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Rose v. United Parcel Service, Inc.

United States District Court, E.D. Kentucky, Central Division

March 26, 2019

JAMES ROSE, Plaintiff,



         Defendant UPS moves for summary judgment on Plaintiff Rose's sole claim in this employment discrimination action under the Kentucky Civil Rights Act.[1] DE #24. There are no genuinely disputed material facts underlying the determinant legal issues in this controversy, and Plaintiff has failed to provide evidence sufficient to establish all elements of his prima facie case. Likewise, there is no triable pretext theory. Thus, the Court grants Defendant's Motion for Summary Judgment.

         A. Factual and Procedural Background

         Plaintiff James Rose began as a seasonal feeder driver for United Parcel Service, Inc. (“UPS”) in October 2010, based in Lexington, Kentucky, and eventually he progressed to a fulltime position driving with the company. DE #24-2 (Rose Depo.) at 4.[2] As a full-time feeder driver, Rose's direct supervisor was Mike Mattingly, and UPS paid Rose hourly wages plus roughly $0.87 per mile. DE #37 (Mattingly Depo.) at 16; DE #24-2 at 3. Rose's role as a feeder driver required him to transport shipments via tractor-trailer between cities by delivering containers to specific destinations, called turnaround points (often a truck stop or rest area, see DE #24-23 (Mattingly Aff.) at ¶ 6) and exchanging them with other drivers' freights for a return haul (these drivers were referred to as “meet men”). DE #24-2 at 42. This exchange is not always simple for UPS drivers, with many trucks and individuals crowding the stops, making it sometimes difficult to find the correct meet man and accompanying trailer. Id. at 42-43. At times, this would not be a face-to-face meeting, and drivers would simply pick up the trailers their meet man had left, once located. DE #24-23 at ¶ 6. Drivers must complete this round-trip process within fourteen hours in order to comply with Department of Transportation (DOT) regulations. DE #24-2 at 40. After the fourteenth on-duty hour, drivers may no longer complete driving activities, although they may work in other capacities for the company. Id. at 41; DE #24-23 at ¶ 11. In each driver's truck there are digital apps or devices-a GPS unit, an IVIS system, and a Telematix application[3]-which track and communicate the driver's timing and whereabouts back to UPS; the drivers need only indicate on their in-truck computers that they are stopping, taking a break, etc., and the system records the activity, time, and location. DE #37 (Mattingly Depo.) at 51-52; DE #24-2 (Rose Depo.) at 25-26. These mechanisms are used to calculate each driver's hourly and per-mile pay, which appears on a computer-generated timecard. See DE #24-8 (Rose's June 27, 2016 timecard).

         1. The June 27, 2016 Beckley Run

         While at UPS, Rose frequently completed interstate trips, including some to Greensboro, North Carolina and at least two Beckley, West Virginia, despite those not being his regular routes; at times, such routes could prove treacherous, due to weather and other driving conditions, and route timing was not always completely predictable. See DE #37 (Mattingly Depo.) at 64; DE #34-1 (Rose Aff.) at ¶ 6. Rose made one such drive to Beckley on June 27, 2016, preceding Fourth of July weekend and following a week of heavy flooding in the area. DE #34-1 at ¶ 6. Rose began work early in the morning on June 27, clocking in at UPS at 12:44 a.m.[4] DE #24-2 at 83. In the tractor line that morning as Rose prepared his truck, he engaged in conversation with a fellow driver (and union steward), Gary Kendrick, expressing that he was experiencing sinus issues and had “been having problems using the restroom and stuff.” Id. at 72-73. Kendrick responded that Rose “better get it checked out . . . It could be something with your prostate.” Rose stated that he planned to do so a couple of days later, but the conversation ended there. Id. at 73. At roughly 1:51 a.m., after setting up and inspecting his vehicle and trailer, Rose left UPS and began the drive to Beckley. Id. at 84. After a quick stop at a gas station to purchase coffee and nasal spray, Rose continued to Beckley, arriving at the turnaround point at 7:50 a.m. Id. at 84-85. At the Beckley turnaround, Rose briefly and casually spoke with a driver supervisor named Robert Williams about his urination experience that day. Id. at 74 (“I said, Robert, I don't know what's going on. I said, I've been pissing all day.”). After this comment, the conversation shifted to purchasing assault rifles, before ending when Rose left to use the restroom. Id. at 75. At 10:04 a.m., Rose left the Beckley turnaround to return to Lexington. Id. at 86.

         Excluding allotted meal and break time, his timecard indicates that Rose spent seventy-seven minutes of paid, but undetailed, time at the Beckley turnaround point. DE #41-1 (Rose Depo.) at 42.[5] At the turnaround, it should have taken Rose a certain amount of time to drop his trailer and then identify and pick up his return load. This period also required some inspection duties. Mattingly estimated the period as typically taking 30-45 minutes. See DE #24-23 (Mattingly Aff.) at ¶ 9. Rose had recently, just days before, spent but ten minutes working at the Beckley turnaround. See Id. at 3 n.1. He argues here that some of the 77 minutes was properly work, but some was spent attending to bathroom needs.[6] Notably, Rose also spent 57 minutes of break and lunch time while at Beckley. See DE #24-2 (Rose Depo.) at 106; DE #24-23 at ¶ 15.

         Rose argues much of this unallotted time, as during all other longer-than-usual stops on June 27, was spent in the restroom as a result of his difficulty urinating. Id. at 33 (“I told you it took me longer to use the restroom all that day.”). As Rose neared Lexington on his return trip that afternoon, at 2:32 p.m., he received a call from a UPS payroll supervisor at the Lexington hub, Chris Allen, asking Rose where he was and expressing concern that Rose was about to violate the DOT fourteen-hour rule. DE #24-2 (Rose Depo.) at 149-150; DE #37 (Mattingly Depo.) at 37- 38. Without mentioning any of his claimed physical ailments throughout the day, Rose assured Allen that he would arrive within the fourteen-hour window, and the conversation ended. DE #24-2 at 150. When Rose arrived back at the hub, at 2:45 p.m., he pushed the applicable button in his truck to indicate arrival, but the computer delivered an auto-fail message, and Rose called from the guard shack at the hub's entrance, instead, to notify management that he had returned to the hub. Id. at 76, 116-17. Rose spoke with a dispatch supervisor, who simply told him to break his set-up (i.e., separate and drop off his trailers) to complete his duties for the trip. Id. at 76, 150.

         2. Rose's Termination

         After Rose completed his duties-and after using a portable toilet onsite-he approached the UPS building; Mattingly was waiting for him at the door. Id. at 76. At this time, Rose asserts that he was “dehydrated and things were kind of foggy” as a result of frequent urination throughout the day. Id. Mattingly and Rose then had the following exchange: “He asked me ‘how was everything today[?]' I said it was all right. He said, ‘How was traffic? Did you run into any problems?' I said, ‘No, traffic was all right.' There was something else he said. I can't really recall what he said. . . I mean, I opened the door and he just hit me like a ton of bricks. So I'm dazed.” Id. at 76-77. After this conversation, Mattingly told Rose to clock out and meet Mattingly in his office; Rose did so and found Mattingly and Gil Daniel, a union representative, waiting to speak with him. Id. at 77; see also DE #24-23 (Mattingly Aff.) at ¶ 19.

         Mattingly proceeded to ask Rose specific questions about his timecard and whereabouts during the day, which Rose had trouble answering in detail.[7] DE #24-2 (Rose Depo.) at 77. Mattingly revealed that he believed Rose had been “stealing time, ” i.e., taking improper breaks while on the clock during his shift that day; in response, however, Rose could not recall precisely how long his restroom stops lasted. Id. (“I said, ‘What's this about?' ‘Well, this is about you stealing time.' I said, ‘Mike, I didn't steal nothing.' He's like, ‘This is about you being dishonest.' . . . Then he prints off the timecard. He's like, ‘Can you tell me about this?' Then I went through my day, what I did, step by step, everywhere I stopped at. But I did not know the times on how long it took me to use the restroom.”); see also DE #37 (Mattingly Depo.) at 57 (“When he was asked how many times did he stop-‘I don't know.' ‘Where did you stop?' ‘I'm not sure.' He was very vague and evasive in his answering. ‘What did you do?' ‘I used the restroom.' ‘What else?' ‘I don't know.' ‘Why did it take you so long at the turnaround location?' ‘I don't know.'”); see Id. at 109 (“I went through the time card with Mr. Rose line by line . . . Mr. Rose had an opportunity [to explain].”).

         Finally, Rose for the first time told Mattingly: “[I]t took me that long because I believe that I have either a kidney infection or a urinary tract infection, or it could be my prostate. . . And I had-I needed to see a doctor.” Id. at 77-78. Even after seeking clarification from Daniel, Rose stated he felt unable to properly address and answer Mattingly's many questions about his day. Mattingly pressed, “Is it right to steal? Id. And Rose responded, “No. No, it's not right to steal.” Id. After Mattingly's conversation with Rose concluded, and with Rose still in his office, Mattingly called UPS labor relations manager Matt Faulstick. DE #37 (Mattingly Depo.) at 128. During that phone call, Mattingly discussed with Faulstick his impression that Rose had submitted an inaccurate timecard for that day, and Faulstick ultimately decided that discharge was appropriate. Id. (“I made a phone call to Mr. Faulstick and the determination was made to terminate.”); DE #40 (Faulstick Depo.) at 24 (“The initial conversation [with Mattingly] was that there were multiple gaps in the day in unaccounted-for time, and Mr. Rose did not have an explanation to account for the gaps in the day and account for time.”); id. at 22 (“I reviewed the information that was provided to me from the company [via Mattingly] and I made the decision.”). Rose then “was discharged and walked to the gate, ” meaning, “[h]is employment was terminated[, ]” for all practical purposes, at that point. DE #37 (Mattingly Depo.) at 126-27. Rose's official termination letter followed the next day, indicating that Rose's discharge was based on “dishonesty” and “other cardinal offenses.”[8] DE #24-12 (Termination Letter). Although there was some initial confusion as to what the “other cardinal offenses” were, [9] Mattingly clarified in his deposition that it referred to his “fail[ure] to follow instructions on recording his time accurately[]” and keeping management informed about his whereabouts. DE #37 (Mattingly Depo.) at 154-55.

         The Court has carefully explored the UPS time rules. The conclusion, on this record, is that UPS does allow short bathroom breaks on the clock to a reasonable extent. Thus, Rose claims his training was to clock out only for a break exceeding 9-10 minutes. See DE #34-1 (Rose Aff.) at ¶ 3. The UPS-Union negotiations seemed to land at that rule as well. See DE #37 (Mattingly Depo.) at 104-05 (Mattingly noting that the UPS-Union joint resolution provided that “employees . . . do not have to code out bathroom breaks, but [may] not abuse this issue”). Further, there is no rule against clocking out to take a longer bathroom break as needed. The key here is that Rose had over two hours of non-work time recorded as work time on his timesheet for the day. Id. at 108 (“Mr. Rose had over two hours of unaccounted for time. That is a gross abuse and is a dishonest action on his part.”). Without question, UPS, like any employer, is entitled to require and expect honest timekeeping by its employees.

         3. Medical Documentation and Grievance Process

         Although not directly involved in UPS's initial decision to terminate Rose (which is the relevant point in time for the present KCRA analysis), additional facts unearthed in the grievance process, and some subsequently revealed by Rose in his deposition, give context to the dispute. Rose testified that the day after his termination-June 28, 2016[10]-he went to an APRN, who provided a note stating that Rose could return to work without restriction on July 6, 2016; Rose claims the note did not accurately reflect the purpose of his visit. DE #24-2 (Rose Depo.) at 129 (“[T]hat document seems to be useless on what I need[ed].”); DE #24-14 at 2. Rose also provided medical documentation from his family physician, dated July 25, 2016, [11] stating that Rose previously “had [a] medical issue requiring bathroom time, is being treated and issue is resolved.” DE #24-14 at 3. Rose testified that this note accurately reflected the state of his condition at the time of his deposition. DE #24-2 at 130. Lastly, Rose provides a note from Dr. Angel Justice[12]dated July 1, 2016, which states: “While out with Mr. Rose and some of our friends on 6/25/16 [two days prior to the termination] he complained of left back pain, frequent urination, urinating hesitantly, and some dribbling . . . I told him possible causes could be a UTI, kidney stones, prostate problems, [or] kidney infection . . . and told him he should ask his family doctor to do a complete examination.” DE #24-14 at 1. Rose provided no documentation to UPS prior to the discharge. Indeed, per the records, none would have existed at that point; Rose had not, at least in the records before the Court, been formally treated in any way, prior to termination, for the claimed focal issue.

         On July 1, 2016, Rose filed a grievance through his union representative. See DE #24-13 at 4 (Grievance Form). On July 7, Rose, Mattingly, Faulstick and other relevant players attended a local-level grievance hearing, where Rose presented the above medical documentation. DE #40 (Faulstick Depo.) at 64-65. After UPS denied Rose's claim at this hearing, see DE #24-17 at 2 (Grievance Committee Decision), the union advanced the matter to the Kentucky State Grievance Panel, and Rose was granted a hearing for July 26, 2016, see DE #24-15 (Grievance Letter). However, the hearing was continued until August 23; in the interim, UPS offered Rose a “Return to Work Agreement, ” which would reduce his discharge to a suspension, but note that this was his “Last and Final Warning” prior to termination, if another offense were to occur. DE #24-16 (Agreement). Rose refused to sign the agreement and proceeded to the panel hearing. There, Rose challenged his termination, arguing that “he was ill and admitted he had taken excessive time because of his illness.” DE #24-15 at 2. When the panel also denied Rose's claim, the union appealed on his behalf. DE #24-18 (Appeal Letter). However, this appeal was unsuccessful. DE #24-19 at 1 (Letter re: Appeal Decision).

         Without further union recourse, Rose commenced this action in the Fayette Circuit Court, and UPS removed the case to this Court. DE #1 (Notice of Removal). Rose alleges disability discrimination under the Kentucky Civil Rights Act, seeking damages. DE #17-1 (Complaint). UPS has moved for summary judgment on the Complaint's sole count. DE #24. Rose responded in opposition (DE #34), and UPS replied (DE #41). The matter is ripe for consideration.

         B. Discussion

         1. Summary Judgment Standard

         Summary judgment is proper where “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). The Court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmovant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Courts may not “weigh the evidence and determine the truth of the matter” at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). “The relevant inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'” Little Caesar Enters., Inc. v. OPPCO, LLC, 219 F.3d 547, 551 (6th Cir. 2000) (quoting Anderson, 106 S.Ct. at 2512).

         The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth “the basis for its motion, and identify[] those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact”); Lindsay, 578 F.3d at 414 (“The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute.”). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce “specific facts” showing a “genuine issue” for trial. Celotex Corp., 106. S.Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, “Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 106 S.Ct. at 2552; see also Id. at 2557 (Brennan, J., dissenting) (“If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim.” (emphasis in original)).

         A fact is “material” if the underlying substantive law identifies the fact as critical. Anderson, 106 S.Ct. at 2510. Thus, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. A “genuine” issue exists if “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 2511; Matsushita Elec. Indus. Co., 106 S.Ct. at 1356 (“Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”) (citation omitted). Such evidence must be suitable for admission into evidence at trial. Salt Lick Bancorp v. FDIC, 187 Fed.Appx. 428, 444-45 (6th Cir. 2006).

         2. KCRA Standard

         The Kentucky Civil Rights Act (KCRA) provides in pertinent part: “It is an unlawful practice for an employer . . . to discharge any individual . . . because the person is a qualified individual with a disability[.]” KRS § 344.040(1)(a). Because the KCRA largely parallels the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, et seq., courts traditionally interpret the KCRA with an ear to its federal forebear. See, e.g., Lafferty v. United Parcel Serv., Inc., 186 F.Supp.3d 702, 707-08 (W.D. Ky. 2016) (citing Howard Baer, Inc. v. Schave, 127 S.W.3d 589, 592 (Ky. 2003); Bryson v. Regis Corp., 498 F.3d 561, 574 (6th Cir. 2007); Banks v. Bosch Rexroth Corp., 610 Fed.Appx. 519');">610 Fed.Appx. 519, 526 (6th Cir. 2015)) (“Because the language of the KCRA mirrors (for the most part) that of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., courts interpret the KCRA consistent with the ADA.”); see also Webb v. Humana, 819 F.Supp.2d 641, 644-45 (W.D. Ky. 2011) (“The language of the KCRA mirrors that of federal anti-discrimination law, and courts have interpreted the Kentucky Act consistently therewith.”); accord Brohm v. JH Properties, Inc., 149 F.3d 517, 520 (6th Cir. 1998).

         This interpretive view is not an absolute. Despite the ADA's reformation in 2008 with the passage of the ADA Amendments Act (ADAAA), [13] most courts continue to apply pre-2008 ADA jurisprudence to KCRA analysis. See Krueger v. Home Depot USA, Inc., 674 Fed.Appx. 490, 494 (6th Cir. 2017) (“[T]he Kentucky legislature adopted the language in the KCRA in 1992 and intended it to reflect the language of the ADA at that time, not the subsequent amendments.”); Breen v. Infiltrator Systems, 417 Fed.Appx. 483, 486 (6th Cir. 2011) (“[T]h[e] amendment has yet to be incorporated into the Kentucky statute, see K.R.S. § 344.010(4), so the pre-2008 ADA standards apply to [Plaintiff]'s claim.”); Sanders v. Bemis Co., Inc., No. 3:16-cv-14-GFVT, 2017 WL 3401277, *1, *5 (E.D. Ky. Aug. 8, 2017) (“[T]he KCRA is interpreted consistent with pre-ADAAA, rather than post-ADAAA, jurisprudence.”); Lafferty, 186 F.Supp.3d at 707 n.3 (W.D. Ky. 2016) (noting that “[f]ederal courts continue to interpret the KCRA consistent with pre-ADAAA jurisprudence” and collecting supporting cases); Larison v. Home of the Innocents, 551 S.W.3d 36, 43 (Ky. 2018) (“[N]o matter these current definitions, ‘the KCRA retains the [ADA's] former definition of disability[, ]' prior to the 2008 Amendments of the federal law.”) (quoting Azzam v. Baptist Healthcare Affiliates, Inc., 855 F.Supp.2d 653, 657 n.2 (W.D. Ky. 2012)).

         The Azzam court emphasized the imprudence of “assum[ing] that the Kentucky legislature, by drafting language in 1992 that mirrored federal law at the time, see 1992 Ky. Acts 282, § 1, intended to incorporate federal legislative alterations that occurred in 2008.” 855 F.Supp.2d at 657 n.2. Despite the authority, Rose urges the Court to apply ADAAA standards to his claim, arguing they are more consistent with the original purpose of the KCRA. See DE #34 at 16. However, the small minority of cases that applied the ADAAA to KCRA claims either did so without analysis, or indiscriminately applied ADAAA standards to scenarios involving both ADA and KCRA counts; moreover, these cases still rely heavily on pre-2008 case law.[14] Both the Sixth Circuit, and Kentucky in Larison, went the other way; this effectively is controlling authority. Thus, this Court joins the bulk of courts that “continue to apply pre-ADAAA jurisprudence to [the KCRA] . . . ‘[u]ntil such time as the Kentucky Supreme Court or General Assembly speaks on this issue[.]'” Sanders, 2017 WL 3401277 at *5 n.3 (quoting Lafferty, 186 F.Supp.3d at 707 n.3)).

         Under the KCRA, “[d]isability discrimination claimants can proceed under the separate legal theories of disparate treatment and failure to accommodate.” Webb v. Humana Inc., 819 F.Supp.2d 641, 645 (W.D. Ky. 2011). Rose chose the former route.[15]See DE #17-1 ¶¶ 22-25 (Complaint) (alleging “UPS's unlawful firing of Plaintiff James Rose for his disability”). Because Rose does not present direct evidence of disparate treatment, [16] he must establish the following prima facie elements under Kentucky law: (1) he had a disabililty under the KCRA; (2) he was otherwise qualified for the position, with or without reasonable accommodation; and (3) he suffered an adverse employment action because of his disability. See Bogart v. Univ. of Kentucky, No. 18-5029, 2019 WL 1254690, at *6 (6th Cir. Mar. 18, 2019) (citing Murray v. E. Ky. Univ., 328 S.W.3d 679, 682 (Ky. Ct. App. 2009)); see also Hedrick v. Western Reserve Care System, 355 F.3d 444, 453 (6th Cir. 2004) (citing Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186- 87 (6th Cir. 1996)); Whitfield v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011). To establish the third element, Rose must show that his disability was the but-for cause of termination. See Bogart, 2019 WL 1254690, at *6 ...

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