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Randall v. United Parcel Service, Inc.

United States District Court, D. Oregon

October 12, 2018


          Daniel Snyder Carl Post John Burgess LAW OFFICES OF DANIEL SNYDER Attorneys for Plaintiff

          Calvin L. Keith Cody M. Weston Edward Choi PERKINS COIE LLP Attorneys for Defendant

          OPINION & ORDER


         Plaintiff 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.


         Plaintiff 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.

         The 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.) 39:9-21.

         Plaintiff 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.

         I. Issues with Personal Expenses

          In 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.

         On 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 Dep.) 21:10-22:25.

         In a 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.

         In 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.

         According 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.

         On 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 45:10-15.

         On 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.

         Later 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.

         On May 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.

         On June 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.

         Despite 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.

         II. Alleged Incidents of Discrimination and Harassment

          Not 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, ECF 34-7.

         Plaintiff 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.

         Ms. 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.

         On 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 part:

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.

         Choi 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.) 30:25-31:8.

         Plaintiff 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 ...

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