United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Khalilah Johnson (“Johnson” or
“Plaintiff”) brings this action against Defendant
United Parcel Service, Inc. (“UPS”), alleging
violations of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et seq. (“Title
VII”), and the Maryland Fair Employment Practices Act,
Md. Code Ann., State Gov’t § 20-696
(“FEPA”). Plaintiff claims that her employer,
UPS, retaliated against her after she sought an accommodation
for her religious beliefs.
originally asserted Title VII and FEPA violations, as well as
various state law claims sounding in contract, against UPS,
the International Brotherhood of Teamsters
(“International Union”), and Teamsters Local
Union No. 355 (“Local 355”). See
generally Amended Compl., ECF No. 3. On June 30, 2015,
this Court issued a Memorandum Opinion (ECF No. 30) and Order
(ECF No. 31) granting the International Union’s and
Local 355’s respective Motions to Dismiss (ECF Nos. 8
& 10), and granting in part and denying in part
UPS’s Corrected Motion to Dismiss (ECF No. 14).
Specifically, this Court dismissed Counts I-VI, but denied
UPS’s Motion only as to the religious accommodation
retaliation alleged in Count VII. See generally Mem.
Op. As this Court explained, the alleged retaliation
“took the form of assignment to less desirable and more
burdensome routes” after Johnson’s May 2013
accommodation request. Id. at 22.
lengthy period of discovery, Defendant UPS filed the pending
Motion for Summary Judgment (ECF No. 41). The parties’
submissions have been reviewed and no hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
that follow, Defendant UPS’s Motion for Summary
Judgment (ECF No. 41) is GRANTED. UPS is entitled to judgment
as a matter of law on the final remaining claim, Count VII.
ruling on a motion for summary judgment, this Court reviews
the facts and all reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378 (2007); see also Hardwick ex rel.
Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013).
2008, Defendant UPS hired Plaintiff Khalilah Johnson as a
“part-time inside unloader” or “package
handler” at the UPS facility located on Vero Road in
Baltimore, Maryland (the “Baltimore building”).
Khalilah Johnson Dep. 73:12-17; 74:4-11, ECF No. 41-3. Upon
her employment at UPS, Plaintiff joined Local 355, the
Baltimore chapter of the International Union. Id.
74:12-20; see also Amended Compl. ¶¶ 9,
16. As with all members of Local 355, a collective bargaining
agreement (“CBA”) between UPS and Local 355
established all terms and conditions of her employment.
Johnson Dep. 74:12-75:4.
package handler, Johnson was tasked with “sorting,
loading and unloading packages onto and off of UPS
vehicles.” Kevin Garvey Decl. ¶ 6, ECF No.
41-4; accord Johnson Dep. 73:23-24. On
February 14, 2009, Johnson began to take on some driving work
in addition to her duties as a package handler. Johnson Dep.
78:13-79:4. In June 2009, she officially became a
“regular temporary package driver”
(“Reg-Temp driver”). Id. 79:5-7. As a
Reg-Temp driver, Johnson generally acted as a substitute for
regular drivers or provided extra help delivering packages
when needed. Garvey Decl. ¶ 5. A Reg-Temp driver is not
a full-time position, as it exists only in the months of June
through December. Johnson Dep. 79:8-19. Moreover, the
governing collective bargaining agreement does not confer
full-time seniority to Reg-Temp drivers. Id. 80:6-9.
continued in this position until May 2012, when she became a
full-time driver. Id. 80:12-14. She was assigned to
the Harbor Center, one of several UPS delivery centers within
the Baltimore building. See, e.g., id.
74:4-11. The Harbor Center has approximately sixty to seventy
full-time drivers, who service sixty-five to seventy set
delivery routes. Id. 85:2-4; Thomas Reinhardt Decl.
¶ 2, ECF No. 41-5. Routes were assigned via a bidding
process wherein each year, drivers bid on specific routes
that were awarded based on seniority. Johnson Dep.
81:18-82:5. Drivers who did not receive fixed routes acted as
“cover” drivers for drivers with fixed routes who
were absent from work. Id. 80:15-91:9; Charles Kurtz
Decl. ¶ 4, ECF No. 41-6; accord Tony Freeman
Decl. ¶ 4, ECF No. 41-7. As such, the assignments will
vary according to which drivers are absent. Kurtz Decl.
¶ 4; Freeman Decl. ¶ 4. Under this system,
Plaintiff worked as a cover driver from May 2012 until
December 2014. Johnson Dep. 80:15-18; 82:6-12. In January
2015, she had accrued sufficient seniority to win a bid for a
fixed route-Route 52C. Id. 82:12-15.
driver routes are assigned by “Full-Time On Road
Supervisors” on the basis of need-On Road Supervisors
determine which routes are missing their regular drivers and
then assign cover drivers to those particular routes.
See, e.g., Kurtz Decl. ¶ 3. In 2013, On Road
Supervisor Charles Kurtz directed the assignment of cover
drivers for the Harbor Center. Id. ¶¶ 2,
5. When a regular driver is on a previously-scheduled
vacation, then an On Road Supervisor assigns a cover driver
prior to the regular driver’s absence. Id.
¶ 5. If, however, the On Road Supervisor does not have
prior notice of the regular driver’s absence, then the
assignment is made the morning of the day in question.
Id. Cover drivers are responsible for checking the
assignment list posted each day. Johnson Dep. 91:11-19.
loads for each UPS truck are set by the “Full-Time
Package Dispatch Supervisor” using forecasting data
based on historical and current trends. David Kulp Decl.
¶¶ 3-4, ECF No. 41-9; accord John Oxendine
Decl. ¶¶ 3-4, ECF No. 41-10. In 2013, David
Kulp acted as the Package Dispatch Supervisor, while John
Oxendine has held that title from March 2015
onward. Kulp Decl. ¶ 2; Oxendine Decl. ¶
2. Ideally, each package load would necessitate a “plan
time” of 8-9.5 hours, although a driver’s
plan time on a particular day could fall outside of this
range. Kulp Decl. ¶¶ 5, 8, 10. A driver who
exceeded the plan time for his route was “over allowed,
” however the driver still received compensation for
all time worked on that particular day. Id. ¶
5; Johnson Dep. 114:23-115:8. This payment includes overtime
pay, which is triggered after eight hours of work. Kulp Decl.
optimize the efficiency of deliveries, the Package Dispatch
Supervisor may alter the number of stops during the day. Kulp
Decl. ¶ 9; accord Oxendine Decl. ¶ 9. In
that event, an additional driver may be sent to assist the
assigned driver by taking a portion of the remaining
packages. Kulp Decl. ¶ 9; accord Oxendine Decl.
¶ 9. Package Dispatch Supervisors determined only the
package load for a particular route, and not the driver
assignments. Kulp Decl. ¶ 11. After Package Dispatch
Supervisor determined the appropriate package loads, a
“preloader” would put the respective packages on
the truck assigned to that route. Robert Hatcher Decl.
¶¶ 3, 5, ECF No. 41-8.
Religious Accommodation and Alleged Retaliation
a Seventh Day Adventist, observes a Sabbath that begins at
sundown on Friday. Johnson Dep. 349:20-25; see also
Amended Compl. ¶ 105. In May 2013, she and her husband,
Michael Johnson, who is employed as a full-time driver
assigned to the Harbor Center,  submitted formal
accommodation requests in which they asked that they not be
required to work past sundown on Fridays. Garvey Decl. ¶
4; see also Amended Compl. ¶ 105. UPS granted
the accommodation request. Johnson Dep. 165:8-166:10. Under
the accommodation, Plaintiff (and her husband) do not work on
Fridays between October 1 and April 1, even after they have
exhausted vacation days and paid time off. Id.;
Garvey Decl. ¶ 4. From April 2 through September 30,
Plaintiff works on Fridays, but her assignments are adjusted
to allow her to end working before sundown. Garvey Decl.
¶ 4; Johnson Dep. 165:8-166:10. Plaintiff claims that it
was “[p]ossibl[e]” that she had worked past
sundown on a Friday, but she “[could] not recall”
if she had actually done so and “believe[s] [she] did
not.” Johnson Dep. 352:6-12.
forth supra, Johnson alleges that UPS began to
retaliate against her, but not her husband, for their
religious accommodation request. This retaliation
consisted of assignments to the “worst” routes
and the overloading of packages on her truck. Although
Johnson claims that this treatment also occurred prior to the
May 2013 accommodation request, see, e.g. Johnson
Dep. 254:17-22, the present action concerns her assignments
on five separate occasions only: June 26, 2013; August 5,
2013; September 30, 2013; October 23, 2013; and December 2,
2013. Johnson Dep. 292:8-22; Def.’s Mot.
for Summ. J. Ex. 14, 4, ECF No. 41-16 (UPS Interrogatory
& Plaintiff’s Supplemental Answer). On those days,
she does not contend that her assignment to the route itself
was retaliatory. See, e.g., Johnson Dep.
291:20-292:7. Rather, she claims that her assigned route was
retaliatory because it ...