UPDATE 1-Mass. allows 4 FedEx workers' claim to proceed

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By Scott Malone

BOSTON, March 5 (Reuters) - A Massachusetts state agency has ruled that complaints by four Arab-American men they were harassed by managers at FedEx Corp. (FDX.N) -- who called at least two of them "terrorists" -- may proceed.

The Massachusetts Commission Against Discrimination rejected FedEx's call to dismiss the complaints.

Kuwait-born Loay El-Dagany, 31, said on Monday he was subjected to abusive treatment by his manager from the time he started working as a FedEx trucker in Massachusetts in 2003.

"When I started working with FedEx, this guy, he tried to push me hard and called me names, using words like 'terrorist'," El-Dagany told Reuters. "He mentioned (Al Qaeda leader Osama) bin Laden, that we may be cousins ... Sometimes, when he doesn't like something, he'd take one of the packages and throw it in my face and go and scream."

Three other truck drivers who worked at the same Wilmington, Massachusetts location: Montaser Foad Harara, a Palestinian; Oukhayi Ibrahim, a Moroccan; and Yasir Sari, of Sudan, made similar claims in filings to the state agency in July. The four men are Muslim.

FedEx spokesman Perry Colosimo described the charges as "unsubstantiated allegations."

"FedEx Ground does not tolerate any behavior that violates our policies in regard to discrimination and we will take appropriate disciplinary action against those who do not follow those policies, including termination," Colosimo said.

In addition to verbal abuse, the men charged in filings with the Massachusetts agency that they were treated unfairly in their work assignments.

"These drivers were assigned and reassigned with worse routes and were intentionally given too many stops to handle," the complaint said.

All four are legally working in the United States, but have not yet obtained citizenship, said Shannon Liss-Riordan, a Boston attorney who is representing the drivers. They are seeking an end to the abusive treatment and unspecified monetary damages.

They charge that two FedEx managers, David Goyette and Mike Melnyk, harassed them and that higher management allowed the abuse to continue.

Colosimo said Goyette was no longer employed by FedEx and that Melnyk was being represented by FedEx lawyers in the matter.

Goyette could not be reached for comment.

Discovery in the case will begin next week, said Liss- Riordan.

In 2006 a California jury awarded $61 million in compensatory and punitive damages to two Lebanese-American FedEx drivers who alleged similar treatment. A judge later cut the award to $12.5 million.

CONTRACTOR ISSUE

In its petition to dismiss the complaints, FedEx had argued the men were independent contractors, not employees, and thus not covered by the state agency.

"We believe that we in our motion to dismiss were consistent with state law and we are looking forward to having MCAD heart the merit of this petition," said FedEx spokesman Maury Lane.

The issue of whether FedEx Ground drivers are employees or independent contractors has been a key one in campaigns to unionize the truckers at the package-delivery company.

The Memphis, Tennessee-based company has argued in some of the unionization drives that its 15,000 North American truckers are not eligible for union representation because they are contractors.

In November, truckers at the company's two Wilmington locations voted to seek representation by the International Brotherhood of Teamsters, after the National Labor Relations Board in Boston ruled they were not independent contractors.

FedEx plans to appeal that decision, Colosimo said.

The NLRB issued a similar ruling over truckers at another FedEx distribution center, in Northborough, Massachusetts. No election has been scheduled yet for that location.