Kenneth Savage v. Federal Express Corp.
856 F.3d 440
| 6th Cir. | 2017Background
- Kenneth Savage, a FedEx senior aircraft mechanic and U.S. Naval Reserve lieutenant, was terminated in Sept. 2012 after an internal investigation concluded he used his employee reduced-rate shipping for resale of merchandise; he had excellent work reviews and no prior formal discipline.
- Savage had recently (May–Aug 2012) complained about pension calculation discrepancies related to his military leave and contacted the FedEx Retirement Center; his suspension occurred 34 days after completing military service and termination 42 days after.
- FedEx’s investigation began after an automated audit flagged high-volume reduced-rate shipments; Savage admitted he and his wife sold items online and used his discount, though he disputed it constituted a business.
- Savage alleged USERRA claims: (1) discrimination based on military status, (2) retaliation for asserting USERRA rights (complaints about pension calculations), and (3) improper pension contribution calculations under 38 U.S.C. § 4318.
- District court granted FedEx summary judgment on all claims; the Sixth Circuit affirmed summary judgment on discrimination/retaliation but reversed as to the USERRA pension-calculation claim and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination was motivated by military status (USERRA discrimination) | Savage: temporal proximity to military service/complaints, evidence of FedEx hostility to military, leadership in USERRA issues, and disparate treatment support inference of discrimination | FedEx: investigation triggered by automated audit and termination was for legitimate policy violations; decisionmakers unaware of military service/complaints | Prima facie inference existed, but FedEx proved by preponderance it would have terminated Savage absent protected activity; discrimination claim dismissed |
| Whether termination was retaliatory for asserting USERRA rights (retaliation) | Savage: close timing between pension complaints and suspension/termination and disparate discipline compared to others supports retaliation inference | FedEx: same legitimate, non-retaliatory investigative and disciplinary reasons would have led to termination | Temporal proximity and circumstantial evidence raised prima facie case but FedEx met its burden showing it would have fired him anyway; retaliation claim dismissed |
| Whether FedEx miscalculated pension contributions under § 4318 (12-month look-back) | Savage: FedEx erred by estimating hours during military leave and using a two-step rate × imputed hours method instead of averaging actual compensation (pay × hours) over 12 months before each leave period | FedEx: method of computing average hourly compensation then multiplying by scheduled leave hours was permissible; unscheduled overtime is speculative | Genuine dispute of material fact exists whether FedEx’s method complied with § 4318; summary judgment reversed and remanded on pension claim |
| Admissibility / comparators (use of warning letters to show disparate treatment) | Savage: warning letters to other employees on FedEx letterhead show less severe discipline for similar conduct | FedEx: letters allegedly unauthenticated and not comparable | Court found the letters admissible (self-authenticating on company letterhead) and that comparators could support a prima facie inference at summary judgment |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and drawing inferences)
- Celotex Corp. v. Catrett, 477 U.S. 317 (moving party burden on summary judgment)
- Petty v. Metro Gov’t of Nashville-Davidson Cty., 538 F.3d 431 (USERRA construed broadly for beneficiaries)
- Bobo v. United Parcel Serv., Inc., 665 F.3d 741 (USERRA discrimination/retaliation framework and comparator analysis)
- Hance v. Norfolk Southern Ry. Co., 571 F.3d 511 (burden-shifting under USERRA and motivating-factor analysis)
- Escher v. BWXT Y-12, LLC, 627 F.3d 1020 (temporal proximity and relevance of decisionmaker knowledge)
- Sheehan v. Dep’t of Navy, 240 F.3d 1009 (precedent on employer’s legitimate-reason proof under USERRA)
- Mickey v. Zeidler Tool & Die Co., 516 F.3d 516 (temporal proximity can establish causation in retaliation claims)
- Dye v. Office of the Racing Comm’n, 702 F.3d 286 (two-month lapse sufficient for causal inference in context)