Kitchen v. Burlington Northern and Santa Fe R. Co.
| Decision Date | 12 January 2004 |
| Docket Number | No. 02-2491-GTV.,02-2491-GTV. |
| Citation | 298 F.Supp.2d 1193 |
| Parties | David L. KITCHEN, Plaintiff, v. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Defendant. |
| Court | U.S. District Court — District of Kansas |
Bobbie R. Bailey, Howard, Rome, Martin & Riddley, LLP, Redwood City, CA, James E. Kunce, Overland Park, KS, for Plaintiff.
David M. Pryor, Jack D. Rowe, Lathrop & Gage, LC, Kansas City, MO, Sara J. Kagay, Lathrop & Gage, LC, Kansas City, MO, for Defendant.
Plaintiff David L. Kitchen brings this employment discrimination suit against his former employer, Defendant The Burlington Northern and Santa Fe Railway Company. Plaintiff alleges that Defendant unlawfully discriminated against him because of his age and because he complained of age discrimination. He also alleges that when Defendant terminated Plaintiff's employment, Defendant breached an implied contract to terminate only for cause.
The case is before the court on Defendant's motion for summary judgment (Doc. 45). For the following reasons, the court grants Defendant's motion in part. The court reserves ruling on whether Plaintiff's state law breach of contract claim should be dismissed.
The following facts are taken from the summary judgment record and are either uncontroverted or viewed in the light most favorable to the non-moving party's case. Immaterial facts and facts not properly supported by the record are omitted. References to testimony are from depositions.
Plaintiff was born January 25, 1950. In 1971, he began his employment with The Atchison, Topeka and Santa Fe Railway Company as a track laborer. Between 1971 and 1984, Plaintiff was promoted to various positions, including machine operator, student foreman, track foreman, relief track supervisor, and track supervisor. In April 1984, he was promoted to Assistant Roadmaster, an exempt position. In 1986, he was promoted to Roadmaster, and in 1994 to Assistant Director of Maintenance. As Assistant Director of Maintenance, Plaintiff was responsible for the supervision of several Roadmasters, safety, discipline of employees, the division budget, and the maintenance of the tracks under his responsibility.
In late 1995, The Atchison, Topeka and Santa Fe Railway Company merged with The Burlington Northern Railroad, forming The Burlington Northern and Santa Fe Railway Company ("BNSF"). After the merger, Plaintiff's position was first retitled General Roadmaster, and then Division Engineer, but his job duties did not change. Plaintiff eventually became Division Engineer over the "Kansas Division," an area of main line railroad tracks in Missouri and Kansas. Another Division Engineer, Dennis Dudding, was responsible for the "Kansas City Division." In August 2000, Rick Russell, General Director of Maintenance and Plaintiff's direct supervisor at the time, ordered Plaintiff and Dudding to switch territories. The switch did not affect Plaintiff's title, pay, or benefits. Mr. Russell testified in deposition that no executive was displeased with Plaintiff's performance.
On February 22, 2001, Russell informed Plaintiff that BNSF planned to combine the Kansas and Kansas City Divisions, retaining only one Division Engineer over both divisions. Russell testified that the change was effective February 16, 2001, but that he had to run the decision by his bosses before notifying Plaintiff of the change. Russell, who was born on October 26, 1951, also told Plaintiff that he was going to retain Dudding as Division Engineer over both divisions, and that Plaintiff would be Dudding's Assistant Division Engineer. Dudding was born on November 13, 1955. When Plaintiff asked the reason for the change, Russell told him that "it was just a decision that they had made" and that Plaintiff "had done nothing wrong." In deposition, Russell later testified that "the leadership part of—Dudding, or his—the leadership abilities over [Plaintiff] and this wasn't anything personal, I just felt like this was the best move for the division at the time." Russell also testified that Plaintiff and Dudding were "about even" in technical skills, but that Dudding had superior leadership skills.
Dudding started working with The Burlington Northern Railroad in 1974. He became an exempt employee in 1988 as an Assistant Roadmaster. He later became a Roadmaster and an Assistant Division Engineer. Dudding became a Division Engineer in 1999.
BNSF assigns salaried employees to "salary bands," which have a broad salary range. It is possible for an employee in a lower salary band to receive a base salary higher than an employee in a higher salary band. As a Division Engineer, Plaintiff's salary band was grade 32, but the salary band of an Assistant Division Engineer was 31. When Plaintiff became an Assistant Division Engineer, his salary was to be "red circled" for a period of eighteen months, meaning he would remain at salary band 32 until August 2002, at which time he would transfer to salary band 31. Plaintiff's stock options would also be "red circled" for eighteen months at band 32. After the "red circle" period, Plaintiff's salary would remain the same, but his stock options would be reduced.
On February 28, 2001, Plaintiff met with Russell and told him that he did not think the Assistant Division Engineer assignment was fair because of his age, length of service, experience, and veteran status. He also told Russell that he planned to speak with an attorney about the reassignment, and Russell responded, "Well, that's your privilege." During the meeting, Russell also told Plaintiff that he would help him get a Division Engineer job elsewhere within BNSF. At Plaintiff's request, Russell sent Plaintiff a letter on March 13, 2001, explaining the job changes and that the reassignment was effective February 16, 2001.
Plaintiff also told the Human Resource Director, Dan Freshour, that he did not think the reassignment was fair, given his age and experience. Freshour told Plaintiff he would investigate. Plaintiff testified that he thought Freshour understood that he was lodging a complaint, although he did not follow BNSF's Internal Complaint Procedure. A few weeks later, Freshour told Plaintiff there was nothing he could do about the reassignment.
Despite Russell's offer to help Plaintiff obtain another Division Engineer position, Plaintiff did not apply for the "couple" of jobs he believed were posted because he "didn't feel that it would do any good" and because he believed it was "obvious" that BNSF did not want him as a Division Engineer. Two Division Engineer positions in California and Texas were posted after Plaintiff's termination, and Plaintiff could have applied for them, even as a separated employee.
BNSF's performance reviews are structured to give employees ratings from 5 to 1; 5—outstanding; 4—excellent; 3—satisfactory; 2—unsatisfactory; and 1—too new to rate. In 1998, Plaintiff received an overall competency rating of 3.5 and a leadership rating of 3.0. Dudding received an overall competency rating of 4.1 and a leadership rating of 5. In 1999, Plaintiff received an overall competency rating of 3.0 and a leadership rating of 3.0. Dudding received an overall competency rating of 3.75 and a leadership rating of 4.0. In 2000, Plaintiff received a 3.0 in both categories, and Dudding received a 3.75 in both categories. Both Plaintiff and Dudding have the same written comments for "leadership" in 2000, when Russell completed both of their performance evaluations. Although the evaluations contain the same written comments, Russell gave Dudding an overall higher score based on "probably ... how well he developed the people that he worked with and from my observations and while I'm out in the field with them, is one of the factors and numerous others." Russell had no recollection of what documentation would support different ratings for the two Division Engineers.
In Plaintiff's 1999 performance evaluation, Plaintiff's supervisor, Steve Weatherby, recommended that Plaintiff undergo a "360 evaluation," which is an opportunity to give Plaintiff a "verbal mirror" regarding his leadership skills. Weatherby also noted that he "would like to see an improvement in ownership of problems and leadership to build a cohesive team." Plaintiff's performance evaluation came after Michael Nuorala, also Plaintiff's supervisor and the Director of Line Maintenance, wrote Plaintiff a memo setting forth deficiencies he had observed, including Plaintiff's training of employees, communication, and other leadership skills.
The performance reviews are largely subjective reviews. On the portion of the review capable of being supported by objective data, the "Scorecard," Plaintiff scored a 4.0 and Dudding a 3.75 for the year 2000. The Scorecard rated engineering audit items such as incidents, lost days, derailments, number of reportable developments, and budget issues, as well as others.
Plaintiff was rated first out of twenty-one division on safety frequency/severity ratio in the Kansas Division in 1999 and 2000. Mr. Russell believed that company-wide, safety is one of the most critical things they manage. Plaintiff also repeatedly completed projects under budget while Dudding exceeded his budget.
In October 2001, BNSF began restructuring the company. Approximately four hundred positions were eliminated, including all Assistant Division Engineer positions. Plaintiff testified in deposition that he believes he was assigned to the Assistant Division Engineer position in February because BNSF knew it planned to eliminate the position in October.
On October 26, 2001, Russell called Plaintiff while he was on vacation and told him that his position was being eliminated. The decision to eliminate the position was initiated "a lot higher" than Russell. Russell...
To continue reading
Request your trial
-
Oglesby v. Hy-Vee, Inc.
...2005 WL 1331097, at *7 (W.D.Okla.2005) (six years sufficient under Tenth Circuit precedent); Kitchen v. Burlington N. & Santa Fe Ry. Co., 298 F.Supp.2d 1193, 1200-01 (D.Kan.2004) (VanBebber) (six years insufficient); Housley v. Boeing Co., 177 F.Supp.2d 1209, 1215 (D.Kan.2001) (Lungstrum) (......
-
Anderson v. Guar. Bank & Trust Co., Civil Action No. 14-cv-01508-NYW
...of discrimination is weakened when the decision maker is within the protected class. See, e.g., Kitchen v. Burlington Northern and Santa Fe R. Co., 298 F. Supp. 2d 1193, 1203 (D. Kan. 2004); Chan v. Donahoe, 63 F. Supp. 3d 271, 294 (E.D.N.Y. 2014); Demesme v. Montgomery Cnty. Gov't, 63 F. S......
-
Meltzer v. City of Wilmington
...an adverse employment action, citing to a number of cases from the District of Kansas. See, e.g., Kitchen v. Burlington N. & Santa Fe Railway Co., 298 F.Supp.2d 1193, 1204–05 (D.Kan.2004); Kennedy v. Gen. Motors Corp., 226 F.Supp.2d 1257, 1268 (D.Kan.2002). Whether the City's refusal to hol......
-
Points v. Honeywell Int'l, Inc.
...the fact that Mr. Erivez is close to Plaintiff's age belies any illegal motive based on age. See Kitchen v. The Burlington Northern and Santa Fe Rail. Co., 298 F.Supp.2d 1193, 1203 (D.Kan. 2004 (plaintiff faces difficult burden of establishing discrimination when the decision-maker is in th......