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Avni v. Fedex Ground Package System, Inc.

United States District Court, D. Oregon, Portland Division

September 30, 2014

AVNI AVFI, Plaintiff,


ANCER L. HAGGERTY, District Judge.

Plaintiff Avni Arifi brought this lawsuit against defendant FedEx Ground Package System, Inc. (FedEx), alleging employment discrimination in violation of both state and federal law: Oregon Revised Statute (ORS) 659A.030; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (Title VII); and 42 U.S.C. § 1981. Plaintiff seeks compensatory and punitive damages. On June 18, 2014, defendant filed a Motion for Summary Judgment [18). The court heard oral argument from the parties on September 18, 2014. For the following reasons, defendant's Motion for Summary Judgment [18) is granted.


1. Defendant's Business

Defendant is a federally-registered motor carrier that utilizes independent contractors to provide transportation, package pick-up and package delivery services throughout the United States. Dickson Decl. ¶ 3. The relationship between defendant and each independent contractor is governed by an Operating Agreement, which confirms that the independent contractors are engaged as independent businesses. Dickson Decl. ¶ 3.

Linehaul contractors provide transportation services with 18-wheel tractor-trailers, using their own tractors to transport loaded trailers, which are owned by defendant, between two FedEx stations. Dickson Decl. ¶ 4. The linehaul contractors are responsible for all operating and maintenance expenses associated with their tractors, and they are responsible for managing their own businesses. Accordingly, they determine how best to perform and earn a profit under their contract. Dickson Decl. ¶ 4.

According to Sean Dickson, Senior Linehaul Manager at defendant's Portland, Oregon hub, the independent contractors agree to treat all personnel providing services under the Operating Agreement as their own employees. Dickson Decl. ¶ 5. He explains that the independent contractors exercise sole and exclusive control over their employees, including hiring, firing, and disciplinary decisions. He states that contractors establish the drivers' routes and determine the drivers' wages and hours. Dickson Decl. ¶ 5. However, FedEx maintains minimum qualifications for all drivers within its system, and each driver must be initially approved by FedEx before he can be hired by an independent contractor. Dickson Decl. ¶ 5.

2. Plaintiff's Employment History

Plaintiff has been employed by several independent contractors that provide transportation services to defendant. Initially, plaintiff began working as a driver for Kamenko Express, Inc. in 2006. Pl.'s Dep. 13:19-21. Before obtaining that position, he filled out an application in a FedEx facility to determine whether he met defendant's minimum qualifications for drivers. Pl.'s Dep. 14:5-12.

At some point, plaintiff was offered a local route through another independent contractor, Throttleman 2, and plaintiff accepted the new job offer. Plaintiff admits that FedEx had no involvement in this transfer, including no involvement in setting plaintiffs new route and new wage. Pl.'s Dep. 19: 12-25; 20:1-24. Plaintiff worked for Throttleman 2 for approximately two and a half years. When Throttleman 2 changed plaintiffs schedule from a dedicated route to rotating routes, plaintiff set out once again to find a new job. Pl.'s Dep. 22:24-25; 23: 1-18.

Plaintiff obtained employment driving a dedicated route with Wade Transport Co., (Wade Transport) another independent contractor for defendant. Plaintiff admits that he did not seek any permission from defendant before accepting this new position and driving this new route. Pl.'s Dep. 24:25; 25:1-4. During this employment, Wade Transport routinely required plaintiff to report to the FedEx hub in Portland, Oregon. Pl.'s Decl. ¶ 5. There, FedEx gave plaintiff paperwork that assigned him to a specific trailer each day and identified the location to which the trailer was to be delivered. Pl.'s Decl. ¶¶ 5, 6. With his assignment for the day, plaintiff would proceed to the trailer parking area to locate his assigned trailer and hook it to his tractor. This process generally took ten to fifteen minutes, unless plaintiffs assigned trailer was blocked by other trailers, in which case a FedEx employee was needed to move them. Pl.'s Decl. ¶¶ 8-12. If a FedEx employee was not available, plaintiff would move the trailers as directed by FedEx dispatch. Pl.'s Decl. ¶ 12. Once the trailer was attached to his tractor, plaintiff transported it to Seattle, Washington, and then returned to Portland to pick up another trailer, which he transported to Salem, Oregon. Pl.'s Dep. 26:7-13. In the three years that plaintiff worked for Wade Transport, there were approximately ten to fifteen instances in which FedEx contacted him directly to temporarily alter his regular route. Pl.'s Dep. 129:13-25.

While he worked for Wade Transport, plaintiff drove three different tractors, which were all owned by Wade Transport. Pl.'s Dep. 30:1-18. If plaintiff had a problem on the road, he was directed to call FedEx dispatch directly, and FedEx dispatch would direct him in addressing the problem. Pl.'s Decl. if 13. If plaintiff experienced a mechanical problem with the tractor or trailer while on a route, FedEx would arrange for a mechanic and direct plaintiff to wait near the tractor. Pl.'s Decl. ¶¶ 14-15. If plaintiff received a traffic citation, he was required to report it to FedEx, which had the ability to suspend plaintiff from driving. Pl.'s Decl. ¶¶ 17-18. Through the Operating Agreement, both FedEx and Wade Transport had the ability to issue suspensions, including lifetime suspensions, to drivers for failing to meet certain minimum criteria. Pl.'s Response Ex. 2. FedEx never paid plaintiff any compensation and it was Wade Transport that offered plaintiff employment benefits, such as health and disability insurance. Pl.'s Dep. 30:19-25; 31:1-14.

3. Alleged Harassment

Plaintiff claims that beginning in 2009, while he was employed with Throttleman 2, and throughout his employment with Wade Transport, employees of FedEx and employees of other independent contractors harassed him based on his race, national origin, and religion. Plaintiff was born in Kosovo. Pl.'s Dep. 9: 12-13. He identifies his race as white and his national ...

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