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Damon v. United Parcel Service

October 31, 2010


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Frank Damon, Jr. commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Damon subsequently filed an Amended Complaint on April 11, 2007. (Docket No. 35.) Therein, he alleges that Defendant UPS and two of its employees discriminated against him and subjected him to a hostile work environment based on his gender. Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (hereinafter, "Title VII") and the New York State Human Rights Law, N.Y. EXEC. L. §§ 290 et seq. (hereinafter, "NYHRL"). Presently before this Court is Defendants' Motion for Summary Judgment.*fn1 (Docket No. 56.) Plaintiff opposes the motion.*fn2 For the reasons stated below, Defendants' motion is granted.


A. Facts

Frank Damon, Jr. (hereinafter, "Damon") was hired by Defendant United Parcel Service (hereinafter, "UPS") on December 14, 1977. (Defendants' Stmt.,*fn3 ¶ 1.) Damon was a package car driver until February 14, 2000, when he transferred to an inside position as a "hub sorter." (Id. at ¶ 2; Damon Dep., pp. 22: 4-5.) Damon remained in a full-time hub sorter position throughout the relevant time period at issue. (Goldberg Aff., Ex. D.) His full-time shift was scheduled from 5:00 p.m. to approximately 2:00 a.m., spanning UPS's twilight shift and night shift. In contrast, part-time employees are assigned to either the twilight or night shift only. (Damon Dep. 21:15-17.)

Damon worked his twilight shift hours, from 5:00 p.m. to 10:00 p.m., in the hub's "small sort" area. (Defendants' Stmt., ¶ 4.) He typically took a lunch break before working the night shift. Damon was assigned a variety of hub sorter tasks on the night shift, including sweeping and small sort. (Damon Dep. 29:10-13.) Defendant Dawn Lewandowski (hereinafter, "Lewandowski") was Damon's supervisor in the small sort area. (Defendants' Stmt., ¶ 8.) Beginning sometime in 2000, Damon also worked on occasion in an area called the "damage cage." (Damon Dep. 11:17-19.)

In February 2001, after Damon was certified as a hazardous material acceptance auditor, his supervisor asked if he'd be willing to work in the damage cage on a nightly basis auditing haz-mat packages, re-taping damaged packages, and loading late packages onto an air trailer-work that sometimes carried into overtime. (Id. 11:20-12:22, 35:3-7, 53:15-22.) Damon accepted and began working an average of 15 to 18 overtime hours per week. (Id. 46:3-6.)

1. Disparate Treatment

For about a one month period in January and February 2002, Damon was pulled out of the damage cage and reassigned to small sort on the night shift. (Id. 46:9-11.) Damon's hourly rate of pay was not affected by this reassignment. (Defendants' Stmt., ¶ 20.) Supervisor Joe LoRusso (hereinafter, "LoRusso") advised Damon that UPS had issued orders to control hours, which Damon understood meant controlling the cost of overtime pay. (Damon Dep. 48:5-11, 49:6-9.) Part-time workers were assigned to perform the damage cage work Damon had been doing. (Id. 47:4-7.) In particular, a male part-time employee, Gary Skobjak, was assigned to the air trailer. (Id. 47:8-14.)

Damon is a member of Local 449 of the International Brotherhood of Teamsters. (Defendants' Stmt., ¶ 10.) Local 449 entered into a collective bargaining agreement (hereinafter, "CBA") with UPS, which states, in relevant part,

"Preference shall be given to employees older in service and in order of their seniority to the extra work available within their classification after he/she has completed his/her day's work provided that such employees are available at such times as the work is assigned and are qualified to perform the work required. In no event may employees displace other employees who have not completed their assignment."

(See National Master Agreement, pp. 166, Art. 57, §1, emphasis added.) Traditionally, senior employees at UPS were given the option of staying to do extra work or electing to go home. (See Opinion and Award from New York State Employment Relations Board.) Damon felt that he should have had the option to work overtime over part-time employees because of his seniority, so he wrote around 20 grievances to his union regarding his move to the small sort area. (Damon Dep. 49:22-50:6, 52:9-53:14.)

In response to Damon's grievances, a meeting was held on February 26, 2002 between Local 449 representatives and UPS. (Defendants' Stmt., ¶ 22.) In settlement of the grievance, Defendant Carol Schmaus (hereinafter, "Schmaus"), agreed to give Damon one hour's pay and proposed to assign Damon to the damage cage every night. (Id. at ¶ 23.) Even though his overtime hours would be cut back to 10 to 12 hours a week because package re-taping was being shifted to another hub area, Damon agreed to the proposal and to drop the grievances. (Damon Dep. 55:2-56:10, 57:10-15.)

Damon worked in the damage cage until January 2003, when he was again assigned to work in the small sort during his night shift hours. (Id. 69:12-16.) Nevertheless, between January 21 to February 6, Damon continued to be sent to the damage cage at the end of his regular shift to work overtime with three other males who were assigned there. (Id. 89:5-24.) On February 6, Damon was told to punch out at the end of his shift as he would no longer be going to the damage cage. (Id. 90:17-20.) Thereafter, Damon frequently requested to go to the damage cage at the end of his night shift, but was almost always turned down. (Id. 117:20-118:4.) Damon identified five female and three male part-time employees who were assigned to the damage cage after January 21, 2003. (Id. 118:12-121:20.)

At some point, two UPS supervisors advised Damon that the work reassignment was out of their hands and it was coming from two levels above them. (Id. 76:6-23.) Damon again filed several grievances under the CBA regarding his night shift reassignment and the direction that he not go to the damage cage at the end of his shift. (Id. 74:21-24, 91:18-92:3.) A meeting relative to the grievances was held on February 26, 2003. Damon was told that UPS could no longer honor the February 2002 grievance settlement because operational costs had increased and part-time employees could perform the damage cage work more cost effectively. (Id. 93:5-15.) Damon concedes that all part-time damage cage work is done at a lower hourly rate than he receives, and at straight-time pay, whereas Damon's assignment there could result in overtime pay. (Id. 48:23-49:9.)

In January of 2003, Damon was informed that his haz-mat duties would be phased out. (Defendants' Stmt., ¶ 39.) Several UPS management employees observed Damon performing his haz-mat duties and commented that he was taking longer than necessary to handle packages. (Id. at ¶ 41.) Eventually, two male employees were trained to do hazmat work and replaced Damon in 2004. (Id. at ¶ 42.) Leaving haz-mat work did not affect Damon's pay, but did reduce his opportunity for overtime hours. (Damon Dep. 9:17-22.)

2. Hostile Work Environment

Supervisor Ralph Russo, Jr. (hereinafter, "Russo") testified that UPS employees receive the company's written professional conduct and anti-harassment policy each year. (Russo Dep. 17:7.) Employees must acknowledge that they received the policy and reviewed it. (Defendants' Stmt., ¶ 44.) Damon, however, denies ever receiving a copy of the UPS policy and UPS has failed to offer proof to the contrary. (Damon Dep. 206:5.) Russo further stated that employees also receive training regarding the policy. (Russo Dep. 17:20-23.) He explained that under the company's policy, if an employee feels they are being discriminated against, they should report the incidents to their manager. (Id. 18:8-10.) The manager would then notify the Human Resources Department, who sets up a confidential meeting. (Id. 17:11; 8:12.) If an employee is uncomfortable reporting to their manager, they can call the UPS complaint hotline. (Id. 19:9-12.) Employees can find the 1-800 number posted in the building. (Damon Dep. 141:6.)

a. Allegations Against Schmaus

Despite UPS's anti-harassment policies and employee training, Damon alleges he received several hostile comments from Schmaus beginning in 2002, pertaining to his appearance and work ethic. For instance, she commented on a shirt he was wearing from Tops Market and asked if it was a place he went after work to get drunk. (Defendants' Stmt., ¶ 29.) Schmaus also criticized Damon's haircut and beard, asking how his wife put up with him looking like that. (Damon Dep. 59:4-7.) Damon felt those comments were out of line because there was no dress code or appearance code in the hub. (Id. 59:12.)

Schmaus also singled Damon out among co-workers-male and female-yelling at him to hurry up and work faster. (Defendants' Stmt., ¶ 48.) For instance, on December 19, 2003, Schmaus berated Damon for talking to a co-worker at his work station and threatened to fire him. (Damon Dep. 156:8-12.) Damon explained that he was working and that the co-worker approached him. (Id. 158:15-20) Schmaus simply walked away after confirming that Damon was re-taping envelopes, as he was instructed to do by Lewandowski. (Defendants' Stmt., ¶ 67.) No disciplinary action was taken against Damon. (Id. at ¶ 68.)

b. Allegations Against Lewandowski

Damon also has multiple complaints about his treatment by Lewandowski beginning in 2003. For instance, on December 10, 2003, Damon returned from a late lunch and was walking around the building when ...

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