Escanio v. United Parcel Service

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 12-3295
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CHRISTIAN ESCANIO,
Appellant

UNITED PARCEL SERVICE; TOM DOWLING;
RICK LEZOTT; JEFF O’BRIEN; JOHN DOE (1-12);
XYZ CORPORATION (1-12)
_______________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-11-cv-01361)
District Judge: Honorable Dennis M. Cavanaugh
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Submitted Under Third Circuit LAR 34.1(a)
September 10, 2013

Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.

(Filed: September 12, 2013)

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OPINION OF THE COURT
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JORDAN, Circuit Judge.

Christian Escanio appeals an order of the United States District Court for the

District of New Jersey granting summary judgment to United Parcel Service (“UPS”) on

his claims of retaliation and of discrimination based on ethnicity and national origin. For

the reasons that follow, we will affirm.

I. Background1

Escanio, who is Hispanic, began working for UPS in New Jersey on September 6,

1995. At the time, he worked as a part-time employee loading and unloading vehicles

and sorting packages. On September 23, 2002, UPS promoted Escanio to a position

called “package car driver.” Less than a month later, UPS sent him back to his position

as a hub sorter because he was involved in an avoidable vehicular accident during a

thirty-day probationary period. The following year, on November 10, 2003, UPS

promoted him to a full-time position as a combination driver and loader/unloader inside

the Meadowlands UPS facility. In April 2005, he was again promoted to be a package

car driver but was returned to his combination position before the end of the probationary

period. The reason UPS gave him for that change was his poor performance.

On May 15, 2006, Escanio was, for the third time, promoted by UPS to be a

package car driver, and he remained in that position following his successful completion

of the probationary period. He was given a permanent delivery route in 2008 out of

UPS’s Jersey City Center and continued there until his termination in April 2009.

1
Given our standard of review, see infra note 5, we set forth the facts in the light
most favorable to Escanio.
2
Over the course of Escanio’s employment, he filed numerous internal complaints,

the first on September 4, 2004. In that complaint, he alleged that Meadowlands Division

Operation Center Manager Rick Lezott had “intimidated and threaten[ed]” him. (App. at

412.) According to Escanio’s testimony, Lezott singled him out from among his

coworkers and told him to wash his delivery truck while waiting for work, but Lezott did

not make any racial or ethnic comments.

On May 1, 2006, Escanio submitted an internal complaint regarding stagnation in

his career. He complained of “mistreatment and humiliation” and his seniority being

overlooked in promotion decisions, while outside hires received more favorable

treatment. (App. at 419.) He believed that his failure to be promoted was retaliation for

his September 2004 complaint. As noted earlier, Escanio was promoted to the position of

package car driver shortly thereafter, on May 15, 2006.

Escanio sent a letter of complaint to UPS’s human resources department in

Atlanta, Georgia, on December 22, 2007. He alleged that Jersey City Center Manager

Jeff O’Brien discriminated against him by placing him on notice of discharge after he

returned to the UPS facility later than the time he had been directed to return. He further

stated his belief that O’Brien’s action was one of retaliation, tied back to Escanio’s 2004

complaint against Lezott. Escanio’s complaint did not make mention of racial or national

origin discrimination, and he faced no disciplinary action resulting from the notice of

discharge.

Over the course of 2008 and 2009, Escanio filed multiple union grievances. On

February 1 and 4, 2008, he filed separate union grievances alleging harassment and over-

3
supervision by the management of the Jersey City Center. Those grievances arose after a

manager rode along and observed Escanio completing his delivery route five days in late

January. On February 6, 2008, he filed another union grievance alleging harassment and

over-supervision by management. In that grievance, he stated that he was called into his

manager’s office on over five consecutive days, which he alleged was done in retaliation

for his complaints against Lezott and O’Brien. On March 3, 2009, Escanio filed a union

grievance that claimed he was being harassed by the manager of the Jersey City Center.

He filed another union grievance against management on April 1, 2009, alleging that he

was “disrespected and intimidated.” (App. at 206.)

During Escanio’s time as an employee of UPS, a number of issues arose

concerning his job performance. On June 8, 2007, a UPS customer called to complain

about Escanio’s using profanity and attempting to start a fight with the customer. A

different customer complained on November 16, 2007, stating that Escanio argued with

him, and the customer asked that another driver be assigned to make deliveries to his

address. On February 19, 2009, a third customer filed a complaint regarding Escanio,

stating that he routinely blocked her driveway and became arrogant when the customer

asked that he move the truck. After each of those complaints, the manager of the Jersey

City Center met with Escanio to discuss what had happened.

There were also concerns regarding Escanio’s efficiency during the workday.

From January 14 through 16, 2008, during an on-job supervision, Escanio’s supervisor

observed Escanio work multiple hours over his planned, or allowed, total each day. The

supervisor noted that Escanio did not adhere to UPS delivery methods, and he believed

4
Escanio purposely extended the time it took to complete deliveries. UPS reallocated

some of Escanio’s work to allow him to complete his deliveries within the planned hours.

Nevertheless, he continued to log more total hours than his allowed total.

On April 6, 2009, UPS management noticed that, on April 1 and 2, Escanio

appeared to have exceeded his allotted sixty-minute meal period, an allowance

established by the Collective Bargaining Agreement between UPS and Escanio’s

bargaining representative, the Teamsters Union. UPS initiated a surveillance

investigation, observing Escanio on his delivery route on April 6 and the next five

consecutive workdays. On each day, he took a lunch break longer than sixty minutes.

On April 13, a supervisor again observed Escanio taking a lunch break in excess of one

hour. On all of these days, he reported taking a one-hour lunch.

Following UPS’s surveillance investigation, Escanio’s manager met with him,

charged him with being dishonest, and revoked his company ID card. UPS then met with

Escanio and his union representatives on April 15, 2009, discussed his extended lunch

breaks and his falsified time cards, stated that the reason for his discharge was

dishonesty, and terminated his employment.2

2
On the day his employment was terminated, Escanio sent a letter of complaint to
the UPS human resources department in Atlanta, Georgia, in which he alleged years of
mistreatment, discrimination, and harassment due to race and national origin. Escanio
alleged that on March 27, 2009, his manager stated that he would never have promoted
Escanio to the package car driver position. In that complaint, Escanio claimed that the
meeting on April 15, 2009, regarding his notice of discharge for dishonesty, was really
about Escanio’s “discrimination/harassment complaint” against the manager.

5
Escanio brought suit on May 11, 2009, in the Superior Court of New Jersey

against UPS, Tom Dowling, Rick Lezott, and Jeff O’Brien.3 In his complaint, he alleged

a claim of retaliation, in violation of the New Jersey Law Against Discrimination, N.J.

Stat. Ann. § 10:5-1 et seq., a claim of ethnicity and national origin discrimination, also in

violation of the New Jersey Law Against Discrimination, and claims for negligent and

intentional infliction of emotional distress. After discovery, UPS moved for summary

judgment on all of Escanio’s claims. On March 4, 2011, the court denied UPS’s motion

regarding the retaliation and discrimination claims, but granted it on the negligent and

intentional infliction of emotional distress claims, and it also dismissed the claims against

the individual defendants. Once the individual defendants were dismissed, which created

complete diversity of citizenship among the parties, UPS removed the matter to the

District Court on March 10, 2011.4 Without reopening discovery, and with leave of

3
To cover claims he wanted to make against unknown individuals and entities,
Escanio also named “John Doe” and “XYZ Corporation” as defendants.
4
That removal was apparently untimely, but Escanio did not move for remand.
Once diversity was established, UPS had thirty days to remove the action to the District
Court. 28 U.S.C. § 1446 (b)(3). Although UPS did that, because jurisdiction was based
upon diversity of citizenship, it could only remove within one year after the action was
filed, regardless of when diversity was finally established. Id. § 1446(c). And because it
removed the action almost two years after Escanio filed it, such removal was untimely.
But Escanio never moved to remand the matter, though he could have done so within
thirty days after removal. Id. § 1447(c). He thus cannot seek remand now, as it is
undisputed that jurisdiction was proper at both the time of removal and judgment. See
Grubbs v. Gen. Elec. Credit Corp., 405 U.S. 699, 700 (1972) (“We have concluded that,
whether or not the case was properly removed, the District Court did have jurisdiction of
the parties at the time it entered judgment. Under such circumstances the validity of the
removal procedure followed may not be raised for the first time on appeal … .”); Ariel
Land Owners, Inc. v. Dring, 351 F.3d 611, 616 (3d Cir. 2003) (“Because failure to
6
Court, UPS moved for summary judgment on Escanio’s retaliation and discrimination

claims. The Court granted UPS’s motion, concluding that Escanio could not prove that

his discharge was the result of retaliation for his complaints, nor could he prove that it

was the result of discrimination based upon his ethnicity and national origin.

Escanio filed this timely appeal.

II. Discussion5

Escanio presents two arguments in support of his request for reversal of the

District Court’s grant of summary judgment to UPS. First, he argues that the District

Court could not properly grant summary judgment because the New Jersey state court

had already denied summary judgment on the same claims, and the District Court was

thus precluded from deciding the issue again. Second, he argues that, on the merits, the

District Court erred when it concluded there was insufficient evidence from which a jury

could conclude that UPS discharged him either in retaliation for his complaints of

remove within the one-year time limit … is not a jurisdictional defect, a district court has
no authority to order remand on that basis without a timely filed motion.”).
5
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a). We have
jurisdiction pursuant to 28 U.S.C. § 1291. “Review of a district court’s decision to grant
a motion for summary judgment is plenary.” Liberty Lincoln-Mercury, Inc. v. Ford
Motor Co., 676 F.3d 318, 323 (3d Cir. 2012) (internal quotation marks omitted).
“[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ.
P. 56(c), which has since been re-numbered as 56(a), with the further change of the word
“issue” to “dispute”) (internal quotation marks omitted). A factual dispute is genuine “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In reviewing the
7
mistreatment or because of his ethnicity or national origin. We conclude that neither

argument has merit.

A. Preclusion

Escanio first argues that the doctrines of claim and issue preclusion apply here and

should have prevented the District Court from granting summary judgment to UPS.

Specifically, Escanio contends that because the New Jersey state court previously decided

UPS’s summary judgment motion on the same claims, with the same evidence, the

District Court was not allowed to provide UPS with “another bite at the proverbial

apple.” (Appellant’s Br. at 26.) He is wrong.

Neither claim nor issue preclusion prevented the District Court from deciding

UPS’s motion for summary judgment. Both of those doctrines require a previous

judgment in a separate case for such judgment to have preclusive effect. Tarus v.

Borough of Pine Hill, 916 A.2d 1036, 1050 (N.J. 2007) (providing that collateral estoppel

requires a judgment in a prior action); Velasquez v. Franz, 589 A.2d 143, 147 (N.J. 1991)

(explaining that claim preclusion requires a judgment in a prior action). But there is no

second case here, only the same case that was removed from state court to federal court.

Moreover, nothing prevents a judge from revisiting the denial of summary judgment in

the same case because that earlier denial is interlocutory, not final. Bines v. Kulaylat, 215

F.3d 381, 384-85 (3d Cir. 2000). Removal does not change the interlocutory nature of

the denial of summary judgment. See Gen. Inv. Co. v. Lake Shore & M. S. Ry. Co., 260

record, we must construe all reasonable inferences in the light most favorable to the
nonmoving party. Id. at 255.
8
U.S. 261, 267 (1922) (concluding that denial of a motion to dismiss for improper service

was interlocutory and district court could reconsider the same motion after removal).

Accordingly, the District Court was not precluded from deciding UPS’s motion.6

B. Merits

With respect to retaliation, to establish a prima facie case “a plaintiff must show

that: (1) the employee engaged in a protected employee activity; (2) the employer took an

adverse employment action after or contemporaneous with the employee’s protected

activity; and (3) a causal link exists between the employee’s protected activity and the

employer’s adverse action.” Abramson v. William Paterson Coll. of N.J., 260 F.3d 265,

286 (3d Cir. 2001) (footnote omitted).

Escanio has not shown a sufficient causal link between the protected activity and

his discharge. Shortly before his termination, on March 3, 2009, he filed a union

grievance that claimed he was being harassed by the manager of the Jersey City Center.

He filed another union grievance against management on April 1, 2009, alleging that he

was “disrespected and intimidated.” (App. at 206.) But the mere temporal proximity of

his termination to those complaints is insufficient, on its own, to demonstrate the required

causal nexus. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (“[T]he

mere fact that [an] adverse employment action occurs after [the protected activity] will

6
Escanio also invokes the Rooker-Feldman doctrine in an attempt to argue that the
District Court improperly decided UPS’s motion for summary judgment. He failed to
present that argument to the District Court. “We have consistently held that we will not
consider issues that are raised for the first time on appeal absent compelling reasons.”
Srein v. Frankford Trust Co., 323 F.3d 214, 224 n.8 (3d Cir. 2003) (internal quotation
9
ordinarily be insufficient to satisfy the plaintiff’s burden of demonstrating a causal link

between the two events.” (internal quotation marks omitted)). Only when the facts are

“unusually suggestive of retaliatory motive” may temporal proximity alone support an

inference of causation. Id. (internal quotation marks omitted). That is certainly not the

case here. It is true that Escanio made several complaints to UPS, but it is equally true

that after such complaints Escanio was promoted several times. Given Escanio’s history

of poor performance, and the fact that, shortly before his termination, UPS observed

Escanio repeatedly taking extended lunch breaks and falsifying time cards, his

termination is not “unusually suggestive of retaliatory motive.”

As for discrimination based upon ethnicity or national origin, “[t]he existence of a

prima facie case of employment discrimination is a question of law that must be decided

by the Court.” Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). That

prima facie case requires a showing that the “plaintiff (1) belongs to a protected class, (2)

was performing in the position from which [he] was terminated, (3) nevertheless was

fired, and (4) the employer sought someone to perform the same work after [he] left.”

Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1145 (N.J. 2005).

Escanio argues that the District Court erred in granting UPS summary judgment

on his claims of discrimination. In particular, he contends that he was “disciplined more

harshly as compared to his Caucasian/non Hispanic counter parts.” (Appellant’s Br. at

12.) Escanio relies on an affidavit provided by Raymond Antonio, a former UPS

marks omitted). Escanio has not identified any compelling reason in this case, and we
thus decline to consider his Rooker-Feldman argument.
10
employee, who was assistant shop steward for the Teamster Local No. 177 from 2004

until 2006 and then was shop steward from 2006 to 2008 and from February 2010 to

September 29, 2010. Briefly, Antonio’s affidavit describes three incidents in which non-

Hispanic employees extended their lunch hour but were not fired as Escanio was.

Antonio’s affidavit, however, consists entirely of inadmissible hearsay, see Fed. R.

Evid. 802, and thus cannot be relied upon to defend against a motion for summary

judgment, see Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009) (“Hearsay

statements that would be inadmissible at trial may not be considered for purposes of

summary judgment.”). The affidavit is a collection of information gleaned from union

grievances, and Escanio provides no argument that such evidence is not hearsay or that it

is subject to an exception to the hearsay rule.

Without that affidavit, Escanio has plainly failed to adduce sufficient evidence to

establish a prima facie case of discrimination. Indeed, he has no evidence that he was

fired because of his ethnicity or national origin. None of his complaints during his tenure

at UPS indicated that he was discriminated against based on his ethnicity or national

origin. The only complaint that did claim discrimination was penned on the day of his

termination. What is clear from the record is that Escanio’s performance as a driver was

lacking. He had had several confrontations with customers and was observed on several

occasions prolonging his route and lunch breaks and then falsifying his time records.

Escanio has simply failed to establish a prima facie case that his termination was based

on any discriminatory motive.

11
III. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.