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Chiding that Hispanic worker can’t even speak Spanish didn’t show bias by UPS

By Lorene D. Park, J.D.

Affirming summary judgment against a Hispanic UPS employee’s Title VII and Section 1981 race-based hostile work environment claim, the Tenth Circuit noted that while a Hispanic supervisor could still be biased against Hispanic individuals, there was no admissible evidence of that here. The supervisor may have called the employee “a kid who doesn’t even speak Spanish,” but Title VII doesn’t protect against discrimination based on one’s poor grasp of a certain language. Nor was there evidence of objectively severe or pervasive harassment. The employee’s race discrimination claims based on his removal from promotion eligibility failed on procedural grounds. His retaliation claim failed because his placement on a performance improvement plan was not an adverse action; nor was his transfer to a new position, considering it involved the same location and supervisory level, and he received a pay raise (Payan v. United Parcel Service, October 4, 2018, Seymour, S.).

Removed from promotion list. Since 1991, the UPS employee worked his way up, becoming a security manager in 2006. In 2009 he got a new supervisor who, like him, was Hispanic. The employee had been considered a “Ready Now” candidate for promotion until early 2010, when the supervisor said he no longer considered the employee “ready now.” The supervisor put his status as “Retain at Current Level.” After the employee’s downgrade, two other UPS employees with similar credentials were promoted to security division managers, a position he wanted but could not pursue due to his promotion status.

Poor scores on subjective part of reviews. The supervisor also consistently gave the employee poor quality performance reviews (QPR), which are done biannually, and which impact salary increases and promotion opportunities. The employee scored incredibly well on the objective component of his 2009 QPR (106% of his goals), but the supervisor rated him very poorly on the subjective part, giving him a .58 out of 1 rating on leadership competency, for example.

Allegedly harassed. According to the employee, the supervisor also harassed him, saying he had an integrity issue, calling him a kid who doesn’t even speak Spanish, and correcting his pronunciation of Hispanic surnames, among other things.

Transferred. The employee complained to HR that he was being discriminated against because of his race but UPS’s investigation did not substantiate the claim and it initiated a meeting between the employee and his supervisor to clear the air. Thereafter, the supervisor decided to document the employee’s perceived performance problems and he recommended to the HR rep, who was his friend outside of work, that the employee be transferred and not retained at his current management level due to integrity and communication issues. In response, UPS put the employee through a management performance improvement process (MPIP) and tasked him with improving his communication, organization, and development of subordinates.

When the MPIP concluded in October 2013, the employee was transferred to a business manager position, with the same management authority and work location, as well as a pay increase. He would also no longer be reporting to the same direct supervisor. Nonetheless, he perceived the transfer to be a punishment and filed suit under Title VII and Section 1981, alleging harassment, disparate treatment, and retaliation, as well as a number of state-law claims. The court granted summary judgment for UPS and he appealed.

Race discrimination claims fail. Affirming, the Tenth Circuit agreed with the lower court that the Title VII claim was not exhausted. Indeed, his EEOC charge included allegations of: unwanted subjective criticism; better treatment of non-Hispanic peers, including through the receipt of higher pay raises; and a retaliatory MPIP after he reported discrimination. There was no mention of the downgrading of his promotion status, which was the basis for his disparate treatment claim. As such, that claim was properly dismissed. The employee’s Section 1981 claim also failed on procedural grounds because it was not filed within four years of the alleged adverse action (downgrading him from “Ready Now”) so was barred by the limitations period.

No hostile work environment either. Also affirming summary judgment against the hostile work environment claims, the appeals court explained that the employee did not produce evidence from which a jury could infer he was targeted for harassment because of a protected characteristic. Noting that the supervisor could still harbor animus toward Hispanics even though he was one himself, the court found no evidence in the record that the supervisor actually displayed any animus toward Hispanic individuals. For example, he was good friends with a Cuban-American subordinate, which undercut the employee’s claim. And while the employee claimed the supervisor harassed him for not being able to speak Spanish, the lower court aptly noted that “the law provides no special protection for discrimination based on one’s poor grasp of a particular language.”

The appeals court further concluded that the employee had not established the “severe or pervasive” element of a hostile work environment claim. His handwritten notes of interactions with his supervisor were inadmissible hearsay and, without those notes, he was only able to offer a few examples of alleged harassment, none of which amounted to “discriminatory intimidation, ridicule, and insult.” The employee may have subjectively believed the harassment was severe, but he did not show that it was objectively so.

Retaliation claims fail for lack of adverse actions. The employee’s Title VII and Section 1981 claims were properly dismissed as well, concluded the Tenth Circuit, because his placement on the MPIP and his subsequent transfer did not constitute adverse employment actions. The performance improvement plan would not have caused a reasonable employee to forego exercising his Title VII rights because none of the tasks set forth therein (one meeting a month, using a daily planner to improve organization, and coordinating developmental meetings with subordinates) was difficult or especially time-consuming, and all were aimed at improving his work habits and productivity. And as for his transfer, it involved no hardship, no change in location or authority, and he actually received a raise.

Disclaimer doomed contract claims Affirming summary judgment against the employee’s contract claims, the appeals court held that the non-retaliation policy in UPS’s code of business conduct did not create an implied-in-fact contract because it included a clear and conspicuous disclaimer on its back cover, stating the code was “not an express or implied contract.”