Cooper v. Norfolk and Western Ry. Co.

• Decision Date: 18 November 1994
• Docket Number: No. 5:94-0298.,5:94-0298.
• Citation: 870 F. Supp. 1410
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Victor A. COOPER, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.

870 F. Supp. 1410

Victor A. COOPER, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant.

No. 5:94-0298.

United States District Court, S.D. West Virginia, at Beckley.

November 18, 1994.

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Sharon M. Mullens, Theodore R. Dues, Jr., Charleston, WV, for plaintiff.

Scott K. Sheets, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, WV, for defendant.

MEMORANDUM OPINION AND ORDER

HALLANAN, District Judge.

This matter is before the Court via Defendant Norfolk and Western Railway Company's Motion for Summary Judgment, Memorandum in Support of Defendant Norfolk and Western Railway Company's Motion for Summary Judgment, Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment, and Defendant's Reply to Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment. Having carefully reviewed said motions and all memoranda and exhibits submitted in regard thereto, the Court is now prepared to render its decision.

I. Background

A. Facts

Plaintiff in this case, Victor A. Cooper, is a hostler¹ for Defendant Norfolk and Western Railway Company (also known as "Norfolk and Southern Railway") at its Mullens, West Virginia shop. He has worked for his present employer since 1972 when he was hired as a laborer. He was promoted to the position of hostler in 1978. In 1987 W.B. Clemson, Jr. became the senior general foreman for Defendant employer at Mullens and at that time he began to require Plaintiff, a hostler, to perform laborer duties.² In 1989 Plaintiff filed a complaint with the West Virginia Human Rights Commission (WVHRC) alleging racial discrimination by his employer.

This is an employment discrimination case brought under the West Virginia Human Rights Act (WVHRA). During the time covered in his complaint Plaintiff was the only African-American in the position of hostler at the Mullens Shop. (Deposition of Victor A. Cooper (Cooper Depo.) p. 47.)³ He contends that Mr. Clemson and others at Mr. Clemson's direction required him to perform laborer duties, particularly "dirty" duties such as cleaning out engines and air compressors, when another white hostler was not required to do these tasks and while white laborers sat by and rested, for the simple reason that Plaintiff is an African-American. (Cooper Depo. pp. 8-13.)

Plaintiff also claims he was denied job opportunities and was subjected to a hostile work environment on account of his race, and that he was discharged and kept out of work for a period of fifteen months before he was allowed to return, all because of his race and/or in retaliation for his filing a complaint about his employer with the WVHRC. A Public Law Board ordered him returned to service in December of 1991,⁴ and he was required to pass a return-to-work physical examination. After passing his physical examination, Plaintiff was then sent for a psychiatric examination. Plaintiff was out of work, without pay, as a result of a psychiatric disqualification from February 26, 1992 until March of 1993. Plaintiff feels the psychiatric disqualification was improper and that he was kept from work for racially discriminatory reasons and in retaliation for filing a complaint about Defendant employer with the WVHRC in 1989.

At the time Plaintiff was hired in 1972 as a laborer, Defendant employer maintained segregated locker facilities for African-American and white employees. (Cooper Depo. p. 41.) This practice of maintaining segregated facilities was not abolished until 1979. (Cooper Depo. p. 42.)

From the time of his hiring in 1972 until sometime in the past two years (in other words, in the time since Plaintiff filed his present complaint) Defendant employer's Mullens shop displayed a sign left over from Jim Crow⁵ days. (Cooper Depo. p. 40.) This sign featured the word "COLORED" in white letters on a black steel beam. (Cooper Depo. p. 38.) The sign's historic purpose was reportedly to indicate the location of a water bucket for the use of African-American railroad employees. (Cooper Depo. p. 40.)⁶

After working in this environment for 19 years and filing a complaint with the WVHRC, on September 5, 1991 Plaintiff had a disagreement with T.A. Salango, a white Mechanical Supervisor for Norfolk and Western Railway Company, over whether Plaintiff's attendance at an ergonomics seminar was mandatory. (Cooper Depo. pp. 58-60, Affidavit of T.A. Salango (Salango Aff.) pp. 2-4.) Plaintiff, believing it was not, refused to attend. (Cooper Depo. pp. 58-60). Mr. Salango apparently became angry and threatening to Plaintiff⁷ at which point Plaintiff responded by picking up a stick to defend himself. (Cooper Depo. pp. 62-64, Salango Aff. p. 3.) Mr. Salango ordered Plaintiff to leave the premises, but Plaintiff refused without a written order or a witness, fearing that he would be cited for leaving his job without permission. (Cooper Depo. pp. 63-64.) At Plaintiff's suggestion, Plaintiff was escorted from the premises by the local Mullens police when said police arrived at the job site to serve as witnesses to Plaintiff's discharge. (Cooper Depo. pp. 64-65, Salango Aff. p. 4.)

Despite his nineteen year record of good service with Defendant employer, subsequent to and ostensibly as a result of the September 5, 1991 incident, Plaintiff was permanently discharged from his job in late September of 1991, after a hearing conducted according to the requirements of Plaintiff's contract. A Public Law Board ordered Plaintiff reinstated in December of 1991, but he was required to undergo first a medical and then a psychiatric evaluation before returning to work. Plaintiff claims he was led by his employer to believe that a psychiatric evaluation was to be a routine physical examination.⁸ (Cooper Depo. p. 85.) This psychiatric evaluation conducted by Defendant's paid psychiatrist produced findings of a psychiatric disorder and a diagnosis due to the fact that Plaintiff believed he was discriminated against on the basis of his race.⁹ (Initial Evaluation by Dr. Andrew C. Bockner (Bockner Eval.) pp. 2-4.) Consequently, Defendant was kept from returning to work for fifteen months until he obtained an independent psychiatric evaluation, which found no psychiatric disorder. (Psychiatric and Psychological Evaluation by Dr. Elma Z. Bernardo (Bernardo Eval.) pp. 2 and 5.)

As a result of Defendant employer's alleged discrimination and retaliation, Plaintiff has lost wages, seniority and out-of-pocket medical expenses and alleges he has suffered humiliation and embarrassment.

B. Procedural History

Plaintiff brings this action under the WVHRA, in part pursuant to a Notice of a Right to Sue issued November 1, 1993 by the WVHRC. Plaintiff filed his original complaint in Wyoming County Circuit Court and the case was removed by Defendant to this Court under its diversity jurisdiction pursuant to 28 U.S.C. Section 1332.

C. Basis for Motion for Summary Judgment

Defendant employer bases its Motion for Summary Judgment on three grounds. First, Defendant employer contends that Plaintiff's claims are time-barred by the applicable statute of limitations. Second, Defendant contends that this Court lacks subject matter jurisdiction because Plaintiff's claims are subject to mandatory arbitration under the Railway Labor Act (RLA), 45 U.S.C. Section 1515 et seq.. Finally, Defendant maintains that Plaintiff cannot make out a prima facie case of racial discrimination or unlawful retaliation under the WVHRA.

II. Applicable Law

This action was brought under the WVHRA, which is analogous to Title VII under federal law. Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e-2 et seq.. The West Virginia Supreme Court of Appeals has announced that it will look to Title VII cases for guidance in WVHRA cases. West Virginia Human Rights Commission v. United Transport, 167 W.Va. 282, 280 S.E.2d 653, 656 (1981).

A. Statute of Limitations

The statute of limitations that governs an action brought under the WVHRA provides ninety days from the issuance of a Notice of Right to Sue by the WVHRC in which to file a cause of action, unless the applicable statute of limitations has not run at the end of ninety days in which case Plaintiff has until the end of the statute of limitations period to bring suit. W.Va.Code Section 5-11-13. West Virginia has a two year statute of limitations for bringing suits of this kind. McCourt v. Oneida Coal, 188 W.Va. 647, 425 S.E.2d 602 (1992). The statute of limitations will be tolled if the injuries are of a "continuing" nature. West Virginia Human Rights Commission v. United Transport., 167 W.Va. 282, 280 S.E.2d 653 (1981).

West Virginia Courts and the Court of Appeals for the Fourth Circuit which have addressed the issue of continuing violations have done so in contexts that are factually distinct from the one at bar. In Institute of Technology v. W.Va.H.R. Comm'n, 181 W.Va. 525, 383 S.E.2d 490 (1989) the issue was whether an ongoing compensation disparity could be considered a continuing violation. A continuing violation was found to exist as long as there was a disparity and a failure to correct such a condition. Independent Fire Co. No. 1 v. W.Va.H.R. Comm'n, 180 W.Va. 406, 376 S.E.2d 612 (1988), held that a statute of limitations begins to run upon an employee's unequivocal notice of termination from his employment. Greyhound Lines-East v. Geiger, 179 W.Va. 174, 366 S.E.2d 135 (1988) and West Virginia Human Rights Commission v. United Transportation Union, 167 W.Va. 282, 280 S.E.2d 653 (1981) both stand for the idea that prior discriminatory practices perpetuated by facially neutral seniority systems are continuous violations.

In the Fourth Circuit, Simmons v. South Carolina 694 F.2d 63 (4th Cir.1982), applying United Airlines Inc., v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977), affirmed a district court's conclusion that a plaintiff's cause of action was not a continuing violation based upon the court...