Campbell v. Norfolk S. Corp.

• Decision Date: 22 June 2012
• Docket Number: Case No. 1:09 CV 2968.
• Citation: 876 F.Supp.2d 967
• Parties: Derick L. CAMPBELL, Plaintiff, v. NORFOLK SOUTHERN Corporation, Defendant.
• Court: U.S. District Court — Northern District of Ohio

876 F.Supp.2d 967

Derick L. CAMPBELL, Plaintiff,

v.NORFOLK SOUTHERN Corporation, Defendant.

Case No. 1:09 CV 2968.

United States District Court,

N.D. Ohio,

Eastern Division.

June 22, 2012.

Timothy B. Fleming, Wiggins Childs Quinn & Pantazis, Washington, DC, Cathleen M. Bolek, Bolek Besser Glesius, Cleveland, OH, for Plaintiff.

Matthew W. Hoyt, Baker & Hostetler, Columbus, OH, for Defendant.

OPINION AND ORDER

CHRISTOPHER A. BOYKO, District Judge.

I. ISSUE

This matter comes before the Court upon Defendant's Motion for Summary Judgment seeking to dismiss all nine of Plaintiff's causes of action. The Magistrate Judge recommends Summary Judgment be granted for all nine counts and the case be dismissed with prejudice. For the following reasons, the Court Accepts and Adopts the Magistrate Judge's Recommendation and grants Defendant's Motion for Summary Judgment on all of Plaintiff's claims.

II. PROCEDURAL HISTORY

Plaintiff Derick L. Campbell (“Plaintiff”) filed a Complaint against Defendant Norfolk Southern Railway Co. (“Defendant”) raising nine counts as follows: (1) race discrimination due to a hostile work environment based upon 42 U.S.C. § 2000e, et seq.,Title VII of the Civil Rights Act of 1964, as amended in 1991; (2) race discrimination due to a hostile work environment based upon 42 U.S.C. § 1981; (3) race discrimination due to a hostile work environment based upon Ohio Revised Code § 4112.02(A); (4) failure to promote based upon race discrimination pursuant to Title VII; (5) failure to promote based upon race discrimination pursuant to 42 U.S.C. § 1981; (6) failure to promote based upon race discrimination pursuant to Ohio law; (7) retaliation due to discriminatory harassment under Title VII; (8) retaliation due to discriminatory harassment under 42 U.S.C. § 1981; and, (9) retaliation due to discriminatory harassment under Ohio law. (Doc. No. 1.) Defendant filed an Answer to the Complaint denying all allegations. (Doc. No. 3.)

Defendant then filed a Motion for Summary Judgment. (Doc. No. 36.) Plaintiff responded with a responsive brief, to which Defendant replied. (Doc. Nos. 41, 49.)

III. FACTS

Plaintiff, an African–American male, began working for Defendant in 1992 as a conductor. On October 1, 2006, Plaintiff was promoted to “Road Foreman of Engines,” a management position in the Dearborn Division. This position is responsible for supervising and training locomotive engineers in an assigned territory. Road Foremen have designated off days, but otherwise are on call twenty-four hours a day, seven days a week, to address any issues that may arise.

From October 2006, through October 2008, Plaintiff's supervisor was Division Road Foreman H. Lantz Blanton, a white male. Plaintiff alleges several racially motivated interactions with Blanton as follows:

(1) Plaintiff alleges that in 2007, Blanton ordered Plaintiff to work the weekend before his scheduled vacation week. Plaintiff contends that he had to work because Anthony Penix, another Road Foreman and friend of Blanton, was on vacation. Blanton's order subsequently delayed Plaintiff's vacation.

(2) Plaintiff alleges that in 2008, Blanton mandated that he handle a disciplinary situation involving a locomotive engineer trainee on the Saturday before his scheduled vacation. As a result his vacation was delayed. Plaintiff alleges that another Road Foreman could have handled the situation.

(3) Plaintiff also alleges that in 2008, Blanton gave him a less-than-favorable performance evaluation. The initial performance review indicated that Plaintiff needed to improve his relationship with a particular employee. At Plaintiff's request, he and Blanton discussed the review and Blanton agreed to remove the comment from the evaluation. Plaintiff agrees that this made it a “favorable” evaluation.

(4) Plaintiff alleges that Blanton made a racist remark to another employee about interracial marriage. Specifically, the comment was “[you] must think it's okay for black people and white people to marry, too.” Plaintiff heard about the comment through another employee and alleges that it was common knowledge that he had a white girlfriend. Blanton denied that he knew Plaintiff was dating a Caucasian.

(5) In August 2008, Plaintiff developed diverticulitis which caused him to experience abdominal pain. On August 18, 2008, Plaintiff received a call from Blanton at 11:00 a.m., requesting him to drive a locomotive simulator more than 200 miles from Toledo, Ohio, to Western Pennsylvania. Plaintiff told Blanton he was experiencing severe pain and needed to see a doctor. Plaintiff then asked if another employee could fill in for him at which point Blanton said no.

That morning Plaintiff met Blanton in the parking lot where the simulator was located. Another employee, Jeff Allen, was also present. Plaintiff again told Blanton that he was sick and asked him to send Allen instead. Blanton again denied the request. When the conversation took place Blanton was sitting in his car. At some point he reached into the door compartment, picked up a Beretta pistol, and pointed it in Plaintiff's direction saying, “Why don't you just turn around and let me shoot you in the back of the head and put you out of your misery?” Blanton testified that he intended the comment as a joke. Plaintiff testified that he did not know why Blanton made the comment, but he believed it was because Blanton knew he was sick and did not want to drive the simulator to Pennsylvania.

(6) Upon returning from Pennsylvania, Plaintiff experienced severe abdominal pain. On August 19, 2008, he went to see his doctor, who ordered him not to return to work until August 25, 2008. Despite Plaintiff informing Blanton of the doctor's order, Blanton attempted to call Plaintiff multiple times on August 22, 2008, but Plaintiff did not answer his phone. The next day Plaintiff returned Blanton's calls and found that Blanton was trying to reach him to address a violation committed by one of the engineers. Blanton told Plaintiffthat being sick was not a good reason to be unresponsive to his calls.

From August 23, 2008, until August 27, 2008, Plaintiff was hospitalized because his condition had worsened. On September 25, 2008, Plaintiff called Defendant's Equal Employment Opportunity (“EEO”) hotline, leaving an unspecified message regarding the alleged racial harassment by Blanton.

On September 28, 2008, Plaintiff had a serious medical condition that required emergency surgery. The next day, Plaintiff contacted Superintendent Mike Irvin, advising him of his current medical condition as well as the issues he had with Blanton, including the gun incident. Irvin immediately contacted Blanton and Allen, requesting each to write a statement as to the August 18, 2008 incident.

Blanton's Statement to Irvin was as follows:

Mr. Irvin:

On August 18th 2008 Jeff Allen, Derick Campbell and I were in the parking lot just east of the Lower Level. I was seated in my Jeep with the door open listening to Derick give me a list of all the physical ailments he had been experiencing the past couple of days. When he finished I lifted the butt of a small handgun out of the side console of my Jeep and told him he might be better off if I just shot him. All three of us had a good laugh and continued our conversation for a few minutes before I departed.

Lantz Blanton

Allen's statement regarding the gun incident was as follows:

Mr. Irvin:

On 18 August 2008, I RFE J.L. Allen and DRFE H.L. Blanton & RFE D.L. Campbell, were talking and joking at the lower level CD287 parking area around the RFE & Trainmaster office. RFE D.L. Campbell stated to the DRFE that he was not feeling well and that he was going to see his physician. DRFE H.L. Blanton was sitting in his vehicle and reach[ed] down and displayed a small hand gun and said to RFE D.L. Campbell turn around and let me shot [sic] in the back of your head and put you out of your misery.” End of Statement. J.L. Allen RFE Toledo West

At his deposition, Allen clarified that the gun was not pointed at the Plaintiff, but displayed toward him. Allen also testified that he did not believe the gun incident was a race issue, but later implied that such an incident by a white man raised in the South would be intimidating to a black employee.

Upon receiving notification of the incident, Irvin immediately contacted Derek Bond, an employee in Defendant's EEO department, to investigate the incident, and recommend an appropriate disciplinary response concerning Blanton. Irvin also immediately contacted Blanton to inform him that his conduct was unacceptable and would not be tolerated. Following this conversation Blanton contacted Plaintiff to apologize.

The EEO office then contacted Plaintiff who also complained about the two scheduling incidents and the phone calls he received from Blanton while out on medical leave. Plaintiff also asserted that he was not satisfied with Blanton's apology and felt harassed. Plaintiff did not mention that he perceived the gun incident to be threatening.

The EEO office completed its investigation and prepared a summary of its findings, which was reviewed by management. The Assistant Vice President of Diversity and EEO director, R. David Cobbs, Jr., recommended that Blanton be terminated from his supervisory position. After the gun incident, Plaintiff had no further contact with Blanton, except for his apology.

Plaintiff claims that he became known as “the most hated person on the Dearborn line” for causing Blanton to lose his management position. Plaintiff also alleges that he was retaliated against when new Division Road Foreman Aaron Sherman adopted a policy which Plaintiff indicates is known as the “Derick Campbell Rule.” Plaintiff's job involves certain operational monitoring observations, including whether locomotive engineers have the ability to adequately control the speed of a locomotive. Road Foremen are required to ride with an engineer for at least 50 miles at least once per year....