Moore v. United Parcel Service

Full title: KEVIN A. MOORE, Plaintiff, v. UNITED PARCEL SERVICE, Defendant

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Oct 15, 2004

Civil Action No. 3:03-CV-1399-L (N.D. Tex. Oct. 15, 2004)

Opinion

Civil Action No. 3:03-CV-1399-L.

October 15, 2004

ORDER

SAM LINDSAY, District Judge

Before the court is Defendant's Motion for Summary Judgment, filed July 6, 2004; Defendant's Objections To and Motion to Strike Plaintiff's Summary Judgment Evidence, filed August 16, 2004; Agreed Motion to Extend Pretrial Filings Deadline, filed October 8, 2004; and Motion to Withdraw Agreed Motion and Substitute Joint Motion to Extend Pretrial Filings Deadline, filed October 11, 2004. After careful consideration of the motions, responses, reply, competent summary judgment evidence, record and applicable law, the court grants Defendant's Motion for Summary Judgment; and denies as moot Defendant's Objections To and Motion to Strike Plaintiff's Summary Judgment Evidence, Agreed Motion to Extend Pretrial Filings Deadline, and Motion to Withdraw Agreed Motion and Substitute Joint Motion to Extend Pretrial Filings Deadline.

I. Factual and Procedural Background

Plaintiff Kevin A. Moore ("Moore" or "Plaintiff") filed this action on June 23, 2003, against United Parcel Service ("UPS" or "Defendant") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"), and 42 U.S.C. § 1981. He contends that UPS discriminated and retaliated against him because of his race and subjected him to a hostile work environment.¹ He also contends that UPS violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216 when it failed to pay him wages that were due.

1 Moore made a passing reference to gender discrimination in his complaint. Pl. Complaint at 4. Moore has abandoned this claim, as he failed to allege any facts supporting this claim in his complaint and did not address or present any evidence regarding this claim in his response or brief. It is clear that Moore has made no effort to prosecute this claim. Accordingly, Moore's gender discrimination claim is not before the court.

UPS contends that it did not discriminate, retaliate, or subject Moore to a hostile work environment. UPS also contends that it properly paid Moore his wages. UPS maintains that it terminated Moore for his poor attendance, a legitimate, nondiscriminatory reason.

UPS has filed a motion for summary judgment and contends that no genuine issue of material fact exists with respect to any of Moore's asserted claims, and that it is therefore entitled to judgment as a matter of law. Moore, on the other hand, contends that he has set forth facts which preclude the granting of summary judgment in favor of UPS, and requests the court to deny the summary judgment motion and allow the case to proceed to trial. The court now sets forth the facts on which it relies to resolve the summary judgment motion. In setting forth the facts, the court applies the summary judgment standard as set forth in the following section.

Moore, a black male, was employed by UPS from April 18, 2000, until October 19, 2001. UPS hired Moore as a part-time pre-loader at the UPS facility on Monroe Street in Dallas, Texas. Pre-loaders arrange and systematically load thousands of packages on UPS package cars before drivers leave the UPS package facility. Moore usually worked a four-hour shift per day during a five-day work week beginning at 3:30 a.m. Moore's first supervisor was Randall Moore. Sometime thereafter, Donna Swoyer ("Swoyer") became Moore's supervisor.

Moore joined Local 767 of the International Teamsters Union in June 2000. The terms and conditions of his employment were set forth in a collective bargaining agreement known as the National Master United Parcel Service Agreement and Southern Region Supplemental Agreement ("National Master").

The National Master has a mandatory grievance and arbitration provision and procedure. Any dispute concerning application or interpretation of the agreement may be submitted to the grievance procedure for final and binding resolution. Pursuant to the National Master, UPS could not discharge or suspend an employee without just cause. UPS was required to give one warning notice of a complaint against an employee to the employee in writing prior to a discharge or suspension.² A copy of the warning notice would be given to the local union.

2 No warning notice needed to be given to an employee before discharging that employee for dishonesty; drinking of or under the influence of an alcoholic beverage or narcotics, while on duty; recklessness resulting in an accident while on duty; an avoidable runway accident; failure to report an accident; carrying of unauthorized passengers while on the job; or engaging in unprovoked physical violence on UPS property or while on duty. Pl. App. at 6.

In March 2001, Moore bid for and was offered the opportunity to attend driver training to become a temporary cover driver ("TCD") for UPS. A TCD replaces regular route drivers on holidays and during vacation leave, and makes small runs. Driver training involves extensive classroom training, on-road training and 30 days of performing the job.

On May 15, 2001, Moore was disqualified from driving when he returned to the package center with more than 20 undelivered packages, known as service failures. During his training, Moore was told to never return to the service center with service failures. Moore filed a grievance regarding his disqualification on or about June 1. Moore asserted that a supervisor instructed him to return to the center with the packages when he could no longer get any more packages on or off the truck. Moore's grievance was settled prior to the grievance hearing, and it was his understanding that he would return to his TCD training position. Moore, however, was reassigned to his pre-loader position.

On June 1, 2001, UPS advised Moore in writing that he would receive a warning letter for his failure to report to work and to notify his supervisor of his absence on May 29. UPS advised Moore that any future disregard for his attendance record would result in further disciplinary action up to and including discharge.

On June 22, 2001, Don DeFazio ("DeFazio") became pre-load manager for the Monroe Street facility. He was responsible for overseeing all operations involving the sequential loading of parcels onto package cars. The pre-load operation that he supervised generally started around 3:30 a.m., Monday through Friday, and ran for approximately four hours.

On July 11, 2001, UPS issued Moore a letter advising him that he was late or absent four times the prior two weeks. UPS told Moore that any future disregard for his attendance record would result in further disciplinary action up to and including discharge. On July 25, UPS issued Moore a letter stating its intent to suspend him for five days for poor attendance. It again reiterated the possibility of future disciplinary action if Moore's attendance did not improve.

On September 7, UPS issued Moore an intent-to-terminate letter because he had been late or absent on six occasions between July 25 and August 31, 2001.³ Moore filed a grievance challenging the intent to suspend and the intent to terminate. Following a hearing between the union and UPS on September 26, Moore agreed to serve a five-day suspension as discipline for his attendance. UPS withdrew its intent to terminate.

3 Moore maintains that he was only late and not absent between July 25 and August 31, 2001. Pl. Response at 9.

Moore was late again on September 28. He was issued another intent-to-terminate letter. Despite this warning, Moore was late again on or around October 10.⁴ UPS terminated Moore on October 19, 2001, for poor attendance. UPS offered Moore an opportunity to sign a separation notice agreeing to voluntarily resign. Moore signed the form.⁵ UPS's records indicate that Moore was late or absent from work 85 times during the last 10 months of his employment.⁶

4 Moore contends that he called in on October 10 and told his supervisor that he would be late. Pl. App. at 27. He maintains, therefore, that this occasion should be listed as a "call in" instead of late. Id.

5 Moore testified in his deposition that, although he signed the form, he did not believe he was resigning, but was terminated. Def. App. 30. When asked what he thought he was signing, he replied "The information for employers to call and find out why I was terminated." Id.

6 Moore contests the accuracy of UPS's figures. He contends that he had a flexible start time, and would frequently arrive at the standard start time and not clock in until he was actually needed to work. Pl. App. at 42. He maintains, therefore, that although he was not late, UPS's records indicate he was late because his start time was not properly adjusted. Id. Moore admits that, apart from the times when the clock should have been adjusted, he was late 10-12 times during the first half of 2001 (Def. App. at 13); and approximately 10 times the second half of 2001. Def. App. at 32-33.

Moore filed a grievance under Article 51 of the National Master following his separation from employment with UPS, contending that his termination violated the National Master. Based on the separation notice, his grievance was dismissed at a hearing before a joint panel of UPS and union representatives on November 5, 2001.

Moore subsequently filed an unfair labor charge with the National Labor Relations Board against both UPS and his union. Moore alleged that he was fired because he engaged in activity supporting the union. Moore's charge and subsequent appeal were dismissed by Region 16 of the NLRB in Fort Worth, Texas and by the NLRB Office of Appeals in Washington, D.C.

On June 6, 2002, Moore filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"). On March 31, 2003, Moore received a right-to-sue letter from the EEOC. Moore timely filed this lawsuit as a result of his right-to-sue letter. UPS filed a motion for summary judgment. The court now considers this motion.

II. Summary Judgment Standard

Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5^th Cir. 1998). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Ragas, 136 F.3d at 458. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5^th Cir. 1996). Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5^th Cir.), cert. denied, 513 U.S. 871 (1994). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. Rule 56 does not impose a duty on the court to "sift through the record in search of evidence" to support the nonmovant's opposition to the motion for summary judgment. Id.; see also Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5^th Cir.), cert. denied, 506 U.S. 832 (1992). "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Disputed fact issues which are "irrelevant and unnecessary" will not be considered by a court in ruling on a summary judgment motion. Id. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. Analysis

A. Discrimination

Moore contends that he suffered discrimination because of his race when he was terminated; when he was subjected to a hostile work environment; and when he was disqualified from being a driver. Specifically, Moore contends as follows: 1) His immediate supervisor Randall Moore called him a "nigger" twice; 2) The box line⁷ manager Keith Henderson referred to him as "you people";⁸ 3) Mark McKeon failed to find him an available driver's position; 4) UPS intentionally manufactured a poor attendance record by sending him home for no reason and refusing to accept his legitimate excuses for lateness or absences; 5) UPS management pressured box line manager Donna Swoyer to send him home, even when he had seniority on the box line; and 6) UPS constructively discharged and/or misled him into signing paperwork that resulted in his termination. Pl. Complaint at 3.

7 A box line is a series of cages that transports parcels to the package cars for loading and delivery. Def. App. at 75.

8 Moore testified in deposition that Henderson referred to him as "your people" (Def. App. at 31), but maintains in his Response that Henderson referred to him as "you people." Pl. Response at 2.

Moore brings his claims under Title VII and § 1981.⁹ Title VII prohibits employers from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A plaintiff can prove a claim of intentional discrimination by either direct or circumstantial evidence. Russell v. McKinney Hosp. Venture, 235 F.3d 219, 222 (5^th Cir. 2000); Urbano v. Continental Airlines, Inc., 138 F.3d 204, 206 (5^th Cir.), cert. denied, 525 U.S. 1000 (1998). "Direct evidence" is "evidence which if believed, proves the fact [in question] without inference or presumption." Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 415 (5^th Cir. 2003) (citations omitted).

9 The same standard of proof applies to disparate treatment claims under Title VII and § 1981 when they are urged as parallel causes of action. Shackelford v. Deloitte Touche, LLP., 190 F.3d 398, 403 n. 2 (5^th Cir. 1999); Baltazar v. Holmes, 162 F.3d 368, 373 (5^th Cir. 1998); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5^th Cir. 1996). As the underlying facts of Moore's Title VII and § 1981 discrimination claims are the same, and the evidentiary burdens of these statutes are similar, his claims will be analyzed together.

1. Termination

a. Plaintiff's Direct Evidence

Moore asserts that he has direct evidence of discrimination. He contends that his immediate supervisor called him a "nigger" and that a box line manager referred to him as "you people." Pl. Resp. at 2. UPS disagrees that this is evidence of discrimination, contends that they were stray remarks by persons who did not have anything to do with employment decisions involving Moore, and asserts that the remarks were not made near the time when Moore was disqualified as a driver or terminated. Def. Reply at 13. The court agrees.

The Fifth Circuit has held that workplace comments may constitute sufficient evidence of discrimination if the remarks are (1) related to [the protected class of persons of which the Plaintiff is a member]; (2) proximate in time to the [complained-of adverse employment decision]; (3) made by an individual with authority over the employment decision at issue; and (4) related to the employment decision at issue. Rubinstein v. Administrators of Tulane Educational Fund, 218 F.3d 392, 401 (5^th Cir. 2000) (citing Brown v. CSC Logic, Inc., 82 F.3d 651, 655 (5^th Cir. 1996)). Contrary to Moore's contentions, however, the remarks do not meet this test. Although the comments are related to race, the court determines that Moore fails to establish the second, third and fourth elements of the test. With respect to the second element, the racial epithets were said between April 2000 and April 2001 (D. App. at 11), not proximate in time to Moore's termination in October.¹⁰ Regarding the third element, the comments were made by Randall Moore and Henderson, and not made by a supervisor with authority over Moore's termination. At the time he was terminated, Moore was supervised by Swoyer. Swoyer reported to DeFazio. With respect to the fourth element, the record is absent of any evidence that the comments were in any way related to the decision to terminate Moore. Further, it is undisputed that Moore never complained of or reported any of the incidents to his union or management. Def. App. at 11-12; 40. Stray remarks with no connection to an employment decision cannot create a fact issue regarding discriminatory intent and are insufficient to defeat summary judgment. Scales v. Slater, 181 F.3d 703, 712 (5^th Cir. 1999).

10 Moore testified in deposition that Randall Moore called him a "nigger" sometime between April 2000 and April 2001 (Def. App. at 11); and that the "your people" comment was made sometime after he was disqualified as a driver. Def. App. at 40. Moore was disqualified as a driver on May 15, 2001.

Since Moore has presented no direct evidence of discrimination, he must rely on the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), to create a presumption of intentional discrimination. See also Byers v. Dallas Morning News, Inc., 209 F.3d 419, 425 (5^th Cir. 2000). To create such a presumption, Moore must establish a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802. If he succeeds, UPS must then articulate a legitimate, nondiscriminatory reason for its action. Id. Finally, if the parties satisfy their initial burdens, the case reaches the pretext stage, and Moore must then adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. Id.

b. Prima Facie Case

To establish a prima facie case of race discrimination for a termination or discharge, Moore must prove that "(1) he is a member of a protected class; (2) he was qualified for the position; (3) he was subjected to an adverse employment action; and (4) was replaced by someone outside the protected class, or in the case of disparate treatment, shows `that others similarly situated were treated more favorably.'" Okeye v. The Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-513 (5^th Cir. 2001) (quoting Shackelford v. Deloitte Touche, LLP, 190 F.3d 398, 404 (5^th Cir. 1999)). UPS contends that Moore has not established a prima facie case because he was not treated less favorably than similarly situated employees. Specifically, UPS asserts that "[T]here is no evidence that any employee outside Moore's protected class had similar attendance and performance problems who has not been terminated." Def. Brief at 8. UPS's records indicate that Moore was late or absent from work more than 85 times during the last 10 months of his employment. Def. App. at 85.

Moore contends that two white employees, Donald Petty ("Petty") and Chris Ivanov ("Ivanov"), were not disciplined for poor attendance. Moore maintains that Petty was late nine times in June 9, 2001, and did not receive a disciplinary letter.¹¹ Pl. Resp. at 5. He states that Ivanov, although late 14 times from June through October, 2001, never received a disciplinary letter. Id. In comparison, Moore contends he received four disciplinary letters for the "alleged 18 lates in the same time period." Id. As evidence of the disparate treatment, Moore submitted documents titled "Package Center Weekly Operation Report Statistics". Pl. App. at 53 — 62. Moore also submitted a chart (Pl. App. at 12) that purportedly summarizes the disparity in disciplinary treatment of Moore, Petty and Ivanov from June through August, 2001. Id. Moore included a copy of a letter from his attorney to UPS's attorneys requesting attendance and disciplinary records for box line and loading personnel, including Moore, Petty and Ivanov. Pl. App. at 11.

11 Petty was terminated in June 2003 for poor attendance.

The court determines that Moore's documents are not competent summary judgment evidence. They are not authenticated or identified as UPS business records pursuant to Fed.R.Evid. 803(6). Moore did not provide the court with sufficient explanatory detail to understand the statistical information, or to determine its significance or relevance. The information consisted of names and numbers without any correlation, and the court could not make "heads or tails" of the report. The chart is confusing, and appears to be Moore's attorney's interpretation and testimony of the statistical information, and appears to be based on UPS's failure to produce documentation of discipline for Petty and Ivanov.¹² Moore maintains that the lack of documentation shows that UPS did not take disciplinary action against white employees or keep accurate or complete records of disciplinary actions. UPS maintains that the lack of documentation was because warning letters are expunged after nine months, and the reason Moore's records are still available is because of the grievance and administrative charges he filed after his employment Def. App. at 79; Def. Reply at 4. Moore does not dispute UPS's statement regarding expungement. The court concludes, therefore, that the lack of documentation, without other evidence, does not support Moore's contention that these employees were not disciplined. Even if Moore's evidence is considered to be competent summary judgment evidence showing that other employees were also late or absent nine to 14 times, it does not compare to UPS's evidence that in 2001, Moore was late 62 times and absent without calling in 13 times. Def. App. at 85. The court concludes that Moore's evidence and argument regarding UPS's lack of documents is not competent summary judgment evidence, and that he has failed to show that others similarly situated were treated more favorably. Unsubstantiated assertions are simply not competent summary judgment evidence.

12 Moore did not file a motion to compel production of the requested documents. In any event, the court cannot allow the attorney's interpretation or argument substitute for competent summary judgment.

Moore also maintains that a genuine issue of material fact exists because of the conflict in testimony of DeFazio and Swoyer. Pl. Response at 6. Specifically, Moore points to DeFazio's testimony that "late was late," and that he made no distinction for persons with a "legitimate excuse" for being late, Id., ¹³ versus Swoyer's testimony that being late was "not a big deal to her." Id. at 7. Moore contends that such conflict evidences genuine issues of material fact as to the real reason he was terminated.¹⁴ Contrary to Moore's interpretation, the court concludes that how these supervisors viewed tardiness is not a genuine issue of material fact that would defeat summary judgment, since both agreed that Moore was excessively late. See Def. App. at 76, 98. Further, neither DeFazio nor Swoyer's testimony indicates that their views of tardiness impacted Moore less favorably than persons similarly situated who were outside the protected class.

13 The court notes that DeFazio's actual testimony was that a "late" or absence due to a doctor's appointment "was still an attendance occurrence, unless it was agreed upon in advance." Pl. App. at 38.

14 Moore argues that "If poor attendance was the true reason for Plaintiff's termination, any reasonable employer would have terminated Plaintiff as soon as the alleged attendance problem presented itself." Pl. Response at 7. This argument is without merit since it points out that UPS treated Moore with a great deal of leniency in spite of his attendance record. See Def. App. at 61-65. Further, DeFazio stated, "Though not required under the Agreement, employees may be issued multiple warnings to correct the behavior before further discipline is taken. After an employee has been warned at least once, the National Master permits UPS to discharge the employee." Def. App. at 75.

As to what he believes is additional evidence of disparate treatment, Moore points out that UPS did not maintain accurate attendance records. To support this assertion, Moore points to Swoyer's deposition testimony that pre-loaders under her supervision were given flexible start times, and she told them when to start. Pl. App. at 40. She admitted that, although an employee may arrive at the standard start time, the employee would not clock in until he was actually needed. Id. She would then change the start time in the system to reflect the time the employee "clocked in." Id. at 41. Swoyer admitted that "I could have not put the right start time in sometimes. I may not have changed them." Id. She further admitted that some of Moore's recorded late arrivals could possibly be her failure to adjust his start time on the clock. Id. at 40. Although Swoyer's statements may be evidence that UPS did not sometimes keep accurate records, Moore has not produced evidence that he was penalized by such poor record-keeping, while others outside the protected class were not. The testimony of Swoyer regarding record-keeping is simply too slender of a reed to raise a genuine issue of material fact with respect to disparate treatment. Further, Moore admits that, excluding the times when he was supervised by Swoyer, he was late approximately 10 times. Def. App. at 33. Because Moore cannot establish, or raise a genuine issue of material fact, that others similarly situated were treated more favorably, he cannot establish a prima facie case.¹⁵ As there is no genuine issue of material fact, UPS is entitled to summary judgment on Moore's claim that he was terminated because of his race.

15 Even if Moore could establish a prima facie case, which he cannot, he has not demonstrated or created a genuine issue of material fact as to pretext. It is undisputed that he was frequently absent or late to work. UPS states that Moore was terminated for poor attendance. UPS, thus, satisfies its burden to articulate a legitimate, nondiscriminatory reason for its actions. Although Moore speculates and believes that he was the victim of race discrimination, he does not adduce sufficient evidence to permit a reasonable trier of fact to find pretext or intentional discrimination. As the court has previously explained, Moore has failed to produce competent summary judgment evidence to support this contention.

2. Hostile Work Environment

To establish a claim of Title VII violation based on race discrimination creating a hostile work environment, a plaintiff must prove:

(1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment complained of was based on race; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action.

Ramsey v. Henderson, 286 F.3d 264, 268 (5^th Cir. 2002) (citations omitted).¹⁶ For harassment on the basis of race to affect a term, condition, or privilege of employment, "[I]t must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (citations and internal quotation marks omitted). In determining whether a workplace constitutes a hostile work environment, the court considers the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. Id. (citations omitted).

16 The Supreme Court revised this five-part test with respect to cases where the harassment is allegedly committed by a supervisor with immediate (or successive higher) authority over the harassed employee. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). In such cases, the employee need only satisfy the first four elements of the test. Id.; see also Celestine v. Petroleos De Venezuella SA, 266 F.3d 343, 353 (5^th Cir. 2001).

Moore contends he suffered a hostile work environment at the hands of his supervisors and that UPS failed to take any effective steps to protect him. Pl. Complaint at 4. Specifically, Moore states that his supervisors called him a "nigger," a "mother f * * * er," and referred to him as "you people." Pl. Resp. at 2; Def. App. at 11, 38-40. Moore also contends that as evidence of a hostile work environment he was "subjected to multiple disciplinary actions including suspension of work, which resulted in pay loss, to which his white counter parts (sic) were not subjected for similar behavior." Pl. Response at 13. UPS maintains that the conduct complained of by Moore is insufficient to constitute severe or pervasive conduct to support his claim; did not impact the terms or conditions of Moore's employment; and that Moore failed to take advantage of any preventive or corrective opportunities provided by UPS to avoid the harm. Def. Brief at 16-17.

Moore testified in deposition that Randall Moore called him "nigger" on two occasions. Def. App. at 11. Moore admitted that he never complained to UPS's human resource department or another supervisor regarding the incident. Id. at 12. He stated, "I thought I resolved the situation when I talked to him." Id. Regarding these incidents, Moore fails to establish that the harassment complained of affected a term, condition, or privilege of employment. Further, "[M]ere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee" would not sufficiently alter terms and conditions of employment to violate Title VII. Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (quoting Rogers v. EEOC, 454 F.2d 234, 238 (5^th Cir. 1971)).

Moore complains that Henderson referred to him as "you people." Moore testified in his deposition that the incident occurred when he and Henderson got into an argument over the way a truck was loaded. Moore concluded that when Henderson said "you people" he meant "your people" and this was in "context of `you black people, your people'". Def. App. at 39. Moore further testified that after that incident he did not deal with Henderson again and that he did not have a problem with not speaking to Henderson, in fact he "loved it." Id. at 40. Again Moore fails to establish that the incident affected a term, condition, or privilege of employment.

Moore complains that Swoyer called him a "motherf * * * er." He testified in his deposition that the incident occurred when he told her that he had resolved his conflict with Henderson. Def. App. at 40. Swoyer admitted in her deposition that she used the profanity. Id. at 99. She stated that it was in reaction to Moore's statement, "Don't you worry about it, little missy. The men have it all worked out." Id. This incident involves an offensive utterance and did not unreasonably interfere with an Moore's work performance." See Ramsey, 286 F.3d at 268. Further, Moore offers no evidence that he complained of Swoyer's behavior to UPS management.

Regarding Moore's claim that the discipline he received is evidence of a hostile work environment, Moore fails to establish that the discipline was harassment based on race. The court has articulated its analysis of Moore's race discrimination claim in Section 1(b), supra.

Viewing the facts in a light most favorable to Moore, the court concludes that he failed to establish a prima facie case of a hostile work environment. Moore failed to produce evidence sufficient to show that the workplace was "permeated with discriminatory intimidation, ridicule, and insult . . . sufficiently severe or pervasive to alter the conditions of [his] employment and to create and abusing working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65. In fact, when asked on deposition if the complained of harassment had a negative impact on his employment, he replied, "I was able to do my job regardless." Def. App. at 47. Further, the comments were isolated incidents that were not discriminatory changes in the terms and conditions of Moore's employment. See Butler v. Ysleta Indep. Sch. Dist., 161 F.3d 263, 269 (5^th Cir. 1998). Thus, Moore has failed to establish a genuine issue of material fact as to his hostile work environment claim. Accordingly, UPS is entitled to summary judgment on this claim.

3. Disqualification as a Driver

Moore contends that UPS denied him the opportunity to be a driver because of his race. He maintains that he was wrongfully disqualified. After being reinstated, Moore avers that UPS never provided him an opportunity to continue his training. UPS maintains that this contention is merely Moore's subjective belief unsupported by any evidence. It asserts that Moore was disqualified from driving because he failed to deliver 20 packages. The court concludes that Moore cannot maintain his claim of disqualification on account of his race because he admitted in deposition that he was disqualified as a result of the service failures. Def. App. at 22. Moore, thus acknowledges that the disqualification was not racially motivated. The court agrees, and UPS is entitled to summary judgment on Moore's claim that he was disqualified as a driver because of his race. The court now addresses UPS's failure to allow Moore to continue as a driver trainee after he was reinstated.

Moore contends that UPS had an open position for driver training but would not continue his training. Pl. Response at 12. He further contends that while he waited for a position his "supervisors and managers began a concerted effort to get rid of him before he could once again start driving." Id. Moore offers no competent summary judgment evidence that his non-reinstatement was racially motivated. He merely makes conclusory allegations that minorities did not stand up for themselves, "And I was the only person that did stand up and was outspoken about certain things that were going on." Def. App. at 22. This is merely Moore's subjective belief that he was not reinstated because of his race, and is insufficient to create an inference of discriminatory intent. See Lawrence v. Univ. of Tex. Med. Branch at Galveston, 163 F.3d 309, 313 (5^th Cir. 1999). Accordingly, UPS is entitled to summary judgment on Moore's claim that he was not reinstated as a driver because of his race.

Alternatively, UPS also contends that Moore's race claim based on wrongful disqualification fails because he did not timely file a charge of discrimination challenging the disqualification, and, therefore, failed to exhaust his administrative remedies. The court agrees. A condition precedent to bringing suit on an employment discrimination claim under Title VII is the timely filing and exhaustion of an EEOC charge. See 42 U.S.C. § 2000e-5(e)(1); Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5^th Cir. 2002). Moore was disqualified from being a driver on May 15, 2001. The record does not reflect that Moore filed any type of claim with the EEOC regarding his disqualification as a driver. Instead, he filed a grievance with the union on June 1, 2001, alleging that he was wrongfully disqualified after following his supervisor's instructions to return to the service center with the packages. The only EEOC charge that Moore filed was that on June 6, 2002, in which he contends that UPS's supervisors harassed him about his attendance, would order him to go home after he arrived at work, would not recognize his doctor's excuses, and yelled at him. He contends that this occurred from June 8, 2001, until he was terminated on October 19, 2001. Def. App. at 68.

A charge with the EEOC must be filed within 180 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1); however, the filing period is extended to 300 days if a complainant initiates proceedings with a state or local employment discrimination agency. Id. In any event, Moore never filed an EEOC charge regarding his disqualification, and, therefore, failed to exhaust his administrative remedies. Since Moore failed to file an EEOC charge regarding this claim, he has failed to satisfy a condition precedent to filing a lawsuit. His claim is therefore barred, and UPS is entitled to judgment as a matter of law on Moore's claim that he was disqualified from driving because of his race.

B. Retaliation

Moore contends that UPS retaliated against him for filing grievances.¹⁷ Pl. Response at 10-11. To establish a prima facie case of retaliation, a plaintiff must demonstrate that: (1) he engaged in a protected activity; (2) he experienced an adverse employment action following the protected activity; and (3) a causal link existed between the protected activity and the adverse employment action. Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5^th Cir. 2001). The burden of production then shifts to the defendant to articulate a legitimate, nonretaliatory reason for its action. Id. Once the defendant does so, the inference of retaliation created by the prima facie case disappears, and the ultimate question becomes whether the protected conduct was the "but for" cause of the adverse employment action. Id. Thus, the issue is whether Moore has created a genuine issue of material fact as to whether his filing a grievance was a protected activity; and if so, whether there exist a causal link between his filing a grievance and his termination. See Id. at 692.

17 Moore specifically contends that UPS retaliated against him by:

(1) Engaging in a pattern of retaliatory actions aimed at Plaintiff after he reported acts of hostility and discrimination; (2) Subjecting Plaintiff to being repeatedly sent home after he reported to work; (3) Implementing special rules for Plaintiff which were not applied to other employees in requiring him to work off shift hours and to work off the clock; (4) Essentially demoting Plaintiff and reducing his pay and ability to earn drivers and/or regular and overtime wages; (5) Forcing Plaintiff to work in multiple jobs (sic) positions rather than place him in a driver position as previously agreed; (6) Subjecting Plaintiff to higher standards of proof for absence/tardy reporting; (7) Failing to accept Plaintiff's doctor's excuses when he provided them for tardiness or absence; and (8) Intentionally engaging in an effort to falsely accuse Plaintiff of tardiness in order to justify his termination.

Plaintiff's Complaint at 6.

To qualify as a protected activity under Title VII, a complaint must relate clearly to discrimination covered by Title VII. Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5^th Cir. 2000). An employee has engaged in protected activity if he has (1) "opposed any practice made an unlawful employment practice by [Title VII]," or (2) "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a). The court now considers whether Moore has engaged in a protected activity.

1. Moore's grievance for disqualification as a driver

Moore testified in his deposition that he was retaliated against for filing a grievance on June 1, 2001, for his disqualification as a driver. Def. App. at 44. Moore's grievance alleged that UPS violated the agreement it had with the union. Id. at 58-60. He specifically complained that he was simply following instructions when he returned to the service center without delivering a number of packages, and, therefore, should not have been disqualified as a driver. Id.

Racial discrimination is an unlawful employment practice under Title VII; however, Moore has neither alleged nor established that he was engaged in activity opposed to or protesting such discrimination or other unlawful practices under Title VII when he was disqualified as a driver. Racial discrimination simply was not a part of the equation whether Moore had followed or complied with his supervisor's instruction. Further, Moore made no allegations in his grievance that his disqualification was racially motivated. The court concludes that Moore was not engaged in protected activity when he filed his grievance, and, therefore, he cannot establish a prima facie case for retaliation. Accordingly, UPS is entitled to summary judgment on Moore's retaliation claim.

C. FLSA Wage Payment Violations

Moore contends that UPS willfully failed to pay him wages that were due. Plaintiff's Complaint at 7. Specifically, Moore contends that: (1) he was not relieved of all work duties and was routinely required to leave the work premises in order for UPS to meet its quota and staffing expectations; (2) UPS required him to perform work "off the clock" and did not pay him for the work he performed; (3) UPS failed to pay him for his work during lunch periods and failed to provide breaks; and (4) UPS failed to pay him for overtime at the rate of 1-1/2 times his regular rate. Id. at 7-8. UPS maintains that Moore has abandoned all of his claims except for a claim that "a supervisor gave him a personal check rather than a company check to make up for seven hours that was (sic) incorrectly left off of Mr. Moore's paycheck." Def. Brief at 17. UPS contends that this is not prohibited by FLSA. UPS also contends that Moore's claims fail as a matter of law because they are barred by FLSA's two year statute of limitations.

1. Abandonment of claims

The court first addresses whether Moore has abandoned some of his claims. During his deposition the following questions were posed to Moore, and he gave the following responses:

Q. Are you claiming in this lawsuit that you were required to work through lunch?

A. No.

Q. Is there anything else that you're claiming — you — did you even get lunch as a part-time employee?

A. Yes. You had a 15-minute break, but if you come in earlier, you have — if you — like I came in and worked eight hours, I would have an hour lunch break.

Q. That would be if you're working a double shift?

A. Correct.

Q. Okay. Were you paid for your lunchtime?

A. I think you should be paid. I'm not sure, but I think you are paid.

Q. Were you paid as far as you remember?

A. Yeah. I'm not actually sure if they take out the 15 minutes or not.

. . . .

Q. Are you claiming in this lawsuit that you were not paid for working off the clock?

A. No. I'm not saying — I'm not claiming that.

Def. App. at 49-50. The court concludes that Moore has clearly abandoned or is no longer asserting his claims that UPS required him to perform work "off the clock" and did not pay him for the work he performed, that UPS failed to pay him for his work during lunch periods, and that UPS failed to provide breaks.¹⁸ Therefore, the only claims of FLSA violations before the court are Moore's contentions that he was not relieved of all work duties and was routinely required to leave the work premises in order for UPS to meet its quota and staffing expectations; and that UPS failed to pay him for overtime at the rate of 1-1/2 times his regular rate.

18 Moore makes the allegation that UPS failed to provide breaks, but offers no competent summary judgment evidence to support this contention. Thus, the court concludes that Moore has also abandoned this claim.

2. Overtime

Moore alleges in his Complaint that UPS failed to pay him 1-1/2 times his regular hourly rate for those hours worked in excess of 40 hours per week. Pl. Complaint at 8. Moore clarified in his deposition, however, that he was not claiming that he worked more than a 40-hour week; but that on one or two occasions he worked 2-3 hours over his normal 4-hour shift. Def. App. at 48. The court, therefore, concludes that Moore does not present a claim that he is entitled to overtime pursuant to 29 U.S.C. § 207(a)(1).¹⁹ Accordingly, UPS is entitled to summary judgment on this claim.

19 29 U.S.C. § 207(a)(1) provides: "[N]o employer shall employ any of his employees . . . for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. . . ."

3. Statute of Limitations

The court now considers UPS's contention that Moore's remaining FLSA claims are barred by a two-year statute of limitations. The applicable section provides that a cause of action accruing after May 14, 1947:

may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. . . .

29 U.S.C. § 255 (a). Moore contends that UPS's conduct was willful and therefore the three-year statute of limitations applies to his cause of action. Under the FLSA a violation is willful if the "employer either `knew or showed reckless disregard for . . . whether its conduct was prohibited by the statute.'" Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5^th Cir. 2003) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). In Singer, a jury found the City's violation of the FLSA willful and relied on the following facts:

Mike Nichols, a lieutenant of fire suppression, testified that in 1995, he met with the assistant fire chief, who admitted he was aware that the fire fighters were being paid incorrectly. Larry Scott, the former director of human resources for the City, testified that the City cancelled a training seminar, which would have informed employees about overtime issues under the FLSA. Scott also stated that, several years ago, he attempted to convince the City to study its pay practices to determine if it was in compliance with the FLSA. He approached Janice Andrews, the city finance director, about this matter, and she in turn talked to the city attorney. Evidently, the city attorney informed Andrews that "we don't even want to open that can of worms."

Id. at 821-22. Based upon this testimony, the Fifth Circuit determined that the evidence amply supported the jury's finding that the City either knew or showed reckless disregard that its conduct was prohibited by the statute. Id.

The court now turns to Moore's two remaining FLSA claims, which arise out of the same incident. Specifically, Moore contends in his declaration, "[M]y supervisor, Randall Moore, routinely modified my time records in order to comply with UPS quota and staffing expectations. Randall Moore would then attempt to compensate me with direct cash payments." Pl. App. at 52. Moore offered no other competent summary judgment evidence that these incidents occurred, that UPS's management was aware of the incidents, or that after becoming aware of the incidents, UPS recklessly disregarded Randall Moore's conduct. During his deposition Moore stated that he believed this occurred because, "Well, due to the fact that Randall had to cover his time as far as the employees on the clock, so he probably didn't show me up on time or whatever to cover." Def. App. at 49. Moore admitted that he had no facts to support his speculation as to Randall Moore's behavior. Id.

As evidence that UPS's conduct was willful, Moore contends that "The payments under the table were implicit attempts at circumventing the regular pay rate for hourly employees." Pl. Response at 14. Moore offers no other evidence of willful conduct other than this conclusory statement, which is not competent summary judgment evidence. The "evidence" that Moore produces to establish willfulness does not even marginally approximate that which was presented in Singer. Accordingly, he fails to demonstrate that UPS either knew or showed reckless disregard that its conduct was prohibited by the FLSA statute. Therefore, the two-year statute of limitations applies to this claim.

In his deposition, Moore testified that the payment under the table incidents occurred in "early 2001." Def. App. at 49. Moore did not provide an exact date the incidents occurred, however, he states that they occurred when Randall Moore was his supervisor. Based on the summary judgment evidence presented, Randall Moore was Moore's supervisor prior to his training as a driver. Moore began training sometime after March 1, 2001. After Moore was disqualified on May 15, 2001, he returned to his pre-loader position in June, and was supervised by Donna Swoyer. Therefore, Moore's cause of action could have accrued as early as March 2001, but no later than May 15, 2001. Moore filed this cause of action on June 23, 2003, more than two years after the incident occurred giving rise to the FLSA claim. Thus, Moore's claim that UPS violated FLSA is barred by the applicable two-year statute of limitations, and the court need not address the merits of this claim. UPS is entitled to summary judgment on Moore's wage payment violation claim.

D. Miscellaneous Motions

UPS filed objections to and a motion to strike Moore's summary judgment evidence. The court has previously set forth the applicable standard for competent summary judgment evidence. If the summary judgment evidence did not meet the standard, the court did not consider it, and such evidence played no part in the court's ruling. The court therefore denies as moot UPS's objections to and motion to strike Plaintiff's summary judgment evidence. Also pending before the court is an agreed motion to extend pretrial filings deadline, and a motion to withdraw the agreed motion and substitute a joint motion to extend pretrial filings deadline. In light of the court granting summary judgment the motions will be denied. IV. Conclusion

For the above stated reasons, no genuine issues of material fact exist with respect to Moore's claims of discrimination, retaliation, hostile work environment and FLSA violation. Accordingly, the court grants Defendant's Motion for Summary Judgment; and denies as moot Defendant's Objections To and Motion to Strike Plaintiff's Summary Judgment Evidence, Agreed Motion to Extend Pretrial Filings Deadline, and Motion to Withdraw Agreed Motion and Substitute Joint Motion to Extend Pretrial Filings Deadline. This action is hereby dismissed with prejudice. Judgment will issue by separate document as required by Fed.R.Civ.P. 58.

It is so ordered.