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BLACKBURN v. UPS

April 28, 1998

BENJAMIN BLACKBURN, Plaintiff,
v.
UNITED PARCEL SERVICE, INC. and PATRICIA KNOWLES, Defendants.



The opinion of the court was delivered by: BARRY

OPINION

 BARRY, District Judge

 This matter comes before the court upon the motion of defendants United Parcel Service, Inc. ("UPS") and Patricia Knowles ("Knowles") (collectively "defendants") for summary judgment pursuant to Fed. R. Civ. P. 56(b). For the reasons discussed below, defendants' motion will be granted and the complaint will be dismissed.

 I.

 The background facts are uncomplicated and undisputed. In June 1986, UPS hired plaintiff, Benjamin Blackburn, as a package car driver. After receiving several promotions over the ensuing six years, plaintiff was transferred in the Spring of 1992 to a division of UPS charged with the responsibility of pricing its products and services. Plaintiff's duties included the development of a flexible pricing project, which later became known as the "Incentive Administration System," or the "IAS project." In August or September of 1993, UPS promoted plaintiff to the position of Marketing User Representative in the Marketing Information Group in Mahwah, New Jersey. Among his duties as Marketing User Representative was management of the IAS project in New Jersey. Plaintiff's principal supervisor was Gary Hopwood ("Hopwood"), who was based in Atlanta, Georgia. Hopwood's supervisor was Nicholas Bain ("Bain"), who also was based in Atlanta, Georgia. Plaintiff remained as Marketing User Representative until he was terminated on September 29, 1994.

 The crux of this matter is the reason for UPS's decision to terminate plaintiff's employment. UPS maintained at that time, and continues to maintain today, that it terminated plaintiff because he violated the company's anti-nepotism, favoritism, integrity, and accountability policies. Plaintiff, on the other hand, contends that he was fired because he was a "whistleblower," in violation of New Jersey's Conscientious Employee Protection Act ("CEPA" or the "Whistleblower Act"), N.J.S.A. 34:19-1 through 34:19-8. *fn1" The facts surrounding these very different purported reasons for plaintiff's termination have given rise to this suit.

 A.

 UPS maintains and distributes to its management employees a Policy Book, which sets forth certain corporate, personnel, and operating policies and procedures. Since 1965, the Policy Book has contained some form of anti-nepotism policy. Affidavit of James Daniels ("Daniels Aff.") at PP 2-3. The 1992 version of the anti-nepotism policy, which was in effect during the events in question, stated as follows:

 
We Strictly Limit the Employment of Relatives. In order to help maintain equal opportunity of employment for the general public and equal opportunity of promotion for our employees, and in order to eliminate a possible source of pressure on our Human Resources managers and other management people, we strictly limit the hiring of relatives.
 
This policy helps us avoid misunderstandings, acts of favoritism, or the perception of favoritism that could arise were an employee in a position to influence the hiring, work, or advancement of a relative.
 
Therefore, we prohibit hiring -- for either full-time or part-time employment -- relatives of active employees and also relatives of former district managers or former managers with equivalent or higher levels of responsibility.
 
For the same reasons, we discourage continuation of the full-time or part-time employment of any employee who marries another employee while either person holds a management position in the same district, the same region office or Corporate Headquarters. In such cases, we will attempt to find a new assignment for one of these employees so that their positions will be geographically and organizationally separate. If we are unable to do so, the decision as to which spouse will remain with the company is left to the couple.

 Id. at Exhibit E (emphasis added).

 At the time of plaintiff's termination, the Policy Book also contained the following policies concerning favoritism, integrity, and accountability:

 
We Treat Our People Fairly and Without Favoritism. We believe that impartiality is the foundation of a loyal, cooperative work group.
 
We want to treat our people as individuals, but without causing the perception of special treatment.
 
We have the responsibility to avoid any relationship that may result in actual or perceived favoritism.

 MacGregor Aff., Exhibit 12 at 32.

 
We Insist Upon Integrity In Our People. We present our company honestly to employees and, in turn, expect them to be honest with us.
 
We expect honesty from our people in their handling of money, merchandise, and property with which they are entrusted. We insist on integrity in the preparation and approval of all reports.
 
We expect our people to be honest with respect to intangible things as well -- in the time, effort, and full performance of their jobs; in fair play in dealing with others; and in the acknowledgment of mistakes or other shortcomings.
 
The great majority of our people are of high moral character. However, when we do discover a dishonest person in our organization, we deal with that individual quickly and firmly. For our company to be known for its integrity, each one of us must meet high standards.

 Id. at 44.

 
We Are All Accountable for Compliance With Our Policies. As individuals, we do not have the authority to change or disregard any of our company's policies. We are expected to follow existing policies, even if not always in complete agreement with them. We must be careful not to misinterpret or violate a policy's spirit and intent. If in doubt, we should check with others for guidance.
 
To ensure a more complete understanding, we encourage discussion of our policies at our business meetings.
 
Our managers and supervisors set the example for carrying out our policies. They have accepted the responsibility of working toward the attainment of our Corporate Mission. They, therefore, are expected to lead the way for other UPS people -- by word and action -- in living up to our policies.

 Id. at 18. As a management employee, plaintiff received a copy of the Policy Book and was aware of each of the foregoing policies.

 Plaintiff married Loren Morrisey in April 1990. On September 29, 1993, Linda Shepard ("Shepard"), who is Loren Morrisey's sister and plaintiff's sister-in-law, applied for a job at UPS's Mahwah, New Jersey facility. In response to a question on her employment application, Shepard stated that she did not have any relatives who were employed by UPS. In December 1993, UPS hired Shepard as a Methods Analyst at its Mahwah, New Jersey facility. Plaintiff, who was aware that Shepard had applied for and obtained such a job, did not disclose their familial relationship to UPS. Additionally, plaintiff later recommended Shepard for other positions at UPS without informing those to whom he made the recommendations that Shepard was his sister-in-law.

 On September 14, 1994, UPS's Loss Prevention Department received an anonymous complaint, which was then forwarded to defendant Patricia Knowles of UPS's Human Resources Department at the Mahwah, New Jersey facility. The anonymous complaint purportedly claimed that plaintiff was Shepard's brother-in-law and expressed a concern that Shepard might receive a promotion due to plaintiff's influence. On September 15, 1994, Knowles confronted plaintiff about his relationship with Shepard. Plaintiff denied that he was "related" to Shepard, but admitted that he was married to her sister. Two weeks later, after further discussion among UPS management, Bain terminated plaintiff, purportedly because he violated UPS's anti-nepotism, favoritism, integrity, and accountability policies by not disclosing to UPS his relationship with Shepard.

 B.

 Plaintiff contends that the actual reason for his termination had nothing to do with his familial relationship with Shepard. Indeed, he maintains that he commuted with his sister-in-law to and from work, entered the building with her each morning, met with her occasionally for lunch and breaks, displayed prominently on his desk a picture of his wedding party, which included Shepard, and was otherwise open about their relationship. Although plaintiff apparently does not believe that Shepard should be considered his "relative," a term that is not defined in the UPS Policy Book, his principal argument in this regard is that UPS had not previously enforced its anti-nepotism policy, and did so in this instance only as a pretext for the real reason behind his termination: retaliation for his persistent complaints regarding UPS's pricing system. *fn2"

 Specifically, plaintiff contends that he was terminated because he verbally and by way of five written memos (four to Hopwood and one to Bain) complained about or, in plaintiff's word, "questioned" UPS's pricing practices. Pl. Dep. Tr. at 228. Because these conversations and memos will determine, in large part, whether plaintiff can survive the instant motion, they will be discussed in appropriate detail below. *fn3"

 In his deposition, plaintiff testified about conversations he had with several UPS employees, including John Sutthoff, Rich Cooley, Joe Pyne, and Hopwood. During these conversations, plaintiff testified, he expressed his belief or opinion that: (i) inadequate "resources ... were being devoted to the [IAS] project," Pl. Dep. Tr. at 310-11; (ii) "the project was going off the deep end," i.e., it was at a "standstill" and had "completely unraveled" in terms of management and direction, id. at 245; (iii) the pricing system was not functioning "the way it was supposed to function," id. at 246; and (iv) "management practices as they related to testing of the system were unsound and uncompleted." Id. at 247. Plaintiff further testified that he expressed his concern about whether UPS's pricing system "was in compliance with legal standards," id. at 331-32, and "where [the IAS] project was going with respect to anti-trust." Id. at 341. After one of his conversations with Hopwood, plaintiff told Hopwood that he would be developing a memo to further clarify his concerns. Id.

 The memo to which plaintiff referred -- a memo described by plaintiff as "more of a question than ... an objection," id. at 228 -- was sent to Hopwood on March 22, 1994, and stated as follows:

 
As per our recent phone conversation, I'm detailing here areas where I believe that we may run into significant problems with respect ...

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