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Sawyers v. United Parcel Service, Inc.

United States District Court, M.D. North Carolina

September 11, 2019

BARRY SAWYERS, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          N. Carlton Tilley, Jr. Senior United States District Judge

         Plaintiff Barry Sawyers (“Sawyers”) filed the instant action against United Parcel Service, Inc. (“UPS”), alleging retaliation in violation of Title VII of the Civil Rights Act of 1964. (Compl. [Doc. #1].) This matter is before the Court on UPS's Motion to Dismiss for Failure to State a Claim (“UPS's Mot. to Dismiss”) [Doc. #5]. For the reasons explained below, UPS's Motion to Dismiss is GRANTED.

         I.

         As alleged in the Complaint, for the past thirty-three years, Sawyers has worked for UPS. During the times and instances complained about, he has been a feeder driver for UPS's facility in Winston-Salem, North Carolina. (Compl. ¶ 7.) Sawyers alleges that since approximately 2015, he has been “harassed, intimidated and coerced” by Gary Knowles (“Knowles”), the Extended Feeder Manager. (Id. ¶¶ 8-9.) On August 15 (year not alleged), Sawyers received a verbal warning from LaShay Cross (“Cross”), Car Supervisor, for not taking the full hour required for lunch, after which Sawyers filed a grievance against Knowles on August 20, 2016. (Id. ¶ 10.) According to Sawyers, after he filed this grievance, Knowles began retaliating against him. (Id.)

         “Between August 2015 and July 2016, there were verbal warnings about job performance.” (Id. ¶ 11.) “In or around July 2016, ” Knowles “demanded Sawyers violate DOT policies of using on duty time to do off duty activities.” (Id.)

         In or around September 2016, Sawyers began driving to and from Charleston, West Virginia four days a week, and occasionally would stop to use the restroom without clocking out. (Id. ¶ 13.) “Upon information and belief, at the direction of Knowles and in retaliation for the grievances Mr. Sawyers filed, Cross started writing up Mr. Sawyers for undocumented stops during trips to West Virginia on at least five occasions.” (Id. ¶ 14.)

         In November 2016, Cross told Sawyers to clock out to use the restroom, which he began doing. (Id. ¶ 15.) Days later, Sawyers received approximately five “OJS Audit”[1] because of his bathroom stops. (Id.)

         Around December 9, 2016, Cross called Sawyers, at the direction of Knowles, to notify Sawyers he was receiving a three-day suspension for not following instructions regarding stops. (Id. ¶ 16.) After explaining he could not make 500-mile trips without stopping to urinate, Sawyers was instructed to obtain a doctor's note. (Id.) On January 17, 2017, Sawyers received a note from his doctor stating he should be allowed to take breaks to urinate. (Id. ¶ 17.) The note also stated that “the blood pressure meds Mr. Sawyers was prescribed MAY cause more frequent urination.” (Id. ¶ 19.)

         On January 20, 2017, Sawyers received a discharge letter from UPS in the mail dated January 17, 2017 and signed by Knowles. (Id. ¶ 18.) The letter stated Sawyers was discharged for “failure to follow scheduled meal period on January 10, 2017.” (Id.) On the advice of the shop steward, Sawyers returned to work and no one ever mentioned the letter. (Id.)

         During the week of January 26, 2017, while at work, Knowles told Sawyers he needed to speak with him and the shop steward. (Id. ¶ 19.) Sawyers gave Knowles the doctor's note, and Knowles “took Mr. Sawyers out of service that same day” and told him to file for short term disability. (Id.) Sawyers was out of work January 27 and 31 and was told that in order to return to work, he needed to go to the doctor and have the wording of the note changed, which he did. (Id. ¶ 20.)

         On February 1, 2017, Knowles called Sawyers and told him to get a new “DOT physical”, even though his current “period” had not expired. (Id. ¶ 21.) Sawyers “was finally allowed to return to work” on February 3, 2017. (Id.)

         On February 4 and 10, 2017, Sawyers filed grievances “relating to the treatment by Knowles and Cross as well as his missed time from work.” (Id. ¶ 22.) On April 6, 2017, Sawyers received another termination letter “for the same or similar allegations in retaliation for grievances [he] filed.” (Id. ¶ 23.)

         “Upon information and belief” Sawyers was “written up and sent discharge notices for not clocking out on a one minute stop.” (Id. ¶ 24.) “Upon information and belief” other UPS drivers on the same or similar route used their fifteen-minute breaks for bathroom breaks, or in whatever way “they saw fit”, and no adverse actions were taken against them. (Id.) Therefore, Sawyers alleges that because he “received suspensions and discharge notifications," he was treated less favorably than other similar employees, (id. ¶ 25, ) and that, “upon information and belief, male employees were not subjected to the adverse action in which Plaintiff was subjected to, ” (id. ¶ 34.) He alleges that UPS's “extreme and outrageous actions . . . gave rise to a hostile work environment, ” (id. ¶ 26, ) and that the “intentional discrimination” caused him injury, (id. ¶ 27.)

         After receiving a right to sue letter from the Equal Employment Opportunity Commission (“EEOC”), (Compl. Ex. 1), Sawyers filed the instant action alleging UPS violated Title VII of the Civil Rights Act by retaliating against him for ...


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