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Jackson v. United Parcel Service, Inc.: EMPLOYMENT - undone (rescinded) adverse employment action & settlement left no adverse action

1The Honorable G. Thomas Eisele, United States District Judge for the Eastern
District of Arkansas.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1343
___________
Jeanette Jackson, *
*
Appellant, **
Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
United Parcel Service, Inc., *
*
Appellee. *
___________
Submitted: September 26, 2008
Filed: December 4, 2008
___________
Before BYE, BEAM, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Jeanette Jackson brought this suit against United Parcel Service, Inc. (UPS)
alleging race and gender discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and 42 U.S.C.
1981. Following discovery, the district court1 granted UPSs motion for summary
judgment and dismissed the case with prejudice. We affirm.
-2-
I.
UPS has employed Jackson on an hourly basis since 1985. Jackson is a
member of a bargaining unit represented by the International Brotherhood of
Teamsters (Teamsters), and her employment is governed by a collective bargaining
agreement (CBA) between the Teamsters and UPS that includes a formal grievance
process for employees to challenge employment decisions. In May 2006, Jackson
used her seniority to obtain a higher paying position as a feeder driver, which
involves driving a feeder (tractor-trailer) full of packages to pick-up points and
customer locations. After completing an 80-hour training program, Jackson began
working as a feeder driver on June 7, 2006. The next day, Jackson caused an accident
in which she damaged another tractor-trailer. After taking a planned one-week
vacation, Jackson contacted her feeder manager, Paul Hall, about reporting back to
work. Paul Hall informed Jackson that he and Cedric Williams, the District Labor
Manager, had decided to disqualify her as a feeder driver because of the accident.
Paul Hall instructed her to report to her previous position as an air shuttle driver,
which she did.
Jackson filed a grievance against UPS pursuant to the CBA on June 19, 2006,
asking that UPS reinstate her as a feeder driver and award her full back pay for the
difference in salary between the air shuttle and feeder driver positions. Jackson also
filed a charge of discrimination on the basis of race, gender, and retaliation with the
Equal Employment Opportunity Commission (EEOC) on June 27, 2006. Jackson
had filed two previous EEOC charges on July 15, 2004, and December 8, 2005,
alleging unrelated instances of discrimination by UPS. Paul Hall and Williams were
not aware that Jackson had filed these previous EEOC charges when they decided to
disqualify her as a feeder driver.
Shortly after the disqualification decision, Naaman Kelly, the on-road feeder
supervisor, informed Paul Hall that, pursuant to company policy regarding driving
-3-
accidents, Jackson should not have been disqualified. Kelly also spoke with Durrell
Hall, the Labor Manager, who agreed that the disqualification decision was in error.
Durrell Hall then received clearance from Williams and Todd Hyden, the Division
Manager, to reinstate Jackson as a feeder driver. However, before Jackson could be
reinstated, Durrell Hall received notice from the EEOC of Jacksons discrimination
charge. Durrell Hall informed Kelly that he had to retract everything they had
planned to do, and because Plaintiff filed an EEOC charge, it was out of his hands
and became a human resources decision.
Pursuant to the CBA, UPS and the Teamsters held a local hearing regarding
Jacksons grievance on July 28, 2006. The parties did not reach a settlement at the
local level. The next step in the grievance process was a hearing before a review
committee comprised of UPS and Teamsters representatives known as the panel.
The panel had a meeting scheduled for August 2006 in Nashville, Tennessee, during
which it could have heard Jacksons grievance. However, Jackson elected to wait
until the panels September 2006 meeting in Little Rock, Arkansas. The day before
the September meeting, the parties reached a settlement in which UPS reinstated
Jackson as a feeder driver as of September 26, 2006, and awarded her full back pay.
As a result of the settlement, Jackson lost no pay, seniority, or any other employment
benefit due to the disqualification decision.
Jackson received her right to sue letter from the EEOC on December 27,
2006, and filed the present action in federal district court on March 26, 2007.
Following discovery, UPS filed a motion for summary judgment. The district court
granted summary judgment for UPS and dismissed the case with prejudice. The court
held that Jackson failed to establish a prima facie case for either her disparate
treatment claim or her retaliation claim because she did not suffer an adverse
employment action. Jackson brings this appeal.
-4-
II.
We review a district courts grant of summary judgment de novo. Buboltz
v. Residential Advantages, Inc., 523 F.3d 864, 867 (8th Cir. 2008). In doing so, we
apply the same standard as the district court, viewing the evidence in the light most
favorable to the nonmoving party and giving that party the benefit of all inferences
that may reasonably be drawn. Id. at 867-68. Summary judgment should be granted
if there is no genuine issue as to any material fact and [] the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c).
A. Disparate Treatment
Jackson alleges that UPS discriminated against her on the basis of race and
gender when it disqualified her from her position as a feeder driver. Because Jackson
did not present any direct evidence of discrimination, she must create[] an
inference of unlawful discrimination under the burden-shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) in order to survive a
motion for summary judgment. McGinnis v. Union Pac. R.R., 496 F.3d 868, 873 (8th
Cir. 2007). Under this framework, the plaintiff bears the burden of establishing a
prima facie case of discrimination. Id. To meet this burden, Jackson must show that
(1) she is a member of a protected class, (2) she was meeting her employers
legitimate job expectations, (3) she suffered an adverse employment action, and (4)
similarly situated employees outside the protected class were treated differently.
Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir. 2005) (quotation omitted).
Therefore, to survive summary judgment, Jackson must establish that UPSs initial
disqualification decision constituted an adverse employment action. See McGinnis,
496 F.3d at 873; Shanklin, 397 F.3d at 602. UPS contends that Jackson did not suffer
an adverse employment action because it reversed its disqualification decision and
reinstated Jackson with full back pay and no loss of seniority or any other employment
benefit. UPS emphasizes that, even during her period of disqualification, Jackson
-5-
performed her prior work as a shuttle driver. Jackson argues that UPSs initial
disqualification decision constituted an adverse employment action and alleges that
she experienced depression and anxiety as a result of that decision.
This court has held that a demotion or denial of a promotion, even when
accompanied by a loss in pay, is not an adverse employment action when it is
corrected in a timely manner. See Fair v. Norris, 480 F.3d 865, 870 (8th Cir. 2007);
Tatum v. City of Berkeley, 408 F.3d 543, 553 (8th Cir. 2005); Carpenter v. Northwest
Airlines, Inc., 47 F. Appx 424, 426 (8th Cir. 2002) (per curiam) (unpublished). In
Fair, the plaintiff was denied a promotion when the Arkansas Department of
Corrections (ADC) failed, in error, to give her credit for her masters degree. 480
F.3d at 867. As a result, Fair was eliminated from consideration for promotion. Id.
After Fair filed a grievance, ADC discovered its mistake and offered her the
promotion and a raise retroactive to the date on which ADC would have promoted her
absent the mistake. Id. at 867-68. Fair declined the position, asserting that the raise
was inadequate, and filed a complaint alleging racial discrimination. Id. 868-69. The
district court dismissed the complaint. Id. at 869.
We affirmed the dismissal of Fairs complaint because she did not suffer an
adverse employment action. Id. at 870. We acknowledged that Fair was initially
rejected for the position and that [h]ad the ADC not taken corrective action and
offered Fair the job after reviewing her grievance, she may have been able to present
a prima facie case of discrimination. Id. However, the ADC acted upon th[e]
grievance . . . and attempted to right its prior wrong, which was the kind of
extrajudicial corrective action envisioned by Congress when it passed Title VII. Id.
In rejecting Fairs contention that she should not have had to file a grievance to
receive the promotion, we noted that [o]nly twenty-two days lapsed between the
filing of Fairs grievance and the ADCs offer of the promotion, an offer that included
retroactive pay and benefits. Id. [T]his delay amounted to no more than a mere
inconvenience and [did] not give rise to an actionable Title VII claim. Id.
-6-
In the present case, UPS recognized its mistake, took corrective action, and
reinstated Jackson with full back pay and no loss of seniority or any other employment
benefit. During her three-month period of disqualification, Jackson performed her
prior work as a shuttle driver and was compensated accordingly. The only damages
that might remain are interest on Jacksons back pay and stress that Jackson alleges
accompanied her disqualification. This court has consistently held that [an] adverse
employment action must be one that produces a material employment disadvantage.
Kerns v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir. 1999) (emphasis added)
(quotation omitted). The small amount of interest Jackson might recover does not
constitute a material disadvantage. This finding is bolstered by the fact that Jackson
voluntarily postponed her grievance hearing, perhaps prolonging by a month the
period during which she received less pay. Furthermore, Jacksons nonspecific claim
of emotional distress does not transform UPSs disqualification decision into an
adverse employment action. In Forshee v. Waterloo Indus., Inc., 178 F.3d 527 (8th
Cir. 1999), this court held that a plaintiff must present competent evidence of genuine
injury to recover for emotional distress in a discrimination case. Id. at 531 (quotation
omitted). Jackson has failed to present such competent evidence in this case.
We hold that Jackson failed to establish a prima facie case of race or gender
discrimination because UPSs initial disqualification decision did not constitute an
adverse employment action. See Fair, 480 F.3d at 870; Tatum, 408 F.3d at 553;
Carpenter, 47 F. Appx at 426. The facts of this case, viewed in the light most
favorable to Jackson, simply do not establish a material employment disadvantage.
Kerns, 178 F.3d at 1016 (emphasis added) (quotation omitted). Jacksons
disqualification period was no more than a mere inconvenience and does not give
rise to an actionable claim for discrimination. Fair, 480 F.3d at 870. Therefore, the
district court properly granted UPSs motion for summary judgment on Jacksons
disparate treatment claim. See McGinnis, 496 F.3d at 873.
-7-
In so holding, we do not find that rescinding a prior employment action will
always shield an employer from liability. Such a broad rule would permit employers
to escape Title VII liability merely by correcting their discriminatory acts after a
significant amount of time has passed or only when litigation has been threatened.
See Crawford v. Carroll, 529 F.3d 961, 972 (11th Cir. 2008). However, holding that
corrective action never protects an employer from liability might create equally
perverse incentives. If we allow Jacksons claim to proceed in the present case, we
would undermine UPSs formal grievance process. Indeed, if an employer could be
sued for discrimination even after promptly correcting an alleged wrong, there would
be little incentive for the kind of extrajudicial corrective action envisioned by
Congress when it passed Title VII. Fair, 480 F.3d at 870. Therefore, because UPS
promptly reinstated Jackson with full back pay and seniority, its initial disqualification
decision was not an adverse employment action.
B. Retaliation
Jackson alleges that UPSs decision to disqualify her as a feeder driver
constituted retaliation against her for filing EEOC charges against the company.
Indeed, Jackson filed EEOC charges on July 15, 2004, and December 5, 2005, for
alleged acts of discrimination unrelated to this case. On June 27, 2006, she filed the
EEOC charge on which this lawsuit is based. Title VII prohibits retaliation against
an employee who files charges of discrimination . . . . Thompson v. Bi-State Dev.
Agency, 463 F.3d 821, 826 (8th Cir. 2006); accord 42 U.S.C. 2000e-3(a). Because
Jackson presented no direct evidence of retaliation, we apply the burden-shifting
analysis established in McDonnell Douglas, 411 U.S. 792. Kasper v. Federated Mut.
Ins. Co., 425 F.3d 496, 502 (8th Cir. 2005). Therefore, the plaintiff first must
demonstrate a prima facie case of retaliation to survive summary judgment. Id. To
meet this burden, Jackson must show that (1) she engaged in a protected activity, (2)
she suffered an adverse employment action, and (3) [there was] a causal connection
between the protected activity and the adverse employment action. Id.
2 The district court did not address whether Jackson established the requisite
causal connection. However, [t]his court may affirm the judgment of the district
court on any basis supported by the record. Moore v. Forrest City Sch. Dist., 524
F.3d 879, 885 (8th Cir. 2008).
-8-
To establish an adverse employment action in the context of her retaliation
claim, Jackson must demonstrate that a reasonable employee would have found UPSs
actions materially adverse, meaning they well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination. Higgins v. Gonzales,
481 F.3d 578, 589 (8th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)). UPS intended to reinstate Jackson as a feeder driver
within a few weeks of her disqualification. However, upon learning of her June 2006
EEOC charge, UPS decided to postpone Jacksons reinstatement and let the
companys grievance process play out. After the grievance process, UPS promptly
reinstated Jackson with full back pay and seniority. Even during her brief period of
disqualification, she performed her prior work as a shuttle driver and was
compensated accordingly. In light of these facts, UPSs actions would not have
dissuaded a reasonable worker from making or supporting a charge of
discrimination. Id. (quoting Burlington N., 548 U.S. at 68). We hold that Jackson
failed to establish a prima facie case of retaliation with respect to her June 2006 EEOC
charge because UPSs actions were not materially adverse. See id.
We need not decide whether UPSs actions were materially adverse with respect
to Jacksons July 2004 and December 2005 EEOC charges because she failed to
establish a causal connection between those charges and UPSs disqualification
decision.2 To establish a causal connection, Jackson must demonstrate that UPS had
actual or constructive knowledge of her previous EEOC charges. See Buettner v.
Arch Coal Sales Co., Inc., 216 F.3d 707, 715 (8th Cir. 2000). [A] causal link does
not exist if the employer is not aware of the employees statutorily protected activity.
Wolff v. Berkley Inc., 938 F.2d 100, 103 (8th Cir. 1991). The record clearly shows
that the decision makersPaul Hall and Cedric Williamswere not aware that Jackson
-9-
had filed two previous EEOC charges when they decided to disqualify her as a feeder
driver on June 16, 2006. Therefore, as a matter of law, Jackson cannot establish a
causal connection between those EEOC charges and UPSs disqualification decision.
See Buettner, 216 F.3d at 715; Wolff, 938 F.2d at 103. Jackson thus failed to
establish a prima facie case of retaliation with respect to any of her EEOC charges,
and the district court properly granted UPSs motion for summary judgment. See
Kasper, 425 F.3d at 502.
III.
Accordingly, we affirm the judgment of the district court.
______________________________
 

 
 
 

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