United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Carlton Tilley, Jr. Senior United States District Judge
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.
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.
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
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.)
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” because of his bathroom stops.
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.)
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.)
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.)
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.)
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.
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. ¶
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