Nelson v. United Parcel Service, Inc. ( 2009 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance
with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2009
Decided July 15, 2009
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08-4042
Appeal from the United States District
ROSS L. NELSON, Court for the Northern District of Illinois,
Plaintiff-Appellant, Eastern Division.
v. No. 06 C 1428
UNITED PARCEL SERVICE, INC., Rebecca R. Pallmeyer,
Defendant-Appellee. Judge.
ORDER
Ross Nelson, a 52-year-old black man, sued United Parcel Service for firing him on
the basis of his race and age in violation of Title VII of the Civil Rights Act and the Age
Discrimination Act. See 42 U.S.C. §§ 2000e et seq. and 29 U.S.C. §§ 621 et seq. The district
court granted summary judgment in favor of UPS and we affirm.
Nelson had been a part-time employee of UPS and a member of Teamsters Local 705
Union for five years when in the summer of 2005, he became a seasonal package car driver.
No. 08-4042 Page 2
UPS’s summer season runs from Easter through the Friday after Labor Day, and UPS
temporarily promotes part-time employees during its summer season to cover for full-time
drivers who are on vacation. Nelson trained for two weeks before working as a driver in
the Naperville Center, but after complaining that he did not have the opportunity to work
enough hours, he succeeded in transferring to UPS’s facility in Palatine, Illinois, where
Krystin Krause was the manager. While working at the Palatine Center, Nelson regularly
misdelivered packages, and UPS supervisors had to ride with him nine times to help him
improve his performance.
At the end of the summer season, Krause met with Nelson and a union
representative and informed Nelson that UPS was transferring him back to a part-time
position. Nelson believed that the collective-bargaining agreement entitled him to seniority
as a driver, and so during the meeting, Krause and the union representative called Tom
Haefke, the UPS District Labor Relations Manager, for clarification. Haefke told Nelson
that his part-time position was the only one available to him, and if he refused it, he would
be terminated. Nelson nonetheless insisted on seniority and the full-time position; he
refused the part-time job. As predicted, Haefke terminated him. Nelson then filed a
grievance with his union claiming that UPS fired him on the basis of his age and race, but
the union ultimately decided not to pursue the grievance.
Nelson then sued UPS for age and racial discrimination. Nelson claimed that while
working at the Palatine facility, Krause referred to him as “Old Silver” nearly every other
day and that his division manager, Waring Lester, informed him that Krause and other
supervisors had said he was too old and slow for the job. According to Nelson, Lester told
him that the supervisor’s remarks were motivated by racism. Nelson also alleged that after
the meeting where he was told he would be terminated if he did not accept his part-time
job, he overheard Krause say, “we are going to fire that nigger today.” UPS filed for
summary judgment and included affidavits provided by Lester disputing these claims.
Krause, who had since left UPS and could not be located, did not provide an affidavit.
The district judge granted UPS’s motion for summary judgment. The judge
concluded that Nelson had failed to show discrimination under either the direct or indirect
method of proof. The judge reasoned that Krause’s alleged comments regarding Nelson’s
age were insufficient to create a “convincing mosaic” supporting a circumstantial case of
discrimination under the direct method, and that Krause’s alleged comment that she
intended to “fire that nigger today” was not relevant because it was uttered after UPS had
decided to fire Nelson. As for the indirect case, the judge concluded that Nelson had failed
to identify any similarly situated employees who were treated more favorably.
No. 08-4042 Page 3
On appeal Nelson argues that the district court should have considered Krause’s
comments about his age as direct evidence of discriminatory intent rather than part of the
“mosaic” establishing a circumstantial case. To make a noncircumstantial case under the
direct method of proof, Nelson would have to present evidence which, if believed by a jury,
would prove that UPS acted with discriminatory intent: an admission or “near admission”
that the employer’s decision was discriminatory. See Nagle v. Vill. of Calumet Park, 554 F.3d
1106, 1114 (7th Cir. 2009); Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490-91 (7th Cir.
2007). But Krause’s comments that Nelson was too old and too slow, as well as repeated
references to him as “Old Silver,” are nothing more than “stray remarks” disconnected
from the decision to terminate Nelson and do not constitute an admission that he was fired
because of his age. See Hemsworth, 476 F.3d at 491.
Nelson also argues that the district court should have considered Krause’s alleged
comment that she was going to “fire that nigger today” as direct, noncircumstantial proof
that he was fired based on his race. Although Nelson is correct that we can consider the
comment even though it was made after the decision to return Nelson to part-time work
had been made, see Nagle, 554 F.3d at 1115, it is the only evidence of discrimination on the
basis of race in the entire record. The comment, though reprehensible if indeed it was
made, proves only that Krause referred to Nelson using a racist epithet and that she
personally harbored racial animus; it does not alone prove that UPS terminated Nelson
because of his race. See Hemsworth, 476 F.3d at 491. The comment was not made by the
actual decisionmaker, Labor Relations Manager Haefke, nor was it in any way attributed or
imputed to him.
Nelson also argues that the district court erred in finding that he failed to make a
prima-facie case for discrimination under the indirect method of proof. He argues that UPS
never offered a legitimate, nondiscriminatory reason to return him to part-time work. But
UPS had to offer a nondiscriminatory reason only after Nelson made out a prima-facie case,
which Nelson never did. See Antonetti v. Abbott Labs., 563 F.3d 587, 591 (7th Cir. 2009). In
order to make out a prima-facie case for discrimination, Nelson must show that he (1) is a
member of a protected class; (2) is qualified for the position; (3) was rejected for the
position; and (4) the position was given to someone who was outside of his protected class
and was similarly or less qualified than him. Jackson v. City of Chicago, 552 F.3d 619, 622 (7th
Cir. 2009) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). As the district
court pointed out, Nelson offered no evidence to satisfy step four. Although at summary
judgment Nelson submitted the names of several employees whom he claimed were
younger than him and retained after seasonal employment, UPS provided proof that none
of those employees were retained as permanent drivers. Nelson still cannot point to any
UPS employee similarly situated to him who received better treatment than he did, and
No. 08-4042 Page 4
thus he failed to make out an indirect case for racial or age discrimination.
Finally, the parties devote considerable attention to arguing whether Nelson had
obtained seniority under the collective-bargaining agreement and was therefore “demoted”
when UPS returned him to part-time work. Because we hold that UPS is entitled to
summary judgment in any case, we need not address that question here.
AFFIRMED.