What Do You Think: Did Allowing Police to Track Package, Cuff Recipient Show Retaliation against UPS Driver?

Lake Wales, FL (WorkersCompensation.com) -- It’s rare, but it does sometimes happen that a worker’s job activities and a law enforcement investigation of a third party cross paths. Can a company’s cooperation with police which involves an innocent and unknowing employee ever constitute FMLA retaliation against the employee?

A case involving a UPS package delivery driver illustrates what it might take to demonstrate retaliation in such circumstances. The driver, who delivered packages to residences, initially sued UPS for FMLA retaliation in May 2020. The company and driver resolved the claim and UPS reinstated the driver to his old job several months later.

In May 2021, per a request by law enforcement, UPS placed a tracking device on one of the packages the driver was delivering. The driver delivered the package on May 13, not knowing it was being tracked by police. After he walked the package onto the porch, armed police officers swarmed the yard and arrested the recipient. The driver promptly called and told a UPS supervisor what happened. The supervisor, the driver said, laughed hysterically.

The driver claimed that he had anxiety, stress, and depression as a result of being inserted unknowingly into a sting operation. He took a leave of absence the day after the event, received treatment, and returned to his position several weeks later.

The driver then sued UPS, alleging that placing him in the middle of a sting operation was retribution for his May 2020 lawsuit.

To establish an initial claim of FMLA retaliation, an employee must show that:

1. He engaged in statutorily protected conduct, such as by suing for FMLA retaliation;
2. He suffered a materially adverse action; and
3. The adverse action was causally related to the protected conduct.

Did the driver establish a viable case of FMLA retaliation?
A. No. The sting operation occurred well after he resolved his first FMLA lawsuit.
B. Yes. His supervisor’s laughter, and the company’s failure to alert him to the operation, suggested retribution was at play.

If you selected A, you agreed with the court in Matthews v. UPS, Inc., No. 8:22-cv-01801-TPB-SPF (M.D. Fla. 02/23/24), which held that the driver failed to establish a connection between an adverse employment action and his 2020 lawsuit.

The court noted that the driver alleged that UPS allowed law enforcement to place a tracking device on a package in the truck he was driving, and to engage in a sting operation to arrest the recipient of the package, all without informing him, in retaliation for his May 2020 lawsuit. 

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First, the court expressed some doubt as to whether the sting operation constituted a "materially adverse action." A materially adverse action is any conduct by an employer that clearly might deter a reasonable employee from pursuing a pending charge of discrimination or making a new one, the court noted.

Even if the driver could demonstrate that the sting operation was materially adverse, he still needed to show that the 2020 lawsuit motivated UPS to take that action it did. “[It]  must be recognized that [the sting] occurred approximately one year after the filing of [the driver’s discrimination lawsuit in May 2020 as well as some seven months after the conclusion of that suit and his return to work in October 2020,” the court wrote.

Given the lack of other evidence of a causal connection, the driver needed to show close temporal proximity between the two events. Because he failed to do so, he did not establish a retaliation claim.  

The court granted summary judgment to UPS.

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