Opposition Brief — Merritt v. United Parcel Service, Inc. (No. 09-353)

Supreme Court, U.S.

FILED

NOV 9 - 2009

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No. 09-353

at

In The

Supreme Court of the Gnited States

HAL MERRITT,

Petitioner,

Ve

UNITED PARCEL SERVICE, INC.,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

LATOYA C. MERRITT

PHELPS DUNBAR LLP

111 E. Capitol Street,

KIM M. BOYLE

Counsel of Record

PHELPS DUNBAR LLP

365 Canal Street, Ste. 2000

New Orleans, Louisiana, 70130

Telephone: (504) 566-1311

Facsimile: (504) 568-9130

Ste. 600

Jackson, Mississippi 39201

Telephone: (601) 352-2300

Facsimile: (601) 360-9777

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO. (800) 225-644

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the lower courts properly dismissed

Petitioner’s hostile work environment claim.

2. Whether the lower courts properly granted

Summary judgment in favor of United Parcel Service

regarding Petitioner’s race discrimination claims

brought pursuant to Title VII and 42 U.S.C. § 1981

claim.

3. Whether the lower courts properly granted

summary judgment in favor of United Parcel Service

regarding Petitioner’s age discrimination claim.

ll

TABLE OF CONTENTS

Page

QUESTIONS PRR eRR WARE sircssssscerasccecccecsccscsccsees i

TABLE OF AUT RIB te Giieeiistevscccnsccssccscccsccesess iv

STATEMENT OF THE CASE ..................c:0eeceeeeeees H

I. Petitioner’s Employment History................ 1

TI. Petitioner's Feri en@ehiiescceccccccvcce.sccrcccsees. 2

III. Petitioner’s Violation of UPS’ Policies......... 4

IV. The Employee Dispute Resolution Process... 5

REASONS FOR DENYING THE PETITION ....... 6

I. The Lower Courts Properly Dismissed Peti-

tioner’s Hostile Work Environment Claim..... 6

Il. The Lower Courts Properly Granted Sum-

mary Judgment in Favor of United Parcel

Service Regarding Petitioner’s Race Dis-

crimination Claims Brought Pursuant to

Title VIT Gn Te@GtiOth BOGE oocceccccccceccccesscceess 9

A. Merritt Cannot Establish a Prima Facie

Case of Race Discrimination Under

"TICS Ve Oe TE vive cececcncsvcccccccc. 9

1. Merritt’s Inability to Proffer Any

“Similarly Situated” Employees Who

Were Retained Under “Nearly Iden-

tical” Circumstances Mandates the

Dismissal of His Race Discrimina-

eB ea (a 11

11]

TABLE OF CONTENTS —- Continued

Page

2. Merritt’s Reliance on the EEOC De-

termination Is Legally Misplaced.... 14

III. The Lower Courts Properly Dismissed Pe-

titioner’s Age Discrimination Claim ........... 16

CF IO hincisnteerinsencessssisithaeiaten eemesenioenares 18

iV

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Baker v. American Airlines, Inc., 430 F.3d 750

Sn SN I nos -tlak caccalinlbentetian enchabaensoa eareaslancess 16

Bouie v. Equistar Chemicals LP, 188 Fed. Appx.

Be CN tt EE ak cic cssc ras pesvesenaneuanesatanecsipnceine 12

Cruz v. Aramak Services, Inc., 213 Fed. Appx.

ee ED aocivditvarisuniciccvtersccsasenceninesarsiosetios 14

Dodson v. U.S. Army Fin. & Accounting Ctr,

636 F. Supp. 894 (S.D. Ind. 1986)........................... 17

Dollis v. Rubin, 77 F.3d 777 (5th Cir. 1995) .... ee. 7

Fields v. J.C. Penney Co., 968 F.2d 533 (5th Cir.

I i vhsicccussccudteanssiensuananaateatase onkaeanate ddan eee Rane 10

Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343,

Re BEE BEE ED vidasecnscisnntniscesatisemnaeae 17

Harrington v. Harris, 118 F.3d 359 (5th Cir.

RNS sista nts sencsasunahnaskabendavaniie Rakin s eaibantermrcanieactvectivan 10

Johnson v. Pointe Coupee Parish Police Jury,

No. 06-31230, 2008 WL 64659 (5th Cir. 2008)......... 8

Kelley v. Lockheed Martin Corp., 51 Fed. Appx.

Ae I Ee IED oss bncvin ch dcivsssterdapcwreoeee mddenaieaaediesinn 12

Machinchick v. PB Power, Inc., 398 F.3d 345

GOR RS SAREE aera POR nen Te MER Re one Seem 16

Marcantel v. State of Louisiana, 37 F.3d 197

ee RE SRR sre ih ERP AAR ARCs CER TONE 10

McClain v. Lufkin Industries, Inc., 519 F.3d

Be CRN ARs I vnsinsntsctsoncvisccceescecs to deaenaeaerraguet cutee 7

TABLE OF AUTHORITIES — Continued

Page

Morgan v. Humboldt County School Dist., 623

ey EN, MO CRRA. POE, BOM dnicdcccsoicnecenvecebecssvecasss 17

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S.

NID casi cactau races ce cui-cnesamiuasinnaesadacconvnss ralousvuswuiia 9

Okoye v. The Univ. of Tex. Houston Health

Science Ctr., 245 F.3d 507 (5th Cir. 2001) .............. 11

Pacheco v. Mineta, 448 F.3d 783 (5th Cir. 2006).......... 7

Paterson v. Weinberger, 644 F.2d 521 (5th Cir.

Rate nec seei ce a viks auc daa alaucausupeaaebadaceecsebearsiuals 16

Perez v. Texas Dep’t of Crim. J., 395 F.3d 206

I I asa ova decdinusecds kuascnacusouusammatentavenecaxen ta 1]

Ray v. Nimmo, 704 F.2d 1480 (11th Cir. 1983).......... 17

Ring v. Crisp County Hosp. Auth., 652 F. Supp.

A ee I oa vncevesxiniviveiosustsiontertvisiivintearian 17

Sanchez v. Standard Brands, Inc., 431 F.2d 455

RN FR niacin cei a akc oui ceauounadeMeniaberiniens 7

Shackelford v. Deloitte & Touche, L.L.P., 190

Be te COE GI BID encdsn sss ccc ceccnvesvecescacexeerscrenss 10

Trotter v. BPB America, Inc., 106 Fed. Appx.

SE I ET oo ccxucen sacanviusvanarebicunnesyenckarecoba, 12

Taylor v. Books-A-Million, 296 F.3d 376 (5th

Cir. 2002), cert. denied, 123 S.Ct. 1287 (2003)......... 7

White v. Frank, 718 F. Supp. 592 (W.D. Tex.

1989), aff’d, 895 F.2d 243 (5th Cir. 1990),

cert. denied, 498 U.S. 890, 111 S.Ct. 232, 112

ENED PEN RIND osc daxss aici cesccaccoccbseereieess ovis creceaee

vi

TABLE OF AUTHORITIES — Continued

Page

Wright v. Columbia Women & Children’s Hosp.,

Pe POG. AMOK. TOL (GC Clb, BOOZ) cccccvcsceccececevscesesves 15

Zombro v. Baltimore City Police Dep't, 868 F.2d

1364 (4th Cir. 1989), cert. denied, 493 U.S.

850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989)............ i6

FEDERAL STATUTES

a ns ssusaceneataneosodiacnabends 9,10

ee Oe IIIT os cccccnnsducvcevsonvesavceonneseucsecbes 7

42 U.S.C. § 2000e-5(e)(1).....................008- See,

RULES

ce OL ceguunsonterbsuaresieen 1,6

IN icc con cin vase deenentevenshapuas isbunovanvansneseus ]

STATEMENT OF THE CASE

Simply stated, this is a case about a management

employee who deliberately violated UPS’ corporate

policies on integrity and proper employee conduct,

and later manufactured claims of race and age dis-

crimination when UPS terminated him consistent

with its policies. Petitioner has presented no “com-

pelling reasons” for his Petition for a Writ of Certi-

orari to be granted (“Petition”). See Sup. Ct. R. 10.

Specifically, Petitioner has failed to demonstrate that

the Fifth Circuit’s April 16, 2009 Opinion is in conflict

with a decision of this Court or any other Court of

Appeals or that the Fifth Circuit decided an impor-

tant federal question that has not been settled by this

Court. See Sup. Ct. R. 10(a)-(c). Therefore, the Peti-

tion should be denied.

I. PETITIONER’S EMPLOYMENT HISTORY.

UPS is a world-wide package delivery company

and a provider of specialized transportation and logis-

tics services. 1:258.' Hal Merritt was hired by UPS in

March, 1977 to work as a part-time package unloader

at its Jackson, Mississippi facility. 1:257. Merritt be-

came a full-time employee in 1978. 1:259-60. Through-

out his employment with UPS, Merritt was an at-will

employee. 1:259.

The record on appeal contains two volumes of docketed

pleadings. In this bref, record pages are cited as volume:page

Merritt transferred to UPS’ Gulfport, Mississippi

facility in the early 1980s. 1:264. On May 5, 1986, he

was promoted to a preload supervisor position and

eventually became an on-road supervisor. 1:263-64.

After working in several different management po-

sitions’ and at other UPS facilities’ throughout the

country, Merritt returned to UPS’ Gulfport Center as

an on-road supervisor. 1:269-71. As the on-road

supervisor, Merritt was responsible for training the

service providers (drivers) on how to deliver a pack-

age from the service center to a customer. 1:263. In

this capacity, Merritt also advised the service pro-

viders on how to track and code their packages.

1:263-64. Merritt worked in this position until his

employment was terminated. 1:271.

Il. PETITIONER’S TERMINATION.

On August 14, 2004, Merritt was disciplined and

ultimately discharged because he personally falsified

Company records and instructed drivers in the Gulf-

port Center (which he supervised) to falsify their

delivery records. 1:298.

Prior to Merritt’s termination, UPS, through its Re-

gional Security Manager Bob Pritt (“Pritt”), conducted an

Merritt worked as a loss prevention manager, car wash

supervisor, bench supervisor, Pascagoula, Mississippi Center

Manager and as a supervisor trainer 1:61-264, 268

Merritt also worked in Covington, Louisiana, Pascayoula,

Mississippi, Atlanta, Georgia, Greensboro, North Carolina and

Tampa, Florida. 1:265-68

3

investigation at the Gulfport Center reyarding em-

ployee concerns of “alleged falsification of missed

packages being recorded as ‘futures’ and overtime pay

being withheld from a preload employee.” 1:299-301.

The investigation occurred in July, 2004. /d. During

this investigation, Pritt interviewed and obtained

written statements from several service providers. /d.

Nine (9) drivers indicated that Hal Merritt had

routinely instructed them to code missed packages as

“futures.” Id.

During his deposition, Merritt admitted that he

instructed service providers to record “missed”/“send-

again” packages as “futures.” 1:296. At the time,

Steve Beattie (“Beattie”) was the Gulfport Center

Manager and Merritt’s immediate supervisor. 1:297

Beattie never instructed Merritt “to tell the drivers

to record ‘missed’ and ‘send-again’ packages as ‘fu-

tures.’” Id.

Based on Pritt’s investigation, it was clear that

major service issues existed at the Gulfport Center.

1:314-16. On one occasion, Merritt instructed a driver

to record on the delivery record that a customer had

requested a late delivery on a package that actually

had an early commit time. Jd. An inquiry into the

matter revealed that the customer had not made any

such request; rather, the delivery was actually a

service failure because the driver was late. /d

Merritt continued his systematic practice of eth

cal and policy violations in a number of other similar

episodes (verified by Pritt through employee state

ments, interviews and tracking sheets) which ultimately

created an illusion of the Gulfport Center’s efficiency

that was completely false. 1:314-16. After the investi-

gation, Bob Pritt recommended Merritt’s termination.

Id.

Il. PETITIONER’S VIOLATION OF UPS’ POLI-

CIES.

Integrity has always been essential to the way

UPS does business. 1:317-18. UPS is guided by cer-

tain policies and principles which are outlined in the

UPS Policy Book and the UPS Code of Business

Conduct. Id.; see also 1:319-38. Both books are up-

dated as necessary and distributed to all manage-

ment personnel. 1:272-76.

Merritt’s actions were a clear violation of UPS’

policy on integrity. 1:292-93. Page 22 of the UPS Code

of Business Conduct provides, in pertinent part:

Most of us record or prepare some type of

information during our workday, such as fi-

nancial reports, accounting records, business

plans, environmental reports, injury and

accident reports, expense reports, and time

cards. People inside and outside UPS depend

on these reports to be accurate, truthful, and

properly maintained. These people include

employees, government representatives, au-

ditors, and the communities in which we

vperate. No one may deviate from our

commitment to manage information ac-

curately and truthfully. (iEmphasis added)

The UPS Code of Business Conduct and the UPS

Policy Book insist that integrity is fundamental to the

Company's operations and expressly forbid falsifi-

cation of Company documents. 1:331.

IV. THE EMPLOYEE DISPUTE RESOLUTION

PROCESS.

A benefit offered by UPS to management and

non-union employees is the freedom to participate in

an internal Employee Dispute Resolution (“EDR”) five-

step program. 1:277. After his termination, Merritt

elected to participate in this program. 1:278-82.

Merritt went through the first four steps of the pro-

gram, starting with his request to participate, a

meeting with the Regional Employee Relations

Manager, Martha Escandon (Hispanic female), a peer

review and ending with mediation. Jd. The peer

review panel, which consists of three UPS employees

— two selected by Merritt and one by UPS, unani-

mously agreed that Merritt’s actions were wrong but

voted to reinstate Merritt to his previous position. /d.

However, because he acted without integrity, his

peers agreed that he should not receive back pay, his

annual stock distribution or his half-month bonus. /d.

Further, they recommended that he be assigned to

another facility. /d.

As stated in the EDR booklet, only the last step

in the EDR program, arbitration, is binding. 1:339-48.

After much consultation between the District H.R.

Manager Gwen Lusk (African-American female), Re

gional H.R. Manager Diane Tait-Howard (African-

American female) and Ms. Escandon, it was decided

that in order to maintain consistency with the

6

integrity policies, Merritt’s termination should be

upheld. 1:349-51.

—---- @

REASONS FOR DENYING THE PETITION

Petitioner provides absolutely no plausible fac

tual or legal basis for this Petition. The decisions

below do not conflict with a decision of this Court or

any Court of Appeals nor do they implicate a federal

question that has not been decided by this Court.

Accordingly, Petitioner has not carried his stringent

burden of demonstrating any “compelling reasons” for

the Petition to be granted. See Sup. Ct. R. 10. This

Petition is a colossal misuse of the Court’s limited

time and resources

I. THE LOWER COURTS PROPERLY DIS-

MISSED PETITIONER’S HOSTILE WORK

ENVIRONMENT CLAIM.

Petitioner failed to plead in his complaint and

include in his Charge of Discrimination a hostile

work environment claim. Petitioner’s arguments re

varding an “alleged” hostile work environment claim

are legally irrelevant to this Court's consideration of

the subject appeal as he never properly asserted a

hostile work environment claim in this action. The

Fifth Circuit Court of Appeals and the district court

correctly determined that Hal Merritt failed to plead

in his Complaint or assert in his FEOC Charge of

Discrimination, a hostile work environment claim

against UPS. See Pet. App. at 4-5

7

Tellingly, in Petitioner’s entire five (5) page argu-

ment regarding an alleged hostile work environment,

he fails to tell the Court that his “alleged” hostile

work environment claim was asserted for the first

time in his Memorandum in Opposition to UPS’ Mo-

tion for Summary Judgment. See Pet. at 4-8. Either

Petitioner is confused as to what his action is about,

or he is attempting to confuse this Court for purposes

of creating an issue to support his baseless appeal.

It is well settled that a court may entertain a

Title VII lawsuit only if the aggrieved party has (1)

exhausted his or her administrative remedies, and (2)

has filed suit within the time permitted after re-

ceiving a “notice of right to sue.” Jaylor v. Books-A-

Million, 296 F.3d 376, 378-79 (5th Cir. 2002), cert.

denied, 123 S.Ct. 1287 (2003). Indeed, exhaustion of

administrative remedies is a prerequisite to filing

suit under Title VII and the ADEA. See Dollis v.

Rubin, 77 F.3d 777, 781 (5th Cir. 1995). Exhaustion

occurs when a complainant timely files a charge of

discrimination with the EEOC and receives a notice

of right to sue. 42 U.S.C. §§ 2000e-5(e)(f); see also

Taylor, 296 F.3d at 379. Courts should not condone

lawsuits that exceed the scope of EEOC exhaustion.

McClain v. Lufkin Industries, Inc., 519 F.3d 264, 274

(5th Cir. 2008). EEOC complaints are broadly con-

strued, but only in terms of the administrative FEOC

investigation that “can reasonably be expected to

grow out of the charge of discrimination.” /d., citing

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465

(5th Cir. 1970). When a complaint alleges grievances

not raised at the EEOC, those allegations must be

dismissed. See id. at 274, citing Pacheco v. Mineta,

8

448 F.3d 783 (5th Cir. 2006).* This is the unambig-

uous law of the Fifth Circuit, which is in harmony

with the law of this Court and all other Circuits.

A review of Merritt’s Complaint clearly estab-

lishes that nowhere in Merritt’s Complaint, which

has never been amended, did he make a hostile work

environment allegation. 1:11-16. In fact, even Merritt’s

Charge of Discrimination (by which he is bound for

purposes of asserting a violation under Title VII)

makes no reference to a hostile work environment

claim. 1:352. In its Order, the district court correctly

stated, and the Fifth Circuit agreed, that Merritt’s

“alleged” hostile work environment claim “was not

adequately pled or included in the EEOC charge”

1:618. Based on the record evidence and established

precedent, the Fifth Circuit correctly concluded that

Merritt’s only proffered evidence in support of his

* See also Johnson v. Pointe Coupee Parish Police Jury, No.

06-31230, 2008 WL 64659 at *1 (Sth Cir. 2008) (a plaintiff is

precluded from alleging claims that were not included in his

EEOC charge). In Johnson, plaintiff filed a complaint alleging

discrimination under the ADEA and Title VII. /d. Although

Johnson’s EEOC charge alleged race discrimination, claims of

age discrimination were never presented to the EEOC for

adjudication. Jd. at *2. Because the age claims were alleged in

the federal complaint, defendant filed a motion for summary

judgment arguing that plaintiff’s allegations were procedurally

improper because plaintiff circumvented the administrative

process. /d. at *1. The Fifth Circuit found that a plaintiff who

fails to allege an additional cause of action under an EEOC

complaint is precluded from amending his complaint to include

the claim, as such omission means that a plaintiff “failed to

exhaust his administrative remedy.” /d. at *2.

9

hostile work environment claim “[was] made at least

three years before the filing of his EEOC charge for

violations of Title VII, long after the statutory period

for filing a charge.” See Pet. App. at 4. As such, this

Court should give no further consideration to Merritt’s

Petition and deny the same.

Il. THE LOWER COURTS PROPERLY GRANTED

SUMMARY JUDGMENT IN FAVOR OF

UNITED PARCEL SERVICE REGARDING

PETITIONER’S RACE DISCRIMINATION

CLAIMS BROUGHT PURSUANT TO TITLE

VII AND SECTION 1981.

A. Merritt Cannot Establish a Prima Facie

Case of Race Discrimination Under Title

VII or Section 1981.

In his Petition, Merritt “emphatically asserts”

that his “termination was racially motivated.” See

Pet. at 10. However, the record is devoid of any evi-

dentiary basis to support his claim that he was

> See 42 U.S.C. § 2000e-5(e(1) (‘A charge under this section

shall be filed within one hundred and eighty days after the

alleged unlawful employment practice occurred... .”); cf. Nat'l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (“It

does not matter, for purposes of the statute, that some of the

component acts of the hostile work environment fall outside the

statutory period. Provided that an act contributing to the claim

occurs within the filing period, the entire period of the hostile

work environment claim may be considered by the court for the

purposes of determining liability.”). In this case, Petitioner had

no “acts” that occurred within the filing period.

10

terminated “because of his race” and consequently,

Merritt cannot establish a prima facie case of race

discrimination.

Claims of racial discrimination brought pursuant

to Title VII and Section 1981 are governed by the

same evidentiary framework. Harrington v. Harris,

118 F.3d 359, 367 (5th Cir. 1997); Marcantel v. State

of Louisiana, 37 F.3d 197, 198 n. 4 (5th Cir. 1994). To

maintain a discrimination claim, a plaintiff must first

establish, by a preponderance of the evidence, a prima

facie case of racial discrimination. To meet this bur-

den, plaintiff must prove: (1) he is a member of a

protected group or class; (2) was qualified for his

position; (3) was subjected to an adverse employment

action; and (4) was replaced by someone outside the

protected class or that he was otherwise discharged

because of his race. Shackelford v. Deloitte & Touche,

L.L.P., 190 F.3d 398, 404 (5th Cir. 1999); Fields v. J.C.

Penney Co., 968 F.2d 533, 536 n. 2 (5th Cir. 1992).

It is undisputed that Merritt, as an African-

American, was a member of a protected class and was

subjected to an adverse employment action when he

was terminated by UPS. In viewing the facts in the

light most favorable to Merritt, the district court

accepted his argument that he was qualified for his

position, “despite his admitted violations of the UPS

Policy Book and the UPS Code of Business Conduct.”

1:606. As such, the lower courts turned to the fourth

and final element needed to establish a prima facie

case of discrimination. Jd. Based on the record evi-

dence, the lower courts correctly concluded that

11

Merritt had failed to establish that others similarly

situated were more favorably treated or that he was

otherwise discharged because of his race. Id.; see also

Pet. App. at 6.

1. Merritt’s Inability to Proffer Any

“Similarly Situated” Employees Who

Were Retained Under “Nearly Iden-

tical” Circumstances Mandates the

Dismissal of His Race Discrimina-

tion Claims.

Merritt asserts that others similarly situated,

but not in his protected class (Caucasians), were more

favorably treated or that he was otherwise discharged

because of his race. Pet. at 10-11. The Fifth Circuit

has “specifically addressed the plaintiff-employee’s

burden of proof in disparate treatment cases in-

volving separate incidents of misconduct and has

explained consistently that for employees to be

similarly situated those employees’ circumstances,

including their misconduct, must have been ‘nearly

identical.’” See Perez v. Texas Dep't of Crim. J., 395

F.3d 206, 213 (5th Cir. 2004). Otherwise stated, “(t]he

plaintiff must show that the employer gave pref-

erential treatment to another employee under nearly

identical circumstances; that is, that the misconduct

for which the plaintiff was discharged was nearly

identical to that engaged in by other employees.”

Okoye v. The Univ. of Tex. Houston Health Science

Ctr., 245 F.3d 507, 514 (5th Cir. 2001).

12

Furthermore, Fifth Circuit and the courts encom-

passed therein, routinely grant summary judgment

for employers on discrimination claims where em-

ployees erroneously allege they were terminated for

workplace infractions, but other employees outside of

the protected class who engaged in the same acts

were not. See e.g., Bouie v. Equistar Chemicals LP,

188 Fed. Appx. 233 (5th Cir. 2006) (affirming dis-

missal of race discrimination claim where plaintiff

simultaneously committed two safety infractions and

proffered white comparators were retained after com-

mitting one safety violation); Trotter v. BPB America,

Inc., 106 Fed. Appx. 272 (5th Cir. 2004) (affirming

summary judgment for employer on plaintiff’s Title

VII race discrimination claim because plaintiff, who

was terminated for physical confrontation with his

supervisor, was not similarly situated to white em-

ployees who were retained after fighting co-workers);

Kelley v. Lockheed Martin Corp., 51 Fed. Appx. 483

(5th Cir. 2002) (affirming dismissal of plaintiff’s Title

VII racial discrimination claim because plaintiff, who

was fired for being absent or tardy 49 times in a 2-

year period, did not prove his white co-worker, who

was absent 24 times in the same period, was sim-

ilarly situated).

The basis of Merritt’s race claim is that two

Caucasian employees, Steve Beattie (“Beattie”) and

Donna Chennault (“Chennault”) purportedly com-

mitted similar acts and were not terminated by UPS.

Beattie and Chennault were not “similarly situated”

to the Petitioner. The record clearly establishes that

13

the only reason that Beattie was disciplined (via sus-

pension) as a result of the investigation is because

UPS attributed some responsibility for Merritt’s acts

to him because as Center Manager “he should have

been aware of the issues and problems in the center.”

1:299-301. Chennault was issued a written warning

because during the investigation, she stated that she

became aware of Merritt’s actions, but did not notify

her manager. /d. In stark contrast to Merritt, the dis-

trict court correctly opined that Beattie and Chennault

were not accused of falsifying UPS documents or of

instructing service providers to falsify UPS docu-

ments. 1:610. Furthermore, the district court stated

that “their actions do not meet the definition of

‘nearly identical’ conduct as the Fifth Circuit has

applied it.” Jd. Specifically, the district court con-

cluded that “(t]he distinction between these two em-

ployees’ conduct and Plaintiff’s essentially amounted

to inattentiveness or negligence on the part of

Beattie, and inaction on the part of Chennault, as

opposed to the undisputed affirmative acts of mis-

conduct in which Plaintiff engaged.’ 1:609-10.

Moreover, the Fifth Circuit following its estab-

lished precedent, properly determined that Merritt’s

discrimination claim failed as a matter of law because

he was unable to proffer a “similarly situated” Cau-

casian employee who was retained under “nearly

identical” circumstances. See Pet. App. at 6-7. Sim-

ilarly, the Court should not be led astray by Merritt’s

“red herring” argument. Merritt’s clear failure to

identify a co-worker who was “similarly situated” but

14

retained under “nearly identical” circumstances is

fatal to his race discrimination claims and contrary to

the established precedent of this Court and its circuit

courts. Based on the record evidence, Merritt’s Peti-

tion should be dismissed.

2. Merritt’s Reliance on the EEOC De-

termination Is Legally Misplaced.

Continuing in his baseless efforts to create an

appealable issue, in his Petition, Merritt states that

“[a)mazingly, the Defendant-Petitioner failed to artic-

ulate the findings of the Equal Employment Oppor-

tunity Commission in their Motion for Summary

Judgment,” as if UPS somehow attempted to hide a

“smoking gun” by not mentioning the determination

letter. See Pet. at 13.

As an initial matter, UPS did not refer to the

EEOC Determination because it is legally irrelevant

to a review of the district court’s dismissal of Merritt’s

race discrimination claims. In Cruz v. Aramak Ser-

vices, Inc., 2138 Fed. Appx. 329, 335 (5th Cir. 2007),

the Fifth Circuit held that a district court “is not

bound by the EEOC’s determination of reasonable

cause” and affirmed the court’s summary judgment

ruling. Moreover, the Court stated that “the deter-

mination is not sufficient to defeat summary judg-

ment where the determination is not supported by

the summary judgment evidence.” Jd.

In yet another case affirming a district court’s

granting of summary judgment, the Fifth Circuit held

that “[t]he EEOC’s conclusory opinion, unsupported

by any evidence in the summary judgment record, is

not sufficient to defeat the motion for summary judg-

ment.” See Wright v. Columbia Women & Children’s

Hosp., 34 Fed. Appx. 151, 155 (5th Cir. 2002). The

Court stated that “this determination letter contains

only the broadest legal and factual conclusions, does

not identify the qualifications taken into account by

the EEOC, and does not outline the nature of the

investigation conducted.” /d.

Here, the Fifth Circuit also determined that the

determination letter in question, “did not create a

material question of fact to defeat summary judg-

ment” because it contained only a broad conclusion,

does not “outline the nature of the investigation and

does not cite evidence in support.” Pet. App. at 7-8.

“Because Merritt fails to present evidence that other

similarly situated employees were treated more

favorably,” his claims were properly dismissed by the

Court.

In light of Merritt’s inability to establish that the

lower courts’ dismissal of his race discrimination

claim was in conflict with the established precedent

of this Court and all other Circuits, his Petition

should be denied.

16

lil. THE LOWER COURTS PROPERLY DIS-

MISSED PETITIONER’S AGE DISCRIMI-

NATION CLAIM.

The Fifth Circuit correctly concluded that the

Petitioner “failed to provide sufficient evidence to

establish a prima facie case of age discrimination

under the ADEA. See Pet. App. at 10.

To establish an ADEA claim, a plaintiff must

show that (1) he is a member of a protected class; (2)

he was otherwise qualified for his position; (3) he was

discharged from his position; and (4) he was either:

(a) replaced by someone outside the protected class,

(b) replaced by someone younger, or (c) otherwise

discharged because of his age. Baker v. American

Airlines, Inc., 430 F.3d 750, 753 (5th Cir. 2005) (citing

Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th

Cir. 2005)). Merritt failed to satisfy the fourth ele-

ment.

In the Fifth Circuit and other circuits, it is well

settled that plaintiff asserting an ADEA claim must

establish that he was treated less favorably than

similarly situated younger employees. See White v.

Frank, 718 F. Supp. 592, 595 (W.D. Tex. 1989), aff’d,

895 F.2d 243 (5th Cir. 1990), cert. denied, 498 U.S.

890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990).° This is

* See White v. Frank, 718 F. Supp. 592, 595 (W.D. Tex. 1989),

aff’d, 895 F.2d 243 (5th Cir. 1990), cert. denied, 498 U.S. 890,

111 S.Ct. 232, 112 L.Ed.2d 192 (1990); Paterson v. Weinberger,

644 F.2d 521, 524-25 (5th Cir. 1981); Zombro v. Baltimore City

Police Dep't, 868 F.2d 1364, 1369 (4th Cir. 1989), cert. denied,

(Continued on following page)

17

consistent with this Court’s holding in Gross v. FBL

Fin. Servus., Inc., 129 S.Ct. 2343, 174 L.Ed.2d 119

(2009). In this action, the Petitioner’s evidence amounts

to an assertion that he was terminated because he

was seven years away from retirement and that

Beattie and Chennault were younger workers. See Pet.

at 19. The Fifth Circuit properly held that because

“Beattie and Chennault were not similarly situated,

Merritt does not establish a prima facie case of age

discrimination.” Pet. App. at 11.

Since the court’s conclusion was based on estab-

lished precedent followed by all the Circuits, the Peti-

tioner again has failed to show a conflict with a

decision of this Court or any Court of Appeals and his

Petition should be denied. Moreover, Petitioner does

not argue in his Petition that any conflicts exist.

«

493 U.S. 850, 110 S.Ct. 147, 107 L.Ed.2d 106 (1989); Ray v

Nimmo, 704 F.2d 1480, 1485 (11th Cir. 1983); Ring v. Crisp

County Hosp. Auth., 652 F. Supp. 477, 482 (M.D. Ga. 1987);

Dodson v. U.S. Army Fin. & Accounting Ctr, 686 F. Supp. 894

(S.D. Ind. 1986); Morgan v. Humboldt County School Dist., 623

F. Supp 440 (D.C. Nev. 1985).

18

CONCLUSION

Petitioner has not established any compelling

reasons for this court to grant the Petition. Therefore,

Respondent respectfully request that the Petition be

denied.

Respectfully submitted,

KIM M. BOYLE LAToya C. MERRITT

Counsel of Record PHELPS DUNBAR LLP

PHELPS DUNBAR LLP 111 E. Capitol Street,

365 Canal Street, Ste. 2000 Ste. 600

New Orleans, Louisiana, 70130 Jackson, Mississippi 39201

Telephone: (504) 566-1311 Telephone: (601) 352-2300

Facsimile: (504) 568-9130 Facsimile: (601) 360-9777

Counsel for Respondent