# Petition for Writ of Certiorari — Ardrey v. United Parcel Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0212%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 480 U.S. 934 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0212%3A1. Public record. Not legal advice.