844 F.3d 307 (1st Cir. 2016), 15-1803, Garmon v. National Railroad Passenger Corp.

Docket Nº:15-1803
Citation:844 F.3d 307
Opinion Judge:THOMPSON, Circuit Judge.
Party Name:GREGORY GARMON, SR., Plaintiff, Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK, Defendant, Appellee
Attorney:Christopher J. Trombetta, with whom Law Office of Christopher J. Trombetta was on brief, for appellant. Lisa Stephanian Burton, with whom Peter J. Mee, Thomas J. McAndrew and Morgan Lewis & Bockius LLP were on brief, for appellee.
Judge Panel:Before Lynch, Thompson, and Barron, Circuit Judges.
Case Date:December 16, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
SUMMARY

Plaintiff, an African-American, filed an employment discrimination case against Amtrak, his employer, alleging that his opportunities for overtime were reduced because of his race and that he was subjected to a hostile work environment. The district court granted summary judgment in favor of Amtrak. The First Circuit affirmed, holding (1) Plaintiff failed to meet his initial burden of... (see full summary)

 
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844 F.3d 307 (1st Cir. 2016)

GREGORY GARMON, SR., Plaintiff, Appellant,

v.

NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK, Defendant, Appellee

No. 15-1803

United States Court of Appeals, First Circuit

December 16, 2016

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Mary M. Lisi, U.S. District Judge.

Christopher J. Trombetta, with whom Law Office of Christopher J. Trombetta was on brief, for appellant.

Lisa Stephanian Burton, with whom Peter J. Mee, Thomas J. McAndrew and Morgan Lewis & Bockius LLP were on brief, for appellee.

Before Lynch, Thompson, and Barron, Circuit Judges.

OPINION

THOMPSON, Circuit Judge.

In this employment discrimination case, appellant Gregory Garmon, Sr., an African-American man currently employed by Amtrak, alleges that his opportunities for overtime were reduced because of his race and that he was subjected to a hostile work environment in violation of 42 U.S.C. § 1981. The district court granted Amtrak's motion for summary judgment and this appeal followed. After careful consideration, we affirm the district court's ruling.

Background

Gregory Garmon, Sr., has been employed with Amtrak since 1997 when he first began working for the company as a signal helper. In 2001 he was promoted to his current position as a lineman in the Electric Traction Department where his responsibilities include, among other things, construction, installation, and repairs of the overhead catenary system. In addition to linemen, Amtrak also employs high rail operators (" HROs" ) and foremen. HROs perform all the duties of linemen, but also operate high rail equipment on the railroad.

From 2003 through February 2015, Amtrak organized its Electric Traction Department into three shifts. The first shift ran from 6:00 am to 2:00 pm, Monday through Friday, and initially consisted of Garmon, the sole lineman, and two white co-workers, Christopher Alves and William Butler, both HROs. In 2008, James Thackaberry, another white co-worker, was added to the first shift as a foreman. Throughout his employment, Garmon admits he was never interested in seeking a promotion to work as either a foreman or HRO. Indeed, Garmon stated that he " had no[] desire[]" to work as an HRO and accordingly, he currently still works as a lineman in Amtrak's Boston/Providence cost center.1

Garmon's employment with Amtrak is governed by a collective bargaining agreement (the " CBA" ) negotiated between the International Brotherhood of Electrical Workers (" IBEW" ) and Amtrak. Despite Garmon's unsubstantiated assertions to the contrary, Rule 13 of the CBA explicitly governs the distribution of overtime for Amtrak's IBEW employees. Rule 13 provides, in pertinent part, that " [o]vertime [is] to be distributed in conjunction with the duly authorized local committee of the craft or their representative and local management." The CBA also provides a procedure for IBEW employees to file grievances within 60 days from the date of the occurrence on which their claims are based. Garmon never filed a grievance with the IBEW regarding his overtime discrimination or hostile work environment claims.2 Garmon did complain to a division engineer, George Fitter, about the distribution of overtime in 2012, but Fitter concluded that the overtime policy was being administered correctly.3

In accordance with the CBA, Amtrak overtime needs are first determined by Amtrak management and then communicated to a local union representative, who eventually manages the distribution of overtime amongst IBEW employees. Since February 2011, Michael Poole, who has served as the Assistant Division Engineer at Amtrak, has been responsible for determining overtime needs and seeking budgetary approval from Amtrak's senior management for proposed overtime. Alves, Garmon's co-worker on the first shift, is also a member of the IBEW and served as the union representative who oversaw the overtime sign-up process from 2009 to 2013.

Before Poole was hired as the Assistant Division Engineer, overtime needs were determined by Amtrak management and verbally communicated to Alves, who would then create a written sheet based on the verbal suggestions of an Amtrak supervisor. After Poole was hired, the process was no longer verbal and an Amtrak supervisor would create and submit written sign-up sheets to Alves which identified the specific positions and shifts needed for overtime by role. Alves was then responsible for overseeing the overtime sign-up process and would return the filled-out sheets to Amtrak management.

It is this process of determining Amtrak overtime needs by Poole and Amtrak management that Garmon seems to take issue with. Garmon alleges that his supervisor, Greg Brennan, instituted an overtime plan in the fall of 2012, whereby Amtrak discriminated in its determination of overtime needs in order to afford white employees more overtime opportunities than African-American employees. According to Garmon, under the previous overtime plan, and prior to Thackaberry's new first shift assignment, he would essentially take turns opting for overtime hours with the two other first shift employees -- Alves and Butler. Garmon argues that Amtrak's overtime system prior to 2012 did not distribute overtime hours based on position or role and thus he had more opportunities for overtime. Garmon also alleges that once Thackaberry -- a foreman -- was added to his shift he was required to share overtime opportunities with Thackaberry, while Alves and Butler -- HROs -- were not required to do the same.

In addition to his complaints about overtime denials, Garmon says that he was also subjected to a hostile work environment. He presents a list of workplace gripes: (1) he was denied access to the equipment canister keys; (2) he was not sufficiently trained regarding Structural Erection Diagrams (" SEDs" ); (3) he was not appropriately acknowledged by his supervisors or other co-workers; (4) he was intimidated while at work; and (5) he was put in difficult situations in the hopes that he would fail. Amtrak denies all. First, it says that there was never a change in its overtime policy. Second, Amtrak adamantly denies that Garmon was ever subjected to a hostile work environment.

Concluding that Garmon failed to proffer any evidence that he suffered an adverse employment action or that he was subjected to a hostile work environment, the district court granted Amtrak's motion for summary judgment. Garmon subsequently filed this timely appeal.

Discussion

" We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party." Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 19 (1st Cir. 1999). Nevertheless, " [a]lthough we will draw all reasonable inferences in the nonmovant's favor, we will not 'draw unreasonable inferences or credit bald assertions, empty conclusions, rank conjecture, or vitriolic invective.'" Pina v. Children's Place, 740 F.3d 785, 795 (1st Cir. 2014) (quoting Cabá n Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007)). " [A] party cannot successfully oppose a motion for summary judgment by resting 'upon mere allegations or denials of his pleading.'" Pina, 740 F.3d at 795 (quoting LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993)). Rather, " a plaintiff's ability to survive summary judgment depends on his ability to muster facts sufficient to support an inference of discrimination." Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30 (1st Cir. 2007)...

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