United States District Court, E.D. North Carolina, Western Division
ERIC C. BROADWAY, Plaintiff,
UNITED PARCEL SERVICE, INC., Defendant.
C. DEVER III Chief United States District Judge.
August 15, 2016, Eric C. Broadway ("Broadway" or
"plaintiff') filed a pro se Title VH religious
discrimination claim against United Parcel Service, Inc.
("UPS" or "defendant") in Wake County
Superior Court [D.E. 1-1]. On September 16, 2016, UPS removed
the action to this court [D.E. 1]. On August 30, 2017, UPS
moved for summary judgment [D.E. 15] and filed a memorandum
in support [D.E, 16]. On October 4, 2017, Broadway responded
in opposition [D.E. 20]. On October 18, 2017, UPS replied
[D.E. 21]. As explained below, the court grants
UPS's motion for summary judgment.
2013, Broadway began working for UPS as a part-time loader.
See Pl.' s Dep. 60, 64 [D.E. 16-3]; Grant Decl.¶25
[D.E. 16-1]. In the fall of2013, Broadway applied to be a
cover driver. See Pl's Dep. at 64, 67-68; Grant
Decl. ¶ 25. Cover drivers are part-time employees who
"cover" for full-time package car drivers when they
are absent or when UPS experiences an unusually high
workload. See Pl's Dep. at 64-65; Grant Decl. ¶ 25.
In October 2013, before starting as a cover driver, Broadway
requested an exception to the UPS Appearance Standards Code.
See Coates Decl. ¶7 [D.E. 16-2]; Pl's Dep. at 120.
Broadway is a Rastifarian and wears his hair in dread locks.
On October 24, 2013, Broadway completed a religious
accommodations request. See Pl's Dep. at 99; Coates Decl.
¶ 8. On November 22, 2013, UPS granted Broadway's
accommodation request concerning the UPS appearance
standards. See Pl's Dep. at 121; Coates Decl. ¶ 8.
summer of 2014, UPS assigned Broadway to work as a regular
temporary driver at UPS's Raleigh Metro Center, and
Broadway reported to supervisor Frederick Fuller
("Fuller"). See Fuller Decl. ¶¶
7-8 [D.E. 16-7]. On June 16, 2015, Fuller conducted
scan-check audits on approximately fourteen drivers,
including Broadway. See Id. ¶ 18. The
scan-check audit showed discrepancies in Broadway's
package deliveries. See Id. ¶¶ 18-20;
Grant Decl. ¶¶ 26-27. Specifically, the scan-check
audit showed that Broadway had service failures, with eight
packages recorded as "not found." See Fuller Decl.
¶ 18. UPS uses a "not found" code when there
has been a "misload" (i.e., the package was
supposed to be on the driver's package car, but was not
actually loaded due to an error in the preloading process).
See Grant Decl. ¶ 23. In addition, the daily discrepancy
report for June 16, 2015, showed that Broadway had recorded
21 packages (8 from the scan-check audit and 13 others) as
"not found" and therefore not delivered on June 16,
2015. See Fuller Decl. ¶ 19; Grant Decl. Exs. 3 & 4.
Pursuant to UPS policy, Fuller investigated these service
failures. See Fuller Decl. ¶ 20.
concluded that recording "not found" for the eight
scan-check audited packages was unusual because the packages
had physically been loaded on Broadway's package car
before Broadway's departure for the day. See Id.
¶ 19. Fuller asked Package Dispatch Supervisor, Timothy
Sill, to examine Broadway's package car to see if any
packages were still on the car. See Id. ¶ 20;
Sill Decl. ¶ 4 [D.E. 16-8]. Sill not only found the
eight packages that appeared in the scan-check audit report,
but also twelve other packages that Broadway recorded as
"not found" and had not delivered. See Fuller Decl.
¶ 20; Sill Decl. ¶¶ 4-5. Fuller concluded that
Broadway had improperly recorded the 20 packages as "not
found." See Fuller Decl. ¶ 21.
17, 2015, Fuller met with Broadway and Broadway's union
steward to discuss Broadway's service failures. See
Id. ¶ 22; Pl's Dep. at 165. Broadway
attempted to explain why he recorded so many packages as
"not found, " even though the packages were on
Broadway's package car. See Fuller Decl. ¶¶
22-23; Pl's Dep. at 168-69. Fuller did not find
Broadway's explanation credible given that four of the
packages were so large that Broadway would have had to walk
around the packages to access other packages that Broadway
delivered on June 16, 2015. See Fuller Decl. ¶
23. Moreover, during the meeting, Broadway never acknowledged
the full scope of recording so many packages as "not
found." See Id. ¶ 24.
20 packages were still on Broadway's package car when
Broadway returned to Metro Center and because Broadway
recorded those packages as "not found, " Fuller
concluded that Broadway failed to deliver the packages and
falsely claimed that the packages were "not found."
See Id. ¶¶ 27-28. Fuller then
decided to begin the process under the collective bargaining
agreement to terminate Broadway's employment for
violating UPS's procedure concerning package delivery and
violating UPS's honesty in employment policy by creating
inaccurate records about packages that UPS entrusted to him.
See Id. ¶ 29. Before beginning the discharge
process, Fuller reviewed the circumstances with the UPS labor
department to ensure there was "good cause" for the
discharge. See id; Grant Decl. ¶ 26.
1, 2015, UPS and the union held a local hearing concerning
Broadway. See Fuller Decl. ¶ 30; Grant Decl. ¶ 27.
At the local hearing, Broadway admitted that he wrongly
recorded four packages, but was not forthcoming about the
scope of his misconduct. See Pl's Dep. at 182; Fuller
Decl. ¶¶ 30-31; Grant Decl. ¶ 27. After the
local hearing and pursuant to the collective bargaining
agreement, the union scheduled an AAPGC panel hearing for the
week of August 22, 2015, in Baltimore, Maryland. See Grant
Decl.¶ 28. Broadway did not attend the AAPGC panel
hearing. See id.; Pl's Dep. at 183. Instead,
before the hearing, the union business agent told the UPS
labor manager that Broadway would resign if UPS converted his
termination for dishonesty into a resignation for personal
reasons. See Pl's Dep. at 183-85; Grant Decl. ¶ 28.
In accordance with Broadway's request, UPS agreed to
convert his termination into a resignation. See Pl's Dep.
at 183-85; Grant Decl. ¶ 28. The union representative
then told the panel that the case had been settled/withdrawn.
See Pl's Dep. at 183-85; Grant Decl. ¶ 28.
September 9, 2015, Broadway filed an EEOC charge alleging
religious discrimination. Pl's Dep. at 210; (Ex. 24) p.E.
16-6] 12. Specifically, Broadway alleged that UPS terminated
his employment because of his Rastifarian religion. See Ex.
24. On May 10, 2016, the EEOC dismissed Broadway's EEOC
charge. Pl's Dep. 211-12; (Ex. 25) p.E. 16-6] 13.
considering a motion for summary judgment, the court views
the evidence in the light most favorable to the non-movant
and applies well-established principles under Rule 56 of the
Federal Rules of Civil Procedure. See, e.g., Fed.R.Civ.P. 56;
Scott v. Harris. 550 U.S. 372, 378 (2007);
Celotex Corp. v. Catrett 477 U.S. 317, 324-26
(1986); Anderson v. Liberty Lobby. Inc., 477 U.S.
242, 247-55 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585-87 (1986). Summary
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see Anderson. 477 U.S. at
247-48. The party seeking summary judgment must initially
demonstrate an absence of a genuine issue of material fact or
the absence of evidence to support the nonmoving party's
case. Celotex Corp., 477 U.S. at 325. Once the
movant meets its burden, the nonmoving party then must
affirmatively demonstrate that there exists a genuine issue
of material fact for trial. See Matsushita. 475 U.S.
at 587. "[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party." Anderson.
477 U.S. at 249. Conjectural arguments or a "scintilla
of evidence" will not suffice. See id. at
249-52: Beale v. Hardy. 769 F.2d 213.214 (4th Cir.
1985) ("The nonmoving party., .cannot create a genuine
issue of material fact through mere speculation or the
building of one inference upon another."). "[T]here
must be evidence on which the [fact finder] could reasonably
find for the [nonmoving party]." Anderson. 477
U.S. at 252. In evaluating material submitted in support of
or in opposition to a motion for summary judgment, the court
may reject inadmissible evidence (such as hearsay). See
Fed.R.Civ.P. 56(c)(4); Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).
VII prohibits an employer from terminating an employee
"because of such individual's ... religion." 42
U.S.C. § 2000e-2(a)(1). A plaintiff may establish such a
Title VII violation in two ways. First, a plaintiff may
demonstrate through direct evidence that illegal
discrimination motivated an employer's adverse employment
action. See, e.g., Diamond v. Colonial Life &
Accident Ins., 416 F.3d 310, 318 (4th Cir. 2005).
Alternatively, a plaintiff may proceed under the
burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See
generally Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en banc),
abrogated in part on other grounds by
Univ. of Tex. Sw. Med. Ctr. v. Nassar. 570 U.S.
evidence is evidence from which no inference is required. To
show religious discrimination by direct evidence, a plaintiff
typically must show discriminatory motivation on the part of
the decisionmaker involved in the adverse employment action.
See Id. at 286-91. Such direct evidence would
include a decisionmaker's statement that the
decisionmaker terminated the plaintiff due to his religion.
See Id. at 3 03. The decisionmaker must be either
the employer's formal i decisionmaker or a subordinate
who was "principally responsible for, " or
"the actual decisionmaker behind, " the allegedly
discriminatory action. Reev ...