Cook v. CSX Transp. Corp.

• Decision Date: 19 March 1993
• Docket Number: No. 92-1395,92-1395
• Citation: 988 F.2d 507
• Parties: 61 Fair Empl.Prac.Cas. (BNA) 458, 61 Empl. Prac. Dec. P 42,111, 61 USLW 2572 Curtiss L. COOK, Plaintiff-Appellant, v. CSX TRANSPORTATION CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 507

988 F.2d 507

61 Fair Empl.Prac.Cas. (BNA) 458,

61 Empl. Prac. Dec. P 42,111, 61 USLW 2572

Curtiss L. COOK, Plaintiff-Appellant, v. CSX TRANSPORTATION CORPORATION, Defendant-Appellee.

No. 92-1395.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 1, 1992.

Decided March 19, 1993.

Joel Eric Myron, Jersey City, NJ, argued for plaintiff-appellant.

Kevin Charles McCormick, Whiteford, Taylor & Preston, Baltimore, MD, argued (H. Russell Smouse, Whiteford, Taylor & Preston, Baltimore, MD, Sara E. Hall, CSX Transp., Inc., Jacksonville, FL, on brief), for defendant-appellee.

Before RUSSELL, WILKINSON, and NIEMEYER, Circuit Judges.

OPINION

NIEMEYER, Circuit Judge:

This case presents the somewhat novel issue of whether an employee attempting to prove a prima facie case of racially disparate discipline under Moore v. City of Charlotte, 754 F.2d 1100 (4th Cir.), cert denied, 472 U.S. 1021, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985), may single out one prior instance of less severe treatment of a person outside the protected class and ignore the range of treatment shown in the record before the court by similar cases, including instances where persons outside the protected class were treated more severely than the employee.

Curtiss L. Cook, a black, contends that his employer, CSX Transportation Corporation (CSX), violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by subjecting him to discipline more severe than that imposed on white employees for similar misconduct and by conducting a racially discriminatory hearing process. Cook's primary support for these contentions consists of an allegation that one white employee was treated less severely than Cook for comparable misconduct.

The district court granted CSX's motion for summary judgment, finding that Cook had failed to establish a prima facie case of race discrimination under Title VII. The court found, when considering the record as a whole, that the discipline imposed on Cook fell within the range of discipline imposed by CSX on others outside the protected class for misconduct similar to that of Cook, and that no evidence was offered to show that CSX subjected white employees to a different hearing process from that afforded Cook. After dismissing Cook's federal claim, the court, in the exercise of its discretion, elected not to reach the pendent state tort claim (intentional infliction of emotional distress). For the reasons stated below, we agree with each of the district court's rulings and affirm its judgment.

I

Cook was hired by CSX in 1973, and between 1974 and 1985 he was disciplined by the company nine separate times, through reprimands, overhead suspensions, and two actual five-day suspensions from work. During his shift on September 9, 1988, Cook was assigned the task of switching two railroad cars from the track on which they were positioned. Instead of doing so, however, Cook informed his immediate supervisor that he "wanted a relief" and thereupon left the rail yard without obtaining a response. Cook was subsequently notified by CSX that he was being charged with a rule violation for failing to switch the railroad cars. He was further informed that a formal investigatory hearing was to take place on September 16 and that he was responsible for arranging for the presence of a union representative and witnesses, if he so desired.

On four separate occasions, Cook's union representative requested and was granted postponements of the disciplinary hearing. On October 4, the hearing was convened. After Cook testified that on the day in question he had informed a crew member that he was ill prior to requesting relief and leaving the CSX yard, Cook's union representative requested and received a recess so that the crew member could be called as a witness.

Cook was subsequently informed by letter and by telephone that the hearing would reconvene on October 20, 1988. When the hearing reconvened on October 20 neither Cook nor his union representative was present because, as he later claimed, the telephone caller misinformed him that the scheduled date was October 21. After a thirty-minute wait, the hearing proceeded as scheduled and additional testimony was presented. The internal investigating officer conducting the hearing determined, on the basis of the testimony presented at both hearings, that Cook was at fault for failing properly to notify his supervisors before absenting himself from duty, and that therefore he had violated CSX Operating Rules 500, 501, and 522. ¹ Based on this determination and Cook's prior disciplinary record, CSX officials decided to dismiss Cook from service.

Following the dismissal, Cook submitted a grievance for arbitration under the Railway Labor Act and the collective bargaining agreement between CSX and the union. Pursuant to that process Public Law Board 4368 issued Award No. 13, determining that Cook had been afforded the process to which he was entitled from CSX and that there was sufficient evidence to support his dismissal. Despite these findings and Cook's "poor service record" during his employment, the Board gave Cook "a last chance opportunity" and ordered CSX to reinstate him on probationary status without back pay. On August 21, 1990, Cook was reinstated by CSX.

In November 1988, while his grievance against CSX was still pending, Cook filed a racial discrimination claim with the Maryland Commission on Human Relations (MCHR), alleging that two white employees of CSX had refused to follow a supervisor's orders but neither was dismissed as Cook had been. In its "Written Finding," the MCHR stated that Cook's grievance hearing had been conducted properly, that the evidence supported a finding that he had absented himself from work without proper notification, and that no evidence existed to support the allegations of racially disparate discipline. Cook requested the MCHR to reconsider its Written Finding and for the first time claimed that he was not provided with the same administrative hearing process as similarly situated white employees of CSX. Cook also repeated his charge of disparate discipline. After the MCHR denied Cook's request for reconsideration, the entire MCHR investigatory file was transferred for an independent review to the EEOC which, in April 1991, determined that the evidence did not establish a violation of Title VII.

Having exhausted his administrative remedies, Cook filed a civil action in district court alleging that CSX had discriminated against him in violation of Title VII by subjecting him to more severe discipline and to a less fair hearing process than that to which similarly situated white employees had been subjected. Cook's complaint also alleged that CSX's actions toward him constituted an intentional infliction of emotional distress, a tort under Maryland law. Ruling on CSX's motion for summary judgment, the district court entered judgment for CSX. The court dismissed the Title VII claim, finding that Cook had failed to establish a prima facie case, and declined to exercise pendent jurisdiction over Cook's state law claim. This appeal followed.

II

On CSX's motion for summary judgment the district court was presented with a record that included the disciplinary histories of nine CSX employees, seven whites and two blacks, all of whom had violated Rule 500. ² Cook, who was dismissed from employment primarily for a Rule 500 violation, contends that in at least one instance a white was treated less severely for violating Rule 500. Although Cook concedes that no other person had been charged with the same combination of offenses as he had been, he contends that by showing at least one case of similar conduct of a white employee who was treated less severely, he established a prima facie case of racial discrimination under Moore, 754 F.2d at 1105-06.

The district court concluded from the undisputed record that while several white employees had engaged in conduct of "comparable seriousness" by violating Rule 500 in differing combinations, the precedents "fail to raise an inference of racial discrimination by [CSX] in the imposition of discipline on plaintiff." The court observed:

The disciplinary records indicate there was a range of punishment imposed on white employees violating Rule 500. For example, R.W. Bassett violated the Rule five times between 1975 and 1986 and never received more than 5 days overhead suspension. Wade Dunnigan violated the Rule twice in 1984 and received a total of 15 days overhead suspension. On the other hand, J.A. Heinzman was dismissed in 1988 for violating Rule 501 after violating Rule 500 three times between 1984 and 1987. R.J. Josselyn violated the Rule seven times between 1969 and 1982, and was dismissed in 1978 when he violated the Rule for the fifth time. He was later reinstated, as was plaintiff. V.W. Metz was dismissed in 1988 for violating Rule 501 after only two other Rule violations between 1979 and 1988. Metz also was reinstated without backpay, as was plaintiff.

In sum, the disciplinary records indicate that [CSX] imposes a range of punishment to white employees who violate the rules that Cook violated and that the punishment Cook received falls within that range. Cook violated [Rule 500 or its equivalent] four times between 1974 and 1985, in addition to committing five other rule violations. Cook was terminated in 1988 after violating the Rule for the fifth time, and was reinstated almost two years later. At least one white employee with a better disciplinary record received more severe punishment (Heinzman) and another white employee with a better discipline record received the same treatment (Metz).

To establish a prima facie case of racial discrimination in the enforcement of employee disciplinary measures under Title VII, the plaintiff must show: (1) that he is a member of the class protected by Title VII, (2) that the prohibited conduct in which he engaged was comparable in...