Hiatt v. Union Pacific R. Co.

Decision Date08 September 1995
Docket Number94-8089,Nos. 94-8088,s. 94-8088
Parties150 L.R.R.M. (BNA) 2265, 68 Fair Empl.Prac.Cas. (BNA) 1160, 66 Empl. Prac. Dec. P 43,747 Leonard K. HIATT; Robert A. Bagby; Marvin Crabaugh; Gary W. Boatright; Ronald L. Roberson; Carl D. Houk; Jerrold B. Hutchings; Duane K. Hinkle; Larry L. Burback; Stephen J. Miller; Kim R. Hardman; Kenneth R. Covington; Michael E. Valentine; Gary L. Yanken; Patrick M. Herrley; Mike I. Carlson; Randall O. Swarthout; Sammy L. Cross; Darrell D. Miller; Ronald L. Stoddard; James D. Tolle; Larry S. Clark; Robert T. Epler; Richard W. Cavender; Dale Young; Robert F. McIntosh; Julian R. Nelson; Walter T. Gronek; Ronald E. Ostendorf; Ronald R. Johnson; Melvin E. Sayre; Robert F. Lannon; Gerald T. Dueling; Philip J. Eberhardt; Roxie L. Jackson; Russell P. Eggers; Ron G. Van Northwick; Thomas M. McMurtry; Larry R. Mann; Maurice F. McDonald; Donald A. Raschke; Cleo D. Schroeder; Kenneth W. McIntosh; Robert A. Podjenski; Gilbert R. Throm; Donald K. Peters; Robert G. Wenzel; Cecil B. Miller; Leroy W. Roth; James L. Wells; Charles F. Smartt; James W. Jenkins; John J. Stamate; Gerry W. Spinden; David E. Dupree; Donald R. Smith; James P. Manary; Ronald B. Hunt; Robert E. Williams; Dennis J. Smith; Gary E. Metcalf; Benny L. Covington; Robert E. Wedgwood; Norman R. Thomas; Jon L. Stone; Steven L. Brown; John R. Holloway; Warren H. Bush; Edward W. Berardino, Plaintiffs-Appellants, v. UNION PACIFIC RAILROAD COMPANY, a Utah corporation; United Transportation Union, Defendants-Appellees, Equal Employment Opportunity Commission; Equal Employment Advisory Council, Amici Curiae. Jerome J. SMITH; Michael R. Ramold; Michael X. Kosmicki; Richard J. McCune; Daniel L. Eastman; Donald E. Looker; Robert A. Harger; Steven L. Burbach; Donald S. Seghi; Roland G. Beard; Earl J. Vance; Bruce O. Stafford; Richard K. Loehning, Jr.; Tracy B. Miller; Gary L. Jones; Robert M. Hagy; William A. Myers; Gene F. Noonan; Kenneth J. Puchalski; Robert L. Keenan; Robert F. Garland; David A. Growe; Michael P. O'Neil; Timothy J. Hop
CourtU.S. Court of Appeals — Tenth Circuit

John W. McKendree, Denver, CO (Richard Rideout of Herschler, Freudenthal, Salzburg, Bonds & Rideout, P.C., Cheyenne, WY, with him on the briefs), for plaintiffs-appellants.

Douglas C. Herbert, Jr., of the Law Offices of Douglas C. Herbert, Washington, DC (Lani Schweiker Shelton of Douglas C. Herbert, Law Office, Washington, DC, and Brenda J. Council of Union Pacific Railroad Company, Omaha, NE, with him on the brief), for defendant-appellee Union Pacific Railroad.

Kevin C. Brodar, Associate General Counsel, United Transportation Union, Cleveland, OH, for United Transportation Union.

Lawrence M. Stroik, Burlington Northern Railroad, Fort Worth, TX (John A. Coppede of Sundahl, Powers, Kapp and Martin, Cheyenne, WY, with him on the brief), for defendant-appellee Burlington Northern Railroad Company.

James R. Neely, Jr., Deputy General Counsel; Gwendolyn Young Reams, Associate General Counsel; Vincent J. Blackwood, Assistant General Counsel; and Paul D. Ramshaw, Attorney, U.S. Equal Employment Opportunity Commission, on the brief for amicus curiae Equal Employment Opportunity Commission.

Robert E. Williams and Douglas S. McDowell, McGuiness & Williams, Washington, DC, on the brief for amicus curiae Equal Employment Advisory Council.

Before EBEL and McKAY, Circuit Judges, and COOK, * Senior District Judge.

McKAY, Circuit Judge.

This opinion resolves both Hiatt, et al. v. Union Pacific, et al. and Smith, et al. v. Burlington Northern, et al. The issues raised by the two cases are identical, and the cases were presented together at oral argument. We jointly refer to the plaintiffs in Hiatt and Smith as "Plaintiffs" and, similarly, to the various defendants as "Defendants."

The opinion of the district court, see Hiatt v. Union Pac. Co., 859 F.Supp. 1416 (D.Wyo.1994), recounts in full the somewhat extensive background to this case. We offer here only the abridged story. From the advent of the diesel locomotive, the trains of this country were traditionally operated by a crew comprising an engineer, a conductor, and one or two brakemen. The march of progress did not leave this arrangement untouched, however; the virtual elimination of the caboose in recent decades substantially reduced the work historically performed by brakemen. In the early 1980s, the railroads, in an effort to reduce crew sizes to conform to modern needs, ceased to replace retired brakemen. Progress, alas, marched forward somewhat more quickly than did the brakemen, and by the late 1980s

the railroads confronted both a daunting surplus of brakemen and a shortage of conductors. It is perhaps not surprising that the efforts of the railroads to negotiate a settlement with the United Transportation Union ("UTU") reached an impasse. In the end, it was necessary for Congress to legislate a solution to the brakeman problem.

Public Law No. 102-29, 105 Stat. 169 (1991), in essence, mandated that all brakemen be promoted to conductor unless a Special Board, appointed by the President, should find such action to be demonstrably inequitable or materially erroneous. The Special Board found no fault with the congressional solution, and the brakemen of this country were, after some further negotiations between the railroads and UTU, promoted to conductor.

For many older brakemen, however, promotion held, and holds, little allure. Under the seniority system long in place in the railroad industry, brakeman seniority does not carry over when one is promoted to conductor. 1 Thus, a newly promoted conductor begins with no seniority, and takes his or her place at the bottom of the duty roster. This transition from experienced brakeman to junior conductor can be abrupt under the best of circumstances: one loses a great deal of choice over one's work, and must again toil at those duties that no one else desires. Traditionally, the prospect of a second stint of grunt work deterred a significant percentage of qualified brakemen from accepting promotion to conductor, and in fact the majority of the Plaintiffs chose to forego promotion and remain brakemen. Mandatory promotion, within the context of the established seniority system, thus thrust a rather traumatic, and unwanted, mid-life career change upon the Plaintiffs. As brakemen, the Plaintiffs could choose to work whatever runs suited them; as conductors, these same individuals must now take what they can get--at an age when their bodies are less resilient, and their lives more settled, than many younger men who hold greater conductor (but less overall) seniority. Unhappy with their situations, and believing themselves to have suffered because of their ages, the Plaintiffs filed suit under the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634. The district court granted the Defendants summary judgment, and the Plaintiffs now appeal.

The Plaintiffs herein acknowledge that Public Law No. 102-29, as implemented by the Special Board, required that they be promoted to conductor. They do not here challenge that promotion. Rather, they attack the manner in which the Defendants effected the elimination of the brakeman position. Specifically, the Plaintiffs contend that the Defendants failed to take measures to mitigate the uniquely deleterious impact of promotion upon the lives of older brakemen. The Plaintiffs assert that the Defendants could have preserved the ability of older brakemen to control their work schedules either by dovetailing brakeman seniority with conductor seniority or by otherwise redistributing the workload to spare older brakemen the more arduous tasks. The Plaintiffs claim that the failure of the Defendants to take these (or similar) steps gives rise to both a disparate impact and a disparate treatment claim. We address these claims in turn, reviewing the merits of the Plaintiffs' arguments de novo. We must first, however, resolve two threshold questions of jurisdiction.

The Defendants, noting that Public Law No. 102-29 expressly precludes judicial review of the Special Board's findings, argue that the federal courts do not have subject matter jurisdiction to consider this appeal. We think their contentions misplaced. The Plaintiffs, as indicated above, challenge not the preferment authorized by the Special Board but the manner in which the Defendants carried out their statutory duties. We have jurisdiction to determine if the Defendants in performing those duties discriminated unlawfully on the basis of age.

The Defendants, in the alternative, argue that this case is in fact a minor dispute subject to mandatory arbitration under the Railway Labor Act. See Hiatt, 859 F.Supp. at 1423-26. We disagree for the reasons given by the district court. See id. at 1425-26. The Supreme Court, in Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), held that the Railway labor Act did not preclude claims of wrongful conduct brought under FELA. See id. at 564-67, 107 S.Ct. at 1414-16. We see no reason to reach a different result here. The Railway Labor Act, standing alone, cannot shield the Defendants from the ADEA. We turn now to the merits of the Plaintiffs' claims.

...

To continue reading

Request your trial
14 cases
  • Mullenix v. Forsyth Dental Infirmary for Children
    • United States
    • U.S. District Court — District of Massachusetts
    • November 13, 1996
    ...invalidate a seniority or merit system or a system which measures compensation by quantity or quality. See Hiatt v. Union Pacific Railroad Company, 65 F.3d 838, 842 (10th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 917, 133 L.Ed.2d 847 (1996) ("challenges to the effects of bona fide se......
  • Bailey v. Norfolk and Western Ry. Co.
    • United States
    • West Virginia Supreme Court
    • December 15, 1999
    ...worse treatment than others. 178 W.Va. at 170-71, 358 S.E.2d at 429-30. The Railroad directs our attention to Hiatt v. Union Pacific Railroad, 65 F.3d 838 (10th Cir.1995), and alleges that the Hiatt decision lends credibility to the Railroad's position in this matter. The Hiatt court upheld......
  • Camacho v. Sears, Roebuck de Puerto Rico
    • United States
    • U.S. District Court — District of Puerto Rico
    • September 17, 1996
    ...569 F.2d 169, 175 (1st Cir.1978), vacated on other grounds, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); Hiatt v. Union Pacific R.R. Co., 65 F.3d 838, 842 n. 4 (10th Cir.1995). The essence of Camacho's claim is that the salary restructuring, which Sears avers was imposed on all employe......
  • Douglass v. United Auto Workers, Local 31
    • United States
    • U.S. District Court — District of Kansas
    • March 31, 2005
    ...has held that "challenges to the routine operation of a bona fide seniority system must rest upon a claim of disparate treatment." Hiatt, 65 F.3d at 842. Therefore, to overcome UAW's motion for summary judgment, plaintiff must set forth specific facts demonstrating that GM and UAW's seniori......
  • Request a trial to view additional results
2 books & journal articles
  • Age discrimination
    • United States
    • James Publishing Practical Law Books Federal Employment Jury Instructions - Volume I
    • April 30, 2014
    ...fide seniority system defense, the first two elements are based on the parallel Title VII instruction. See Hiatt v. Union Pac. R.R. Co. , 65 F.3d 838, 842 (10th Cir. 1995) (analogizing §623(f)(2)(A) to similar language in Title VII). See also Pullman-Standard v. Swint , 456 U.S. 273, 289 (1......
  • U.s. Supreme Court Sets Age Discrimination Proof Requirements
    • United States
    • Colorado Bar Association Colorado Lawyer No. 29-10, October 2000
    • Invalid date
    ...Woods v. Friction Materials, Inc., 30 F.3d 255 (1st Cir. 1994); Hiatt v. Union Pac. R.R., 859 F.Supp. 1416 (D.Wyo. 1994), aff’d, 65 F.3d 838 (10th Cir. 1995), denied, 516 U.S. 115 (1996). 10. Reeves, supra, note 2. 11. Id. at 2103. 12. Id. at 2103-04. 13. Id. at 2104. 14. Id. at 2110.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT