Tony McCloud v. United Parcel Servic , 328 F. App'x 777 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-21-2009
Tony McCloud v. United Parcel Servic
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1700
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1700
___________
TONY RANDALL MCCLOUD,
Appellant
v.
UNITED PARCEL SERVICE, INC.
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 07-CV-00344)
District Judge: Honorable J. Curtis Joyner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 13, 2009
Before: RENDELL, FUENTES and ALDISERT, Circuit Judges
(filed: May 21, 2009 )
___________
OPINION
___________
PER CURIAM
Tony McCloud appeals from an order of the United States District Court for the
Eastern District of Pennsylvania, which granted the defendant’s summary judgment
motion and dismissed all of McCloud’s claims in his employment discrimination lawsuit.
We will affirm the District Court’s judgment.
McCloud, who is African-American, was an employee at United Parcel Service
(UPS). On Saturday, September 20, 2003, McCloud gave an employee some orange
cones to place on a ramp at a UPS facility. At the end of the shift, McCloud noticed
writing on one of the cones that said “Tony Mc sucks dick, asshole,” and in another area
of the cone, “Neg.” McCloud reported the incident to his immediate supervisor, who told
him to bring it to the attention of Mr. Fiorentino, who was in charge of the entire facility.
Fiorentino was out, but talked to McCloud on Tuesday, September 23 when he returned
to work. McCloud claims that Fiorentino tried to convince him not to pursue the
complaint, but, nevertheless, an investigation was instigated. Over the following week,
all eighteen employees who were known to be working on the ramp were interviewed and
were asked to provide a writing sample. UPS sent the writing samples to an expert
forensic examiner, who did not find a match between the samples and the writing on the
cone. UPS also conducted pre-work meetings soon after the incident, and instructed
employees that racial harassment and defacing UPS property by writing racial slurs would
not be allowed.
McCloud went on medical leave beginning September 21, 2003, citing stress and
related problems due to the traffic cone incident. An employee on medical leave was
required to inform UPS if he was working elsewhere, so that benefits could be offset by
the outside income. McCloud had previously informed Fiorentino that he had been
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working a second job at Hertz, although he did not include this information on his
disability benefits application. Fiorentino passed the information on to Barbara Gohery,
an Employee Relations manager, who contacted McCloud to discuss his alleged outside
employment, but he declined to do so. His benefits were suspended on November 30,
2003. Gohery sent McCloud a letter on December 15, 2003, asking him to meet to
discuss his employment status. McCloud declined, but an assistant at Hertz faxed a letter
on December 29, 2003 stating that McCloud was an employee but had not worked since
July 2003. UPS determined that it required confirmation from a manager at Hertz, rather
than an assistant, and again asked for confirmation on McCloud’s status. Gohery’s
replacement sent McCloud a letter on January 25, 2004, stating that his employment
status needed to be verified before his benefits could be reinstated. UPS then received
documentation on February 5, 2004 from a City Manager at Hertz, confirming that
McCloud was an active employee but that he had not worked since July 2003. UPS then
reinstated McCloud’s benefits, retroactive to the date they had been suspended. McCloud
ultimately received twelve months of benefits, the maximum allowed, but was
administratively terminated from UPS, per the terms of the Benefit Plan, when he failed
to return to work before the expiration of his benefits.
McCloud filed a federal complaint, alleging that the cone incident, UPS’s response
to the incident, and the disruption of his benefits constituted evidence of a hostile work
environment in violation of Title VII and the PHRA. McCloud also claimed that his
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disability benefits were suspended in retaliation for his first complaint, and that his
employment contract had been violated.1
The District Court found that the cone incident was not sufficiently “severe or
pervasive” to constitute a hostile environment. The Court also found that there was no
basis for liability on the part of UPS, because it took immediate investigatory action. As
for the retaliation claim, the District Court found that McCloud had not established any
causal link between his complaint about the cone incident and the suspension of his
disability benefits. The District Court also noted that even if a link had been established,
UPS had proffered a legitimate non-retaliatory justification for its actions. The District
Court granted UPS’s motion for summary judgment, and McCloud filed a timely appeal.2
We have jurisdiction over the appeal under 28 U.S.C. § 1291 and exercise plenary
review over the District Court’s decision to grant summary judgment. McGreevy v.
Stoup, 413 F.3d 359, 363 (3d Cir. 2005). Summary judgment is appropriate when the
1
We agree with the District Court that McCloud produced no evidence that he had an
employment contract, and we will not discuss this issue further.
2
McCloud was initially represented by counsel on appeal, but this Court granted a
motion to withdraw counsel on October 6, 2008. McCloud is currently proceeding pro se.
UPS argues on appeal that McCloud has waived appeal of any District Court ruling on the
allegations of his complaint by failing to raise legal arguments in his opening brief. We
agree that McCloud has failed to properly challenge the denial of his discrimination
claims; however, for the sake of thoroughness, we will address the propriety of the
District Court’s judgment. We further agree with UPS that the only issue raised by
McCloud in his brief, the “perjury” allegedly committed by a UPS witness, is not a proper
subject of this appeal, and, in any event, the question of whether McCloud was or was not
a supervisory employee (which is the subject of the alleged perjury) is irrelevant to his
discrimination claims.
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“pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court reviewing a summary
judgment motion must evaluate the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil
Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995). However, a party opposing summary
judgment “must present more than just ‘bare assertions, conclusory allegations or
suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409
F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)).
To state a claim of discrimination based on a hostile work environment, an
employee must show that (1) he suffered intentional discrimination because of the
protected factor (in this case, race), (2) the discrimination was pervasive and regular, (3)
the discrimination detrimentally affected him, (4) the discrimination would detrimentally
affect a reasonable person of the same race in that position, and (5) the existence of
respondeat superior liability. Andreoli v. Gates, 482 F.3d 641, 643 (3d Cir. 2007). Even
assuming, arguendo, that McCloud established the first four elements of his claim, his
claim necessarily fails, because UPS is not liable for the cone incident.
An employer is liable for harassing conduct if it is “negligent or reckless in failing
to train, discipline, fire or take remedial action upon notice of harassment.” Id. at 644
5
(internal quotations and citations omitted). An employer will only be found negligent if it
“knew or should have known about the harassment, but failed to take prompt and
adequate remedial action.” Id. (internal quotation and citation omitted). Here, UPS
investigated the incident within twenty-four hours of McCloud informing his supervisor
of the incident. UPS interviewed all eighteen employees who were assigned to the area
where the cone was found, obtained handwriting samples from each of them, and
consulted a handwriting expert to compare the samples with the writing on the cone. UPS
also instructed supervisors to meet with employees to inform them that such an incident
was not tolerable. Although no employee was punished because the investigation was
inconclusive, the investigation and required meetings were “reasonably calculated to
prevent further harassment.” Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997).
As UPS’s remedial action was both prompt and adequate, McCloud’s hostile environment
claim fails.
To establish a prima facie case of retaliation, a plaintiff must show: (1) he
engaged in protected activity, (2) the employer took a materially adverse action against
him, and (3) there was a causal connection between the protected activity and the
employer’s action. LeBoon v. Lancaster Jewish Community Center Ass’n, 503 F.3d 217,
231 (3d Cir. 2007). McCloud claims that his disability benefits were suspended in
retaliation for his filing a discrimination complaint with the Pennsylvania Human
Relations Commission. Filing the discrimination complaint was a protected activity. One
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might question whether the suspension of McCloud’s disability benefits for less than
three months, followed by complete reimbursement, was “materially adverse,” 3 but we
will assume for the sake of argument that it was. However, we agree with the District
Court that McCloud did not establish causation. The timing of the suspension of benefits
(two months after the cone incident, and one month after he had filed the PHRC claim),
was not particularly suggestive. As the District Court noted, there also was no evidence
that the benefits personnel that suspended McCloud’s benefits had any knowledge of the
cone incident or the PHRC claim. Even if McCloud had established a suggestion that the
suspension was based on retaliation, it appears that in fact, McCloud caused the
continuation of the suspension by failing to cooperate in establishing that he had not
worked at Hertz for several months. Further, even if McCloud had established a prima
facie case of retaliation, we agree with the District Court that his failure to cooperate in
providing information about his outside employment was a legitimate, non-retaliatory
reason for UPS’s suspension of the benefits. Thus, McCloud’s retaliation claim fails.
For the foregoing reasons, we will affirm the District Court’s judgment.
3
An action is “materially adverse” if it might reasonably dissuade a reasonable worker
from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 68 (2006).
7