The ALJ was apparently concerned about the "coincidence" that two days after the fire Martin and Hernandez met with Luckie and informed him of three options related to his future employment. Luckie was asked to select an option within 24 hours. The ALJ found the "timing" to be adverse to Luckie's conditions of work.
But the record reflects that the November 1 meeting had been previously scheduled on other matters, and Hernandez decided, after learning of the relocation decision from corporate headquarters (prior to the fire on October 30, 2001) to offer Luckie the three options at that meeting. TR at 556-59. Apparently, the ALJ did not find the offer itself to be adverse but the "timing" to be adverse. It is not clear if the ALJ's concern was based on the short time frame given Luckie to make a decision or on the "coincidence" that the offer was made two days after the fire.
With regard to the first possibility, we disagree with the ALJ that the short time frame in which to make a decision was adverse to an employee of UPS. The record contains numerous accounts of the UPS promotion process involving managers, and UPS's promotion-from-within policy often involved very short notice for making a decision. See supra, nn. 2, 6. Applying the standard laid out in the White case, we conclude that a reasonable employee at UPS would not consider the short time frame materially adverse. If that were so, most of UPS's promotions and relocations could be considered adverse actions.
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The other possibility is that the ALJ concluded that the timing of the offer two days after the fire and Luckie's protected activity was adverse because it negatively affected Luckie's home life. But UPS is not required by STAA to time its promotions (and accompanying relocations) according to Luckie's home life.
The evidence shows that Luckie had known for some time that a promotion and relocation were in the works. TR at 224-29. It is evident that UPS knew the timing would be disruptive and that UPS attempted to accommodate Luckie's concerns by offering two other options – continued employment with UPS in the Birmingham area but in a different position with a lower pay grade until another promotion opportunity arose or resign with three months' severance pay. Through previous meetings with Woods and Hernandez, Luckie was well aware that staying in his security manager position in Birmingham was not an option and would prevent someone else from being promoted.
We conclude that the timing of the promotion offer and other options was not in itself an adverse action. We also conclude that a reasonable employee would not find UPS's timing for the meeting to be so harmful that the employee would be dissuaded from making a whistleblower complaint.
Luckie argues on appeal that the November 9, 2001 termination was an adverse action. Complainant's Brief at 19. The ALJ found, however, that Luckie "terminated" himself on November 9, 2001 by refusing any of the three options offered. R. D. & O. at 13. Because Luckie's employment with UPS ultimately ended, we will assume without determining that Luckie suffered adverse action.
(5) Luckie did not prove by a preponderance of the evidence that there was a causal connection between the alleged protected activity and the adverse action.
Finally, to succeed in a STAA discrimination complaint, Luckie must prove by a preponderance of the evidence that the adverse action was causally linked to his protected activity. The ALJ found an inference of causal connection between protected activity and adverse action based on the "proximity in time" between the two. Specifically he found "that the timing of Complainant's concerns over the fire and his sudden transfer option was not coincidental." R. D. & O. at 12. He then found that UPS's "attempt to put forth legitimate, non-discriminatory reasons for Complainant's abrupt removal as Alabama District Security Manager was pretext." He reasoned that the evidence "showed that prior to a transfer, an employee is usually interviewed for the new position and not terminated if he or she refuses the position offered. Martin was unhappy about Complainant's concerns over the origin of the fire, and the coincidence of his transfer immediately following the fire defies any explanation other than retaliation." R. D. & O. at 13. For these reasons, the ALJ concluded that UPS had taken adverse action/retaliated against Luckie in violation of the STAA.
We find that substantial evidence does not support the ALJ's findings. Evidence in the record and proper legal analysis require a conclusion that UPS proffered a
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legitimate, non-discriminatory reason for its action on November 1, 2001, and Luckie's termination on November 9, 2001.
Prior to the fire, on October 19, 2001, Hernandez recommended to corporate headquarters security managers that Luckie be promoted to a larger district with more responsibility. TR at 551. The corporate security coordinator identified a position that became available on or about October 25 at Mid-South in Tennessee and needed a district manager to replace the outgoing manager. TR at 395-96. In accordance with UPS's promotion policy, the coordinator called Hernandez, prior to the fire, to inform him that Luckie had been chosen for the position. TR at 557-58. Hernandez was to inform Luckie and move him immediately. Because the fire had not yet occurred, Hernandez could not have known of any protected activity by Luckie when he recommended Luckie for a promotion. Nor did corporate security know of any protected activity by Luckie when it selected him and communicated its choice to Hernandez because the fire had not yet occurred.
Martin had no communication with corporate headquarters about Luckie and had no part in his selection for the Mid-South position. TR at 613-15. The November 1, 2001 meeting with Luckie and Martin had been scheduled on other matters before the fire, and Hernandez determined that there was no need to change the meeting date. Knowing that Luckie might have family-related concerns about a move at that time, Hernandez and Martin developed two additional options to accommodate his concerns. They told Luckie he had 24 hours to decide which option to accept.
Between November 1 and 9 Luckie had conversations with Woods and Martin, but ultimately refused to take any of the options. TR at 189-91. Instead, at the November 9 meeting he insisted that he intended to stay in his present job until the end of 2002 and left the room. Because he had been told this was not an option and he refused to select one of the proffered options, UPS sent Luckie a termination letter on November 9, 2001. Based on this evidence, we conclude that UPS proffered a legitimate, non-discriminatory reason for terminating Luckie's employment.
At this stage Luckie must adduce facts that if proven would establish that UPS's averred legitimate, non-discriminatory reason for transferring him was a pretext for discrimination.
In Burdine, the Supreme Court described the plaintiff's burden to prove unlawful discrimination, "[The plaintiff] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256. In the absence of direct evidence of retaliation, a complainant may prove that the legitimate reasons the employer proffered were not the true reasons for its actions, but instead were a pretext for discrimination. Bettner v. Crete Carrier Corp., ARB No. 06-013, ALJ No. 04-STA-18, slip op. at 14 (ARB May 27, 2007). To establish pretext, it is not sufficient for a complainant to show that the action taken was not "just, or fair, or sensible . . . rather he must show that the explanation is a phony reason." Gale
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v. Ocean Imaging, ARB No. 98-143, ALJ No. 97-ERA-38, slip op. at 9 (ARB July 31, 2002) (citation omitted).
The ALJ found that UPS's reason was pretext. He reasoned that the evidence "showed that prior to a transfer, an employee is usually interviewed for the new position and not terminated if he or she refuses the position offered; that Martin was unhappy with Luckie for expressing his concerns about the fire; and the coincidence of his transfer immediately following the fire defies any explanation other than retaliation." R.D. & O. at 13.
The ALJ's reasons are not supported by substantial evidence in the record. First, regarding the statement that an employee is usually interviewed for the new position, the ALJ's own finding of fact number 15 states:
Respondent, by all accounts, is committed to a policy of promoting qualified individuals from within the Company; and when an employee accepts a management-level position, it is understood that he/she will be expected to accept periodic reassignments and promotions anywhere in the country. It is common for Respondent's managers to relocate on numerous occasions to multiple geographic locations throughout their careers, Also, unrefuted was testimony that when a management-level employee receives notification that he /she has been identified for reassignment, he/she is not informed of the specific location of the new position until he accepts the transfer.
R. D. & O. at 5.
This finding of fact does not square with the ALJ's finding that prior to a transfer, an employee is usually interviewed for the new position and not terminated if he or she refuses the position offered. Fact number 15 regarding the UPS process for promoting qualified individuals is consistent with the process proffered in its legitimate, non-discriminatory reason for terminating Luckie's employment. We find that fact number 15 is supported by substantial evidence in the record.
Second, the ALJ stated that Martin was unhappy with Luckie for trying to involve himself in the fire investigation decisions made by the plant engineering manager, the human resources manager, and presumably, Martin. We do not quarrel with the finding that Martin was unhappy with Luckie. She testified that she was "irritated" with him. But was she so irritated that she was motivated to take action to adversely affect Luckie's employment. We think not. Neither the ALJ nor Luckie provided any such evidence.
Luckie was a 25-years-plus employee with UPS. He received numerous promotions and good performance ratings over the years. The record has no evidence of any discord between Luckie and his supervisors or co-workers. UPS had many years of
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experience invested in Luckie. It is not reasonable or even conceivable to believe that UPS would decide within a day or two of Luckie's "good faith" concern over the fire investigation to manipulate events so that Luckie would be, in effect, forced to "self terminate."
Third, the ALJ concluded that the timing of the meeting defied any other explanation than discrimination. Apparently, the ALJ did not carefully analyze the evidence to determine if there was a causal connection between the protected activity and the adverse action. We have done so and conclude that there is none.
The fire and alleged protected activity occurred on October 30, 2001. The evidence establishes that Martin knew about the protected activity but that she had no part in the selection of Luckie for the Mid-South position. TR at 321, 350. Hernandez recommended Luckie to corporate headquarters for a promotion and relocation prior to having any awareness of protected activity. There is no evidence that corporate managers had any knowledge of Luckie's complaints about the fire investigation when they selected him for the open Mid-South position. They communicated Luckie's selection directly to Hernandez who was to inform Luckie of his selection. This communication occurred prior to the fire and, of course, prior to any protected activity. We find there is no connection between the selection of Luckie, the presumed adverse action, and his alleged protected activity.
Hernandez called Martin to tell her that Luckie had been selected for the Mid-South position. He and Martin knew that Luckie might be concerned about a move at this time and so, in an attempt to accommodate his concerns, they developed two options in addition to the proposed promotion and relocation to Mid-South. One option was to stay in Birmingham and accept a lower graded and salaried position but remain on the promotion list to await another opportunity. The other option was to resign with three months' severance pay. Hernandez and Martin felt the promotion offer and the other two choices were three reasonable options for Luckie.
The ALJ was concerned that the November 1 meeting occurred so close in time to the protected activity on October 30 and 31. To him, that proximity defied any explanation other than discrimination. But the record discloses that the timing was coincidental since corporate security executives had made the decision in late October and prior to the fire to relocate Luckie with the intent of giving him a promotion. That decision was based on Hernandez's September recommendation and on Luckie's past good performance. Based on these facts, we find that temporal proximity is insufficient to prove a causal connection between the alleged protected activity and the adverse action on November 9, 2001. Thus, we conclude that the ALJ erred in his evaluation of the evidence in the record and in his legal conclusion that UPS violated the STAA.
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Conclusion
We have reviewed the record and find that substantial evidence as a whole does not support the ALJ's findings that Luckie was a freight handler or directly affected commercial motor vehicle safety. Therefore, we conclude as a matter of law that he was not a covered employee under the STAA.11 Assuming coverage, substantial evidence also does not support the ALJ's findings that Luckie's complaints concerned motor vehicle safety violations or that UPS's reason for firing him was pretext. We conclude that Luckie failed to establish by a preponderance of the evidence that he engaged in protected activity or that such activity was the reason for UPS's adverse action. Based on these conclusions, we DISMISS Luckie's complaint.
SO ORDERED.
DAVID G. DYE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The following abbreviations shall be used: Complainant's exhibit, CX; Respondent's exhibit, RX; Administrative Law Judge exhibit, ALJX; and hearing transcript, TR.
2 UPS has a policy of promoting qualified individuals from within the company. RX 2 at 7. As part of that policy, management-level employees are expected to accept periodic transfers, reassignments, and promotions anywhere in the country. RX 2 at 17-18.
3 Until this incident, the record contains no indication of any discord between Luckie and UPS in the 27 years he worked for UPS. In fact, Luckie testified about his upwardly mobile career from part-time work during college to his promotions from supervisor to manager and his relocations from Montgomery and Birmingham, Alabama, to New Orleans, Springfield, Massachusetts, and Nashville, Tennessee. CX 1; TR at 56-73. Further, Luckie's performance appraisals from 1997 through 2000 reflected steady improvement. CX 2-6.
4 Regional managers such as Woods and Hernandez recommended district managers for relocation, transfer, and promotion, but corporate executives always decided who was going where and when, and routinely on very short notice. TR at 487-88.
5 Luckie testified that he filed for divorce in April 2000, and the matter was settled in November 2000. TR at 245.
6 UPS's policy requires management-level employees to accept periodic transfers, reassignments, and promotions anywhere in the country. RX 2 at 17-18. Allison testified that in moving from Boise, Idaho to Salt Lake City, Alabama, and Philadelphia, he usually had 24 hours to decide to accept the relocation and moved within a few days to his new position. TR at 414-19. Woods testified that he had been relocated seven times in his 28-career with UPS, TR at 473-75, and Hernandez described his moves from Chicago to New York City to Atlanta, TR at 528-33. Martin, who has since moved to Sacramento, testified that for each relocation she had 24 hours to consider the move. TR at 608-10. Luckie himself transferred from job to job as a supervisor and then manager. CX 1; TR at 56-73.
7 The parties assumed that Luckie's firing on November 9, 2001, constituted the adverse action in this case. But the ALJ determined that Luckie voluntarily resigned and that the adverse action occurred on November 1, 2001, when Martin verbally offered Luckie the three choices of relocation, demotion, or severance. R. D. & O. at 12. Luckie filed his complaint on May 8, 2002, the 180th day after the November 9, 2001 letter accepting his voluntary resignation. See 49 U.S.C.A. § 31105(b). If the adverse action were indeed the "untimely nature" of the choices Luckie was offered on November 1, 2001, then his May 8, 2002 complaint was untimely filed. Thissen v. Tri-Boro Constr. Supplies, Inc., ARB No. 04-153, ALJ No. 04-STA-35, slip op. at 7 (ARB Dec. 15, 2005). UPS did not raise this argument before the ALJ or the ARB and has, therefore, waived it. See Hillis v. Knochel Bros., ARB Nos. 03-136, 04-081, 04-148; ALJ No. 02-STA-50, slip op. at 3 (ARB Oct. 19, 2004) (STAA limitations period is not jurisdictional and therefore is subject to waiver).
8 "It shall be an unlawful employment practice for an employer to discriminate against" an employee or job applicant because that person "opposed any practice" that Title VII forbids or "made a charge, testified, assisted, or participated in any manner" in a Title VII investigation, proceeding, or hearing. 42 U.S.C.A. § 2000e-3(a).
9 In doing so, the Court rejected arguments that the anti-retaliation provision should be construed together (in pari materia) with the Title VII's substantive anti-discrimination provision. That provision makes it unlawful for an employer, because of an individual's race, color, religion, sex, or national origin, to "fail or refuse to hire or to discharge" or otherwise discriminate against any individual with respect to that person's "compensation, terms, conditions, or privileges of employment" or "deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of race, color, religion, sex, or national origin. 42 U.S.C.A. § 2000e-2(a) (emphasis added). The Court held, therefore, that because the language of the anti-retaliation section does not contain the substantive section's limiting words, italicized above, the former is not limited to workplace-related or employment-related retaliatory acts or harm. 126 S. Ct. at 2411-2414.
10 Even though the events in this case occurred before White, when the United States. Supreme Court decides a case and applies a new rule of law to the parties before it, other courts, and this Board, must apply the new rule retroactively to parties before them. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97 (1993).
11 In light of our decision, we need not address the ALJ's findings regarding the award of damages nor his decision awarding attorneys fees.