Ardrey v. United Parcel Service Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    c^c3ckeT7i2 cl ( ~~ 3 ( ~  8* y

NO. l 2 ^ 7

IN THE
SUPREME COURT OF THE UNITED STATES 

G c JC  Term, 198

MARCUS ARDREY, e t alM 
individually and on behalf 

of all others similarly situated,
Petitioners,

v.

UNITED PARCEL SERVICE, 
a corporation,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Michael A. Sheely 
RUSSELL & SHEELY 
418 Law Building 
730 East Trade Street 
Charlotte, North Carolina 28202 
(704) 376-6591



I. QUESTIONS PRESENTED FOR REVIEW
1. Are plaintiffs - in a racial discri­

mination employment action brought pursuant 
to 42 USC §§ 1981 and 2000e et̂  seq - entitled 
to pattern and practice discovery in an 
effort to prove their individual claims when 
said claims are pleaded within the context of 
the pattern and practice theory approved by 
this Court in International Brotherhood Of 
Teamsters v. United States, 431 U.S. 324 
(1977).

2. Are plaintiffs entitled to discovery 
commensurate to the pleaded theory of liabi­
lity?

3. Doe3 a requirement by a District 
Court that plaintiffs establish their indivi­
dual claims before considering any class 
discovery requests conflict with this Court's 
decision in Elsen v. Carlisle and Jacqueline, 
417 U.S. 156 (1974), and the requirements of 
Federal Rules of Civil Procedure, Rule 23.

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4. When plaintiffs - in a racial 
discrimination employment action - have 
pleaded their individual claims within the 
theories of individual and pattern/ practice 
class discrimination, can a District 
Court, in reliance upon Federal Rules of 
Civil Procedure 26(b)(1) and 26(c): define 
the pending action as being limited to the 
individual claims of the named plaintiffs; 
limit discovery to the individual claims of 
the plaintiffs; prohibit adequate pattern and 
practice discovery; and require that the 
individual claims be established before 
requests for class discovery would be con­
sidered.

5. Are the Findings of Fact of a 
District Court in reference to the individual 
claims of the named plaintiffs clearly erro­
neous when they: deny the plaintiffs "pat­
tern and practice" discovery even though 
their individual claims are pleaded within 
the context of the pattern and practice

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theory; and, require the establishment of 
individual claims before considering any 
class discovery.

II. LISTING OP ALL PARTIES IN THE CASS

The plaintiffs (Petitioners herein) are 
Marcus Ardrey, James Cherry, Bessie Brown, 
Louis Funderburk, Horace Jenkins, Joyce 
Massey, Jerome Morrow, Sr., Eugene Neal, 
Matthew Smith, Jr., Henry Tyson, Sr., Cheryl 
Pettigrew, and Carl Watts, individually and 
on behalf of all others similarly situated.

The defendant (appellee in the Court of 
Appeals; Respondent herein) is United Parcel 
Service, a corporation (UPS).

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S)
1
3

4
5
7
7
7
8

17

17
22
25
27
28
34
35
1A

III. TABLE OP CONTENTS

QUESTIONS PRESENTED FOR REVIEW
LISTING OP ALL PARTIES IN THE 
CASE
TABLE OF CONTENTS 
TABLE OP AUTHORITIES 
REPORT OP OPINIONS 
JURISDICTION
STATUTES AND RULES INVOLVED
STATEMENT OP THE CASE
REASONS WHY THE WRIT SHOULD 
BE GRANTED
1. Reason One
2. Reason Two
3. Reason Three
4. Reason Pour
5. Reason Five
6. Reason Six
CONCLUSION
APPENDIX
CERTIFICATE OP SERVICE

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IV. TABLE OP AUTHORITIES
CASES PAGE(S)

SUPREME COURT GASES
Burdlne v. Texas Dept of Community 23
" Affairs. 450 U.S. 2~48"(l98l)
East Texas Motor Freight v. 29,30,31

Rodriguez, 431 U.~S. 395 Tl977)
El3en v. Carlisle and Jacqueline, 29,30,33

4T7 U.S. 156 (1974) 34
General Telephone Co. y, Falcone, 30,31
W f  U.S. 147' Tl'982)

International Brotherhood of 22
Teamsters v. United States,
$"31 U.S. 324 (1977)

McDonnell Douglas Corp. v. Green, 22,23,27
411 U.S. 792 (1973) 28

Oppenheimer Fund Inc, v. Sanders, 21,26,27
437 U.S. 340 (1978) 33,34

United States Postal Service Board 16
v. Alkens, 460 U.S. 711 (1983)

OTHER CASES
Burns v. Thlokol Chemical Co., 17,34,35

483 F.2d 300 (5th Clr. 1973)
Diaz v. AT&T,

752 F .2d 1356 (9th Clr. 1985) 17,18,34
Rich v. Martin Marietta, 17,18,19

522" F .2d 333 (10th Clr. 1975) 34,35
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TABLE OP AUTHORITIES

CASES PAGE(S)

Trevino v. Celanese. 17,18,25
701 P .2d 397 (5th Cir. 1983) 26,27,34

TREATISES
Wright and Miller, Federal Practice

and Procedure §§ 2008 21

STATUTES
42 USC §§ 1981 8
42 USC § 2000e et se^ 7,8

RULES
Federal Rules of Civil Procedure26(c)

26(b)
23

31,33
8,26,31,33

8,29,30,31,34



V. REPORTS OP OPINIONS
The Order of the District Court is 

reported at 615 F.Supp. 1250 (WDNC 1985).
The Opinion of the Court of Appeals is 
reported at 798 F.2d 679.(4th Cir. 1986).

VI. JURISDICTION
The Opinion of the Court of Appeals was 

decided and entered on August 18, 1986. A 
Petition For Rehearing and suggestion for 
Rehearing en banc was denied and entered on 
November 4, 1986. Jurisdiction of this 
Honorable Court is invoked pursuant to 28 
U.S.C. § 1254(1).

V H .  STATUTES AND RULES INVOLVED 
42 USC § 20Q0e-2(a) provides, in part, 

as follows:
(a) Employer Practices
It shall be an unlawful employment prac­
tice for an employer -
(1) to fail or refuse to hire or to 
discharge any individual or otherwise 
discriminate against any individual with 
respect to his compensation, terms, con­
ditions, or privileges of employment 
because of such individual's race....

-7-



42 USC § 1981 provides, in part, as
follows:

All persons within the jurisdiction of 
the United States shall have the same 
right in every State and Territory to 
make...contracts...as it enjoyed by 
white citizens...
Federal Rules of Civil Procedure Rule
26(b)(1) provides, in part, as follows:
(b) Unless otherwise limited by order 
of the court in accordance with these 
rules, the scope of discovery is as
follows:
(1) In General. Parties may obtain 
discovery regarding any matter, not pri­
vileged, which is relevant to the sub­
ject matter involved in the pending 
action...
Federal Rules of Civil Procedure, Rules

23 and 26(c)1 (FRCP Rules ____).
V m .  STATEMENT OF THE CASE

This action, designated as a class
action and brought pursuant to 42 USC §§ 1981
(Civil Rights Act of 1866) and 2Q00e et seq
(Title VII of the 1964 Civil Rights Act),
sought both individual and class/pattern and
1 As provided by Supreme Court Rule 21(f), 
the provisions of Rules 23 and 26(c) are set 
forth at Appendix, pp. 269A-271A.

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practice relief (A 272A-275A .).2 The 
District Court had jurisdiction pursuant 
to 42 USC § 2000e-5(f) and 28 USC § 1343.
The trial court, subsequent to a non-jury 
trial limited to the individual claims of the 
plaintiffs, found for UPS on all issues 
(A.30A-230A).

The Petitioners had individual race 
discrimination claims as follows: failure to 
qualify for full-time jobs of preloader or 
package car driver (Ardrey, Watts, Cherry); 
warnings (Watts, Brown, Cherry, Smith); 
suspensions (Watts, Smith); terminations 
(Smith, Pettigrew, Massey); training 
(Pettigrew); assignment of equipment 
(Punderburke, Smith, Neal, Jenkins); removal 
of duties (Jenkins); assignment of overtime 
(Neal, Brown); denial of days off (Brown); 
supervisory harassment (Brown, Neal, 
Pettigrew); promotion to supervisor (Neal);
2

References to A. - refer to the 
attached Appendix and page numbers.

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and working in a racist atmosphere (all). 
In 1 84 of the Complaint, Petitioners

alleged that:
The acts described (in reference to 
plaintiffs' individual claims) are mani­
festations of a policy and practice 
whereby UPS deprives blacks of their 
rights to equal employment opportunities 
in the following ways ... (parenthesis 
added) (A.273A).

The "following ways", (alleging classwide/ 
pattern and practice discrimination in 
disparate treatment, and disparate impact) 
are: termination, discipline, suspension,
promotion, and movement from part-time to 
full-time positions and a racist atmosphere.3 

The plaintiffs notified UPS and the 
trial court of their theories of liability 
(individuals affected by a general pattern 
and practice of discrimination; individual 
claims of discrimination).
3

For the full text of f 84 of the 
Complaint, refer to A.273A-275A.

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UPS has two facilities (Hub;11 General
Office) in Charlotte, North Carolina. Every
plaintiff, except for Pettigrew, worked in
one or more of the hub departments (center,
hub, feeder drivers, maintenance) when their
claims arose. Pettigrew’s claims arose In
the General Office. UPS filed a motion to
limit Initial discovery to the plaintiffs'
Individual claims. Plaintiffs opposed said
motion. The trial court ruled that:

The Court...rules that discovery in this 
case shall be limited to the establish­
ment of the individual claims of the 
present plaintiffs of record. Once 3uch 
...actions are established, the Court 
will consider requests for further 
discovery of a clas3-wide nature. The 
plaintiffs have failed to allege or show 
how they would be prejudiced by this 
bifurcated discovery process...
As a guideline, the parties are advised 
that discovery at this time will not be 
allowed as to other individuals who are

3--------- -
At the Hub packages are received, 

sorted, and placed on either vans for local 
delivery (package car drivers) or on tractor 
trailers (feeder drivers) for delivery to 
other UPS facilities.

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not presently plaintiffs of record, or 
to statistical Information regarding 
groups or classes of employees, unless 
3uch discovery would produce Information 
relevant to the individual claims 
(A.238A-239A) (emphasis added).
In denying plaintiffs’ motion to recon­

sider the district court reiterated this 
ruling (A.241A-244A).

The plaintiffs' First Set of Interroga­
tories , limited to the individual claims of 
the plaintiffs, wa3 answered by UPS. The 
Second Set sought pattern/practice Informa­
tion (A .276A-277A). UPS limited its answers 
to: Identity of locations, job titles, de­
partments, helrarchy, EEO-1 report job 
classification, and lines of progression; and 
descriptions of the policies of job perfor­
mance review; the bidding/vacancy filling 
process; seniority, promotion, transfer, 
discipline, and movement from part to full­
time positions. UPS, on the grounds of "not 
relevant to plaintiffs' Individual claims", 
objected to each interrogatory seeking Infor-

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mation about: the employment history of 
employees; statistics; and, the duties/pay 
grades/minimum qualifications for jobs. 
(A.276A-277A).

In their first and second Motions To 
Compel, plaintiffs sought to compel only as 
to the employment practices each was affected 
by and in the departments where their indivi­
dual claims arose. The trial court, denying 
the motions, stated that UPS had provided 
sufficient "class discovery" with its answers 
to the First Set. (A.245A-262A)

In their Third Set of Interrogatories, 
plaintiffs sought information as to the iden­
tity of persons who were: disciplined; pro­
moted into/qualified for/failed to qualify 
for specified jobs;5 considered for promo­
tion; and, the Identity of supervisors who 
supervised persons holding the specified
5 The specified Jobs were those: jobs 
unsuccessfully sought by plantiffs; first 
level supervisory jobs; held by Massey and 
Pettigrew when each was terminated; and 
clerical vacancies for a 6 month period.

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jobs* UPS, in its responses: provided the 
annual number of whites and blacks in various 
jobs6 as of 12/31 for each year between 1979- 
1982; objected to disciplinary information as 
irrelevant; limited its responses to the 
identity of persons promoted, etc., to those 
already made in response to the Pirst Set, 
and objected to further responses as being 
irrelevant (A.277A-278A). In their Third 
Motion To Compel, denied by the trial court, 
plaintiffs moved to compel as to the interro­
gatories objected to (A.265A-268A).

Throughout this case, the plaintiffs 
repeatedly pointed out that their individual 
claims were made pursuant to the Teamster 
pattern/practice/class discrimination theory 
as well as the McDonnell-Douglas/Burdlne 
theory.

UPS provided the following limited 
information for persons who: either 
F-------- -

The jobs were feeder drivers, package 
car drivers, loader/unloader, carwash/shif- 
ters, part-time clerk, and tracing clerk.

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qualified or failed to qualify for the posi­
tions of package car driver and preloader; 
were promoted to first level supervisory 
positions; were tracing clerk3 and their pro­
duction rates; were dispatchers; and, held 
certain jobs as of the last day for each year 
between 1979-1982. UPS also provided 
incomplete disciplinary Information about 
individuals whose names were provided by the 
plaintiffs. Finally, UPS provided infor­
mation as to how vacancies were filled, and 
other policies. No pattern and practice 
Information was provided for promotions/job 
placement for Job3 other than those sought 
by the plaintiffs. No pattern and practice 
information of any type was provided for 
discipline, termination, and assignment of 
equipment. Plaintiffs sought information as 
to those matters and had individual claims 
based on alleged discrimination resulting

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from these practices.7 The Court of Appeals 
held that the District Court did not abuse 
its discretion by imposing its discovery 
limitations.

The opinion below incorrectly stated 
that the District Court found that not a 
single plaintiff proved a prlma facie case of 
discrimination. 798 P .2d 679, 685; (A.29A). 
The District Court stated it had reservations 
whether some of the plaintiffs failed to 
prove a prlma facie case. 615 F.Supp. 1250, 
1299, n.3 (A.225A, n.3). Such an observation 
itself is irrelevant since after an employer 
produces evidence, the issue is whether pre­
text and intentional discrimination are pro­
ven. Postal Service Board v. Alkens, 460 
U.S. 711, 714-717 (1983).
T~

Plaintiffs with these claims were: war­
nings (Watts, Brown, Cherry, Smith); suspen­
sions (Watts, Smith); terminations (Smith, 
Pettigrew, Massey); and, assignment of equip­
ment (Smith, Neal, Funderburke).

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IX. REASONS WHY THE WRIT SHOULD BE GRANTED
1. The decision of the Court of 

Appeals below conflicts with the Circuit 
Court decisions of Diaz v. AT&T. 752 F,2d 
1356, 1362-1364 (9th Cir. 1985); Trevino v. 
Celanese, 701 F.2d 397, 404-408 (5th Cir. 
1983); Rich v. Martin-Marietta. 522 F.2d 333, 
342-349 (10th Cir. 1975), and Burns v.
Thlokol Chemical Company, 483 F.2d 300 (5th 
Cir. 1973).

In each of the foregoing cases, the 
Court of Appeals reversed either the District 
Court's granting of summary judgment In favor 
of the employer (Diaz; Trevino) or trial fin­
dings of no discrimination (Rich; Burns).
The major reason for each reversal was 
each District Court's failure to consider 
relevant pattern and practice Information 
which was not present because of 
Inappropriate discovery restrictions placed 
by the court. In each Instance, the appellate 
court ruled that the erroneous limitation on

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discovery deprived each plaintiff of disco­
very that was necessary to the pleaded 
theory. For example, in Diaz, the plaintiff 
had a promotion claim at one facility. He 
sought pattern/practice information for the 
region in which the facility was located.
The employer objected to the pattern and 
practice discovery. The plaintiff filed a 
motion to compel. The employer filed a 
motion for summary judgment. The District 
Court, without deciding the motion to compel, 
granted the employer's motion for summary 
judgment. The Ninth Circuit held that it was 
error for the District Court to consider the 
motion without examining the pattern/practice 
discovery sought by the plaintiff. A second 
example is Rich, supra. The fact situations 
ln and Ardrey are very similar. The
plaintiffs filed a pattern and practice case. 
The plaintiffs' first set of interrogatories 
sought practlce/class/pattern discovery. The 
District Court upheld the employer's objec-

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tions. The plaintiffs’ second set was 
limited to named persons and persons who 
worked in the vicinity of the plaintiffs.
The case proceeded to trial on the plain­
tiffs' individual claims. The focus of the 
trial, for the most part, was limited to the 
individual claims. The trial court found no 
discrimination. The Tenth Circuit reversed 
said findings. The major reason for said 
reversal was the Inappropriate limitations 
placed on the plaintiffs' discovery. The 
Tenth Circuit stated that the trial court 
should have allowed factual exploration 3ince 
there was no other way to determine the 
merits of the plaintiffs' claims.

The conflict arises since the Courts 
below upheld limitations on discovery which 
were held to be erroneous by the above cited 
courts. In this case, the appellate court 
below held that denial of pattern/practlce 
information (e.g. the District Court denied 
any pattern/ practice disciplinary or ter-

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mination information except for a few indivi­
duals named by the plaintiffs even though 
several plaintiffs had individual discipline/ 
termination claims pleaded in the context of 
the pattern or practice theory) was 
appropriate. Discovery in each of the cited 
authorities was allowed on a facility or 
regional basis while in the case below it was 
limited to the Jobs sought by plaintiffs or 
individuals named by the plaintiffs. In 
the case below, several plaintiffs were 
denied any pattern/practlce discovery for the 
practice which they had been subjected to.®

It Is crucial that this conflict be 
resolved by a review and reversal of the opl- 
nlon below. The ruling of the appellate 
court below Inappropriately allows a District 
Court to unduly restrict pattern and prac­
tice discovery even though the Teamster 
approved theory Is pleaded by the plain- 
15---------

See pp. 15-16 and f.n. 7, supra.
- 2 0 -



tiffs. The opinion below creates a restric­
tive standard of discovery^ for plaintiffs 
who bring employment discrimination cases 
within the Fourth Circuit. This standard is 
entirely different than those prevalent in 
other Circuits. This standard defeats the 
purpose of the employment discrimination sta­
tutes and the Teamsters approved pattern and 
practice theory by denying an adequate scope 
of discovery.
9 Such discovery is unduly restric­
ted given that: employment discrimination 
cases are based on statutes which reflect a 
national policy of primary importance; such 
restricted discovery deprives plaintiffs of 
any meaningful opportunity to utilize the 
pattern and practice theory specifically 
approved by this Court in Teamsters; and, the 
restrictions conflict with the language of 
this Court's unanimous opinion in 
Oppenheimer Fund, Inc, v. Sanders, 437 U.S. 
340, 351 (1973) that the term "relevancy” in 
Rule 26(b)(1) encompasses any matter that 
bears on or could lead to other matter that 
could bear on any issue that is or may be in 
the case. It is important to remember that 
attempts to replace the term "relevancy" in 
Rule 26(b)(1) with more restrictive language 
were rejected. See Wright and Miller,
Federal Practice and Procedure Civil § 2008 
(1986 Pocket Part, Vol. 8, §2008, p.20 (text) 
and pp.21-22 at f.n. 14.3-14.6). (West 
Publishing, 1986).

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2. The limitations of discovery 
affirmed by the court below conflict with 
this Court's decision in International 
Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977). In Teamsters, this 
Court held that a plaintiff is entitled to a 
presumption of discrimination in the resolu­
tion of his individual claim once he has met 
his burden of proving a pattern and practice 
of discrimination. Such a pattern is proven 
by evidence (e.g. statistics, comparative 
treatment, combination thereof) which shows 
that discrimination is the rule rather than 
the exception. Once a plaintiff is armed 
with this rebuttable presumption of discrimi­
nation in the resolution of his individual 
claim, the burden shifts to the employer to 
prove a legitimate non-discriminatory reason 
for the challenged action. This theory is 
different than the resolution for individual 
claim within the format set forth in this 
Court's decisions in McDonnell-Douglas Corp.

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v. Green, 411 U.S. 792 (1973) and Burdlne v
Texas Department of Community Affairs, 451 
U.S. 248 (1981). In the MeDonnell-Douglas/ 
Burdlne format, the plaintiff always retains 
the dual burdens of persuasion and proof as 
to his individual claim, and the employer 
never has to prove anything since he only has 
to articulate - not prove - a legitimate, non 
discriminatory reason.

The discovery limitations of the court 
below conflict with Teamsters since they 
deprived the plaintiffs of any meaningful 
opportunity to prove their individual claims 
within the specifically pleaded context of 
the Teamster approved pattern and practice 
theory. In effect, the discovery rulings 
below: limited the analysis of plaintiffs'
individual claims to the MeDonnell-Douglas/ 
Burdlne format which imposes the never 
shifting burdens of proof and persuasion upon 
the plaintiff; and, deprived plaintiffs of 
any meaningful attempt to prove their indlvi-

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dual claims within the context of the pat- 
tern/practlce theory approved by this Court 
In Teamsters and specifically pleaded by the 
plaintiffs in their Complaint.

The appellate court below incorrectly 
stated that plaintiffs were confusing their 
class based claims with their individual 
attempts to prove pattern/practice discrimi­
nation. 798 P .2d 679, 685; (A.26A). 
Plaintiffs are entitled to an adequate 
attempt to prove a pattern and practice of 
discrimination. If successful, the plain­
tiffs will have the presumption of discrimi­
nation when it comes time to resolve their 
Individual claims. With this presumption, 
the employer has the burden of proving no 
discrimination.

It Is Important that the conflict be 
resolved by a review and reversal of the opl-

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nion below. The appellate opinion below 
effectively removes the Teamster pattern and 
practice theory as a viable theory to prove 
an individual claim. It does so by denying 
discovery which is necessary for proving 
discrimination as the rule rather than the 
exception. At best, the opinion below allows 
discovery which may prove "isolated" inci­
dents of discrimination. This, of course, 
fails to meet the Teamster standard.

3. The Court of Appeal’s ruling 
conflicts with the Fifth Circuit Court opi­
nion in Trevino, supra. In Trevino, supra, 
the Fifth Court stated that a plaintiff was 
entitled to discovery commensurate with the 
pleaded theory. 701 F.2d 397, ^05. As stated 
above, the discovery rulings below deprived 
plaintiffs of any meaningful opportunity to 
prove their individual claims within the fra­
mework of the specifically pleaded Teamsters 
approved pattern and practice theory. The 
conflict arises because the appellate opinion

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below allows a district court, without 
abusing its discretion, to limit discovery in 
a manner which deprives plaintiffs of a 
meaningful attempt to prove the pleaded 
theory while Trevino dictates that discovery 
commensurate with the pleaded theory is to be 
allowed, and the failure to do so constitutes 
an abuse of discretion by the District Court.

The appellate opinion below is in 
conflict with this Court’s description 
of the meaning of the term "relevancy” as 
used in PRCP Rule 26(b)(1). In Oppenhelmer, 
supra, this Court, after quoting the text of 
Rule 26(b)(1),10 stated that relevant encom­
passes "any matter that bears on, or reaso- 
I T

The quoted rule in Oppenhelmer was the 
1973 version. The 1980 amendments to the 
Federal Rules did not change the term 
"relevant” In Rule 26(b)(1) even though there 
had been suggestions for change. See footnote 
10, supra. The text of the first paragraph 
of Rule 26(b)(1) is the same now as It was In
1978. The 1980 amendments, which add the 
second paragraph to Rule 26(b)(1), do not 
reduce the Oppenhelmer definition of rele­
vancy. Said paragraph allows a court to pro­
tect a party from abusive discovery 
requests in a given situation.

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nably could lead to other matter that could 
bear on, any issue that is or may be in the 
case." 437 U.S. 340, 351. The appellate 
opinion below conflicts with Oppenheimer in 
that discovery which was relevant to the 
individual claims of the plaintiff within the 
context of the pleaded theory of a pattern 
and practice of discrimination was not 
allowed.

It is important that the conflict bet­
ween the appellate court opinion below and 
the Trevino and Oppenheimer decisions be 
resolved for the reasons set forth in the 
last paragraph of Section IX(1), and footnote 
11, supra.

4. The discovery rulings below conflict 
with this Court's language in McDonnell- 
Douglas, supra, that statistical data (i.e. 
pattern/practice information) was to be con­
sidered because it may be reflective of 
restrictive or exclusionary practices. 411

-27-



U„S. 792, 806, f.n.19.H  The discovery 
rulings below deprived the plaintiffs of any 
meaningful opportunity to fully utilize this 
aspect of the McDonnell-Douglas/Burdine for­
mats It did so by depriving them of pattern/ 
practice information described by this Court 
in McDonnell-Douglas as being helpful.

5.--------The opinion of the appellate court 
below does not appear to explicitly address 
the issue of whether the District Court’s 
ruling that the plaintiffs had to establish 
their individual claims before any class 
discovery would be considered (A.238A-239) is 
in conflict with this Court’s language in 
IT” --------

Petitioners recognize that in McDonnell- 
Douglas this Court 3tated that such "sta- ’ 
tistics "may’’ be of assistance, and further­
more that such determinations, though 
helpful, may not, standing alone, be deter­
minative of challenged individual decisions. 
Petitioners submit however that such a 
restriction further underscores their argu­
ment concerning the pleaded/proven pattern 
and practice theory wherein such general evi­
dence can prove a pattern which gives rise to 
the presumption of discrimination when ana­
lyzing the individual claim.

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Bisen v, Carllsle-Jacqueline. 417 U.S. 156, 
177-178 (1974). In Elsen, this Court stated
that there is nothing In the history or 
language of Rule 23 that gives a court any 
authority to conduct a preliminary inquiry 
Into the merits of a suit in order to deter­
mine class action maintenance.12 The 
District Court’s requirement is an inquiry in 
12

This Court’s decision in East Texas Motor 
Freight v. Rodriguez, 431 U.S7~WT, 91 S.Ct. 
1891 (1977) is not applicable. In East 
Texas, this Court, concerned with the careful 
application of Rule 23 in Title VII cases, 
held that the appellate certification of a 
class was Inappropriate. The plaintiffs 
never moved for class certification and lost 
their individual claims In a trial limited to 
said claims. In footnote 12 of East Texas, 
this Court recognized that an appropriately 
certified class would not be destroyed 
because the class representatives lost their 
Individual claims. In this case plainitffs 
failure to prove their individual claims, 
as argued above, Is due, at this point, to 
the prejudicial and erroneous denial of 
necessary pattern/practice discovery. East 
Texas Is concerned with adherence to Rule 23; 
this matter Is concerned with the appropriate 
scope of discovery.

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to the merits in that it requires, before 
considering whether the requisites of Rule 
23(a) are met, a plaintiff prove his indivi­
dual claim.13 The District Court's action 
engrafted an unauthorized preliminary 
requirement upon those set forth in Rule 
23(a). The plain language and history of 
Rule 23, neither authorizes any preliminary 
inquiry into the merits, nor do they require 
a plaintiff to prove his individual claim 
before class certification is granted. See 
Risen, supra.

The East Texas, supra, and General 
Telphone Company v. Falcone. 457 U.S. 147,
102 S.Ct. 2364 (1982) decisions of this Court 
do not justify either the requirement or 
13

The conflict is further augmented by the 
deprivation of necessary discovery. This 
deprivation, described above, resulted in 
the plaintiffs not being afforded a meaning­
ful opportunity to prove their individual 
claims within the pleaded theory.

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discovery limitations of the courts below,14 
In each of these cases, this Court held that 
a District Court was to carefully follow Rule 
23 in employment discrimination cases.
Neither decision comes remotely close to sup­
porting the actions of the Courts below in 
denying pattern/practice discovery and 
requiring a plaintiff to prove his individual 
case before any class discovery will be con­
sidered.

The District Court was able to deny the 
necessary pattern/practice and impose the 
challenged requirement by utilizing the 
discretion it has pursuant to PRCP Rule 26(c) 
to define ’’pending action” in PRCP Rule 
26(b)(1) to be limited to the individual 
claims of the named plaintiffs, and removing
T5

The Court of Appeals below justified its 
affirmation of the District Court by its 
reliance on East Texas and Palcone. 798 F.2d 
at 685; (A.26A-27A).

-31-



the claims of class/pattern/practice discri­
mination (A.243A). This is an abuse of 
discretion, particularly since the plaintiffs 
pleaded their individual claims within the 
context of the Teamster3 approved practice/ 
pattern of discrimination. Under the 
District Court's approach, a trial judge may 
define the theories of liability by defining 
the scope of the pending lawsuit. The theory 
of liability of any action is defined by its 
pleadings. A court is not free to add to or 
detract from the scope of the allegations set 
forth in the pleadings in such a manner which 
removes a theory of liability or defense.
The scope of an action may be reduced or in­
creased because: the resolution of one issue 
(e.g. statute of limitations) may resolve the 
entire matter? and, the presence or absence 
of a meritorious claim or defense. Such a 
determination is based upon the evidence that 
is present in the record. In this case, the

-32-



determination was not based upon record evi­
dence. It was determined solely by the 
District Court stating "this is in" or "this 
is out." Thi3 is an abuse of discretion. 
There is nothing present in either the 
language or history of Rules 26(b)(1) and 
26(c) which allow a Judge to rule that a por­
tion of the allegations are not part of the 
law suit. Such action simply constitutes an 
abuse of discretion.

Finally, the District Court's use of 
Rules 26(c) and 26(b)(1) allows a trial court 
to define "relevancy" in rule 26(b)(1) in 
such a manner so as to defeat the broad 
meaning given to relevancy by this Court in 
Qppenheimer, supra. It does by removing 
Issues clearly present In the pleadings.
This removal is simply accomplished by 
defining what Is "pending." This defeats the 
broad definition In Qppenheimer which defines 
relevancy as "any Issue that is or may be In 
the case." 437 U.S. 340, 351.

-33-



It Is important that the conflict bet­
ween the opinion below and the above quoted 
language of Elsen, Rule 23, and Oppenhelmer 
be resolved by a review and reversal of the 
opinion below. The actions of the courts 
below: are clearly inconsistent with the
purposes of Elsen, Oppenhelmer, and Rule 23; 
allow a trial court to impose an additional 
requirement on Rule 23; and, allow a trial 
court to deny appropriate discovery through 
improper use of the Rules of Civil Procedure.

6. For each of the five foregoing 
reasons, the findings of the District Court 
below are clearly erroneous. These findings 
- like the Diaz and Trevino summary judgments 
and the Burns and Rich trial findings - were 
based upon Incomplete evidence, and a failure 
to consider pattern and practice evidence.
The failure to consider the pattern and prac­
tice evidence was due to the inappropriate 
discovery limitations. The process below is 
the same as what happened In Diaz, Trevino,

-34-



Rich, and Burns except that In those cases 
the appellate courts corrected the error, 
while In this case, the appellate court below 
compounded the error by joining in and 
affirming its commission.

For each of the reasons set forth above, 
this Court should grant the writ.

X. CONCLUSION

This the day of. 1987.
RUSSELL & SHEELY

MICHAEL A. SHEELY 
4l8 Law Building 
730 East Trade Street 
Charlotte, NC 28202 
(704) 376-6591

cr

Attorney for Petitioners

-35-



XI. APPENDIX
TABLE OP CONTENTS

PAGE(S)
Opinion of the Court of Appeals 2A-29A
Order of the District Court 30A-230A

(8-19-85)
Order of the Court of Appeals 231A-232A
Denying Petition For Rehearing

Order of the District Court(9-6-85) 233A-234A
Pinal Judgment of the District Court 235A 

(9-6-85)
Discovery Procedure Order of the 236A-240A 

District Court (10-26-82)
Discovery Procedure Order of the 

District Court (11-22-82)
Discovery Order of the District 

Court (4-1-83)
Discovery Order of the District 

Court (7-15-83)
Discovery Order of the District 

Court (4-19-84)
Text of FRCP Rules 23 and 26(c) 
Complaint
Description of Interrogatories 
/Responses

241A-244A

245A-262A

263A-264A

265A-268A

-1A-

269A-271A
272A-275A
276A-278A



UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 85-2239

Marcus Ardrey,
James Cherry,
Bessie Easterling Brown,
Louis Funderburk,
Horace Jenkins,
Joyce Massey,
Jerome Morrow, Sr.,
Eugene Neal,
Matthew Smith, Jr.,
Henry Tyson, Sr.,
Cheryl Pettigrew,
Carl Watts, individually and 
on behalf of all others similarly 
situated,

Appellants,
versus

United Parcel Service, 
a corporation,

Appellee.

Appeal from the United States District 
Court for the Western District of North 
Carolina, at Charlotte. Robert D. Potter, 
Chief Judge. (C/A 82-323).

Argued: May 6, 1986 Decided: August 18, 1986

Before MURNAGHAN and WILKINSON, Circuit 
Judges, and HAYNSWORTH, Senior Circuit 
Judge.

-2A- •



Michael A. Sheely (Russell, Sheely & 
Hollingsworth on brief) for Appellants; 
William W. Sturges (Weinstein, Sturges,
Odom, Groves, Bigger, Jonas & Campbell,
P. A. on brief) for Appellee.
MURNAGHAN, Circuit Judge:

I
Numerous plaintiffs employed by the 

West Carolina district of United Parcel 
Service ("UPS"), which encompasses the 
western part of North Carolina and all of 
South Carolina and is centered in Charlotte, 
North Carolina, by complaint dated May 20, 
1982 moved for class certification, filed 
individual discrimination claims pursuant 
to 29 U.S.C. Section 621, Age Discrimination 
in Employment Act ("ADEA"), Section 1981 of 
the 1866 Civil Rights Act, and Title VII of 
the 1964 Civil Rights Act. The plaintiffs 
alleged class discrimination against them 
as a race. Specifically, they alleged that 
UPS had engaged in a "policy and practice 
whereby UPS deprives blacks of their rights 
to equal employment opportunities."

- 3 A -  .

On



information and belief plaintiffs alleged 
four ways in which UPS's policy and practice 
operated, namely through 1) termination, 
discipline and suspension; 2) promotion;
3) transfer of employees from part-time to 
full-time positions; and 4) racist 
atmosphere.1

1 The various individual plaintiffs
alleged discriminatory acts:
(1) Marcus Ardrey— alleged he was 
prevented from moving from a part-time 
to a full-time position because of his 
race; (2) James Cherry—  alleged he 
was denied a full-time position (he 
was employed half-time) and received 
unjustified warnings because of his 
race; (3) Bessie Easterling [Brown]—  
was denied days off, subjected to 
unwanted physical contact by junior 
white employees and subjected to 
harassment by white dispatchers because 
of her race; (4) Louis Funderburk—  was 
treated differentially as a UPS driver 
because of his race; (6) Joyce Massey—  
was discharged because of her race;
(7) Jerome Morrow, Sr.— was denied 
promotion and required to work in a 
racist atmosphere because of his race;
(8) Eugene Neal—  was harassed and 
denied promotion because of his race;
(9) Matthew Smith, Jr.— was given poor 
work runs, poorer equipment, and 
warning letters for infractions he did 
not commit because of his race;

(Continued)
- 4 A -



The instant appeal concerns the 
district court's handling of the discovery 
phase of the case. In their first set of 
interrogatories the named plaintiffs 
requested information related to their 
individual claims, as alleged in their 
complaint. UPS answered these interroga­
tories and provided information not only 
about the specific UPS employee in question, 
but also about others who had been promoted, 
transferred or qualified for various 
positions.  ̂ At the same time as they served 
their first set, plaintiffs served a second

(10) Henry Tyson, Jr.— was subject to 
working in a racist atmosphere; (11)
Carl Watts— was disciplined because of 
his race; (12) another plaintiff, who 
was allowed to intervene, Cheryl 
Pettigrew, alleged racial discrimination 
in her treatment by her supervisor, 
training and subsequent discharge.

2 For example, for plaintiff Marcus
Ardrey, UPS provided the "name, race, 
prior experience, prior education, 
qualifications, date of hire, date 
became full-time of each person who 
obtained a full-time package car 
driving position between January 1,
1980 and December 31, 1982"; for

(Continued)
- 5 A -



set of interrogatories seeking "class 
pattern/practice information" about the 
Charlotte, North Carolina headquarters of 
the UPS West Carolina region. Plaintiffs 
sought information about the employment 
history of all employees who had worked in 
the Charlotte headquarters since January 1, 
1979, about all vacancies which occurred in 
all job titles since January 1, 1979, the 
name and race of each person who filled the 
vacancies and the date the facancies 
occurred and were filled, about transfer and 
promotion system policies, and the names, 
race and job titles of persons with 
knowledge of various personnel practices, 
including hiring, promotion and transfer and 
the methods by which employees were disci­
plined and the ways employees were

plaintiff James Cherry, UPS provided 
similar information on those part-time 
bargaining unit employees who were 
promoted to and qualified for full time 
package car driving positions.

-6A-



transferred from part-time to full-time 
positions. Plaintiffs also requested 
information about the number of whites and 
blacks who were promoted, transferred, 
employed, or qualified for full-time jobs.

In response to the second set of 
interrogatories, UPS filed many answers and 
documents, but objected to interrogatories 
seeking information about the employment 
history of employees, statistics, and 
duties, pay grades and minimum qualifica­
tions for jobs that were not related to the 
claims of individual plaintiffs.3

For example, UPS refused to provide 
the number of whites and blacks in 
various broad categories of employment 
for 1979 to date because "such data 
would be irrelevant to plaintiff 
Pettigrew's claim" and objected "to 
providing information on the job duties 
and pay rates of management, supervisory 
and clerical jobs that are not involved 
in any of plaintiffs' individual claims."

- 7 A -



Before these two sets of interrogato­
ries were served on defendant, UPS had 
moved for (and the district court had 
granted on October 22, 1982) a limitation 
on initial discovery which restricted 
plaintiffs to discovery about information 
related to their individual claims as 
opposed to information regarding their 
class action. In granting such a limitation, 
the court stated that "[ojnce such 
individual action or actions are established, 
the Court will consider requests for 
further discovery of a class-wide nature.
The plaintiffs have failed to allege or show 
how they would be prejudiced by this 
bifurcated discovery process." The court 
noted it agreed with counsel for UPS that 
plaintiffs would be required "to establish 
viable individual actions" before class 
discovery would be allowed. The court 
relied on East Texas Motor Freight System, 
Inc, v. Rodriguez, 431 U.S. 395, 403 (1977)

- 8 A -



and General Telephone Co. of Southwest v. 
Falcon, 457 U.S. 147 (1982) in so deciding.^ 

Subsequent to UPS's refusal to answer 
various of their second set of interrogato­
ries, plaintiffs filed motions to compel.
On April 1, 1983, the court denied these 
motions on the ground that the information 
requested (e.g,, name and race of all 
persons qualified to be package drivers, 
statistical information about promotions to 
other jobs, movement from part-time to other 
full-time jobs, which were not sought by- 
plaintiffs) , was "hardly germane to [the 
individual plaintiffs'] claims in view of 
the statistical data already furnished in 
respect to the specific jobs they sought."

The district court established a 
guideline "that discovery at this time 
will not be allowed as to other indi­
viduals who are not presently plaintiffs 
of record, or to statistical information 
regarding groups or classes of employ­
ees, unless such discovery would produce 
information relevant to the individual claims."

-9A-



(Emphasis provided.) The court reasoned 
that because UPS had already provided 
information about individuals and their 
claims pursuant to the first set of 
interrogatories, UPS was not required to 
produce the "comprehensive employment 
history" requested in the second set which 
was not relevant to individual claims. The 
court also noted such information would be 
inordinately burdensome for defendant to 
prepare.

Plaintiffs served defendant with a 
third set of interrogatories on April 6,
1983. UPS objected to providing discipli­
nary information about the number of blacks 
and whites who had received warnings, or who 
were suspended or disciplined, and limited 
its responses to information about individual 
employees which it had already provided.5 A

5 Defendant again noted that it
objected "to furnishing the requested 
information for all employees in the 

(Continued)

- 1 0 A -



third motion to compel ensued which the 
district court denied. The plaintiffs 
moved for reconsideration, on the grounds 
of our opinions in Lilly v. Harris-Teeter, 
720 F.2d 326 (4th Cir. 1983), cert, denied, 
466 U.S. 951 (1984), and Knighton v . The 
Laurens School District, 721 F .2d 976 (4th 
Cir. 1983). The district court subsequently 
modified its order and compelled UPS to 
provide the names of those in the Charlotte 
office who made various employment decisions 
pursuant to our decision in Lilly, 720 F .2d 
at 338, which held that where the "same . . 
managerial personnel were responsible for 
decision making" in several allegedly 
discriminatory contexts, a case of discrim­
inatory intent might be made out. In other 
regards, the district court reaffirmed its 
earlier order.

requested job classifications . . .
since the information would not be 
relevant to the individual claims of 
any plaintiff and would be unduly 
burdensome to obtain.

- 1 1  A -



The case was heard by the court without 
a jury and trial was limited to plaintiffs' 
individual claims. The district court 
found for UPS on all issues and dismissed 
plaintiffs' claims. The court found no 
evidence that individual black plaintiffs 
had been discriminated against in regard to 
warnings, suspensions, terminations, 
promotions, or moves into full-time jobs, 
or had been treated in any way different 
from whites. After lengthy findings of 
fact, the court examined the relevant law as 
set forth in McDonnell Douglas Corp, v.
Green, 411 U.S. 792 (1973) and Texas 
Department of Community Affairs v. Burdine, 
450 U.S. 248 (1981), which establishes a 
shifting burden for Title VII discrimination 
suits. The court examined the specific 
legal elements of the individual plaintiffs' 
claims and found that "Defendant offered 
substantial evidence that the alleged 
adverse employment actions concerning the

- 1 2 A -



Plaintiffs were £>ased upon legitimate, 
nondiscriminatory business considerations."
In addition, the court found that plaintiffs 
had not shown that the reasons offered by 
defendant to explain its employment actions 
were pretextual. The district court 
concluded that defendants had not discrim­
inated against plaintiffs on account of race 
or sex in violation of Title VII or Section 
1981. Because it only reached plaintiffs' 
individual allegations of discriminatory 
treatment, the court did not discuss 
plaintiffs' class-based pattern/practice 
claim, i.e., that UPS had a "policy and 
practice whereby [it] deprives blacks of 
their rights to equal employment oppor­
tunities ."

The district court retained jurisdiction 
of the case as a possible class action for 
fourteen days in order to allow preparation 
by plaintiffs of a class certification 
motion. Because the parties did not submit

- 1 3 A -



a schedule for class certification, the 
court dismissed that portion of plaintiffs' 
case and entered judgment for the defendants 
on September 6, 1985.

II
On appeal, plaintiffs contend that the 

district court's limitation of discovery to 
their individual discrimination claims 
thwarted their efforts to establish that UPS 
engaged in a "pattern and practice" of 
discrimination against blacks. Because 
"class-wide" discovery was not allowed, 
plaintiffs were unable to establish pattern 
and practice discrimination according to 
Teamsters v. United States, 431 U.S. 324,
331, 335-36 (1977) . Teamsters discrimination 
differs from a McDonnell Douglas/Burdine 
Title VII claim in that it allows a plaintiff, 
by preponderance of the evidence, to show 
that an employer had "a pattern or practice 
of employment discrimination" or that 
"disparate treatment" of black employees was

-14A-



the "company's standard operating proce- 
dure--the regular rather than the unusual, 
practice." Teamsters, 431 U.S. at 436. For 
a Teamsters claim, the plaintiff, after 
establishing a prima facie case of discrim­
ination, must then, by the preponderance of 
the evidence, establish that discrimination 
was the "standard operating procedure" of 
the defendant. Most often, the plaintiff 
establishes such a case by statistics, 
bolstered by other testimony. 431 U.S. at 
336, 339.

Plaintiffs' argument is that they were 
prevented from obtaining the class-wide 
discovery related to other black and white 
employees of UPS which would allow them to 
establish through statistics that UPS had a 
"pattern or practice" or standard operating 
procedure of discrimination against blacks.

Ill
We begin with the familiar principles 

that a district court has wide latitude in

- 1 5 A -



controlling discovery and that its rulings 
will not be overturned absent a showing of 
clear abuse of discretion. Rabb v. Amatex 
Corp., 769 F .2d 996, 999 (4th Dir. 1985); 
Belcher v. Bassett Furniture Industries,
Inc., 588 F .2d 904, 907 (4th Cir. 1978); 
Ellis v. Brotherhood of Railway, Airline and 
Steamship Clerks, 685 F.2d 1065, 1071 (9th 
Cir. 1982), aff'd in part and rev'd in part, 
466 U.S. 435 (1984). The latitude given the 
district court extends as well to the manner 
in which it orders the course and scope of 
discovery. Eggleston v. Chicago Journeymen 
Plumbers Etc., 657 F.2d 890, 902 (7th Cir. 
1981), cert, denied, 455 U.S. 1017 (1982) ; 
Sanders v. Shell Oil Co., 678 F.2d 614, 618 
(5th Cir. 1982) . Although it is "unusual to 
find an abuse of discretion in discovery 
matters," Sanders, 678 F.2d at 618, a 
district court may not, through discovery 
restrictions, prevent a plaintiff from 
pursuing a theory or entire cause of action.

- 1 6 A -



Diaz v. American Tel. & Tel., 752 F.2d 1356,
1363 (9th Cir. 1985); Trevino v. Celanese 
Corp., 701 F .2d 397 (5th Cir. 1983).

To put plaintiffs' claims that they 
were improperly denied discovery into 
perspective, it is necessary to examine the 
two broad theories of Title VII cases—  

disparate treatment and disparate impact.
At the outset, it is important to note that 
the two theories are not applied "with 
wooden inflexibility and in unvarying 
accordance with the details of their 
original formulations, nor in mutually 
exclusive fashion." Lewis v. Bloomsburg 
Mills, Inc., 773 F.2d 561, 572 (4th Cir. 
1985) . Nonetheless, the two theories are 
also not "simply interchangeable"— they 
indeed do "reflect critical substantive 
differences as to discrimination in the 
context of Title VII."

The first theory advanced by plaintiffs 
was that they were discriminated against by

- 1 7 A -



their employer because of their race, i.e., 
they were subject to "disparate treatment." 
Those claims require a determination of 
whether the individual plaintiffs were 
victims of racial discrimination. In order 
to show this, the plaintiffs at all times 
have the "ultimate burden of persuading the 
court that [they were] the victim[s] of 
intentional discrimination." Burdine, 450 
U.S. at 256. Whether plaintiffs have in 
fact shouldered the burden is subject to the 
"analytical framework" of McDonnell Douglas 
Corp. v. Green, supra, which is "'intended 
progressively to sharpen the inquiry into 
the elusive factual question of intentional 
discrimination' in private, nonclass Title 
VII cases," Coates v. Johnson & Johnson, 756 
F.2d 524, 541 (7th Cir. 1985), citing 
Burdine, 450 U.S. at 255 n.8. The district 
court here applied the schema of Burdine and 
McDonnell Douglas and plaintiffs make no 
objection to the district court's finding

-18A-



that they did not surmount the hurdel of 
showing that the legitimate, nondiscrimina- 
tory reason [s]" for UPS's treatment of the 
individual plaintiffs were pretextual. 
McDonnell Douglas, 411 U.S. at 802; Burdine, 
450 U.S. at 254.

A second inquiry is necessary where 
plaintiffs, as here, advance a second 
theory--a claim that they were subject to 
disparate treatment in such a way as to make 
them proper representatives of a class 
subject to such treatment. The plaintiffs 
(if proper class representatives) must 
establish individual claims factually 
related to the alleged class claims, since a 
class-based disparate treatment suit proceeds 
on the theory that a company discriminates 
against its black employees by treating them 
differently than its white employees. In 
order to establish a disparate treatment 
claim, otherwise known as a "pattern and 
practice case," plaintiffs must '"prove more

- 1 9 A -



than the mere occurrence of isolated or 
"accidental" or sporadic discriminatory 
acts. [They need] to establish by a 
preponderance of the evidence that racial 
discrimination was the company's standard 
operating procedure— the regular rather than 
the unusual practice.'" Teamsters, 431 U.S. 
at 336, quoted in Pouncy v. Prudential Ins. 
Co. of America, 668 F.2d 795, 802 (5th Cir. 
1982). Statistical evidence may be used in 
a disparate treatment case to show "both 
motive and a pattern or practice of racial 
discrimination. In a proper case, [the 
court] may infer racial discrimination if 
gross statistical disparities in the 
composition of an employer's work force can 
be shown." Teamsters, 431 U.S. at 335 n.15, 
quoted in Pouncy, 668 F.2d at 802. Once 
plaintiffs have established that unlawful 
discrimination has been the company's 
standard operating procedure by way of 
statistical evidence, the burden shifts to

- 2 Q A -



defendants to articulate a reason why such
proof is "inaccurate" or "insignificant" or
to show that they had a nondiscriminatory
reason for the "apparently discriminatory
result." Teamsters, 431 U.S. at 360 n .46;
Coates v. Johnson & Johnson, 756 F.2d at 532.

In summary, the "liability portion of
a . . . class disparate treatment case is
essentially comparable to the framework
outlined in McDonnell Douglas-Burdine for
individual disparate treatment actions," but

[t]he focus in a class action is 
"on a pattern of discriminatory 
decision-making," of which specific 
allegations of alleged discrimina­
tion may be a part, although not 
always controlling if the number 
of such instances is not signifi­
cant. The class action "may fail 
even though discrimination against 
one or two individuals have been 
proved." The pattern or practice 
claim may also fail'— despite any 
statistical evidence offered by 
plaintiffs— if the defendant 
articulates a nondiscriminatory, 
nonpretextual reason for every 
discharge. On the other hand, 
the class claim does not fail 
just because the district court 
finds that the company has satis­
factorily explained the discharges 
of the named class representatives

- 2 1  A -



and any other testifying employees. 
Since strong statistical evidence, 
without anecdotal evidence, may in 
some cases form a prima facie case, 
a defendant's successful rebuttal 
of each alleged instance of dis­
crimination weakens, but does not 
defeat, a plaintiff's class claim. 
Neither statistical nor anecdotal 
evidence is automatically entitled 
to reverence to the exclusion of 
the other.

Coates v. Johnson & Johnson, 756 F.2d at 
532-33 (citations ommitted).

The scope of discovery in Title VII 
cases is geared to allowing plaintiffs to 
proceed under either a disparate treatment 
or pattern or practice theory or both. 
Generally, undue restrictions of discovery 
in Title VII cases are "especially frowned 
upon." Trevino, supra, 701 F.2d at 405.
The restrictions placed on such discovery 
are dictated "only by relevance and burden­
someness ." Rich v. Martin Marietta 
Corporation, 522 F.2d 333, 343 (10th Cir. 
1975) .

In addition, "statistical evidence is
unquestionably relevant in a Title VII

-22A-



disparate treatment case." Diaz, supra, 752 
F„2d at 1362. Such evidence may help 
establish a prima facie case and is often 
crucial for the plaintiff’s attempt to 
establish an inference of discrimination.
Id. Such evidence may also aid the plain­
tiff in showing that a "defendant's articu­
lated nondiscriminatory reason for the 
employment decision in question is pretext- 
ual." Id. at 1363. In a pattern and 
practice case, "[s]tatistical data is 
relevant because it can be used to establish 
a general discriminatory practice in an 
employer's hiring or promotion practices.
Such a discriminatory pattern is probative 
of motive and can therefore create an 
inference of discriminatory intent with 
respect to the individual employment decision 
at issue. In some cases, statistical 
evidence alone may be sufficient to establish 
a prima facie case." Id.

The question here presented is whether

- 2 3  A -



the restrictions placed on discovery by the 
individual claimants prevented them from 
gathering evidence to show that there was 
such a "general discriminatory practice" on 
the part of UPS. Plaintiffs claim they were 
prevented from getting discovery of a 
"class-wide nature," i .e ., discovery relat­
ing to their proposed class action. They 
were restricted to discovery on their 
individual claims and were not allowed to 
get discovery "regarding groups or classes 
of employees, unless such discovery would 
produce information relevant to the 
individual claims."

However, the district court did allow 
discovery as to information regarding others 
similarly situated to the individual 
plaintiffs. For example, UPS provided the 
name, race, prior job, hire date and date the 
individual became a driver for thirteen 
individuals who were part-time bargaining 
employees promoted to full-time package car

24A-



driving positions from January 1, 1980 until 
December 31, 1981, in regard to Marcus 
Ardrey's claim; for James Cherry, UPS 
provided similar information as to the 
twenty-five persons who were part-time 
employees who were promoted to full-time 
package car drivers from January 1, 1978 
until December 31, 1979 and for twenty-four 
who failed to qualify as package car drivers 
in the same period; for plaintiff Joyce Y. 
Massey, UPS provided similar information on 
those promoted to supervisory jobs since 
January 1, 1979.

Conversely, what UPS refused to provide 
was information about promotion to other 
positions, positions which plaintiffs did 
not seek, or concerning the employment 
histories of employees who held jobs which 
were not relevant to individual claims. The 
reason articulated by the district court for 
refusal to grant such discovery was that it 
would be burdensome. We are satisfied that

- 2 5 A -



the district court did not exceed its dis­
cretion in so restricting discovery. 
Plaintiffs' argument that the restrictions 
foreclosed their opportunity to develop a 
pattern and practice case is without merit. 
The discovery allowed as to their individual 
claims was sufficient to develop evidence, 
statistical and otherwise, relating to 
whether discrimination was the "standard 
operating procedure" of UPS in regard to 
their positions, or concerning promotions, 
transfers, suspensions or discipline, 
related to their individual claims.

Plaintiffs confuse their "class-based" 
claims— as potential representatives of a 
class of UPS employees— with their individual 
attempts to show a discriminatory pattern and 
practice by UPS. The district court has the 
responsibility of managing complex Title VII 
litigation under guidelines established by 
the Supreme Court. In East Texas Motor 
Freight v. Rodriguez, supra, the Court has

- 2 6  A -



held that district courts must pay close 
attention to certification of class 
representatives in a Title VII suit. In 
General Telephone Co. of Southwest v.
Falcon, supra, the Court rejected the Fifth 
Circuit's "across the board" rule which 
permitted a class action representative to 
represent, on the basis of his or her 
discrimination claim, a class of persons who 
have no claim in common other than an 
allegation that a defendant company has a 
policy of discrimination. Falcon, 457 U.S. 
at 157. A proper class representative must 
"bridge the gap" between his individual 
claim and the allegation that the defendant 
has a general policy of discrimination 
against others of his or her race. The 
prospective representative must offer proof 
of

much more than the validity of his 
own claim. Even though evidence 
that he was passed over for promo­
tion when several less deserving 
whites were advanced may support 
the conclusion that repondent was

- 2 7 A -



denied the promotion because of 
his [race], such evidence would 
not necessarily justify the 
additional inferences (1) that 
this discriminatory treatment is 
typical of petitioner's promotion 
practices, (2) that petitioner's 
promotion practices are motivated 
by a policy of ethnic discrimina­
tion . . ., or (3) that this 
policy of ethnic discrimination 
is reflected in petitioner's 
other employment practices. . . .

Falcon, 457 U.S. at 158. A district court
errs if it fails "to evaluate carefully the
legitimacy of the named plaintiff's plea
that he is a proper class representative
under Rule 23(a)." Id. at 160. See also
jjiHy v« Harris-Teeter Supermarket, supra,
720 F.2d at 333; Holsey v. Armour & Co., 743
F.2d 199, 216 (4th Cir. 1984), cert. denied,
___ U.S. ___, 105 S.Ct. 1395 (1985).

The district court here correctly 
following the dictate of Falcon to evaluate 
carefully the claims of the individual 
plaintiffs in a Title VII suit. We are not 
in a position to second-guess the district 
court's determination of such matters, given

- 2 8 A -



the complext task of managing the multi­
farious questions which arise in such liti­
gation. While we do not hold that the 
procedure followed by the district court in 
allowing individual discovery, while delay­
ing class-wide discovery, would invariably 
be proper or required under Falcon, it was 
no abuse of discretion here.

Given the wide discovery allowed on the 
individual plaintiff's claims, we hold that 
the district court did not abuse its discre­
tion by foreclosing discovery on plaintiffs' 
pattern and practice claims. The district 
court found that no one of the individual 
plaintiffs had established a prima facie 
case of discrimination by UPS. For the 
foregoing reasons, the decision of the 
district court is

AFFIRMED.



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION
D-C-82-323-P

MARCUS ARDREY, JAMES CHERRY, )
BESSIE EASTERLING, et al., )

)Plaintiffs, )
)

vs- ) 0 R D E R
)UNITED PARCEL SERVICE, )
)Defendant. )

___________________________________)

The Plaintiffs filed this action on May 
20, 1982 alleging they were discriminated 
against by the Defendant because of race, 
sex, and age in violation of 42 U.S.C.
Section 2000e et seq. ("Title VII"), 42 
U.S.C. Section 1981 (Section 1981) and 29 
U.S.C. Section 621 et seq. ("ADEA"). By 
Order of April 9, 1984 the ADEA claims were 
dismissed. The trial was heard before the 
undersigned on November 26, 27, 28 and 
December 21, 1984 in Charlotte, North 
Carolina. The Plaintiffs were represented by

- 3 0 A -



a

Michael A. Sheely and the Defendant was 
represented by William W. Sturges. After 
full trial of the matter, the Court, having 
carefully considered the testimony and 
exhibits, enters the following findings of 
fact and conclusions of law:

FINDINGS OF FACT
(1) The Defendant, United Parcel 

Service ("UPS") is a corporation 
engaged in the interstate trans­
portation of parcels. It.employs 
in excess of fifteen employees and 
is an "employer" within the meaning 
of 42 U.S.C. Section 2000e— (b) and 
a person" within the meaning of
42 U.S.C. Section 1981.

(2) Local Union No. 71 of the Teamsters 
is the bargaining agent at UPS for 
the bargaining unit in which the 
majority of the Plaintiffs are 
members. The positions covered by 
the collective bargaining agreement

package car drivers, feeder 
drivers, part-time loader/unload— 
ers, sorters, car washers, mechan­
ics, and building maintenance. The -31 A-



policy of UPS in reference to 
full-time bargaining unit posi­
tions provides that for every 
three openings two openings would 
be filled by part-time bargaining 
unit employees and the third open­
ing would be filled from the 
street.

(3) There are twelve Plaintiffs in 
this litigation who were all 
employed at the West Carolina 
District of UPS. This district 
encompasses the western part of 
North Carolina and all of South 
Carolina.

(4) The Plaintiff, Marcus Ardrey, a 
black male is currently employed by 
UPS as a full-time car washer 
shifter. He asserts claims of 
racial discrimination in the denial 
of package car driver position and 
preloader position.

(5) The Plaintiff, James Cherry, a 
black male, is currently employed 
by UPS as a full-time package car 
driver. He asserts claims of 
racial discrimination in the denial

-32A-



of a preloader position and in the 
issuing of warnings to him. In 
addition, he claims the warnings 
were issued in retaliation for his 
opposition to practices illegal 
under Title VII.

(6) The Plaintiff, Bessie Easterling 
Brown, a black female, is cur­
rently employed by UPS as a feeder 
driver. She alleges racial dis­
crimination in the issuance of 
warnings to her, the denial of 
time off, her one day discharge 
and her general treatment by the 
supervisors.

(7) The Plaintiff, Lewis Funderburk, a 
black male, is currently employed 
by UPS as a feeder driver. He 
alleges racial discrimination in 
the assignment of feeder driver 
equipment.

(8) The Plaintiff, Horace Jenkins, a 
black male over forty, was for­
merly1 employed by UPS as a package

1
There is a pending EEOC charge about (continued)

-33A- .



car driver. He alleges age and 
racial discrimination in the 
denial of light duty work, the 
removal of the responsibility of 
"call tags" and "one shots" and 
the assignment of equipment. His 
ADEA claim has already been dis­
missed and summary judgment in 
favor of UPS was granted on his 
light duty claim.

(9) The Plaintiff, Joyce Massey, a 
black female, was formerly 
employed by UPS as a part-time 
simulator. She alleges sex and 
race discrimination in her dis­
charge after she was laid off by 
UPS. She was not a member of Local 
Union No. 71.

(10) The Plaintiff, Eugene Neal, a black 
male, is currently employed by UPS 
as a feeder driver. He alleges 
racial discrimination and retalia­
tion in the denial of a supervisor 
position and in assigning overtime 
work. He further testified that

Mr. Jenkins' possible reemployment in 1984. 
The charge is still pending before the EEOC 
and is not included in this litigation.

. - 3 4 A -



racial discrimination exists in 
the assignment of feeder driver 
equipment.

(11) The Plaintiff, Matthew Smith, a 
black male, is currently employed 
by UPS as a feeder driver. He 
alleges racial discrimination in 
the assignment of feeder driver 
equipment and the issuance of 
warnings and suspensions.

(12) The Plaintiff, Carl Watts, a black 
male, is currently employed by UPS 
as a part-time loader. He alleges 
racial discrimination in the denial 
of a package car position and in 
the issuance of warnings.

(13) The Plaintiff, Cheryl Pettigrew, a 
black female, was formerly 
employed by UPS as a tracer clerk. 
She alleges racial discrimination 
in her treatment by her supervisor, 
her training and her subsequent 
discharge.

(14) The Plaintiffs, Jerome Morrow and 
Henry Tyson, black males, are cur­
rently employed by UPS as full-

• - 3 5 A- -



time car wash shifters. They 
allege racial discrimination by 
having to work in a racist atmos­
phere .

(15) All of the Plaintiffs allege 
racial discrimination by being 
subjected to work in a racist 
atmosphere.

(16) All of the Plaintiffs filed a 
timely charge with the Equal 
Employment Opportunity Commission 
("EEOC") and exhausted their 
administrative remedies.

A. ARDREY - PACKAGE CAR DRIVER

(1) On April 7, 1980 Mr. Ardrey 
applied for a full-time package 
car position. His application 
revealed he was convicted on July 
16, 1979 of a DUI and his license 
was suspended for six months.

(2) Applicants for driving jobs must 
meet designated pre-qualification 
requirements before they are 
accepted as candidates to qualify 
as drivers. One of these require-

- 3 6 A -  -



ments is that an applicant must 
have an acceptable driving record 
for the past three years. Such a 
record has been defined as one 
that does not have a license 
suspension or revocation within 
the past three years for, among 
other reasons, driving under the 
influence.

(3) Mr. Ardrey was denied the opportu­
nity to qualify for a driving job 
because he did not have an accept­
able driving record for the pre­
ceding three years because of the 
DUI conviction.

There is not any evidence that any 
white person was allowed to qualify 
without meeting the three year 
clean record requirement. Mr. 
Ardrey does not contend that the 
Company's failure to qualify him 
because of his DUI was a pretext 
for discrimination.

(4) Mr. Ardrey complains because he was 
mistakenly told by two white 
management employees that it was 
only two years. Mr. Johnson, a

- 3 7  A -



black supervisor, told Mr. Ardrey 
that it was three years. It is 
not clear why Mr. Ardrey contends 
the mistake is suppose to corre­
late to race.

(5) The Court finds that Mr. Ardrey 
failed to show that in applying 
for the package car position he 
was treated differently because of 
his race. (The Plaintiff's 
Proposed Findings of Fact also 
state that Mr. Ardrey failed to 
prevail on this claim.)

PRELOADER - ARDREY AND CHERRY

1. Ardrey's Training
(1) Mr. Ardrey was hired by UPS in 

August 1973 as a part-time trailer 
unloader. He was in the military 
between August 1975 and August
1979. In October 1979 he 
returned to UPS as a part-time 
unloader.

(2) On February 11, 1980 Mr. Ardrey 
began training for a full-time 
preloader position on the sortrac. 
The qualification period is thirty



days.

(3) The sortrac is a 250 feet long 
conveyor belt with twelve slides 
on each side of the conveyor belt. 
Belts carry packages which are 
diverted down the slides for load­
ing into package vans. There are 
approximately forty package cars 
parked on each side at the end of 
the slides for loading. The 
slides are eight to ten feet long 
and ten feet wide. The higher end 
of the slide is about five and a 
half feet and the lower end is 
about three feet. There are return 
conveyor belts beneath the slides.

(4) Preloaders also work in the "box­
line" area which is next to the 
sortrac. Packages in the boxline 
are delivered to the preloaders by 
being placed in cages which are on 
a continually running conveyor 
belt. The parties disagree as to 
what is the easiest area to work 
on the sortrac.

(5) The keyers divert packages to the 
slides and cages. A package which

- 3 9 A -



is incorrectly keyed and does not 
belong on a slide is a missort or 
miskey.

(6) Ken Hudson, a white male, super­
vised six employees on one side of 
the sortrac and Jim Stone super­
vised the employees on the other 
side. Mr. Hudson's immediate 
supervisor was Rich Young, the 
sortrac manager.

(7) Mr. Ardrey's qualification super­
visor was Ken Hudson. Mr. Ardrey 
was assigned slides A-54 and A-25, 
side by side in the sortrac area.

(8) The job of preloader is to remove 
the packages from the slide and 
load them in the designated loca­
tions inside the package cars.
There were three to four vans 
assigned to each slide. The pack­
ages were placed in the package 
cars in terms of a sequence deter­
mined by the route of the package 
car. A "sequence chart" estab­
lished the order. A "sequence 
number" was determined by an 
address. Certain customers, due to

- 4 0  A -



their volume, receive sequence 
numbers. Eighty percent of the 
packages loaded on the cars are 
placed within twenty percent of 
the sequence numbers in the car.
The sequence chart was a computer 
print out which was usually 
received daily at the beginning of 
the shift. The sort work hours 
were from 11:00 p.m. to 8:00 or 
8:30 a.m.

(9) UPS implemented standard training 
programs for training employees 
attempting to qualify for the var­
ious positions. Each training 
program was designed for the needs 
of the particular position.

(10) UPS utilized a standard training 
program for training preloaders.
At the completion of the training 
period the employee is required to 
meet an established minimal level 
of competency in order to be quali­
fied (receive seniority) as a pre­
loader .

(11) To attain seniority as a preloader 
the employee must meet at least a

-41A- ■



200 package production rate at the 
end of his training period. There 
was not any evidence that any 
employee, black or white, was 
allowed to gain seniority as a 
preloader without satisfying this 
200 package set level of compe­
tency ,

(12) Mr. Ardrey failed to meet the 200 
package quota and therefore was 
not allowed to qualify as a pre­
loader. Mr. Ardrey testifies that 
he was unable to satisfy the 
requirement because he received 
inferior training and harder 
assignments because of his race.

(13) Mr. Ardrey testified that his 
training was sparse and that the 
only training he received was on 
"stop count" and "off load" of 
packages. This training was 
received during the first three 
days of his qualification period. 
Although Mr. Ardrey conceded that 
he received help from other 
employees when his belt jammed, he 
contended that the help was "late"

- 4 2 A -



and caused Mr. Ardrey to lose his 
production level since efforts 
would be spent in clearing the 
slides. Mr. Ardrey further testi­
fied that training on slides A-54 
and 25 was more difficult because 
these slides were at the beginning 
of the main belt and were more 
likely to jam. Each time the belt 
jammed packages not belonging in 
the A-54 and 25 slides were pushed 
on the slides which would slow Mr. 
Ardrey's production. Mr. Ardrey, 
in addition, testified that he 
knew the A-54 slide chart "pretty 
well". He was tested twice on his 
chart knowledge and only scored 
30% on each test. Finally, Mr. 
Ardrey testified that he received 
more missorts and miskeys than 
white trainees and was not promptly 
informed of added or deleted stops 
during his shift.

(14) UPS contends that Mr. Ardrey 
received the same training, 
assistance and opportunity to 
qualify as any other employee, 
black or white. On Mr. Ardrey's

- 4 3 A -



first day of training he received 
orientation on personnel matters 
from Martin Taylor. Mr. Ardrey 
began his on-the-job training the 
second day. This training 
involved personal training in all 
aspects of the job by Mr. Hudson. 
The same training was repeated the 
next day. Mr. Hudson testified 
that he spent approximately 70% of 
his time with Mr. Ardrey during 
these initial two days.

(15) On the fourth day Mr. Ardrey
received his first sortrac trainee 
evaluation by Mr. Hudson. At this 
time Mr. Ardrey was only loading 
the A-54 area. Mr. Hudson reviewed 
this evaluation with Mr. Ardrey.
Mr. Hudson rated Mr. Ardrey good in 
attendance, attitude, follows 
instructions, and parcel knowledge. 
He was rated fair in production, 
retention, personal safety and 
knowledge of job. At this time 
Mr. Ardrey was averaging eighty- 
five pieces per hour which is 
average progress at this stage.
Mr. Hudson recommended that

- 4 4 A -



Mr. Ardrey become more familiar 
with 80/20 (chart) knowledge.
This evaluation is documented by 
a contemporaneously written evalu­
ation signed by Mr. Ardrey (Def.
Ex.  13) .

(16) On the fourth day another written 
evaluation was prepared, which 
evaluation is signed by Mr. Ardrey. 
It states that Mr. Ardrey needs to 
become more aggressive and enthu­
siastic, although his lack of 
enthusiasm is in part due to his 
lack of job knowledge. The evalu­
ation further provides that his 
attitude, retention, service, and 
personal safety is good, he fol­
lows instructions well and his 
production is acceptable. (Def.
Ex .  1 4 ) .

(17) On his fifth training day, Mr. 
Ardrey was evaluated on his slide 
to car methods. These methods 
involve essentially activities at 
the slide pre-sorting packages so 
that optimum carries can be made in 
loading the package cars and

. -4-5 A-



activities within the car in 
shelving the packages properly.
In the slide to car evaluation 
Mr. Ardrey received a good in the 
majority of the categories. Mr. 
Hudson, however, stressed that Mr. 
Ardrey needs to improve his speed, 
chart knowledge, and optimum car­
ries. This evaluation was docu­
mented and signed by Mr. Ardrey. 
(Def. Ex. 15) .

(18) Mr. Ardrey's average package per 
hour rate at the end of his first 
week was eight-three packages.
This end-of-the-week progress 
report is documented. (Def. Ex.
16) .

(19) On February 18, 1980 Mr. Ardrey was 
given a written 80-20 chart knowl­
edge test. Mr. Ardrey scored 30% 
on the test. This test is docu­
mented and signed by Mr. Ardrey. 
(Def. Ex. 17). After the test, Mr. 
Hudson counseled Mr. Ardrey that 
UPS expected 200 packages per hour 
in order to gain seniority and that 
he should be able to handle A-54 
the first week without problems

- 4 G A -



because the second week A-25 would 
be added and A-88 would be added 
the third week. Further, Mr.
Hudson reviewed his current 
production level and reviewed 
where he needed to be week by 
week. Mr. Hudson told Mr. Ardrey 
that he must study and learn the 
80-20 charts given to him. This 
counseling was documented in Mr. 
Ardrey’s file. (Def. Ex. 18).
(Def. Ex. 20) .

(20) On February 19, 1980 Mr. Hudson 
worked with Mr. Ardrey for eight 
hours reviewing the preload pro­
cedures and good methods. Mr. 
Hudson worked with Mr. Ardrey to 
demonstrate the work pace needed 
to reach the established goals.
Mr. Ardrey replied that this pace 
"was killing him." Mr. Hudson pre­
pared a written report documenting 
this training. (Def. Ex. 19).

(21) In addition, on February 19, 1980 
Mr. Young (the preload manager) 
performed a slide to car evaluation 
on Mr. Ardrey. Mr. Young observed

-47A-



that Mr. Ardrey's chart knowledge 
was insufficient at 56%, that he 
was not selecting packages for 
optimum carries to one car and 
that his work pace lacked a sense 
of urgency or aggressiveness. The 
evaluation was documented and 
signed by Mr. Ardrev.

(22) On February 20, 1980 Mr. Hudson 
performed the second sortrac 
trainee evaluation, day nine. Mr. 
Ardrey was rated good in atten­
dance, retention, personal safety, 
following instructions, and parcel 
handling. His attitude and job 
knowledge was fair. It was recom­
mended that he needed to improve 
his speed and chart knowledge. In 
fact, his package per hour rate 
was still at eight-five, having not 
increased at all over his first 
week's rate. This evaluation was 
documented and signed by Mr.
Ardrey. (Def. Ex. 21).

(23) On February 22, 1980 Mr. Hudson 
worked with Mr. Ardrey on using 
better methods for space utiliza­
tion within the car. Mr. Hudson

. -4  8 A -



demonstrated the proper procedure 
for adjusting shelves and moving 
steps on the shelves for maximum 
utilization of existing shelf 
space. This training was docu­
mented by Mr. Hudson. (Def. Ex.
23) .

(24) In addition, on February 22, 1980, 
Mr. Hudson performed the tenth 
day, slide to car evaluation of 
Ardrey. Mr. Ardrey was rated good 
to very good in many areas. His 
package per hour rate, however, 
was only 96% and he had to refer 
to the chart eight out of sixteen 
times. He was told that he needed 
to improve his pre-sorting and 
that his chart knowledge "reveals 
a great need for improvement.
Chart knowledge from observation 
shows little or no chart knowl­
edge." This evaluation was docu­
mented and signed by Mr. Ardrey. 
(Def. Ex. 24).

(25) On February 25, 2980 Mr. Young 
completed the center manager's 
review with pre-seniority employee.
Mr. Young found Mr. Ardrey to be

... -49A- ~



strong in personal safety and stop 
for stop training. He was found 
to be weak in speed, chart knowl­
edge, stop count accuracy and 
production. Although his produc­
tion level should have been 150 
packages per hour at this time it 
was only ninety-eight. He was 
advised that he needed to improve 
his speed in loading and should be 
able to load the area without help 
at this juncture. This review was 
documented and signed by Mr.
Ardrey. (Def. Ex. 25).

(26) Mr. Hudson performed the third
sortrac evaluation and commentary, 
day fifteen, of Mr. Ardrey on 
February 28, 1980. Mr. Ardrey was 
rated good in attendance, personal 
safety, following instructions, and 
handling parcels. He was rated 
fair in attitude, production, 
retention and job knowledge. Mr. 
Ardrey's production level was only 
100 packages per hour. Mr. Hudson 
told Mr. Ardrey that he needed to 
study the charts and increase his 
speed and chart knowledge. Further 
his production needed "drastic

- 5 0 A -



improvements". This evaluation 
was documented by Mr. Hudson.
(Def. Exs. 26, 27).

(27) On February 29, 1980, his six­
teenth day, Mr. Ardrey received 
his third slide to car evaluation. 
Mr. Ardrey continued to be rated 
good to very good in the same 
areas and his space utilization 
had improved. He, however, con­
tinued to be deficient in chart 
knowledge and speed. He was 
advised his chart knowledge was 
less than it should be and that he 
needed to improve this deficient 
chart knowledge by studying his 
80—20 sheets. If his speed and 
knowledge were not increased he 
would never be able to progress to 
the A-25 slide. This evaluation 
was documented by the Defendant. 
(Def. Ex. 28).

(28) On Mr. Ardrey's seventeenth train­
ing day, Mr. Young with the assis­
tance of Mr. Hudson conducted a 
center manager's review with pre­
seniority employee about Mr. Ardrey. 
Mr. Ardrey's strong area was stop 

-51 A-



for stop loading. His weak areas 
were counts, wrap up, and work 
rate. Mr. Ardrey's actual produc­
tion rate was 114 packages per 
hour, significantly below the 200 
planned production level. Mr. 
Ardrey was advised that he needed 
drastic improvement in his wrap up, 
stop counts and work rate by March 
8, 1980 or he would not gain 
seniority. This evaluation was 
documented and signed by Mr.
Ardrey.

(29) On his twentieth training day Mr. 
Ardrey received his final sortrac 
trainee evaluation. His atten­
dance, personal safety, following 
instructions, handling parcels and 
job knowledge was rated good. His 
attitude and retention was found 
to be fair. His production rating 
was poor. His production rate had 
dropped to eighty-nine considerably 
below the 175 to 200 piece per 
hour plan rate. The evaluation was 
documented by Mr. Hudson. (Def.
Ex. 30).

- 5 2 A -



(30) Mr. Hudson also prepared a final 
slide to car evaluation. Mr.
Ardrey continued to receive good 
ratings in the same areas and his 
space utilization was greatly 
improved. He, however, continued 
to have a serious problem with 
chart knowledge. He was given an 
80-20 test and only scored 30%.
In observation Mr. Hudson found 
that Mr. Ardrey handled seventy- 
two packages per hour with only 
33% chart knowledge. His low 
level of production was due to his 
lack of chart knowledge. Mr.
Hudson documented this evaluation. 
(Def. Exs. 32, 34) .

(31) Mr. Hudson's final pre-seniority 
evaluation of Mr. Ardrey on March 
11, 1980 concluded that Mr.
Ardrey's attitude seemed less than 
eager, that he failed to study the 
80-20 study sheets and as a result 
his production was hampered. Mr. 
Hudson did not recommend Mr. Ardrey 
for seniority. This evaluation was 
documented by Mr. Hudson. (Def.
Ex. 33).

- 5 3 A -



(32) On March 11, 1980 Mr. Hudson pre­
pared a detailed memorandum sum­
marizing his reasons for not 
being able to recommend Mr.
Ardrey for seniority. The memo­
randum in part provides:

The reasons for not wrap­
ping up are due in part 
to a long standing lack 
of chart knowledge. This 
is upheld by the test 
scores of the 80-20 study 
sheets. This in itself 
has hampered Marcus from 
becoming qualified in 
this particular area. I 
feel with the lack a [sic] 
aggressiveness to study 
these sheets and become 
familiar with his work 
area has greatly decreased 
his chance of becoming a 
seniority employee.

The aggressiveness that 
should be present with a 
pre-senior employee seemed 
lacking in Marcus. I feel 
greatly that Marcus has

-54A-



the ability to become a 
preloader if he wants 
to. But, without the 
effort and enthusiasm 
to pursue the require­
ments of the job he has 
fallen short of his 
recommended levels of 
production.

Marcus has only reached 
an average production 
rate of around 114 
pieces per hour. At 
this rate he will never 
be total [sic] capable 
of loading this assigned 
area.

Due to the above on this 
23rd day of pre-seniority,
I personally do not 
recommend Marcus Ardrey 
for gaining seniority in 
my operation.

(33) On March 12, 1980 Mr. Hudson pre­
pared a "Synopsis of Work 
Performance" regarding Mr. Ardrey.

-  55 A -



After describing Mr. Ardrey's 
failure to attempt to learn the 
charts, Mr. Hudson noted

These factors alone show 
that Marcus was determined 
to perform by his standards 
rather than perform by the 
expectations of myself. He 
presented himself as if he 
were going to qualify in 
his own terms.

I feel attitude and 
mispeculation [sic] of our 
operation was the major 
problem that lead to his 
disqualification. I also 
feel Marcus did not have 
any idea that we could 
disqualify him.

(Def. Ex. 36 B).

(34) On March 12, 1980 Mr. Young, Mr.
Hudson and Mr. Ardrey met to dis­
cuss Mr. Ardrey's status. Mr. 
Young asked Mr. Ardrey how he felt 
his progress was as a pre-sorter. 
Mr. Ardrey replied "that his

- 5 6 A -



progress was about the same as 
day one." Mr. Ardrey was advised 
that he was being disqualified 
from the sortrac. He responded 
that he had never heard of anyone 
being disqualified from the 
sortrac. Mr. Young informed Mr. 
Ardrey that although in the past 
preloaders had not been properly 
trained, within the past six 
months UPS had set these basic 
requirements for all new preload­
ers. Since that time some 
employees had qualified and some 
had not qualified, depending on 
whether they met the requirements 
in the pre-seniority training.
This meeting is documented. (Def. 
Ex. 36 A).

(35) After Mr. Ardrey's disqualifica­
tion he was returned to a part-time 
position with UPS.

(36) On March 19, 1980 Mr. Ardrey filed 
a grievance with the union contest­
ing his disqualification from the 
sortrac. The grievance does not 
mention or even allude to improper 
treatment because of his race.



Mr. Ardrey claimed that UPS used 
improper procedures for qualifying 
employees, which standards have 
not been agreed upon by Local 71. 
Mr. Ardrey felt that the require­
ments were unfair because UPS was 
requiring loading standards higher 
than those required of full-time 
qualified employees. (Def. Ex. 1).

(37) Mr. Ardrey stated that the union 
grievance was settled by allowing 
him and Mr. Cherry to try and qual­
ify for the next full-time job on 
the sortrac without waiting one 
year, which wait is normally 
required when an employee is dis­
qualified from a job.

(38) After the settlement of the 
grievance Mr. Ardrey was offered a 
full-time car wash job, which job 
he refused to accept. Thereafter, 
Mr. Ardrey filed another grievance 
claiming that UPS did not abide by 
the settlement terms of the first 
grievance. (Def. Ex. 2). Mr. 
Ardrey did not prevail on his 
second grievance. He was not 
offered another opportunity to

- 5 8 A -



qualify on the sortrac nor was he 
offered another full-time position 
in settlement of the first 
grievance.

2. CHERRY'S TRAINING

(1) James Cherry was hired by UPS in 
August 1973 into a bargaining unit 
position of part-time unloader.
In this litigation he complains 
that he was disqualified in his 
attempt to qualify as a preloader 
on the sortrac because of his race 
in violation of 42 U.S.C. Section 
1981. He did not file an EEOC 
charge covering this allegation.

(2) Mr. Cherry began training for a 
full-time preloader job on the 
sortrac on January 7, 1980.

(3) His training supervisor was Mr. 
Hudson and his area supervisor was 
Mr. Young. He was trained on the 
slides for areas 54 and 25. He was 
trained by the same supervisors and 
trained on the same slides as Mr. 
Ardrey. Mr. Cherry's qualification 
period also was for thirty working

- 5 9 A -



days, under the same standard 
training program.

(4) On January 7, 1980 Mr. Cherry was 
given the orientation on personnel 
matters by Martin Taylor (Def. Ex. 
109) .

(5) On January 10, 1980 Mr. Hudson
gave Mr. Cherry his first sortrac 
trainee evaluation, day four. The 
evaluation reports that Mr. Cherry 
is enthusiastic, very aggressive, 
has a good attitude, follows 
instructions well, and is very 
service minded. His weaker areas 
were knowledge of the job, his 
speed and his production. This 
evaluation is documented and
signed by Mr. Cherry. (Def. Ex.
110, 111).

(6) On his fifth day, Mr. Cherry was
evaluated on his slide to car 
methods. In this evaluation, Mr. 
Cherry was found to have a good 
pre-sort, car and post sort
routine. He, however, needed to
improve his speed in loading which 
was slow due to his lack of chart

-60A-



knowledge and having to con­
stantly refer to the charts. This 
evaluation is documented and 
signed by Mr. Cherry. (Def. Ex. 
1 1 2 ) .

(7) On the fifth day, Mr. Hudson also 
performed a productivity evalua­
tion. Mr. Cherry's planned pro­
duction rate was 125 packages per 
hour. His actual rate was ninety- 
four packages per hour. Mr.
Hudson recommended that Mr. Cherry 
should improve his chart knowledge 
which would result in an increase 
in his package per hour rate. This 
evaluation is documented and signed 
by Mr. Cherry. (Def. Ex. 113).

(8) On January 15, 1980, Mr. Cherry's 
progress was reviewed. Mr. Cherry, 
after six days, was not able to 
slide area 54 without any help, 
even though he received extensive 
training for three days and had 
received training each day there­
after. It was stressed to him that 
by the end of the week he should be 
able to load areas 54 and 25 with­
out help. He was told that he

-61 A-



would be given an 80-20 test the 
next day for which he should study 
and that UPS expected to witness 
some improvement by January 18, 
1980 or he would be disqualified. 
This review is documented. (Def. 
Ex. 114) .

(9) The following day Mr. Cherry cor­
rectly answered only one out of 
the eleven questions on the 80-20 
test. (11%). The test covered 
slide A-54. (Def. Ex. 118).

(10) The test results were thought to 
reflect the major problem that Mr. 
Cherry had in his work area.
Again, it was stressed to him that 
if his performance did not 
increase by Friday he would be 
disqualified. This review is 
documented. (Def. Ex. 115).

(11) On Mr. Cherry's ninth day of train­
ing, Mr. Hudson prepared the second 
sortrac evaluation and commentary. 
Mr. Cherry received a good in 
attendance, attitude, personal 
safety, following instructions and 
parcel handling. His production

- G 2 A -



rate, however, was only at ninety 
pieces per hour. Thus he only 
received a fair rating in produc­
tion, retention and job knowledge. 
This report is documented. (Def. 
Ex. 116).

(12) On the day nine commentary Mr. 
Cherry was found to be enthusias­
tic, aggressive, service minded, 
and showing improvement. His 
production level, however, still 
was not on an acceptable level and 
needed improvement. This commen­
tary is documented. (Def. Ex.
117) .

(13) On January 18, 1980 Mr. Cherry took 
an 80-20 test for area 54 on which 
he scored 90%. Mr. Hudson recom­
mended, in light of his reasonable 
progress, that he not be disquali­
fied. Mr. Hudson did qualify his 
recommendation by noting that Mr. 
Cherry "has a long way to go to 
become qualified as a seniority 
employee." (Def. Ex. 119).

(14) On Mr. Cherry's tenth day of train­
ing he met with Mr. Young and

> .6 3  A -



Mr. Hudson to review his progress. 
By then Mr. Cherry had attained a 
production rate of 115 packages 
per hour. It was agreed that Mr. 
Cherry would have to attain a goal 
of 175 packages per hour by 
January 15, 1980 and that he would 
have to handle areas 54 and 25 
without assistance. Area 88 would 
be added the following week so he 
could attain 200 packages per hour. 
Mr. Cherry indicated that these 
goals seemed reasonable and that 
he could attain them. He was 
encouraged to put some extra 
effort in learning the sequence 
numbers from the 80-20 charts.
This meeting was documented. (Def. 
Ex. 121) .

(15) On the January 21, 1980 slide to
car evaluation Mr. Cherry continued 
to receive positive remarks on his 
pre-sort, car and post sort proce­
dures. He, however, was slow to 
develop his chart knowledge, which 
knowledge along with package per 
hour rate and wrap up needed dras­
tic improvement. This evaluation 
is documented. (Def. Ex. 122).

.-64A-



(16) The second productivity evaluation 
revealed that Mr. Cherry's actual 
package per hour rate was only 
seventy-seven, compared to the 
planned rate of 105. It was 
recommended that if he improved 
his chart knowledge his overall 
production rate would improve.
This evaluation is documented and 
signed by Mr. Cherry. (Def. Ex. 
123) .

(17) On his second chart test Mr.
Cherry scored 100%. Despite this 
good score, when he worked he 
continued to refer to the charts 
too much which hindered his produc­
tion rate. He still was not able 
to manage areas 54 and 25. This 
evaluation is documented. (Def.
Ex. 125).

(18) On January 22, Mr. Cherry scored 
80% on the chart test. (Def. Ex. 
126) .

(19) On January 23, 1980 Mr. Hudson 
reported to Mr. Young that Mr. 
Cherry had not yet been able to 
load slides A-54 and A-25. His

- 6 5 A -



80-20 test scores had improved 
but his overall production rate 
was too low for this stage of 
training.' He was still referring 
to his charts too much. Mr.
Hudson reported that Mr. Cherry 
would have to make considerable 
gains in his work pace to qualify. 
This report is documented. (Def. 
Ex. 127).

(20) On January 25, 1980 Mr. Young per­
formed a slide to car evaluation 
of Mr. Cherry. He found an 
improvement in Mr. Cherry's knowl­
edge. Mr. Cherry, however, was 
using improper selection methods 
so he would load only the packages 
he knew. Mr. Young was of the 
opinion that this caused Mr. Cherry 
to end up at the end of his shift 
with all the packages he did not 
know. Further, Mr. Cherry was not 
carrying optimum loads to the 
package cars. On eight occasions 
he carried more than one package.
On thirty-one occasions, however, 
he carried only one package. This 
evaluation is documented. (Def.
Ex. 128).

-66A-



(21) On Mr.Cherry's fifteenth day of 
training, Mr. Hudson prepared the 
third sortrac trainee evaluation. 
Mr. Cherry continued to receive 
good ratings in all of the cate­
gories except production and 
retention. His production rate 
was at 110 pieces per hour. This 
evaluation is documented and 
signed by the Plaintiff. (Def.
Ex. 129).

(22) Mr. Cherry's third slide to car 
evaluation was prepared by Mr. 
Hudson. He continued to receive 
positive ratings on his pre-sort, 
car and post sort procedures. He, 
however, still needed to improve 
his chart knowledge and to carry 
optimum loads. In loading thirty 
packages he had to refer to the 
chart eleven times. This report 
is documented and signed by Mr. 
Cherry. (Def. Ex. 130) .

(23) In the sortrac commentary Mr. 
Hudson found Mr. Cherry to be 
aggressive, enthusiastic and very 
service minded but he needed to 
improve his production. This

-6,7A- ■



commentary is documented. (Def.
Ex. 131).

(24) On January 28, 1980 Mr. Cherry 
received his third productivity 
evaluation. He loaded thirty 
packages in ten minutes. Mr. 
Hudson remarked that Mr. Cherry 
needed to improve his optimum car­
ries and thus increase his pack­
age per hour rate. His total pro­
ductivity rate needed to be much 
higher. This evaluation is docu­
mented. (Def. Ex. 132).

(25) On his twentieth training day, Mr. 
Hudson performed the final sortrac 
trainee evaluation. His package 
per hour rate was only at 100 pack­
ages and thus he received a poor 
rating on production. His produc­
tion was far below where it should 
have been at 200 packages per hour. 
This evaluation is documented and 
signed by the Plaintiff. (Def. Ex. 
133) .

(26) On the final sortrac commentary Mr. 
Cherry received good ratings except
as to his production which was 

. -68A- ...



rated poor at 100 packages per 
hour. This final commentary is 
documented (Def. Ex. 134).

(27) Mr. Cherry's production during the 
week ending February 2, 1980 
ranged from a high of 133 pack­
ages per hour to a low of ninety- 
four packages per hour. This 
range was far below the 200 pack­
age per hour planned rate. This 
week average evaluation is docu­
mented. (Def. Ex. 135).

(28) The final productivity evaluation 
of Mr. Cherry on his twenty-second 
day of training found his actual 
production at 111 packages per 
hour. Mr. Hudson noted that with­
out an improvement of eighty-nine 
packages by Friday, Mr. Hudson 
would not be able to recommend Mr. 
Cherry for seniority. This evalua­
tion is documented. (Def. Ex. 136).

(29) On the final slide to car evalua­
tion dated February 5, 1980 Mr. 
Hudson rated Mr. Cherry very good 
on pre-sort, slide and post sort 
procedures. In summarizing his

- 6 9 A -



performance, however, he stated 
that Mr. Cherry's production is 
poor, he needs improvement and he 
has reached a stalemate in his 
progression. This final evalua­
tion is documented. (Def. Ex.
138) .

(30) On Mr. Cherry's final pre­
seniority evaluation Mr. Hudson 
did not recommend him for senior­
ity because of his low productiv­
ity. The evaluation provides that

James has tried hard - very 
hard and has been very good 
in all stop for stop 
service audits in this per­
iod. James' biggest problem 
is his productivity. He is 
slow is [sic] organization 
and performance of job 
function.

(31) The following day, Mr. Young and 
Mr. Hudson met with Mr. Cherry to 
discuss his progress. Mr. Young 
told Mr. Cherry that his progress 
was not satisfactory on his twenty
third day of his thirty day

- 70A-



training program. Mr. Cherry 
seemed to be stuck at the 100 to 
110 package per hour level. Mr. 
Cherry was reminded that 200 
packages per hour was required for 
seniority. He was advised that 
basically he was being held back 
by spending too much time on the 
slide selecting packages and not 
having enough optimum carries.
Mr. Young further told Mr. Cherry 
that he would observe his work 
later during the shift and that by 
Friday, February 8, 1980 he needed 
to be loading 200 packages per 
hour and handling slides 54 and 25 
without any help in eight hours.

Mr. Cherry stated that he thought 
the problem was too many miskeys. 
Mr. Young told him that the 200 
package per hour rate took into 
account the work required by mis­
keys and that Mr. Cherry should 
stack his miskeys for Mr. Young 
and Mr. Hudson to inspect. This 
meeting is documented. (Def. Ex. 
139) .

(32) Later during the shift Mr. Young
-71 A-



performed a slide to car evalua­
tion of Mr. Cherry. In the six­
teen minute observation Mr. Cherry 
handled fifty-two packages which 
equals a production rate of 195 
packages per hour. Mr. Young 
found that Mr. Cherry did not sort 
quickly and efficiently on the 
slide and that 50% of his loads 
were single carries. Again, the 
single carries reflected the fact 
that Mr. Cherry was selecting 
packages with familiar sequence 
numbers in order to increase his 
chart knowledge rating. The mis- 
key rate was only 3.5%. This 
slide to car evaluation is docu­
mented. (Def. Ex. 140).

(33) During Mr. Cherry's last week of 
training his actual package per 
hour rates were 145, 99, 116 and 
134. His highest actual package 
per hour rate during his entire 
training period never exceeded 145. 
His actual package per hour rates 
for his last week and for his 
entire training period are docu­
mented. (Def. Exs. 142, 143).

- 7 2 A -



(34) On February 8, 1980 Mr. Young,
Mr. Hudson, and Mr. Cherry met to 
assess Mr. Cherry's standing after 
twenty-five days of training.
They compared Mr. Cherry's actual 
performance to the stated require­
ments. In that Mr. Cherry had 
failed to meet the standard of 200 
packages per hour he was advised 
he was being disqualified for lack 
of performance.

Mr. Cherry's reaction to 
this was with self disap­
pointment and a plea for 
reconsideration. We told 
him that his time had ran 
[sic] out for reconsidera­
tion, that we had extended 
his time five days already 
with hopes things would 
work out for him.

We told James, we felt he 
had tried hard and had 
given us good effort these 
past weeks. Although, we 
have certain expectations 
of presenior people and

-73A-



we cannot vary from 
those expected standards.
All presenior people have 
to achieve the same 
requirements with no 
exceptions.

This meeting is documented. (Def. 
(Ex. 141).

(35) After Mr. Cherry's disqualifica­
tion he was returned to a part- 
time position with UPS.

(36) On February 10, 1980, Mr. Cherry 
filed a grievance with the union

( contesting his disqualification
from the sortrac. The grievance 
states that he failed to reach the 
required production rate because 
he was improperly trained. Mr. 
Cherry contended that he "should 
be retrained and given a chance to 
qualify for the job due to the 
improper training methods of man­
agement." The grievance does not 
mention race as a factor and does 
not complain that he received 
improper training from management 
because of his race. (Def. Ex.

. *74A-



104) .

(37) The grievance was settled by an 
agreement that Mr. Cherry would
be offered a chance to qualify for 
the first full-time job opening 
and Mr. Ardrey for the second full­
time opening in the hub.

(38) Pursuant to the settlement agree­
ment Mr. Cherry was offered a 
full-time car wash job which he 
turned down. He subsequently 
qualified as a package car driver 
in April 1980.

3. Ardrey and Cherry - Alleged 
Disparate Treatment

(1) The parties do not dispute that
Mr. Ardrey and Mr. Cherry failed to 
meet the 200 package per hour 
requirement and that it was a 
legitimate requirement. See, 
Plaintiff's Proposed Findings of 
Fact, p. 82. Mr. Cherry and Mr. 
Ardrey contend that they could not 
reach this requirement because they 
received differential treatment in

- 7 5 A -



their training programs because of 
their race. This alleged differ­
ential treatment encompasses less 
training, less help during slide 
jams, less encouragement, (i.e., 
negative work environment), more 
miskeys and inferior equipment 
(harder slide assignments and 
dated charts.)

(2) Mr. Lewis and Mr. Morrow, black 
employees with UPS, testified to 
the same effect, that white 
trainees received more training, 
better slides, timely help, more 
reinforcement, less jams and less 
miskeys than black trainees. Mr. 
Morrow went as far as to state 
that "it was suspect" that black 
trainees were intentionally given 
more miskeys. Mr. Morrow had 
absolutely no evidence to support 
his suspicion of intentional 
wrongdoing, except for his feeling 
that black trainees received more 
miskeys than white trainees.

(3) The Court, after carefully con­
sidering all the evidence, does not 
find that Mr. Ardrey, Mr. Cherry,

-  76 A -



or any other black trainee 
received differential treatment. 
The Court is of the opinion that 
there were glitches that needed to 
be ironed out in the training 
program, such as problems with 
miskeys and jams on the Sortrac. 
These problems, however, did not 
effect just Mr. Ardrey, Mr. Cherry, 
or the black employees and cer­
tainly these problems were not 
created because of race. They 
were legitimate run-of-the-mill 
business problems. Furthermore, 
as to Mr. Ardrey, these problems 
would not have any effect on his 
ability to study his charts and 
thus develop his chart knowledge. 
Chart knowledge is a requirement 
in which success was totally 
dependent on the time and effort 
Mr. Ardrey devoted to studying the 
charts. Mr. Ardrey acknowledged 
that he lack of chart knowledge 
was one of the primary reasons for 
his disqualification.

(4) Mr. Ardrey and Mr. Cherry com­
plained about the belt jamming and 
about receiving sequence charts too

■■ - 7 . 7  A -



late in the shift. When a jam 
occurs the entire belt is stopped. 
All of the employees pitch in 
wherever the help is needed to 
clear the jam because the longer 
the jamming persists the more dif­
ficult it becomes to complete 
loading of all of the package 
cars. A jam effects all of the 
preloaders. As to the changes in 
the charts, the timing of the 
adjustment are dependent on vari­
ous factors. Adjustment in the 
number of stops for each package 
car are made from time to time 
during the sort depending on the 
package load. If a preloader's 
stop counts are inaccurate or he 
is behind in his work, the adjust­
ments would need to be made at the 
end of the shift.

If the package cars are not loaded 
and on their way by the end of the 
shift the pre-sort supervisors 
must answer to their supervisors 
about the delay. If the super­
visors were to allow jams to build 
up or to fail to timely load a 
slide it would directly effect the 

-78A-



supervisor's job because he would 
have to account to his supervisor 
for his failure to get the package 
cars loaded and out. Thus, 
although jams and chart changes 
did occur during the shifts the 
Court finds that the supervisors 
did not condone, tolerate or 
encourage jam build-ups or inac­
curate untimely charts for Mr. 
Cherry, Mr. Ardrey, or other black 
employees on the pre-sort. The 
presence of jams and chart changes 
are not attributable to racial 
animus.

Mr. Ardrey and Mr. Cherry contend 
that their slides, 54 and 25, were 
harder to work then the other 
slides. Whether these slides were 
more difficult, however, is not 
the issue confronting the Court. 
Instead, the issue is whether Mr. 
Ardrey or Mr. Cherry were assigned 
harder slides because of their 
race.

The evidence does not support race 
as a factor in the assignment of 
slides. Prior to Mr. Cherry,

-79A-



Mr. Hudson trained Tom Styers, a 
white trainee, on the same slides. 
Mr. Styers reached a productivity 
rate of 201 packages per hour 
(average for his last week) under 
the same training program and thus 
was recommended for seniority as a 
preloader.

James Lunn and Sean O'Grady, two 
other trainees, trained on the 
other side of the sortrac on 
slides 23 and 96. Mr. Lunn, black, 
reached a productivity rate of 160 
packages per hour on the twenty- 
second day. He was disqualified 
for his lack of chart knowledge, 
but was placed on a preloader job 
as a result of a union grievance. 
Mr. O'Grady, white, was not 
allowed to qualify as a preloader.

David Hemby, a white trainee, qual­
ified as a preloader in the box 
line. He was trained by Ty 
Nimmons, a black supervisor.

In light of the above, the Court 
finds that neither Mr. Ardrey, Mr. 
Cherry, or any other black trainee 

" - G O A -



was assigned a certain slide 
because of his race. Both blacks 
and whites trained on slides 54 
and 25, and slides 23 and 96.

(6) The Plaintiffs also assert that 
they could not qualify as a pre­
loader because they were given 
inadequate training and received 
less training and encouragement 
than the white trainees, espe­
cially Mr. O'Grady. After care­
fully weighing the credibility of 
the witnesses, the Court finds 
that neither Mr. Ardrey nor Mr. 
Cherry were given less training or 
less encouragement than white 
trainees. The constant training 
of both employees is meticulously 
documented by the evaluation 
reports. The reports are as posi­
tive as they are negative.
Further, the reports reflect the 
fact that considerable time and 
expense was invested in their 
training program. UPS had nothing 
to gain by investing twenty to 
thirty days in training an 
employee, only to have him fail to 
qualify. In addition, if 

-81 A-



Mr. Hudson harbored some veiled 
plan to make it hard on Mr. Ardrey 
or Mr. Cherry to qualify because 
they were black, Mr. Hudson easily 
could have been negative in his 
report in the subjective areas.
The fact of the matter is, however, 
that the only major criticism of 
Mr. Ardrey concerned his lack of 
chart knowledge, which lack of 
chart knowledge was objectively 
verified by the 80-20 tests.
Similar to Mr. Ardrey, Mr.
Cherry's major area of criticism 
was his production rate, which 
rate along with the amount of help 
needed was recorded every day 
based on his actual performance 
during the shift.

Furthermore, the testimony that 
Mr. Hudson spent more time 
encouraging and training Mr.
O'Grady than Mr. Ardrey or Mr. 
Cherry is beyond belief, because 
Mr. Hudson was not even Mr.
O'Grady's supervisor. Jim Stone 
trained Mr. O'Grady. After care­
fully considering the evidence, the
Court finds that Mr. Ardrey and 

- 8 2 A - -



Mr. Cherry did not receive dif­
ferential training as preloaders 
because of their race.

(7) In light of the above, the Court 
finds that Mr. Ardrey and Mr. 
Cherry were disqualified from the 
preloader job on the sortrac 
because they failed to meet the 
established performance levels. 
Even if it is assumed that Mr. 
Ardrey or Mr. Cherry established a 
prima facie case of discrimina­
tion, the Defendant met its burden 
of articulating a legitimate rea­
son for the employment actions.
Mr. Ardrey and Mr. Cherry failed 
to meet their ultimate burden of 
proving that the reason for their 
disqualification was pretextual or 
that they received disparate 
treatment during their training 
because of race.

CHERRY - DISCRIMINATORY WARNINGS

(1) Mr. Cherry testified that he
received two written warnings from 
UPS, which warnings were racially 
motivated. In his EEOC charge, 

-83A-



Mr. Cherry also complained about 
a warning issued on May 1981 for 
failure to follow instructions. 
Further, in his EEOC charge and 
trial brief, Mr. Cherry contended 
that the warnings were issued in 
retaliation for his opposition to 
practices illegal under Title VII. 
The Court will address all the 
contentions raised.

(2) The first warning that Mr. Cherry 
complains about was issued because 
Mr. Cherry missed two pick-ups on 
a package car run. This warning 
was issued on February 11, 1981 by 
Arlin Dancy, the center manager.
Mr. Dancy was the manager who qual­
ified Mr. Cherry as a package car 
driver.

(3) The Plaintiff concedes and the 
Court finds that the two pick-ups 
were missed, that the Defendant has 
a policy which requires a mandatory 
warning when a package car driver 
fails to pick up a package and that 
the warnings were issued to any 
employee, white or black, who 
missed a pick-up. The Plaintiff

-84A-



further concedes that this warning 
was not discriminatory. See, 
Plaintiff's Proposed Findings of 
Fact, pp. 10-11, 78.

(4) In his EEOC charge, Mr. Cherry 
complains about a warning issued 
in "May 1981" for his failure to 
follow instructions. The warning 
was actually issued on March 25, 
1981 by Mr. Dancy because Mr.
Cherry did not notify his super­
visor until too late in his run 
that he could not complete his 
assigned work. This late notifi­
cation resulted in thirty-two 
service failures.

(5) Although the warning letter was 
referred to in his EEOC charge 
Mr. Cherry did not elicit any 
testimony about it from anyone, 
including himself, or Mr. Dancy. 
Clearly, the Plaintiff cannot meet 
his burden of proof if he fails to 
present any evidence relating to 
his contention.

(6) The February and March 1981 warning 
letters were both issued because

- 8 5 A -



the incidents involved service 
failure to customers of UPS.

(7) Under the union contract at the 
expiration of nine months, the 
warning is removed from an 
employee's record and can no 
longer be used for disciplinary 
action. The February and March 
1981 warning letters issued by Mr. 
Dancy no longer have any effect on 
his record and never resulted in 
any disciplinary action.

(8) The final warning letter com­
plained of by Mr. Cherry was issued 
on December 18, 1981 by Mr. Dancy 
because Mr. Cherry failed to "be 
off the clock" at the designated 
time. Mr. Cherry contends that 
the warning is discriminatory 
because he was off the clock on 
time or alternatively if he was 
not off the clock on time, white 
employees did not receive warnings 
for the same conduct.

(9) On December 8, 1981 Mr. Cherry 
punched in at 8:30 and was 
directed to punch out at 7:30.

- 8 6 A -  ••



The punch out time on his card is 
1950 (7:50 p.m.). Mr. Cherry 
testified that he punched out 
whenever he was suppose to punch 
out, although he does not know 
what time that is. Further, he 
testified that he wrote the clock 
in time of 0830 (8:30) but that he 
did not write the clock out time 
of 1950 (7:50 p.m.).

The Court, after examining the 
time card and the handwriting of 
Mr. Cherry, is of the opinion that 
Mr. Cherry did write the "1950" 
although he no longer recalls 
writing it. In making this find­
ing the Court notes that the slant, 
the spacing and the pattern in the 
numbers are consistent. Further, 
the zero in the "0830" and "0840" 
(written by Mr. Cherry) is dis­
tinctive and this distinction is 
also present in the zero in "1950".

Furthermore, after carefully weigh­
ing the evidence, the Court is of 
the opinion that Mr. Cherry did not 
clock out on time on December 8, 
1981. The time card shows that

- 8 7 A -



Mr. Cherry did not clock out until 
1950. Mr. Cherry cannot even 
identify the correct time in which 
he was to clock out. He admits 
that he did not even ask to see 
his time card when the supervisor 
talked to him about being late on 
the eighth and his only evidence 
that he punched out on time is his 
non-specific testimony that he 
clocked out at whatever time was 
the correct time.

(10) Mr. Cherry alternatively contends 
that a white employee, Mark 
Speiler, was allowed to punch out 
late without receiving a warning. 
The personnel file of Mr. Speiler 
does not contain a warning letter 
for being off the clock late. The 
issue before the Court is whether 
Mr. Speiler actually punched out 
late.

The only evidence Mr. Cherry 
offered in support of his conten­
tion is his vague testimony that on 
one occasion, on an unidentified 
date he observed Mr. Speiler punch 
out late and he thought the 

-88A- -



supervisor was in his office when 
this occurred. Mr. Cherry, how­
ever, cannot identify the day this 
occurred, the time when it 
occurred, the time when Mr.
Speiler was suppose to clock out 
or whether the supervisor observed 
or knew that Mr. Speiler was late 
in getting off the clock. The 
only documentary evidence pre­
sented about Mr. Speiler shows 
that he punched out at 6:45 on the 
date that Mr. Cherry punched out 
at 7:50. There is no documentary 
evidence, such as a time card, 
that Mr. Speiler was late at any 
time. In addition, the evidence 
shows that several other whites 
received warnings for failing to 
clock out on time. In light of 
the above, the Court does not 
credit Mr. Cherry's testimony 
that the Defendant allowed Mr. 
Speiler to punch out late without 
receiving a warning or that Mr. 
Cherry received his warning 
because he was black.

(11) The EEOC charge also alleges that 
these warnings were issued in 

-8SA-



retaliation for Mr. Cherry's 
opposition to practices made ille­
gal under Title VII. At the trial 
Mr. Cherry did not present any 
evidence to this effect, such as 
identifying the practices he 
opposed or his supervisor's 
knowledge or adverse reaction to 
these practices. The only griev­
ance Mr. Cherry had filed prior to 
receiving his first warning con­
cerned his disqualification from 
the sortrac. This disqualifica­
tion occurred almost a year before 
his warning and the grievance com­
plained about his sortrac super­
visors, Mr. Young and Mr. Hudson, 
not Mr. Dancy.

The Court finds that the warning 
letters were issued for legitimate 
reasons and not as a pretext for 
retaliation against Mr. Cherry 
because he asserted his rights 
under Title VII.

(12) The Court finds that the Defendant 
issued the warning letter for a 
legitimate reason —  Mr. Cherry's

- 9 0  A -



infractions of Company procedure. 
The Court is further of the opin­
ion that Mr. Cherry failed to 
prove that the asserted reason was 
a pretext for discrimination and 
failed to prove that the warning 
letters were issued because of his 
race or in retaliation for opposi­
tion to Defendant's alleged dis­
criminatory employment practice. 
The warning letters were issued 
for cause in accordance with the 
Defendant's standard disciplinary 
practices.

BROWN (Formerly Easterling).

(1) Bessie Easterling Brown was hired 
by UPS on December 9, 1971 as a 
package car driver. She held that 
position until April 15, 1978. In 
April 1978 she applied for and 
obtained her current position of 
feeder driver. As a feeder driver 
she earns $13.56, one of the 
higher paying hourly positions at 
UPS.

She complains of being required to 
work overtime, of being denied 

-91A-

(2 )



overtime, of not being allowed to 
decide if she wants to work over­
time or not, of being subjected to 
a biased working environment by- 
being subjected to racially moti­
vated assaults, of being treated 
rudely by her supervisors, of 
being placed out of service for 
one day because she refused to 
fill out an accident report and of 
receiving a warning in November 
1982 because she had an avoidable 
accident.

(3) After assessing Ms. Brown's
demeanor and testimony at the 
trial and reviewing her personnel 
records, the Court finds that Ms. 
Brown is probably a difficult 
employee to work with and manage. 
On the stand she was boisterous, 
hot tempered, argumentative, and 
quick to complain. Coupled with 
this truculent personality is her 
tendency to blame others instead 
of accepting some responsibility 
for acts that occur. For instance, 
she blames someone else and does 
not accept responsibility for a 
one tractor accident she had when 

" - 9 2 A -



when she was backing her tractor 
and hit a guard rail.

(4) A review of her personnel file 
also indicates that she can be 
disrespective, uncooperative, and 
insolent. UPS sent Ms. Brown a 
letter confirming a meeting with 
her and her union representatives 
during which meeting her attitude 
towards management was reviewed. 
The letter states that:

Your past history of speak­
ing above a normal business 
tone and being disrespect­
ful towards management will 
not be tolerated in the 
future. It was reviewed 
with you the importance 
of management and employee 
communication to operate 
our business in an effi­
cient manner. You were 
informed that insubordi­
nate employees towards 
management instruction 
will be dealt with 
quickly and severely.

-93A-



Several months later Ms. Brown 
received a warning letter for her 
"demonstrated insubordination by 
[her] loud and discourteous 
remarks." There are numerous 
other documented instances of 
insolence in her personnel file, 
such as "she became very arrogant 
and cutting in her voice",
"[a]gain, Bessie became very 
arrogant and refused to do so", 
"carries an arrogant attitude 
around other employees, they have 
complained to me about this", "her 
attitude is such that she causes 
disruptions in our operation and 
service", and "Bessie started 
cussing and swearing". Defendant1s 
Exhibits 209, 210. Finally, when 
Ms. Brown was instructed to fill 
out an accident report or she 
would be taken out of service "she 
then proceeded to write sideways 
along the accident report not 
filling it out properly."
Defendant1s Exhibit 224-A. Ms. 
Brown's own testimony corroborates 
her impertinent response when 
instructed to fill out an accident 
report. After her supervisor told 

•• -94A-



her she would be taken out of 
service if she did not fill out an 
accident report, she told him "I 
said, no, I'm not refusing, and I 
wrote on the accident report -- I 
wrote on that report."
Transcript, p. 436.

(5) In light of Ms. Brown's personal­
ity and attitude problems at UPS, 
the Court is of the opinion that 
the source of many of her com­
plaints can be traced to personal­
ity conflicts and not because of 
her race. The Court, however, 
will discuss each grievance 
individually.

(6) In December 1980 Ms. Brown asked 
her supervisors, Ulysses West and 
James Elmore, if she could be off 
work on December 24, 1980. Both 
supervisors are black. They told 
her she would have to report on 
December 24, 1980, at which time 
the status of her run would be 
determined. If her run was can­
celled she could ask her supervisor 
on duty if she could leave.

-95A-



Mr. Elmore prepared a list of 
employees who requested to be off 
on December 24, 1980 but failed to 
include Ms. Brown's name. On 
December 24, 1980, Ms. Brown's run 
was cancelled and she asked if she 
could go home. The supervisor on 
duty, Neal Lewis, denied her 
request because her name was not 
on the list. She was required to 
work in the yard.

(7) On the same day employees with 
less seniority than Ms. Brown 
were allowed to go home. Similar­
ly, white and black employees with 
more seniority than Ms. Brown 
worked that day. Scott Heine, a 
white feeder driver, reported to 
work after Ms. Brown and was 
allowed to go home when his run 
was cancelled. There was no 
evidence that white employees with 
less seniority whose name was not 
on the list was allowed to go home.

(8) On December 29, 1980 Ms. Brown 
filed a grievance claiming that her 
seniority rights were violated 
because junior employees were

-96 A-



permitted to be off and she was 
not. The grievance does not refer 
to race, does not suggest that 
race was a factor in the denial of 
the day off and does not claim . 
that whites got the day off while 
blacks had to work. There is no 
suggestion that her name was 
intentionally omitted from the 
list.

(9) This grievance was resolved by an 
agreement that employees would be 
let off on the basis of seniority. 
If a run is cancelled and a senior 
employee is on the yard, the senior 
employee will go home and the 
junior employee will work.

(10) The Court finds that the denial of 
the day off was not because Ms. 
Brown is black but was because Mr. 
Elmore, a black male, accidently 
failed to include her name on the 
list. The Plaintiff failed to 
prove that the omission of her 
name from the list and the result­
ing denial of the day off was a 
pretext for racial discrimination.

-97A-



(11) Ms. Brown filed three other union 
grievances complaining about not 
receiving or receiving overtime 
work in accordance with her 
seniority rights. The grievances 
do not refer to race or suggest 
that race was a factor in over­
looking her for overtime or 
assigning her overtime. The union 
found that her seniority rights 
were not violated in one instance, 
that she was entitled to overtime 
pay in another instance and that 
UPS needed to assign a start time 
and specified procedure for extra 
runs. There is no mention of race 
in resolution of the grievance or 
as a condition of settlement of the 
grievance. The Court finds that 
the complaints about her seniority 
rights were problems arising in 
application of the union contract 
and Ms. Brown's seniority rights 
were not being violated because she 
was black.

(12) Ms. Brown specifically complains 
about having to take a run to the 
airport in February 1981 after 
completing her regular run. The

'-98 A-



airport run was normally assigned 
to Kathy Hall, a junior white 
driver.

(13) On February 2, 1980 Ms. Hall did 
not arrive back from the airport 
until 2:10 p.m. and was not able 
to take her lunch break until 2:30 
p.m. Since the first air trailer 
had to go to the airport before 
Ms. Hall would have completed her 
lunch break, Richard Goebel 
requested that Ms. Brown drive the 
trailer to the airport and told her 
that Ms. Hall would bring out the 
second unit later and help Ms.
Brown finish loading the plane.
Ms. Brown started cursing and 
swearing and said that she would 
not take the run. Mr. Goebel told 
her he would make other arrange­
ments, and proceeded to get two 
other drivers to cover the 
Kannapolis and airport runs. Ms. 
Brown called Mr. Elmore at his 
home. Mr. Goebel talked to Mr. 
Elmore and as a result offered Ms. 
Brown the option of either taking 
the Kannapolis or the airport run. 
Ms. Brown then decided to accept

-99A-



the airport run.

(14) At the airport that evening Ms. 
Brown's performance was slack and 
caused the airplane to leave 
thirty minutes late. Ken Gunnels, 
air coordinator, wrote Mr. Fisher 
a memorandum about Ms. Brown's 
inferior work and asked for 
assistance. Mr. Gunnels stated 
that Ms. Brown had difficulty 
backing her trailer into the 
appropriate position, was slow 
unloading the trailer and refused 
to help Ms. Hall load air bags 
into her trailer. Her attitude 
was evidently so "arrogant" that 
the other employees complained 
about working with her. Mr. 
Gunnels concluded that Ms. Brown 
was not qualified for the airport 
run and that her attitude causes 
disruptions in air operations and 
service.

(15) The Court finds Mr. Goebel did not 
ask Ms. Brown to cover the airport 
run because of her race. UPS 
asked her to service the airport 
run because they needed a driver

- T 0 0 A -



out there and Ms. Hall was running 
late. Further, when Ms. Brown 
refused to take the run, Mr.
Goebel proceeded to make other 
arrangements to cover the airport 
run. Ms. Brown was later given 
the option of taking the run, 
which option she accepted. There­
fore, the Court finds that the 
Plaintiff failed to prove that the 
Defendant told her to cover the 
airport run as a pretext for 
discrimination.

(16) Ms. Brown testified that in 1981 
Larry Shoemaker, a white dis­
patcher, was extremely rude to her. 
According to Ms. Brown, when she 
went to the dispatcher's office to 
get her tractor assignments, Mr. 
Shoemaker would toss her the time 
and TTA cards. If a white driver 
needed his cards Mr. Shoemaker 
would hand the items politely to 
the driver "with a smile". Mr. 
Shoemaker testified that he treated 
each driver alike and would hand 
the cards or place them on the 
table if he was busy dispatching.
He testified that he did not "toss" 

-10)A-



any cards at Ms. Brown.

(17) After carefully judging the 
credibility of the witnesses, the 
Court finds that Mr. Shoemaker did 
not treat Ms. Brown differently 
than white drivers because of her 
race. The only evidence that Mr. 
Shoemaker treated Ms. Brown dif­
ferently in dispatching was Ms. 
Brown's own self-serving testimony. 
This testimony was credibly 
refuted by Mr. Shoemaker who 
specifically denied any differen­
tial treatment and explained that 
if a dispatcher was busy he would 
simply place the cards on the table 
for the driver. The Court, there­
fore, finds that the Plaintiff 
failed to prove that Mr. Shoemaker 
was "rude" to her or that this 
alleged rudeness was because of her 
race.

(18) Ms. Brown testified that Scott 
Heine, a white co-worker, inten­
tionally assaulted her on two dif­
ferent occasions. At the trial Ms. 
Brown testified that Mr. Heine 
intentionally slapped her face and

- 1 0 2 A -  -



knocked off her glasses in 
January 1980. She reported this 
incident to Mr. Elmore, a black 
feeder supervisor. Mr. Elmore 
talked to Mr. Heine and told Ms. 
Brown that Mr. Heine would pay for 
her broken glasses. Mr. Elmore's 
report of the incident states that 
Mr. Heine accidentally broke her 
glasses while jumping off the dock 
behind the trailer he was pulling. 
(Mr. Elmore is now deceased.)

(19) Ms. Brown testified that in April 
1980 she was standing next to a 
wall and Mr. Heine pushed his way 
between her and the wall and tried 
to shove her. Ms. Brown told Mr. 
Heine that "you and I just goin' to 
have it out." He laughed and 
walked down the hall. She followed 
him "and said —  a few more words 
was said." Ms. Brown complained 
about this incident to Mr. Elmore 
and it did not occur again. Ms. 
Brown did not testify that Mr. 
Heine's alleged conduct was moti­
vated by racial animus.

- 1 0 3 A -



(20) In resolving these two employee
disputes the Court finds that UPS 
appropriately handled the matter 
and did not discriminate against 
Ms. Brown. Ms. Brown told Mr. 
Elmore that her glasses were 
accidentally broken and Mr.
Elmore got Mr. Heine to pay for 
his accident. As to the second 
incident, it appears to be a 
dispute triggered in part by 
sensitivity due to the prior acci­
dent and a personality conflict 
between two employees. The evi­
dence does not support a finding 
that it was a racial assault.
After the incident was brought to 
the attention of management, the 
problem was evidently effectively 
resolved by management because 
there were not any further distur­
bances .

(21) Ms. Brown testified that she was
issued a warning letter on November 
11, 1982 for an accident that was 
unavoidable. In her accident 
report she admitted she hit a 
guard rail while backing her 
trailer on the yard. She 

-1.Q4A-



testified that the accident was 
unavoidable because the trailer 
had a flat tire and leaned to the 
right. UPS issued a warning let­
ter because the accident was found 
bo be avoidable because she struck 
a stationary object while backing 
her trailer.

(22) Although Ms. Brown testified the 
Company always found accidents 
avoidable, the Company found an 
accident that she had on June 25, 
1980 was unavoidable.

(23) The Court finds that UPS issued a 
legitimate warning letter to Ms. 
Brown on November 11, 1982 because 
they determined her accident was 
avoidable. Ms. Brown failed to 
prove that the warning letter was 
issued as a pretext for racial 
discrimination. The Court notes 
that the Plaintiff evidently con­
cedes that the warning letter was 
appropriately issued and that the 
Plaintiff failed to establish a 
prima facie case of discrimination. 
Plaintiff's Proposed Findings of
Fact, pp. 49, 93.

- T 0 5 A -  -



(24) Ms. Brown alleges she was subjec­
ted to racial discrimination 
because she was placed out of 
service for one night after she 
refused to fill out an accident 
report.

(25) On March 29, 1983 Ms. Brown was 
instructed to place her trailer at 
a particular location on the yard. 
As she backed her trailer toward 
this location she observed another 
unit driven by Buck Buchanan, 
blocking her route. As soon as 
the midnight hub manager, Donnie 
Lane, observed the congestion on 
the yard he instructed Ms. Brown 
to stay where she was and he went 
to clear up the congestion block­
ing her unit. As he was in the 
process of moving the units, he 
heard a grinding noise, looked up 
and saw Ms. Brown's unit moving 
against Mr. Buchanan's unit. Mr. 
Lane reported the accident to man­
agement .

(26) Ms. Brown got out of her trailer 
and approached Richard Goebel, 
Donnie Lane, and Steve Starnes

- -106A- -



(supervisors) and said "who are 
you saying hit a truck." They 
told her she hit the trailer. She 
denied any accident.

(27) After Mr. Goebel and Ms. Brown 
were in the feeder office he 
instructed her to fill out an 
accident report. It is standard 
operating procedure at UPS for an 
employee to complete an accident 
report after an accident. Ms. 
Brown denied having an accident 
and refused to fill out the report

(28) Mr. Goebel telephoned Silvis Moore 
at 1;30 a.m. at his residence and 
asked him what to do about Ms. 
Brown's refusal to fill out an 
accident report. Mr. Moore told 
Mr. Goebel to explain to Ms. Brown 
in front of Mr. Lane, that the 
accident report needed to be com­
pleted, to instruct her to com­
plete it and to inform her that if 
she refused to fill it out she 
would be suspended.

(29) Mr. Goebel then proceeded to 
instruct Ms. Brown that she had to

- T 0 7 A -



fill out the report or she would 
be suspended. Ms. Brown refused 
to fill out the report, insisted 
that she would not take any action 
unless her business agent was 
present and instead impudently 
responded by writing sideways on 
the report. Mr. Goebel took her 
out of service for refusing to 
fill out the report after being 
instructed to do so.

(30) Ms. Brown was reinstated the next 
day on the condition that she fill 
out the accident report, with 
which condition she complied. She 
was issued a warning letter for 
the March 19, 1983 accident 
because it was avoidable in that 
while backing her unit she struck 
another vehicle. Although Ms.
Brown continues to deny she had an 
accident, she does not challenge 
the issuance of the warning letter.

(31) The Court finds that the request 
that Ms. Brown fill out an accident 
report is in accordance with the 
standard operating procedure. The 
Court further finds that Ms. Brown

- 1 0 8 A -  •



intentionally refused to fill out 
the report although instructed to 
do so and informed of the conse­
quences if she did not comply.
This type of conduct is blatant 
insubordination. The Court finds 
that the Defendant legitimately 
and without any regard to race, 
placed Ms. Brown out of service 
for her refusal to comply with 
standard procedures after being 
forewarned that failure to comply 
would result in suspension. Wait­
ing for a business agent would not 
have any bearing on whether a 
report had to be completed. The 
Court finds that the Plaintiff 
failed to prove that the 
Defendant's actions on March 29, 
1983 were in part motivated by 
race or were a pretext for racial 
discrimination.

(32) The Court further finds that
considering Ms. Brown's complaints 
separately or in the aggregate she 
failed to prove that she was 
treated differently because she 
was black or that the Defendant's 
actions were a pretext for racial

-1:09ft- ■



discrimination.

E. DISCRIMINATORY a s s i g n m e n t of f eeder
DRIVER EQUIPMENT - FUNDERBURK, NEAL,
AND SMITH

(1) Three of the Plaintiffs, Lewis 
Funderburk, Eugene Neal, and 
Matthew Smith, testified that they 
and the other black feeder drivers 
were discriminatorily assigned 
feeder driver equipment. They 
allege specifically that blacks 
receive older tractors or that if 
they receive newer tractors they 
do not operate properly.

(2) UPS uses Mack model 20, 21, 22, 23, 
24, and 25 series. The higher the 
series model number, the newer the 
unit. The feeder drivers believe 
that the older tractors have 
poorer suspension, less pulling 
power, and are more difficult to 
handle. UPS believes that all the 
units are substantially equal 
because UPS regularly monitors, 
services, and refits their equip­
ment .

- T 1 0 A - -



(3) The industrial engineering depart­
ment assigns the units to a cer­
tain run. In assigning tractors 
to start times the newer equipment 
or the equipment that gets the 
better mileage is assigned to the 
longer runs so that they can be 
dual utilized. For example in 
1983 Charlotte had eighty-five to 
ninety feeder runs but only sixty- 
five tractors. Some of the trac­
tors had to be operated on two 
feeder runs a day. The industrial 
engineering department determines 
which tractors would be dual 
utilized on which start time.

(4) After the tractors are assigned to 
a run the feeder drivers bid 
annually in April on the run they 
want. The bids are accepted on 
the basis of seniority. The new 
start times go into effect the 
first Monday in May. Tractor 
assignments are not changed on any 
regular or annual basis.

(5) The industrial engineering depart­
ment changes the tractor assign­
ments from time to time. Usually

-in A-



new tractors are assigned by 
industrial engineering so that 
they can be dual utilized. When 
the regular assigned tractor to a 
start time is not available, the 
dispatcher assigns another tractor 
to that start time.

(6) Although a unit is assigned to a 
specified run, various events 
cause a dispatcher or the indus­
trial engineering department to 
readjust the assignment of trac­
tors. Tractors break down and are 
pulled out for preventive mainte­
nance. Repaired outside tractors 
may be substituted for regularly 
assigned tractors. State licens­
ing restrictions may require the 
juggling of tractor assignments. 
Delays and late arrival of dual 
utilized tractors cause tractor 
reassignments. When the feeder 
operation runs an average of one 
hour over allowed, the dual util­
ized tractors return from their 
first run too late to leave on 
their scheduled second run. Once 
a dual utilized tractor gets off 
schedule, it is almost impossible 

. -112A- ..



to get it back on schedule that 
week. Further, the tractors are 
also assigned or readjusted on the 
basis of fuel consumption. The 
mountain runs need better fuel 
mileage. There are times when a 
tractor assigned to a later start 
time will be used on earlier start 
time because a spare is not avail­
able. Further, when additional 
loads must be dispatched, a trac­
tor has to be located and assigned 
to that load.

(7) When a trailer is reassigned the 
supervisors receive complaints 
from the white and black feeder 
drivers. The complaints from the 
drivers generally concern being 
reassigned a tractor other than 
their regularly assigned one, 
because they are familiar with 
their tractor and until refitted 
the older tractors did not have air 
ride seats.

(8) Mr. Funderburk was hired in 1967 
and has worked as a feeder driver 
since 1973. He testified that he

-113A-



and the other blacks were 
reassigned tractors in the 20, 21, 
and 22 series while whites were 
assigned 23 and 24 series trac­
tors .

(9) Mr. Funderburk complained about 
his equipment assignment to his 
supervisor and to his manager, Mr. 
Elmore, who is black. Mr. Elmore 
explained to Mr. Funderburk that 
fuel consumption was the basis for 
assigning tractors.

(10) Mr. Funderburk has had the
Pleasantdale, Georgia run since 
1978. Mr. Funderburk bid for the 
Pleasantdale run in April 1982 
which run he started in May 1982. 
When Mr. Funderburk started the 
run in May, he was assigned a 25 
series tractor. After two weeks 
the 25 series tractor was 
reassigned to a White Pine, 
Tennessee run, manned by Roger 
Weaver, a white feeder driver.
The Tennessee run is a more moun­
tainous run than the Pleasantdale 
run. The tractor reassigned to the 
Pleasantdale run was in the 24 

. -U4A-



series, which series is con­
sidered one of the newer series at 
UPS.

(11) Mr. Funderburk also testified that 
he was assigned tractors with 
broken air conditioners. He 
admitted that he was assigned air 
conditioned tractors from the time 
they first came on the line in 
1978. He further conceded that 
most air conditioning problems 
arise on the first hot day in the 
spring. The air conditioning 
would not work because there was 
not freon in it. They would work 
when freon was added.

(12) Mr. Moore, the division manager 
for feeder operations, agreed that 
air conditioning problems occur 
with the first warm weather. If 
the air conditioning is not work­
ing, the driver is suppose to write 
the problem up and it is repaired.

(13) Mr. Funderburk claims that every 
time he bid on a start time trac­
tor 21913 would be reassigned to 
that time. He testified, however,

- 1 1 5A-



that although he drove tractor 
21913 in April 1979, when the new 
bid start times became effective 
in May 1979 he was assigned air 
conditioned tractor 25638 and 
drove it on a regular basis.

(14) The following summary shows the
number of tractors in each series 
driven by Mr. Funderburk:

SERIES 20 21 22 23 24 25 TRACTORS
1977 6 21 59 59
1978 3 49 28 63 9
1979 2 15 21 34 30 361980 0 7 6 12 35 24
1981 3 38 9 19 25 13

(15) The summary shows, contrary to Mr. 
Funderburk's claim, that he was 
not assigned only to 20, 21, and 
22 series tractors. The evidence 
reveals that he drove the newer 23, 
24, and 25 series regularly. After 
the bids in May 1981, his regularly 
assigned tractor was tractor 21913. 
After July 1981, however, he drove 
a variety of tractors in the 21 to 
25 series.

(16) A review of Mr. Funderburk's trac­
tor assignments discloses that he

-1T6A-.



began driving air conditioned 
tractors in 1978 and has driven 
them continuously since that time. 
Air conditioned tractor 24638 was 
regularly assigned to him from May 
1979 until October 1979 when air 
conditioned tractor 25297 became 
his regularly assigned tractor.
In May 1980 tractor 24812 became 
and remained his regularly 
assigned tractor until May 1981.

(17) Mr. Neal was hired by UPS in 1969 
and has worked as a feeder driver 
since 1974. Mr. Neal has been 
assigned to the White Pine, 
Tennessee run for the past seven 
or eight years. This was a night 
run so he was indifferent as to 
whether he had an air conditioner 
in his unit.

(18) Mr. Neal testified that he and the 
other black feeder drivers had to 
drive the older series while the 
white drivers drove the newer 23, 
24, and 25 series. He did not 
complain, however, to management 
about the quality of his equipment.

- H 7 A -



(19) The following summary shows the
number of tractors in each series 
driven by Mr. Neal:

SERIES 20 21 22 23 24 25 TRACTORS
1977 12 28 38 55
1978 0 13 13 96 10 1
1979 0 12 4 29 41 1
1980 0 5 14 25 23 29
1981 3 6 11 6 2 47

(20) The summary shows that, contrary 
to Mr. Neal's claim, he was 
assigned the newer tractors as 
they were placed into the opera­
tion. It further appears that he 
drove the 23, 24, and 25 series 
tractors on a regular basis.

(21) In his Complaint in this litiga­
tion, Mr. Smith also alleges 
racially discriminatory assignment 
of equipment to him and the other 
black feeder drivers. He testified 
that in 1981 and 1982 black 
drivers drove the lower series 
while white drivers drove the 
higher series. Mr. Smith con­
tended that he never got the con­
sistent use of a newer trailer, 
that although he was assigned a 23

- 1 I S A —



series he did not often drive it 
and that if he was given a 24 
series the air conditioning did 
not work.

(22) Mr. Smith complained about the 
equipment to Mr. Seagle. He 
complained to Silvis Moore, James 
Elmore, and Robert Washington 
about the air conditioning and was 
told to write up his complaint.
Mr. Elmore and Mr. Washington were 
black feeder managers.

(23) Mr. Smith was seventeen on the 
feeder seniority list so he had 
one of the better choices to bid 
whichever start time he wanted. 
Since April 1981 he has bid on the 
Pleasantdale, Georgia run.

(24) The following summary shows the 
number of tractors in each series 
driven by Mr. Smith between August 
1977 and December 1982.

-119A-



SERIES 20 21 22 23 24 25 TRACTORS
1977 4 27 6 26
1978 6 32 13 48 ~ T i 11979 2 27 26 26 14 1198 0 1 5 9 13 48 41981 0 9 1 15 52 4

(25) Contrary to Mr. Smith's testimony 
the summary shows that he was not 
assigned only 20, 21, and 22 
series tractors. The chart 
reveals that actually the majority 
of his tractors were in the 23 and 
24 series.

(26) A review of Mr. Smith's assigned 
tractors shows that he drove trac­
tor 23717 more often than others 
during August and September 1977. 
In October 1977 through March 1978 
he drove tractor 21507 more often 
than others. Because of the 
cooler weather these months would 
be the months when an air condi­
tioner was of minor or no impor­
tance to a driver. In May 1978 
through July 1978 he drove tractor 
23716 more often than others. In 
November 1978 he began driving 
tractor 23595 regularly until May 
1979. From May 1979 to September

-120A- •



1979 he drove tractor 22309 the 
majority of the time. Beginning 
in October 1979 he drove air con­
ditioned tractor 24638 on a regu­
lar basis. In May 1980 air con­
ditioned tractor 24816 became his 
regularly assigned tractor. From 
May to October 1981 he drove air 
conditioned tractor 24813. From 
May 1982 to October 1982 he drove 
primarily tractor 22609 but also 
drove others in all the various 
series. In October 1982 he began 
driving tractor 23717 on a regular 
basis, but also drove many 24 and 
25 series air conditioned tractors 
through December 1982.

(27) The record of the tractors actually 
driven by Mr. Smith refutes his 
claim. The record shows that dur­
ing most of the time from August 
1977 to December 1982, he drove 
series 23 and 24 tractors, not the 
20 to 22 series which he testified 
that blacks drove. The record also 
shows that Mr. Smith's regular 
assigned tractors were changed from 
time to time but were not changed 
immediately after his bid as he

- 1 2 1  A - - -



claimed. From October 1979 to May 
1982 he regularly drove an air 
conditioned tractor.

(28) Robert Williams testified to the 
same effect as Mr. Funderburk, Mr. 
Neal, and Mr. Smith that black 
drivers were assigned the older 
equipment while white drivers were 
assigned newer equipment.

(29) Ms. Brown, a Plaintiff and a black 
feeder driver did not complain 
that she or other black feeder 
drivers received inferior equip­
ment.

(30) Although the Plaintiffs testified 
that "whites received better 
equipment" the only white driver 
specifically identified as being a 
beneficiary of this alleged racial 
policy is Roger Weaver.

(31) The following summary shows the 
number of tractors in each series 
driven by Mr. Weaver:

- J 2 2 A -  .



SERIES 20 21 22 23 24 25 TRACTORS
1977 0 6 11 21 0 0 i
1978 1 9 30 90 2 0
1979 0 6 7 76 24 91980 0 1 0 48 21 461981 0 0 3 29 10 46

(32) The chart shows that Mr. Weaver 
was also assigned tractors in the 
older series although he, like the 
other Plaintiffs, was regularly 
assigned tractors in the newer 
series.

(33) Although Mr. Smith and Mr. 
Funderburk complained to manage­
ment about the assignment of 
equipment, there was not any 
evidence that they complained that 
the assignments were made on the 
basis of race.

(34) After carefully considering the 
evidence, the Court finds that the 
Company articulated a legitimate 
explanation for the assignment of 
tractors to Mr. Smith, Mr. 
Funderburk, and Mr. Neal. UPS 
assigned and reassigned tractors to 
handle the various dispatches and

-T23A-



the contingencies which arise in 
the daily operation of transport­
ing the parcels. The assignment 
changes that had to be made by the 
dispatchers at the last minute, 
which is an on-going activity, 
would make it even more difficult 
and troublesome for the supervi­
sors to attempt to discriminate on 
any basis in the assignment of 
tractors. The Court finds that 
the Plaintiffs failed to prove 
that the assignment of tractors to 
Mr. Smith, Mr. Neal, and Mr. 
Funderburk or to black feeder 
drivers as a group, was done on 
the basis of race or that the 
Defendant's legitimate reasons are 
a pretext for discrimination.

F. JENKINS

(1) Horace Jenkins was hired by the
Defendant on August 30, 1974. On 
August 4, 1975 he was promoted to 
package car driver.

In light of the Partial Summary 
Judgment entered April 6, 1984, the 
only claims remaining are

- 1 2 4 A -

(2 )



discriminatory assignment of 
equipment, and discriminatory 
removal of overtime work.

(3) Mr. Jenkins was assigned to the 
Rock Hill center in 1980. The 
center was then located in the 
Charlotte building.

(4) Jim Smith, a black male, was the 
Rock Hill center manager in 1980. 
Mr. Jenkins did not like Mr. Smith 
and the way he ran the center.
Mr. Jenkins testified:

"I could write a book on (Smith).
I guess everybody could. He has 
got a nasty attitude."

(5) In 1977, 1978, and 1979 Mr.
Jenkins was assigned a P-400 pack­
age car. In the early part of 
1980 Mr. Jenkins was assigned a 
P-500 package car. Mr. Smith 
believed the package volume war­
ranted a larger van. The P-500 
van carries more packages than the 
P-400 van. The higher the van 
number, the larger the van size.

- 1 2 5 A -  .



(6 ) Mr. Jenkins' route in 1980 was 
Lancaster, South Carolina which 
route included a pick-up volume of 
about 200 packages per day. The 
stops included Spring Mills and 
Clark Controls.

(7) Periodically the industrial 
engineering department reviews the 
utilization of package cars in the 
various centers based on a center's 
delivery and pick-up volume.

(8) In reviewing the Rock Hill center 
in the summer of 1980, it was 
determined that Rock Hill had one 
more P-600 than its volume justi­
fied .

(9) Accordingly, Mr. Smith decided 
that the P-600 van assigned to 
Donnie Scronce, a white package car 
driver, should be relinquished.
Mr. Smith reassigned Mr. Jenkins' 
P-500 van to Mr. Scronce and 
reassigned a P-400 van to Mr. 
Jenkins.

(10) The P-600 van was taken from Mr. 
Scronce because a large pick-up

-126A-



customer in Chester had moved and 
Mr. Scronce no longer needed the 
P-600 van.

(11) At the time of the reassignment of 
the P-400 van to Mr. Jenkins, his 
route was changed by removing some 
of his pick-up stops, which change 
reduced his volume.

(12) Mr. Jenkins did not complain to 
Mr. Smith about the van reassign­
ment. Mr. Jenkins alleges that 
the van change to a P-400 con­
stitutes racial discrimination.

(13) In his deposition when questioned 
as to why this reassignment con­
stituted racial discrimination,
Mr. Jenkins replied because Mr. 
Scronce is white. He further 
stated that he felt the reassign­
ment was discriminatory because UPS 
should have come to him first and 
gotten his consent to give the 
P-500 van to someone else.

Aside from the fact that Mr.
Jenkins is black and Mr. Scronce is 

. - 1 2 7 A -

(14)



white, there is not any other 
evidence suggesting that race 
played any role in reassigning the 
van. The center manager who made 
the changes is black and he had 
previously assigned the P -500  van 
to Mr. Jenkins. Mr. Scronce, 
white, lost his P -6 0 0  van in the 
reassignment. The reassignments 
were necessitated after the 
industrial engineering department 
determined the volume rate justi­
fied the reassignments. In light 
of the above, the Court finds that 
the Defendant articulated a legiti­
mate reason for the van changes, 
which reason the Plaintiff failed 
to prove was a pretext for dis­
crimination .

(15) It is noted that the Plaintiff 
apparently concedes he failed to 
prove his claim of racial discrimi­
nation in the assignment of equip­
ment. See, Plaintiff's Proposed 
Findings of Fact, p. 118.

(16) Mr. Jenkins' other claim is that 
the removal of "one shot" and "call 
tag" work deprived him of thirty

- 1 2 8 A - .



minutes of overtime, which action 
constitutes racial discrimination.

(17) One shots are onetime customer 
pick-ups and call tags are 
requests by the shipper to pick up 
a package delivered to a customer. 
These requests are written up in a 
log so that UPS knows which 
drivers received the requests and 
are distributed to the drivers.
This work is performed before the 
8:30 a.m. start time for the 
drivers.

(18) Mr. Jenkins was assigned this work 
after drivers senior to him had 
declined the work.

(19) UPS made a decision to move the 
Rock Hill center from Charlotte to 
Rock Hill, South Carolina. In 
1981, prior to the move, the pre­
load of the Rock Hill package cars 
was placed under Mr. Smith's super­
vision. This change provided 
enough additional clerical work to 
justify a part-time clerk for the 
Rock Hill center.

-129A-



(2 0 ) After a part-time clerk was 
employed Mr. Smith removed the 
one shot and call tag work from 
Mr. Jenkins and assigned the 
duties to the clerk. This type of 
clerical work was removed from all 
drivers who were performing it and 
assigned to the clerk. The clerk 
was white. There is not any evi­
dence that Mr. Jenkins sought the 
part-time clerk's position.

(21) Mr. Jenkins did not complain to 
Mr. Smith about the removal of the 
overtime work.

(22) In his deposition, Mr. Jenkins 
testified that the removal of over­
time would not constitute discrimi­
nation if UPS had talked to him 
about the change and he had agreed 
that this was the way it needed to 
be done.

(23) The Court finds that the Defendant 
articulated a legitimate reason for 
the removal of one shots and call 
tags. The removal of the overtime 
work was applied to all employees. 
UPS does not have to continue

-130A-



paying an employee overtime when 
it has hired another employee who 
can do the work without going into 
overtime. Mr. Jenkins utterly 
failed to prove that race played 
any part in the removal of one 
shots and call tags.

(24) In addition, the Plaintiff appears 
to concede that Mr. Jenkins failed 
to prove pretext. See,
Plaintiff's Proposed Findings of 
Fact, p. 118.

G. MASSEY

(1) Joyce Massey was employed as a 
part-time operations clerk on April 
17, 1978. She was assigned to the 
simulator job on the midnight sort. 
This was a non-union job performed 
at the Charlotte hub.

(2) Ms. Massey contends she was dis­
charged by UPS because of sex and 
race discrimination.

(3) Mary Feaster, black, was assigned 
the simulator job on the twilight 
sort.

- 1 3 1  A -



(4) From 1978 to 1979 the Charlotte 
hub experienced an increasing 
volume of packages. With the 
building approaching capacity 
limits on volume flow, the simula­
tor position became more critical 
as a key factor in successfully 
completing the sorts on time. At 
this point the job of simulator 
was refined from a clerical 
responsibility of tracing packages 
through the hub to one of making 
management decisions on the move­
ment of packages throughout the 
hub. In August 1979 UPS decided 
to eliminate the two part-time 
clerical jobs of simulator and to 
replace them with one management 
position. This management position 
was assumed by Ben Taylor, white.

(5) In view of this decision, Tom 
Husvar, a white district manager 
and Julius Montague, a black per­
sonnel manager, decided that the 
simulator clerks would be offered 
an opportunity to qualify as a 
package car driver or to bump the 
junior rewrap clerk on their sort.

- 1  3 2A -



(6) On August 30, 1979 John Fisher, 
hub dvisiion manager, and Bill 
Thomas, twilight sort manager, met 
with Mary Feaster and discussed 
the operational change and the 
elimination of her job. They 
offered her the opportunity to 
qualify as a full-time package car 
driver. Ms. Feaster accepted this 
offer. She became a package car 
driver and was subsequently 
promoted to supervisor.

(7) Mr. Fisher and Mr. Thomas also met 
with Ms. Massey on August 30, 1979 
to discuss the change and the 
elimination of her job. Ms.
Massey was offered the same oppor­
tunity to qualify for a full-time 
driving job. She refused the job 
because she did not want to drive 
or to work full-time. She was then 
offered the alternative of dis­
placing the junior clerk on her 
sort. She responded that she had 
no intention of handling packages.

(8) Ms. Massey inquired what her option 
was if she refused driving and the 
clerk's job. She was told that her

- 1 3 3 A -



position would be phased out by 
September 7, 1979 at which time 
she would be laid off. She asked 
for and received the rest of the 
night off from work.

(9) On September 6, 1979 Ms. Massey
wrote Mr. Fisher confirming their 
discussion of August 30, 1979 and 
noting that she was strictly a 
"pencil and paper person". She 
requested a temporary layoff.
She worked through September 7,
1979 and was placed on temporary 
layoff.

(10) Ms. Massey knew that refusal of a 
job after being placed on temporary 
layoff would result in termination.

(11) After she was placed on temporary 
layoff a clerical vacancy occurred 
in the midnight sort. After 
several attempts Mr. Fisher con­
tacted Ms. Massey on September 25, 
1979 and offered her this vacancy, 
which vacancy involved rewrapping 
packages. She refused the rewrap 
clerk position, again stating that 
she was only interested in "pencil

-1 34 A-



and paper work." Since she 
declined an available position 
while on layoff she was termi­
nated. This termination was con­
firmed in a letter to her dated 
October 1, 1979. Ms. Massey does 
not recall receiving this letter 
although she acknowledges it was 
correctly addressed.

(12) Ms. Massey claims she was dis­
criminated against because she was 
not offered a job she wanted. As 
evidence in support of her claim 
she relies on the fact that Nancy 
Calloway, white, became a full­
time tracing clerk.

(13) The Court finds that the job 
placement of Ms. Calloway is not 
comparable. Ms. Calloway trans­
ferred in May 1979 to the tracing 
clerk position. Her transfer was 
long before the decision was made 
to phase out the part-time simula­
tor positions. Ms. Calloway's 
position was not eliminated, as was 
Ms. Massey's position. In addi­
tion, Ms. Calloway's job as a 
tracing clerk was full-time and

- 1 3 5 A -



Ms. Massey did not want to work 
full-time. Thus, this personnel 
action does not constitute evi­
dence of race or sex discrimina­
tion .

(14) There is not any evidence in the 
record concerning Ms. Massey's 
allegation of retaliation for 
filing a Title VII charge against 
a former employer.

(15) The Court finds that UPS made a 
legitimate decision to eliminate 
Ms. Massey's job. She was treated 
like Ms. Feaster was treated. Ms. 
Feaster took successful advantage 
of the job opportunities made 
available. Ms. Massey seems to 
claim that UPS was under some 
obligation to find her a job of her 
choice after her job was elimi­
nated. There is not any evidence 
that a white or a male employee was 
accommodated with a job of his 
choice. UPS was nondiscriminatory 
in the elimination of her position 
and in the offer of jobs.

(16) Ms. Massey received job offers
-136A-



which she refused. She knew the 
refusal of a job after temporary 
layoff would result in termina­
tion. There is not any evidence 
that racially premised factors 
entered into any aspect of the 
elimination of her job, the 
offers of alternative jobs or her 
termination. Ms. Massey failed to 
prove her claims of race or sex 
discrimination.

(17) The Court notes that the Plaintiff 
evidently concedes that she failed 
to prove her claims of discrimina­
tion. See, Plaintiff's Proposed 
Findings of Fact, pp. 106-07.

K. NEAL

(1) Eugene Neal was hired on November 
17, 1969 as a full-time package car 
driver. He qualified as a feeder 
driver on September 14, 1973.

(2) Mr. Neal claims that feeder 
equipment was discriminatorily 
assigned. This claim has already 
been adjudicated by the Court in 
Section E, supra. His remaining

- 1 3 7 A -  -



claims concern denial of a super­
visory position and racial harass­
ment by his supervisor Neal Lewis.

(3) On September 2, 1980 Mr. Neal 
wrote a letter of grievance to the 
district manager complaining that 
he and the other black employees 
were being racially harassed by 
Mr. Lewis. This grievance was 
preciptated by Mr. Lewis' alleged 
failure to honor seniority in 
August 1980.

(4) On day in August 1980 after Mr.
Neal returned from his run he 
observed some white drivers leaving 
the hub. The white drivers had 
less seniority than Mr. Neal.

(5) When Mr. Neal and Robert Chisholm, 
another black driver, saw Mr. Lewis 
he instructed them to go to the 
rail yard to pick up trailers.
This is overtime work which work is 
suppose to be offered to the most 
senior employee in the yard, who 
can refuse it. Mr. Neal told Mr. 
Lewis and Mr. Neal talked about 
the situation. Mr. Lewis told

- 1 3 8 A -



Mr. Neal that at that particular 
time he needed Mr. Neal to take 
the work and that Mr. Neal should 
not even question him about it 
because they did not have men 
available at that particular time.

(6) Mr. Neal stated in his grievance 
that Mr. Lewis constantly harassed 
him because of his race. As an 
example, Mr. Neal referred to Mr. 
Lewis telling him not to park his 
tractor in front of the door lead­
ing into the dispatch office. Mr. 
Neal felt this was a trivial mat­
ter to correct him on and there­
fore an example of Mr. Neal's 
"picking" on him. UPS has posted 
a notice in the feeder office 
requesting the feeder drivers not 
to park their tractor outside of 
the dispatch office but instead to 
park it against the fence.

(7) Mr. Neal also complained to his 
manager, Mr. Elmore, about Mr. 
Lewis.

(8) After UPS received the grievance 
they initiated an investigation.

-13SA- ,



Mr. Hanley, the district manager, 
directed Ron Johnston the district 
personnel manager to investigate 
the claim of racial harassment.
The basis for Mr. Neal's grievance 
was his perception that his super­
visor, Mr. Lewis, was picking on 
him because he was black.

In the court of the investigation 
Mr. Johnston interviewed the divi­
sion manager, Bill Richards, Mr. 
Lewis, and Mr. Neal. In addition 
he talked to the shop steward, 
Bobby Bolin. Mr. Bolin is black. 
Mr. Bolin told Mr. Johnston that 
he did not believe that Mr. Neal's 
treatment was racially motivated 
or warranted involving other 
employees. As a result of the 
investigation Mr. Johnston con­
cluded that Mr. Neal was not being 
harassed because of his race.

(9) Mr. Johnston reported his conclu­
sions back to Mr. Richards and Mr. 
Hanley.

(10) Mr. Lewis left UPS in 1982.

-140A-



(11) Although Mr. Neal testified that 
Mr. Lewis discriminated against 
him, Mr. Neal did not assert that 
the investigation of Mr. Johnston 
was anything less than it should 
have been or was tainted because 
of racial animus.

(12) The Court finds that UPS did not 
subject Mr. Neal to racial harass­
ment through one of his supervi­
sors. Although Mr. Neal may have 
perceived Mr. Lewis' instructions 
as racist, the Court is of the 
opinion that Mr. Lewis was simply 
trying to handle the responsibili­
ties on his shift. Further, the 
Company conducted a thorough 
investigation of Mr. Neal's claim 
and the black shop steward 
informed UPS that he did not think 
that Mr. Neal was being singled out 
or harassed because of his race.
The Court, therefore, finds that 
Mr. Neal failed to prove he was 
racially harassed by Mr. Lewis or 
treated differently than white 
employees because of his race.

(13) Mr. Neal also alleges that UPS
-141' A- -



discriminated against him in fail­
ing to promote him to a supervi­
sory position.

(14) Mr. Neal testified that he never 
expressed an interest to anyone at 
UPS about becoming a supervisor.

(15) Mr. Neal testified that he did not 
approach anyone about becoming a 
supervisor because between 1980 
and 1982 he had observed employees 
being approached by management and 
being asked if they were interested 
in supervision. Mr. Neal was never 
asked if he was interested in 
supervision.

(16) In order to be considered for a 
supervisory position, an hourly 
employee has to submit a letter of 
intent. UPS also approaches 
hourly employees to see if they 
are interested in supervisory 
positions.

(17) Mr. Neal testified that he was 
qualified to perform the duties of 
feeder supervisor and thus he 
should have been approached

- T 4 2 A -



because of his training and 
experience as a feeder driver.

(18) Mr. Neal had eight years of 
experience in driving feeder 
trucks. He was number fifty on 
the feeder driver seniority list. 
There were seventeen blacks and 
thirty-two whites senior to him on 
the seniority list. These forty- 
nine drivers had more training and 
feeder driver experience than Mr. 
Neal.

(19) Mr. Neal acknowledged that 
seniority is not a criteria for 
selecting supervisors and that both 
blacks and whites with more 
seniority than Mr. Neal had been 
selected for supervision.

(20) As evidence of discrimination, Mr. 
Neal relies on the fact that Roger 
McQuage, Scott Heine, and Dennis 
Marks, all white, were promoted to 
feeder supervisor positions even 
though they had no feeder driver 
experience or less feeder driver 
experience than Mr. Neal.

- 1 4 3 A -



Mr. McQuage and Mr. Marks were 
package car drivers and did not 
have any prior feeder driver 
experience. Mr. Heine had two and 
one half years of feeder driver 
experience at UPS when he was 
promoted.

(21) James Elmore and Robert Washington, 
both black, became feeder managers 
although neither of them had any 
experience as feeder drivers.

(22) From January 1, 1979 to November 
17, 1982, UPS promoted three black 
and ten white employees to first 
line supervisory positions.

(23) After Mr. Johnston came to the 
Western Carolina district he began 
in late 1980 and 1981 to seek out 
employees who might be interested 
in supervision. In the course of 
his activities he spoke to Silvis 
Moore, division manager, and Mr. 
Elmore, manager, about candidates 
within the feeder group. Mr.
Elmore named some employees who 
might be interested in supervision 
and whom he could recommend.

-H4A-



(24) In meeting with the managers, Mr. 
Neal's name came up and Mr. Elmore 
stated he could not recommend Mr. 
Neal for a supervisory position 
because of an incident in Raleigh 
when Mr. Neal pulled a knife on 
his supervisor.

(25) The black and white feeder drivers 
that Mr. Moore and Mr. Elmore 
recommended for consideration as 
supervisors included John Todd, 
white, Bob Lee, black, and Henry 
Grier, black.

(26) Bob Lee, a black employee, 
received the highest recommenda­
tion. Mr. Johnston interviewed 
Mr. Lee. Mr. Lee stated he did 
not want to go into supervision.

(27) The other possible candidates were 
interviewed by Mr. Moore and Mr. 
Elmore who reported they were not 
interested in supervision.

(28) On April 15, 1976 Mr. Neal threat­
ened a supervisor with a knife and 
was suspended. Again, on February 
15, 1977 he was suspended for

- - 1 4 5 A -



assaulting an employee.

(29) The Court finds that the evidence 
does not support Mr. Neal's claim 
of discriminatory denial of a 
supervisory position. First, he 
never inquired into a position or 
at least inquired into how to 
apply for a position. Second, the 
thrust of Mr. Neal's contention is 
that experience or seniority as a 
feeder driver entitles that driver 
to be promoted to supervision.
Under Mr. Neal's theory, there 
would be thirty-two other white, 
and seventeen other black, feeder 
drivers more qualified than Mr.
Neal to be offered a supervisory 
job or approached about supervi­
sion. Third, in UPS' informal 
survey of its management personnel 
for potential supervisory candi­
dates, Mr. Neal was not recommended 
for consideration because of past 
conduct for which he was disci­
plined. Both black and white 
managers participated in that 
decision. Other black feeder 
drivers were recommended for 
consideration as supervisors, but

-T46A-



they advised management they were 
not interested. The promotions to 
supervision from January 1, 1979 
to November 17, 1982 shows three 
blacks and ten whites were pro­
moted. The Court, therefore, 
finds that UPS not only articu­
lated but proved that it had two 
legitimate reasons for not pro­
moting Mr. Neal to supervision.
Mr. Neal failed to establish pre­
text in those reasons.

I. SMITH

(1) Matthew Smith was hired as a full­
time car washer on April 3, 1967.
He qualified as a feeder driver in 
1970. He was removed as a feeder 
driver on July 28, 1972 because of 
an accident involving a fatality.
He returned to a feeder driver job 
on August 6, 1973.

(2) Mr. Smith complains that racial 
discrimination exists in the 
assignment of feeder driver equip­
ment and in the issuance of warn­
ings and suspensions he received in 
April 1981 for his refusal to

- 1 4 7 A -



follow instructions. The claim 
concerning assignment of equip­
ment is resolved by the Court in 
Section E, supra. Thus, the only 
claim remaining concerns the April 
1981 warnings and suspensions.

(3) Jim Seagle, white, was a feeder
supervisor in charge of twelve to 
fifteen drivers in "B" center in 
1981. These drivers had start 
times from 5 or 6 a.m. to 8 or 9 
a .m.

(4) Mr. Seagle's job was to train new 
drivers, retrain old drivers, and 
to ride with each driver at least 
once a quarter. Mr. Seagle 
supervised Mr. Smith from 1979 to 
1982.

(5) Mr. Smith bid for and received the 
Bracey-Charlotte run. Richard 
Shaw, Vilas Brown, Jim Morgan, 
white, also ran that same route. 
Their start times were close 
together.

(6) In early 1981 Mr. Seagle was 
informed that the over allowed time

- 1 4 8 A —



on the feeder runs he supervised 
was excessive. Over allowed time 
results in UPS having to pay over­
time to the employees. Mr. Seagle 
was instructed to reduce the over 
allowed time and to start working 
with the driver who had the most 
over allowed time.

(7) Each tractor has a tacograph 
which charts the driver1s actual 
course driven on a particular day, 
including the stops he takes.

(8) UPS allots nine hours, fifteen 
minutes to nine hours, thirty min­
utes for the entire Bracey/ 
Charlotte run. This allotment 
includes break time. There is a 
total of one hour for all breaks. 
The breaks can be taken in 
sequences of fifteen, thirty, fif­
teen, or fifteen, forty-five. The 
longest break is to be taken at 
Bracey, Virginia, the turnaround 
point. Only one break is to be 
taken before arriving at Bracey. 
UPS regiments the break time 
because from five to seven minutes 
are lost every time a tractor

-149A-



stops, due to the loss of momen­
tum when making the stop and the 
time it takes to build momentum 
after the stop.

(9) Mr. Seagle started working with 
Mr. Smith to reduce his over 
allowed time. He discovered from 
the operation report that Mr.
Smith was losing time on his start 
work, finish work, on the road and 
taking excessive breaks.

(10) The pre-trip procedure should take 
twenty minutes. Mr. Smith was 
exceeding this twenty minute allot­
ment. Mr. Seagle retrained Mr. 
Smith on the proper pre-trip 
procedures.

(11) In reviewing Mr. Smith's taco- 
graphs, Mr. Seagle realized that 
Mr. Smith was taking more than one 
break on the Charlotte to Bracey 
leg of his run.

(12) Mr. Seagle started riding with
Mr. Smith on his run. He found Mr. 
Smith was not maintaining fifty- 
five miles per hour and was taking 

— 150A-



unauthorized stops.

(13) Before leaving on a run with Mr. 
Smith on April 8, 1981 Mr. Seagle 
instructed Mr. Smith that only one 
stop was authorized on the 
Charlotte to Bracey leg of the 
run.

(14) Mr. Smith ignored Mr. Seagle's 
instruction and stopped twice on 
the way to Bracey. When Mr.
Seagle told Mr. Smith that the 
second stop was unauthorized, Mr. 
Smith replied he was stopping any­
way and he planned to keep stop­
ping .

(15) Mr. Seagle reported the incident to 
the feeder manager, Roger Keen. On 
April 10, 1981 Mr. Heen issued Mr. 
Smith a warning letter for his 
failure to follow his supervisor's 
instructions concerning taking an 
unauthorized break.

On April 13, 1981 Mr. Seagle again 
rode with Mr. Smith and instructed 
him that only one stop was author­
ized on the way to Bracey.

-151A-

(16)



(17) They left the Charlotte gate at 
7:25 a.m. and Mr. Smith took a 
break one hour later at 8:30 a.m. 
at Peeler Road. He then took a 
second break at the Virginia state 
line at 11:34 a.m. He arrived at 
Bracey seven minutes later at 
11:41. Mr. Smith drove the 
Raleigh to Charlotte leg of the 
trip without having to stop. That 
segment is longer than the segment 
from Peeler Road to Bracey. When 
told they by Mr. Seagle, Mr. Smith 
jumped out of the tractor and went 
to the restroom.

(18) Mr. Seagle reported to Mr. Heen 
that again, contrary to Mr.
Seagle's instructions, Mr. Smith 
made an unauthorized stop, which 
stop was only four miles from 
Bracey.

(19) On April 16, 1981 Mr. Heen issued 
a one day suspension letter to Mr. 
Smith, because of his failure to 
follow his supervisor's instruc­
tions on April 8, and 13, 1981.

-152A-



(20) Mr. Smith filed a union grievance 
protesting the warning letter and 
his suspension. Mr. Smith did not 
suggest that race was a factor in 
his treatment. The substance of 
Mr. Smith's complaint was that he 
did not believe UPS had the right 
to tell an employee when he could 
go to the restroom and if an 
employee felt he needed to use the 
restroom the break should not be 
considered unauthorized. His 
grievance provides:

"if I need to use the rest­
room, I will use it. If we 
can't come to grips on 
something, that seems to be 
trivial to you, yet vital 
to me, some action must be 
taken. I'll take any 
action necessary in order 
to keep the right to use 
the restroom when I need 
to."

This grievance was denied.

(21) On April 16, 1981 Mr. Seagle rode 
with Mr. Smith again. Before they 

-153A- -



left on the run Mr. Smith told Mr. 
Seagle that if he planned on 
instructing him not to take any 
unauthorized breaks he may as well 
fire him now because "if I've got 
to stop, I'm going to stop." Mr. 
Seagle told Mr. Smith his instruc­
tions had not changed and only one 
stop was authorized.

(22) During the run, Mr. Smith took his 
break in Lexington, North Carolina. 
Mr. Smith stopped again at the 209 
mile marker, located approximately 
twenty-five miles from Bracey.

(23) Mr. Seagle reported the incident 
to his manager, Mr. Heen. On 
April 20, 1981 Mr. Heen issued a 
two-day suspension letter for Mr. 
Smith's failure to follow his 
supervisor's instructions on April 
8, 13, and 16, 1981.

(24) On April 21, 1981 Mr. Seagle was 
prepared to ride with Mr. Smith 
again. After Mr. Smith coupled and 
pre-tripped his unit he was ready 
to depart the gate at 7:15. As 
Mr. Smith was about to leave the

-154A-



gate on time he pulled his unit 
over and said he had to clean the 
windows. Mr. Seagle told Mr.
Smith his windows were fine and to 
proceed out of the gate on time.
Mr. Smith replied that he was 
going to clean his windows. Again, 
Mr. Seagle told Mr. Smith the 
windows were fine and to depart on 
his run. Mr. Smith said he was 
not going until he cleaned the 
windows and "I don't care what you 
say." Mr. Smith stopped in front 
of the feeder office and got out 
of the tractor to clean the win­
dows. Mr. Seagle put him out of 
service at that time.

(25) On April 24, 2982 the division 
manager issued a termination letter 
to Mr. Smith due to his failure to 
follow his supervisor's instruc­
tions .

(26) In the grievance hearing under the 
union contract at the panel Mr. 
Smith was reinstated with the loss 
of back pay.

(27) Mr. Seagle was able to reduce
-155A-



Mr. Smith's over allowed time in 
some areas such as on the road 
time, turn around time and start 
time. This reduced the amount of 
Mr. Smith's overtime pay.

(2 8), During the time that Mr. Seagle 
rode with Mr. Smith, Mr. Smith 
pointed out that other drivers 
would pass him, which he contended 
meant that they were also taking 
unauthorized breaks. These 
drivers were Vilas Brown and 
Richard Shaw, and Jim Morgan, 
white feeder drivers. Mr. Seagle 
told Mr. Smith he was not to be 
concerned about what the other 
drivers did or did not do and that 
Mr. Seagle would get up with those 
drivers.

(29) Mr. Seagle talked to all of his 
feeder drivers, including Mr.
Brown, Mr. Shaw, and Mr. Morgan 
about their performance and about 
taking unauthorized breaks. After 
Mr. Seagle talked to them, they 
stopped taking unauthorized breaks. 
Thus, since they complied with 
their supervisor's instructions

-156A-



after being told not to take 
unauthorized breaks, they did not 
receive warning letters.

(30) Mr. Seagle also rode with the 
other drivers to try and reduce 
the amount of over allowed time. 
Other drivers reduced their over 
allowed time after being counseled. 
Mr. Seagle was able to reduce the 
over allowed time of his drivers 
from one hour to twelve minutes 
per driver per day.

(31) After Mr. Smith was reinstated Mr. 
Seagle rode with him on his new 
bid run to Pleasantdale, Georgia.
Mr. Smith performed all the aspects 
of the job within the allowed times 
and took only one break to 
Pleasantdale, a four hour, thirty- 
three minute trip.

(32) Mr. Smith testified he did not have 
any physical problem which required 
him to use the restroom excessively.

(33) The Court finds that Mr. Smith 
strenuously objected to the one 
break policy. As a result he did

-157A-



not attempt to comply with the 
policy or cooperate in the reduc­
tion of his over allowed time.
His unauthorized stop, four miles 
from Bracey, suggests intentional 
defiance of his supervisor's 
instructions. The fact that a 
black employee has to comply with 
an employment procedure he does 
not like is not race discrimina­
tion. Racial discrimination is 
present if there is one policy for 
whites and one policy for blacks 
or the policy is not uniformly 
applied. That is not the situation 
in this case. The other employees, 
even though they too may not have 
liked the policy, complied with it 
after their supervisor instructed 
them not to take unauthorized 
breaks. Mr. Smith, however, con­
tinuously refused to comply with 
his supervisor's instructions and 
therefore he received the warning 
letters and his suspensions. An 
employer should not have to 
instruct an employee on at least 
three different occasions to comply 
with a procedure the employer has 
determined to be beneficial.

- 1 5 8 A -



Further, an employer should not 
have to tolerate an employee that 
repeatedly refuses to adhere to 
instructions. The Court finds 
that the warnings, suspensions, 
and termination of Mr. Smith were 
given to him because of his will­
ful conduct in disregarding his 
supervisor's instructions. The 
discipline was justified and race 
definitely was not a factor in 
imposing the discipline. Assuming 
the Plaintiff established a prima 
facie case of discrimination, the 
Defendant established legitimate 
reasons for their actions which 
reasons the Plaintiff failed to 
prove were pretextual.

J. WATTS

(1) Carl Watts was hired on February
9, 1976 as a part-time loader. He 
alleges racial discrimination in 
the denial of a package car posi­
tion and in the issuance of warn­
ings due to his failure to comply 
with his supervisor's instructions.

In June 1981 Mr. Watts was a 
-159A- -

(2)



part-time unloader assigned to the 
midnight sort which sort lasted 
three and one half hours to four 
hours. Van Smith was Mr. Watt’s 
immediate supervisor. Mr. Smith 
reported to Harry Wolfe, the mid­
night sort manager.

(3) In order to coordinate the flow of 
unloading packages, UPS adopted a 
policy of requiring employees to 
notify their supervisor before 
leaving the work area. Thus, if 
an unloader left the work area his 
sorter, who would be without work, 
could be switched temporarily to 
another position if necessary or a 
supervisor could temporarily unload 
the van.

(4) Mr. Smith informed all of his 
employees they were to notify him 
whenever they left the work area 
for any reason. Notification 
could be by word of mouth, by a 
hand motion, by eye contact or in 
some other informal manner.

(5) When the new policy was first

-.-160A-



explained, Mr. Watts told Mr.
Smith that he was not going to 
notify Mr. Smith when he left.
Mr. Smith reported this comment 
to Mr. Wolfe, his manager.

(6) After the new policy was announced, 
employees who failed to notify 
their supervisor when they left 
the work area, were reminded of 
the rule and instructed to follow 
it. After this oral counseling 
most employees adhered to this 
policy.

(7) On June 2, 1981 Mr. Watts failed
to notify his supervisor when leav­
ing the work area. Mr. Smith and 
Mr. Wolfe orally instructed Mr. 
Watts to comply with the rule. A 
warning letter was not issued.

(8) Mr. Watts told Mr. Wolfe and Mr. 
Smith that he would not abide by 
the rule.

(9) Mr. Watts violated the rule again 
on June 24, 1981. Thus, on June 
30, 19-81 he was sent a warning

-161 A-



letter for failing to follow his 
supervisor's instructions on June 
2 and June 24, 1981.

(10) Mr. Wolfe talked with Mr. Watts 
after issuing Mr. Watts the June 
30, 1981 warning letter. Mr. 
Watts replied he did not agree 
with the rule, he thought it was 
childish, he did not plan to fol­
low the rule and if he needed to 
leave he would leave.

(11) Mr. Watts again violated the rule 
on June 26, 1981 and received a 
one day suspension because of his 
failure to follow his supervisor's 
instructions.

(12) After his one day suspension Mr. 
Watts reiterated to Mr. Wolfe that 
he still did not plan to adhere to 
the policy.

(13) After receiving a one day suspen­
sion, Mr. Watts again violated the 
rule for which he had just been 
suspended. On July 2, 1981 he 
received a three day suspension 
letter for his failure to follow

- 1 6 2 A -



his supervisor's instructions on 
four different occasions concern­
ing leaving the work area.

(14) On June 25 and June 29, 1981 Mr. 
Watts filed two union grievances 
protesting the warning notices and 
the one day suspension. In the 
grievances Mr. Watts stated that 
he told his supervisor that he 
would not abide by this rule and 
that "I do not allow myself to be 
governed by his stupid rules."
The second grievance also asserts 
that the rule was not applied to 
white employees. Both grievances 
were denied.

(15) In grievance meetings held to try 
and resolve the grievances, both 
shop stewards, Johnny Wilson and 
Henry Tyson (a Plaintiff in this 
litigation) attempted to persuade 
Mr. Watts to follow the rule.

(16) Mr. Watts contends that the rule 
was enforced against him but was 
not enforced against white 
employees. The white employees he 
contended were not subject to the

- 1 6 3 A -



rule were Jimmy Duncan, Curtis 
Sutton, Charles Elrod, and 
Sherwood Page.

(17) After Mr. Wolfe talked to Mr. 
Duncan about following the rule 
he had no further problems with 
him. Mr. Elrod and Mr. Sutton 
were not under Mr. Smith's super­
vision.

(18) The other employees did complain 
about the rule. After Mr. Wolfe 
talked to the employees he did not 
have any trouble with anyone fol­
lowing the rule, except Mr. Watts. 
The only white employee who pushed 
the rule was John Dulin. Mr.
Dulin was written up for not fol­
lowing the rule. Mr. Dulin fin­
ally decided to abide by the rule 
after Mr. Wolfe and John Fish 
talked to him.

(19) Other white employees were talked 
to about following the policy. 
Frank Lawson was talked to about 
the rule and a written notation 
placed in his personnel file. The 
same happened to Randy Lankford.

- 1 6 4 A -



Both of these employees observed 
the rule after counseling.

(20) In addition, Mr. Wolfe talked to 
Sherwood Page and Curtis Sutton, 
white, about observing the rule.
All did so after they were coun­
seled .

(21) Mr. Watts was the only employee 
who was given formal warning let­
ters and suspensions for violating 
the rule. Mr. Watts, however, was 
the only employee who stated he 
would not follow the rule even 
after counseling and who could not 
be persuaded to follow the rule 
until he received a second suspen­
sion and was advised by his 
co-workers to comply.

(22) The Court finds that the Defendant 
articulated a legitimate reason for 
issuance of the warning and suspen­
sions. Mr. Watts knew of the 
policy and deliberately chose 
repeatedly to violate it, even 
after being counseled and warned to 
comply. In light of Mr. Watts' 
failure to respond to counseling,

- 1 6 5 A - -



if UPS could not issue a warning 
letter they would be saddled with 
an employee who would not work 
under the same conditions and 
rules as the other employees.
When Mr. Watts refused to comply 
and stated his intention never to 
comply, after being counseled 
otherwise, UPS had absolutely no 
other viable alternative except to 
issue a warning letter and hope 
that the letter would bring Mr. 
Watts in line. The letter having 
failed, the next step was a brief 
suspension and that having failed, 
the next step was a longer suspen­
sion with the hopes of avoiding an 
eventual discharge.

Further, the policy was applied 
uniformly to all employees.
Although the other employees dis­
liked the rule they realized, 
after being talked to by UPS, that 
they had to adhere to the policy or 
risk disciplinary action. Although 
several employees initially chal­
lenged or ignored the rule, these 
employees were all talked to and 
not one white employee continued to

•-166A-.



violate the policy after being 
warned to comply. The fact that 
Mr. Watts is black does not pro­
tect him from having to adhere to 
a rule he dislikes which rule is 
applied consistently to all 
employees. The Court finds that 
the warnings were issued for just 
cause and that the Plaintiff 
failed to prove pretext.

(23) On May 25, 1981 Mr. Watts filed 
another charge of discrimination 
alleging he was disqualified as a 
package car driver because of his 
race and because he was a Plaintiff 
in this litigation.

(24) The Defendant moved that the sub­
ject matter of the package car 
charge be included in this litiga­
tion. The Defendant's motion was 
allowed and the Plaintiff was 
allowed to amend the Complaint.

(25) Mr. Watts applied for a full-time 
package car driver position and in 
March 1983 began his training to 
qualify for the position. Dale

- 1 6 7 A -



Hollifield, white, was his 
trainer and immediate- supervisor.

(26) Mr. Watts was placed in the stan­
dard training program for package 
car drivers. The trainee's pro­
gress is charted by the supervi­
sor. The trainee is shown the 
progress chart and initials it. 
Deliveries are made prior to lunch 
and pick-ups are made after lunch. 
The progress chart shows how much 
time the trainee exceeds the 
required time. Mr. Watts does not 
challenge the adequacy of his 
training as did Mr. Cherry and Mr. 
Ardrey concerning the sortrac.

(27) After two days of orientation Mr. 
Watts received on the road training 
by Mr. Hollifield for four consec­
utive days. Mr. Watts then went 
out by himself.

(28) His progress was reviewed every 
day. He was instructed to call in 
if he fell behind in making deliv­
eries .

-168A-



(29) Mr. Watts was talked to about an 
open bulkhead door on March 30, 
1983, about returning to the cen­
ter with missed packages on April 
14, 1983, about recording packages 
at the time the deliveries were 
attempted or made on April 15, 
1983, and again about leaving the 
bulkhead door open on April 18, 
1983 .

(30) On April 18 and 19, 1983, as a 
result of a call in by Mr. Watts 
at 4:40, four of his pick-up stops 
were reassigned to another driver.

(31) On April 21, 1983 a customer 
called in complaining that Mr. 
Watts had missed his pick-up the 
last two days. Mr. Watts denied 
missing the pick-ups.

(32) Mr. Watts' progress was charted 
every day. His actual progress 
failed to equal or exceed expected 
performance. Thus, he was not 
meeting the standard. He took 
more time then was allowed to do 
the job every day except one.

-169A-



( 3 3 ) From the seventeenth to the 
twenty-first day of training, Mr. 
Watts needed to perform the job 
at "scratch" in order to qualify 
as a package car driver. He had 
to run his route with an average 
of no over allowed time.

(34) Mr. Watts ran over allowed .70 on 
the seventeenth day, .47 on the 
eighteenth day, 1.04 on the nine­
teenth day, -.82 (under allowed) 
on the twentieth day and .30 on 
the twenty-first day. The twenti­
eth day was the first time Mr.
Watts ran under allowed.

(35) Unless Mr. Watts ran substantially 
under allowed on the twenty-first 
day he would not have qualified as 
a package car driver. He ran over 
allowed on the twenty-first day.

(36) On April 27, 1983, Hershel 
Fitzgerald, division manager in 
charge of package car operation, 
observed Mr. Watts unloading an 
inordinate number of packages from 
his car. Mr. Fitzgerald instructed 
Ray Hancock, the center manager for

- 1 7 0 A -



the area where Mr. Watts worked, 
to audit Mr. Watts' car and 
delivery records the next day.

(37) On April 28, 1983 supervisor Steve 
Ogelsby audited Mr. Watts' package 
car after Mr. Watts returned to 
the Charlotte building. Mr. 
Ogelsby found twenty-nine undeliv­
ered packages on Mr. Watts' car. 
Six of the twenty-nine packages 
had been recorded by Mr. Watts. 
After auditing the packages and 
records Mr. Ogelsby determined 
that twenty-five of the packages 
were "missed packages".2 a  missed 
package is a package in which no 
delivery attempt has been made.

(38) The packages were taken to the 
office. Mr. Ogelsby corrected Mr. 
Watts' time card to show that he 
had twenty-five missed packages.

2
There were some packages recorded as an 

attempted delivery which Mr. Ogelsby con­
sidered missed packages, because the delivery 
was to a radio station and a driver can get 
in a television or radio station almost any 
time of the day.

- 1 7 1  A -



Mr. Ogelsby also made changes in 
Mr. Watts' card to show 231 gross 
packages were delivered in area 
1002 and 236 in area 1001. He 
reported his findings to Mr. 
Hancock and Mr. Fitzgerald.

(39) On April 28, 1983 Mr. Hollifield 
met with Mr. Watts in the morning. 
He asked Mr. Watts to call in at 
1:30 p.m. Mr. Watts called in at 
3:00 p.m. and reported that all of 
his deliveries were completed 
except four misloads. He was 
instructed to deliver the misloads 
when he made a pick-up on an 
adjacent street.

(40) When Mr. Watts returned to the 
building that evening Mr. 
Hollifield reviewed his time card 
with him. He card reflected 113 
delivery stops which number seemed 
high to Mr. Hollifield. Mr. 
Hollifield went through the 
delivery records and found eighty- 
eight stops. Mr. Watts' time card 
was changed accordingly. Instead 
of sixty stops in area 1001, Mr. 
Watts had thirty-five. If the

- 1  72 A -



number of stops had remained at 
sixty he would have come in under 
allowed.

(41) On April 29, 1983 Mr. Fitzgerald 
reviewed the missed packages and 
made a list showing that twenty- 
three packages had not been 
delivered. He gave Mr. Watts the 
benefit of doubt on two packages 
listed on his delivery sheets as 
undelivered. Mr. Fitzgerald 
charged Mr. Watts with only 
twenty-three undelivered packages 
because Mr. Watts had six undeliv­
ered packages noted on his 
records.

(42) Mr. Fitzgerald called Mr. Watts in 
his office and confronted him with 
what the audit disclosed. Mr. 
Watts said he made all his deliv­
eries. Mr. Fitzgerald disquali­
fied Mr. Watts for failing to 
deliver twenty-three packages and 
for failing to report the delivery 
failure.

(43) UPS calls failing to report deliv­
ery failures, "burying packages."

-173A-



The penalty for burying packages 
is disqualification. Under UPS' 
operating procedures, if undis­
covered by the audit the twenty- 
three undelivered packages left on 
the van would have been treated as 
pick-up packages and run through 
the system again. The packages 
would have ended up in Mr. Watt's 
van for delivery the following day. 
None of the records maintained by 
UPS would show this repetition had 
occurred.

(44) Mr. Watts has a right under the 
union contract to reapply for a 
package car position one year after 
his disqualification.

(45) Between January 1, 1983 and July 
30, 1983 three whites, two blacks, 
and one American Indian qualified 
as package car drivers. During 
this same period seven whites and 
six blacks failed to qualify. Thus 
out of a total of ten whites, three 
qualified. Out of a total of eight 
blacks, two qualified. Out of a 
total of one American Indian, one 
qualified.

■ - 1 74 A-



(46) The Court finds that Mr. Watts was 
not discriminated against on 
account of his race or on account 
of filing previous charges with 
the EEOC. Mr. Watts was disquali­
fied as a package car driver 
because he buried packages.
Although Mr. Watts denies having 
buried any packages the Court 
resolves the credibility issue in 
favor of Mr. Fitzgerald. First,
Mr. Watts' denial is consistent 
with his denial of the customer's 
complaint that he failed to make 
his pick-ups. Second, UPS fol­
lowed its standard procedures in 
training and auditing Mr. Watts' 
performance. It seems unlikely 
that twenty-one days would be 
spent in training an employee in 
order to conspire with the auditor - 
and the supervisor to fabricate a 
story of buried packages. Further, 
Mr. Watts' progress chart indicates 
that he would not have reached the 
required performance level at the 
end of his twenty-first day of 
training. The Court, therefore, 
finds that the Defendant articu­
lated a legitimate reason for 

- -175A-



disqualifying Mr. Watts and the 
Plaintiff failed to prove that the 
reason was pretextual or had a 
causal relation to his EEOC 
charges.

PETTIGREW

(1) Cheryl Pettigrew filed a charge of 
racial discrimination on May 9,
1980. She filed a motion to 
intervene in this action and was 
allowed to intervene by Order of 
the Court on October 28, 1982.

(2) Ms. Pettigrew was hired by UPS on 
August 8, 1977 as a part-time 
customer service clerk in the 
customer service department of the 
general office. She was hired by 
Jack Denton, white, who became her 
immediate supervisor. She was 
employed by UPS until May 8, 1980. 
She has not held a bargaining unit 
position.

On August 23, 1978 she applied for 
a full-time billing clerk position. 
She was not interviewed or selected 
for the position. A more senior 

- 1 7 G A -

(3)



black employee, Rose Marie 
Lipscomb, whose previous job 
performance had been very good, 
was selected for the vacancy.

(4) On November 30, 1978 Ms. Pettigrew 
applied for a full-time tracing 
clerk position in the delivery 
information and claims (D.I.C.) 
department. She was recommended 
for this position by Mr. Denton, 
her supervisor.

(5) Columbus Feaster, black, inter­
viewed the candidates, including 
Ms. Pettigrew, for the vacancy.
He selected Diane Deal, a white 
part-time customer service clerk, 
for the position.

(6) Ms. Pettigrew applied for a full­
time claims adjuster position in 
the D.I.C. department on April 25, 
1979. Her supervisor, Curt Brown, 
would not recommend her for the 
position because her job perform­
ance was average or below average 
and thus did not warrant a recom­
mendation. Mr. Brown advised Ms. 
Pettigrew that if her job

- 1 7 7  A-



performance improved he would be 
pleased to recommend her for the 
position.

(7) Recommendation by an employee's 
immediate supervisor is a prere­
quisite for a transfer or a promo­
tion to a new position.

(8) The vacancies in the D.I.C. at 
that time were filled by Joyce 
Cunningham, black, and Nancy 
Calloway, white.

(9) On June 19, 1979 Ms. Pettigrew 
asked to be considered for another 
full-time tracing position in the 
D.I.C. department. Ms. Pettigrew's 
work had improved to the point 
where Mr. Brown decided he could 
and should recommend her for the 
position. She was selected for the 
position.

(10) Ms. Pettigrew started training as a 
full-time tracing clerk on July 2, 
1978. Her immediate supervisor and 
trainer was Mr. Denton, the super­
visor who initially hired her at 
UPS and who first recommended her

- 1 7 8 A -



for a position.

(11) As a tracing clerk, Ms. Pettigrew 
was assigned to do the tracers for 
the Myrtle Beach, Anderson, and 
Orangeburg, South Carolina cen­
ters .

(12) The duties of a tracing clerk con­
sist of tracing delivery of pack­
ages in the assigned areas, filing 
damage reports, and filing and 
auditing various delivery records.

(13) The tracing job involves following 
a detailed step-by-step procedure 
to determine if a package has been 
delivered to the consignee. The 
tracers are placed in order from 
the oldest to the most recent.
The clerk must determine the ship­
ping date, the approximate delivery 
date, the place of delivery, and 
check the delivery records to see 
if delivered and signed. If the 
package had been delivered the 
receiving signature would be traced 
and sent to the shipper as proof of 
delivery. If a signature is not 
discovered then the delivery 

-179A-



records for five days are checked, 
seven days, then sixteen days. If 
the sixteen day search fails, the 
damage reports and then the loss 
log and the irregular reports are 
examined. The consignee or the 
center would then be called to see 
if they are holding the package.
If all these steps are unsuccess­
ful, the tracer is classified as a 
claim.

(14) The tracers for which delivery 
cannot be proven are called loss 
damage investigation (L.D.I.) and 
are given to a retrace clerk who 
follows the same procedure as the 
tracing clerk to see if proof of 
delivery was missed by the tracing 
clerk. If the retrace clerk can­
not find proof of delivery then the 
tracer is sent for claims proces­
sing .

(15) Ms. Pettigrew's training was con­
ducted by Mr. Denton who reviewed 
her progress with her each week.
Her initial training period was for 
four weeks. She did not meet the 
performance goals during the four

-180A-



week training period. The 
performance goals were to close 
fifty-five tracers per day, have 
no more than 10% L.D.I. and to 
close twelve tracers per hour.
Her tracer hourly averages for the 
first four weeks were 4.8, 4.6,
5.7, and 6.6. Her performance the 
fourth week of training was forty- 
one tracers per day and 29% 
L.D.I.'s. Her reports suggested 
that she needed to work a tracer 
until it was complete, to enter 
tracers on the time card and to 
organize her work area.

(16) Although Ms. Pettigrew did not 
achieve her performance goals, UPS 
extended her training until August 
20, 1979 because she had shown 
progress each week.

(17) On September 11, 1979 Ms. Pettigrew 
was warned for holding her L.D.I.'s 
until the end of the day. She had 
held ten L.D.I.'s on September 6, 
seven L.D.I.'s on September 7, and 
five L.D.I.'s on September 10,
1979. When a tracing clerk holds 
the L.D.I.'s until the end of the

- 1 8 1  A -



day, then the retrace clerk does 
not have time to check the 
L.D.I.'s that day.

(18) On September 25, 1979 Mr. Denton 
performed a full day on-the-job 
evaluation of Ms. Pettigrew's 
performance in accordance with the 
standard procedure. As a result 
of the evaluation, Mr. Denton pre­
pared a list of twelve areas in 
which Ms. Pettigrew needed to 
improve her job performance.

(19) Mr. Denton followed her progress 
in improving these twelve areas.
In a review on October 5, 1979 he 
found that she had corrected six 
areas and four areas still needed 
to be corrected. This report was 
reviewed with Ms. Pettigrew on 
October 8, 1979.

(20) A second follow up was conducted
by Mr. Denton on October 8, 1979 to 
reemphasize the importance of doing 
her job effectively. Ms. Pettigrew 
had still failed to correct the 
four areas. Mr. Denton advised Ms. 
Pettigrew that her job performance

- 1 8 2 A -



and attitude needed to improve or 
disciplinary action to and includ­
ing discharge would be taken.

(21) On November 5, 1979 Mr. Denton 
talked with Ms. Pettigrew about 
holding back tracers. A tracer 
was found in her desk with an 
answer from the center. The 
tracer had been there for two 
days. This was the second time 
Mr. Denton talked to Ms. Pettigrew 
about holding back tracers.

(22) On or about February 12, 1980 Ms. 
Pettigrew asked for and was given 
a different tracer area. She felt 
that if she had a larger area she. 
would be able to close more 
tracers. She was given the 
Spartanburg and Asheville centers 
which had more tracers than her 
previous area. This area had been 
assigned to Nancy Calloway. Ms. 
Pettigrew's area was then assigned 
to Ms. Calloway.

(23) Ms. Calloway did not have any 
problem satisfying performance 
standards in either area.

■ -183A- •-



(24) On February 13, 1980 Mr. Denton 
talked to Ms. Pettigrew about 
failing to turn in tracers and 
about keeping her delivery 
records in proper order. He 
advised her that if these problems 
continued, disciplinary action 
would be taken. Ms. Pettigrew 
refused to sign the documentation 
of this discussion because she 
felt Mr. Denton "was picking" on 
her.

(25) On February 20, 2980, Mr. Denton 
performed another full day on-the- 
job evaluation of Ms. Pettigrew's 
performance. Mr. Denton found 
that she was not following the 
procedures, was handling records 
roughly, had too many L.D.I.'s and 
needed to increase her production 
to twelve tracers per hour.

(26) In addition Mr. Denton discovered 
that Ms. Pettigrew was continuing 
to hold back tracers. On February 
20, 1980 Ms. Pettigrew turned in 
eight L.D.I.'s after 4:45 p.m., 
five of which claims were found by 
retracing on February 21, 1980.

- 1 8 4 A -



On February 19, 1980 Ms. Pettigrew 
turned in seven claims after 4:45 
p.m., five of which claims were 
found the next morning by retrac­
ing. Mr. Denton told Ms.
Pettigrew she was either holding 
the claims to the end of the day 
causing them to be late to the 
center or she was closing them as 
L.D.I.'s without checking them 
properly. She was advised that 
this was not acceptable job per­
formance .

(27) On February 25, 1980 Ms. Pettigrew 
turned in eight L.D.I.'s after 
4:45 p.m. Five were found by 
retracing on the next day.

(28) On February 26, 1980 seven 
L.D.I.'s and five N.T.A.'s were 
turned in after 4:45 p.m. Ms. 
Pettigrew had two of the L.D.I.'s 
and three of the N.T.A.'s since 
the first dispatch.

(29) On February 27, 1980 Ed Bruce, 
division manager of delivery 
information and loss prevention 
and Fred Pennington, Mr. Denton's

-T85A-



manager, met with Ms. Pettigrew to 
review her job performance.
Although Ms. Pettigrew stated she 
knew how to do her job, Mr. Bruce 
found upon questioning her that 
she was not completely familiar 
with the procedures to follow in 
tracing. Mr. Bruce told Ms. 
Pettigrew that UPS would retrain 
her. Once, however, the training 
was received the accountability 
would be hers to perform her job. 
She was advised that if she con­
tinued to fail to do her job after 
the retraining, she would be 
terminated. Mr. Denton was called 
into the meeting to be made aware 
of Ms. Pettigrew's feeling that he 
was picking on her. Mr. Denton 
committed to retraining Ms. 
Pettigrew.

(30) The retraining of Ms. Pettigrew
began on March 5, 1980 and was car­
ried out on a planned schedule. On 
March 17, 1980 Mr. Denton reviewed 
Ms. Pettigrew's performance and 
explained to her that she was not 
meeting performance goals. Mr. 
Denton again reviewed what 

-186A- '



performance standard was expected 
of her. Ms. Pettigrew stated she 
did not need any further training. 
Mr. Denton prepared an "individual 
progress review" and noted she 
needed improvement in all areas.
Ms. Pettigrew refused to sign the 
appraisal form and felt she was 
doing a good job.

(31) On March 26, 1980 Mr. Denton 
talked to Ms. Pettigrew about her 
progress after her retaining. He 
told her that he believed that she 
knew how to do the job but that 
she was not actually doing the job. 
Her attitude seems to be "I don't 
care". Ms. Pettigrew responded 
that she was doing her best but was 
unable to reach her goals. She 
stated that you could not have a 
good day, every day. Mr. Denton 
explained to her that he did not 
expect everyone to reach their 
goals every day but that this month 
she had only reached her goals two 
times and had only reacher her 
goals ten times all year.

(32) On April 1, 1980 Mr. Bruce,
- 1 8 7 A - -



Mr. Pennington and Mr. Denton 
talked to Ms. Pettigrew about her 
retaining period. Ms. Pettigrew 
acknowledged she had received the 
retraining she requested yet she 
was not meeting her performance 
goals. Her explanation was that 
she was doing the best she could 
and she could not have a good day 
every day. Mr. Bruce advised Ms. 
Pettigrew that she would have one 
week to improve and if she did not 
show she could perform the job, 
disciplinary action would be taken. 
She was told a review would be 
held April 8, 1980.

(33) On April 8, 1980 Ms. Pettigrew 
asked Mr. Pennington why other 
employees had received a pay 
increase and she had not. She 
stated that UPS was trying to 
humiliate her and she was being 
treated unfairly. Mr. Pennington 
replied that they had been more 
than fair to her and had given her 
more attention, assistance, and 
training than any other employee. 
She threatened to go to the dis­
trict manager and get an attorney.

- 1 8 8 A -



Mr. Pettigrew reminded her of the 
previous counseling concerning her 
job perfromance. Mr. Pennington 
further informed her that her 
performance on April 4, I960 did 
not indicate that she was con­
cerned about her job. She replied 
that she had a bad day. Mr. 
Pennington told her she needed to 
have more good days and less bad 
days.

(34) On April 9, 1980 Ms. Pettigrew 
requested and was granted time off 
because of a death in the family. 
She told Mr. Pennington she would 
call April 10 and advise him of 
her status and try to return to 
work on April 11, 1980. She was 
not heard from until she returned 
to work on April 16, 1980.

(35) On April 18, 1980 Ms. Pettigrew was 
advised that she would not receive 
a salary increase because of unsat­
isfactory work performance. She 
was told a future wage review 
would be held on May 8, 1980. Ms. 
Pettigrew refused to sign the wage 
and review form.

. -1-89A-



(36) In addition, on April 18, 1980 Mr. 
Bruce, Mr. Pennington, and Mr. 
Denton discussed Ms. Pettigrew's 
performance and status with her.
She was told that still she was 
not achieving her performance 
goals. Due to the recent death in 
the family, however, they were 
going to give her an additional 
two weeks to prove that she could 
perform her job. During these two 
weeks, the supervisors would not 
have discussions or meetings with 
her. Her performance goals for 
the two weeks were reviewed. She 
was advised that she would have to 
reach the goals eighty percent of 
the time. The goals were twelve 
tracers per hour, no more than ten 
percent L.D.I.'s and no more than 
two percent overlooks. She was 
told the time limit would not be 
extended if she was absent. If she 
failed to reach the goals she would 
be terminated. If she reached the 
goals her wages would be reviewed.

(37) Out of the ten days Ms. Pettigrew 
met her overlook goal every day but 
only met her tracer per hour goal

-190A-



o n  s i x  d a y s  a n d  h e r  L . D . I . ' s  g o a l  

o n  t h r e e  d a y s .  M s .  P e t t i g r e w  

f a i l e d  t o  m e e t  h e r  g o a l s  e i g h t y  

p e r c e n t  o f  t h e  t i m e .

(38) The decision was made to terminate 
Ms. Pettigrew on May 8, 1980 for 
failure to perform her job in the 
prescribed manner. The decision 
was made by Mr. Brucer, Mr. 
Pennington, and Julius Montague, a 
black personnel manager.

(39) Ms. Pettigrew was called in on May 
8, 1980 and told she would be 
terminated, but she was first 
offered the opportunity to resign. 
She refused to resign and was 
terminated. After she was termi­
nated her working area was found to 
be in disarray.

(40) Karen Dunn, a white tracer began 
her training under Mr. Denton on 
June 26, 1979. She was trained in 
the same manner as Ms. Pettigrew 
for the tracing clerk position.
She went through the same four 
weeks training period as Ms. 
Pettigrew and additional training.

- 1 9 1 A- -  •



She did not meet her performance 
goals during the training.

(41) On November 5, 1979 Mr. Denton 
talked to Ms. Dunn about a tracer 
found in her trash can and her 
overlook and error problems.

(42) On December 3, 1979 Mr. Denton 
again talked co Ms. Dunn about her 
error problem and advised her that 
if she continued to make errors 
disciplinary action would be 
taken.

(43) On January 28, 1980 because of Ms. 
Dunn's failure to improve she was 
told by Mr. Denton that if she had 
two bad answers during the month 
of February she would be dis­
charged.

(44) On January 24, 1980 she was cited 
for failing to fill out her time 
card.

(45) On March 18, 1980 Mr. Denton pre­
pared an "individual progress 
review" of Ms. Dunn. She was con­
tinuing to have problems with

- T 9 2 A -



errors, overlooks, and tracers per 
hour.

(46) On April 15, 1980 Ms. Dunn was 
advised that she would not receive 
a salary increase because of her 
performance. A future wage review 
was scheduled for May 15, 1980.

(47) Mr. Denton reviewed Ms. Dunn's 
poor performance with her on April 
21, 1980. She was informed that 
she would have one month to 
improve to an acceptable level.
If she reaches her goals during 
this period she will be given a 
wage increase. If she fails to 
reach the goals, disciplinary 
action, up to and including dis­
charge, would be taken. Her goals 
were to close twelve tracers per 
hour, only five overlooks per 
month, and only five errors a week. 
She was not told that she only had 
to meet her goals eighty percent 
of the time.

(48) On May 23, 1980 Mr. Denton and Mr. 
Bruce met with Ms. Dunn and told 
her she was going to be discharged

-193ft-



for failing to improve her 
performance. She was given the 
option of resigning which option 
she accepted. She resigned on 
that date.

(49) Nancy Calloway, white, and Joyce 
Cunningham, black, who filled 
tracing vacancies before Ms. 
Pettigrew entered the department 
and met the performance standards.

(50) Ms. Pettigrew and Ms. Dunn were 
the only employees in the depart­
ment who were terminated.

(51) Ms. Pettigrew argues that Ms. Dunn 
who had similar problems to Ms. 
Pettigrew was treated differently. 
Ms. Pettigrew contends that since 
Ms. Dunn was given one month to 
improve her performance, was not 
given an L.D.I. goal and did not 
have to meet her goals eighty per­
cent of the time she was given 
preferential treatment prior to 
her discharge. Ms. Pettigrew con­
tends this "preferential treatment" 
is, or is evidence of, racial

- 1 9 4 A -



discrimination.

The Court finds Ms. Pettigrew's 
contentions to be completely with­
out merit. Ms. Dunn was not given 
preferential treatment. Both 
employees were disciplined and 
constructively criticized in 
accordance with their particular 
deficiencies. Ms. Dunn was not 
given an L.D.I. goal but then Ms. 
Pettigrew was not given a five 
error per week limit. Further, 
the instructions to Ms. Dunn were 
that she was to satisfy her goals 
during this probationary period 
and not that she only had to attain 
her goals eighty percent of the 
time. Similarly, although Ms. 
Pettigrew was given a two week 
probationary period and Ms. Dunn a 
one month probationary period, Ms. 
Pettigrew had been given a 
previous probationary period, 
which this period was an extension 
of, because of a death in her 
family. In addition, Ms. Pettigrew 
was not told that if she had two 
errorts in one month she would be 
discharged and Ms. Dunn was not

- 1 9 5 A -



afforded a one month retraining 
program.

The Plaintiff wants the Court to 
look at a single frame of an 
entire picture to find discrimina­
tion. Under the Plaintiff's 
approach Ms. Dunn should allege 
racial discrimination because she 
was not afforded a one month 
retraining program, she was not 
given an extension of her proba­
tion period, she was subjected to 
a two error goal and she was not 
told she only had to meet her 
goals eighty percent of the time, 
while a black employee received 
those advantages. The fact is 
that in looking at the entire 
picture the evidence reveals that 
if anyone received preferential 
treatment, it was Ms. Pettigrew. 
Each employee was warned and dis­
ciplined according to their own 
performance problems. Both Ms. 
Pettigrew and Ms. Dunn trained and 
worked as tracing clerks during the 
same period of time, both failed to 
improve their performance after 
numerous discussions and warnings

- 1 9 6 A -



and both were separated from UPS 
in May 1980.

(52) The Court finds that Ms. Pettigrew 
was discharged because of her poor 
performance and that she was not 
treated differently than Ms. Dunn 
because of her race. Further, the 
Plaintiff failed to prove pretext 
in the treatment of her by UPS as 
a tracing clerk or in her subse­
quent discharge.

L. RACIST ATMOSPHERE - MORROW AND TYSON

(1) Jerome Morrow was hired August 25, 
1970 as a part-time employee. He 
became a full-time preloader/ 
sorter on June 7, 1976 and a full­
time car wash/shifter on August 
25, 1981.

(2) In the Complaint filed in this 
litigation, Mr. Morrow claims he 
was required to work in a "racist 
atmosphere" and was denied a pro­
motion to a supervisory position. 
Mr. Morrow's supervisory claim was 
abandoned and no evidence was 
offered in respect to it.

- 1 9 7 A -



(3) Mr. Tyson was hired August 18,
1970 as a part-time employee. He 
became a full-time preloader/ 
sorter on April 22, 1974 and 
returned to part-time work on June 
18, 1974. On March 8, 1982 he 
became a full-time car wash/ 
shifter. He worked in the "blue 
label" area from the latter half 
of 1978 until he obtained the car 
wash/shifter position. Air pack­
ages are processed in the blue 
label area.

(4) In the Complaint, Mr. Tyson claims 
he was subjected to working in a 
racist atmosphere.

(5) The other Plaintiffs also incorpo­
rated a general racist atmosphere 
claim in addition to their 
individual claims.

(6) The Complaint specifics the racist 
atmosphere as:

(a) Blacks have a more 
difficult time in 
moving from part- 
time laboring 
positions to

- 1 9 8 A -



part-time super­
visory or full­
time laboring 
positions;

(b) Blacks are treated 
differently than 
whites when attempt­
ing to qualify for 
full-time positions;

(c) Blacks are more 
likely to be 
suspended, termi­
nated, or disciplined 
than white employees; 
and

(d) Black receive the 
more difficult work 
assignments.

(7) The testimony elicited from Mr.
Morrow and Mr. Tyson with respect 
to the racial atmosphere claim was 
more limited than the broad general 
allegations in the Complaint. Both 
Mr. Morrow and Mr. Tyson testified 
about the discontinuance of the 
"affirmative action committee."

- 1 9 9 A -



Mr. Tyson testified that in the 
blue label area blacks were given 
harder work assignments and that 
Mr. Tyson receives more criticism. 
Mr. Morrow testified that in the 
pre-sort area, blacks were not 
trained the same as white employ­
ees. Mr. Tyson and Mr. Morrow did 
not testify about any other speci­
fic instances or examples of 
racist atmosphere.

(8) The treatment of blacks and whites 
as preloaders in the pre-sort area 
has already been discussed and 
resolved by the Court in Section 
B, in which section the Court 
found that the evidence showed that 
black preloaders did not receive 
differential treatment in their 
training, treatment, and working 
conditions.

(9) Mr. Tyson testified that after John 
Franz, white, became the supervisor 
in the blue label area blacks were 
expected to do more work than 
whites.

As an example of the harder work
-200A-



Mr. Tyson testified that Nadine 
Roberts, black, transferred from 
airbagger to loader, Sammie 
Tillman, black, transferred from 
airbagger to loader and Mack 
Jackson, white, transferred from 
bagging air packages to bagging 
small packages. Mr. Tyson testi­
fied that the job transfers, in 
his opinion, were harder jobs for 
blacks and easier jobs for whites. 
Mr. Tyson, however, did not have 
any further information about what 
precipitated the transfers, such 
as whether the transfers were 
requested. Further, Mr. Tyson did 
not testify that Mr. Tillman or 
Ms. Roberts ever told him that 
they did not want a transfer or 
were dissatisfied with a transfer. 
The people who were transferred did 
not testify at the trial. There 
was not any evidence that UPS 
received any type of complaint from 
the employees who were transferred. 
Further, Mr. Tyson retained his job 
as a bagger which position he tes­
tified was easier than loading 
packages. Mr. Tyson also testified 
that Mr. Franz was always telling

- 2 0 1  A -



him to work harder. Mr. Tyson, 
however, acknowledges the number 
of employees performing his job 
was decreased from five to two 
employees.

The Court finds that Mr. Tyson’s 
evidence is insufficient to 
establish a claim of working a 
racist atmosphere in the blue 
label area. Simply observing that 
two black employees are trans­
ferred for reasons totally unknown 
to Mr. Tyson is not being forced 
to work in a racist atmosphere. 
Contributing to the lack of 
unpersuasiveness of the evidence 
is the fact that Mr. Tyson 
retained his position which work he 
contends is easier than loading 
parcels and that Mr. Tyson has 
absolutely no evidence regarding 
the circumstnaces surrounding the 
transfer.

(10) Mr. Morrow and Mr. Tyson specifi­
cally complain about the discon­
tinuance of the affirmative action 
committee and that this action 
either constitutes racial

-202A-



discrimination against them or is 
evidence of having to work in a 
racist atmosphere. In the 
Plaintiff's Proposed Findings of 
Fact, however, the Plaintiff con­
cludes that the discontinuance of 
the affirmative action meetings 
was a management decision well 
within the discretion of UPS and 
that UPS discontinued the meetings 
because, from management's per­
spective, the meetings were no 
longer productive. Thus, the end­
ing of the meetings is neither an 
indicator of bias nor non-bias. 
Plaintiffs' Proposed Findings of 
Fact,’ p . 113 .

(11) The Court finds that the evidence 
presented at the trial, supports 
the Plaintiff's proposed conclusion 
that the discontinuance of the 
meeting was a legitimate business 
decision which decision did not 
suggest racial bias.

(12) When Tom Husvar was district man­
ager, Mr. Morrow was a shop steward 
and the majority of complaints he 
received as shop steward were

-203A-



resolved at affirmative action 
meetings.

(13) The primary purpose of the meet­
ings was to handle complaints, 
grievances, and safety matters.
" I t  w a s n ' t  s e t  u p  f o r  t h e  r a c i a l  

t h i n g s "  b u t  f o r  a l l  p r o b l e m s .

(14) Mr. Tyson was a member of the 
affirmative action committee dur­
ing its existence. Mr. Tyson 
testified that the largest number 
of grievances he handled as shop 
steward were racial complaints.
Yet he acknowledged that when Mr. 
Husvar was the district manager 
"we didn't have racial problems".

(15) The minutes of the affirmative 
action committee which met every 
Thursday night were kept by Mr. 
Morrow and show at most three 
references to racial problems for 
the period from September 14, 1978 
to March 6, 1980. John Fisher, who 
attended most of the meetings, did 
not know of any incident of racial 
discrimination arising at the 
meetings.

-204A-



(16) Mr. Tyson testified that manage­
ment stopped attending the meet­
ings in the early part of 1979.
In fact, however, some management 
attended as late as November 1979.

(17) Before Mr. Hanley became district 
manager, management had decided 
that the meetings were non-produc­
tive and had turned into grumble 
and grievance type sessions.

(18) Mr. Hanley, who was the district 
manager from 1980 to 1983, learned 
about the affirmative action com­
mittee when he first came to 
Charlotte. It was not meeting on 
a frequent basis and many manage­
ment personnel refused to attend 
the meetings. Mr. Hanley decided 
the meetings were unproductive and 
there was no further need for the 
committee.

(19) Mr. Hanley advised Mr. Morrow and 
Mr. Tyson that there were not going 
to be any further affirmative 
action meetings and they were to 
use the collective bargaining

-205A-



grievance procedure to resolve 
complaints.

(20) Mr. Tyson told Mr. Hanley that 
"there would be trouble, we would 
meet downtown with the lawyers."

(21) The Court finds that discontinu­
ance of the affirmative action 
committee was a legitimate busi­
ness decision by UPS and was taken 
for the purpose of channeling 
grievances through the union 
grievance procedure. The Court 
further finds that discontinuance 
of these unsuccessful meetings did 
not constitute creation of a 
racist atmosphere.

(22) With respect to the remaining 
board general allegations in the 
Complaint concerning racist atmos­
phere, which matters were not 
specifically testified about 
beyond what has already been dis­
cussed, the Court reincorporates 
and refers the Plaintiffs to the 
Court's findings of fact on their 
individual claims of discrimina­
tion, which claims were all found

- 2 0 6 A -



not to be the result of racial 
discrimination. The Court 
further notes that in reaching the 
findings all the evidence has been 
examined with respect to each 
claim to decide if there was a 
general atmosphere of discrimina­
tion .

(23) The Court further notes as signi­
ficant that four of the Plaintiffs, 
Ms. Brown, Mr. Funderburk, Mr.
Neal, and Mr. Smith, were hired 
into full-time jobs. Six of the 
Plaintiffs, Mr. Ardrey, Mr. Cherry, 
Mr. Jenkins, Mr. Morrow, Mr. Tyson, 
and Ms. Pettigrew, were hired as 
part-time employees and at dif­
ferent times transferred to full­
time positions. Although Mr.
Ardrey and Mr. Cherry did not 
qualify for full-time sortrac, they 
qualified for other full-time 
positions.

(24) The twelve Plaintiffs in this liti­
gation referred at the trial to at 
least nine black supervisory per­
sonnel under whom they worked. The 
black management personnel

- 2 0 7 A -



identified includes Charles 
Johnson, Ty Nimmons, James Elmore, 
Ulysses West, Robert Washington,
Jim Smith, Julius Montague, Mary 
Feastor, and Columbus Feaster.

(25) Ms. Brown, Mr. Funderburk, Mr.
Neal, and Mr. Smith are employed 
as feeder drivers, the highest 
paid hourly classification at UPS. 
This is a full-time job and these 
four.Plaintiffs qualified for the 
job on their first attempt.

(26) Five of the Plaintiffs, Mr. Cherry, 
Ms. Brown, Mr. Funderburk, Mr. 
Jenkins, and Mr. Neal, are or have 
been package car drivers and quali­
fied on their first attempt, except 
for Mr. Cherry.

(27) From January 1, 1978 to December 
31, 1979, nine black and sixteen 
white part-time bargaining unit 
employees qualified as full-time 
package car drivers.

(28) From January 1, 1980 to December 
31, 1981 five black and eight white

-208A-*



part-time bargaining unit employ­
ees qualified as full-time pack­
age car drivers.

(29) With respect to the allegation 
concerning disciplinary action, 
the ten Plaintiffs covered by the 
union contract received warning 
notices or suspensions under the 
union contract during the three 
year period immediately preceding 
the filing of this litigation as 
follows:

ARDREY 12/21/81 warning letter 
2/10/82 suspension

CHERRY

BROWN

2/11/81
3/25/81
12/18/81
5/19/82

7/3/80
12/18/81
11/16/82

4/1/83

warning
warning
warning
warning

warning
warning
warning
warning

letter * 
letter * 
letter 
letter

letter 
letter 
letter * 
letter *

FUNDERBURK 12/12/80 suspension

- 2 0 9 A -



JENKINS 12/24/81 warning letter 
1/5/82 verbal warning 
1/7/82 warning letter 

1/11/82 warning letter 
2/8/82 suspension

MORROW 2/18/82 warning letter

NEAL None

SMITH 8/8/80 warning letter 
10/20/80 warning letter 
12/16/80 warning letter 
4/10/81 warning letter * 
4/16/81 suspension * 
4/20/81 suspension * 
4/24/81 termination con­

verted to suspen 
sion *

12/23/81 warning letter

TYSON 4/7/82 warning letter

WATTS 9/26/79 warning letter 
10/10/79 suspension 
10/1/80 warning letter 
6/24/81 warning letter * 
6/26/81 suspension * 
6/30/81 suspension *



(30) Eleven of the warning/suspension 
letters (*above) are calimed to 
have been issued for racially dis­
criminatory reasons. Of these 
eleven, seven involve the deliber­
ate refusal of Mr. Smith and Mr. 
Watts to follow specific supervi­
sory instructions. There are no 
claims of racial discrimination on 
twenty-one of the warning/suspen­
sion letters.

(31) The statistics for the Plaintiffs’ 
job classification reveal the 
following:

BLACKS AND WHITES BY JOB CLASS FOR 12/31/79

JOB CLASS BLACK % WHITE TOTAL
Package Driver 41 29 101 142
Loader/Unloader (PT) 130 29 326 456
Preloader/Sorter (FT) 6 25 18 24
Carwash/Shifters 2 50 2 4
Feeder Driver 25 30 59 84
Clerk (PT) 6 33 12 18
Tracing Clerk (FT) 4 2_5 12 16

214 29 530 744

- 2 1 1  A -



BLACKS AND WHITES BY JOB CLASS FOR 12/31/80

JOB CLASS BLACK J L WHITE TOTAL
Package Driver 42 28 108 150
Loader/Unloader (PT) 137 36 248 385
Preloader/Sorter (FT) 6 27 16 22
Carwash/Shifters 2 33 4 6
Feeder Driver 26 33 53 79
Clerk (PT) 9 47 10 19
Tracing Clerk (FT) 3 21 11 14

225 33 450 675

BLACKS AND WHITES BY JOB CLASS FOR 12/31/81

JOB CLASS BLACK % WHITE TOTAL
Package Driver 45 31 100 145
Loader/Unloader (PT) 162 38 266 428
Carwash/Shifters (FT) 9 36 16 25
Feeder Driver 26 ' 28 76 92
Clerk (PT) 9 45 11 20
Tracing Clerk (FT) 3 21 11 14

254 35 480 724

- 2 1 2 A - .



BLACKS AND WHITES BY JOB CLASS FOR 12/31/82

JOB CLASS BLACK _%_ WHITE TOTAL
Package Driver 39 31 87 126
Loader/Unloader (PT) 161 36 289 450
Carwash/Shifters (FT) 12 43 16 28
Feeder Driver 27 27 72 99
Clerk (PT) 7 41 10 17
Tracing Clerk (FT) 3 21 11 14

249 34 485 734

(32) The Court finds that after consid­
ering all the evidence the 
Plaintiffs were not subjected to 
work in a racist atmosphere. The 
only atmosphere at UPS was one of 
methodical organization, with 
numerous operating procedures, 
which procedures were implemented 
down through the hierarchy, in 
order for UPS to ensure that they 
remain highly competitive in the 
parcel industry by providing 
efficient expedient customer 
service throughout the United 
States.

CONCLUSIONS OF LAW



(1) This action was instituted by the 
Plaintiffs under Title VII of the 
Civil Rights Act of 1964, 42 
U.S.C. Section 2000 et seq., and 
42 U.S.C. Section 1981.

(2) The Court has jurisdiction over 
this litigation pursuant to 28 
U.S.C. Section 1343. Defendant 
UPS is an employer as that term is 
defined by 42 U.S.C. Section 2000
(e)-b of Title VII and the Court 
has jurisdiction over the parties 
to this action.

(3) Both Title VII and Section 1981 
prohibit discrimination in employ­
ment because of an employee's race. 
Title VII further prohibits dis­
crimination in employment because 
of an employee's sex. The well- 
known order and allocation of proof 
set forth in the seminal cases of 
McDonnel1-Douqlas Corp. vs. Green, 
411 U.S. 792 (1973) and Texas 
Department of Community Affairs v. 
Burdine, 450 U.S. 248 (1981) are 
applicable to the Plaintiffs' 
claims under Title VII. Burdine,

- 2 1 4 A -



the more recent case, summarized 
the three stages in the proof of 
such claims: the claimant must 
prove by a preponderance of the 
evidence a prima facie case of 
discrimination; if the claimant 
proves a prima facie case, the 
employer has the burden to articu­
late a legitimate nondiscrimina- 
tory reason for the employment 
decision in order to rebut the 
inference of discrimination raised 
by the plaintiff's prima facie 
claims; once the employer articu­
lates the reason, the claimant 
then has the burden to prove by a 
preponderance of the evidence that 
the legitimate reasons offered by 
the employer were but a pretext 
for discrimination. Burdine, 
supra, at 253. At all times the 
plaintiff retains the ultimate 
burden of persuading the court 
that he has been the victim of 
intentional discrimination. 
Burdine, supra, at 256.

(4) In Title VII cases, such as the
instant action, in which disparate

-215A-



treatment is the basis of the 
Plaintiffs' claims, the Plaintiffs 
must prove intentional discrimina­
tion. The trier of fact may rely 
on inferences rather than direct 
evidence of intentional discrimina­
tion, but discriminatory intent 
must be proved by a preponderance 
of the evidence, whether direct, 
circumstantial or otherwise.
Texas Department of Community 
Affairs v. Burdine, supra; Board 
of Trustees of Keene State College 
v . Sweeney, 439 U.S. 24 (1978).

(5) To establish a prima facie case of 
discrimination the plaintiff must 
prove:

actions taken by the 
employer from which one 
can infer, if such actions 
remain unexplained, that 
it is more likely than not 
that such actions were 
"based on discriminatory 
criterion illegal under 
the Act."

-216A-



Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978); see also;
Texas Department of Community Affairs 
v. Burdine, supra; McDonnell-Douglas 
Corp. v. Green, supra.

(6) The plaintiff may establish a
prima facie case of discrimination 
by proving the elements of the 
traditional McDonnell-Douglas 
formula: (1) that he is a pro­
tected employee; (2) that he 
applied for and was qualified for 
an open position; (3) that, despite 
his qualifications, he was 
rejected; and (4) that after his 
rejection the employer continued 
to seek applicants with claimant's 
qualifications. McDonnell-Douglas 
v. Green, 411 U.S. 792, 802 (1973). 
Although McDonnell-Douglas involved 
a refusal to hire because of race, 
courts have consistently modified 
the requirements to fit discharge, 
promotion, wrongful transfer and 
other employment discrimination 
claims, whether arising because of 
race or sex.

21 7 A -



(7) A plaintiff may establish a prima 
facie case of discriminatory 
discharge under the McDonnell- 
Douglas model by showing that:
(1) he is a member of a protected 
class; (2) he was qualified for 
the position he held; (3) despite 
his qualifications he was dis­
charged; and (4) after his dis­
charge the employer continued to 
seek applicants from persons of 
complainant's qualifications.
Smith v. University of North 
Carolina, 632 F.2d 316 (4th Cir. 
1980). Alternatively, a plaintiff 
may establish a prima facie case 
by showing that he was discharged 
and that a nonprotected status 
person whose conduct was similar to 
his was retained. McDonald v.
Santa Fe Trail Transportation Co., 
427 U.S. 273 (1976); Anderson v. 
Savage Laboratories, Inc., 675 F.2d 
1221, 1225 (11th Cir. 1982); 
Aquamina v. Eastern Airlines, Inc., 
644 F .2d 506, 508 (5th Cir. 1981).

(8) In a failure to promote claim a 
plaintiff may establish a prima

-218A-



f a c i e  c a s e  u n d e r  t h e  M c D o n n e l l -  

D o u g l a s  f r a m e w o r k  b y  p r o v i n g  t h a t :

( 1 )  h e  b e l o n g s  t o  a  p r o t e c t e d  
c l a s s ;  ( 2 )  t h a t  h e  w a s  q u a l i f i e d  
f o r  a n d  a p p l i e d  f o r  a  p r o m o t i o n ;
(3) that he was denied a promotion;
(4) that other employees of similar 
qualifications who were not mem­
bers of the protected class 
received the promotion. Bundy v. 
Jackson, 641 F.2d 934 (D.C. Cir. 
1981). If, however, an employer 
fails to utilize a formal system 
of posting openings, an employee
is not required to ask for a posi­
tion. See, e.£., Carmichael v.
Birmingham Saw Works, ____ F.2d
____, 35 EPD Section 34.587 (11th
Cir. 1984); Gifford v. Atchinson, 
Topeka and Santa Fe Railway, 685 
F .2d 1149 (9th Cir. 1982). If 
promotions are employer initiated, 
the failure to apply will not bar 
an action. See, e.g., Reed v. 
Lockheed Aircraft Corp., 613 F.2d 
757, 761 (9th Cir. 1981) .

(9) A plaintiff in a wrongful transfer 
action, may establish a prima facie

-219A-



case of discrimination pursuant to 
the McDonnell-Douglas analysis by 
showing that: (1) he was a member 
of a protected class; (2) he was 
qualified for the position for 
which he sought transfer; (3) he 
was not selected for transfer; and 
(4) the employer filled the 
requested position with a non­
class member. Bostic v. Wall, 588 
F.Supp. 994, 1002 (W.D.N.C. 1984), 
aff'd, No. 84-1755, Slip Op. (4th 
Cir. May 10, 1985) .

(10) In a claim involving discriminatory 
disciplinary action the plaintiff 
may show either that he did not 
violate the employment rule or 
that if he did, other employees not 
within the protected class who 
engaged in comparable acts were 
not similarly treated. See, e.£., 
McDonnell-Douqlas Corp. v. Green, 
411 U.S. 792, 804 (1973); McDonald 
v. Santa Fe Transportation Co., 427 
U.S. 273, 281-83 (1976); Anderson 
v. Savage Laboratories, Inc., 675 
F.2d 1221, 1224 (11th Cir. 1982). 
Similarly, a plaintiff may

- 2 2 0 A -



establish a case of discrimina­
tory terms and conditions of 
employment by showing differen­
tial treatment, which treatment 
favored a non-protected employee. 
Long v. Ford Motor Company, 496 
F .2d 500, 505 (6th Cir. 1974).

(11) If the plaintiff succeeds in prov­
ing a prima facie case of dis­
crimination, the burden of produc­
tion shifts to the employer to 
articulate a legitimate, nondis- 
criminatory reason for the chal­
lenged action. Texas Department 
of Community Affairs v. Burdine,
450 U.S. at 253. This burden is 
merely a burden of production of 
evidence and the burden of persua­
sion does not shift to the defen­
dant. Id. at 256-57. If the 
defendant carries this burden of 
production, the plaintiff must 
then prove by a preponderance of 
the evidence that the proffered 
reasons were not the true reasons 
for the employer's decision, but 
rather were a pretext for discrimi­
nation. Id. The burden of showing 
that the reasons articulated by the

-221 A-



defendant are pretextual merges 
with the plaintiff's ultimate 
burden of persuading the court 
that he was the victim of racial 
or sexual discrimination. Id.

(12) The Court recognizes that if the 
employee's diminished work per­
formance is caused by the employ­
er's discrimination, then the 
employer cannot rely on diminished 
work performance as a nondiscrimi- 
natory reason for disciplinary 
action. See, e.g^/ DeGrace v. 
Rumsfeld, 614 F.2d 796, 803-04
(st Cir. 1980). The Court further 
recognizes that Title VII protects 
the individual and thus a "bottom 
line" defense is not cognizable. 
Connecticut v. Teal, 457 U.S. 440 
(1982).

(13) The Plaintiff may establish pretext 
by "persuading the Court that a 
discriminatory reason more likely 
motivated the employer or indir­
ectly by showing the employer's 
proffered reason is unworthy of 
credence." Texas Department of

- 2 2 2 A-



Community Affairs v. Burdine, 450 
U.S. 248, 256 (1981). In deter­
mining whether the plaintiff can 
meet his ultimate burden of prov­
ing pretext and discrimination, 
the Court analyzes the evidence on 
a cumulative basis. See, e .£., 
Brown v. Eckerd Drugs, 663 F .2d 
1268, 1270 n .3 (4th Cir. 1581), 
vacated and remanded on other 
grounds, 102 S.Ct. 2952 (1982); 
Roman v. ESB, 550 F.2d 1343, 1350- 
351 (4th Cir. 1976); E.E.0.C. v . 
American National Bank, 652 F .2d 
1176, 1189 (4th Cir. 1981).
Evidence of a general atmosphere 
of discrimination may be considered 
with the other probative evidence. 
Holsey v. Armour & Company, 743 
F .2d 199, 207-08 (4th Cir. 1984). 
Further, the Court considers the 
consistence and the contradiction 
of the documentary and testamentary 
evidence and weighs the credibility 
of the various witnesses. In those 
instances in which the employer 
utilizes subjective factors or 
criteria the asserted legitimacy 
of the employer's reason is sub­
jected to strict scrutiny. Love

- 2 2 3 A -



v. Alamance Board of Education,
No. 84-1326 (4th Cir. March 27, 
1985) .

(14) In order to prevail on a claim of 
retaliation, a plaintiff must 
show that he was engaged in a pro­
tected activity of which his 
employer was aware, that he sub­
sequently suffered an adverse or 
negative employment action and 
that a casual link exists between 
the two. See, e .£., Jones v. 
Lumberjack Meats, Inc., 680 F.2d 
98 (11th Cir. 1982); Dickerson v. 
Metropolitan Dade County, 659 F .2d 
574 (5th Cir. 1981). An employee 
who has filed a charge of discrim­
ination with the Equal Employment 
Opportunity Commission is not 
insulated from the employer's 
rules or policies, or from the 
consequences of violating the 
rules or policies, simply by vir­
tue of his charge. Jefferies v. 
Harris County Community Action 
Association, 615 F.2d 1025 (5th 
Cir. 1980); Brown v. Ralston 
Purina Co., 557 F.2d 576 (6th Cir.

-224A- -



1977).

(15) In light of those principles, and 
pretermitting the issue of whether 
the Plaintiffs established a 
prima facie case of discrimination 
on the basis of race, sex or 
retaliation,^ the Court finds as 
previously discussed in the find­
ings of fact, that the Defendant 
offered substantial evidence that 
the alleged adverse employment 
actions concerning the Plaintiffs 
were based upon legitimate, non- 
discriminatory business considera­
tions .

3
The Court has serious reservations 

about whether the Plaintiffs established a 
prima facie case on various of their claims 
such as, Ms. Brown's claim for discrimina­
tory warning for her 1982 accident; Ms. 
Massey's claim of discriminatory elimination 
of her job, offered jobs and termination;
Mr. Jenkins' claim of discriminatory removal 
of his 500 van; Mr. Cherry's claim of dis­
criminatory warnings for missed "pick-ups"; 
or Mr. Ardrey's claim of discriminatory 
denial of a package car driver position.

- 2 2 5 A -



(16) After considering all of the evi­
dence arguably relevant to each 
claim of discrimination, includ­
ing the evidence of racist atmos­
phere, the Court finds that the 
Plaintiffs failed to demonstrate 
that the Defendant's proffered 
reasons for the employment actions 
were pretextual. As the Court's 
conclusions on each claim are 
stated at the end of the findings 
of fact relating to each claim, 
the Court will not repeat what 
has already been thoroughly dis­
cussed. In summary, the Court 
finds that the Defendant's actions 
were in actual good faith. The 
credible evidence does not show 
that the Defendant permitted any 
non-black employee to engage in 
conduct similar to the Plaintiffs 
who refused to abide by the rules 
or that any similarly situated 
non-black employee was subject to 
different terms and conditions of 
employment.

(17) Based on the evidence, the Court 
concludes that the Defendant did 
not discriminate as alleged

- 2 2 6 A -



against any of the Plaintiffs on 
account of race or sex in viola­
tion of Title VII or Section 1981. 
Likewise, the Court does not find 
that the evidence warrants any 
inference that retaliation was a 
contributing factor in the treat­
ment of the Plaintiffs by the 
Defendant. Texas Department of 
Community Affairs v. Burdine, 
supra, Anderson v. Savage 
Laboratories, Inc., 675 F.2d 1221 
(11th Cir. 1982); Smalley v. 
Eatonville, 640 F .2d 765 (5th Cir. 
1980) .

(18) The Plaintiffs should be denied 
all relief with respect to their 
individual claims.

(19) The Court notes that in the 
Plaintiff's Proposed Findings of 
Fact the Plaintiff attempts to 
assert independent claims of dis­
crimination for Willie Turner,
Alvin Hall, Shelton Hines, Darryl 
Covington, and Robert Williams.
The five individuals were witnesses 
at the trial. They, however, have 
never been joined as Plaintiffs.

-227A-



The Plaintiffs' basis for the 
novel addition of five Plaintiffs 
to the litigation is Fed, R, Civ. 
P. 15(b).

(20) Fed. R. Civ. P, 15 deals with
amendment of issues and not amend­
ment of parties. To allow five 
witnesses to become Plaintiffs is 
amendment of parties. The 
Plaintiffs have never moved for 
joinder of parties. Further, the 
Plaintiffs never suggested that 
these witnesses' testimony was 
being offered in support of issues 
not raised in the pleadings. The 
Court assumed their testimony was 
being offered to corroborate the 
Plaintiffs' individual claims, 
especially the claim of racist 
atmosphere, which claim permeated 
the entire litigation. Thus, even 
assuming a Rule 15 analysis is 
analogous, the Plaintiffs, having 
failed to put anyone on notice of 
these "new issues" and the testi- 
money relating to issues already 
raised by the pleadings, the Court 
could not find the Defendant know­
ingly acquiesced in this amendment

-228A-



of pleadings.

(21) The Court, therefore, concludes 
that Mr. Turner, Mr. Hall, Mr. 
Hines, Mr. Covington, and Mr. 
Williams testified as witnesses 
only at the trial and they are 
not and did not become Plaintiffs 
in this lawsuit by their testi­
mony .

(22) The Court shall retain jurisdic­
tion of this action as a possible 
class action. The parties should 
meet, prepare, and submit a pro­
posed schedule to the Court within 
fourteen days with respect to the 
outstanding class certification 
motion. The parties are further 
directed, if so desired, to make 
the appropriate motions pursuant 
to Fed. R. Civ. P. 54 entry of’ 
judgment upon multiple claims.

(23) Each party shall bear their own 
costs, including attorney's fees, 
in this litigation.

(24) Any finding of fact which is 
determined also to be a conclusion 
of law is so deemed and any

-229A-



conclusion of law which is deter­
mined also to be a finding of 
fact is so deemed.

Based on the foregoing Findings of Fact 
and Conclusions of Law, IT IS, HEREBY, 
ORDERED, ADJUDGED, AND DECREED:

(1) That the Plaintiffs' individual 
claims of discrimination are 
DISMISSED WITH PREJUDICE;

(2) That each party shall pay their 
own costs, including attorney's 
fees; and

(3) The parties are directed to advise 
the Court of the outstanding mat­
ters as discussed herein within 
fourteen (14) days.

This the 19th day of August, 1985.

/s/ Robert D. Potter 
ROBERT D. POTTER, CHIEF 

UNITED STATES DISTRICT JUDGE

F I L E D  8 - 1 9 - 8 5

-23CA--



UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 85-2239 

Marcus Ardrey, et al,

versus
United Parcel Service, etc.,

Appellants,

Appellee.

Appeal from the United States District 
Court for the Western District of North 
Carolina, at Charlotte. Robert D. Potter, 
District Judge.

The appellants1 petition for rehearing 
and suggestion for rehearing in banc were 
submitted to this Court. As no member of 
the Court requested a poll on the suggestion 
for rehearing in banc, and

As the panel considered the petition 
for rehearing and is of the opinion that it 
should be denied,

IT IS ORDERED that the petition for 
rehearing and suggestion for rehearing in

-231 A-



banc are denied.
Entered at the direction of Judge 

Murnaghan, with the concurrence of Judge 
Wilkinson and Judge Haynsworth.

For the Court,

/s/ John M. Greacen 
CLERK

F I L E D
KOV - 4  886

U. S. Court of Appeals Fourth Circuit



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION
C-C-82-323-P

MARCUS ARDREY, JAMES CHERRY, )
BESSIE EASTERLING, et al., )

)Plaintiffs, )
vs. 1 o r d e r

)UNITED PARCEL SERVICE, )
)Defendant. )

___________________________________)

On August 19, 1985, an Order was filed 
dismissing with prejudice the Plaintiffs' 
individual claims.

In that Order the Court retained 
jurisdiction of this action as a possible 
class action and the parties were directed 
to meet, prepare and submit a proposed 
schedule to the Court within 14 days with 
respect to the outstanding class certifica­
tion motion, and file any motions pursuant 
to F.R.C.P. 54 for entry of judgment upon 
multiple claims.

- 2 3 3 A -



The Court, therefore, finds there is 
no just reason for delay and will therefore 
deny the motion for class certification and 
enter judgment for the Defendant as to all 
claims.

NOW, THEREFORE, IT IS ORDERED that the 
Motion for Class Certification is DENIED 
and Judgment will be entered for the 
Defendant as to all claims.

This the 6th day of September, 1985.

/s/ Robert D. Potter
ROBERT D. POTTER, CHIEF 

UNITED STATES DISTRICT JUDGE

F I L E D  S e p t . 6 , 1 9 8 5

- 2 3 4 A -



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION
C-C-82-323-P

MARCUS ARDREY, JAMES CHERRY, )
BESSIE EASTERLING, et al., )

)Plaintiffs, )
)vs. ) FINAL■
) JUDGMENTUNITED PARCEL SERVICE, )
)Defendant. )

__________ ____________ ___________ )

In accordance with the Order filed 
August 19, 1985 and with the Order filed 
simultaneously herewith,

IT IS HEREBY ORDERED, ADJUDGED, AND 
DECREED that the Plaintiffs have and recover 
nothing from the Defendant and that each 
party will pay their own costs, including 
attorney's fees.

This the 6 th day of September,
1985.

/s/ Robert D. Potter
ROBERT D. POTTER, CHIEF 

UNITED STATES DISTRICT JUDGE

- 2 3 5 A -F I L E D  S e p t . 6 , 1 9 8 5



IN THE DISTRICT COURT OP THE UNITED STATES 
FOR THE WESTERN DISTRICT OP NORTH CAROLINA 

CHARLOTTE DIVISION
C-C-82-323-P

MARCUS ARDREY, et al.,
Plaintiffs,

vs- ORDER
UNITED PARCEL SERVICE,

Defendant.
_______________________ /

This action came before the Court on
September 29, 1982 for a hearing on several 
motions. Having fully considered the argu­
ments and representations made by counsel at 
the hearing and in their briefs, the Court 
makes the following rulings:

Plaintiffs' motion to amend the 
Complaint, and a motion for Intervention 
filed on behalf of one Cheryl Pettigrew, are 
granted. The amendments seeks to add merely 
the fact that one of the plaintiffs has 
received his right-to-sue letter. The motion

-236A-



to Intervene appears to add one additional 
party who appears to have worked for the 
defendant and has also received a right-to- 
sue letter from the E.E.O.C.

The defendant's motion to strike certain 
scandalous and redundant allegations in the 
Complaint is denied. This ruling is based on 
the discussion between counsel in open court 
and counsel for the defendant's statement 
that the allegations in question no longer 
present a problem.

The defendant's motion to dismiss was a 
routine motion unsupported by a brief or spe­
cific argument. Consequently, the motion 
shall be denied for the present, without pre­
judice to latter reassert it. The plaintiffs 
have moved for class certification. However, 
counsel for both the plaintiffs and the 
defendant have requested that this motion not 
be considered until after discovery is com­
pleted. Consequently, a ruling on the 
request for class certification shall be

-23JA’



deferred until the Court is notified by the 
attorneys for both sides that discovery is 
complete.

Finally, the defendant has requested 
that discovery of class action information 
not proceed until after discovery is com­
pleted on the individual claims and the 
potential class representatives have been 
established. Counsel for the defendant has 
argued strenuously that it is unlikely that 
any of the plaintiffs will be able to es­
tablish viable individual actions survive, 
the expense in time and money Involved in 
answering class-wide discovery will have been 
wasted.

The Court agrees with counsel for the 
defendant and hereby rules that discovery in 
this case shall be limited to the establish­
ment of the individual claims of the present 
plaintiffs of record. Once such individual 
action or actions are established, the Court 
will consider requests for further discovery

-238A-



of a class-wide nature. The plaintiffs have 
failed to allege or show how they would be 
prejudiced by this bifurcated discovery pro­
cess. Additionally, the Court has found the 
defendant's brief on this issue, including 
citation to the philosophy of East Texas 
Motor Freight System, Inc, v. Rodriguez, 431 
U.S. 395, 403 (1977), and General Telephone
Co. of Southwest v. Falcone, ___ U.S. ___,
102 S.Ct. 2364, 28 PEP cases 1745, (1982), to 
be persuasive.

As a guideline, the parties are advised 
that discovery at this time will not be 
allowed as to other individuals who are not 
presently plaintiffs of record, or to statis­
tical information regarding groups or classes 
of employees, unless such discovery would 
produce information relevant to the indivi­
dual claims. As the defendant has asked for 
this restriction of discovery, the Court will 
herein admonish the defendant to cooperate in 
good faith with the plaintiffs on the disco-

- 2 3 9 A -



very of matters relevant to the individual
claims, and not to use the Court's ruling to
block bona fide requests of the plaintiffs.

THEREFORE, on the basis of the above, IT
IS HEREBY ORDERED that:
(1) The plaintiffs' motion to amend the 

complaint is granted;
(2) The plaintiffs' motion for intervention 

on behalf of one Cheryl Pettigrew is 
granted;

(3) The defendant's motion to strike certain 
allegations in the Complaint is denied;

(4) The defendant's motion to dismiss is 
denied without prejudice;

(5) Ruling on the plaintiffs' motion for 
class certification is deferred at the 
request of all parties until after all 
discovery is completed; and

(6) Discovery in this action shall be 
limited for the present time to matters 
relevant to the individual causes of 
action. Counsel for both the defendant 
and the plaintiffs are expected to deal 
in good faith with one another in their 
requests and granting of information.

This the 22nd day of October, 1982.

/s/ Robert D. Potter_______
ROBERT D. POTTER 

UNITED STATES DISTRICT JUDGE
pILED O c t .26,1982

-240*-



IN THE DISTRICT COURT OP THE UNITED STATES 
FOR THE WESTERN DISTRICT OP NORTH CAROLINA 

CHARLOTTE DIVISION
C-C-82-323-P

MARCUS ARDREY, et al.,
Plaintiffs,

vs. ORDER
UNITED PARCEL SERVICE,

Defendant.
___________________________/

THIS MATTER Is before the Court on the 
plaintiffs' motion to reconsider the portion 
of the Court’s order of October 22, 1982 
denying the plaintiffs' request for class­
wide discovery.

The plaintiffs' complaint contains a 
motion for class certification pursuant to 
Federal Rules of Civil Procedure 23(a) and 
23(b)(2).

As set out in the Court's Order of 
October 22, 1982, counsel for both the plain­
tiffs and the defendant have requested that

- 2 4 1/W



this motion not be considered until after 
discovery is completed. The Court has there­
fore deferred ruling on the request for class 
certification until discovery is complete.

Thus the question before the Court is 
the plaintiffs' motion to reconsider that 
portion of the Court's Order of October 22, 
1982 denying class-wide discovery.

The Court has not limited class-wide 
discovery as to the plaintiffs' Individual 
claims♦1

The Court has not certified this action 
as a class action. Whether it is certified 
as a class action will be determined by 
whether the plaintiffs can satisfy the court 
that the class claims are fairly encompassed 
by the named plaintiffs' claims. General 
2

Last Paragraph on Page 2 of Order: "As 
a guideline, the parties are advised that 
discovery at this time will not be allowed as 
to other individuals who are presently plain­
tiffs of record, or to statistical informa­
tion regarding groups or classes of employees 
unless such discovery would produce infor­
mation relevant to the individual claims."

-242A-



Telephone of Southwest v. Falcon, 72 L.Ed. 2d 
740 at Page 253 (separate opinion by Chief 
Justice Burger).

Rule 26(b)(1) states: Parties may obtain 
discovery regarding any matter, not privi­
leged, which is relevant to the subject 
matter involved in the pending action..."

In the Court's view the pending action 
is by the named plaintiffs not the one 
hundred current and former black employees 
alleged by the plaintiff as being or having 
been employed by the defendant. Since Rule 
26(c) clearly confers broad powers on the 
courts to regulate or prevent discovery, this 
Court elects in its discretion to limit class 
wide discovery as set out in its order of 
October 22, 1982.

Further, the Court denies the plain­
tiffs' request that the court certify its 
decision in this matter for appeal for the 
reason that the order does not involve a 
controlling question of law and would only

- 2 4 3 A -



serve to delay the ultimate conclusion of the 
matter.

NOW, THEREFORE, the plaintiffs' motion 
for reconsideration of its Order of October 
22, 1982, is denied and the plaintiffs' 
request for certification for appeal pursuant 
to 28 U.S.C. §1292(b) is denied.

This the 22nd day of November, 1982.

/s/ Robert D. Potter 
ROBERT D." POTTER 

UNITED STATES DISTRICT JUDGE

F I L E D  N o v . 2 2 , 1 9 8 2



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION
Civil Action No. C-C-82-0323-P

MARCUS ARDREY, et al., )
)Plaintiffs, )
)vs. )
)UNITED PARCEL SERVICE, a ) 

corporation, )
)Defendant. )

___________ __________________ )
Plaintiffs' first and second motion to 

compel answers to interrogatories came on 
for hearing on March 18, 1985. Counsel for 
plaintiffs and defendant, who had already • 
filed position statements and briefs, were 
given further opportunity to argue their 
respective positions.

In its first motion to compel, plain­
tiffs seek answers to the following inter­
rogatories :

INTERROGATORY 30:
For each and all employees who have 

worked for defendant at each location at 
any time since January 1, 1979, state

- -245A—



their employment history (definition 
#7) .
Definition 7 (referred to in inter­
rogatory 30) is as follows:

"Employment history" refers to the 
following about each employee: name, 
race, date of employment all part-time 
job titles and dates held, all full­
time jobs and dates held, date became 
full-time, reason(s) for change(s) in 
job titles held (promotion, transfer, 
demotion, job reclassification), pay 
rates and dates held, reasons for 
changes in pay rates, special training, 
qualifications, date and reason for 
separation from employment (termination, 
suspension, leave of absence, layoff), 
educational level, previous job experi­
ence, date and reason for each disci­
plinary action, and job title of each 
job where attempted to qualify for 
full-time job (date, whether qualified, 
if not, why not).
INTERROGATORY 33(a)-33(c):

Since January 1, 1979, state for 
each location:

(a) All vacancies which have 
occurred in each of the job titles 
utilized by the defendant.

(b) The name and race of each 
person who has filled any and all of 
these job vacancies.

(c) The date on which each of 
these vacancies occurred and were 
filled.

- 2 4 6 A -



INTERROGATORY 35 (f) :
In reference to promotions and the 

qualification process, state on an 
annual basis:

(1) the number of whites promoted.
(2) number of whites transferred.
(3) number of whites who

attempted to qualify for full-time.
(4) number of whites who quali­

fied for full-time jobs.
(5) total number of whites 

employed.
(6) number of blacks promoted.
(7) number of blacks transferred.
(8) number of blacks who

attempted to qualify for full-time jobs.
(9) number of blacks who qualified 

for full-time jobs.
(10) total number of blacks 

employed.
Defendant objected to answering 

these interrogatories on the ground 
that the requested information was not 
relevant to any of the plaintiffs' 
individual claims. The employment 
history of all plaintiffs was provided 
in answer to earlier interrogatories.
Eleven of the plaintiffs work in the

defendant's hub on Cottonwood Avenue and the
-247A-



twelfth worked in the Delivery Information 
and Claims Loss Prevention Department at its 
general offices on North Graham Street in 
Charlotte, North Carolina.

Plaintiffs in their motion papers 
proposed that the defendant answer the inter­
rogatories for 3 departments at the hub 
location and for the one department at the 
office location. Plaintiffs further pro­
posed that a complete answer to Interrogatory 
30 would provide answers to Interrogatories 
33(a)-(c) and 35(d).

Defendant stated that as of February, 
1983 there was a complement of 792 employees 
assigned to the 3 hub departments and that 
for the preceding year there had been a 
turnover of 440 employees. The numbers, the 
Court is informed, would not be too different 
for the years 1979, 1980 and 1981.

Plaintiffs argue that the requested 
information is needed to prove plaintiffs' 
general pattern of discrimination claim.

-248A-



Plaintiffs also argue that the statistical 
data that could be derived from the 
requested information would be relevant to 
plaintiffs' individual claims, but did not 
particularize wherein this would be so.

Plaintiffs alleged a class action in 
paragraph 84 of their complaint in respect 
to discipline, promotion, movement from part 
time to full-time positions and a racist 
atmosphere.

The Court has previously ruled that 
class action discovery would be deferred 
until such time as an individual plaintiff 
has established a claim qualifying that 
plaintiff to represent a class.

Plaintiffs have propounded and defendant 
answered interrogatories relating to each 
plaintiffs' individual claims.

Two plaintiffs, Messrs. Ardrey and 
Cherry, claim they were denied promotions to 
package car driver and denied movement from 
their part time jobs to full-time preloader

-249 A-



jobs. Plaintiffs asked for and defendant 
supplied information, including the name 
and race, of every person who was promoted 
to and qualified for package car driver from 
1/1/78 to 12/31/81. The same information 
was provided on employees who were promoted 
to package car drivers but failed to qualify 
for 1/1/78-12/31/79. Similar information 
was requested and provided for persons pro­
moted to preloader from 1/1/79-12/31/81.
The interrogatory answers already furnished 
plaintiffs appear to bear directly on these 
plaintiffs' individual claims. Statistical 
data on promotions to other jobs or on move­
ments from other part time to other full­
time jobs, none of which were sought by 
these plaintiffs, is hardly germane to their 
claims in view of the statistical data 
already furnished in respect to the specific 
jobs they sought.

Two plaintiffs, Messrs. Morrow and Neal, 
who were full-time employees, allege they

- 2  SOfr-



were denied promotions to supervisory jobs. 
The Morrow and Neal depositions reveal that 
they neither requested nor had any conversa­
tion with management expressing a desire for 
a supervisory job. Plaintiffs in their 
first interrogatories asked for employment 
history information, including name and 
race, of all persons promoted to supervisory 
positions since 1/1/79 and defendant fur­
nished the information for all full-time 
employees promoted to full-time supervisory 
positions. It appears that answering 
Interrogatory 30 would yield little if any 
information that has not already been pro­
vided plaintiffs on the promotion of full­
time employees to full-time supervisory 
positions.

Plaintiff Easterling, a feeder driver, 
complains of being denied a day off, of a 
fellow employee jostling her on two occa­
sions and of harassment by named dispatchers.

Plaintiff Funderburk, a feeder driver,

-251 A-



complains about equipment and loads assigned 
to him.

Plaintiff Jenkins' complaint is 
directed to being denied light work after an 
injury, to the removal of extra duties that 
he performed as a package car driver and to 
a change in equipment. In its first set of 
interrogatories, plaintiffs asked for and 
defendant furnished history information on 
all persons given light duty, temporarily or 
permanently, and on all persons from whom 
extra duties were removed.

Plaintiff Massey complains about the 
elimination of her part time job and about 
other jobs offered her and not offered her. 
In its first set of interrogatories plain­
tiffs asked for and defendant furnished 
history information on persons who went from 
one part time to another part time job, from 
a full-time to a part time job and from a 
part time to a full-time job from 7/1/79 to 
10/30/79.

-252A-



Plaintiffs Morrow and Tyson complain of 
working in a "racist atmosphere".

Plaintiff Neal, a feeder driver, 
complaints of harassment by dispatcher, Neil 
Lewis.

Plaintiff Smith, a feeder driver, 
complaints of equipment assignments, of 
disciplinary action and of a "racist atmos­
phere".

Lastly, plaintiff Watts complains of 
being disciplined for not following his 
supervisor's instructions and contends he 
should have been moved from his part time to 
a full-time job after 1/1/81.

Such are the claims of the 11 original 
plaintiffs, all of whom work in the hub. In 
respect to each, plaintiffs asked and defen­
dant answered interrogatories seeking speci­
fic information on each claim. Plaintiffs 
through its first set of interrogatories 
sought relevant history information on other 
employees from which relevant statistical

- 2 5 3 A -



data might be derived to buttress individual 
claims.

Neither in their motion papers nor in 
oral argument did plaintiffs suggest how the 
comprehensive employment history information 
sought in Interrogatory 30 could have any 
bearing on the individual claims of these 
eleven plaintiffs.

Plaintiff Pettigrew's claims involve 
her job performance and her discharge for 
inadequate performance. Plaintiffs' first 
interrogatories asked for and defendant 
furnished history information and job 
performance reviews on other employees in 
Pettigrew's department. Again plaintiffs 
failed to show how the employment history 
information of other persons sought in 
Interrogatory 30 could bear on plaintiff 
Pettigrew's specific claims.

In light of the information already 
furnished in answer to plaintiffs' first set 
of interrogatories, the additional informa-

- 2 5 4 A -



tion sought by plaintiffs in their first 
motion to compel is plainly not relevant to 
plaintiffs' individual claims and would be 
inordinately burdensom for defendant to 
prepare.

Plaintiffs' second motion to compel is 
directed to answers to other interrogatories 
plaintiffs propounded in their second set of 
interrogatories.

In answer to Interrogatory 29(b) defen­
dant set forth the organizational hierarchy 
listing all the job titles. Interrogatory 
29(7) and defendant's answer for the General 
Office and Hub locations are as follows: 

INTERROGATORY 29(7):
For each job: title-, department, 

wherein located, duties, pay grades, and 
dates of pay grades for each job title, 
whether covered by a collective bargain­
ing contract, whether full-time or part- 
time (since 1/1/79);

GENERAL OFFICE
ANSWER: See answer to No. 6 for

job titles, departments and locations of 
jobs. These jobs are not covered by a 
collective bargaining contract. Data 
Processing Supervisor on nights is a

- 2 5 5 A -



part time position. Some clerical jobs 
in Customer Services, Delivery Informa­
tion, Data Processing, Industrial 
Engineering and Personnel (Hub Person­
nel Clerk) are part time.

Defendant objects to providing the 
duties, pay grades, dates of pay grades 
for each job title as this information 
is not relevant to any claim by plain­
tiff Pettigrew who is the only plain­
tiff who worked at this location. Job 
descriptions and pay rates for 
Pettigrew's jobs are covered by plain­
tiffs' First Interrogatories and First 
Request for Production.

HUB
ANSWER: See answer to No. 6 for

job titles, departments and locations 
of jobs. The non-supervisory and non­
clerical jobs are covered by the Union 
contract. Pre-loaders were full time 
and part time in 1979-81; now they are 
part time jobs. All loaders/unloaders, 
all but 1 of the center clerks, some 
pre-load supervisors, the car wash 
supervisor, some carwashers, some hub 
supervisors, some feeder supervisors 
and one carwash shifter are part time. 
Job descriptions for the non-supervi­
sory and non-clerical jobs are covered 
by plaintiffs' First Request to Produce 
as are job descriptions for the clerical 
and certain supervisory jobs. The pay 
rates for bargaining unit jobs are set 
forth in the union contract.

Defendant objects to providing 
information on the job duties and pay 
rates of management, supervisory and 
clerical jobs that are not involved in 
any of the plaintiffs' individual

-256A-



claims.
Interrogatory 29(11) and defendant's 

answer are as follows:
INTERROGATORY 29(11)

For each year 1979, 1980, 1981, 
and 1981 (to date), state number of 
whites and blacks in the following 
types of jobs: (1) management,
(2) administrative, (3) clerical,
(4) supervisory, (5), exempt, (6) non­
exempt, (7) non-management.

GENERAL OFFICE
ANSWER: Defendant objects to pro­

viding this data. Its employees are 
not so classified. Further such data 
would be irrelevant to plaintiff 
Pettigrew's claim.

HUB
ANSWER: Defendant objects to pro­

viding this data. Its employees are 
not so classified. Further such data 
would be irrelevant to the plaintiff's 
individual claims.
Interrogatory 33(d) and defendant's 

answer are as follows:
INTERROGATORY 33 (d) :

Describe in detail the company's 
procedure in filling both permanent and 
temporary job classification vacancies, 
including such factors as:

(1) posting notices of vacancies
- 2 5 7 A -



(state which jobs are covered and are 
not covered by any posting system).

(2) formal or procedural require­
ments employees must meet to file bids.

(3) the bidding procedure, if 
any; and

(4) methods and factors in the 
selection of employees, and names, job 
titles, race of the person(s) who do 
the selecting.

ANSWER: See the union contract,
the Clerical Employee Handbook attached 
as Exhibit 33 (d) and the Supplementary 
Answer to Interrogatory 22(d)(4). The 
defendant may be able to furnish the 
name, job title and race of the person 
who did the "selecting", to the extent 
there was any "selecting", for a speci­
fic vacancy at a specific time as 
related to a specific claim of a plain­
tiff. Except to this extent, defendant 
objects to furnishing such information 
as it would be irrelevant to any of the 
plaintiffs' individual claims.
Plaintiffs' motion to compel covers

that portion of the answer to subparagraph 4
directed to the names, job titles and race of
persons who did the selecting.

Interrogatories 35(a)(b) and (e) and
defendant's answers are as follows:

INTERROGATORY 35: Describe in full the 
following matters of the defendant for 
each year between 1979 to the present

- 2 5 S A -



for each location:
(a) Transfer system: Describe 

whether there are or have been written 
policies; what factors are used in 
deciding who to transfer; whether open­
ings are posted and if so, to what 
estent; what person's recommendation is 
necessary for an employee to get trans­
ferred (names, race, job title of all 
persons whose recommendations are or 
have been necessary for transfer 
between 1979 and the present); how the 
transfer system functions; definition 
of defendant of a transfer.

ANSWER: See answer to 3 3 (d).
(b) Promotion: Describe whether 

there are or have been written policies; 
what factors are used in deciding who to 
promote; whether openings are posted; 
and if so, to what extent; what person's 
recommendation is necessary for an 
employee to get promoted (names, race, 
job title of all persons whose recom­
mendations are or have been necessary 
for promotions between 1979 and the 
present); how the promotion system 
functions; defendant's definition of a 
promotion.

ANSWER: See answer to 33(d).
(e) How a person goes from part- 

time to full-time; job title of each 
job where can go from part-time to full­
time; qualification process for each 
full-time job; name, race, job title of 
each person who decides or can recommend 
that an employee can qualify full-time; 
name, race, job title of each person who 
decides whether an employee qualified.

-259A-



ANSWER: See answer to 33 (d).
The answer to 33 (d) is set forth above 

and refers to the union contract and cleri­
cal handbook.

Plaintiffs argue that Interrogatories 
29(7) and 29(11) and 33(d)(4) should be 
answered completely for the same reasons it 
advanced for answering Interrogatories 30,
33 (a) - (c) and 33(f).

What has already been said in respect 
to Interrogatories 30, 33(a)-33(c) and 35(f) 
applies to Interrogatory 29(7), 29(11) and 
33(d)(4). The information sought is not 
relevant to any of the plaintiffs' individual 
claims.

In respect to Interrogatories 35(a)(b) 
and (c) the names, race and job titles of all 
persons whose recommendations are or have 
been necessary for transfer, promotion, or 
qualification as a full time employee since 
1979 is irrelevant except to the extent it 
pertains to any plaintiff's claim. Such

-260A- ■



information in respect to such a claim by a 
particular plaintiff is of course relevant. 
Defendant in its answer indicated it would 
furnish the name, race and job title of any 
such person.

The Court understands documentary 
information on policies besides what is con­
tained in the Union Contract and Clerical 
Handbook, has been furnished plaintiffs pur­
suant to their Requests to Produce since 
plaintiffs filed their second motion to com­
pel. Also since then the plaintiffs have 
deposed defendant's personnel manager and 
have examined him on the Company's various 
policies as they might relate to the plain­
tiff's claims.

Plaintiffs' first and second motions to 
compel are denied.

The parties moved that discovery time 
be extended from February 8, 1983 to May 8, 
1983. That motion is granted. The pretrial 
order is amended accordingly. All motions

- 2 6 1  A -



other than discovery motions must be filed 
by May 22, 1983. The date for compliance
with paragraph 6 of the pre-trial order 
shall be May 22, 1983.

This 1st day of April_____ , 1983 .

/s/ Robert D. Potter 
Robert D. Potter 
United States District 

Judge

F I L E D  A p r i l  1 , 1 9 8 3



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

Charlotte Division

M A R C U S  A R D R E Y ,  e t  a l . ,  ) C i v i l  A c t i o n
) No.

Plaintiffs, )C-C-82-0323-P
)

V‘ | O R D E R
U N I T E D  P A R C E L  S E R V I C E ,  I N C . ,  )
a corporation, )

)
Defendant. )

_________________________________ )

This matter came on for hearing before 
the undersigned on the Plaintiffs' Third 
Motion to Compel and the Defendant's Motion 
to Include.

I T  I S  H E R E B Y  O R D E R E D ,  A D J U D G E D  A N D  

D E C R E E D  a s  f o l l o w s :

1. Plaintiffs' Third Motion to Compel 
is denied;

2. The plaintiffs are allowed fifteen 
(15) days to file a supplemental complaint 
to include the additional claims set forth 
in Defendant's Motion to Include;

3. Defendant is allowed fifteen (15) 
days to file its answer to the supplemental

- 2 6 3 A -



complaint; and
4. The parties are allowed an addi­

tional thirty (30) days to complete their 
discovery on the claims set forth in 
Defendant's Motion to Include.

This the i5th day Qf July, 1983.

/s/ Robert D. Potter 
Robert D. Potter 
U. S. District Court Judge

F I L E D  J u l y  1 5 , 1 9 8 3  
1

- 2 5 4 A -



IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION
C-C-82-0323-P

M A R C U S  A R D R E Y , et al. , )
)Plaintiff, )
)

vs* |
U N I T E D  P A R C E L  S E R V I C E ,  I N C . ,  ) 
a corporation, )

)Defendant. )
_ _____________________________ )

THIS MATTER is before the Court on 
motion of the Plaintiffs that the Court 
reconsider its previous Orders in reference 
to the Plaintiffs' first, second, and third 
motions to compel. The Plaintiffs assert 
that the Court should reconsider its earlier 
rulings in light of Lilly v. Harris Teeter 
Supermarket, 720 F.2d 326 (4th Cir. 1983) and 
Knighton v. Laurens County School District, 
721 F.2d 976 (4th Cir. 1983).

On March 8, 1984 the Court ordered the 
Plaintiffs to clarify their motion for 
reconsideration. On April 9, 1984 the

- 2 6 5 A -



Plaintiffs, in compliance with the Order of 
the Court, specified which interrogatories 
they seek the Court to reconsider. The 
Court, after carefully reviewing its previ­
ous Orders and the parties' memoranda, 
motions, and answers is of the opinion that 
the Plaintiffs' motion for reconsideration 
should be granted in part and denied in part.

In Lilly, the court noted that "evi­
dence of discriminatory intent in one 
employment context (e.g. hiring), may be 
probative of discriminatory intent in a 
different context, (e.g. promotions), where 
it has been demonstrated that the same 
company managerial personnel were responsible 
for decision making in both contexts." 720 
F.2d at 338 (emphasis supplied). Accord­
ingly, the Court is of the opinion that the 
Plaintiffs should have the right to discover 
if the same company managerial personnel were 
responsible for employment decisions in 
various contexts. The Plaintiffs attempt to

-266A-



seek this information, although their 
request is overbroad because it seeks 
nationwide data, in interrogatories 33(d) 
and 35. The Court is, therefore, of the 
opinion that the Defendant should be 
compelled to identify the individuals 
responsible for employment decisions relat­
ing to hiring, promotions, transfers, and 
discharges in the Charlotte offices in which 
the Plaintiffs were employed for the time 
period in which the Plaintiffs were employed.

As to the remaining interrogatories 
encompassed in the Plaintiffs' motion for 
reconsideration, the Court is of the opinion 
for the reasons previously articulated by 
the Court in its previous Orders that the 
Defendant should not be compelled to provide 
any further answers.

IT IS, THEREFORE, ORDERED that the 
Plaintiffs' motion for reconsideration is 
GRANTED IN PART and DENIED IN PART in 
accordance with this Order.

- 2 5 7 A -



18th day 0f April, 1984This the

/ s /  R o b e r t  D .  P o t t e r  
R O B E R T  D .  P O T T E R ,  C H I E F  
U N I T E D  S T A T E S  D I S T R I C T  J U D G E

f i l e d  A p r i l  1 9 , 1 9 8 4

- 2 6 8 A -



TEXT OP F.R.C.P. RULES 23 and 26(c)

Rule 23 provides in part, that:
Rule 23. Class Actions
(a) Prerequisites to a Class Action.
One or more members of a class may sue 
or be sued as representative parties on 
behalf of all only if (1) the class is 
so numerous that joinder of all members 
is impracticable, (2) there are 
questions of law or fact common to the 
class, (3) the claims or defenses of the 
representative parties are typical of 
the claims or defenses of the class, and 
(4) the representative parties will 
fairly and adequately protect the 
Interests of the class.
(b) Class Actions Maintainable. An 
action may be maintained as a class 
action if the prerequisites of sub­
division (a) are satisfied, and in addition:
(1) the prosecuting of separate actions 
by or against individual members of the 
class would create a risk of
(A) inconsistent or varying adjudica­
tions with respect to individual members 
of the class which would establish 
Incompatible standards of conduct for 
the party opposing the class, or
(B) adjucations with respect to indivi­
dual members of the class which would as 
a practical matter be dispositive of the 
interests of the other members not par­
ties to the adjudications or substan­
tially impair or Impede their ability to

-269A-



protect their interests; or
(2) the party opposing the class has 
acted or refused to act on grounds 
generally applicable to the class, 
thereby making appropriate final injunc­
tive relief or corresponding declaratory 
relief with respect to the class as a 
whole; or
(3) the court finds that the questions
of law or fact common to the members of 
the class predominate over any questions 
affecting only individual members, and 
that a class action is superior to other 
available methods for the fair and effi­
cient adjudication of the controversy. 
The matters pertinent to the findings 
include: (A) the interest of members of
the class in individually controlling 
the prosecution or defense of separate 
actions; (B) the extent and nature of 
any litigation concerning the contro­
versy already commenced by or against 
members of the class; (C) the desirabi­
lity or undesirability of concentrating 
the litigation of the claims in the par­
ticular forum; (D) the difficulties 
likely to be encountered in the manage­
ment of a class action.
Rule 26(c) provides that:
(c) Protective Orders. Upon motion by 
a party or by the person from whom 
discovery is sought, and for good cause 
shown, the court in which the action is 
pending or alternatively, on matters 
relating to a deposition, the court in 
the district where the deposition is to 
be taken may make any order which 
justice requires to protect a party or 
person from annoyance, embarrassment,

-27QA-



oppression, or undue burden or expense, 
Including one or more of the following: 
(1) that the discovery not be had; (2) 
that the discovery may be had only on 
specified terms and conditions, 
including a designation of the time or 
place; (3) that the discovery may be had 
only by a method of discovery other than 
that selected by the party seeking 
discovery; (4) that certain matters not 
be Inquired into, or that the scope of 
the discovery be limited to certain mat™ 
ters; (5) that discovery be conducted 
with no one present except persons 
designated by the court; (6) that a 
deposition after being sealed be opened 
only by order of the court; (7) that a 
trade secret or other confidential 
research, development, or commercial 
informatoin not be disclosed or be 
disclosed only in a designated way; (8) 
that the parties simultaneously file 
specified documents or information 
enclosed in sealed envelopes to be 
opened as directed by the court.
If the motion for a protective order is 
denied in whole or in part, the court 
may, on such terms and conditions as are 
just, order that any party or person 
provide or permit discovery. The provi­
sions of Rule 37(a)(4) apply to the 
award of expenses Incurred in relation 
to the motion.

- 2 7 1  A -



IN THE DISTRICT COURT OP THE UNITED STATES 
FOR THE WESTERN DISTRICT OP NORTH CAROLINA 

CHARLOTTE DIVISION
Civil Action No. C-C-82- 323-P

MARCUS ARDREY, JAMES CHERRY )
BESSIE EASTERLING, LOUIS )
FUNDERBURK, HORACE JENKINS, )
JOYCE MASSEY, JEROME MORROW,)
SR., EUGENE NEAL, MATTHEW 
SMITH, JR., HENRY TYSON,
SR., and CARL WATTS, 
individually and on behalf 
of all others similarly 
situated,

Plaintiffs,
v s .

UNITED PARCEL SERVICE, 
a corporation,

Defendant. )
________________________________ )

Plaintiffs, complaining of defendant,
allege and say:

)
)) COMPLAINT;
) MOTION FOR 
) CLASS ACTION 
)
)
)
)
)
)
)

I.
Introduction

1. Plaintiffs bring this action on 
behalf of themselves and all others similarly 
situated. They seek to redress the depriva­
tion of rights of equal employment oppor-

-272A-



tunity secured to them by 42 U.S.C. §§1981 
and 2000e e_t seq. Each plaintiff alleges 
that he or she was deprived of said rights by 
defendant because of his or her race. Each 
plaintiff alleges that other balck employees 
have been deprived of equal employment oppor­
tunities because of their race. They seek 
injunctive (including backpay) and declara­
tory relief. In addition, plaintiff Jenkins 
alleges individual claims of age discrimina­
tion. Plaintiff Massey alleges individual 
claims of sex discrimination....

VI.
Allegations of Class Discrimination 
84. The acts described are manifesta­

tions of a policy and practice whereby UPS 
deprives blacks of their rights to equal 
employment opportunities In the following 
ways (on Information and belief)

(a) Termination, discipline, and 
suspension: Blacks receive warnings, and are
suspended or terminated for acts, which if 
committed by whites, results in lesser or no

-273A’



discipline, and termination. Defendant oper­
ates its disciplinary system in such a way 
that it has a disparate, adverse impact upon 
blacks.

(b) Promotion: Blacks, despite their 
qualifications, are denied promotions into 
the higher paying jobs, management jobs, and 
supervisory jobs. The defendant operates its 
promotion system in such a way that it has a 
disparate, adverse impact upon blacks, and 
blacks are treated differently.-

(c) Movement from part-time to full­
time positions: Movement of blacks into part 
time jobs takes longer than for whites. Part 
time supervisors (overwhelmingly white) move 
into non-supervisory full-time positions at 
the expense of black part-time laborers. The 
qualification process for full-time employees 
is operated in a manner which has a disparate 
adverse impact upon blacks, and results in 
the negative, differential treatment of black 
employees.

- £ 7 4 A -



(d) Racist atmosphere: Each of the 
plaintiffs, and class numbers has been sub­
jected to an atmosphere which demeans blacks 
because of their race. The individual claims 
of each plaintiff, and paragraphs 84(a) - 84 
(c) are actions which contribute to this 
demeaning atmosphere.

FILED May 20,1982

-275A-



DESCRIPTION OP INTERROGATORIES/RESPONSES
Briefly, the subject interrogatories

sought information as follows: (SECOND SET)
for jobs; the title, department, duties, pay
grades, whether full-time or part-time (29(b)
(7));* number of whites and blacks in certain
types of jobs (29(b)(11)) (completely
objected to by UPS); employment history of
employees as defined in definition 7 (30)
(completely objected to by UPS); dates of
vacancies, name/race of persons who filled
them, date filled (33(a)-33(c)) (UPS objected
to this); methods and factors of employee
section; name/race of persons who do the
selection (33(d)(4)) UPS limited its answers
to previous discovery requests as to methods/
factors; it would make available identity of
the selectors involved each time a plaintiff
was selected, any other identification of
selectors objected to); description of 
_

Number in parenthesis refers to interro­
gatory number.

- 2 76A-



transfer system (35(a)) (UPS answered this by 
referring to Its answer to 33(d) which Is 
described Immediately above); description of 
promotion system (35(b)) (UPS answered this 
by referring to Its answer to 33(d) which Is 
described above); description of how a person 
goes from part-time to full-time (35(e)) (UPS 
answered this by referring to Its answer to 
33(d) which Is described above); (THIRD SET); 
In jobs held by plaintiffs provide the name/ 
race/reason/date of discipllne/type of 
discipline for each employee warned, ter­
minated or suspended as well as name/race/ 
title of each employee who decided to Impose 
a warning, suspension, or termination (37(c)
- 37(1)) (UPS refused to answer as they were 
irrelevant/burdensome); and, for jobs plain­
tiffs attempted to qualify for, first level 
supervisory jobs previously Identified, jobs 
held by Massey and Pettigrew when fired, any 
clerical job wherein there was a vacancy 
within 6 months of Massey's termination, pro-

-211k-



vide name/race/prior UPS experience of each 
person promoted, considered for promotion, 
transfer, attempted to qualify, qualified 
into said jobs (38(b) - 38(f)) (UPS objected 
to providing any information other than that 
provided to First Set Of Interrogatories).

-278A-



XII. CERTIFICATE OF SERVICE

The undersigned, a member of the bar of 
the United States Supreme Court, certifies 
that the requisite number of copies of the 
foregoing PETITION OF CERTIORARI and Appendix 
thereto were served on

Mr. William Sturges
Weinstein, Sturges, Odom, Groves,

Bigger, Jonas & Campbell, P.A.
810 Baxter Street 
Charlotte, NC 28202 
Attorney for UPS
by depositing same in the United States Mail, 
in an appropriately addressed and stamped
package on 1987.

- 2 7 9 A -