United States District Court, District of Columbia
ALFRED WENDELL HOWARD, JR. and HIKIEM SHARODD CAIN, Plaintiffs,
FEDERAL EXPRESS CORPORATION and JOHN O'REILLY, Defendants.
MEMORANDUM OPINION AND ORDER
P. MEHTA UNITED STATES DISTRICT JUDGE
Howard Jr. and Hikiem Cain are African-American males who
were employed as full-time couriers by Federal Express
Corporation (“FedEx”) prior to their terminations
in December 2015 and June 2016, respectively. According to
Defendants FedEx and John O'Reilly, their former
supervisor, Plaintiffs were terminated for failing to follow
internal policies regarding loss of packages while in
transit. In December 2016, Plaintiffs filed a complaint
against FedEx alleging, among other things, employment
discrimination on the basis of race in violation of 42 U.S.C.
§ 1981 and defamation. Plaintiffs subsequently amended
their complaint to name O'Reilly as a defendant.
Following the court's ruling on Defendants' motions
to dismiss Plaintiffs' complaint, Plaintiffs'
remaining claims are employment discrimination under §
1981 as to both Defendants and defamation as to FedEx
the court are Defendants' Motions for Summary Judgment as
to these claims. For the reasons stated below, the court
grants Defendants' Motions for Summary Judgment.
Employment and Termination
Howard was employed by FedEx as a courier from October 27,
1997, to December 23, 2015. Pls.' Errata, ECF No. 23, Ex.
1, ECF No. 23-1 [hereinafter Am. Compl.], ¶ 5. In
September 2015, Howard was issued a warning letter by one of
his managers, admonishing him for losing packages while on
his route, failing to report a defective door on his truck,
and improperly scanning packages. Defs.' Mot. for Summ.
J. as to All Claims Filed by Howard, ECF No. 34 [hereinafter
Defs.' Mot. as to Howard] Ex. B, ECF No. 34-4
[hereinafter Howard Depo.], at 51, 164-65. The letter cited
a violation of section 2-5 of the FedEx Employee Handbook,
specifically the Acceptable Conduct Policy, which outlines
various company policies regarding how employees are expected
to conduct themselves at FedEx. Id. at 131-32,
164-65. The Acceptable Conduct Policy enumerates behavioral
violations that may result in disciplinary action or
termination for an employee, including “[c]ustodial
loss of Company or customer property.” Id. at
132. The warning letter further stated that “[a] repeat
of this or any other behavioral problem may result in more
severe disciplinary action up to and including
termination.” Id. at 164. Howard did not
appeal or contest the warning letter when he received it.
Id. at 53.
than three months later, on December 2, 2015, more packages
went missing on Howard's route. Id. at 166-67.
On this occasion, the packages contained three HP laptops
totaling $1800. Id. at 166. Following an
investigation, FedEx determined that Howard had violated
section 2-5 of the Acceptable Conduct Policy, and sent Howard
a letter of termination. Id. at 166-67. The
management rationale for Howard's termination stated that
Howard was fired for “loss of custodial control of the
three HP laptops valued at a total of $1800.”
Id. at 174. Howard appealed his termination through
FedEx's internal appeals process-the Guaranteed Fair
Treatment Procedure (“GFTP”)-and his termination
was upheld at all three steps of the GFTP process.
Id. at 94. No. one at FedEx ever explicitly accused
Howard of stealing the packages. Id. at 58-59.
Following Howard's termination, Hikiem Cain took over
Howard's old route. Id. at 78-79.
Cain's Employment and Termination
Cain was employed by FedEx as a courier from November 20,
2008, to June 24, 2016. Am. Compl. ¶ 6. During his
employment, Cain was reprimanded for forgetting to scan
packages after delivering them on four separate occasions: on
December 15 and 22, 2015; March 8, 2016; and April 29, 2016.
See Defs.' Mot. for Summ. J. as to All Claims
Filed by Cain, ECF No. 35 [hereinafter Defs.' Mot. as to
Cain], Ex. B, ECF No. 35-4 [hereinafter Cain Depo.], at 43-
45, 49-53. Cain was also reprimanded on January 11,
2016, for delivering five priority packages late and failing
to report it to management. Id. at 46-48. Cain also
had numerous infractions on his company record for failing to
clock in or out and for break violations. See Id.
176-93. At no point did Cain receive any warning letters or
suspensions for these infractions. Id. at 46, 48,
50- 51, 53. Cain was commended, however, on May 4, 2016, for
completing 100% of his route goal in April. Id. at
166. On the next day, May 5, 2016, eight packages went
missing while out for delivery on Cain's route, totaling
$2490 in lost items. Id. at 216. Following an
investigation, Cain was terminated on June 24, 2016.
Id. at 216-217. Cain's termination letter cited
the packages lost while in transit as a violation of section
2-5 of the Acceptable Conduct Policy. Id. Cain
appealed his termination through the GFTP process and his
termination was upheld at each step. Id. at 69. The
management rationale for Cain's termination stated that
he was fired for “loss of custodial control” of
“several high value customer shipments” of an
estimated value of $2, 490. Id. at 218.
John O'Reilly's Behavior
O'Reilly was Plaintiffs' immediate supervisor at the
times of their terminations. Am. Compl. ¶ 9.
O'Reilly ultimately made the decision to fire both
Plaintiffs. Howard Depo. at 59; Cain Depo. at 216-17. FedEx
promoted O'Reilly to his current supervisory position on
November 15, 2015, just one month before Howard's
termination. Defs.' Mot. as to Howard, Ex. D, ECF No.
34-6 [hereinafter O'Reilly Depo.], at 5-6.
Plaintiffs claim that O'Reilly did not like them because
of their race and that O'Reilly was motivated by racial
animus when he made the decision to fire them. See
Am. Compl. ¶¶ 9, 20; Howard Depo. at 79, 83; Cain
Depo. at 82-83. Howard's contention that O'Reilly did
not like him is not based on any specific instance but
instead because O'Reilly was “short” with
Howard and “didn't believe what [Howard] would
say.” Howard Depo. at 79. Howard also recounts that
O'Reilly once bragged to Howard that a song reminded
O'Reilly of beating up Jewish boys as a child, saying
“yea man[, ] we used to beat those little Jewish boys
back home and pull them by their burns.” Id.
at 25; see Am. Compl. ¶ 17.
provided additional examples of O'Reilly's attitude
towards Plaintiffs. On one occasion, Cain was at a conveyor
belt loading packages onto his truck when he stopped the
conveyor belt to offload the packages, which seemed to upset
O'Reilly. Cain Depo. at 79. O'Reilly told Cain
“[s]top fucking-don't fucking do that shit
again.” Id. Cain asked O'Reilly not to
speak to him that way again and to treat him with respect.
Id. at 79. On another occasion, O'Reilly was
upset about receiving bad reviews from his couriers and told
them, in a meeting, “[y]'all not going to fuck me
in my ass like that. I'm not going to have that.”