Shawn Cooper v. United Parcel Service, Inc.Shawn Cooper v. United Parcel Service, Inc.
Kim Maria Boyle, Esq, Brandon E. Davis, Esq., Phelps Dunbar, L.L.P., New Orleans, LA, Karleen Joseph Green, Esq., Phelps Dunbar, L.L.P., Baton Rouge, LA, for Defendant-Appellee.
Before KING, STEWART, and HAYNES, Circuit Judges.
Plaintiff-Appellant Shawn F. Cooper appeals the district court‘s grant of summary judgment in favor of Defendant-Appellee United Parcel Service, Inc., on his race and disability discrimination claims. Cooper alleges that the Defendant-Appellee failеd to make reasonable accommodations for his disability, took adverse employment actions against him on the basis of his race and disability, and retaliated against him in response to his claims of discrimination. On appeal, Cooper challenges the district court‘s grant of summary judgment in favor of the Defendant-Appellee on all claims. For the following reasons, we AFFIRM the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Cooper, an African-American, worked for United Parcel Service, Inc. (UPS), for approximаtely seventeen years. Prior to Hurricane Katrina, Cooper lived and worked in the New Orleans, Louisiana, area. Cooper‘s home was destroyed by the storm and he moved to Baton Rouge, Louisiana, though he continued to commute to New Orleans to work as a “preload supervisor” at the UPS warehouse. Cooper claims that, after his move to Baton Rouge, he requested to be transferred to a UPS facility in Baton Rouge and to be moved to a position in “plant engineering.”
Sometimе in mid-2006, Cooper claims that UPS asked him and a white employee to use their personal vehicles to deliver packages. Cooper alleges that he and the white employee refused to comply with this request. In August 2006, Cooper was transferred to a UPS center in Harvey, Louisiana, to work as an “on-road supervisor.” Cooper complied with the transfer. However, Cooper alleges that the transfer to Harvey added over 25 minutes of additional transit time to each leg of his commute, and he claims that UPS moved him to Harvey because he refused to use his personal vehicle for deliveries. Cooper further claims that this transfer was racially motivated because UPS did not also move the white employee to Harvey or “do anything to him,” despite the fact that the white employee also objected to using his personal vehicle for deliveries.
Also in August 2006, Cooper began to suffer from heat exhaustion, muscle spasms, dizziness, and headaches while working. Cooper consulted an occupational doctor, Jimmy Guidry, and was diagnosed with heat stroke, post-traumatic stress disorder, and migraine headaches brought on by heat, depression, and anxiety. Dr. Guidry recommended that Cooper avoid high heat and high-stress situations and that he take a medical leave of absence from his job. Cooper began his medical leave of absence on August 27, 2006.
While on leave, Cooper continued to receive his salary from August 2006 through March 2007 pursuant to UPS‘s Income Protection Plan (the “Income Protection Plan” or the “Plan“). Under the Income Protection Plan, eligible employees receive all or a portion of their salary while absent from work because of illness or accidental injury. However, the Plan also provides that an employee is subject to “administrative separation” if he is absent from work for twelve months.
Cooper also sought treatment from Larry Gooch, a licensed social worker, and Dr. Gregory Ferrara, his primary care physician. Cooper‘s medical experts released him to work with restrictions in January 2007. Specifically, they recommended
In February 2007, UPS notified Cooper that it had received his request for accommodations, and it requested supporting information in order to evaluate Cooper‘s request. In March 2007, Cooper presented evaluations from Dr. Judith Levy, a clinical psychologist, and Gooch.1 Both Dr. Levy and Gooch stated that Cooper was currently unable to perform the duties of his job. They recommended that Cooper work in a climate-controlled environment; at a job closer to his home; in a “new environment” with a new boss; and in a job that would utilize his engineering education. Further, they recommended that Cooper not drive long distances. Both also stated that there were no medications or corrective devices that would allow Cooper to perform all the duties required by his current position. In response, UPS requested offiсial forms from these physicians, which Cooper provided in April 2007.
On September 11, 2007, UPS notified Cooper that he was subject to administrative separation—i.e., termination—under the Income Protection Plan because he had been absent from work for twelve months. The notification letter further states that UPS hoped that Cooper would return to his position, thus avoiding administrative separation under the Plan. Cooper did not return to work and did not submit further medical information regarding his disability.
On August 13, 2008, UPS again notified Coopеr that he had been on leave for nearly two years and stated that it had concluded, based on the information Cooper submitted, that he was not disabled and that he must return to work as an on-road supervisor by August 25, 2008, or provide additional requested medical information in support of his disability claims. UPS also informed Cooper that he would be subject to administrative separation if he did not comply. Cooper neither returned to work nor provided further medical information regarding his disability claims. UPS notified Cooper that he had been administratively separated, pursuant to the Plan, on August 27, 2008.
While Cooper was absent from work, he filed an Equal Employment Opportunity Commission (EEOC) charge on May 2, 2007, alleging that he was disabled and that UPS denied him reasonable accommodations. In July 2007, he supplemented this charge with a memorandum to the EEOC in which he also alleged race discrimination. On January 2, 2008, Cooper filed a formal charge of race discrimination with the EEOC. Cooper received his right to sue letter and filed suit against UPS оn April 10, 2008. Relevant here, Cooper alleged that his transfer to Harvey was an adverse employment action that was racially motivated; that UPS discharged him on the basis of his race; that UPS failed to make reasonable accommodations for his disability and later terminated him because of that disability; and that UPS
On August 4, 2009, UPS moved for summary judgment. The district court granted the motion on August 19, 2009, concluding that Cooper‘s transfer to Harvey was not an adverse employment action, that Cooper made no prima facie case of a racially discriminatory discharge, that Cooper could not perform the “essential functions” of his job and thus was not discriminated against on the basis of his alleged disability, and that UPS did not discharge Cooper in retaliation for filing discrimination claims. Thе district court entered final judgment in favor of UPS on August 20, 2009. Cooper now appeals.
II. DISCUSSION
A. Standard of Review
“We review a district court‘s grant of summary judgment de novo, applying the same standards as the district court.” Pegram v. Honeywell, Inc., 361 F.3d 272, 278 (5th Cir. 2004). Summary judgment is appropriate where the record shows “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
B. Race Discrimination Claims
The summary judgment test fоr race discrimination claims under
To establish a prima case of discrimination, Cooper must show that (1) he is a member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse employment action; and (4) he
Cooper argues that UPS unlawfully discriminated against him on the basis of race both by transferring him to Harvey and by eventually discharging him. UPS disputes that Cooper has established a prima facie case of racial discrimination on either claim. Specifically, as to Cooper‘s transfer to Harvey, UPS argues that the transfer was not an adverse employment action, and, as to Cooper‘s discharge, UPS argues both thаt Cooper failed to show that he was replaced by someone outside his protected class and that he generally failed to put forth any evidence of racial discrimination. We address each claim in turn.
1. Cooper‘s Transfer to Harvey
Regarding Cooper‘s transfer to Harvey, Cooper asserts solely that the increased commuting time—25 minutes each way—makes the transfer an adverse employment action. We disagree.3
“[A]n employment action that ‘does not affect job duties, compensation, or benefits’ is not an adverse employment action.” Pegram, 361 F.3d at 282 (quoting Banks v. E. Baton Rouge Parish Sch. Bd., 320 F.3d 570, 575 (5th Cir. 2003)). “[A]n employment transfer may qualify as an ‘adverse employment action if the change makes the job objectively worse.‘” Id. at 283 (quoting Hunt v. Rapides Healthcare Sys., LLC, 277 F.3d 757, 770 (5th Cir. 2001)). A purely lateral transfer is not an adverse employment action; however, a transfer that is the “equivalent of a demotion” is an adverse employment action. Alvarado v. Tex. Rangers, 492 F.3d 605, 612 (5th Cir. 2007). A transfer can be the equivalent of a demotion where the new position is “objectively worse—such as being less prestigious or less interesting or providing less room for advancement.” Id. at 613 (quoting Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999)). “[T]he focus is on the objective qualities of the positions, rather than an employee‘s subjective preference for one position over another. That subjective preference, alone, is an insufficient basis for finding an adverse employment action.” Hunt, 277 F.3d at 771 n. 8.
Cooper‘s transfer from New Orleans to Harvey was not an adverse employment action. Cooper had the same title and benefits in Harvey as he did in New Orleans. Though a longer commute may have been inconvenient for Cooper, we cannot say that the new position was objectively worse such that it was the equivalent of a demotion. See Johnson v. TCB Constr. Co., 334 Fed. Appx. 666, 671 (5th Cir. 2009) (per curiam) (“[A]lthough
2. Cooper‘s Discharge
Cooper also asserts that UPS terminated him on the basis of his race. However, while Cooper alleged below that he was discharged on the basis of his race, he failed to mention race as a reason he was fired in a subsequent deposition and he failed to point to anyone outside his protected class that either replaced him or was treated more favorably. Though the requirements are flexible, Cooper‘s unsupported allegations of raciаl discrimination are insufficient to meet his burden of establishing a prima facie case of racially discriminatory discharge. Cf. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc; per curiam) (“Rule 56 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. . . . This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence[.]” (internal quotation marks and citations omitted)). Accordingly, summary judgment in favor of UPS on Cooper‘s racially discriminatory discharge claim was appropriate.
C. ADA Claims
Cooper also claims that UPS failed to reasonably accommodate his disability and discharged him because of his disability. UPS responds that Cooper is not disabled and that, even if Cooper was disabled, he is not a qualified individual with a disability. The district court concluded that Cooper did not show that he could рerform the essential functions of his job and thus dismissed his ADA claims. We agree.5
The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to [the] advancement, [or] discharge of employees, and other terms conditions, and privileges of employment.”
significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
However, even assuming that one has a disability, to be a qualified individual with a disability the plaintiff must be “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”
Here, it is undisputed that the essential functions of Cooper‘s job include meeting Department of Transportation (DOT) requirements for drivers and working in an environment with variable temperatures and humidity. Cooper does not present any evidence suggesting that he could perform these functions with or without accommodations. Indeed, Cooper‘s own medical experts, Dr. Levy and Gooch, indicated that Cooper should not work in a variable temperature environment and could not meet DOT requirements. Further, both experts stated that no corrective devices or medications would aid Cooper‘s condition.
Thus, assuming arguendo that Cooper has a “disability,” Cooper is not a “qualified individual with a disability” because he cannot perform the essential functions of his job. Cf. Burch, 174 F.3d at 621 (firefighter who could not fight fires could not perform essential functions of firefighting job and thus could not bе reasonably accommodated as a firefighter as a matter of law); Guerra v. United Parcel Service, Inc., 250 F.3d 739, 2001 WL 274296 at *2-3 (5th Cir. 2001) (unpublished table opinion) (employee who could not lift packages of certain weight could not perform essential functions of warehouse job and could not be reasonably accommodated; thus, employee failed to establish a prima facie case of disability discrimination).
Here, Cooper fails to assert that there are any vacancies in plant engineering, that he was qualified for such a job, or that he even formally applied for such a job. While the record indicates that Cooper did inquire about a plant engineering job, Cooper does not show that such a position was vacant or that he was qualified for that job. “[T]he law requires [a plaintiff] also to prove that he is qualified for [an alternative] position. Part of that proof must be more than the worker‘s self-serving testimony that he could have performed [the job].” Burch, 174 F.3d at 622. Cooper‘s desire for a job in plant engineering, without accompanying evidence demonstrating his qualifications for that job, is insufficient to sustain his claim that such a job would be a reasonable accommodation. Accordingly, summary judgment in favor of UPS on Cooper‘s ADA claims was appropriate.
D. Retaliatory Discharge Claims
Cooper also alleges that UPS unlawfully retaliated against him by discharging him in response to his claims of discrimination. “[T]he McDonnell Douglas test . . . is also applicable to Title VII unlawful retaliation cases.” Byers v. Dallas Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). Thus, Cooper must first establish a prima facie case of retaliation before the burden of production shifts to UPS to proffer a legitimate, non-retaliatory reason for the adverse employment action. Finally, the burden falls on Cooper to show why UPS‘s proffered explanation is pretext for unlawful retaliation.
To establish a prima facie case of unlawful retaliatiоn under Title VII, Cooper must show (1) that he engaged in an activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action. Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). “Close timing between an employee‘s protected activity and an adverse action against him may provide the ‘causal connection’ required to make out a prima facie case of retaliation.” McCoy, 492 F.3d at 562 (footnotes and internal quotation marks omitted). “However, once the employer offers a legitimate, nondiscriminatory reason that explains both the adverse action and the timing, the plaintiff must offer some evidence from which the jury may infer that retaliation was the real motive.” Id.
Here, assuming arguendo that Cooper has established a prima facie case of retaliatory discharge, Cooper has not met his burden of showing why UPS‘s proffered explanation—that he was fired after being absent from work for over a yеar, per the terms of the Income Protection Plan—is pretextual. UPS twice notified Cooper that the Income Protection Plan provides for administrative separation after an employee is absent for over twelve months and requested that Cooper either return to work or provide additional
Cooper neither disputes that the terms of the Plan provide for his separation nor argues that UPS invidiously enforces the terms of the Plan. Instead, Cooper asserts that the real reason for his termination was UPS‘s failure to reasonably accommodate his disability. “Whether summary judgment is appropriate . . . depends on numerous factors, including the strength of the employee‘s prima facie case, the probative value of the proof that the employer‘s explanation is false, and any other evidence that supports the employer‘s case and that properly may be considered.” Price v. Fed. Express Corp., 283 F.3d 715, 720 (5th Cir. 2002). We conclude that Cooper has not produced sufficient evidence from which a reasonable factfinder could infer that Cooper was discharged as retaliation for filing claims of discrimination. Accordingly, summary judgment in favor of UPS on Cooper‘s retaliatory discharge claims is appropriate. Cf. McCoy, 492 F.3d at 562 (holding that summary judgment was appropriate where plаintiff “attempt[ed] to prove pretext simply by showing that the [defendant] knew of her complaints and took an adverse employment action shortly thereafter” and did not offer reasons as to why the legitimate reasons proffered for her discharge were pretextual).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
AFFIRMED.