Date: 12-06-2024

Case Style:

Tahvio Gratton v. United Parcel Service

Case Number: 1:22-CV-03149

Judge: Thomas Rice

Court: United States District Court for the Eastern District of Washington (Yakima County)

Plaintiff's Attorney:

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Defendant's Attorney: Blaine H. Evanson, Elizabeth A. Falcone, Florence A. Mao, Kimberly A. Holdiman, Madeleine F. McKenna, Michael D. Mitchell, Min Soo Kim, Theane Evangelis, Anne Reuben, Anne Reuben, John Patrick Dowdle

Description:

Yakima, Washington civil rights lawyers represented the Plaintiff who sued the Defendant on a job discrimination (race) theory.

Tahvio Gratton, who is African-American, claimed that he was fired in retaliation after he filed a complaint with United Parcel Service.

The facts according to Judge Rice:

"In September 2016, Plaintiff began working for Defendant as a package car cover driver at Defendant's Seattle, Washington distribution center. ECF No. 54 at 2, ¶ 1. As a cover driver, Plaintiff's primary responsibility was to cover the shifts of drivers with regular routes who were out for the day. Id. at 3, ¶ 9. Two years into his tenure at UPS, Plaintiff relocated to Yakima, Washington, and began working at Defendant's facility there. ECF Nos. 54 at 3, ¶ 4; 52 at 3. At both locations, the parties' employment relationship was governed by the terms of a National Master Collective Bargaining Agreement (Master CBA) and the Western Supplemental Agreement (Supplement) (collectively, the CBA) negotiated by the International Brotherhood of Teamsters Union (Union). ECF Nos. 53 at 3; 54 at 2, ¶ 2; 55-1 at 302. As is pertinent here, the CBA outlines grievance procedures for employees raising workplace issues as well as for processing discharges, suspensions, and terminations. ECF No. 55-1 at 519-27.

Tensions began to arise between Plaintiff and Defendant shortly after Plaintiff's transfer to the Yakima center. On April 20, 2018, Plaintiff filed a grievance with the Union asserting that he had been “laid off”on multiple occasions without advance notice and in violation of his contractual guarantee to work a certain number of hours. ECF No. 68-1 at 9. Plaintiff argues that he was frequently laid off in favor of white drivers with less seniority than him. ECF Nos. 66 at 2; 68-1 at 13. Defendant, on the other hand, maintains that Plaintiff was laid off because shifts for cover drivers were assigned based on seniority, and Plaintiff was more junior due to his recent transfer. ECF No. 53 at 3-4. Defendant also states that it only offered lower-ranked white drivers work over Plaintiff on a layoff day when Plaintiff failed to respond to Defendant's calls and text messages asking him to come in. ECF Nos. 75 at 5-6; 67 at 2; 55-1 at 176. Plaintiff disputes that he was unresponsive to Defendant. Id. Regardless, as a result of the grievance, Defendant was required to begin posting a regular schedule that notified drivers of upcoming lay-off days, and Plaintiff received back wages for the hours he missed. ECF Nos. 55-1 at 174; 75 at 4.

Cover drivers are assigned shifts based on seniority, and may be “laid off” on days they are otherwise scheduled to work based on the schedules of other drivers with regularly assigned routes and the volume of packages. ECF No. 54 at 3, ¶¶ 7-8.

On April 25, 2018, about one week after the filing of the initial grievance, On-Road Supervisor Sam O'Rourke accompanied Plaintiff on a ride-along observation. ECF No. 54 at 4, ¶ 14; 67 at 3. Throughout the trip, Mr. O'Rourke repeatedly referred to Plaintiff as “boy,” saying things like, “[m]ove faster boy” and “[l]et's get going boy, let's move.” ECF No. 52-2 at 12-13; 32, ¶¶ 12-14. When Plaintiff greeted a customer he normally talked with as he unloaded his truck, Mr. O'Rourke said, “I didn't tell you to talk, boy.” ECF No. 52-2 at 32, ¶ 12; 33, ¶ 19. When Plaintiff asked O'Rourke to stop referring to him as boy, Mr. O'Rourke allegedly refused. ECF No. 52-2 at 43. Both Plaintiff and a customer who witnessed a portion of this exchange were offended by the racial undertones of O'Rourke's speech.

Plaintiff reported O'Rourke's conduct to Yakima Center Manager Erik Loomis the following morning. ECF Nos. 68-1 at 15, 69-1 at 3, ¶ 7. Mr. Loomis appeared unconcerned and simply replied, “That's just the way Sam talks.” ECF No. 69-1 at 3, ¶ 7. Nevertheless, Mr. Loomis later conceded that Mr. O'Rourke's language could “definitely . . . be perceived” as racist or derogatory, although he did not believe that Mr. O'Rourke intended for it to be taken as such. ECF Nos. 52-2 at 40; 55-1 at 125. Mr. Loomis claims that he had an informal discussion with Mr. O'Rourke and counseled him not to use the word “boy” in reference to Plaintiff again. ECF No. 55-1 at 125-28.

Plaintiff avers that Yakima supervisors retaliated against him after his report to Mr. Loomis. ECF No. 66 at 3. Specifically, Plaintiff claims that Mr. Loomis and Plaintiff's direct supervisor, Matthew Fromherz-a friend of Mr. O'Rourke's-began verbally abusing him and denying him work. Id.; ECF No. 68-1 at 145. In one incident, Plaintiff recounts that he approached Mr. Fromherz regarding a series of recent layoffs and asked why he wasn't being put on schedule despite there being work to do. ECF No. 68-1 at 17. In apparent reference to Mr. O'Rourke's earlier “boy” comments, Mr. Fromherz reportedly replied, “Because you didn't come and ask me like a man.” Id. Mr. Fromherz denies that this happened. ECF No. 5-2 at 120. Another time, Plaintiff states that he came to work on a day off to collect a package, as he regularly did, and that Mr. Fromherz yelled at him to “[g]et the fuck off the property” after learning he was not there for work purposes. ECF Nos. 66 at 3; 68-1 at 15. Mr. Fromherz disputes this occurred as Plaintiff describes, claiming that Plaintiff was interfering with a delivery. ECF No. 55-1 at 179-80. Plaintiff reported these incidents to Mr. Loomis, who allegedly failed to take corrective action. Id. Therefore, in June 2018, Plaintiff grieved these concerns to the Union. ECF No. 54 at 4-5, ¶¶ 16-17; 55-1 at 68, 216.

Plaintiff alleges that after he filed grievances in June 2018, his supervisors began searching for reasons to fire him. He provides a record retained by his supervisors of formal discussions they had with him, which documents issues such as taking a 27- or 29-minute lunch instead of the full 30-minute time allotted and failing to respond to a request to come in on days where he had been previously informed he was laid off. ECF No. 68-1 at 166-67. One supervisor, Michelle Reyes, declared that she was present on multiple occasions where Mr. Fromherz and Mr. Loomis discussed their desire to “get rid” of Plaintiff. ECF No. 68-1 at 4, ¶ 6; but see id. at 116-17 (Mr. Loomis averring that it was possible he mentioned it would “be better” if Plaintiff were gone, but that he did not directly express that he wanted to fire Plaintiff). Another employee, Lisa Irvine, witnessed the same thing. ECF No. 52-2 at 128. Plaintiff also claims that he was berated for having visible tattoos in violation of the dress code where other white drivers were not. ECF No. 68-1 at 14, 70. Mr. Loomis disputes this and says that white employees were corrected on an equal basis for dress code infractions. ECF No. 73 at 7.

In October 2018, Plaintiff assumed the position of “bid driver,” meaning he had a regular daily route that he drove each day and no longer had to cover for others. ECF No. 52-2 at 23. However, Plaintiff asserts that he was only able to bid for the “mall route,” which was the bulkiest and least desirable route, because Mr. Loomis refused to teach him any other route. Id. at 24. Plaintiff also claims that, on the one occasion where Mr. Loomis offered Plaintiff the opportunity to learn an alternative open route, Mr. Loomis informed Plaintiff that he would have to learn the route from Mr. O'Rourke. Id. at 23-24. Plaintiff refused to do another ride- along with Mr. O'Rourke. Id. Plaintiff believes that Mr. Loomis convinced Brandon Ward, a driver with more seniority than Plaintiff, to bid on the mall route so Plaintiff would not get it, but that Mr. Ward eventually took his name off the list and Plaintiff was awarded the route by default. ECF Nos. 52-2 at 60; 68-1 at 4344. On October 19, 2018, Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), alleging that he had been discriminated against and harassed on the basis of race, and that he had been retaliated against for complaining about such conduct. ECF No. 52-2 at 62.

After acquiring the mall route, Plaintiff alleges that his supervisors conspired to make his job more challenging. Ms. Reyes purportedly overheard Mr. Loomis and Mr. Fromherz planning to “pile the work on [Plaintiff]” and to add stops to his route that were out of the way. ECF No. 52-2 at 67, ¶¶ 9-10. Plaintiff also presses that he was burdened with the worst truck, known among the drivers as the “death truck,” which slowed his delivery time. ECF Nos. 69-1 at 4-5, ¶ 16; 66 at 5.

Oppositely, Mr. Fromherz testified at his deposition that extra stops were added to the route, not the individual driver, and that there was no racial motive behind adding stops to Plaintiff's route. ECF No. 55-1 at 188, 190. More frequently, Mr. Fromherz stated, other drivers were forced to help Plaintiff because he took longer to complete his route. Id. at 187.

Plaintiff states that these issues continued throughout his employment at the Yakima center. In one grievance dated June 11, 2020, Plaintiff alleged that Mr. Loomis racially discriminated against him because he told Plaintiff that he could only count the number of pre-packed bags (as opposed to individual packages), towards his production quota. ECF No. 55-1 at 85-86. Plaintiff reported that a white driver was allowed to count the number of packages instead of the number of bags towards his production quota. ECF No. 55-1 at 85-86. Defendant, however, states that it is UPS policy to count the number of pre-packed bags, not individual packages; that the white employee's package count was in fact changed to comply with said policy; and that the white employee did not receive any bonus. ECF No. 54 at 7-8, ¶¶ 32, 34-35.

Approximately six months later, in January 2021, Plaintiff grieved “[c]ontinuous harassment and retaliation” from Mr. Loomis, stating, “Erik Loomis has gone out of his way to make my job harder than it has to be . . . [by] overloading my route, giving me a worse truck, and instructing supervisors to comply with his malicious efforts to retaliate against me.” ECF No. 55-1 at 97-98. He further added that he was working overtime and that Mr. Loomis was retaliating against him for assuming the position of Union shop steward and helping other black employees file grievances. Id.; see infra Background II. (discussing grievances by other black drivers). In a related grievance filed eight months later, in September 2021, Plaintiff wrote that management favored certain drivers and that his route was being manipulated to make him appear like a slow driver. Id. at 101. Plaintiff also testified that Mr. Loomis frequently withheld his checks and that he had to file grievances for withheld wages. ECF No. 68-1 at 25, 54.

In response to Plaintiff's complaint regarding Mr. Loomis, Karl Leyert, a labor manager for Defendant, began investigating Plaintiff's grievance. ECF Nos. 55-1 at 199; 68-6 at 8-9. Mr. Leyert determined that Mr. Loomis's actions were not the product of racial bias, but instead the result of neutral application of UPS policy. ECF No. 55-1 at 199. For example, regarding Plaintiff's complaint about being assigned the “death truck,” Mr. Leyert explained that UPS “switch[es] trucks based off the route and the need of the vehicle,” rather than the individual, and that therefore the fact that Plaintiff switched routes meant he had a different truck. Id. at 199-200. However, Mr. Leyert admitted that he did not interview Plaintiff or the two references Plaintiff listed on his grievance. See 55-1 at 98; 200. In general, Mr. Leyert felt that “there was no merit to a lot of [Plaintiff's] claims.” ECF No. 68-6 at 23."

Outcome: Plaintiff's verdict for $198 million reduced to $39.6 million.

Plaintiff's Experts:

Defendant's Experts:

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