United States District Court, District of Columbia
ALFRED WENDELL HOWARD, JR. and HIKIEM SHARODD CAIN, Plaintiffs,
FEDERAL EXPRESS CORPORATION and JOHN O'REILLY, Defendants.
P. Mehta, United States District Court Judge.
Alfred Howard and Hikiem Cain worked for Federal Express
Corporation (“FedEx”) as full-time couriers until
terminated in December 2015 and June 2016, respectively.
Defs.' Mot. for Summ. J., ECF No. 50 [hereinafter
Defs.' Mot.]; Defs.' Stmt. of Undisputed Material
Facts, ECF No. 50-2 [hereinafter Defs.' Facts],
¶¶ 6, 12, 23, 32; Pls.' Opp'n. to
Defs.' Mot., ECF No. 52 [hereinafter Pls.'
Opp'n]; Pls.' Stmt. of Disputed Material Facts, ECF
No. 52-3 [hereinafter Pls.' Facts], at 2-4 ¶¶
6, 12, 23, 32. According to Defendants-FedEx and John
O'Reilly, their former supervisor-Plaintiffs were
terminated because they each lost custodial control of
several packages collectively worth thousands of dollars.
Defs.' Facts ¶¶ 23, 32. Plaintiffs claim that
Defendants improperly held them responsible for these losses,
when in fact a defect in their delivery trucks' locking
mechanisms made the packages vulnerable to loss. Pls.'
Opp'n; Pls.' Mem., ECF No. 52-2 [hereinafter
Pls.' Mem.], at 1-3.
brought this suit in December 2016, asserting negligence by
Defendants for failing to provide secure trucks, along with a
number of other claims: (1) intentional discrimination in
violation of 42 U.S.C. § 1981, (2) disparate treatment
in violation of 42 U.S.C. § 1981, (3) promissory
estoppel, (4) breach of the duty of good faith and fair
dealing, (5) breach of express and implied contract, and (6)
defamation. See Pls.' Compl., ECF No. 1;
Pls.' Am. Compl., ECF No. 23-1 [hereinafter Am. Compl.].
The court previously granted Defendants' Motion to
Dismiss or their Motion for Summary Judgment as to all claims
other than negligence. See Howard v. Fed. Express Corp.
[hereinafter Howard I], 280 F.Supp.3d 26 (D.D.C. 2017)
(granting in part and denying in part motion to dismiss);
Howard v. Fed. Express Corp. [hereinafter Howard
II], 316 F.Supp.3d 234 (D.D.C. 2018) (granting motion
for summary judgment). As to negligence, Defendants had
argued that the D.C. Workers' Compensation Act
(“WCA”) provided “the exclusive remedy for
workplace-related injuries” and therefore the
negligence claim must be dismissed, but the court elected to
have the D.C. Department of Employment Services decide the
applicability of the WCA in the first instance. Howard
I, 280 F.Supp.3d at 33. After a period of extended
delay, the Department issued rulings that granted Plaintiffs
no relief. Defendants now move for summary
judgment on this sole remaining claim. See generally
Defs.' Mot. For the reasons stated below, the court
grants Defendants' motion.
allege that Defendants had a duty to provide couriers
“with a secure truck to carry out their delivery
duties” and that they breached this duty when they
“introduced wristband swipe opening device trucks with
defective lock system[s].” Am. Compl. ¶¶
165-166. Plaintiffs contend that a problem with the
trucks' lock system was the proximate cause for the lost
packages that precipitated Plaintiffs' terminations.
See id. ¶ 171; Pls.' Opp'n at 27-28.
provide a variety of reasons for why they cannot be held
liable. They argue that (1) the case is time-barred as to one
of the Plaintiffs because the FedEx Employment Agreement
fixes a limitations period of six months; (2) the WCA
provides the exclusive remedy for the harm; and (3)
Plaintiffs have not established a standard of care through
expert testimony. Defs.' Mot.; Defs.' Mem., ECF No.
50-1, at 5-10. The court need not address this litany of
defenses, however, because Plaintiffs have failed to present
evidence to support a key element of their case: that a
defect in the trucks' locking mechanism caused the
property loss that led to their firings.
District of Columbia, a defendant is liable for negligence if
the plaintiff can show that “(1) the defendant owed a
duty of care to the plaintiff, (2) the defendant breached
that duty, and (3) the breach of duty proximately caused
damage to the plaintiff.” Haynesworth v. D.H.
Stevens Co., 645 A.2d 1095, 1098 (D.C. 1994). Focusing
on the second element here, to establish a breach, Plaintiffs
would need to produce evidence that Defendants supplied them
trucks with defective locking systems. Plaintiffs provide
three pieces of evidence to support this contention: (1) a
determination from the D.C. Department of Employment Services
on Plaintiff Howard's unemployment benefits claim, (2)
deposition testimony from Plaintiff Howard, and (3)
deposition testimony from Plaintiff Cain. None provides
adequate support to sustain Plaintiffs' claim.
Plaintiff relies on a D.C. Department of Employment
Services' determination that Plaintiff Howard was
eligible for unemployment benefits despite the
“allegation” by his employer that his termination
was due to employee misconduct. Pls.' Opp'n;
Pls.' Ex. E, ECF No. 52-9.
Department based this determination on a finding that
Defendant FedEx did not “provide sufficient evidence
to demonstrate misconduct on the part of the
[Plaintiff].” Id. Plaintiffs' reliance on
this finding demonstrates a fundamental misunderstanding of
the burden of proof. For the unemployment benefits claim,
“[t]he employer has the responsibility to provide
evidence of misconduct.” Id. Here, however,
Plaintiffs bear the burden of proof. A finding by the
Department of Employment Services that Defendant FedEx failed
to meet its evidentiary burden to prove misconduct in that
proceeding sheds no light on whether Plaintiffs have met
their burden here to show that Defendants' negligence was
the proximate cause of the lost packages.
reliance on their deposition testimonies likewise falls
short. Plaintiffs first point to testimony by both Howard and
Cain that they were not accused by Defendants of stealing the
lost packages. Pls.' Facts ¶ 2 ¶¶ 5-6
(citing Pls.' Ex. D, ECF No. 52-8 at 92-93; Pls.' Ex.
F, ECF No. 52-10 at 131-132). This is beside the point.
Whether Defendants accused Plaintiffs of stealing the
packages, or even whether they believe Plaintiffs stole the
packages, does not establish Defendants' failure to
provide defect-free trucks.
Plaintiffs point to Howard's testimony that other
couriers were fired for lost packages. Pls.' Facts ¶
1-2 ¶ 4; 3 ¶¶ 22, 24 (citing Pls.' Ex. D
at 94-107). Plaintiffs argue that this testimony shows that
there was evidence of “either something wrong with the
locking mechanism, or that spare keys were used, [because]
the packages were missing, and there had been similar
problems with other trucks.” Id. at 3 ¶
22. But Howard's testimony supplies no support for that
fact proposition. Plaintiff Howard merely identified other
couriers who were fired for losing custodial control of
packages without connecting these losses to problems with
trucks or their locking mechanisms. See Pls.'
Ex. D at 94-107. More than that, Howard admitted that he had
no first-hand knowledge of any firing other than his own; his
information came only from what other couriers told him.
Id. Such evidence is pure hearsay and is not
admissible, even at the summary-judgment stage. See Greer
v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007)
(“sheer hearsay . . . counts for nothing on summary
judgment”) (quoting Gleklen v. Democratic Cong.
Campaign Comm., 199 F.3d 1365, 1369 (D.C. Cir. 2000))
(internal quotation marks omitted).
Cain's testimony likewise comes up short. In a portion of
Cain's testimony, he stated that he saw “the
bulkhead door [of the truck] crack (sic) open a little
bit” on the day packages were lost. Defs.' Mot.,
Deposition of Hikiem S. Cain, ECF No. 50-4, at 114. However,
Plaintiff Cain admitted that he checked the locks before and
after deliveries every day, and that he inspected the locks
before leaving on the day in question and found no problems.
Id. at 53, 112-113. Further, FedEx investigated the
incident and “found no defects with the locking
mechanism” and “no evidence that the truck had
been accessed by a third-party.” Defs.' Facts
¶ 31; Pls.' Facts ¶ 4 ¶ 31 (not disputing
that the investigation reached these conclusions and offering
no evidence to dispute the accuracy of the conclusions).
Plaintiffs offer no proof to rebut that finding. Id.
Plaintiffs provide no evidence to create a genuine dispute of
fact as to whether Defendants' trucks were secure, the
court grants Defendants summary judgment on the negligence
claim. Cf. Murphy v. Schwankhaus, 924 A.2d
988, 993 (D.C. 2007) (summary judgment warranted where
plaintiff presented “no ...