Christopher Cross v. United Parcel Service, Inc.

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3819
___________________________
Christopher Cross
Plaintiff - Appellant
v.
United Parcel Service, Inc.
Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Northern
____________
Submitted: February 17, 2023
Filed: June 7, 2023
[Unpublished]
____________
Before SMITH, Chief Judge, STRAS and KOBES, Circuit Judges.
____________
PER CURIAM.
Christopher Cross alleges employment discrimination under 42 U.S.C. § 1981
after he was fired from his job as a package delivery driver at United Parcel Service,
Inc. (UPS). The district court1 granted summary judgment to UPS, and we affirm.
1 The Honorable D.P. Marshall Jr., Chief Judge, United States District Court
for the Eastern District of Arkansas.

-- 1 of 4 --

-2-
While Cross was delivering packages, a homeowner flagged him down
because she thought he hit her mailbox. He denied it. But because it was dark
outside, Cross promised to come back to look at the mailbox during the day. He
never returned, so the homeowner complained to UPS. Cross’s supervisor and
manager then went to look at the mailbox. They noticed that it was wobbly and
slightly crooked. They also inspected the package car and found scratches on the
passenger side and paint on the bumper that appeared to match the mailbox. The
next day, they asked Cross about the incident. Cross denied hitting the mailbox and
was fired.
Cross, a black man, claims that he was fired because of his race. UPS
maintains that Cross was fired because he failed to report an accident and was
dishonest about it. The district court granted summary judgment to UPS, finding
that Cross could not demonstrate pretext and there were no genuine issues for trial.
We review the district court’s grant of summary judgment de novo and view the facts
in the light most favorable to Cross. See Recio v. Creighton Univ., 521 F.3d 934,
938 (8th Cir. 2008). Summary judgment is appropriate “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).
There is no direct evidence of discrimination, so the McDonnell Douglas
burden-shifting framework applies. Macklin v. FMC Transp., Inc., 815 F.3d 425,
427 (8th Cir. 2016); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Cross must first “establish a prima facie case of discrimination,” and if he succeeds,
“the burden shifts to [UPS] to show a nondiscriminatory reason for the adverse
action.” Macklin, 815 F.3d at 427. “If [UPS] does so, the burden shifts back to
[Cross] to establish that the proffered non-discriminatory reason is pretextual.” Id.
at 427–28.
We assume without deciding that Cross has established a prima facie case.
See, e.g., Walker v. First Care Mgmt. Grp., 27 F.4th 600, 605 (8th Cir. 2022). UPS
has a legitimate nondiscriminatory reason for the termination: that Cross failed to

-- 2 of 4 --

-3-
report an accident and was dishonest about it. With the burden shifted back to Cross,
we ask whether Cross has shown that UPS’s reason for firing him was pretextual.
At the outset, Cross argues that there is a genuine dispute of material fact—Cross
says he did not hit the mailbox; UPS says he did. Although disputed, this fact is not
material:
If an employer, in explaining a termination, says it believed that the
employee violated company rules, then proof that the employee never
violated company rules does not show that the employer’s explanation
was false. That proof shows only that the employer’s belief was
mistaken. To prove that the employer’s explanation was false, the
employee must show the employer did not truly believe that the
employee violated company rules.
Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1003 (8th Cir. 2012)
(emphasis added). Cross has not presented evidence that UPS did not truly believe
that he violated company rules. Even if Cross did not hit the mailbox, UPS’s
mistaken belief does not demonstrate pretext.
Cross may also demonstrate pretext by proving that a “similarly situated
coworker[] w[as] treated more favorably.” Burton v. Ark. Sec’y of State, 737 F.3d
1219, 1230 (8th Cir. 2013). A similarly situated coworker is someone who “dealt
with the same supervisor, [was] subject to the same standards, and engaged in the
same conduct without any mitigating or distinguishing circumstances.” Johnson v.
Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir. 2014) (en banc) (citation
omitted). At the pretext stage, the test for whether someone is similarly situated is
“rigorous.” Walker, 27 F.4th at 605.
Cross points to a white part-time preloader. The preloader damaged a door
handle on a UPS truck and didn’t report it. When asked about it, he admitted to
damaging the truck and was not fired. The district court held that the preloader was
not similarly situated to Cross, and we agree. The preloader was not a package driver
like Cross, had less experience than Cross, and worked part-time whereas Cross was

-- 3 of 4 --

-4-
a full-time driver. And when asked about the damage, the preloader admitted to
causing it, which is a “distinguishing circumstance[].” See Johnson, 769 F.3d at 613
(citation omitted). Regardless of whether Cross actually hit the mailbox, the
preloader is not a similarly situated coworker.
We affirm the district court’s grant of summary judgment.
______________________________

-- 4 of 4 --