S6 Ep129: Tahvio Gratton v. UPS- Race/Retaliation $39 million verdict

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This episode is part of my initiative to provide access to important court decisions  impacting employees in an easy to understand conversational format using AI.  The speakers in the episode are AI generated and frankly sound great to listen to.  Enjoy!

In a jaw-dropping legal outcome that's reverberating through corporate America, a former UPS driver won a staggering $39.6 million judgment in what began as seemingly routine workplace complaints about discrimination. 

This episode explores Tahvio Gratton's transfer to UPS's Yakima facility sparked a series of escalating conflicts that ultimately led to this landmark verdict. When a white supervisor repeatedly called Gratton "boy" during a ride-along—despite explicit objections—it marked just the beginning of what court documents describe as a pattern of discrimination and retaliation. Witnesses testified that managers openly discussed wanting to "get rid of" Gratton and warned other employees against associating with him.

The most fascinating aspect? Gratton's direct discrimination claims were actually dismissed before trial—yet his retaliation claims succeeded spectacularly. We examine how UPS's investigation into the incident leading to Gratton's termination became a crucial weakness in their defense. Their failure to interview a witness supporting Gratton's version of events and evidence suggesting a termination letter was drafted before the investigation concluded painted a damaging picture of predetermined outcomes.

This case delivers powerful lessons for both employees and employers: the critical importance of documentation, the legal strength of retaliation claims versus discrimination claims, and the potentially catastrophic financial consequences when companies fail to properly address workplace complaints. For anyone navigating workplace conflicts or managing employee relations, this episode provides essential insights into how seemingly routine conflicts can escalate into multi-million-dollar judgments when mishandled.

What workplace policies does your company have for handling discrimination complaints? Has this episode changed how you might approach documenting workplace issues? We'd love to hear your thoughts.

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For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Disclaimer: For educational use only, not intended to be legal advice.

Episode Transcript

Speaker 1 (00:00):
Welcome to the Deep Dive, the show where we take a
stack of your sources, articles,research our own notes and
really try to pull out the mostimportant nuggets of knowledge
to get you well-informed fast.

Speaker 2 (00:10):
And today we're plunging headfirst into a truly
staggering figure $39.6 million.

Speaker 1 (00:17):
Yeah, $39.6 million.
It's hard to even wrap yourhead around it.
Imagine a workplace dispute,you know, maybe starting small
but spiraling completely out ofcontrol into this massive legal
battle.

Speaker 2 (00:29):
And ending with a judgment.
For that amount it reallyspeaks volumes, doesn't it,
about the human cost, thefinancial cost, when things
escalate like this in theworkplace.

Speaker 1 (00:37):
It really does.
This isn't just some abstractnumber.
It's at the heart of our deepdive today.
It's at the heart of our deepdive today.
It represents years of complexallegations, fierce defenses and
the whole rigorous sometimesreally slow process of the legal
system.

Speaker 2 (00:51):
We're basically pulling back the curtain on a
very specific, very high stakeslegal case.
It involves a former UnitedParcel Service employee, tavio
Gratton, and his employer, thebig one, united Parcel Service
Inc.

Speaker 1 (01:03):
Exactly so.
It's not just about the money,though that's obviously grabbing
headlines.
It's about the you know thehuman story behind it and all
the really intricate legaldetails.

Speaker 2 (01:14):
And our guide for this journey.
The way we're getting into thisfascinating, complex story is
through the actual legaldocuments themselves.

Speaker 1 (01:21):
Right, We've got the plaintiff's initial complaint,
that's Gratton's filing, thenthe defendant's formal answer.
Ups's response.

Speaker 2 (01:28):
And then a really comprehensive court order on
summary judgment that's wherethe judge weighs in before trial
and finally the actual judgmentdocument itself.

Speaker 1 (01:37):
Yeah, and these aren't just dry, boring legal
texts.
You should think of them morelike a stack of insights.
They give you these unique,often conflicting perspectives
from both sides.

Speaker 2 (01:47):
And, crucially, from the court itself.
We get to see how the caseevolves, what the judge thought
was important, what evidenceactually mattered and maybe what
didn't.

Speaker 1 (01:56):
So our mission for you, our listener, is to unpack
all these documents, distill thereally key information and help
you understand the corearguments, the court's reasoning
and, ultimately, how it allturned out.

Speaker 2 (02:12):
We'll look at the different stories about what
happened, how the legal systemtries to untangle these kinds of
complex issues and maybe somesurprising facts that came out
along the way.

Speaker 1 (02:17):
Think of it as your shortcut to getting genuinely
informed about a real-world,high-stakes legal drama.
Enough detail so you can reallygrasp those aha moments that
shaped the conclusion.
So, uh, let's get started.
Okay, so our story really kicksoff with Tavio Gratton's
initial filing the plaintiff'scomplaint.
This is the document where helays out his side, his core

(02:40):
claims and what he was actuallyasking the court for.

Speaker 2 (02:42):
Right.
So Mr Gratton identified as ablack man, a former UPS employee
.
He brings this lawsuit seekinga few different things.
First, something calleddeclaratory judgment.

Speaker 1 (02:53):
What does that mean?
Exactly?

Speaker 2 (02:54):
It's basically asking the court to officially state
the rights and obligations ofeveryone involved, like make it
clear who was right and wrongunder the law.
Ok, he also sought equitablerelief.
That's non-monetary stuff.
Maybe asking UPS to changeinternal policies, that kind of
thing.

Speaker 1 (03:08):
And then the big one.

Speaker 2 (03:09):
And then the big one, significant monetary damages,
which is you know where thathuge $39.6 million figure
eventually comes in.
This is about gettingcompensated for harm.

Speaker 1 (03:21):
And looking at the bigger picture, this kind of
lawsuit is fundamentally abouttrying to secure or restore
rights, isn't it?

Speaker 2 (03:27):
Absolutely.
Gratton based his claims onsome very specific
anti-discrimination laws.
There's the Washington LawAgainst Discrimination WLAD they
call it.
That's a state law, ok.
Then there's a federal law, 42USC, section 1981.
People usually just say Section1981.
It guarantees equal rights,especially in contracts like
employment.

Speaker 1 (03:47):
And there was a third one too right, Something about
common law.

Speaker 2 (03:50):
Yeah, that's important Washington's common
law toward a wrongful dischargein violation of public policy.
This basically broadens thescope.
It suggests his firing wasn'tjust against a specific statute
but against fundamental publicpolicy, like the policy against
discrimination.

Speaker 1 (04:04):
So what were the specific allegations?
They sound pretty serious, theyare.

Speaker 2 (04:08):
He claimed that during his time at UPS, he faced
discrimination, was subjectedto a hostile work environment
because of his race and,crucially, was retaliated
against for engaging in legallyprotected activities.

Speaker 1 (04:21):
Like complaining about discrimination.

Speaker 2 (04:23):
Exactly Complaining, filing grievances, that sort of
thing.
He specified this involvedbeing discriminatorily and
retaliatorily denied jobopportunities and assignments,
not getting the same chances asothers.

Speaker 1 (04:35):
And the ultimate outcome he alleged.

Speaker 2 (04:37):
Unlawful termination Fired by UPS on October 19, 2021
, for reasons he claimed wereillegal.

Speaker 1 (04:44):
So, going back to the money damages, what exactly was
he asking for?
It sounds like more than justlost wages.

Speaker 2 (04:50):
Oh, definitely he sought monetary relief covering,
yes, his quantifiable financiallosses lost wages, benefits
that's called pecuniary damagesbut also the emotional toll, the
distress that's non-pecuniarydamages.

Speaker 1 (05:03):
Okay, that makes sense.

Speaker 2 (05:04):
Plus compensatory damages just generally making up
for his losses, andsignificantly punitive damages,
to the fullest extent the lawallows.

Speaker 1 (05:12):
Punitive damages.
That's like a punishment right,not just compensation.

Speaker 2 (05:15):
Exactly.
It signals he believed UPS'sactions weren't just wrong, but
maybe malicious, or at leastrecklessly indifferent to his
rights, bad enough to warrant afinancial penalty on top of
everything else All right, let'sdive into the timeline of
events, at least as Mr Grattonlaid them out in his complaint.

Speaker 1 (05:31):
Where did his UPS career start?

Speaker 2 (05:33):
He started back on September 26, 2016, as a cover
driver, then delivery driver inSeattle.

Speaker 1 (05:39):
Okay.

Speaker 2 (05:40):
Then, around January 2018, with about a year and a
half experience as a coverdriver, he transferred, moved to
the UPS center in Yakima,Washington.

Speaker 1 (05:49):
According to his complaint, this transfer to
Yakima is where the problemsreally started.

Speaker 2 (05:53):
Immediately.
Yeah, that's his claim.
He alleged that right away, upsmanagers, specifically an
on-road supervisor named MattFrumherz and the center manager,
eric Loomis, started treatinghim differently than his white
co-workers.

Speaker 1 (06:05):
How so?
What kind of differenttreatment?

Speaker 2 (06:07):
Well, frumherz, for example, was described as being
short with him, ignored him andspoke down to him, which
apparently contrasted sharplywith how Frumherz acted towards
white drivers, where he wasnoticeably friendly.

Speaker 1 (06:18):
Hmm, subtle stuff, but it can add up.

Speaker 2 (06:21):
It can, and Gratton alleged this different treatment
quickly impacted his actualwork.
His ability to earn From Hearstand Lemus handled scheduling
and routes and they allegedlygave Gratton less opportunity to
work than other cover drivers.

Speaker 1 (06:34):
Less opportunity.
How did that play out?

Speaker 2 (06:37):
He claimed he'd often show up at the center ready to
work, only to be laid off forthe day, meaning sent home
without work or pay because ofsupposedly insufficient volume.

Speaker 1 (06:46):
But wasn't there a system for that, like seniority?

Speaker 2 (06:48):
Exactly.
Union seniority rules usuallydictate that the lowest-ranking
drivers get laid off first, butGratton claimed he was often the
only cover driver who was laidoff.

Speaker 1 (06:58):
Even if less senior drivers were working.

Speaker 2 (07:00):
That's the allegation suggesting intentional singling
out even when work wasavailable.
He even claimed part-time cover.
Drivers sometimes gotpreference over him which would
violate those union seniorityrules.

Speaker 1 (07:11):
Wow, okay, any specific examples of this.

Speaker 2 (07:14):
Yes, the complaint details one from February 2018.
Another driver apparently askedGratton directly to cover a
route for him, but SupervisorFirmherz stepped in abruptly and
said no, not today, no reasongiven.

Speaker 1 (07:28):
Just, no Just no.

Speaker 2 (07:29):
And then around February 26th, grattan
apparently pressed Firmherzasking why he wasn't allowed to
cover that route, and Firmherzallegedly replied with something
really problematic.

Speaker 1 (07:40):
What was it?

Speaker 2 (07:41):
Because you didn't come and ask me like a man.

Speaker 1 (07:44):
That's loaded.

Speaker 2 (07:46):
Extremely Grattan immediately objected according
to the complaint, saying that isbelittling and attacking of my
character.

Speaker 1 (07:53):
And did he report this?

Speaker 2 (07:55):
He did.
He reported it to the centermanager, eric Loomis, but
according to Grattan, loomis didnot seem concerned and gave no
true response, just indifference.

Speaker 1 (08:03):
That alleged indifference from management
seems like a recurring themeearly on.

Speaker 2 (08:06):
It does seem to set a pattern in his narrative.

Speaker 1 (08:08):
So things clearly weren't going well.
What happened next?
Did he take formal action?

Speaker 2 (08:19):
He did.
On April 19th 2018, he filed aformal complaint, a grievance
likely through the union, aboutbeing laid off without the
proper compensation that unionrules apparently required, okay,
a formal step.

Speaker 1 (08:26):
Did that have any effect?

Speaker 2 (08:27):
It did have one immediate effect.
As a direct result, the centermanagers were required to start
posting a weekly list of driverroute assignments.

Speaker 1 (08:35):
Ah, so more transparency.

Speaker 2 (08:37):
Supposedly, but here's where a key piece of
alleged evidence emerged forGratton.
This newly posted list, heclaimed, actually revealed that
he was the only driver who wasactually not being allowed to
work.
Others listed for layoff werestill getting hours somehow.

Speaker 1 (08:51):
So the list itself became evidence of the alleged
singling out.

Speaker 2 (08:55):
That's what he argued , yeah, and he claimed that
filing this complaint just ledto more problems.
Further on doing retaliation.

Speaker 1 (09:01):
How so.

Speaker 2 (09:01):
Oof, turning his co-workers against him Exactly.
Grattan claimed it was adeliberate attempt at public
shaming, trying to createfrustration by other drivers
towards Mr Gratton, basicallyisolating him.

Speaker 1 (09:24):
OK, so that brings us to a really significant
incident, detailed in thecomplaint the ride along on
April 24th 2018.
What happened there?

Speaker 2 (09:32):
Right, this is a major one.
So management assigned Grattona ride along with another
manager, sam O'Rourke.
This is supposed to be astandard thing A manager
observes a driver on their route.

Speaker 1 (09:43):
Pretty routine procedure usually.

Speaker 2 (09:45):
Usually, but Gratton alleged this one turned into
something else entirely.
He claimed O'Rourke, who isdescribed as white and younger
than Gratton, subjected him toracial harassment throughout the
day.

Speaker 1 (09:56):
Racial harassment.

Speaker 2 (09:58):
Repeatedly calling him boy.
Among other things, thecomplaint lists specific
examples.

Speaker 1 (10:03):
Like what.

Speaker 2 (10:03):
Things like is this the hardest you've ever worked?
Boy, move faster.
Boy, let's go.
Boy, I told you to hurry.

Speaker 1 (10:09):
Wow, that term boy used like that incredibly
offensive.

Speaker 2 (10:13):
Deeply offensive, yeah, especially directed at a
black man by a white man in aposition of authority.
There were also allegedoffensive sports references like
boy, why would I play you whenI have a star running back?
And after Gratton apparentlyran to drop off a package,
o'rourke exclaimed there we go,boy.
That's what I like to see.

Speaker 1 (10:33):
Did Gratton just take this, or did he push back?

Speaker 2 (10:37):
According to the complaint, he pushed back and
early on he directly confrontedO'Rourke, asking why are you
calling boy?
I'm not your boy.

Speaker 1 (10:46):
Good for him.
What did O'Rourke say?

Speaker 2 (10:48):
O'Rourke's alleged response was I'm from the South,
that's how I talk.

Speaker 1 (10:52):
Oh, that old excuse.

Speaker 2 (10:54):
Right, and Grattan apparently came back strong,
saying something like no blackman in the South would be okay
with you talking to him that way, and I am not okay with it, so
stop calling me that.

Speaker 1 (11:02):
A clear message.
Did O'Rourke stop?

Speaker 2 (11:04):
Allegedly no.
Despite Gratton's clearopposition, o'rourke kept
calling him boy and speakingdemeaningly, even in front of
customers.

Speaker 1 (11:12):
In front of customers .
Was there anyone else who sawthis?

Speaker 2 (11:15):
Yes, and this is crucial.
The complaint mentions aneyewitness, a Foot Locker
employee who saw some of theinteraction during a delivery.

Speaker 1 (11:24):
What did the witness say?

Speaker 2 (11:25):
The witness described O'Rourke's conduct as shocking.
Said O'Rourke was talking toTavio in a very condescending
tone, barking orders andrepeatedly calling him boy.

Speaker 1 (11:36):
And did the witness think it was race-related?

Speaker 2 (11:38):
Yes, the witness felt certain that this supervisor
was talking to Tavio this waybecause he is black.
The witness also mentionedGratton was working really
efficiently and hard,contradicting any reason for
criticism, and apparently at theend of that delivery the
supervisor said I got this boyworking.

Speaker 1 (11:56):
That eyewitness account sounds incredibly
damning.

Speaker 2 (11:59):
It adds significant weight to Gratton's allegations.
Definitely an independentobserver seeing it that way.

Speaker 1 (12:03):
So after this ride-along, what did Gratton do?
Did he report it again?

Speaker 2 (12:07):
Immediately, Upon returning to the center, he
reported O'Rourke's conductstraight to the center manager,
Eric Loomis.
He said I'm not going onride-alongs with your managers
if they are going to be racist.
Samuel O'Rourke was calling meboy the whole time.

Speaker 1 (12:21):
And Loomis' response, this time still indifferent.

Speaker 2 (12:29):
Loomis allegedly replied that's just how he talks
, and then just turned away.

Speaker 1 (12:33):
Unbelievable.
How did this affect Gratton?

Speaker 2 (12:36):
The complaint says it caused him severe humiliation
and distress, to the point wherehe apparently broke down crying
in his car before driving homethat day.
It really highlights the deeppersonal impact these alleged
events had.
So these events, particularlythe ride-along and the report to
Loomis, seem to mark a turningpoint in Gratton's narrative.
He alleges things got worseafterwards, describing ongoing

(12:59):
retaliation, including opendisplays of hostility.

Speaker 1 (13:03):
Open hostility Like what.

Speaker 2 (13:05):
Well, there's a really vivid example from May 25
, 2018.
The complaint calls it the getthe F off the property incident.

Speaker 1 (13:11):
Okay, tell me about that.

Speaker 2 (13:12):
Gratton was off duty at the center picking up a
personal package.
An on-road supervisor from hersthe same one from earlier
incidents allegedly yelled athim then get the F off the
property and repeated it whenGratton questioned him.

Speaker 1 (13:24):
Just yelled that at him while he was off duty.

Speaker 2 (13:26):
That's the claim, and Gratton added he had never seen
from hers treat anotheremployee that way, suggesting it
was targeted personal hostility.

Speaker 1 (13:36):
So the alleged retaliation continued after that
.

Speaker 2 (13:38):
Yes, gratton claimed he started being laid off even
more than before, and SupervisorO'Rourke, the one from the
ride-along now apparentlyrefused to even acknowledge or
speak to him.
Just a complete shunning, wow.

Speaker 1 (13:51):
Did Gratton file more complaints?

Speaker 2 (13:53):
He did.
In June 2018, he filed moregrievances about O'Rourke's
alleged racial harassment, aboutFremher's yelling at him and
about being denied workopportunities when work was
clearly available.

Speaker 1 (14:04):
Like what kind of work?

Speaker 2 (14:05):
For instance, he claimed managers were delivering
misloads packages that ended upon the wrong truck themselves,
while he, Gratton, was laid off,which violated his eight-hour
work guarantee under the unioncontract.
This pattern of him filingcomplaints is really central.

Speaker 1 (14:19):
It seems like every complaint just led to more
alleged problems.

Speaker 2 (14:23):
That's the narrative which brings us to the route
assignments.
Craton alleged he was given aworse schedule and driving
routes than his white colleagues.
Specifically, he kept gettingassigned the really undesirable
mall route.

Speaker 1 (14:38):
The mall route.
What was so bad about it?

Speaker 2 (14:41):
Described as the bulkiest route, often needed
more than one truck.
Hard to finish quickly,especially with lots of heavy
pickups later in the day.
The complaint states plainlynobody likes the mall route and
it's the only one.
They would let Tavio do.

Speaker 1 (14:54):
Just that one route over and over.

Speaker 2 (14:57):
That's the allegation which raises questions.
You know about how routes areassigned and if the system can
be manipulated to punish someone.

Speaker 1 (15:04):
And it wasn't just getting the route, was it?
There was something abouttrying to stop him from even
getting it in the first place.

Speaker 2 (15:08):
That's right, he alleged center manager Eric
Loomis actually tried to preventhim from winning the mall route
bid when it became available.
Loomis apparently asked a moresenior white driver, Brandon
Ward, to bid on it specificallybecause, according to what Ward
allegedly told a witness later,they didn't want to have to give
Tavia work and wanted to keephim laid off.

Speaker 1 (15:28):
So actively trying to block him from getting a
permanent route, even a bad one.

Speaker 2 (15:33):
That's the claim, but Ward reportedly refused telling
the witness.
It's not a good route, soGratton ended up getting it.

Speaker 1 (15:41):
Okay, so he got the bad route, despite their alleged
efforts.
Did things improve then?

Speaker 2 (15:47):
According to the complaint, no.
Loomis and Frumherst thenallegedly purposefully made his
route longer, added out of theway stops to it and then
criticized him for taking toolong to complete it.

Speaker 1 (16:00):
Setting him up to fail basically.

Speaker 2 (16:01):
That's the inference.
And again there's witnesstestimony mentioned Setting him
up to fail.
Basically that's the inference.
And again there's witnesstestimony mentioned A witness
apparently specificallyremembered a conversation after
Gratton's grievance forced theschedules to be posted.

Speaker 1 (16:10):
What was the conversation?

Speaker 2 (16:11):
Matt Frumbers allegedly said I'll do anything
to not work.
Tavio and Eric Loomis noddedand agreed.
The supervisors then supposedlydecided to pile the work on him
.
If we're going to work him,let's make him work.

Speaker 1 (16:25):
How did they do that?

Speaker 2 (16:26):
By making his pickup load much heavier than that of
other drivers and then unfairlycriticizing him for being slow,
even though, according to thewitness, he actually took less
time than others had on the sameroute with heavier loads.

Speaker 1 (16:40):
And what did this witness think of Gratton as an
employee?

Speaker 2 (16:43):
Described him as an excellent employee Hardworking,
polite, on time and eager to dohis job With a great attitude,
taking a lot of pride in being astand-up employee.
The witness found it sad he hadto file grievances just to get
put onto the schedule at all.
Adding, I never saw a whitedriver having to do this.
That comparison is pretty stark.

Speaker 1 (17:02):
It really is, and the alleged targeting wasn't just
about work assignments, was it?
There was other scrutiny.

Speaker 2 (17:09):
Right Loomis allegedly treated Gratton with
open disdain in front of otherdrivers, singled him out for
small common issues and,publicly shaming him, called him
out repeatedly on loudspeakerfor discriminatory scrutiny.

Speaker 1 (17:21):
Any examples of that?

Speaker 2 (17:23):
Yeah, Things like being reprimanded for visible
tattoos or for wearing a sweater, While allegedly many white
drivers also had visible tattoosand were not called into the
office or wore sweaters withoutissues.
It paints a picture of applyingrules differently based on who
the employee was, and this is areally important part of the
complaint.
It wasn't just about Gratton.

(17:43):
He alleged a pattern ofdiscrimination against other
Black employees too.
This helps build the case thatit wasn't just a personal
conflict but potentiallysomething systemic.

Speaker 1 (17:53):
OK, what examples did he give for other employees?

Speaker 2 (17:55):
Well, there was Travis Anderson, another Black
driver.
Loomis allegedly tried to forcehim to cut his hair right after
Anderson filed a complaintabout incorrect pay.

Speaker 1 (18:04):
But had he always had long hair?

Speaker 2 (18:06):
Yes, throughout his employment, apparently, and
white drivers were permitted tohave long hair.
Loomis also allegedlyreprimanded Anderson for visible
tattoos again, while whitedrivers supposedly weren't
hassled about theirs.

Speaker 1 (18:19):
So similar issues to what Gratton claimed he faced
Any others?

Speaker 2 (18:23):
Yeah, another black driver.
Xavier Briggs Loomis allegedlyrequired him to scratch.
That means successfullycompleting a route within a set
time five times to pass hisprobationary period, a
requirement apparently notimposed on white drivers.

Speaker 1 (18:39):
Five times.
That sounds excessive.

Speaker 2 (18:41):
It does, and a complaint goes on to describe
more general disparate treatmentwhite drivers getting superior
routes and workloads, blackdrivers like Gratton being
criticized for taking too longon routes that were overloaded
and not being allowed to removestops, like white drivers
sometimes were.

Speaker 1 (18:57):
So it wasn't just about getting work, but the kind
of work and the support given.

Speaker 2 (19:01):
Exactly, and there's more.
When black drivers finish theirown routes, they are allegedly
required to go back out and helpthe white drivers finish theirs
and deliver misloads, but whitedrivers were seldom asked to do
the same for black drivers.

Speaker 1 (19:15):
Hmm, that sounds like an unequal distribution of the
less desirable tasks.

Speaker 2 (19:19):
That's the allegation and, like Grattan, other black
drivers were also often paidincorrectly, leading to more
grievances.
So the complaint paints thispicture of broader systemic
issues affecting multiple Blackemployees, providing crucial
context for Grattan's individualclaims.

Speaker 1 (19:37):
So, despite all this alleged hostility and disparate
treatment, grattan kept pushingback.

Speaker 2 (19:42):
According to the complaint, yes, he continued his
opposition, standing up notjust for himself but also as
well as other black drivers.
He apparently assisted them infiling complaints and advocating
for fair treatment.

Speaker 1 (19:54):
He took on an advocacy role.
It sounds like.

Speaker 2 (19:56):
It seems so, and on June 11, 2020, he filed another
written complaint, this onespecifically about being singled
out and scrutinized for issuesthat white employees weren't
disciplined for.

Speaker 1 (20:05):
Did he explicitly mention race in that complaint?

Speaker 2 (20:09):
Yes, very explicitly.
He wrote this has been anoticeable issue with Eric
Loomis on his overly negativeand prejudiced choice of
discipline toward his blackemployees.
Pretty direct language.

Speaker 1 (20:20):
And how did management allegedly react to
this continued opposition?

Speaker 2 (20:25):
With, perhaps unsurprisingly, further
hostility and retaliation.
The complaint states it was nosecret that they wanted to fire
him.

Speaker 1 (20:33):
Any evidence of that desire to fire him.

Speaker 2 (20:35):
A witness reported something quite chilling.
Center manager Loomis allegedlywarned this witness in his
truck that associating with MrGratton would cause you a lot of
problems in your UPS career.

Speaker 1 (20:46):
Wow, trying to isolate him even further.

Speaker 2 (20:48):
And Loomis apparently also asked this witness if he
had seen anything Gratton wasdoing wrong, allegedly fishing
for information to use againsthim.

Speaker 1 (20:55):
So building a case possibly.

Speaker 2 (20:57):
That's the implication which leads to the
final act described in thecomplaint.
Ups unlawfully terminated MrGratton's employment on or about
October 19th 2021.

Speaker 1 (21:09):
And Gratton's position on the reasons UPS gave
for firing him.

Speaker 2 (21:12):
That they were false and protectual.
Just an excuse.
Basically, he asserted the realreasons were his race, his
protected activity like filingall those complaints, and that
the termination violatedWashington public policy against
discrimination and for properwage payment.
That's the core of his wrongfultermination.
Violated Washington publicpolicy against discrimination
and for proper wage payment.
That's the core of his wrongfultermination claim.

Speaker 1 (21:30):
OK, that was a detailed look at Mr Gratton's
side of the story laid out inhis gotcha.
Anything else notable in theiroverall response?

Speaker 2 (21:37):
Well, there was a slight corporate nuance.
They clarified.
Ups stated that the entity thatactually employed Gratton was
the Ohio Corporation of UPS.
Entity that actually employedGrattan was the Ohio Corporation
of UPS, which is a subsidiaryof the perhaps more well-known
Delaware Corporation, alsocalled UPS.

Speaker 1 (21:52):
What does that matter ?

Speaker 2 (21:53):
It can sometimes matter for liability or
jurisdiction, especially in hugecompanies with complex
structures.
They specified this answer wasfiled on behalf of that Ohio
entity.
Just a detail but shows thecorporate complexity.

Speaker 1 (22:05):
Okay, but despite the broad denials, did UPS admit
anything?
Were there points of agreement?

Speaker 2 (22:11):
Yes, there were key admissions.
They admitted the basicemployment facts that Tavio
Gratton is a former UPS employeeand you know upon information
and belief a black man.
Right.
The court had jurisdiction overthe federal claims and
supplemental jurisdiction overthe state claims.
They agreed venue was properbecause they do business and
employed Gratton in the EasternDistrict of Washington.

(22:32):
Basic procedural stuff.

Speaker 1 (22:34):
What about the timeline in his role?

Speaker 2 (22:36):
They admitted employing him as a packaged car
driver from September 26, 2016until October 27, 2021.
Note that date is slightlydifferent from the one Gratton
used, but close.
They admitted he worked inSeattle before transferring to
Yakima.

Speaker 1 (22:52):
And the union contract, the CBA.

Speaker 2 (22:54):
Crucially.
Yes, they admitted thatpackaged car drivers work is
governed by a collectivebargaining agreement, the CBA,
and they admitted that workassignments and layoffs are
subject to the CBA's seniorityprovisions.
This becomes really importantlater.

Speaker 1 (23:08):
Okay, what about all the grievances Gratton filed?
Did they admit those happened?

Speaker 2 (23:12):
They admitted some specific ones.
They admitted he pursued agrievance in April 2018 about
compensation on layoff days.

Speaker 1 (23:19):
The one that led to the schedules being posted.
That's the one.

Speaker 2 (23:21):
They admitted that grievance was resolved and UPS
agreed to start posting thoseweekly route assignments in
Yakima.
They also admitted he pursuedgrievances about alleged CBA
violations on other occasions.

Speaker 1 (23:32):
more generally, and the ride-along incident.

Speaker 2 (23:34):
They admitted that ride-alongs happened
periodically and that SamO'Rourke did ride along with
Gratton on or about April 25,2018.
They even admitted O'Rourke iswhite and about three years
younger than Gratton, but,importantly, they denied the
harassment allegationsassociated with it.

Speaker 1 (23:51):
What about the incident where Fremhers
allegedly yelled at him?

Speaker 2 (23:54):
The May 25, 2018 incident.
They admitted Gratton was atthe Yakima Center that day off
duty looking for a personalpackage in a delivery truck.
They admitted Fremhersinstructed him to get it at the
will call window instead to leton-duty employees work.

Speaker 1 (24:09):
But did they admit the yelling, the get the F off
part?

Speaker 2 (24:12):
No On that specific point.
They said UPS was withoutsufficient knowledge to form a
belief as to the truth orfalsity as to the exact
conversation, which basicallyimplies a dispute over what was
actually said, a denial.

Speaker 1 (24:24):
Okay, any other admissions?

Speaker 2 (24:25):
They admitted he filed a grievance in June 2018,
claiming Fromherse showed norespect or dignity during that
May 25th incident and,critically, they admitted they
terminated Gratton's employmenton October 27th 2021.
So they acknowledge the keyevents happened the hiring, the
transfer, the ride-alonggrievances, the termination but

(24:46):
they dispute the reasons and thecharacterizations of those
events.

Speaker 1 (24:50):
Right, so admitted, the facts denied the meaning.
What about the vast majority ofGrattan's specific factual
claims, like being singled out,the boy comments route,
manipulation, discriminationagainst others?

Speaker 2 (25:03):
For most of those specific damaging allegations,
ups generally used blanketdenial language like denies the
allegations contained in thisparagraph.

Speaker 1 (25:11):
Just a flat denial.

Speaker 2 (25:12):
Pretty much, or, as with the FromHers conversation,
sometimes they'd state they werewithout sufficient knowledge to
form a belief as to the truthor falsity and therefore denied
it on that basis.
This covered things likeGrattan's current residence or
the exact words used in certainconversations.
It forces Grattan to proveevery detail.

Speaker 1 (25:29):
And did they respond to the legal claims themselves,
like violatinganti-discrimination law?

Speaker 2 (25:34):
Yes, they asserted that some parts of the complaint
were just legal conclusions towhich no response is required.
But if a response was required,they denied any unlawful
conduct was required.
They denied any unlawfulconduct denied violating RCW
49.6, the WLAD and denied thatGrattan was owed any unpaid
wages.
A full denial of legalwrongdoing.

Speaker 1 (25:55):
So, beyond just denying Grattan's claims, how
did UPS try to proactivelydefend itself?
Did they raise specific legalarguments to block the lawsuit?

Speaker 2 (26:04):
Absolutely.
This is where their affirmativedefenses come in.
These are arguments UPS makes,saying essentially, even if some
of what Gratton claims is true,there's a legal reason why he
still shouldn't win.
It's their proactive shield.

Speaker 1 (26:15):
Okay, what were some of these shields?

Speaker 2 (26:16):
Well, first, just repeating the general denial of
anything not admitted.
Second, a standard defensefailure to state a claim,
Basically arguing that Gratton'scomplaint, even if you read it
generously, doesn't actuallydescribe a legally valid case
that could result in relief.

Speaker 1 (26:30):
Like the facts alleged, don't add up to illegal
discrimination or retaliationunder the law.

Speaker 2 (26:35):
Precisely.
Then comes a really criticalone in any discrimination case
Legitimate non-discriminatoryreasons.

Speaker 1 (26:43):
Oh, this sounds important.

Speaker 2 (26:45):
It is.
Ups argued that all its actionsrelated to Grattan were done in
good faith and based onlegitimate, non-discriminatory
and non-retaliatory factors,unrelated to any unlawful
purpose or bias.
They claimed everything wasdone for good cause, based on
their reasonable businessjudgment.

Speaker 1 (27:04):
So they're saying, even if things looked bad to
Grattan, there was a valid,non-biased business reason
behind it.

Speaker 2 (27:09):
Exactly that's the core defense against the
discrimination and retaliationclaims.
Then they raised mitigation ofdamages.
What's that?
It means that if Gratton didsuffer damages like lost wages,
his claims should be reduced orbarred if he didn't take
reasonable steps to minimizethose damages, Like if he didn't
try hard enough to find acomparable job after being fired
.

Speaker 1 (27:29):
OK, so blaming him for not reducing his own losses?
What else?

Speaker 2 (27:33):
Timing defenses.
They argued his claims might bebarred by statutes of
limitations, timeliness orlashes, basically saying he
waited too long to file hislawsuit according to legal
deadlines.

Speaker 1 (27:41):
Makes sense Any others.

Speaker 2 (27:43):
Yes, waiver and Doris Stoppel.
Any others?
Yes, waver and Doris Doppel.
This suggests Gratton mighthave given up his right to sue,
maybe by settling earlier uniongrievances, or that he took
inconsistent positions thatshould prevent him from suing
now.

Speaker 1 (27:57):
Like saying one thing in a grievance and another in
court.

Speaker 2 (28:00):
Potentially, yeah.
They also argued alternativecausation of distress, claiming
any emotional distress Grattonsuffered wasn't caused by his
employment at UPS but by otherfactors in his life and unclean
hands a defense arguing Grattonshouldn't get relief because of
his own alleged misconduct.

Speaker 1 (28:19):
OK, quite a few there .
Anything related to the unioncontract.

Speaker 2 (28:22):
Yes, a big one.
Federal labor law preemption,they argued.
Gratton's claims were preemptedor blocked by federal labor
laws like the National LaborRelations Act.

Speaker 1 (28:31):
What does preemption mean here?

Speaker 2 (28:33):
It means they were arguing that because his
employment was governed by aunion contract, the CBA disputes
related to it should be handledunder federal labor law and the
CBA's grievance procedures, notthrough state
anti-discrimination lawsuits,Essentially trying to move it
out of the court and into alabor context.

Speaker 1 (28:50):
Interesting.
Ok, what else was in theirdefensive arsenal?

Speaker 2 (28:53):
The after acquired evidence defense.
This is interesting.
It means that even if UPS firedhim for an illegal reason, if
they later found out about somemisconduct Gratton committed
before he was fired that theydidn't know about at the time
and that misconduct would havegotten him fired anyway, then
his damages should be limited orbarred.

Speaker 1 (29:14):
So, like finding out later, he lied on his
application.

Speaker 2 (29:16):
Exactly like that.
It's a defense that cansignificantly reduce damages, if
proven.
They also argued scope ofmanagerial authority.

Speaker 1 (29:25):
What's that about Limiting blame?

Speaker 2 (29:27):
Sort of.
They claimed any wrongful actsby their managers or supervisors
were outside the scope ofhisher authority, not authorized
or condoned by UPS corporateand UPS didn't know, or
shouldn't have known about themtrying to distance the company
itself from individual managers'alleged bad actions.

Speaker 1 (29:44):
Separating the managers from the company.

Speaker 2 (29:46):
Then failure to exhaust administrative remedies,
arguing he didn't properly gothrough the required steps with
agencies like the EEOC beforefiling the lawsuit.
Yeah, and a general claim oflawful good faith conduct,
saying UPS acted reasonably andlawfully without any intent to
deprive Gratton of his rights.

Speaker 1 (30:06):
And they left the door open for more defenses.

Speaker 2 (30:08):
Yes, they included a reservation of rights to add
more defenses later as theydiscovered more information
during the case.
Standard practice but showsthey were keeping options open.

Speaker 1 (30:18):
So what did UPS ultimately ask the court to do?

Speaker 2 (30:21):
In their prayer for relief, they asked the court to
dismiss Gratton's complaintentirely, deny all his demands
and claims and make Gratton payUPS's reasonable attorney's fees
and costs for having to defendthe lawsuit.
A complete rejection of hiscase.

Speaker 1 (30:34):
All right.
So we've got Gratton's detailedallegations in the complaint
and UPS's comprehensive denialsand defenses in the answer.
A clear conflict.
Now let's move to a reallycritical stage the court's order
on summary judgment.

Speaker 2 (30:47):
Yes, this is where the judge steps in, looks at the
evidence gathered by both sidesbefore a potential trial and
decides if there's enoughgenuine dispute about the
important facts to actually needa trial.
So, the judge isn't decidingwho's right or wrong, yet Not
exactly.
The judge is asking based onthe evidence presented so far
depositions, documents,affidavits could a reasonable

(31:08):
jury possibly find in favor ofthe party opposing the motion?
If the answer is clearly no fora particular claim, the judge
can dismiss that claim rightthere, grant summary judgment.

Speaker 1 (31:18):
Okay, and in this case both sides filed motions.

Speaker 2 (31:22):
They did.
Plaintiff Gratton filed forpartial summary judgment on some
issues and defendant UPS filedfor summary judgment on likely
all the claims.

Speaker 1 (31:29):
And what was the outcome?
Did one side win?

Speaker 2 (31:32):
It was split.
The court order saysplaintiff's motion was granted
in part and defendant's motionwas granted in part.

Speaker 1 (31:38):
So a mixed bag Some claims move forward, some get
dismissed.

Speaker 2 (31:42):
Exactly it means the judge found for some claims or
defenses there was no genuinedispute as to any material fact,
so they could be decidedlegally right then.
But for others there was enoughconflicting evidence or
credibility issues that they hadto proceed to a trial for a
jury to decide.

Speaker 1 (31:58):
Makes sense.
How did the court summarize thebackground facts leading up to
this point?

Speaker 2 (32:03):
The judge provided a neutral summary.
Confirmed Gratton's workhistory.
Started UPS SEP 2016 in Seattle.
Transferred to Yakima about twoyears later.
Confirmed his employment wasgoverned by the Teamsters
Collective Bargaining Agreement,cba, which included grievance
procedures and noted tensionsarose in Yakima.

Speaker 1 (32:22):
What specific tensions did the court highlight
?

Speaker 2 (32:25):
It mentioned the April 20, 2018 grievance about
layoffs, summarized Gratton'sclaim of frequent layoffs
violating hour guaranteesfavoring less senior white
drivers and noted UPS'scounterargument Layoffs were
seniority-based.
Gratton was junior due to thetransfer, and sometimes he
failed to respond to work calls,which Gratton disputed.

Speaker 1 (32:43):
And the resolution of that grievance.

Speaker 2 (32:45):
The court noted it was resolved with UPS starting
to post schedules and Grattonreceiving some back wages.
An early dispute with a partialresolution.

Speaker 1 (32:54):
OK.
What about the ride-alongincident?
How did the court describe that?

Speaker 2 (32:58):
The judge summarized the court allegation Supervisor
Sam O'Rourke repeatedly calledGratton boy on April 25, 2018,
using offensive phrases, notedGratton asked him to stop.
O'rourke allegedly refused andboth Gratton and a customer
witness were offended by theracial undertones.

Speaker 1 (33:17):
And the reporting to Loomis.

Speaker 2 (33:18):
The court included that too.
Gratton reported it to centermanager Loomis, whose initial
alleged response was that's justthe way Sam talks.
But the court also noted Loomislater conceded response was
that's just the way Sam talks.
But the court also noted Loomislater conceded in deposition
that the language coulddefinitely be perceived as
racist, even if he didn't thinkO'Rourke intended it that way.
Loomis claimed he had aninformal talk with O'Rourke.

Speaker 1 (33:38):
So some acknowledgement from Loomis
later on, but maybe notinitially.

Speaker 2 (33:42):
Seems that way from the summary.
The court also covered thealleged retaliation after
Gratton reported O'Rourke Gr.
That away from the summary.
The court also covered thealleged retaliation after
Gratton reported a RourkeGratton claiming Loomis and
Fromhers retaliated with verbalabuse and denying work Including
those specific incidents thelike a man comment yes,
summarized, fromhers is allegedbecause you didn't come and ask
me like a man comment, whichFromhers denied.
And the get the F off incident,which Fromhers also disputed,

(34:06):
claiming Gratton was interferingwith deliveries.
The court noted Grattonreported these to Loomis, who
allegedly failed to act, leadingto Gratton filing more
grievances in June 2018.

Speaker 1 (34:17):
What about the claim that managers were trying to
find reasons to fire him?

Speaker 2 (34:21):
The court summarized that allegation, too, gratton,
claiming that after the June2018 grievances, supervisors
started looking for reasons tofire him.
Documenting minor things like aslightly long lunch break.

Speaker 1 (34:33):
And the witness accounts about wanting him gone.

Speaker 2 (34:35):
Yes, the court mentioned Supervisor Michelle
Reyes and employee Lisa Irvinereportedly overheard from hers
and Loomis expressing a desireto get rid of Gratton.
It also noted Loomis'concession that he might have
said it would be better ifGratton were gone, but denied
saying he wanted to fire him.
A subtle distinction maybe.

Speaker 1 (34:54):
And the tattoo issue.

Speaker 2 (34:55):
Summarized Gratton's claim of being berated for
visible tattoos while whitedrivers weren't, and Loomis'
dispute claiming equalenforcement.

Speaker 1 (35:03):
OK, what about the whole saga with the mall route?

Speaker 2 (35:07):
The court covered that in detail, Gratton becoming
the bid driver for theundesirable mall route in
October 2018.
His allegation that Loomisrefused to teach him other
routes and only offered analternative if O'Rourke trained
him, which Gratton refusedunderstandably.

Speaker 1 (35:22):
And the claim.
Loomis tried to get someoneelse to take the route.

Speaker 2 (35:26):
Yes, the court noted Gratton's belief that Loomis
tried to get a more senior whitedriver, brandon Ward, to bid on
the mall route specifically toblock Gratton Also mentioned.
Gratton filed his EEOCdiscrimination charge around
this time, october 19th 2018.

Speaker 1 (35:41):
So after he got the mall route, the court summarized
the challenges he faced then.

Speaker 2 (35:45):
Right the alleged conspiracy to make his job
harder Mentioned Michelle Reyesoverhearing Loomis and Frumher's
planning to pile the work onplaintiff and add out of the way
stops.
Also his claim of getting thedeath truck and UPS's
explanation for that personal,no racial motive.

(36:05):
Other drivers often helpedGratton because he took longer
and labor manager Carl Lairdstated truck assignments were
based on route vehicle need, notthe individual driver.
So competing explanations.

Speaker 1 (36:17):
What about the later grievances?
The production quota one?

Speaker 2 (36:19):
Summarize that too June 11th 2020, gratton alleging
Loomis racially discriminatedby counting prepack bags against
his quota, while a white drivergot to count individual
packages, which helps meet quotafaster.

Speaker 1 (36:32):
And UPS's response.

Speaker 2 (36:34):
UPS countered that their policy is to count bags
and the white employee's countwas actually corrected later and
he didn't get a bonus.
So they claim it was a mistake,not discrimination.

Speaker 1 (36:43):
Okay, and the later harassment, retaliation,
grievances.

Speaker 2 (36:47):
Mention the January 2021 grievance about continuous
harassment and retaliation fromLoomis overloading routes worst
truck retaliation for his unionshop steward role and for
helping other Black employees.
And the September 2021grievance about favoritism and
route manipulation, plusGratton's testimony about Loomis
frequently withholdingpaychecks requiring grievances

(37:08):
to get paid.

Speaker 1 (37:09):
It sounds like a constant stream of conflict and
complaints.
Did the court mention anyinternal investigation by UPS
into these?

Speaker 2 (37:16):
Yes, it mentioned Carl Laird.
The labor manager investigatedGratton's January 2021 grievance
.
Laird concluded Loomis' actionswere just neutral application
of policy, no racial bias.

Speaker 1 (37:27):
There sounds like a but coming.

Speaker 2 (37:29):
There is a big butt.
The court explicitly noted thatLaird admitted during his
deposition that he did notinterview Plainfield, gratton or
Gratton's listed references aspart of his investigation.

Speaker 1 (37:38):
Wow, he investigated a complaint without talking to
the person who made it or hiswitnesses.

Speaker 2 (37:43):
Apparently so.
Laird also generally felt therewas no merit to a lot of
plaintiff's claims.
That admission about the flawedinvestigation process was
likely to be very significantfor the judge's assessment of
UPS's handling of the situation.
And, importantly, the courtdidn't just focus on Gratton's
own experiences.
It also summarized the relatedracial allegations coming from

(38:05):
other Black employees at theYakima Center.
This provides crucial context.

Speaker 1 (38:10):
Right the idea of a pattern.
What did those other employeesallege?

Speaker 2 (38:13):
Well, derek Tamez testified that another
supervisor, bill Peterson,actually referred to Gratton
using a racial slur thatNurtavio and called a different
Black employee stupid and dumband worthless.

Speaker 1 (38:25):
That's horrific.
Did Tamez report it?

Speaker 2 (38:27):
He testified.
He reported it to Loomis, thecenter manager and Loomis
allegedly just shrugged it offShrugged off a racial slur used
by a supervisor, according toTamez's testimony.
Yes, then there was XavierBriggs, the driver mentioned
earlier regarding probation.
He also claimed white driversgot preferential routes and
workloads and that he andGratton often had to help more
junior white drivers with theirmisloads.

Speaker 1 (38:48):
So reinforcing Grattan's claims about unequal
work distribution.

Speaker 2 (38:52):
Exactly.
Briggs also alleged Loomisasked him if he knew of things
that plaintiff was doing wrongAgain that fishing for
information idea.
And when Briggs refused toanswer, loomis allegedly
retaliated by overloadingBriggs's route.

Speaker 1 (39:08):
Retaliation against someone for not helping
undermine Gratton.

Speaker 2 (39:11):
That's the allegation .
And finally, travis Andersonthe driver Loomis allegedly told
to cut his hair.

Speaker 1 (39:17):
Right After the wage grievance.

Speaker 2 (39:19):
Yes, Anderson alleged retaliation by Loomis.
First, the hair incident.
Anderson is Pan-African, alwayshad long hair.
White employee with similarhair wasn't asked.
Anderson asked Gratton for helpfiling a religious exemption,
which was successful.

Speaker 1 (39:33):
So Gratton was helping others.

Speaker 2 (39:34):
It seemed so, but after the exemption was granted,
loomis allegedly retaliatedagain, this time by forcing
Anderson to cover his tattoos,while supposedly white drivers
with all kinds of tattoosshowing all the time weren't
bothered.

Speaker 1 (39:46):
Same pattern, gratton alleged for himself.

Speaker 2 (39:48):
Yes, Anderson also testified he overheard Loomis
telling other drivers to stayaway from plaintiff.
So these combined testimoniesfrom Thomas, Briggs and Anderson
paint a picture suggesting abroader potential culture of
racial bias and retaliation,lending significant weight to
Gratton's narrative beyond justhis own word.

Speaker 1 (40:09):
Okay, so that covers the history of alleged
discrimination and retaliation.
Now let's get to the event thatUPS cited as the reason for
firing him the incident onOctober 19th 2021, leading to
his termination on October 27th.
How did the court summarizethis?

Speaker 2 (40:26):
The court laid out the core allegation Gratton was
dismissed following sexualharassment allegations stemming
from an incident on the loadingdock that day and, crucially, it
highlighted the starklyconflicting accounts of what
actually happened.
This conflict is central.

Speaker 1 (40:41):
OK, what were the different versions?
What was Gratton's account?

Speaker 2 (40:43):
Gratton said he tripped, reached in
instinctively to steady himselfand his hand landed on the back
of a preload supervisor, LindaHernandez-Cruz, he said he
immediately clarified it was anaccident.

Speaker 1 (40:53):
And Hernandez-Cruz's version.

Speaker 2 (40:55):
She recalled someone grabbing her lower hip from
behind while she was bent oversorting packages.
She then asked Gratton, why areyou touching me inappropriately
?

Speaker 1 (41:04):
Okay, so already a difference between back and
lower hip, and steadying versusgrabbing.
What about witnesses?

Speaker 2 (41:11):
This is where it gets even more complicated.
There were two key witnesseswith dramatically different
stories presented in the summaryjudgment documents.
First, Jose Ramirez Castillo.

Speaker 1 (41:23):
What did Castillo say ?
He saw.

Speaker 2 (41:25):
Castillo claimed he saw Gratton approachruz from
behind extend his arm toward herbottom and grab her bottom
briefly.
He specifically stated thepathway was clear.
No way plaintiff could havestumbled.

Speaker 1 (41:37):
Directly contradicting Grattan's tripped
explanation.
What about the conversation?

Speaker 2 (41:41):
Castillo recalled Hernandez-Cruz, saying what are
you doing?
That is unacceptable, and heclaimed.
Grattan replied oh I'm sorry,I'm just kidding, and man, no
one can take a joke.

Speaker 1 (41:50):
Just kidding, that sounds bad.
If true, was there more fromCastillo?

Speaker 2 (42:00):
Yes, the court noted an earlier written statement by
Castillo alleged Gratton said hecouldn't wait to go one-on-one
with Hernandez Cruz as hegrabbed her bottom hip, which
Castillo confirmed meantbuttocks.
However, during his laterdeposition, Castillo couldn't
specifically recall theone-on-one part, but stuck to
the grabbed-her-bottom-hipaccount.

Speaker 1 (42:14):
Okay, so Castillo's account is very damaging to
Gratton.
Was there a witness supportingGratton's version?

Speaker 2 (42:20):
Yes, Derek Tamez, the same employee who reported the
racial slur.
Tamez claimed he saw Grattonstumble and brace himself on
Hernandez-Cruz's back with hisarms up.
Tamez stated most certainly anaccident.

Speaker 1 (42:32):
Completely different from Castillo's account.
Could Tamez hear what was said?

Speaker 2 (42:36):
No, he testified.
He was too far away to hear theconversation.

Speaker 1 (42:39):
So you have two witnesses, one saying deliberate
grab on the bottom withincriminating comments, the
other saying accidental stumbleonto the back.
A huge discrepancy.

Speaker 2 (42:48):
Absolutely.
How did the court summarydescribe UPS's investigation
into this incident?
It laid out the process.
Hernandez-cruz reported it toSupervisor Fromhers.
Fromhers collected Castillo'sstatement and gave
Hernandez-Cruz the number forEthics Point.
Ups's internal reportinghotline Ethics Point referred it

(43:10):
to Ryan Wiedenmeier, a securitysupervisor for investigation.
Wiedenmeier interviewed Gratton, hernandez Cruz and Ramirez
Castillo, but the court noted hedid not interview Derek Tamez,
the witness supporting Gratton,nor two other unnamed witnesses
identified after his initialinterviews were done.

Speaker 1 (43:24):
He didn't interview the witness whose account might
have cleared Gratton.
That seems odd.

Speaker 2 (43:29):
It certainly raises questions about the thoroughness
or perhaps the focus of theinvestigation.
Wiedenmaier concluded it seemedmore that it was a touch versus
someone falling into someoneand deemed it unwanted physical
contact.
He did, however, determine thatthe alleged one-on-one comment
from Castillo's initialstatement was unsubstantiated.

Speaker 1 (43:49):
And did Wiedenmaier know about Gratton's history of
discrimination complaints whenhe investigated?

Speaker 2 (43:53):
Critically no.
The court summary statesWiedemeyer was unaware of
plaintiff's prior racial biasallegations.
This lack of context could besignificant in how he
interpreted the incident.

Speaker 1 (44:05):
So who made the final decision to fire Gratton?

Speaker 2 (44:09):
Wiedemeyer's findings went to Carl Leiert, the labor
manager we heard about earlier.
On October 27th, Leiert and hissupervisor decided Gratton had
engaged in unprovoked assaultunder the CBA rules, which
allows firing without warning.

Speaker 1 (44:24):
Unprovoked assault.
That sounds quite severe basedon the conflicting accounts.

Speaker 2 (44:28):
It does.
The termination letter wasactually signed by Eric Loomis.
The center manager Grattan hadaccused of bias, although UPS
later claimed only Leard and hissupervisor had the actual
authority to terminate.

Speaker 1 (44:38):
Interesting detail about who signed versus who had
authority.
How did Grattan respond to thefiring?

Speaker 2 (44:43):
He filed union grievances for wrongful
termination and being falselyaccused.

Speaker 1 (44:47):
Yeah.
He defended his innocence atthe union hearings but the court
noted something important?

Speaker 2 (45:04):
Yeah, but it sets up Gratton's argument later in the
lawsuit that the sexualharassment claim was just a
pretext, an excuse manufacturedto hide the real retaliatory
motive stemming from his raceand his previous complaints.

Speaker 1 (45:18):
And did he have any evidence for that pretext?
Argument beyond the history ofconflict.

Speaker 2 (45:22):
Yes, he pointed to the fact that Carl Laird had
apparently drafted a terminationletter in UPS's workday
computer system beforeWeidenmeier's investigation was
even complete.
Lyard testified this was justregular administrative practice,
but Gratton argued it showedthe decision was predetermined.

Speaker 1 (45:40):
Pre-drafting the termination letter yeah, that
could look suspicious.

Speaker 2 (45:43):
He also alleged UPS had failed to respond similarly
to sexual harassment allegationsmade against white male
employees, suggesting disparatetreatment even in how these
serious allegations were handled.

Speaker 1 (45:53):
OK, this is it.
The judges reviewed all theevidence, the conflicting
stories, the investigationdetails.
Now we get to the court'srulings on summary judgment, the
judge's actual legalconclusions.
What happened with thosepretrial defenses UPS raised,
like the statute of limitations?

Speaker 2 (46:08):
Right the gateway issues.
For the statute of limitations,the court laid out the rules
Three years for state WLADclaims, four years for federal
Section 1981 claims Plaintifffiled Oct 18, 2022.
So discrete discriminatory orretaliatory acts had to fall
within those windows Roughlyafter Oct 18, 2019 for WLAD,

(46:31):
october 18, 2018 for Section1981.

Speaker 1 (46:33):
So anything before that was just irrelevant.

Speaker 2 (46:35):
Not quite, and this was a critical nuance.
The court highlighted Olderincidents like the 2018 O'Rourke
ride-along or the From HersYelling incident.
Even if too old to bestandalone claims could still be
used as background evidence.
Specifically, they couldsupport the hostile work
environment claim if they werepart of the same unlawful
employment practice involvingthe same primary persons
O'Rourke from Herz-Lumas andshowed a pattern, so they stayed

(46:56):
relevant as context.

Speaker 1 (46:57):
Okay, that makes sense.
What about the preemptionargument that federal labor law
blocked his claims?

Speaker 2 (47:03):
The court shut that down.
Defense dismissed the judgefound Grattan's claims were not
preempted by the LMRA or otherlabor laws.
Why not?
Because Gratton wasn'tprimarily arguing that UPS
misinterpreted the CBO'sdefinition of unprovoked assault
.
He was arguing UPS manufacturedthe assault claim as a pretext
for racial bias and retaliation.

(47:24):
State anti-discriminationrights, like under WLAD, are
non-negotiable, the court said,separate from the CBA.
Even his grievances mentioninghis shop steward role were tied
into broader racialdiscrimination allegations.
Big win for Gratton there.

Speaker 1 (47:39):
Definitely, and the waiver in Estoppel defense did
settling earlier grievances stophim.

Speaker 2 (47:44):
Also defense dismissed.
Ups didn't properly argue thewaiver part, so that was out For
Estoppel.
The court ruled that settlingearlier wage-related grievances
didn't mean Grattney had settledhis separate racial bias claims
.
The judge distinguished betweensettling a pay dispute and
giving up the right to sue overalleged discrimination.

Speaker 1 (48:02):
Okay, so Gratton cleared those initial hurdles.
Now what about the core claims,the discrimination claims under
WLAD and Section 1981?

Speaker 2 (48:11):
This is where Gratton hit a major roadblock.
To survive summary judgment ondiscrimination, he needed to
establish a prima facie case,enough initial evidence to
suggest discrimination likelyoccurred.
Ups argued he failed mainlybecause he didn't identify
specific similarly situatedwhite employees who were treated
more favorably under comparablecircumstances.
And what did the?
Argued he failed mainly becausehe didn't identify specific
similarly situated whiteemployees who were treated more
favorably under comparablecircumstances.

Speaker 1 (48:33):
And what did the judge decide?

Speaker 2 (48:35):
Summary judgment granted to defendant.
The discrimination claims weredismissed.

Speaker 1 (48:39):
Dismissed why?

Speaker 2 (48:40):
The court found Gratton did not establish that
Pramah Feshi case.
He didn't provide specificenough comparator evidence.
No named white employeesidentified who definitively got
more work, better routes orwhose mislows he assisted under
truly similar circumstances,meeting the strict legal
standard for comparison.

Speaker 1 (48:57):
What about the examples he did give, like the
production quota?

Speaker 2 (49:00):
The court found UPS had sufficiently countered those
For the quota issue.
Mike Somerville example UPSshowed Somerville's count was
corrected.
No bonus paid For dress codeminor infractions.
Gratton lacked specificdocumentation showing white
employees in similar situationsweren't disciplined.
Witness statements about othersweren't detailed enough on

(49:20):
seniority routes or documenteddiscipline history to serve as
legal comparators.
Even the Travis Anderson hairtattoo example didn't directly
establish discrimination againstGrattan's tattoos or enough
similarity.

Speaker 1 (49:33):
So the direct discrimination claims failed for
lack of specific comparativeevidence?
What about the hostile workenvironment claims?

Speaker 2 (49:41):
Similar outcome, unfortunately for Grattan.
The standard here is high.
The conduct must be raciallymotivated, unwelcome and
sufficiently severe or pervasiveto create an abusive
environment.
Ups argued the allegedincidents weren't severe or
pervasive enough.

Speaker 1 (49:54):
And the judge agreed.

Speaker 2 (49:55):
Yes, summary judgment granted to defendant on the
hostile work environment claimstoo.
The judge acknowledged thecomments like O'Rourke calling
him boy from his remarks.
Peterson's alleged slur wereunacceptable but concluded they
were dispersed in time and onlyoccurred on a handful of
occasions Compared to legalprecedents involving regular,

(50:16):
frequent slurs.
The court found these incidents, while offensive, were legally
insufficiently severe orpervasive to meet the high bar
for a hostile work environmentclaim.

Speaker 1 (50:27):
Wow, so both the discrimination and hostile
environment claims were out.
It sounds like his case wasfalling apart.

Speaker 2 (50:32):
It might seem that way, but then came the
retaliation claims, and here theoutcome was different.

Speaker 1 (50:38):
Okay, how did the retaliation claims fare?
What's the standard there?

Speaker 2 (50:41):
For retaliation, Gratton had to show three things
One, he engaged in protectedactivity, like complaining about
discrimination.
Two, he suffered an adverseemployment action, like being
fired.
And three, a causal connectionbetween the two.

Speaker 1 (50:55):
Did the court find he engaged in protected activity?
Ups disputed some of hisgrievances counted right.

Speaker 2 (51:00):
Right.
Ups argued only the EDOC chargeand the production quota
grievance counted, as othersweren't explicitly about race,
but the court rejected UPS'snarrow view.
The judge found that the Jan2021 and Sep 2021 grievances did
count as protected activity too.

Speaker 1 (51:17):
Why.

Speaker 2 (51:18):
Because of the broader context Gratton helping
other Black employees, his priorexplicit complaints about
Loomis' racial prejudice.
The court interpreted mentionsof favoritism in those later
grievances as potentiallyrelated to race, given the
history.
So Gratton had multipleinstances of protected activity
close to his termination.

Speaker 1 (51:35):
Right Protected activity established.
Adverse action was the firingwhich UPS admitted.
What about the causalconnection?

Speaker 2 (51:42):
The court found enough evidence for a potential
causal link.
First proximity in time Hislast grievance was in September
2021, just about a month beforethe termination process began in
October.
That's close enough to suggesta possible link.

Speaker 1 (51:55):
And beyond just timing.

Speaker 2 (51:57):
Yes, knowledge and potential pretext.
The court pointed out Laird,the decision maker, admitted
reviewing Gratton's recentgrievance about favoritism,
there was a genuine issue ofmaterial fact about Loomis'
involvement in the terminationprocess.
He signed the letter andFromhers, whom Gratton had
conflicts with, was involved ingetting the initial witness

(52:19):
statement for the incident thatled to the firing.

Speaker 1 (52:21):
So the people he had accused were involved in the
process that got him fired.

Speaker 2 (52:25):
Potentially yes, and critically the court focused on
the pretext argument the wildlydifferent accounts of the
October 19th incident combinedwith Lear drafting the
termination letter before theinvestigation finished.
The judge said this could leadreasonable minds to differ as to
whether defendants'justification for plaintiff
separation was pretextual.

Speaker 1 (52:45):
Meaning reasonable people could disagree about
whether the sexual harassmentclaim was the real reason or
just an excuse.

Speaker 2 (52:50):
Exactly that uncertainty, that factual
dispute about the motive for thefiring was enough.
The court's ruling Summaryjudgment denied to defendant on
the retaliation claims.
So the retaliation claimssurvived.

(53:12):
Proof is often indirect anddepends heavily on witness
credibility, which juries needto assess.

Speaker 1 (53:18):
And because retaliation survived.
What about the wrongfultermination in violation of
public policy claim?

Speaker 2 (53:23):
That survived too.
Summary judgment denied todefend it.
Summary judgment denied todefend it Since it was based on
similar facts firing someone foropposing discrimination
violates public policy.
It proceeded alongside theretaliation claim.
Ok, so the retaliation andwrongful termination claims are

(53:51):
heading to trial.
What about the otheraffirmative defenses UPS raised?
Did the judge deal with thoselike the scope of managerial
authority?
One yes, ups argued any badacts by supervisors were outside
their authority.
The court said this wasn'ttechnically an affirmative
defense but treated it as adenial and denied summary
judgment to plaintiff on this,meaning UPS could still try to
argue it at trial.
A genuine issue of materialfact remained about whether
Frumherst and Lemus actually hadauthority for tangible
employment actions like firing,reassigning roads etc.
So that question of corporateresponsibility was still open

(54:14):
for trial.

Speaker 1 (54:15):
But what about the after-acquired evidence defense,
the BBQ business and thealleged lies on his application?
That sounded potentiallydamaging for Grattan.

Speaker 2 (54:23):
This is where UPS took a major hit.
The court granted summaryjudgment to plaintiff on this
defense, meaning UPS could notuse this defense at trial.

Speaker 1 (54:32):
Wow, why not?

Speaker 2 (54:33):
Because the court found UPS already knew about
both alleged issues before theyfired Gratton.
They knew For the BBQ businessFrom Hertz's own deposition
apparently made it clear UPS wasquite aware Gratton sold BBQ
sauce on roofs.
Everybody knew he did it out inthe open, left cards on desks,
gave samples, even shipped itwhile clocked in.

(54:53):
It seemed widely known andunenforced.

Speaker 1 (54:56):
So they couldn't pretend, they just found out
later.
What about the applicationissues, the fake reference?

Speaker 2 (55:01):
Reference and prior termination.
Theft allegations came in wayback in October 2016, the month
Grattan was hired and UPSrecords show they contacted the
caller back then and stated weconsider this matter closed.

Speaker 1 (55:16):
They knew when they hired him and closed the matter.

Speaker 2 (55:18):
Seems so.
So the court said, since UPShad knowledge of both facts
prior to plaintiff's discharge,they couldn't possibly use
after-acquired evidence as adefense.
Huge blow to UPS's potentialdamage limitation strategy.

Speaker 1 (55:31):
That's fascinating.
Okay, what about mitigation ofdamages?
The argument Grattan didn't tryhard enough to find another job
.

Speaker 2 (55:38):
That defense got dismissed too.
Summary judgment granted toplaintiff.
The court found UPS, who hadthe burden of proof, failed to
produce any evidence showingthat substantially equivalent
jobs were available that Grattoncould have gotten.
They needed to show such jobsexisted, not just criticize
Gratton's choice ofself-employment.

Speaker 1 (55:57):
So UPS didn't meet their burden of proof on that
one.
What about punitive damages?
Could Gratton still seek thoseat trial?

Speaker 2 (56:04):
Yes, ups argued he shouldn't be able to, but the
court denied summary judgment todefendant on punitive damages.
To get punitive damages underSection 1981, gratton would need
to show UPS acted with maliceor with reckless indifference to
his rights.
The court found material issuesof fact pervade as to what
agents had a role in plaintiff'stermination and the seniority

(56:26):
of those persons, meaning a jurywould get to decide if the
conduct was bad enough and ifhigh enough level people were
involved to warrant punitivedamages.

Speaker 1 (56:33):
OK, let's quickly recap the outcome of that
crucial summary judgment order.
It really shaped the rest ofthe case.

Speaker 2 (56:39):
Absolutely so.
Bottom line Gratton's claimsfor direct discrimination and
hostile work environmentdismissed.
They wouldn't go to trial.
But a whole bunch of UPS's keyaffirmative defenses were also
dismissed, things likeadministrative exhaustion, which
UPS conceded anyway, statute oflimitations, latches,

(57:00):
preemption waiver and estoppelthe big one after acquired
evidence and mitigation ofdamages.
All those shields were takenaway from UPS before trial.
And most importantly, Mostimportantly, Grattan's claims
for retaliation under both stateand federal law and wrongful
termination in violation ofpublic policy survived.
They remained open and were setto proceed to a full jury trial

(57:21):
.

Speaker 1 (57:21):
So the central question for the trial became
was Grattan fired in retaliationfor complaining about racial
discrimination and helpingothers, or was it genuinely
because of the alleged assaultincident?

Speaker 2 (57:31):
Precisely the focus narrowed dramatically to that
core issue of pretext andretaliatory motive.

Speaker 1 (57:36):
Which brings us, finally, to the resolution, the
final judgment.
What does that document tell us?

Speaker 2 (57:42):
OK, so the final judgment document is dated
November 15th 2024.
It contains language that mightseem a bit confusing at first
glance.
How so?
It states that defendantsrenewed motion for judgment as a
matter of law ECF number 243,is granted.

Speaker 1 (57:59):
Granted A defense motion granted.
That sounds like UPS 1.

Speaker 2 (58:02):
It does sound that way initially.
Right A judgment as a matter oflaw, gmo.
Often happens if a judgedecides, even after hearing all
the evidence at trial, that noreasonable jury could possibly
find for the other side.
So granting defense JML usuallymeans the plaintiff loses.
But I sense another, but A hugebut.
Because despite granting thatdefense motion and the exact
procedural reason isn't detailedin our summary, the judgment

(58:25):
also states completelyunequivocally judgment entered
in favor of plaintiff in theamount of $39,600,000 against
defendant United Parcel ServiceInc $39.6 million for the
plaintiff.
For the plaintiff Tavio Gratton,and it orders post-judgment
interest on that amount too, at4.29% per year starting from the
judgment date.

Speaker 1 (58:46):
So how does that work ?
A defense motion is granted,but the plaintiff gets nearly
$40 million.

Speaker 2 (58:52):
It's legally complex and without seeing the full
context of that specific JMOLmotion, it's hard to say exactly
.
Perhaps the JMOL was granted ona very narrow, specific legal
point or particular type ofdamage, but it didn't overturn
the jury's fundamental findingof liability on the core
retaliation and wrongfultermination claims.
So the bottom line is despitethat procedural nuance, the

(59:14):
bottom line is an absolutelymassive financial victory for
Tavia Grattan.
It strongly implies that theclaims that survived summary
judgment the retaliation andwrongful termination claims were
ultimately successful at trial,leading a jury to award this
staggering amount, likelyincluding significant
compensatory and possiblypunitive damages.

Speaker 1 (59:31):
Wow.
Ok, so that's the journeythrough the legal documents.
An incredible story with astunning outcome.
What are the key takeaways here?
What does this deep dive meanfor you, our listener?

Speaker 2 (59:41):
Well, first, I think it really highlights the nuance
of legal victory, doesn't it?
Gratton had his discriminationand hostile environment claims
dismissed at summary judgment.
That could have seemed like amajor loss.

Speaker 1 (59:52):
Right Half his case gone before trial.

Speaker 2 (59:54):
Exactly.
Yet he still proceeded to thisabsolute, resounding victory.
On the other claims retaliationand wrongful termination.
It shows that these legalbattles are complex, fought on
multiple fronts.
Winning one part doesn't meanyou win everything.
But, critically, losing onepart doesn't mean you lose
entirely either.
You have to find the path wherethe evidence is strongest.

Speaker 1 (01:00:15):
That leads to another point, doesn't it?
The power of documentation andjust sheer persistence.

Speaker 2 (01:00:21):
Absolutely crucial here.
Think about how consistentlyGratton filed those grievances
and complaints.
Even when they were initiallydismissed or met with alleged
indifference, he keptdocumenting.

Speaker 1 (01:00:31):
And those documents became the evidence.

Speaker 2 (01:00:34):
They became the backbone of his protected
activity Claims, the very claimsthat ultimately succeeded where
the direct discrimination onesdidn't.
It really raises a question foranyone listening how
meticulously do you documentimportant workplace interactions
?
That paper trail proved vitalhere.

Speaker 1 (01:00:53):
It really did.
What about the employer side?
What lessons are there forcompanies like UPS?

Speaker 2 (01:00:57):
Well, look at how the court dismissed UPS's
after-acquired evidence defense.
Why?
Because the company, or atleast its agents, knew about the
alleged misconduct the BBQsauce, the application issues
long before they fired him.

Speaker 1 (01:01:12):
They couldn't claim ignorance later.

Speaker 2 (01:01:14):
Right and the questions about managerial
authority for tangibleemployment actions also remained
live issues.
It underscores how hard it canbe for large companies to
legally distance themselves fromthe actions or knowledge of
their supervisors and managers.
It highlights the massiveimportance of having clear
internal policies, training andcritically conducting thorough,

(01:01:35):
unbiased internal investigations.

Speaker 1 (01:01:37):
Especially when the investigators admit they didn't
talk to key witnesses.

Speaker 2 (01:01:40):
Exactly when internal knowledge or flawed processes
contradict the company's laterlegal defenses, it puts them in
a very difficult position.

Speaker 1 (01:01:49):
And then there's the obvious takeaway, the sheer cost
.

Speaker 2 (01:01:52):
Yeah, you can't ignore that.
This case is a starkdemonstration of the
extraordinary financialimplications when workplace
disputes, especially thoseinvolving alleged discrimination
and retaliation, aren't managedeffectively or resolved early
on.
$39.6 million is Well.
It's a powerful reminder of thepotential consequences.

(01:02:12):
It's a massive potential costof not addressing these issues
properly.

Speaker 1 (01:02:16):
It really is.
And finally, I think this wholeprocess shows the value of
doing a deep dive like thisright, Going beyond just the
headline number.

Speaker 2 (01:02:23):
Definitely On the surface, this is just a news
story.
Former UPS driver awarded $39.6million Quick summary.
But by actually digging intothe surface this is just a news
story, Former UPS driver awarded$39.6 million Quick summary.
But by actually digging intothe complaint, the answer, the
detailed summary judgment order,we get a much richer, more
detailed, more nuancedunderstanding.

Speaker 1 (01:02:39):
You see the conflicting narratives, the
specific pieces of evidence, thejudge's reasoning, the
surprising details, like theafter-acquired evidence
dismissal.

Speaker 2 (01:02:48):
Exactly.
It's about seeing the full,complex picture, the human
factors, the systemic issues,the legal arguments, rather than
just accepting a simplifiedversion.
You understand the why behindthe what's.
So as we wrap up this deep diveinto Tavio Gratton versus UPS
and we look at that staggering$39.6 million judgment, it

(01:03:09):
leaves us with a reallyprovocative thought to consider
what's that?
What does this massive figuretruly represent?
Is it for a company the size ofUPS just another, albeit very
large, cost of doing business?
Or does it signify somethingmore profound, a message about
real accountability in theworkplace?

Speaker 1 (01:03:26):
Accountability for actions that go way beyond just
simple disagreements.
Right Actions impactingindividual lives, livelihoods,
dignity.

Speaker 2 (01:03:33):
Exactly?
Does this judgment signal ashift, maybe Setting precedence
for how companies absolutelymust address these deep-seated,
difficult issues like race andretaliation, or face potentially
devastating consequences?
Is it just money or is it amessage?

Speaker 1 (01:03:47):
Something definitely for all of us to think about.
Thank you for joining us onthis deep dive into a truly
significant and complex legalbattle.

Speaker 2 (01:03:54):
We'll see you next time.