Cedric E. Williams v. United Parcel Service, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 19-1004
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Cedric E. Williams
lllllllllllllllllllllPlaintiff - Appellant
v.
United Parcel Service, Inc.
lllllllllllllllllllllDefendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 12, 2019
Filed: June 29, 2020
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Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Following his demotion, Cedric Williams sued United Parcel Service, Inc. for
retaliation and discrimination under 42 U.S.C. § 1981. The district court1 granted
summary judgment for UPS. We affirm.
1 The Honorable Rodney W. Sippel, Chief Judge, United States District Court
for the Eastern District of Missouri.

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I.
Williams, an African-American, was a District Labor Manager at UPS from
2004 to 2013.2 His job was to represent the company in grievance proceedings for
union employees in Arkansas. He was responsible for helping UPS prepare for
hearings, attending hearings, deciding which grievances to pay, identifying recurring
violations, and providing reports to District President, Judy Henry.
Richard Gough became Williams’s supervisor in 2010, and soon after noticed
problems with his work. In January 2011, Gough determined Williams was not
following basic UPS labor practices and told him to create a log to identify which
grievances were recurring, how long they were pending, and how much UPS was
paying to settle them. A series of emails over the next year show Gough’s
dissatisfaction with Williams’s failure to address grievances, complete requested
tasks, communicate with Henry, finish legal briefing on time, and update his
grievance log. Gough told Williams he “need[ed] to see drastic improvement” and
eventually sent him a list of concerns. App. 338. Gough later sent the list again,
saying: “I have not received answers on most of the questions. If you think I am . . .
[doing this for] my typing skills, you are sadly mistaken.” App. 342–43.
After this exchange, Gough and his supervisor, Headley Chambers, decided it
was time to put Williams on a Management Performance Improvement Plan (MPIP).
2 Because of Williams’s failure to comply with local rules, the district court
held that he admitted the allegations in UPS’s statement of undisputed material facts.
See D. Ct. Dkt. 85 at 4 n.2 (noting Williams’s “additional statements . . . [we]re
unsupported by citations to the record in violation of Local Rule 7-4.01(E)”).
Williams does not claim that the court erred in its application of the local rules, so we
also treat UPS’s statements as admitted for purposes of the record on appeal. Hacker
v. Barnhart, 459 F.3d 934, 937 n.2 (8th Cir. 2006) (issue not discussed in brief is
abandoned on appeal); Nw. Bank & Tr. Co. v. First Ill. Nat’l. Bank, 354 F.3d 721, 725
(8th Cir. 2003) (“[D]istrict courts . . . may adopt local rules reasonably designed to
streamline the resolution of summary judgment motions.” (citation omitted)).
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Gough emailed Human Resources director Stan Roux and, on March 13, 2012, Roux
provided Gough with the necessary paperwork. Gough and Roux met with Williams
to discuss the MPIP a month later, identifying four deficiencies: (1) Williams was not
regularly communicating with Gough and Henry; (2) his grievance logs were
“continually out of date” and included “[o]ld discipline cases with no follow up”; (3)
he was not adequately preparing his cases for hearings; and (4) he was not working
with division managers and staff to prevent contract violations. App. 465. Gough
“explained that these issues must be corrected . . . [and] that should [Williams] not
meet the MPIP goals, discipline up to and including discharge will come.” App. 466.
In the following months, Gough and Roux prepared multiple MPIP progress
reports and held follow-up meetings with Williams. The progress reports and notes
from these meetings indicate that Williams was still failing to perform his duties.
As a result, Gough and Chambers decided to demote Williams and, on January
30, 2013, emailed Roux that they were “ready to move on.” App. 537. Roux then
contacted Henry, and—although she considered terminating Williams—she
eventually agreed that he should be demoted. Roux created a position for Williams
in UPS’s feeder group, and notified him of the decision. Williams’s demotion did not
decrease his salary, but he did lose incentive opportunities.
Williams filed suit alleging that UPS violated 42 U.S.C. § 1981. He claimed
that UPS demoted him in retaliation for statements he had made about the company’s
treatment of African-American employees, and discriminated against him by
demoting him and not demoting similarly situated white employees. UPS moved for
summary judgment and the district court granted the motion. The court held that
Williams’s retaliation claim failed because he had not shown a causal link between
any protected activity and his demotion. The discrimination claim failed because
Williams was unable to identify “a similarly-similarly situated employee, who is not
a member of a protected class, who was treated more favorably,” or otherwise
demonstrate pretext. D. Ct. Dkt. 85 at 19. Williams timely appeals.
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II.
“We review a district court’s decision to grant summary judgment de novo.”
Gibson v. Geithner, 776 F.3d 536, 539 (8th Cir. 2015). Summary judgment is proper
if “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). Although we view the evidence
and draw all reasonable inferences in favor of the nonmoving party, we do not credit
“[m]ere allegations, unsupported by specific facts or evidence.” Thomas v. Corwin,
483 F.3d 516, 526–27 (8th Cir. 2007).
A.
Williams first challenges the district court’s judgment on his retaliation claim.
We apply the “McDonnell Douglas analytical framework to a retaliation claim under
[42 U.S.C.] § 1981.” Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997).
Because there is no direct evidence of retaliation,3 Williams’s first hurdle is making
a prima facie case. Sayger v. Riceland Foods, Inc., 735 F.3d 1025, 1030 (8th Cir.
2013). To do so, he must show: “(1) protected activity, (2) subsequent adverse
employment action, and (3) a causal relationship between the two.” Kim, 123 F.3d
3 Williams argues there is direct evidence of retaliation and discrimination, but
the only examples he cites come from the affidavit of Susan Norwood, which is not
part of the summary judgment record. In the district court, Williams moved to stay
summary judgment and reopen discovery so he could submit the affidavit. But the
court denied the motion, and he does not appeal that decision. Nor does he contest
the court’s denial of his subsequent motion for sanctions, which also implicated the
affidavit. Tovar v. Essentia Health, 857 F.3d 771, 775 (8th Cir. 2017) (“[A]rguments
not sufficiently developed in opening brief are deemed waived.”). Without any
support from the record, Williams’s direct evidence arguments fail. See Couch v. Am.
Bottling Co., No. 18-3648, 2020 WL 1886448, at *2 n.2 (8th Cir. Apr. 16, 2020)
(Where a party has failed to cite evidence from the record, “[w]e will not comb
through [it] to build [a plaintiff’s] direct-evidence argument for him.”).
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at 1060. A causal relationship exists where “the desire to retaliate was the but for
cause of [the adverse action].” Sayger, 735 F.3d at 1032 (citation omitted).
Williams claims that UPS demoted him in retaliation for statements he made
on two different occasions. First, in 2011, Williams was consulted about whether
UPS should terminate an African-American employee who was known for filing
grievances. He told management that they needed to be consistent, so if they decided
to terminate the employee, they needed to “do it the right way” and treat similarly
situated white employees the same. App. 213–214. Second, Williams identifies a
deposition he gave on UPS’s behalf in an employment discrimination case on March
14, 2012, where he testified about UPS’s treatment of African-American employees.
Williams concedes that Gough and Chambers never knew about the 2011
statements or his 2012 deposition. He further admits that these two were responsible
for bringing about the MPIP and making the initial decision to demote him. This
severs any link between protected conduct and Gough or Chambers. See Jackson v.
United Parcel Service, Inc., 548 F.3d 1137, 1143 (8th Cir. 2008) (“[A] causal link
does not exist” if decision makers were unaware of the protected activity.).
Williams argues that his claim nevertheless survives because Henry and Roux
made the ultimate decision to demote him and that both knew about his 2011
statements and the 2012 deposition. Assuming without deciding that both were
decision makers, this claim still has three problems. First, Henry’s and Roux’s
involvement in the demotion occurred almost a year after the March 2012 deposition
and two years after his 2011 statements. We have previously held that, without more,
an “interval of more than two months is too long to support an inference of
causation.” Trammel v. Simmons First Bank of Searcy, 345 F.3d 611, 616 (8th Cir.
2003). Second, there is no evidence that anyone at UPS thought Williams’s
testimony on either occasion was harmful. After the deposition, UPS’s counsel sent
an email stating that “Williams did a good job deflecting [opposing counsel’s]
questions” and later noted that he “did not harm UPS’s defenses in the case.” App.
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963, 966. Third, undisputed facts support a different explanation for Williams’s
demotion—that he was demoted because Gough and Chambers believed his job
performance was deficient. This further undercuts any connection between
Williams’s demotion and his 2012 deposition or 2011 statements. See Shirrell v. St.
Francis Med. Ctr., 793 F.3d 881, 888 (8th Cir. 2015) (protected activity was not a
but-for cause where the “uncontroverted evidence” showed plaintiff was fired for
disciplinary reasons). Because Williams cannot link protected conduct with his
demotion, his retaliation claim fails.
B.
Williams next argues that the district court erred in granting summary judgment
on his race discrimination claim. The McDonnell Douglas framework also applies
to this claim. Williams “must first establish a prima facie case of discrimination.”
Torgerson v. City of Rochester, 643 F.3d 1031, 1046 (8th Cir. 2011) (en banc). Then,
UPS is required to articulate a legitimate, non-discriminatory reason for the demotion.
Id. Finally, Williams shoulders “the ultimate burden . . . to produce evidence
sufficient to create a genuine issue of material fact regarding whether [UPS’s
explanation is] . . . mere pretext for intentional discrimination.” Id. (citation omitted).
Because we believe the third step is dispositive, and because UPS offered a
non-discriminatory reason for the demotion, we presume that Williams has made a
prima facie case and “move directly to the issue of pretext.” Wagner v. Gallup, Inc.,
788 F.3d 877, 886 (8th Cir. 2012) (citation omitted).
There are multiple ways a plaintiff can show pretext. One is by demonstrating
that the employer’s stated reason for the termination is false. Barber v. C1 Truck
Driver Training, LLC, 656 F.3d 782, 794 (8th Cir. 2011). Plaintiffs taking this path
must show “both that the reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis in
original). Another way is by presenting evidence that the employer “treated similarly-
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situated employees in a disparate manner.” Lake v. Yellow Transp. Inc., 596 F.3d
871, 874 (8th Cir. 2010). “At the pretext stage, the test for whether someone is
sufficiently similarly situated, as to be of use for comparison, is rigorous.” Johnson
v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 613 (8th Cir. 2014) (en banc). The
comparator must be “similarly situated in all relevant respects.” Id. (citation omitted).
Williams attempts both approaches. To demonstrate that UPS’s explanation
is false, he introduces the testimony of two coworkers and argues that the number of
grievances and associated payments in his territory have not changed since he was
demoted. However, his grievance and payment performance were only two of the
reasons Gough and Chambers gave for his demotion. Also, after-the-fact evidence
like this does little to call into question whether the decision makers here “honestly
believed the asserted grounds at the time of the [demotion].” Twymon v. Wells Fargo
& Co., 462 F.3d 925, 935 (8th Cir. 2006). Finally, even if Williams could show that
UPS’s explanation for the demotion was false, his burden is higher than that—he
must show that UPS’s decision was motivated by racial discrimination. St. Mary’s
Honor Ctr., 509 U.S. at 515. He has not done so.
Williams’s claim that UPS treated similarly-situated employees differently also
fails. Williams acknowledges from the outset that this argument is a longshot: as
“the only Labor Manager operating under the Southern Conference contract,” he
states that he belonged to “a class of one.” Williams Br. 26. Perhaps for this reason,
he does not identify the other two District Labor Managers that Gough supervised as
potential comparators. Instead, he lists two employees that succeeded him in the
position: Don Lewick and Bret Holladay.
Though there may be some situations where a plaintiff’s replacement can serve
as a comparator, successors are often new to a role and thus require a period of
acclimation. They also necessarily hold their position after the decision at issue, so
disparate treatment at that point might result from an employer’s desire to minimize
turnover. Nor are Lewick and Holladay otherwise good candidates for comparison.
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See Johnson, 769 F.3d at 613 (comparators must “have dealt with the same
supervisor, have been subject to the same standards, and engaged in the same conduct
without any mitigating or distinguishing circumstances.” (citation omitted)). Lewick
was a temporary replacement and handled Williams’s territory for a matter of months
before becoming ill. Holladay started in the position a year after Williams was
demoted, was never supervised by Gough, and Henry left shortly after he was hired.
Finally, the record does not show that either individual had similar performance
issues to Williams.
Because Williams has not raised a genuine issue of material fact as to whether
UPS’s explanation for his demotion was pretext for discrimination, his claim fails.
III.
We affirm the judgment of the district court.
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