               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0021n.06
                           Filed: January 9, 2006

                                          No. 05-5060

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


TIMOTHY F. MORTON,                              )
                                                )
       Appellant,                               )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
UNITED PARCEL SERVICE, INC.,                    )    MIDDLE DISTRICT OF TENNESSEE
                                                )
       Appellee.                                )




       Before: DAUGHTREY, GILMAN and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Timothy Morton appeals the entry of summary judgment against

him in this employment-discrimination case. Because he has not produced evidence that would

allow a reasonable jury to conclude that the nondiscriminatory reason offered by United Parcel

Service, Inc. (UPS) for his discharge was pretextual, we affirm.


                                                I.


       In 1994, Morton began driving a UPS “package car” (the company’s phrase for its ubiquitous

brown van) in Nashville, Tennessee. On September 14, 2000, he was running behind on his

deliveries. Using an electronic scanner, he marked a next-day-air package as being delivered at

10:22 a.m., which created the impression that he had delivered the package before the 10:30 a.m.
No. 05-5060
Morton v. United Parcel Service, Inc.

deadline rather than at 11:35 a.m., when he in fact delivered the package. Because the package

arrived after the 10:30 a.m. deadline, the customer sought a refund, which alerted UPS to Morton’s

inaccurate scanning of the delivery.


       On October 2, a group of UPS managers met with Morton and a union steward to discuss the

delivery. The parties offer competing versions of what happened at the meeting. UPS claims that

Morton admitted he intended to conceal the late delivery, while Morton claims that he said the false

scanning was inadvertent. And UPS claims that Morton was discharged after the meeting and

reinstated two days later at the request of the union, while Morton claims that he was never

discharged but was given a five-day suspension.


       On July 26, 2001, a similar incident occurred. Running late, Morton scanned a next-day-air

package before delivery (and before the delivery deadline) and did not rescan the package after the

late delivery. Another disciplinary meeting was held. At this meeting, the parties agree that Morton

acknowledged intentionally concealing the late delivery and that the meeting ended with UPS

discharging Morton for dishonesty. Morton filed a grievance requesting reinstatement but UPS

refused to reinstate him. On October 19, a panel made up of an equal number of managers and

union officials upheld the discharge decision.


       Nearly a year later, after learning that UPS had reinstated two white employees following

discharges for dishonest acts, Morton, who is African-American, filed a discrimination charge

against UPS with the Equal Employment Opportunity Commission on September 9, 2002. After



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Morton v. United Parcel Service, Inc.

receiving a right-to-sue notice, Morton filed a complaint (on August 18, 2003) alleging race

discrimination under Title VII and 42 U.S.C. § 1981. While Morton eventually dropped the Title

VII claim, he premised his § 1981 claim on the ground that UPS did not reinstate him following his

discharge for dishonest acts but reinstated two white employees following their discharges for

dishonest acts.


       On November 11, 2004, the district court granted UPS’s motion for summary judgment.

While the court recognized that Morton had established a prima facie case of discrimination, it

concluded that UPS had offered a nondiscriminatory reason for its refusal not to reinstate

Morton—namely, that Morton had committed two acts of dishonesty while the two white employees

had committed one act of dishonesty each.


       Nor, the court added, had Morton shown that UPS’s proffered reason was pretextual. “[T]he

record before” it, the court concluded, “clearly show[ed] that Plaintiff was discharged from his

employment . . . on October 6, 2000 for an act of dishonesty involving the September 14, 2000

incident.” D. Ct. Op. at 7. Responding to Morton’s assertion that under the collective bargaining

agreement the first offense (September 14, 2000) was too stale to be considered by UPS in

disciplining him for the second offense (July 26, 2001), the court reasoned that the agreement

provides that acts of dishonesty are never “wiped clean” from the driver’s record. Id. at 8. Finally,

the court concluded that the record did not support Morton’s argument that UPS failed to rely on the

first offense when refusing to reinstate him following the second incident. Invoking the “honest

belief” doctrine, see Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106 (6th Cir. 2001),

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Morton v. United Parcel Service, Inc.

the court held that Morton’s “2000 discharge for dishonesty was a factor in [UPS’s] decision not to

reinstate [him].” D. Ct. Op. at 8–9. Morton filed this appeal, which we review de novo. Carter v.

Univ. of Toledo, 349 F.3d 269, 272 (6th Cir. 2003).


                                                 II.


          Judge Campbell’s thorough summary-judgment opinion leaves an appellate court with little

room for elaboration save to make the following brief responses to Morton’s primary arguments on

appeal. First, in questioning UPS’s honest-belief defense, Morton faces an uphill battle on this

record.     Under Majewski, “as long as an employer has an honest belief in its proffered

nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason

was pretextual simply because it is ultimately shown to be incorrect.” 274 F.3d at 1117. Consistent

with Majewski, UPS has pointed to numerous “particularized facts that were before it at the time the

decision was made” and that could legitimately support its stated reason for discharging

Morton—namely, that Morton’s July 26 false scanning was the second time that the company had

disciplined him for an act of dishonesty. Id. Morton’s employment file contained a letter, dated

October 6, 2000, and affixed with a certified mail receipt bearing the same date, saying that “[o]n

October 2, 2000 a meeting was held to discuss your acts of dishonesty on September 14, 2000. . . .

This is official notification of your discharge from United Parcel Service, effective October 2, 2000

for acts of dishonesty.” JA 118. The employment file contained a disciplinary-action input form

that categorized the first incident as “Violation Type DIS – Dishonesty.” JA 121. And during his

deposition, Lanier Hatchell, a UPS manager, indicated that the company based reinstatement

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Morton v. United Parcel Service, Inc.

decisions on whether “we had [ ] knowledge of any previous discharges for acts of dishonesty.” JA

170.


        To make “a submissible case on the credibility of [UPS’s] explanation,” Morton must show

“(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually

motivate his discharge, or (3) that they were insufficient to motivate discharge.” Manzer v.

Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (internal quotation marks and

emphasis omitted). Because a jury “may not reject an employer’s explanation [ ] unless there is a

sufficient basis in the evidence for doing so,” Noble v. Brinker Int’l, Inc., 391 F.3d 715, 724 (6th Cir.

2004) (internal quotation marks omitted), Morton must produce evidence from which a reasonable

jury could find pretext in order to overcome UPS’s motion for summary judgment. (The same

burden-shifting framework and pretext analysis that govern Title VII claims also govern § 1981

claims. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)).


        Morton has not met this burden. He points out that the record does not contain a signed

return receipt indicating that he received the October 6, 2000 discharge letter. But even if we

assume for the sake of argument that Morton did not receive the letter, that fact does not

meaningfully challenge the record-based conclusion that UPS believed that the October 6 incident

involved an act of dishonesty. He next argues that UPS handled the first and second discharges

differently, noting that he was never forced to hand in his identification badge following the first

incident. But even if Morton could create a fact dispute about whether he was discharged over the

first incident, the salient point is that the undisputed evidence shows that UPS did not rehire Morton

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Morton v. United Parcel Service, Inc.

after the July 26 incident not because Morton had been discharged before but because he had

engaged in an act of dishonesty before.


       Morton also contends that the collective bargaining agreement “precluded” UPS “from

considering prior disciplinary action after nine months had lapsed,” proving that the 2000 incident

could not have “motivate[d] UPS’[s] decision” not to reinstate him. Morton Br. at 18. Not true.

By their terms, these provisions of the collective bargaining agreement do not apply to discharges

based on “dishonesty.” JA 282.


       Morton, it is true, could “demonstrate pretext by producing evidence that other employees,

. . . not in the protected class, were not fired [or here, reinstated following discharge] even though

they engaged in substantially identical conduct to that which the employer contends motivated its

discharge of the plaintiff.” Braithwaite v. Timken Co., 258 F.3d 488, 497 (6th Cir. 2001) (internal

quotation marks omitted). But he has not drawn our attention to a white employee who was

similarly situated to him but who received better treatment. That UPS reinstated Jacqueline Roy and

Steve Morgan, both white employees, after discharging them for dishonest acts does not advance

Morton’s cause because both employees were being disciplined for first-time offenses. Nor may it

fairly be said, as Morton further argues, that Roy was not being disciplined for a first-time offense.

While UPS discovered that Roy had committed more than one act of dishonesty (apparently two

within a week), it is undisputed that the company discovered the incidents at the same time and

disciplined them together. Morton, in comparison, was disciplined once for the September 14, 2000




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incident and then again for the July 26, 2001 incident. From the company’s vantage point, Morton

had received a second chance to learn from his mistake while Roy had not.


       Besides attempting to challenge the sincerity of UPS’s explanations for discharging him,

Morton has offered no other evidence of discrimination—not a single comment by anyone,

management or otherwise, even remotely suggesting that race played a part in his discharge. In the

final analysis, as the district court properly concluded, Morton has not produced “sufficient evidence

to find that the employer’s asserted justification is false.” Reeves v. Sanderson Plumbing Prods.,

530 U.S. 133, 148 (2000). See id. at 148–49 (stating that “employer would be entitled to judgment

as a matter of law if . . . the plaintiff created only a weak issue of fact as to whether the employer’s

reason was untrue”); Peters v. Lincoln Elec. Co., 285 F.3d 456, 473 (6th Cir. 2002) (“An outcome

consistent with Reeves is still dependent on [the plaintiff’s] prima facie case and his showing by a

preponderance of the evidence that [the defendant’s] asserted reason was false.”).


                                                  III.


       For these reasons, we affirm.




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