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Kemp v. United Parcel Service, Inc.

United States District Court, D. South Carolina, Aiken Division

September 30, 2016

Brady Kemp, III, Plaintiff,
United Parcel Service, Inc., Defendant.


         This matter is before the court pursuant to the Motion for Summary Judgment (ECF No. 49) filed by Defendant United Parcel Service, Inc. (“Defendant”). In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, D.S.C., the matter was referred to United States Magistrate Judge Kaymani D. West for a Report and Recommendation (“Report”). On April 18, 2016, the Magistrate Judge issued a Report recommending that the court grant Defendant's Motion for Summary Judgment. (ECF No. 59.) Plaintiff Brady Kemp, III, (“Plaintiff”) filed Objections to the Report, which are presently before this court. (ECF No. 60.) For the following reasons, this court ACCEPTS the Magistrate Judge's Report (ECF No. 59) and GRANTS Defendant's Motion for Summary Judgment with prejudice. (ECF No. 49)


         The facts as viewed in the light most favorable to Plaintiff are discussed in the Report and Recommendation. (See ECF No. 59.) The court concludes, upon its own careful review of the record, that the Magistrate Judge's factual summation is accurate and incorporates it by reference. The court will only reference herein facts pertinent to the analysis of Plaintiff's claims. (ECF No. 60.)

         Plaintiff is a sixty-three year old, African-American male. (ECF No. 54 at 2.) Defendant is in the business of delivering packages around the world. (ECF No. 49-3 at 3 ¶ 3.) “Packages are delivered to and picked up from . . . [Defendant's] customers in the familiar brown delivery trucks, which are referred to as ‘package cars, ' and the employees operating these package cars are referred to as ‘Package Car Drivers.'” (Id. at ¶ 4.) Defendant employed Plaintiff as a package car driver responsible for making pick-ups and deliveries in the Barnwell area of Aiken, South Carolina. (Id. at ¶ 5; see also ECF No. 49-4 at 3 ¶ 5.) “The terms and conditions of [a] Package Car Drivers' employment [we]re governed by the Collective Bargaining Agreement (“CBA”) between UPS and the . . . [International Brotherhood of Teamsters].” (ECF No. 49-3 at 5 ¶ 11.)

         In 1975, Plaintiff began working for Defendant as a package car driver in Augusta, Georgia. (ECF No. 54-9 at 7:16-20.) In 1977, Plaintiff laterally transferred to Defendant's location in Aiken, South Carolina. (Id. at 7:21-24.) For the last two to four years of his employment with UPS, Plaintiff ran a delivery route in the Barnwell, South Carolina region. (Id. at 20:16-24.) During a significant portion of his career, approximately ten and fifteen years, Plaintiff was a union steward. His duties included protecting the rights of the union members on hourly wages at UPS. (Id. at 10:16-13:2.) He was the union steward at the time of his termination.

         Defendant issued Plaintiff his first warning letter on November 18, 2010 because he failed to follow protocol, and he missed a package. (ECF No. 59 at 8.) Similarly, on January 24, 2011, Plaintiff was issued a suspension letter for another failure to adhere to protocol incident that occurred during a snowstorm. (Id.). Plaintiff was issued a discharge letter for failure to properly code a delivery on September 1, 2011. (ECF No. 59 at 9.) Plaintiff contends that he did not receive notice of the aforementioned September 2011 infraction from Defendant via certified mail. On April 11, 2012, Plaintiff failed to make a scheduled pickup. (ECF No. 59 at 10.) On April 12, 2012, Ray Boulware (“Boulware”), the Aiken Center Business Manager, disclosed to Plaintiff that he would be issued a warning letter for the infraction. (ECF No. 59 at 11.) Boulware claims that he was unaware of Plaintiff's prior disciplinary transgressions. (ECF No. 59 at 11.) In fact, John Smaltz (“Smaltz”), Plaintiff's On-Road Supervisor, had erroneously drafted the warning letter that was sent to Boulware because Smaltz claims to have forgotten Plaintiff's prior infractions. (Id.) Later, Defendant's Labor Department notified Boulware and Smaltz that Plaintiff was due a discharge letter based on the multiple previous infractions. (Id.)

         On April 16, 2012, Smaltz allegedly informed Plaintiff and Union Steward Bill Sizemore (“Sizemore”) that the warning letter had been issued in error and that it would be replaced with a discharge letter. (ECF No. 59 at 11.) However, Sizemore testified that Smaltz advised Plaintiff that the warning letter would be replaced with a suspension letter. (ECF No. 59 at 11-12.) Further, Sizemore alleges that Smaltz explained to Plaintiff there had been a mistake, and he would continue his employment under a “working suspension.” (ECF No. 59 at 12.) Accordingly, Plaintiff accepted the suspension and chose not to file a grievance. (ECF No. 59 at 12.)

         On April 18, 2012, Defendant mailed Plaintiff, and the Union, a letter communicating that Plaintiff's employment was being terminated for the April 11, 2012 incident. (ECF No. 59 at 12.) Neither Plaintiff nor the Union filed a grievance within the ten (10) day period required by the Collective Bargaining Agreement (“CBA”). (ECF No. 59 at 13.) Consequently, Defendant finalized the termination on May 2, 2012. (ECF No. 59 at 13.) Plaintiff testified that he was first informed of his termination at a meeting on May 7, 2012. (ECF No. 59 at 13.)

         On May 14, 2012, Plaintiff attempted to appeal his termination by filing a grievance and he approached Smaltz to get his signature on the grievance form. (ECF No. 59 at 13-14.) Smaltz instructed Plaintiff to seek Boulware's signature, but Boulware was not in that day. (ECF No. 59 at 14.) Plaintiff submitted his grievance twenty-six (26) days after Defendant issued its discharge letter. (ECF No. 59 at 14.) Ultimately, after a local-level panel hearing determined that Plaintiff's appeal was untimely, a review panel in Baltimore, Maryland upheld the decision by Defendant to terminate Plaintiff. (ECF No. 59 at 15.)


         This court has jurisdiction over Plaintiff's Title VII claims via 28 U.S.C. § 1331, as they arise under a law of the United States, and also via 42 U.S.C. § 2000e-5(f)(3), which empowers district courts to hear claims brought under Title VII.


         The Magistrate Judge's Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight. Matthews v. Weber, 423 U.S. 261, 270-71 (1976). The responsibility to make a final determination remains with this court. See Id. This court is charged with making a de novo determination of those portions of the Report to which specific objections are made, and the court may “accept, reject, or modify, in whole or in part, ” the Magistrate Judge's recommendation, or recommit the matter with instructions.” See 28 U.S.C. § 636 (b)(1). Objections to a Report and Recommendation must specifically identify portions of the Report to which the party objects, and the basis for those objections. Fed.R.Civ.P. 72(b). In this case, Plaintiff timely filed objections to the Report. (ECF No. 60).

         Summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact[, ] and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A genuine question of material fact exists where, after reviewing the record as a whole, the court finds that a reasonable jury could return a verdict for the non-moving party. Newport News Holdings Corp v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).

         In ruling on a motion for summary judgment, a court must view the evidence in the light most favorable to the non-moving party. Perini Corp v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment with mere allegations or denials of the movant's pleading, but instead must “set forth specific facts” demonstrating a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991). All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995).

         IV. ...

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