United States District Court, D. Oregon
Snyder Carl Post John Burgess LAW OFFICES OF DANIEL SNYDER
Attorneys for Plaintiff
L. Keith Cody M. Weston Edward Choi PERKINS COIE LLP
Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE.
Roshawn Randall brings this employment action against
Defendant United Parcel Service, Inc. for gender and race
discrimination and retaliation under 42 U.S.C. § 2000e,
gender and race discrimination and retaliation under Or. Rev.
Stat. § 659A.030(1)(b), whistleblower retaliation and
discrimination under Or. Rev. Stat. § 659A.199, and
unpaid wages under Or. Rev. Stat. § 652.140. Defendant
brings counterclaims for breach of contract and quantum
meruit/unjust enrichment. Defendant moves for summary
judgment on all of Plaintiff's claims and its
counterclaims. The Court grants in part and denies in part
Defendant's Motion for Summary Judgment.
began working for Defendant in 2006. Choi Decl. Ex. 1
(Randall Dep.) 33:4-7, ECF 34-1. After various transitions
and promotions, Plaintiff eventually started working in Coeur
d'Alene, Idaho, first as a part-time supervisor and then
as an Operations Management Specialist and package car
driver. Id. at 34:24-35:22. In March of 2015,
Plaintiff asked Division Manager Paul Bond whether there were
any open full-time supervisor positions. Id. at
48:16- 49:14; Choi Decl. Ex. 4 (Bond Dep.) 25:11-26:23, ECF
34-4. When Plaintiff did not hear from Mr. Bond, Plaintiff
and his wife entered a one-year lease to rent a home in Coeur
d'Alene. Randall Decl. ¶¶ 9-10, ECF 41.
Management Career Opportunities (“MCO”) program
is an online application process managed by Defendant's
Human Resources Department for UPS employees seeking new
positions within UPS. Choi Decl. Ex. 4 (Bond Dep.) 25:15-22.
Through this program, Plaintiff was contacted in the summer
of 2015 by Center Manager Kelly Nobles about a full-time
supervisor position in The Dalles, Oregon. Choi Decl. Ex. 3
(Nobles Dep.) 7:16-8:7, ECF 34-3. The position that was
available at the time was the “On-Road
Supervisor” position, which was a full-time supervisor
position in the The Dalles Center responsible for managing
package car drivers and supervising other center employees.
Snyder Decl. Ex. 3 (Bond Dep.) 32:17-33:14, ECF 40-1; Choi
Decl. Ex. 3 (Nobles Dep.) 35:2-13. After interviewing with
Division Manager Phil Taylor and Mr. Nobles in August of
2015, Plaintiff was hired for the supervisor position in The
Dalles. Choi Decl. Ex. 3 (Nobles Dep.) 10:3-11:19; Choi Decl.
Ex. 8 (Taylor Dep.) 5:5- 9:22, ECF 34-8; Randall Decl. ¶
11. During his employment, he was the only African-American
employee at the Center. Snyder Decl. Ex. C (Bond Dep.)
says that he informed UPS Human Resources that he had signed
a one-year lease in Coeur d'Alene and was told that the
position in The Dalles was temporary or less than one year.
Randall Decl. ¶ 11. Plaintiff subsequently discussed his
new position with Mr. Nobles and Mr. Taylor by phone.
Id. at ¶ 12; Choi Decl. Ex. 3 (Nobles Dep.)
10:22-11:7; Choi Decl. Ex. 8 (Taylor Dep.) 5:5-9:12. He
informed them again that he would not be moving his family to
Oregon because he had signed a one-year lease in Coeur
d'Alene. Randall Decl. ¶ 12. No. one told Plaintiff
he was required to move to The Dalles. Id.
Allegedly, both Mr. Taylor and Mr. Nobles confirmed that this
would be a short-term assignment until he could take a
management position in Idaho. Id. at ¶ 16.
Issues with Personal Expenses
August and September of 2015, Mr. Nobles and Mr. Taylor
informed Plaintiff that lodging, meals, and a rental car
would be paid for by UPS because of his MCO job
classification. Randall Decl. ¶¶ 15- 17; Snyder
Decl. Ex. C (Bond Dep.) 58:18-22. Plaintiff alleges he was
expressly told he could use the UPS American Express card for
these expenses. Randall Decl. ¶¶ 15- 17.
He was also told he could use the UPS Visa “Pro
Card” for driver and employee spiffs and meals.
Id. at ¶ 17. Plaintiff testified that he did
not receive adequate or accurate training on how to complete
his expense reports. Snyder Decl. Ex. G (Randall Dep.)
115:19-116:19, ECF 40-2.
October 1, 2015, Donald Tefft, Jr., UPS's Director of
Human Resources for the Northwest District through April 1,
2016, held a meeting with Plaintiff and Mr. Taylor. Choi
Decl. Ex. 9 (Tefft Dep.) 24:4-25:14, ECF 34-9. Plaintiff had
not moved to The Dalles, and Mr. Tefft felt that his
performance was struggling, in part because of his regular
commute to and from Coeur d'Alene. Id. at
26:8-27:4. Plaintiff was told at this meeting that Defendant
would no longer pay for his commuting costs and that he would
need to relocate to The Dalles. Choi Decl. Ex 1 (Randall
subsequent email to Plaintiff, Mr. Nobles confirmed that
Defendant was not going to cover mileage for his trips
between The Dalles and Coeur d'Alene or meal and hotel
expenses unless they were business expenses. Grant Decl.
¶ 2, Ex. 1, ECF 32; Choi Decl. Ex. 3 (Nobles Dep.)
83:18-84:4. Mr. Nobles emphasized that the MCO program
requires self-relocation. Id. Plaintiff eventually
acquired a studio apartment in Hood River, but his family
remained in Coeur d'Alene. Choi Decl. Ex. 1 (Randall
Dep.) 21:10-22:25; Randall Decl. ¶ 35. When his father
died on October 2, Plaintiff asserts that Mr. Nobles told
Plaintiff he could put the flight and hotel for his
father's funeral on the company credit card. Randall
Decl. ¶ 34.
early 2016, the new Division Manager for The Dalles-Paul
Bond-received a copy of Plaintiff's expense reports for
September through December 2015 related to the company-issued
American Express credit card. Choi Decl. Ex. 4 (Bond Dep.)
56:20-24; Grant Decl. ¶ 3, Ex. 2; Choi Decl. Ex. 3
(Nobles Dep.) 71:12-72:24. Mr. Nobles approved
Plaintiff's expense reports. Choi Decl. Ex. 3 (Nobles
Dep.) 136:18-25. Mr. Nobles contends that in doing so he only
approved expenses so that finance could pay the amount
charged and was not “agreeing to the payments that
Randall made as UPS payments.” Id. Mr. Bond,
however, testified that it would have been Mr. Nobles'
responsibility to “disallow any expense that he did not
think were appropriate business expenses. . . .” Snyder
Decl. Ex. C (Bond Dep.) 57:6-10.
to the expense report, Plaintiff had charged approximately
$20, 000 in personal expenses-including fuel, meals, lodging
expenses, dry cleaning, and birthday dinners-to the American
Express card. Grant Decl. Ex. 2 at 3:9; 4:15, 25; 5:64-71,
83, 84, 89; 10:255, 264; 11:332. Human Resources asked David
Brandon and Brian Coy, the Director of Security and a
Security Manager respectively, to investigate Plaintiff's
reports. Choi Decl. Ex. 6 (Coy Dep.) 10:10-11:20, ECF 34-6.
Mr. Nobles sent another email to Plaintiff on January 8,
2016, reiterating that Plaintiff was “no longer on
company expense for lodging, vehicle and meals.” Grant
Decl. ¶ 4, Ex. 3. On February 11, 2016, Plaintiff signed
a statement that he had been “notified today by
District Manager Paul Bond of expenses acquired by
[himself]” and “as of February 11, 2016 all
charges on [his] American Express card [would] only be for
business purposes.” Grant Decl. ¶ 5, Ex. 4.
February 17, 2016, Plaintiff met with Mr. Grant (HR
Operations Manager for the Northwest District), Mr. Coy, Mr.
Bond and Mr. Taylor to discuss the expense reports. Grant
Decl. ¶ 6. Plaintiff was instructed to highlight
personal charges. Id.; Choi Decl. Ex. 2 (Grant Dep.)
74:21-75:5, ECF 34-2; Choi Decl. Ex. 1 (Randall Dep.)
94:2-16. Plaintiff signed a statement acknowledging that his
use of the American Express card constituted a violation of
company policy. Grant Decl. ¶ 6, Ex. 5. Plaintiff also
agreed to reimburse Defendant for the personal transactions.
Id. Plaintiff asserts that he completed the
statement because he felt coerced and could not defend
himself without risking termination. Randall Decl.
¶¶ 45-46. Defendant placed Plaintiff on paid leave
while it completed its investigation. Choi Decl. Ex. 2 (Grant
Dep.) 44:16-45:15. Mr. Grant testified that this paid leave
was not considered a disciplinary action. Id. at
March 15, 2016, Plaintiff attended another meeting with Mr.
Grant, Mr. Tefft, and Mr. Bond. Grant Decl. ¶ 7. Mr.
Tefft told Plaintiff he was going to be disciplined for his
violations of the UPS expense policy. Choi Decl. Ex. 9 (Tefft
Dep.) 107:5-108:20. Plaintiff would not receive a raise that
year, was not eligible to participate in the Management
Incentive Program (“MIP”) that year, had to turn
in his company American Express card, and would be required
to repay the improper personal expenses. Id.
Plaintiff again signed a statement acknowledging the
consequences of his actions and was permitted a second
opportunity to review the expense reports and deduct purely
business expenses. Grant Decl. ¶ 7, Exs. 6, 7; Choi
Decl. Ex. 2 (Grant Dep.) 76:17-77:12.
that day, Mr. Tefft and Mr. Grant learned that Plaintiff had
also used the Pro Card for personal charges, Choi Decl.
(Grant Dep.) 81:12-82:11, 103:12-104:13, 105:24-107:5; Choi
Decl. Ex. 3 (Nobles Dep.) 71:12-72:24, including a massage
and multiple meals, Choi Decl. Ex. 2 (Grant Dep.) 104:8-13;
Grant Decl. ¶ 7, Ex. 6. After adding these charges to
the amount Plaintiff was to repay to UPS, Plaintiff entered a
repayment plan by which a sum would be withheld from his
monthly paychecks. Grant Decl. ¶ 7, Ex. 7.
9, 2016, Plaintiff asked Mr. Grant to review his expense
reports for January through April 2016. Randall Decl. ¶
60. When he did not receive a response that day, he submitted
them to Mr. Nobles, who told Plaintiff he had approved the
report. Id. After reviewing the reports, Mr. Bond
emailed Mr. Grant, Mr. Coy, and Mr. Brandon noting certain
personal medical expenses, duplicative fuel and mileage
charges, and other suspicious transportation expenses. Grant
Decl. ¶ 9, Ex. 9; Choi Decl. Ex. 1 (Randall Dep.)
67:14-69:23. Mr. Grant, who replaced Mr. Tefft as Human
Resources Director for the Northwest District in March, met
with Plaintiff, Mr. Brandon, and Mr. Coy on May 19, 2016, to
discuss these expenses. Grant Decl. ¶¶ 1, 10; Choi
Decl. Ex. 2 (Grant Dep.) 47:15-49:11. They also discussed a
November 2015 charge for a meal at a local taqueria with a
co-worker that, contrary to Plaintiff's prior statements,
had involved the purchase of alcoholic beverages outside of
business hours. Grant Decl. ¶ 10, Ex. 10; Choi Decl. Ex.
6 (Coy Dep.) 44:2-46:24. Plaintiff again signed a written
statement acknowledging these violations. Grant Decl. ¶
11, Ex. 11.
5 or 6, Mr. Grant decided to terminate Plaintiff's
employment. Choi Decl. Ex. 2 (Grant Dep.) 67:16-68:13. On
June 7-the day of Plaintiff's termination-Mr. Grant
conferred with Mr. Nobles about this decision prior to
meeting with Plaintiff. Id. at 18:4-20:13; Choi
Decl. Ex. 3 (Nobles Dep.) 98:11-99:16. Mr. Grant and Mr.
Nobles allegedly decided to terminate Plaintiff's
employment because of the repeated violations of UPS's
expense policies. Choi Decl. Ex. 2 (Grant Dep.) 18:4-20:13.
Specifically, Mr. Grant testified that Plaintiff's
duplicative fuel and mileage reimbursement drove his decision
to terminate Plaintiff. Id. at 22:2-13, 27:19-
28:15. They met with Plaintiff in The Dalles to inform him
that he was being terminated. Choi Decl. Ex. 1 (Randall Dep.)
200:17-201:1. Plaintiff resigned via email later that day.
Grant Decl. ¶ 12, Ex. 12. Mr. Grant testified that only
Mr. Nobles had input in the termination decision, Choi Decl.
Ex. 2 (Grant Dep.) 19:4-23, but Mr. Bond testified that he
provided input to managers, including Mr. Brandon and Mr.
Tefft, regarding the decision to terminate Plaintiff, Snyder
Decl. Ex. C (Bond Dep.) 16:10-25. Plaintiff was replaced by a
Caucasian employee. Id. at 83:5-9.
issues with his expense report, some evidence suggests
Plaintiff performed his job at The Dalles Center well.
Brianne Kinder, a part-time supervisor at the Center, and Mr.
Taylor testified that while Plaintiff was a supervisor there
was no increase in any misloads or other performance problems
at The Dalles Center. Snyder Decl. Ex. E (Kinder Dep.)
12:22-13:3, ECF 40-1; Snyder Decl. Ex. I (Taylor Dep.)
31:21-24, ECF 40-2. Mr. Bond testified that overall
performance worsened but did not attribute any increase in
misloads to Plaintiff. Snyder Decl. Ex. C (Bond Dep.)
48:17-49:2, 50:1-4, 63:6-13. Plaintiff alleges he was told he
and Mr. Nobles were going to receive an award for improved
budgeting at the Center. Randall Decl. ¶ 40. He also
alleges that performance issues worsened while he was on paid
leave in February and March of 2016. Id. at ¶
53. Despite issues with Plaintiff's performance in
training, Mr. Grant allegedly told Plaintiff he had been
performing well at the Center. Id. at ¶ 65.
Alleged Incidents of Discrimination and Harassment
long after he started working in The Dalles, Plaintiff
alleges the harassment and discrimination began. In September
of 2015, Ms. Kinder sent a text message to Plaintiff that
stated he could “fuck her from behind and pull her
hair.” Choi Decl. Ex. 1 (Randall Dep.) 137:19-138:11.
After reporting this text message to Mr. Nobles, Mr. Nobles
asked Plaintiff if he was having a relationship with Ms.
Kinder. Randall Decl. ¶ 28. Human resources never
contacted Plaintiff about the text message. Id. at
¶ 28. But Plaintiff and Mr. Nobles met with Ms. Kinder
the day after he received it to discuss it. Choi Decl. Ex. 1
(Randall Dep.) 138:12-25. Ms. Kinder explained that an
ex-boyfriend had taken her phone while visiting their
children and sent inappropriate messages to many of her
contacts, including Plaintiff. Choi Decl. Ex. 1 (Randall
Dep.) 138:12-25; Choi Decl. Ex. 7 (Kinder Dep.) 23:23-29:9,
asserts that he did not believe her explanation. Randall
Decl. ¶ 28. But Mr. Nobles testified that Plaintiff
conveyed he was satisfied with this explanation and
determined they did not need involve human resources. Choi
Decl. Ex. 3 (Nobles Dep.) 43:12-45:16, 47:6- 48:5. Plaintiff
also asserts that he told Mr. Tefft and Mr. Grant about the
text message on October 1, 2015, and Mr. Tefft acted like
Plaintiff “was at fault.” Randall Decl. ¶
31. After Plaintiff's termination, Debbie Bozich, a human
resources employee, interviewed Ms. Kinder about the text
message when it was brought it to her attention. Snyder Decl.
Ex. E (Kinder Dep.) 29:18-30:6.
Kinder also allegedly opened personal mail directed at
Plaintiff. Randall Decl. ¶ 19. After opening a thank you
letter from a friend, Plaintiff recalls Ms. Kinder accusing
Plaintiff of having an affair. Id. Ms. Kinder also
believed that her co-worker Tiffany Barrett was having a
sexual relationship with Plaintiff. Snyder Decl. Ex. E
(Kinder Dep.) 18:23-25, 23:17-22.
October 1, 2015, Plaintiff received a text message from Ms.
Barrett, another female supervisor at The Dalles Center.
Compl. ¶ 23. In the text message, Ms. Barrett expressed
frustration with Plaintiff and work, stating in relevant
Do you also know I went straight to the bar and just balled
my fucking eyes out for the 1st time bc of that fucking job.
When you don't communicate With me or seven [sic] give me
a fuck you back it really drives me up a wall at times
I'm gonna need guidance. My anxiety right now is
fucking off the charts bc your black [emoji] no but
really you wanna sit and listen to me about drivers and
listen to what I hear.
Decl. ¶ 11, Ex. 10 (emphasis added). Plaintiff alleges
that he reported the text message to Mr. Nobles. Choi Decl.
Ex. 1 (Randall Dep.) 144:15-23. Plaintiff testified that Mr.
Nobles spoke with Ms. Barrett about it. Id. at
144:23-146:6. But Ms. Barrett testified that neither Mr.
Nobles nor anyone from human resources ever talked to her
about this text. Snyder Decl. Ex. D (Barrett Dep.)
also alleges that Ms. Barrett went over his head and spoke
with Mr. Nobles directly when given work instructions by
Plaintiff, and that he considered this conduct to be
discriminatory in nature. Choi Decl. Ex. 1 (Randall Dep.)
146:24-147:14. Ms. Barrett testified that she did so because
she was hired by Mr. Nobles and did ...