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Gorecke v. United Parcel Service, Inc.

United States District Court, W.D. New York

April 1, 2014

DANIEL S. GORECKE, Plaintiff,
v.
UNITED PARCEL SERVICE, INC., Defendant.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Plaintiff Daniel Gorecke ("Gorecke" or "Plaintiff"), represented by counsel, brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), (codified at 42 U.S.C. § 2000(e), et seq.), 42 U.S.C. § 1981, and the New York State Human Rights Law ("NYSHRL") (N.Y. Exec. Law § 209, et seq.) alleging reverse discrimination leading to his termination by his former employer, United Parcel Service, Inc. ("UPS").

Defendant now moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), seeking dismissal of Plaintiff's complaint in its entirety. Plaintiff opposes the motion. For the reasons set forth below, Defendant's motion is granted and Plaintiff's complaint is dismissed with prejudice.

BACKGROUND

The following facts are taken from the entire record, including the parties' submissions pursuant to Local Rule 56(a), and the Court's review of the entire record. Dkt. Nos. 24, 27, 29, 30.

Plaintiff's Employment History at UPS

Defendant UPS hired Plaintiff in November 1996 as a part-time Loader/Unloader. In March 2005, Plaintiff became a full-time Package Driver at the Henrietta, New York UPS facility ("the Henrietta facility") and remained employed in that position until his discharge on January 23, 2011. From 1998 through 2005, Plaintiff was disciplined on several occasions by UPS for a number of verbal and physical altercations with other UPS employees. For example, in June 1998, Plaintiff was involved in a verbal confrontation with his then-supervisor, Mike Johnson ("Johnson"), which resulted in Johnson submitting a report to his supervisor summarizing the incident. In January 2000, Plaintiff was "written up" and disciplined by then-supervisor, Doug Wagenhauser ("Wagenhauser"), after Plaintiff was involved in a verbal confrontation with a co-worker. In April 2005, Plaintiff was issued a warning after it was determined that he had harassed coworker Falon Richards ("Richards"). UPS Management also met with Plaintiff to remind him of the company's Professional Conduct and Anti-Harassment and Workplace Violence Prevention Policies, and explained that future action of that nature would result in discipline, up to and including discharge.

UPS's Relevant Policies, Training, and Complaint Mechanisms

UPS maintains a Code of Business Conduct ("CBC") and a Professional Conduct and Anti-Harassment Policy, both of which prohibit unfair treatment on the basis of race. Plaintiff admits that he was aware of and understood the CBC, including its nondiscrimination policy. Additionally, UPS maintains policies that prohibit workplace violence, which include the Crisis Management and Workplace Violence Prevention Policy ("CM & WVPP"), and a stand-alone Workplace Violence Prevention Policy ("WVPP"). Both the CM & WVPP and the stand-alone WVPP are distributed to employees, and explain that "UPS had adopted a zero tolerance workplace violence policy." The CM & WVPP and stand-alone WVPP specifically prohibit "assaults, fighting, threatening comments, intimidation, and... destruction of... property" and instruct employees to report prohibited comments or behavior either directly to supervisors or by use of a "Help Line" established by UPS. UPS's anti-violence policies do not contain an exception for selfdefense.

Plaintiff testified that he was aware of the zero tolerance policy covering workplace violence, and that as a UPS employee, he had an obligation to report threats of violence to his superior, the Human Resources manager, or by calling the Help Line. Moreover, employees who are Union members can use the grievance procedure outlined in the Upstate/West New York Supplement to the NMA to raise a work-related concerns or complaints through the Union representative.

The Events Leading up to Plaintiff's Termination

UPS preloaders Nick Fedele ("Fedele"), Josh Everett ("Everett"), Matt Asip ("Asip"), Tom Coccolova ("Coccolova"), and Brett Godshall ("Godshall"), all of whom are white males, worked at the Henrietta facility at all times relevant to the complaint. Beginning in 2007, and continuing through Plaintiff's termination, these co-employees allegedly made disparaging comments to Plaintiff regarding Plaintiff's favorite football team, the San Francisco 49ers and also allegedly bullied Plaintiff. According to Plaintiff, on January 11, 2011, Asip shoved Plaintiff and threatened to "kick his ass." On January 21, 2011, Asip reported to Preload Manager Michael Greene ("Greene") that he had just been strangled by Plaintiff in response to a comment he made about the San Francisco 49ers. Asip told Greene that he did not physically provoke Plaintiff. Greene immediately investigated the matter by questioning Asip, Plaintiff and Will Stein ("Stein"), an employee who had witnessed and broke up the altercation, and who also informed the Union Steward of the incident. All of the individuals involved in the investigation are white. When Plaintiff met with Greene and the Union Steward to discuss the incident, Plaintiff admitted to putting his hands on Asip. Based on his investigation of the incident Green concluded that Plaintiff had violated UPS's Workplace Violence Prevention Policy, and terminated Plaintiff's employment.

Plaintiff's Union grieved his discharge before the Upstate/West New York Discharge/Suspension Panel ("the Panel"). The Panel consists of three UPS members, three Union members, and a neutral arbitrator. The neutral arbitrator is a third-party, not employed by UPS. Plaintiff, who was represented by the Union at his hearing before the Panel, signed a document acknowledging that he had sufficient opportunity to present all the facts and evidence at the Panel hearing and that his ...


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