-the-week progress

report is documented. (Def. Ex.

16).

On February 18, 1980 Mr. Ardrey was

given a written 80-20 chart knowl-

edge test. Mr. Ardrey scored 30%

on the test. This test is docu-

mented and signed by Mr. Ardrey.

(Def. Ex. 17). After the test, Mr.

Hudson counseled Mr. Ardrey that

UPS expected 200 packages per hour

in order to gain seniority and that

he should be able to handle A-54

the first week without problems

-46A-

(20)

(21)

because the second week A-25 would

be added and A-88 would be added

the third week. Further, Mr.

Hudson reviewed his current

production level and reviewed

where he needed to be week by

week. Mr. Hudson told Mr. Ardrey

that he must study and learn the

80-20 charts given to him. This

counseling was documented in Mr.

Ardrey's file. (Def. Ex. 18).

(Def. Ex. 20).

On February 19, 1980 Mr. Hudson

worked with Mr. Ardrey for eight

hours reviewing the preload pro-

cedures and good methods. Mr.

Hudson worked with Mr. Ardrey to

demonstrate the work pace needed

to reach the established goals.

Mr. Ardrey replied that this pace

"was killing him." Mr. Hudson pre-

pared a written report documenting

this training. (Def. Ex. 19).

In addition, on February 19, 1980

Mr. Young (the preload manager)

performed a slide to car evaluation

on Mr. Ardrey. Mr. Young observed

-47A-

that Mr. Ardrey's chart knowledge

was insufficient at 56%, that he

was not selecting packages for

optimum carries to one car and

that his work pace lacked a sense

of urgency or aggressiveness. The

evaluation was documented and

Signed by Mr. Ardrey.

(22) On February 20, 1980 Mr. Hudson

performed the second sortrac

trainee evaluation, day nine. Mr.

Ardrey was rated good in atten-

dance, retention, personal safety,

following instructions, and parcel

handling. His attitude and job

knowledge was fair. It was recom-

mended that he needed to improve

his speed and chart knowledge. In

fact, his package per hour rate

was still at eight-five, having not

increased at all over his first

week's rate. This evaluation was

documented and signed by Mr.

Ardrey. (Def. Ex. 21).

(23) On February 22, 1980 Mr. Hudson

worked with Mr. Ardrey on using

better methods for space utiliza-

tion within the car. Mr. Hudson

-48A-

(24)

(25)

demonstrated the proper procedure

for adjusting shelves and moving

steps on the shelves for maximum

utilization of existing shelf

space. This training was docu-

mented by Mr. Hudson. (Def. Ex.

23).

In addition, on February 22, 1980,

Mr. Hudson performed the tenth

day, slide to car evaluation of

Ardrey. Mr. Ardrey was rated good

to very good in many areas. His

package per hour rate, however,

was only 96% and he had to refer

to the chart eight out of sixteen

times. He was told that he needed

to improve his pre-sorting and

that his chart knowledge "reveals

a great need for improvement.

Chart knowledge from observation

shows little or no chart knowl-

edge." This evaluation was docu-

mented and signed by Mr. Ardrey.

(Def. Ex. 24).

On February 25, 2980 Mr. Young

completed the center manager's

review with pre-seniority employee.

Mr. Young found Mr. Ardrey to be

~49A- —

ee

strong in personal safety and stop

for stop training. He was found

to be weak in speed, chart knowl-

edge, stop count accuracy and

production. Although his produc-

tion level should have been 150

packages per hour at this time it

was only ninety-eight. He was

advised that he needed to improve

his speed in loading and should be

able to load the area without help

at this juncture. This review was

documented and signed by Mr.

Ardrey. (Def. Ex. 25).

(26) Mr. Hudson performed the third

sortrac evaluation and commentary,

day fifteen, of Mr. Ardrey on

February 28, 1980. Mr. Ardrey was

rated good in attendance, personal

safety, following instructions, and

handling parcels. He was rated

fair in attitude, production,

retention and job knowledge. Mr.

Ardrey's production level was only

100 packages per hour. Mr. Hudson

told Mr. Ardrey that he needed to

study the charts and increase his

speed and chart knowledge. Further

his production needed "drastic

-SOA-

(27)

(28)

improvements". This evaiuation

was documented by Mr. Hudson.

(Def. Exs. 26, 27).

On February 29, 1980, his six-

teenth day, Mr. Ardrey received

his third slide to car evaluation.

Mr. Ardrey continued to be rated

good to very good in the same

areas and his space utilization

had improved. He, however, con-

tinued to be deficient in chart

knowledge and speed. He was

advised his chart knowledge was

less than it should be and that he

needed to improve this deficient

chart knowledge by studying his

80-20 sheets. If his speed and

knowledge were not increased he

would never be able to progress to

the A-25 slide. This evaluation

was documented by the Defendant.

(Def. Ex. 28).

On Mr. Ardrey's seventeenth train-

ing day, Mr. Young with the assis-

tance of Mr. Hudson conducted a

center manager's review with pre-

seniority employee about Mr. Ardrey.

Mr. Ardrey's strong area was stop

-5 1h}

a

(29)

fer stop loading. His weak areas

were counts, wrap up, and work

rate. Mr. Ardrey's actual produc-

tion rate was 114 packages per

hour, significantly below the 200

planned production level. Mr.

Ardrey was advised that he needed

drastic improvement in his wrap up,

stop counts and work rate by March

8, 1980 or he would not gain

seniority. This evaluation was

documented and signed by Mr.

Ardrey.

On his twentieth training day Mr.

Ardrey received his final sortrac

trainee evaluation. His atten-

dance, personal safety, following

instructions, handling parcels and

job knowledge was rated good. His

attitude and retention was found

to be fair. His production rating

was poor. His production rate had

dropped to eighty-nine considerably

below the 175 to 200 piece per

hour plan rate. The evaluation was

documented by Mr. Hudson. (Def.

Ex. 30).

(30) Mr. Hudson also prepared a final

slide to car evaluation. Mr.

Ardrey continued to receive good

ratings in the same areas and his

space utilization was greatly

improved. He, however, continued

to have a serious problem with

chart knowledge. He was given an

80-20 test and only scored 30%.

In observation Mr. Hudson found

that Mr. Ardrey handled seventy-

two packages per hour with only

33% chart knowledge. His low

level of production was due to his

lack of chart knowledge. Mr.

Hudson documented this evaluation.

(Def. Exs. 32, 34).

(31) Mr. Hudson's final pre-seniority

evaluation of Mr. Ardrey on March

11, 1980 concluded that Mr.

Ardrey's attitude seemed less than

eager, that he failed to study the

80-20 study sheets and as a result

his production was hampered. Mr.

Hudson did not recommend Mr. Ardrey

for seniority. This evaluation was

documented by Mr. Hudson. (Def.

Ex. 33).

-53A-

(32)

On March 11, 1980 Mr. Hudson pre-

pared a detailed memorandum sum-

marizing his reasons for not

being able to recommend Mr.

Ardrey for seniority. The memo-

randum in part provides:

The reasons for not wrap-

ping up are due in part

to a long standing lack

of chart knowledge. This

is upheld by the test

scores of the 80-20 study

sheets. This in itself

has hampered Marcus from

becoming qualified in

this particular area. I

feel with the lack a [sic]

aggressiveness to study

these sheets and become

familiar with his work

area has greatly decreased

his chance of becoming a

seniority employee.

The aggressiveness that

should be present with a

pre-senior employee seemed

lacking in Marcus. I feel

greatly that Marcus has

-54f-

the ability to become a

preloader if he wants

to. But, without the

effort and enthusiasm

to pursue the require-

ments of the job he has

fallen short of his

recommended levels of

production.

Marcus has only reached

an average production

rate of around 114

pieces per hour. At

this rate he will never

be total [sic] capable

of loading this assigned

area.

Due to the above on this

23rd day of pre-seniority,

I personally do not

recommend Marcus Ardrey

for gaining seniority in

my operation.

(33) On March 12, 1980 Mr. Hudson pre-

pared a "Synopsis of Work

Performance" regarding Mr. Ardrey.

After describing Mr. Ardrey's

failure to attempt to learn the

charts, Mr. Hudson noted

These factors alone show

that Marcus was determined

to perform by his standards

rather than perform by the

expectations of myself. He

presented himself as if he

were going to qualify in

his own terms.

I feel attitude and

mispeculation {sic] of our

operation was the major

problem that lead to his

disqualification. I also

feel Marcus did not have

any idea that we could

disqualify him.

(Def. Ex. 36 B).

(34) On March 12, 1980 Mr. Young, Mr.

Hudson and Mr. Ardrey met to dis-

cuss Mr. Ardrey's status. Mr.

Young asked Mr. Ardrey how he felt

his progress was as a pre-sorter.

Mr. Ardrey replied “that his

-56A-

icine niall

(35)

(36)

progress was about the same as

day one." Mr. Ardrey was advised

that he was being disqualified

from the sortrac. He responded

that he had never heard of anyone

being disqualified from the

sortrac. Mr. Young informed Mr.

Ardrey that although in the past

preloaders had not been properly

trained, within the past six

months UPS had set these basic

requirements for all new preload-

ers. Since that time some

employees had qualified and some

had not qualified, depending on

whether they met the requirements

in the pre-seniority training.

This meeting is documented. (Def.

Ex. 36 A).

After Mr. Ardrey's disqualifica-

tion he was returned to a part-time

position with UPS.

On March 19, 1980 Mr. Ardrey filed

a grievance with the union contest-

ing his disqualification from the

sortrac. The grievance does not

mention or even allude to improper

treatment because of his race.

Mr. Ardrey claimed that UPS used

improper procedures for qualifying

employees, which standards have

not been agreed upon by Local 71.

Mr. Ardrey felt that the require-

ments were unfair because UPS was

requiring loading standards higher

than those required of full-time

qualified employees. (Def. Ex. 1).

(37) Mr. Ardrey stated that the union

grievance was settled by allowing

him and Mr. Cherry to try and qual-

ify for the next full-time job on

the sortrac without waiting one

year, which wait is normally

required when an employee is dis-

qualified from a job.

(38) After the settlement of the

grievance Mr. Ardrey was offered a.

full-time car wash job, which job

he refused to accept. Thereafter,

Mr. Ardrey filed another grievance

claiming that UPS did not abide by

the settlement terms of the first

grievance. (Def. Ex. 2). Mr.

Ardrey did not prevail on his

second grievance. He was not

offered another opportunity to

-58fh-

|

2.

(1)

(2)

(3)

qualify on the sortrac nor was he

offered another full-time position

in settlement of the first

grievance.

CHERRY'S TRAINING

James Cherry was hired by UPS in

August 1973 into a bargaining unit

position of part-time unloader.

In this litigation he complains

that he was disqualified in his

attempt to qualify as a preloader

on the sortrac because of his race

in violation of 42 U.S.C. Section

1981. He did not file an EEOC

charge covering this allegation.

Mr. Cherry began training for a

full-time preloader job on the

sortrac on January 7, 1980.

His training supervisor was Mr.

Hudson and his area supervisor was

Mr. Young. He was trained on the

slides for areas 54 and 25. He was

trained by the same supervisors and

trained on the same slides as Mr.

Ardrey. Mr. Cherry's qualification

period also was for thirty working

-59A-

days, under the same standard

training program.

(4) On January 7, 1980 Mr. Cherry was

given the orientation on personnel

matters by Martin Taylor (Def. Ex.

109).

(5S) On January 10, 1980 Mr. Hudson

gave Mr. Cherry his first sortrac

trainee evaluation, day four. The

evaluation reports that Mr. Cherry

is enthusiastic, very aggressive,

has a good attitude, follows

instructions well, and is very

service minded. His weaker areas

were knowledge of the job, his

speed and his production. This

evaluation is documented and

Signed by Mr. Cherry. (Def. Ex.

140, i423).

(6) On his fifth day, Mr. Cherry was

evaluated on his slide to car

methods. In this evaluation, Mr.

Cherry was found to have a good

pre-sort, car and post sort

routine. He, however, needed to

improve his speed in loading which

was slow due to his lack of chart

-60A-

(7)

(8)

knowledge and having to con-

stantly refer to the charts. This

evaluation is documented and

Signed by Mr. Cherry. (Def. Ex.

112).

On the fifth day, Mr. Hudson also

performed a productivity evalua-

tion. Mr. Cherry's planned pro-

duction rate was 125 packages per

hour. His actual rate was ninety-

four packages per hour. Mr.

Hudson recommended that Mr. Cherry

should improve his chart knowledge

which would result in an increase

in his package per hour rate. This

evaluation is documented and signed

by Mr. Cherry. (Def. Ex. 113).

On January 15, 1980, Mr. Cherry's

progress was reviewed. Mr. Cherry,

after six days, was not able to

slide area 54 without any help,

even though he received extensive

training for three days and had

received training each day there-

after. It was stressed to him that

by the end of the week he should be

able to load areas 54 and 25 with-

out help. He was told that he

-61A-

would be given an 80-20 test the

next day for which he should study

and that UPS expected to witness

some improvement by January 18,

1980 or he would be disqualified.

This review is documented. (Def.

Ex. 114).

(9) The following day Mr. Cherry cor-

rectly answered only one out of

the eleven questions on the 80-20

test. (11%). The test covered

slide A-54. (Def. Ex. 118).

(10) The test results were thought to

reflect the major problem that Mr.

Cherry had in his work area.

Again, it was stressed to him that

if his performance did not

increase by Friday he would be

disqualified. This review is

documented. (Def. Ex. 115).

(11) On Mr. Cherry's ninth day of train-

ing, Mr. Hudson prepared the second

sortrac evaluation and commentary.

Mr. Cherry received a good in

attendance, attitude, personal

safety, following instructions and

parcel handling. His production

-62A-

(12)

(13)

(14)

rate, however, was only at ninety

pieces per hour. Thus he only

received a fair rating in produc-

tion, retention ard job knowledge.

This report is documented. (Def.

Ex. 116).

On the day nine commentary Mr.

Cherry was found to be enthusias-

tic, aggressive, service minded,

and showing improvement. His

production level, however, still

was not on an acceptable level and

needed improvement. This commen-

tary is documented. (Def. Ex.

Liv}.

On January 18, 1980 Mr. Cherry took

an 80-20 test for area 54 on which

he scored 90%. Mr. Hudson recom-

mended, in light of his reasonable

progress, that he not be disquali-

fied. Mr. Hudson did qualify his

recommendation by noting that Mr.

Cherry "has a long way to go to

become qualified as a seniority

employee." (Def. Ex. 119).

On Mr. Cherry's tenth day of train-

ing he met with Mr. Young and

--63A-

(15)

Mr. Hudson to review his progress.

By then Mr. Cherry had attained a

production rate of 115 packages

per hour. It was agreed that Mr.

Cherry would have to attain a goal

of 175 packages per hour by

January 15, 1980 and that he would

have to handle areas 54 and 25

without assistance. Area 88 would

be added the following week so he

could attain 200 packages per hour.

Mr. Cherry indicated that these

goals seemed reasonable and that

he could attain them. He was

encouraged to put some extra

effort in learning the sequence

numbers from the 80-20 charts.

This meeting was documented. (Def.

Bx. i2i}.

On the January 21, 1980 slide to

car evaluation Mr. Cherry continued

to receive positive remarks on his

pre-sort, car and post sort proce-

dures. He, however, was slow to.

develop his chart knowledge, which

knowledge along with package per

hour rate and wrap up needed dras-

tic improvement. This evaluation

is documented. (Def. Ex. 122).

~64A-

(16)

(17)

(18)

(19)

The second productivity evaluation

revealed that Mr. Cherry's actual

package per hour rate was only

seventy-seven, compared to the

planned rate of 105. It was

recommended that if he improved

his chart knowledge his overall

production rate would improve.

This evaluation is documented and

Signed by Mr. Cherry. (Def. Ex.

123).

On his second chart test Mr.

Cherry scored 100%. Despite this

good score, when he worked he

continued to refer to the charts

too much which hindered his produc-

tion rate. He still was not able

to manage areas 54 and 25. This

evaluation is documented. (Def.

Ex. 125).

On January 22, Mr. Cherry scored

80% on the chart test. (Def. Ex.

126).

On January 23, 1980 Mr. Hudson

reported to Mr. Young that Mr.

Cherry had not yet been able to

load slides A-54 and A-25. His

(20)

80-20 test scores had improved

but his overall production rate

was too low for this stage of

training. He was still referring

to his charts too much. Mr.

Hudson reported that Mr. Cherry

would have to make considerable

gains in his work pace to qualify.

This report is documented. (Def.

Ex. 127).

On January 25, 1980 Mr. Young per-

formed a slide to car evaluation

of Mr. Cherry. He found an

improvement in Mr. Cherry's knowl-

edge. Mr. Cherry, however, was

using improper selection methods

so he would load only the packages

he knew. Mr. Young was of the

opinion that this caused Mr. Cherry

to end up at the end of his shift

with all the packages he did not

know. Further, Mr. Cherry was not

carrying optimum loads to the

package cars. On eight occasions

he carried more than one package.

On thirty-one occasions, however,

he carried only one package. This

evaluation is documented. (Def.

ae. 2203.

-66A-:

(21) On Mr.Cherry's fifteenth day of

training, Mr. Hudson prepared the

third sortrac trainee evaluation.

Mr. Cherry continued to receive

good ratings in all of the cate-

gories except production and

retention. His production rate

was at 110 pieces per hour. This

evaluation is documented and

Signed by the Plaintiff. (Def.

Ex. 129).

(22) Mr. Cherry's third slide to car

evaluation was prepared by Mr.

Hudson. He continued to receive

positive ratings on his pre-sort,

car and post sort procedures. He,

however, still needed to improve

his chart knowledge and to carry

optimum loads. In loading thirty

packages he had to refer to the

chart eleven times. This report

is documented and signed by Mr.

Cherry. (Def. Ex. 130).

(23) In the sortrac commentary Mr.

Hudson found Mr. Cherry to be

aggressive, enthusiastic and very

service minded but he needed to

improve his production. This

-67A=

commentary is documented. (Def.

Ex. 131).

(24) On January 28, 1980 Mr. Cherry

received his third productivity

evaluation. He loaded thirty

packages in ten minutes. Mr.

Hudson remarked that Mr. Cherry

needed to improve his optimum car-

ries and thus increase his pack-

age per hour rate. His total pro-

ductivity rate needed to be much

higher. This evaluation is docu-

mented. (Def. Ex. 132).

(25) On his twentieth training day, Mr.

Hudson performed the final sortrac

trainee evaluation. His package

per hour rate was only at 100 pack-

ages and thus he received a poor

rating on production. His produc-

tion was far below where it should

have been at 200 packages per hour.

This evaluation is documented and

Signed by the Plaintiff. (Def. Ex.

133).

(26) On the final sortrac commentary Mr.

Cherry received good ratings except

as to his production which was

-68A-

| |

rated poor at 100 packages per

hour. This final commentary is

documented (Def. Ex. 134).

(27) Mr. Cherry's production during the

week ending February 2, 1980

ranged from a high of 133 pack-

ages per hour to a low of ninety-

four packages per hour. This

range was far below the 200 pack-

age per hour planned rate. This

week average evaluation is docu-

mented. (Def. Ex. 135).

(28) The final productivity evaluation

of Mr. Cherry on his twenty-second

day of training found his actual

production at 111 packages per

hour. Mr. Hudson noted that with-

out an improvement of eighty-nine

packages by Friday, Mr. Hudson

would not be able to recommend Mr.

Cherry for seniority. This evalua-

tion is documented. (Def. Ex. 136).

(29) On the final slide to car evalua-

tion dated February 5, 1980 Mr.

Hudson rated Mr. Cherry very good

on pre-sort, slide and post sort

procedures. In summarizing his

-€9A-

(30)

(31)

performance, however, he stated

that Mr. Cherry's production is

poor, he needs improvement and he

has reached a stalemate in his

progression. This final evalua-

tion is documented. (Def. Ex.

138).

On Mr. Cherry's final pre-

seniority evaluation Mr. Hudson

did not recommend him for senior-

ity because of his low productiv-

ity. The evaluation provides that:

James has tried hard - very

hard and has been very good

in all stop for stop

service audits in this pér-

iod. James' biggest problem

is his productivity. He is

slow is [sic] organization

and performance of job

function.

The following day, Mr. Young and

Mr. Hudson met with Mr. Cherry to

@iscuss his progress. Mr. Young

told Mr. Cherry that his progress

was not satisfactory on his twenty-

third day of his thirty day

- 70A-

training program. Mr. Cherry

seemed to be stuck at the 100 to

110 package per hour level. Mr.

Cherry was reminded that 200

packages per hour was required for

seniority. He was advised that

basically he was being held back

by spending too much time on the

slide selecting packages and not

having enough optimum carries.

Mr. Young further told Mr. Cherry

that he would observe his work

later during the shift and that by

Friday, February 8, 1980 he needed

to be loading 200 packages per

hour and handling slides 54 and 25

without any help in eight hours.

Mr. Cherry stated that he thought

the problem was too many miskeys.

Mr. Young told him that the 200

package per hour rate took into

account the work required by mis-

keys and that Mr. Cherry should

stack his miskeys for Mr. Young

and Mr. Hudson to inspect. This

meeting is documented. (Def. Ex.

139).

(32) Later during the shift Mr. Young

-7\A-

5

.

-

3

(33)

performed a slide to car evalua-

tion of Mr. Cherry. In the six-

teen minute observation Mr. Cherry

handled fifty-two packages which

equals a production rate of 195

packages per hour. Mr. Young

found that Mr. Cherry did not sort

quickly and efficiently on the

slide and that 50% of his loads

were single carries. Again, the

Single carries reflected the fact

that Mr. Cherry was selecting

packages with familiar sequence

numbers in order to increase his

chart knowledge rating. The mis-

key rate was only 3.5%. This

slide to car evaluation is docu-

mented. (Def. Ex. 140).

During Mr. Cherry's last week of

training his actual package per

hour rates were 145, 99, 116 and

134. His highest actual package

per hour rate during his entire

training period never exceeded 145.

His actual package per hour rates

for his last week and for his

entire training period are docu-

mented. (Def. Exs. 142, 143).

enn TCR ee ee ee ae ee eee et ee ee

(34) On February 8, 1980 Mr. Young,

Mr. Hudson, and Mr. Cherry met to

assess Mr. Cherry's standing after

twenty-five days of training.

They compared Mr. Cherry's actual

performance to the stated require-

ments. In that Mr. Cherry had

failed to meet the standard of 200

packages per hour he was advised

he was being disqualified for lack

of performance.

Mr. Cherry's reaction to

this was with self disap-

pointment and a plea for

reconsideration. We told

him that his time had ran

[sic] out for reconsidera-

tion, that we had extended

his time five days already

with hopes things would

work out for him.

We told James, we felt he :

had tried hard and had |

given us gocd effort these

past weeks. Although, we

have certain expectations

of presenior people and 3

-73h-

(35)

(36)

we cannot vary from

those expected standards.

All presenior people have

to achieve the same

requirements with no

exceptions.

This meeting is documented. (Def.

(Ex. 141).

After Mr. Cherry's disqualifica-

tion he was returned to a part-

time position with UPS.

On February 10, 1980, Mr. Cherry

filed a grievance with the union

contesting his disqualification

from the sortrac. The grievance

states that he failed to reach the

required production rate because

he was improperly trained. Mr.

Cherry contended that he "should

be retrained and given a chance to

qualify for the job due to the

improper training methods of man-

agement." The grievance does not

mention race as a factor and does

not complain that he received

improper training from management

because of his race. (Def. Ex.

+74A-

(37)

(38)

3.

(1)

104).

The grievance was settled by an

agreement that Mr. Cherry would

be offered a chance to qualify for

the first full-time job opening

and Mr. Ardrey for the second full-

time opening in the hub.

Pursuant to the settlement agree-

ment Mr. Cherry was offered a

full-time car wash job which he

turned down. He subsequently

qualified as a package car driver

in April 1980.

Ardrey and Cherry - Alleged

Disparate Treatment

The parties do not dispute that

Mr. Ardrey and Mr. Cherry failed to

meet the 200 package per hour

requirement and that it was a

legitimate requirement. See,

Plaintiff's Proposed Findings of

Fact, p. 82. Mr. Cherry and Mr.

Ardrey contend that they could not

reach this requirement because they

received differential treatment in

-75A-

their training programs because of

their race. This alleged differ-

ential treatment encompasses less

training, less help during slide

jams, less encouragement, (i.e.,

negative work environment), more

miskeys and inferior equipment

(harder slide assignments and

dated charts.)

(2) Mr. Lewis and Mr. Morrow, black

employees with UPS, testified to

the same effect, that white

trainees received more training,

better slides, timely help, more

reinforcement, less jams and less

miskeys than black trainees. Mr.

Morrow went as far as to state

; that "it was suspect" that black

| trainees were intentionally given

more miskeys. Mr. Morrow had

absolutely no evidence to support

his suspicion of intentional

wrongdoing, except for his feeling

that black trainees received more

miskeys than white trainees.

(3) The Court, after carefully con-

sidering all the evidence, does not

find that Mr. Ardrey, Mr. Cherry,

“-76A-

(4)

or any otlwer black trainee

received differential treatment.

The Court is of the opinion that

there were glitches that needed to

be ironed out in the training

program, such as problems with

miskeys and jams on the Sortrac.

These problems, however, did not

effect just Mr. Ardrey, Mr. Cherry,

or the black employees and cer-

tainly these problems were not

created because of race. They

were legitimate run-of-the-mill

business problems. Furthermore,

as to Mr. Ardrey, these problems

would not have any effect on his

ability to study his charts and

thus develop his chart knowledge.

Chart knowledge is a requirement

in which success was totally

dependent on the time and effort

Mr. Ardrey devoted to studying the

charts. Mr. Ardrey acknowledged

that he lack of chart knowledge

was one of the primary reasons for

his disqualification.

Mr. Ardrey and Mr. Cherry com-

plained about the belt jamming and

about receiving sequence charts too

-77h-

ke ee sari boettod Be

late in the shift. When a jam

occurs the entire belt is stopped.

All of the employees pitch in

wherever the help is needed to

clear the jam because the longer

the jamming persists the more dif-

ficult it becomes to complete

loading of all of the package

cars. A jam effects all of the

preloaders. As to the changes in

the charts, the timing of the

adjustment are dependent on vari-

ous factors. Adjustment in the

number of stops for each package

car are made from time to time

during the sort depending on the

package load. If a preloader's

stop counts are inaccurate or he

is behind in his work, the adjust-

ments would need to be made at the

end of the shift.

If the package cars are not loaded

and on their way by the end of the

shift the pre-sort supervisors

must answer to their supervisors

about the delay. If the super-

visors were to allow jams to build

up or to fail to timely load a

slide it would directly effect the

-78A-

Pk oem ee

supervisor's job because he would

have to account to his supervisor

for his failure to get the package

cars loaded and out. Thus,

although jams and chart changes

did occur during the shifts the

~ A dA Be et i in tie ao

Court finds that the supervisors

did not condone, tolerate or

encourage jam build-ups or inac-

curate untimely charts for Mr.

Cherry, Mr. Ardrey, or other black

employees on the pre-sort. The

presence of jams and chart changes

are not attributable to racial

animus.

(5) Mr. Ardrey and Mr. Cherry contend

that their slides, 54 and 25, were

harder to work then the other

slides. Whether these slides were

more difficult, however, is not

the issue confronting the Court.

Instead, the issue is whether Mr.

Ardrey or Mr. Cherry were assigned

harder slides because of their

race.

The evidence does not support race

as a factor in the assignment of

slides. Prior to Mr. Cherry,

-79A-

Mr. Hudson trained Tom Styers, a

white trainee, on the same slides.

Mr. Styers reached a productivity

rate of 201 packages per hour

(average for his last week) under

the same training program and thus

was recommended for seniority as a

preloader.

James Lunn and Sean O'Grady, two

other trainees, trained on the

other side of the sortrac on

slides 23 and 96. Mr. Lunn, black,

reached a productivity rate of 160

packages per hour on the twenty-

second day. He was disqualified

for his lack of chart knowledge,

but was placed on a preloader job

as a result of a union grievance.

Mr. O'Grady, white, was not

allowed to qualify as a preloader.

David Hemby, a white trainee, qual-

ified as a preloader in the box

line. He was trained by Ty

Nimmons, a black supervisor.

In light of the above, the Court

finds that neither Mr. Ardrey, Mr.

Cherry, or any other black trainee

= 20A-

(6)

was asSigned a certain slide

because of his race. Both blacks

and whites trained on slides 54

and 25, and slides 23 and 96.

The Plaintiffs also assert that

they could not qualify as a pre-

loader because they were given

inadequate training and received

less training and encouragement

than the white trainees, espe-

cially Mr. O'Grady. After care-

fully weighing the credibility of

the witnesses, the Court finds

that neither Mr. Ardrey nor Mr.

Cherry were given less training or

less encouragement than white

trainees. The constant training

of both employees is meticulously

documented by the evaluation

reports. The reports are as posi-

tive as they are negative.

Further, the reports reflect the

fact that considerable time and

expense was invested in their

training program. UPS had nothing

to gain by investing twenty to

thirty days in training an

employee, only to have him fail to

qualify. In addition, if

-§1A-

Mr. Hudson harbored some veiled

plan to make it hard on Mr. Ardrey

or Mr. Cherry to qualify because

they were black, Mr. Hudson easily

could have been negative in his

report in the subjective areas.

The fact of the matter is, however,

that the only major criticism of

Mr. Ardrey concerned his lack of

chart knowledge, which lack of

chart knowledge was objectively

verified by the 80-20 tests.

Similar to Mr. Ardrey, Mr.

Cherry's major area of criticism

was his production rate, which

rate along with the amount of help

needed was recorded every day

based on his actual performance

during the shift.

Furthermore, the testimony that

Mr. Hudson spent more time

encouraging and training Mr.

O'Grady than Mr. Ardrey or Mr.

Cherry is beyond belief, because

Mr. Hudson was not even Mr.

O'Grady's supervisor. Jim Stone

trained Mr. O'Grady. After care-

fully considering the evidence, the

Court finds that Mr. Ardrey and

-82A---

(7)

Mr. Cherry did not receive dif-

ferential training as preloaders

because of their race.

In light of the above, the Court

finds that Mr. Ardrey and Mr.

Cherry were disqualified from the

preloader job on the sortrac

because they failed to meet the

established performance levels.

Even if it is assumed that Mr.

Ardrey or Mr. Cherry established a

prima facie case of discrimina-

tion, the Defendant met its burden

of articulating a legitimate rea-

son for the employment actions.

Mr. Ardrey and Mr. Cherry failed

to meet their ultimate burden of

proving that the reason for their

disqualification was pretextual or

that they received disparate

treatment during their training

because of race.

C. CHERRY - DISCRIMINATORY WARNINGS

(1)

Mr. Cherry testified that he

received two written warnings from

UPS, which warnings were racially

motivated. In his EEOC charge,

-83A-

Mr. Cherry also complained about

a warning issued on May 1981 for

failure to follow instructions.

Further, in his EEOC charge and

! trial brief, Mr. Cherry contended

that the warnings were issued in

retaliation for his opposition to

practices illegal under Title VII.

The Court will address all the

contentions raised.

(2) The first warning that Mr. Cherry

complains about was issued because

Mr. Cherry missed two pick-ups on

A a a RN Melis As tere in Dinan lta Po Ae ll

PIRES EMMA nat Pe.

a package car run. This warning

was issued on February 11, 1981 by

Arlin Dancy, the center manager.

Mr. Dancy was the manager who qual-

ified Mr. Cherry as a package car

_-

driver.

(3) The Plaintiff concedes and the

Court finds that the two pick-ups

were missed, that the Defendant has

a policy which requires a mandatory

warning when a package car driver

fails to pick up a package and that

the warnings were issued to any

ee

employee, white or black, who

missed a pick-up. The Plaintiff

-24A- .

further concedes that this warning

was not discriminatory. See,

Plaintiff's Proposed Findings of

Fact, pp. 10-11, 78.

(4) In his EEOC charge, Mr. Cherry

complains about a warning issued

in "May 1981" for his failure to

follow instructions. The warning

was actually issued on March 25,

1981 by Mr. Dancy because Mr.

Cherry did not notify his super-

visor until too late in his run

that he could not complete his

assigned work. This late notifi-

cation resulted in thirty-two

service failures.

(5) Although the warning letter was

referred to in his EEOC charge

Mr. Cherry did not elicit any

testimony about it from anyone,

including himself, or Mr. Dancy.

Clearly, the Plaintiff cannot meet

his burden of proof if he fails to

present any evidence relating to

his contention.

(6) The February and March 1981 warning

letters were both issued because

-854-

the incidents involved service

failure to customers of UPS.

(7) Under the union contract at the

expiration of nine months, the

warning is removed from an

employee's record and can no

longer be used for disciplinary

action. The February and March

1981 warning letters issued by Mr.

Dancy no longer have any effect on

his record and never resulted in

any disciplinary action.

(8) The final warning letter com-

plained of by Mr. Cherry was issued

on December 18, 1981 by Mr. Dancy

because Mr. Cherry failed to "be

off the clock" at the designated

time. Mr. Cherry contends that

the warning is discriminatory

because he was off the clock on

time or alternatively if he was

not off the clock on time, white

employees did not receive warnings

for the same conduct.

(9) On December 8, 1981 Mr. Cherry

punched in at 8:30 and was

directed to punch out at 7:30.

-86A- .-

The punch out time on his card is

1950 (7:50 p.m.). Mr. Cherry

testified that he punched out

whenever he was suppose to punch

out, although he does not know

what time that is. Further, he

testified that he wrote the clock

in time of 0830 (8:30) but that he

did not write the clock out time

of 1950 (7:50 p.m.).

The Court, after examining the

time card and the handwriting of

Mr. Cherry, is of the opinion that

Mr. Cherry did write the "1950"

although he no longer recalls

writing it. In making this find-

ing the Court notes that the slant,

the spacing and the pattern in the

numbers are consistent. Further,

the zero in the "0830" and "0840"

(written by Mr. Cherry) is dis-

tinctive and this distinction is

also present in the zero in "1950".

Furthermore, after carefully weigh-

ing the evidence, the Court is of

the opinion that Mr. Cherry did not

clock out on time on December 8,

1981. The time card shows that

-87h-

Aa hie -incnsen t timate

(10)

Mr. Cherry did not clock out until

1950. Mr. Cherry cannot even

identify the correct time in which

he was to clock out. He admits

that he did not even ask to see

his time card when the supervisor

talked to him about being late on

the eighth and his only evidence

that he punched out on time is his

non-specific testimony that he

clocked out at whatever time was

the correct time.

Mr. Cherry alternatively contends

that a white employee, Mark

Speiler, was allowed to punch out

late without receiving a warning.

The personnel file of Mr. Speiler

does not contain a warning letter

for being off the clock late. The

issue before the Court is whether

Mr. Speiler actually punched out

late.

The only evidence Mr. Cherry

offered in support of his conten-

tion is his vague testimony that on

one occasion, on an unidentified

date he observed Mr. Speiler punch

out late and he thought the

-S8A- -

Supervisor was in his office when

this occurred. Mr. Cherry, how-

ever, cannot identify the day this

occurred, the time when it

occurred, the time when Mr.

Speiler was suppose to clock out

or whether the supervisor observed

or knew that Mr. Speiler was late

in getting off the clock. The

only documentary evidence pre-

sented about Mr. Speiler shows

that he punched out at 6:45 on the

date that Mr. Cherry punched out

at 7:50. There is no documentary

evidence, such as a time card,

that Mr. Speiler was late at any

time. In addition, the evidence

shows that several other whites

received warnings for failing to

clock out on time. In light of

the above, the Court does not

credit Mr. Cherry's testimony

that the Defendant allowed Mr.

Speiler to punch out late without

receiving a warning or that Mr.

Cherry received his warning

because he was black.

(11) The EEOC charge also alleges that

these warnings were issued in

-89A-

(12)

retaliation for Mr. Cherry's

opposition to practices made ille-

gal under Title VII. At the trial

Mr. Cherry did not present any

evidence to this effect, such as

identifying the practices he

opposed or his supervisor's

knowledge or adverse reaction to

these practices. The only griev-

ance Mr. Cherry had filed prior to

receiving his first warning con-

cerned his disqualification from

the sortrac. This disqualifica-

tion occurred almost a year before

his warning and the grievance com-

plained about his sortrac super-

visors, Mr. Young and Mr. Hudson,

not Mr. Dancy.

The Court finds that the warning

letters were issued for legitimate

reasons and not as a pretext for

retaliation against Mr. Cherry

because he asserted his rights

under Title VII.

The Court finds that the Defendant

issued the warning letter for a

legitimate reason -- Mr. Cherry's

-90A- °°

infractions of Company procedure.

The Court is further of the opin-

ion that Mr. Cherry failed to

prove that the asserted reason was

a pretext for discrimination and

failed to prove that the warning

letters were issued because of his

race or in retaliation for opposi-

tion to Defendant's alleged dis-

criminatory employment practice.

The warning letters were issued

for cause in accordance with the

Defendant's standard disciplinary

practices.

D. BROWN (Formerly Easterling).

(1) Bessie Easterling Brown was hired

by UPS on December 9, 1971 as a

package car driver. She held that

position until April 15, 1978. In

April 1978 she applied for and

obtained her current position of

feeder driver. As a feeder driver

she earns $13.56, one of the

higher paying hourly positions at

UPS.

(2) She complains of being required to

work overtime, of being denied

-91A-

|

(3)

overtime, of not being allowed to

decide if she wants to work over-

time or not, of being subjected to

a biased working environment by

being subjected to racially moti-

vated assaults, of being treated

rudely by her supervisors, of

being placed out of service for

one day because she refused to

fill out an accident report and of

receiving a warning in November

1982 because she had an avoidable

accident.

After assessing Ms. Brown's

demeanor and testimony at the

trial and reviewing her personnel

records, the Court finds that Ms.

Brown is probably a difficult

employee to work with and manage.

On the stand she was boisterous,

hot tempered, argumentative, and

quick to complain. Coupled with

this truculent personality is her

tendency to blame others instead

of accepting some responsibility

for acts that occur. For instance,

she blames someone else and does

not accept responsibility for a

one tractor accident she had when

' -92A~

(4)

when she was backing her tractor

and hit a guard rail.

A review of her personnel file

also indicates that she can be

disrespective, uncooperative, and

insolent. UPS sent Ms. Brown a

letter confirming a meeting with

her and her union representatives

during which meeting her attitude

towards management was reviewed.

The letter states that:

Your past history of speak-

ing above a normal business

tone and ‘being disrespect- e

ful towards management will

not be tolerated in the

future. It was reviewed

with you the importance

of management and employee

communication to operate

our business in an effi-

cient inanner. You were

informed that insubordi-

nate employees towards

management instruction

will be dealt with

quickly and severely.

~93A-

a

Several months later Ms. Brown

received a warning letter for her

"demonstrated insubordination by

[her] loud and discourteous

remarks." There are numerous

other documented instances of

insolence in her personnel file,

such as "she became very arrogant

and cutting in her voice",

"{a]gain, Bessie became very

arrogant and refused to do so",

"Carries an arrogant attitude

around other employees, they have

complained to me about this", "her

attitude is such that she causes

disruptions in our operation and

service", and "Bessie started

cussing and swearing". Defendant's

Exhibits 209, 210. Finally, when

Ms. Brown was instructed to fill

out an accident report or she

would be taken out of service "she

then proceeded to write sideways

along the accident report not

filling it out properly."

Defendant's Exhibit 224-A. Ms.

Brown's own testimony corroborates

her impertinent response when

instructed to fill out an accident

report. After her supervisor told

-94A-

(5)

(6)

her she would be taken out of

service if she did not fill out an

accident report, she told him "I

said, no, I'm not refusing, and I

wrote on the accident report -- I

wrote on that report.”

Transcript, p. 436.

In light of Ms. Brown's personal-

ity and attitude problems at UPS,

the Court is of the opinion that

the source of many of her com-

plaints can be traced to personal-

ity conflicts and not because of

her race. The Court, however,

will discuss each grievance

individually.

In December 1980 Ms. Brown asked

her supervisors, Ulysses West and

James Elmore, if she could be off

work on December 24, 1980. Both

supervisors are black. They told

her she would have to report on

December 24, 1980, at which time

the status of her run would be

determined. If her run was can-

celled she could ask her supervisor

on duty if she could leave.

-95A-

a

Mr. Elmore prepared a list of

employees who requested to be off

on December 24, 1980 but failed to

include Ms. Brown's name. On

December 24, 1980, Ms. Brown's run

was cancelled and she asked if she

could go home. The supervisor on

duty, Neal Lewis, denied her

request because her name was not

on the list. She was required to

work in the yard.

(7) On the same day employees with

less seniority than Ms. Brown

were allowed to go home. Similar-

ly, white and black employees with

more seniority than Ms. Brown

worked that day. Scott Heine, a

white feeder driver, reported to

work after Ms. Brown and was

allowed to go home when his run

was cancelled. There was no

evidence that white employees with

less seniority whose name was not

on the list was allowed to go home.

(8) On December 29, 1980 Ms. Brown

filed a grievance claiming that her

seniority rights were violated

because junior employees were

-96A-

(9)

(10)

permitted to be off and she was

not. The grievance does not refer

to race, does not suggest that

race was a factor in the denial of

the day off and does not claim

that whites got the day off while

blacks had to work. There is no

suggestion that her name was

intentionally omitted from the

list.

This grievance was resolved by an

agreement that employees would be

let off on the basis of seniority.

If a run is cancelled and a senior

employee is on the yard, the senior

employee will go home and the

junior employee will work.

The Court finds that the denial of

the day off was not because Ms.

Brown is black but was because Mr.

Elmore, a black male, accidently

failed to include her name on the

list. The Plaintiff failed to

prove that the omission of her

name from the list and the result-

ing denial of the day off was a

pretext for racial discrimination.

-97A-

(11) Ms. Brown filed three other union

grievances complaining about not

receiving or receiving overtime

work in accordance with her

seniority rights. The grievances

do not refer to race or suggest

that race was a factor in over~

looking her for overtime or

assigning her overtime. The union

found that her seniority rights

were not violated in one instance,

that she was entitled to overtime

pay in another instance and that

UPS needed to assign a start time

and specified procedure for extra

runs. There is no mention of race

in resolution of the grievance or

as a condition of settlement of the

grievance. The Court finds that

the complaints about her seniority

rights were problems arising in

application of the union contract

and Ms. Brown's seniority rights

were not being violated because she

was black.

(12) Ms. Brown specifically complains

about having to take a run to the

airport in February 1981 after

completing her regular run. The

-98A-

(13)

airport run was normally assigned

to Kathy Hall, a junior white

driver.

On February 2, 1980 Ms. Hall did

not arrive back from the airport

until 2:10 p.m. and was not able

to take her lunch break until 2:30

p.m. Since the first air trailer

had to go to the airport before

Ms. Hall would have completed her

lunch break, Richard Goebel

requested that Ms. Brown drive the

trailer to the airport and told her

that Ms. Hall would bring out the

second unit later and help Ms.

Brown finish loading the plane.

Ms. Brown started cursing and

swearing and said that she would

not take the run. Mr. Goebel told

her he would make other arrange-

ments, and proceeded to get two

other drivers to cover the

Kannapolis and airport runs. Ms.

Brown called Mr. Elmore at his

home. Mr. Goebel talked to Mr.

Elmore and as a result offered Ms.

Brown the option of either taking

the Kannapolis or the airport run.

Ms. Brown then decided to accept

-99A-

the airport run.

(14) At the airport that evening Ms.

Brown's performance was slack and

caused the airplane to leave

thirty minutes late. Ken Gunnels,

air coordinator, wrote Mr. Fisher

a memorandum about Ms. Brown's

inferior work and asked for

assistance. Mr. Gunnels stated

that Ms. Brown had difficulty

backing her trailer into the

appropriate position, was slow

unloading the trailer and refused

to help Ms. Hall load air bags

into her trailer. Her attitude

was evidently so "arrogant" that

the other employees complained

about working with her. Mr.

Gunnels concluded that Ms. Brown

was not qualified for the airport

run and that her attitude causes

disruptions in air operations and

service.

(15) The Court finds Mr. Goebel did not

ask Ms. Brown to cover the airport

run because of her race. UPS

asked her to service the airport

run because they needed a driver

- 100A-

(16)

out there and Ms. Hall was running

late. Further, when Ms. Brown

refused to take the run, Mr.

Goebel proceeded to make other

arrangements to cover the airport

run. Ms. Brown was later given

the option of taking the run,

which option she accepted. There-

fore, the Court finds that the

Plaintiff failed to prove that the

Defendant told her to cover the

airport run as a pretext for

discrimination.

Ms. Brown testified that in 1981

Larry Shoemaker, a white dis-

patcher, was extremely rude to her.

According to Ms. Brown, when she

went to the dispatcher's office to

get her tractor assignments, Mr.

Shoemaker would toss her the time

and TTA cards. If a white driver

needed his cards Mr. Shoemaker

would hand the items politely to

the driver "with a smile". Mr.

Shoemaker testified that he treated

each driver alike and would hand

the cards or place them on the

table if he was busy dispatching.

He testified that he did not "toss"

-101A-

(17)

(18)

any cards at Ms. Brow: >»

After carefully judging the

credibility of the witnesses

a

Court finds that Mr. Shoemaker did

not treat Ms. Browr differently,

than white drivers because of her

race. The only evidence that Mr.

Shoemaker treated Ms. Brown dif-

ferently in dispatching was Ms.

Brown's own self-serving testimony.

This testimony was credibly

refuted by Mr. Shoemaker who

specifically denied any differen-

tial treatment and explained that

if a dispatcher was busy he would

simply place the cards on the table

for the driver. The Court, there-

fore, finds that the Plaintiff

failed to prove that Mr. Shoemaker

was "rude" to her or that this

alleged rudeness was because of her

race.

Ms. Brown testified that Scott

Heine, a white co-worker, inten-

tionally assaulted her on two dif-

ferent occasions. At the trial Ms.

Brown testified that Mr. Heine

intentionally slapped her face and

-102A- --

(19)

knocked off her glasses in

January 1980. She reported this

incident to Mr. Elmore, a black

feeder supervisor. Mr. Elmore

talked to Mr. Heine and told Ms.

Brown that Mr. Heine would pay for

her broken glasses. Mr. Elmore's

report of the incident states that

Mr. Heine accidentally broke her

glasses while jumping off the dock

behind the trailer he was pulling.

(Mr. Elmore is now deceased.)

Ms. Brown testified that in April

1980 she was standing next to a

wall and Mr. Heine pushed his way

between her and the wall and tried

to shove her. Ms. Brown told Mr.

Heine that "you and I just goin' to

have it out." He laughed and

walked down the hall. She followed

him "and said -- a few more words

was said." Ms. Brown complained

about this incident to Mr. Elmore

and it did not occur again. Ms.

Brown did not testify that Mr.

Heine's alleged conduct was moti-

vated by racial animus.

-103A-

tome NE nA AR ar lt Nau a a A Slt bs She Hosa, tm end

(20)

(21)

In resolving these two employee

disputes the Court finds that ups

appropriately handled the matter

and did not discriminate against

Ms. Brown. Ms. Brown told Mr.

Elmore that her glasses were

accidentially broken

Elmore got Mr. Heine

his accident. As to

incident, it appears

dispute triggered in

and Mr.

to pay for

the second

to be a

part by

sensitivity due to the prior acci-

dent and a personality conflict

between two employees. The evi-

dence does not support a finding

that it was a racial

assault.

After the incident was brought to

the attention of management, the

problem was evidently effectively

resolved by management because

there were not any further distur-

bances.

Ms. Brown testified that she was

issued a warning letter on November

11, 1982 for an accident that was

unavoidable. In her

accident

report she admitted she hit a

guard rail while backing her

trailer on the yard.

-iQ4A-

She

(22)

(23)

testified that the accident was

unavoidable because the trailer

had a flat tire and leaned to the

right. UPS issued a warning let-

ter because the accident was found

to be avoidable because she struck

a stationary object while backing

her trailer.

Although Ms. Brown testified the

Company always found accidents

avoidable, the Company found an

accident that she had on June 25,

1980 was unavoidable.

The Court finds that UPS issued a

legitimate warning letter to Ms.

Brown on November 11, 1982 because

they determined her accident was

avoidable. Ms. Brown failed to

prove that the warning letter was

issued as a pretext for racial

discrimination. The Court notes

that the Plaintiff evidently con-

cedes that the warning letter was

appropriately issued and that the

Plaintiff failed to establish a

prima facie case of discrimination.

Plaintiff's Proposed Findings of

Fact, pp. 49, 93.

-TOSA- --

ee eee

re eee Seen

(24) Ms. Brown alleges she was subjec-

ted to racial discrimination

because she was placed out of

service for one night after she

refused to fill out an accident

report.

(25) On March 29, 1983 Ms. Brown was

instructed to place her trailer at

a particular location on the yard.

As she backed her trailer toward

this location she observed another

unit driven by Buck Buchanan,

blocking her route. As soon as

the midnight hub manager, Donnie

Lane, observed the congestion on

the yard he instructed Ms. Brown

to stay where she was and he went

to clear up the congestion block-

ing her unit. As he was in the

process of moving the units, he

heard a grinding noise, looked up

and saw Ms. Brown's unit moving

against Mr. Buchanan's unit. Mr.

Lane reported the accident to man-

agement.

(26) Ms. Brown got out of her trailer

and approached Richard Goebel,

Donnie Lane, and Steve Starnes

- =106A- ~

(27)

(28)

(29)

(supervisors) and said "who are

you saying hit a truck." They

told her she hit the trailer. She

denied any accident.

After Mr. Goebel and Ms. Brown

were in the feeder office he

instructed her to fill out an

accident report. It is standard

operating procedure at UPS for an

employee to complete an accident

report after an accident. Ms.

Brown denied having an accident

and refused to fill out the report.

Mr. Goebel telephoned Silvis Moore

at 1:30 a.m. at his residence and

asked him what to do about Ms.

Brown's refusal to fill out an

accident report. Mr. Moore told

Mr. Goebel to explain to Ms. Brown,

in front of Mr. Lane, that the

accident report needed to be com-

pleted, to instruct her to com-

plete it and to inform her that if

she refused to fill it out she

would be suspended.

Mr. Goebel then proceeded to

instruct Ms. Brown that she had to

-107A- -

aN Nee was

Me RY ole iar. SRE 2 aN me

—_ eel

aie 2 le

(30)

(31)

fill out the report or she would

be suspended. Ms. Brown refused

to fill out the report, insisted

that she would not take any action

unless her business agent was

present and instead impudently

responded by writing sideways on

the report. Mr. Goebel took her

out of service for refusing to

fill out the report after being

instructed to do so.

Ms. Brown was reinstated the next

day on the condition that she fill

out the accident report, with

which condition she complied. She

was issued a warning letter for

the March 19, 1983 accident

because it was avoidable in that

while backing her unit she struck

another vehicle. Although Ms.

Brown continues to deny she had an

accident, she does not challenge

the issuance of the warning letter.

The Court finds that the request

that Ms. Brown fill out an accident

report is in accordance with the

standard operating procedure. The

Court further finds that Ms. Brown

-108A- »

(32)

intentionally refused to fill out

the report although instructed to

do so and informed of the conse-

quences if she did not comply.

This type of conduct is blatant

insubordination. The Court finds

that the Defendant legitimately

and without any regard to race,

placed Ms. Brown out of service

for her refusal to comply with

standard procedures after being

forewarned that failure to comply

would result in suspension. Wait-

ing for a business agent would not

have any bearing on whether a

report had to be completed. The

Court finds that the Plaintiff

failed to prove that the

Defendant's actions on March 29,

1983 were in part motivated by

race or were a pretext for racial

discrimination.

The Court further finds that

considering Ms. Brown's complaints

separately or in the aggregate she

failed to prove that she was

treated differently because she

was black or that the Defendant's

actions were a pretext for racial

-“109A---

;

,]

ll Allan ta:

discrimination.

E. DISCRIMINATORY ASSIGNMENT OF FEEDER

DRIVER EQUIPMENT - FUNDERBURK, NEAL,

AND SMITH

(1) Three of the Plaintiffs, Lewis

Funderburk, Eugene Neal, and

Matthew Smith, testified that they

and the other black feeder drivers

were discriminatorily assigned

feeder driver equipment. They

allege specifically that blacks

receive older tractors or that if

they receive newer tractors they

do not operate properly.

(2) UPS uses Mack model 20, 21, 22, 23,

24, and 25 series. The higher the

series model number, the newer the

unit. The feeder drivers believe

that the older tractors have

poorer suspension, less pulling

power, and are more difficult to

handle. UPS believes that all the

units are substantially equal

because UPS regularly monitors,

services, and refits their equip-

ment.

+*110A--

(3)

(4)

(5)

The industrial engineering depart-

ment assigns the units to a cer-

tain run. In assigning tractors

to start times the newer equipment

or the equipment that gets the

better mileage is assigned to the

longer runs so that they can be

dual utilized. For example in

1983 Charlotte had eighty-five to

ninety feeder runs but only sixty-

five tractors. Some of the trac-

tors had to be operated on two

feeder runs a day. The industrial

engineering department determines

which tractors would be dual

utilized on which start time.

After the tractors are assigned to

a run the feeder drivers bid

annually in April on the run they

want. The bids are accepted on

the basis of seniority. The new

start times go into effect the

first Monday in May. Tractor

assignments are not changed on any

regular or annual basis.

The industrial engineering depart-

ment changes the tractor assign-

ments from time to time. Usually

-111A-

ee

ry ae re ney

new tractors are assigned by

industrial engineering so that

they can be dual utilized. When

the regular assigned tractor to a

start time is not available, the

dispatcher assigns another tractor

to that start time.

(6) Although a unit is assigned to a

specified run, various events

cause a dispatcher or the indus-

trial engineering department to

readjust the assignment of trac-

tors. Tractors break down and are

puiled out for preventive mainte-_

nance. Repaired outside tractors

may be substituted for regularly

assigned tractors. State licens-

ing restrictions may require the

juggling of tractor assignments.

Delays and late arrival of dual

utilized tractors cause tractor

reassignments. When the feeder

operation runs an average of one

hour over allowed, the dual util-

ized tractors return from their

first run too late to leave on

their scheduled second run. Once

a dual utilized tractor gets off

schedule, it is almost impossible

-112A- ..

(7)

(8)

to get it back on schedule that

week. Further, the tractors are

also assigned or readjusted on the

basis of fuel comsumption. The

mountain runs need better fuel

Mileage. There are times when a

tractor assigned to a later start

time will be used on earlier start

time because a spare is not avail-

able. Further, when additional

loads must be dispatched, a trac-

tor has to be located and assigned

to that load.

When a trailer is reassigned the

supervisors receive complaints

from the white and black feeder

drivers. The complaints from the

drivers generally concern being

reassigned a tractor other than

their regularly assigned one,

because they are familiar with

their tractor and until refitted

the older tractors did not have air

ride seats.

Mr. Funderburk was hired in 1967

and has worked as a feeder driver

since 1973. He testified that he

-113A-

ee —— eo

—— ee

and the other blacks were

reassigned tractors in the 20, 21,

and 22 series while whites were

assigned 23 and 24 series trac-

tors.

(9) Mr. Funderburk complained about

his equipment assignment to his

supervisor and to his manager, Mr.

Elmore, who is Liack. Mr. Elmore

explained to Mr. Funderburk that

fuel consumption was the basis for

assigning tractors.

(10) Mr. Funderburk has had the

Pleasantdale, Georgia run since

1978. Mr. Funderburk bid for the

Pleasantdale run in April 1982

which run he started in May 1982.

When Mr. Funderburk started the

run in May, he was assigned a 25

series tractor. After two weeks

the 25 series tractor was

reassigned to a White Pine,

Tennessee run, manned by Roger

Weaver, a white feeder driver.

The Tennessee run is a more moun-

tainous run than the Pleasantdale

run. The tractor reassigned to the

Pleasantdale run was in the 24

-114A-

(11)

(12)

(13)

series, which series is con-

sidered one of the newer series at

UPS.

Mr. Funderburk also testified that

he was assigned tractors with

broken air conditioners. He

admitted that he was assigned air

conditioned tractors from the time

they first came on the line in

1978. He further conceded that

most air conditioning problems

arise on the first hot day in the

spring. The air conditioning

would not work because there was

not freon in it. They would work

when freon was added.

Mr. Moore, the division manager

for feeder operations, agreed that

air conditioning problems occur

with the first warm weather. If

the air conditioning is not work-

ing, the driver is suppose to write

the problem up and it is repaired.

Mr. Funderburk claims that every

time he bid on a start time trac~

tor 21913 would be reassigned to

that time. He testified, however,

-115A-

peta Mah odtckan Sanleenh:

ie a edie

Se tee ee eee

(14)

SERIES

20

that although he drove tractor

21913 in April 1979, when the new

bid start times became effective

in May 1979 he was assigned air

conditioned tractor 25638 and

drove it on a regular basis.

The following summary shows the

number of tractors in each series

driven by Mr. Funderburk:

21 22 23 24 25 TRACTORS

977

21 59 59

978

49 28 63 9

979

15 21 34 30 36

1980

7 6 12 35 24

1981

WI OTM] WI or

38 9 19 25 13

(15)

(16)

The summary shows, contrary to Mr.

Funderburk's claim, that he was

not assigned only to 20, 21, and

22 series tractors. The evidence

reveals that he drove the newer 23,

24, and 25 series regularly. After

the bids in May 1981, his regularly

assigned tractor was tractor 21913.

After July 1981,’ however, he drove

a variety of tractors in the 21 to

25 series.

A review of Mr. Funderburk's trac-

tor assignments discloses that he

+1 16A-.

(17)

(18)

began driving air conditioned

tractors in 1978 and has driven

them continuously since that time.

Air conditioned tractor 24638 was

regularly assigned to him from May

1979 until October 1979 when air

conditioned tractor 25297 became

his regularly assigned tractor.

In May 1980 tractor 24812 became

and remained his regularly

assigned tractor until May 1981.

Mr. Neal was hired by UPS in 1969

and has worked as a feeder driver

since 1974. Mr. Neal has been

assigned to the White Pine,

Tennessee run for the past seven

or eight years. This was a night

run so he was indifferent as to

whether he had an air conditioner

in his unit.

Mr. Neal testified that he and the

other black feeder drivers had to

drive the older series while the

white drivers drove the newe 23,

24, and 25 series. He did not

complain, however, to management

about the quality of his equipment.

-1)7A-

(19) The following Summary shows the

number of tractors in each series

driven by Mr. Neal:

SERIES 20 21 22 23 24 25 TRACTORS

1977 12 28 38 55

ae 13 96 10

12 4 29 41

) 14 45 23 29

6 11 6 2 47

ra foe)

ren)

Ve)

WIOlOlO

(20) The summary shows that, contrary

to Mr. Neal's claim, he was

assigned the newer tractors as

they were placed into the opera-

tion. It further appears that he

drove the 23, 24, and 25 series

tractors on a regular basis.

(21) In his Complaint in this litiga-

tion, Mr. Smith also alleges

racially discriminatory assignment

of equipment to him and the other

black feeder drivers. He testified

that in 1981 and 1982 black

drivers drove the lower series

while white drivers drove the

higher series. Mr. Smith con-

tended that he never got the con-

Sistent use of a newer trailer,

that although he was assigned a 23

-t18A—

(22)

(23)

(24)

series he did not often drive it

and that if he was given a 24

series the air conditioning did

not work.

Mr. Smith complained about the

equipment to Mr. Seagle. He

complained to Silvis Moore, James

Elmore, and Robert Washington

about the air conditioning and was

told to write up his complaint.

Mr. Elmore and Mr. Washington were

black feeder managers.

Mr. Smith was seventeen on the

feeder seniority list so he had

one of the better choices to bid

whichever start time he wanted.

Since April 1981 he has bid on the

Pleasantdale, Georgia run.

The following summary shows the

number of tractors in each series

driven by Mr. Smith between August

1977 and December 1982.

-119A-

TS EI no ee

— Se ee ot ee Ny ee re

SERIES 20 21 22 23 24 25 TRACTORS

!

1977 4 27 6 26

1978 6 32 13 48 2 1

1979 2 27 26 26 14 1

1980 1 2 9 is 48 4

1981 0 9 1 1 52 4

(25) Contrary to Mr. Smith's testimony

the summary shows that he was not

assigned only 20, 21, and 22

series tractors. The chart

reveals that actually the majority

of his tractors were in the 23 and

24 series.

(26) A review of Mr. Smith's assigned

tractors shows that he drove trac-

tor 23717 more often than others

during August and September 1977.

In October 1977 through March 1978

he drove tractor 21507 more often

than others. Because of the

cooler weather these months would

be the months when an air condi-

tioner was of minor or no impor-

tance to a driver. In May 1978

through July 1978 he drove tractor

23716 more often than others. In

November 1978 he began driving

tractor 23595 regularly until May

1979. From May 1979 to September

-120A- .

(27)

1979 he drove tractor 22309 the

Majority of the time. Beginning

in October 1979 he drove air con-

ditioned tractor 24638 on a regu-

lar basis. In May 1980 air con-

ditioned tractor 24816 became his

regularly assigned tractor. From

May to October 1981 he drove air

conditioned tractor 24813. From

May 1982 to October 1982 he drove

primarily tractor 22609 but also

drove others in all the various

series. In October 1982 he began

driving tractor 23717 on a regular

basis, but also drove many 24 and

25 series air conditioned tractors

through December 1982.

The record of the tractors actually

driven by Mr. Smith refutes his

claim. The record shows that dur-

ing most of the time from August

1977 to December 1982, he drove

series 23 and 24 tractors, not the

20 to 22 series which he testified

that blacks drove. The record also

shows that Mr. Smith's regular

assigned tractors were changed from

time to time but were not changed

immediately after his bid as he

- -121A-~

a —— <<

ee ee ee

eee teeta ie ee ee Ce ee

sii

te ee re a ee

iin tsi pace a

———

iis ee eet n>

(28)

(29)

(30)

(31)

Claimed. From October 1979 to May

1982 he regularly drove an air

conditioned tractor.

Robert Williams testified to the

same effect as Mr. Funderburk, Mr.

Neal, and Mr. Smith that black

drivers were assigned the older

equipment while white drivers were

asSigned newer equipment.

Ms. Brown, a Plaintiff and a black

feeder driver did not complain

that she or other black feeder

drivers received inferior equip-

ment.

Although the Plaintiffs testified

that "whites received better

equipment" the only white driver

specifically identified as being a

beneficiary of this alleged racial

policy is Roger Weaver.

The following summary shows the

number of tractors in each series

driven by Mr. Weaver:

~422A- .

SERIES 20 21 a2 3:93 24 25 TRACTORS

1977 a) 6 11 21 0 0

1978 1 9 30 | 90 2 0

1979 0 6 7 | 76 24 g

1980 0 1 0 | 48 21 46

1981 0 0 3 29 10 46

(32) The chart shows that Mr. Weaver i

was also assigned tractors in the

older series although he, like the

other Plaintiffs, was regularly

assigned tractors in the newer

series.

(33) Although Mr. Smith and Mr.

Funderburk complained to manage-

ment about the assignment of

equipment, there was not any

evidence that they complained that

the assignments were made on the

basis of race.

(34) After carefully considering the

evidence, the Court finds that the

Company articulated a legitimate

explanation for the assignment of

tractors to Mr. Smith, Mr.

Funderburk, and Mr. Neal. UPS

assigned and reassigned tractors to

handle the various dispatches and

~123A-

the contingencies which arise in

the daily operation of transport-

ing the parcels. The assignment

changes that had to be made by the

dispatchers at the last minute,

which is an On-going activity,

would make it even more difficult

and troublesome for the supervi-

sors to attempt to discriminate on

any basis in the assignment of

tractors. The Court finds that

the Plaintiffs failed to prove

that the assignment of tractors to

Mr. Smith, Mr. Neal, and Mr.

Funderburk or to black feeder

drivers as a group, was done on

the basis of race or that the

Defendant's legitimate reasons are

a pretext for discrimination.

F. JENKINS

(1) Horace Jenkins was hired by the

Defendant on August 30, 1974. On

August 4, 1975 he was promoted to

package car driver.

(2) In light of the Partial Summary

Judgment entered April 6, 1984, the

only claims remaining are

-124A-

(3)

(4)

(5)

discriminatory assignment of

equipment, and discriminatory

removal of overtime work.

Mr. Jenkins was assigned to the

Rock Hill center in 1980. The

center was then located in the

Charlotte building.

Jim Smith, a black male, was the

Rock Hill center manager in 1980.

Mr. Jenkins did not like Mr. Smith

and the way he ran the center.

Mr. Jenkins testified:

"I could write a book on (Smith).

I guess everybody could. He has

got a nasty attitude."

In 1977, 1978, and 1979 Mr.

Jenkins was assigned a P-400 pack-

age car. In the early part of

1980 Mr. Jenkins was assigned a

P-500 package car. Mr. Smith

believed the package volume war-

ranted a larger van. The P-500

van carries more packages than the

P-400 van. The higher the van

number, the larger the van size.

-125A- .

(6) Mr. Jenkins' route in 1980 was

Lancaster, South Carolina which

route included a pick-up volume of

about 200 packages per day. The

Stops included Spring Mills and

Clark Controls.

(7) Periodically the industrial

engineering department reviews the

utilization of package cars in the

various centers based on a center's

delivery and pick-up volume.

(8) In reviewing the Rock Hill center

in the summer of 1980, it was

determined that Rock Hill had one

more P-600 than its volume justi-

fied.

(9) Accordingly, Mr. Smith decided

that the P-600 van assigned to

Donnie Scronce, a white package car

driver, should be relinquished.

Mr. Smith reassigned Mr. Jenkins’

P-500 van to Mr. Scronce and

reassigned a P-400 van to Mr.

Jenkins.

(10) The P-600 van was taken from Mr.

Scronce because a large pick-up

-126A-

(11)

(12)

(13)

(14)

customer in Chester had moved and

Mr. Scronce no longer needed the

p-600 van.

At the time of the reassignment of

the P-400 van to Mr. Jenkins, his

route was changed by removing some

erred’ aia sit IMs Dee

of his pick-up stops, which change

reduced his volume.

Mr. Jenkins did not complain to

Mr. Smith about the van reassign-

ment. Mr. Jenkins alleges that

the van change to a P-400 con- |

stitutes racial discrimination. )

In his deposition when questioned

as to why this reassignment con-

stituted racial discrimination,

Mr. Jenkins replied because Mr.

Scronce is white. He further

stated that he felt the reassign-

ment was discriminatory because UPS

should have come to him first and

gotten his consent to give the

P-500 van to someone else.

Aside from the fact that Mr.

Jenkins is black and Mr. Scronce is

~127A-

(15)

(16)

white, there is not any other

evidence suggesting that race

played any role in reassigning the

van. The center manager who made

the changes is black and he had

previously assigned the P-500 van

to Mr. Jenkins. Mr. Scronce,

white, lost his P-600 van in the

reassignment. The reassignments

were necessitated after the

industrial engineering department

determined the volume rate justi-

fied the reassignments. In light

of the above, the Court finds that

the Defendant articulated a legiti-

mate reason for the van changes,

which reason the Plaintiff failed

to prove was a pretext for dis-

crimination.

It is noted that the Plaintiff

apparently concedes he failed to

prove his claim of racial discrimi-

nation in the assignment of equip-

ment. See, Plaintiff's Proposed

Findings of Fact, p. 118.

Mr. Jenkins' other claim is that

the removal of “one shot" and "call

tag" work deprived him of thirty

-128A-

(17)

(18)

(19)

minutes of overtime, which action

constitutes racial discrimination.

One shots are onetime customer

pick-ups and call tags are

requests by the shipper to pick up

a package delivered to a customer.

These requests are written up ina

log so that UPS knows which

drivers received the requests and

are distributed to the drivers.

This work is performed before the

8:30 a.m. start time for the

drivers.

Mr. Jenkins was assigned this work

after drivers senior to him had

declined the work.

UPS made a decision to move the

Rock Hill center from Charlotte to

Rock Hill, South Carolina. In

1981, prior to the move, the pre-

load of the Rock Hill package cars

was placed under Mr. Smith's super-

vision. This change provided

enough additional clerical work to

justify a part-time clerk for the

Rock Hill center.

-129A--

(20)

(21)

(22)

(23)

After a part-time clerk was

employed Mr. Smith removed the

one shot and call tag work from

Mr. Jenkins and assigned the

duties to the clerk. This type of

clerical work was removed from all

drivers who were performing it and

assigned to the clerk. The clerk

was white. There is not any evi-

dence that Mr. Jenkins sought the

part-time clerk's position.

Mr. Jenkins did not complain to

Mr. Smith about the removal of the

overtime work.

In his deposition, Mr. Jenkins

testified that the removal of over-

time would not constitute discrimi-

nation if UPS had talked to him

about the change and he had agreed

that this was the way it needed to

be done.

The Court finds that the Defendant

articulated a legitimate reason for

the removal of one shots and call

tags. The removal of the overtime

work was applied to all employees.

UPS does not have to continue

-130A-

paying an employee overtime when

it has hired another employee who

can do the work without going into

overtime. Mr. Jenkins utterly

failed to prove that race played

any part in the removal of one

shots and call tags.

(24) In addition, the Plaintiff appears

= to concede that Mr. Jenkins failed

to prove pretext. See,

Plaintiff's Proposed Findings of

Fact, p. 118.

G. MASSEY

(1) Joyce Massey was employed as a

part-time operations clerk on April

17, 1978. She was assigned to the

simulator job on the midnight sort.

This was a non-union job performed

at the Charlotte hub.

(2) Ms. Massey contends she was dis-

charged by UPS because of sex and

race discrimination.

(3) Mary Feaster, black, was assigned

the simulator job on the twilight

sort.

-131A-

el a

asa A RIN wrath Ma rh wai ae me al ar

(4) From 1978 to 1979 the Charlotte

hub experienced an increasing

volume of packages. With the

building approaching capacity

limits on volume flow, the simula-

tor position became more critical

as a key factor in successfully

completing the sorts on time. At

this point the job of simulator

was refined ‘rom a clerical

responsibility of tracing Dackages

through the hub to one of making

management decisions on the move-

ment of packages throughout the

hub. In August 1979 UPS decided

to eliminate the two part-time

clerical jobs of simulator and to

replace them with one management

position. This management position

was assumed by Ben Taylor, white.

(5) In view of this decision, Tom

Husvar, a white district manager

and Julius Montague, a black per-

sonnel manager, decided that the

Simulator clerks would be offered

an opportunity to qualify as a

package car driver or to bump the

junior rewrap clerk on their sort.

-132A-

(6)

(7)

(8)

On August 30, 1979 John Fisher,

hub dvisiion Manager, and Bill

Thomas, twilight sort manager, met

with Mary Feaster and discussed

the operational change and the

elimination of her job. They

offered her the opportunity to

qualify as a full-time package car

driver. Ms. Feaster accepted this

offer. She became a package car

driver and was subsequently

promoted to supervisor.

Mr. Fisher and Mr. Thomas also met

with Ms. Massey on August 30, 1979

to discuss the change and the

elimination of her job. Ms.

Massey was offered the same oppor-

tunity to qualify for a full-time

driving job. She refused the job

because she did not want to drive

or to work full-time. She was then

offered the alternative of dis-

placing the junior clerk on her

sort. She responded that she had

no intention of handling packages.

Ms. Massey inquired what her option

was if she refused driving and the

clerk's job. She was told that her

-133A-

(9)

(10)

(11)

position would be phased out by

September 7, 1979 at which time

she would be laid off. She asked

for and received the rest of the

night off from work.

On September 6, 1979 Ms. Massey

wrote Mr. Fisher confirming their

discussion of August 30, 1979 and

noting that she was strictly a

"pencil and paper person". She

requested a temporary layoff.

She worked through September 7,

1979 and was placed on temporary

layoff.

Ms. Massey knew that refusal of a

job after being placed on temporary

layoff would result in termination.

After she was placed on temporary

layoff a clerical vacancy occurred

in the midnight sort. After

several attempts Mr. Fisher con-

tacted Ms. Massey on September 25,

1979 and offered her this vacancy,

which vacancy involved rewrapping

packages. She refused the rewrap

clerk position, again stating that

she was only interested in "pencil

-134A-

(12)

(13)

and paper work." Since she

declined an available position

while on layoff she was termi-

nated. This termination was con-

firmed in a letter to her dated

October 1, 1979. Ms. Massey does

not recall receiving this letter

although she acknowledges it was

correctly addressed.

Ms. Massey claims she was dis-

criminated against because she was

not offered a job she wanted. As

evidence in support of her claim

she relies on the fact that Nancy

Calloway, white, became a full-

time tracing clerk.

The Court finds that the job

placement of Ms. Calloway is not

comparable. Ms. Calloway trans-

ferred in May 1979 to the tracing

clerk position. Her transfer was

long before the decision was made

to phase out the part-time simula-

tor positions. Ms. Calloway's

position was not eliminated, as was

Ms. Massey's position. In addi-

tion, Ms. Calloway'’s job as a

tracing clerk was full-time and

-135A-

(14)

(15)

(16)

Ms. Massey did not want to work

full-time. Thus, this personnel

action does not constitute evi-

dence of race or sex discrimina-

tion.

There is not any evidence in the

record concerning Ms. Massey's

allegation of retaliation for

filing a Title VII charge against

a former employer.

The Court finds that UPS made a

legitimate decision to eliminate

Ms. Massey's job. She was treated

like Ms. Feaster was treated. Ms.

Feaster took successful advantage

of the job opportunities made

available. Ms. Massey seems to

claim that UPS was under some

obligation to find her a job of her

choice after her job was elimi-

nated. There is not any evidence

that a white or a male employee was

accommodated with a job of his

choice. UPS was nondiscriminatory

in the elimination of her position

and in the offer of jobs.

Ms. Massey received job offers

-136A-

(17)

(1)

(2)

which she refused. She knew the

refusal of a job after temporary

layoff would result in termina-

tion. There is not any evidence

that racially premised factors

entered into any aspect of the

elimination of her job, the

offers of alternative jobs or her

termination. Ms. Massey failed to

prove her claims of race or sex

discrimination.

The Court notes that the Plaintiff

evidently concedes that she failed

to prove her claims of discrimina-

tion. See, Plaintiff's Proposed

Findings of Fact, pp. 106-07.

Eugene Neal was hired on November

17, 1969 as a full-time package car

driver. He qualified as a feeder

driver on September 14, 1973.

Mr. Neal claims that feeder

equipment was discriminatorily

assigned. This claim has already

been adjudicated by the Court in

Section E, supra. His remaining

-137A-

claims concern denial of a super-

visory position and racial harass-

ment by his supervisor Neal Lewis.

(3) On September 2, 1980 Mr. Neal

wrote a letter of grievance to the

district manager complaining that

he and the other black employees

were being racially harassed by

Mr. Lewis. This grievance was

preciptated by Mr. Lewis' alleged

failure to honor seniority in

August 1980.

(4) On day in August 1980 after Mr.

Neal returned from his run he

observed some white drivers leaving

the hub. The white drivers had

less seniority than Mr. Neal.

(5) When Mr. Neal and Robert Chisholm,

another black driver, saw Mr. Lewis

he instructed them to go to the

rail yard to pick up trailers.

This is overtime work which work is

Suppose to be offered to the most

senior employee in the yard, who

can refuse it. Mr. Neal told Mr.

Lewis and Mr. Neal talked about

the situation. Mr. Lewis told

-13&A- _

(6)

(7)

(8)

Mr. Neal that at that particular

time he needed Mr. Neal to take

the work and that Mr. Neal should

not even question him about it

because they did not have men

available at that particular time.

Mr. Neal stated in his grievance

that Mr. Lewis constantly harassed

him because of his race. AS an

example, Mr. Neal referred to Mr.

Lewis telling him not to park his

tractor in front of the door lead-

ing into the dispatch office. Mr.

Neal felt this was a trivial mat-

ter to correct him on and there-

fore an example of Mr. Neal's

"picking" on him. UPS has posted

a notice in the feeder office

requesting the feeder drivers not

to park their tractor outside of

the dispatch office but instead to

park it against the fence.

Mr. Neal also complained to his

manager, Mr. Elmore, about Mr.

Lewis.

After UPS received the grievance

they initiated an investigation.

-139A-

Mr. Hanley, the district Manager,

directed Ron Johnston the district

personnel manager to investigate

the claim of racial harassment.

The basis for Mr. Neal's grievance

was his perception that his super-

visor, Mr. Lewis, was picking on

him because he was black.

In the court of the investigation

Mr. Johnston interviewed the divi-

sion manager, Bill Richards, Mr.

Lewis, and Mr. Neal. In addition

he talked to the shop steward,

Bobby Bolin. Mr. Bolin is black.

Mr. Bolin told Mr. Johnston that

he did not believe that Mr. Neal's

treatment was racially motivated

or warranted involving other

employees. As a result of the

investigation Mr. Johnston con-

cluded that Mr. Neal was not being

harassed because of his race.

(9) Mr. Johnston reported his conclu-

Sions back to Mr. Richards and Mr.

Hanley.

(10) Mr. Lewis left UPS in 1982.

-140A-

(11)

(12)

(13)

Although Mr. Neal testified that

Mr. Lewis discriminated against

him, Mr. Neal did not assert that

the investigation of Mr. Johnston

was anything less than it should

have been or was tainted because

of racial animus.

The Court finds that UPS did not

subject Mr. Neal to racial harass-

ment through one of his supervi-

sors. Although Mr. Neal may have

perceived Mr. Lewis' instructions

as racist, the Court is of the

opinion that Mr. Lewis was simply

trying to handie the responsibili-

ties on his shift. Further, the

Company conducted a thorough

investigation of Mr. Neal's claim

and the black shop steward

informed UPS that he did not think

that Mr. Neal was being singled out

or harassed because of his race.

The Court, therefore, finds that

Mr. Neal failed to prove he was

racially harassed by Mr. Lewis or

treated differently than white

employees because of his race.

Mr. Neal also alleges that UPS

-14TA- -

eT

discriminated against him in fail-

ing to promote him to a supervi-

sory poSition.

(14) Mr. Neal testified that he never

expressed an interest to anyone at

UPS about becoming a supervisor.

(15) Mr. Neal testified that he did not

approach anyone about becoming a

Supervisor because between 1

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