Ellis v. United Parcel Service, Inc., No. 07-2811 (7th Cir. Apr. 29, 2008); Larson v. Winter, No. 07-5196 (D.C. Cir. Apr. 29, 2008)

| Apr 29, 2008 | Daily Developments in EEO Law |

An attack on Brown’s anti-fraternization policy on racial grounds falls flat in the Seventh Circuit, while the D.C. Circuit rings an end to a lawsuit challenging a putative “quota” system for chaplains in the U.S. Navy.

Ellis v. United Parcel Service, Inc., No. 07-2811 (7th Cir. Apr. 29, 2008) (attached below):  Mr. Ellis met his true love while working at UPS.  But their romance was forbidden — not for salacious or puritanical reasons, but because it transgressed the UPS code, which prohibits dating between managers like Mr. Ellis and hourly employees even when they are in different units.  Mr. Ellis (who dated and married fellow UPS employee Glenda Greathouse) lost his job for his infraction and sued, claiming that the rule was being applied in a racially-discriminatory fashion.

Ellis cited evidence in the record that, as a black man, he was singled out for dating a white woman:

“Employee relations manager Brenda Baker got wind of the relationship and apparently didn’t like it. She told Ellis’s direct supervisor, Angela Wade, that ‘there were plenty of good sisters out there,’ which Wade understood to mean that Baker, who is African-American, thought Ellis should be dating African-American women. Wade, we should also add, is an African-American. Later, Ellis testified at his deposition that Baker called him a ‘sell-out’ because he was dating Greathouse. . . .

“Wade reported the relationship to her supervisor, division manager Derick Craft. Craft, who is also an African-American, met with Wade and Ellis to discuss the relationship, and Ellis fessed up that he was dating Greathouse. Craft told Ellis that he was ‘crazy’ to date ‘the white girl from the call center,’ and he ordered Ellis to meet with Kenny Walker, the human resources manager for the Indiana district, the next day.”

But the Seventh Circuit affirmed summary judgment on Ellis’s claims, finding that the remarks quoted above came from non-decision makers and that no other evidence indicated that employees involved in same-race fraternization got better treatment under the same manager.  On a light-hearted note, author and romantic-at-heart Judge Terrence Evans closed out the opinion by twitting UPS for what sounds like a pretty foolish rule:

By all accounts, Ellis was a good employee. He started with UPS as a driver right out of high school in 1979 and worked his way up to a managerial position. After 21 years with the company, he met a woman, apparently fell in love, and, after a 4-year relationship, got engaged. A year later he got married. That’s a fairly nice story, and so is the fact that Ellis and his wife were smooching at a summer concert several months after their wedding. Heck, some marriages today don’t even last that long. Although UPS, for the reasons we have stated, comes out on top in this case, love and marriage are the losers. Something just doesn’t seem quite right about that.”

Larson v. Winter, No. 07-5196 (D.C. Cir. Apr. 29, 2008):  Five years into litigation, the D.C. Circuit appears to have cast the last decision in this systemic challenge to how the U.S. Navy selects chaplains.  In an earlier opinion in this case (Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 294-95 (D.C. Cir. 2006), the Court explained how the Navy classifies chaplains:

“The Navy divides its chaplains into four categories according to common faith group characteristics: Catholic, liturgical Protestant, non-liturgical Protestant, and ‘special worship.’ ‘Liturgical Protestant’ refers to Protestant denominations that trace their origins to the Reformation, retain an established liturgy in their worship services, and practice infant baptism; it includes Lutheran, Episcopal, Methodist, Presbyterian, and Congregational faiths. ‘Nonliturgical Protestant’ refers to Protestant denominations that do not have a formal liturgy or order in their worship services, that baptize only those who have reached the age of reason, and whose clergy generally do not wear religious vestments during services; it includes Baptist, Evangelical, Pentecostal, and Charismatic faiths.”

“‘Special worship’ refers to faith groups, both Christian and non-Christian, that have ‘unique or special needs for their worship and religious practices’; it includes Jewish, Christian Science, Seventh-Day Adventist, Mormon, Buddhist, Hindu, Moslem, Jehovah’s Witness, and Unitarian faiths.”

[Simpsons fans may recall in “Homer the Heretic” when the Rev. Timothy Lovejoy likewise categorizes Kwik-E-Mart manager Apu Nahaasapeemapetilon’s religion under “miscellaneous,” Apu sputters indignantly, “Hindu! There are 700 million of us!”  Rev. Lovejoy drawls, “Aw, that’s super.”]

The Navy, plaintiffs claimed, maintained a quota system (the “Thirds” policy) holding non-liturgical Protestants to one out of three hires.  The Navy admitted having unspecified targets, but stated that by 2001 (before the suit was filed) it had ceased to consider applicants’ faith groups.

The D.C. Circuit holds that the challenge to the policy was moot and that its jurisdiction was at an end.  First, there was no likelihood that the Navy would ever reinstate the challenged policy (“the Navy has never said it will reenact the Thirds Policy, and plaintiffs have not even alleged as much”).  Second, “any injunction or order declaring it illegal would accomplish nothing — amounting to exactly the type of advisory opinion Article III prohibits.”  Finally, the only other claim in the case — that “[t]he Navy has established and maintained an unconstitutional religious quota system” — was so underdeveloped that it could not separately support jurisdiction.  (A concurring judge would have found that a claim for “constructive credit” for years that they would have been employed [but for the alleged quota] presented a live claim, but was barred by sovereign immunity.)


tell us about your case


our office locations

Outten & Golden LLP
685 Third Avenue, 25th Floor  
New York, NY 10017  
Phone: 212-245-1000
Map and Directions

Outten & Golden LLP
One California Street, 12th Floor
San Francisco, CA 94111
Map and Directions

Outten & Golden LLP
601 Massachussetts Avenue NW
Second Floor West Suite 200W
Washington, DC 20001
Map and Directions