Lindsey v. Burlington Northern Santa Fe Railway

• Decision Date: 04 June 2003
• Docket Number: No. CV-02-CO-0534-S.,CV-02-CO-0534-S.
• Parties: Gina LINDSEY, Plaintiff, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Alabama

266 F.Supp.2d 1338

Gina LINDSEY, Plaintiff, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant.

No. CV-02-CO-0534-S.

United States District Court, N.D. Alabama, Southern Division.

June 4, 2003.

Richard A. Meelheim, Meelheim Wilkinson & Meelheim PC, Birmingham, AL, for Gina Lindsey, plaintiff.

Michael W. Ray, Chaya Bail, Sadler Sullivan PC, Birmingham, AL, for Burlington

Northern Santa Fe Railway Company, defendant.

Memorandum of Opinion

COOGLER, District Judge.

I. Introduction.

Presently before the court is a motion for summary judgment, filed by the defendant on March 31, 2003, [Doc. #30], as well as a motion to strike the affidavit of Karen Foster, filed by the plaintiff on April 14, 2003, [Doc. #36]. The issues raised in the motions have been fully briefed by the parties, and are now ripe for decision. Upon due consideration, the court is of the opinion that the motion for summary judgment is due to be granted, and the motion to strike is due to be denied.

II. Facts.¹

The plaintiff, Gina Lindsey ("Ms.Lindsey"), has been employed by the defendant, Burlington Northern Santa Fe Railway Company ("BNSF"), as a trackman since November 28, 1994. In that capacity, she performs maintenance on the track at various locations. She is one of five females out of 754 trackmen who work in BNSF's District 900, and one of two females out of 914 trackmen in District 600. Ms. Lindsey is a member of the Brotherhood of Maintenance of Way Employees Union ("the Union"). The relationship between BNSF and its union-represented employees is governed by a collective bargaining agreement ("CBA"). Pursuant to the CBA, short vacancies, which are positions that are open for less than thirty days, are to be assigned to the most senior but qualified employee who is then furloughed or working in a lower paying position.

Often, when a short vacancy becomes available, the Roadmaster² overseeing a particular job will fill the vacancy with the appropriate person, in terms of seniority, already at that job-site who is working in a lower paying position (called a "field move"). If the Roadmaster does not know who should fill the short vacancy, the proper procedure is for him to call Manpower Planning³ and request that Manpower Planning determine who should fill the vacancy. When a Roadmaster makes a promotion from the field, he is required to notify Manpower Planning that the short vacancy has been filled, and Manpower Planning will document the name of the person who filled the vacancy. Occasionally, a Roadmaster will mistakenly fill a short vacancy with an individual from the field who is not the most senior qualified employee. This will result in a more senior individual erroneously being furloughed or working at a lower paying job. However, if that more senior individual has recently been furloughed from another job, he has seven days within which he may "bump" a less senior person from a job for which he is qualified.

Ms. Lindsey makes a number of allegations of discriminatory acts; as will be discussed below, many of the acts complained of are not actionable because they are time-barred under the administrative requirements of Title VII. The court's recitation of the facts will discuss only those facts it concludes are actionable and therefore relevant to Ms. Lindsey's claims.

On January 13, 2001, Ms. Lindsey filed a grievance with the Union alleging that a male with less seniority worked on a job from December 11, 2000, through December 15, 2000, while she was furloughed. She could not identify the Roadmaster involved in the assignment of the less senior male employee. BNSF agreed to settle Ms. Lindsey's claim on February 6, 2001, and it fully compensated her for the time the less senior employee was on the job.

On February 9, 2001, Ms. Lindsey filed another grievance with the Union, alleging that a male with less seniority was permitted to work from January 8, 2001, through January 19, 2001, while she was furloughed. Ms. Lindsey identified Gabe Metcalf as the Roadmaster who transferred the less senior employee to the position. On March 8, 2001, BNSF determined that a male with less seniority was working while Ms. Lindsey was furloughed, and it paid her for this time.

BNSF has established that mistakes of the type that resulted in Ms. Lindsey being furloughed while less senior males were working occur frequently; in 2001, the claims of eighty-six male employees who alleged that less senior employees filled short vacancies were paid by BNSF, and in 2002, BNSF paid similar claims of fifty-six male employees. Moreover, on at least three occasions, Roadmasters filled short vacancies with Ms. Lindsey while qualified and more senior male employees were furloughed.

In addition to the incidents that resulted in Ms. Lindsey filing the two grievances discussed above, Ms. Lindsey alleges BNSF discriminated against her with respect to opportunities to work on machines. Specifically, she alleges that she was bumped from operating the spiker machine⁴ in March 2001, by a male employee. However, she admits that she was not qualified to operate the spiker machine at that time. Ms. Lindsey also alleges she was denied access to the spiker machine in April 2001, on the basis of her sex, while less senior employees were allowed to run the machine at that time. However, it is undisputed that one of the employees who was running the machine at that time was a woman.

Ms. Lindsey also alleges that BNSF discriminated against her by failing to reimburse her for mileage in April 2001. Ms. Lindsey traveled from her home in Birmingham to a job in Mississippi, and she was under the impression that she was entitled to receive compensation for mileage if she had to travel more than seventyfive miles to reach a job-site. However, her claim for mileage was denied because she was not eligible to be compensated for mileage under the CBA.⁵

Finally, Ms. Lindsey alleges she was subjected to sex discrimination when her position on a gang in New Albany, Mississippi was abolished by a male Roadmaster in April 2001. When her job on that gang was abolished, Manpower Planning allowed her to bump a less senior male on that gang, and she missed no time working.

On June 4, 2001, Ms. Lindsey filed a charge of discrimination with the EEOC, alleging that BNSF discriminated against her on the basis of her sex. She filed her complaint, alleging sex discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, on February 28, 2002. She claims that various Roadmasters' decisions to place less senior males in positions for which she was eligible were made on the basis of her sex. The instant motion for summary judgment was filed on March 31, 2003, along with evidence in support thereof, including the affidavit of Karen Foster ("Ms.Foster"). Ms. Lindsey moved to strike Ms. Foster's affidavit on April 14, 2003.

III. Standard.

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the evidence] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. In evaluating the arguments of the movant, the court must view the evidence in the light most favorable to the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996).

Once the moving party has met his burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)). "A factual dispute is genuine only if a `reasonable jury could return a verdict for the nonmoving party.'" Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.2002) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428,1437 (11th Cir.1991)).

IV. Discussion.

A. Motion to strike.

Ms. Lindsey contends that Ms. Foster's affidavit is due to be stricken because, she argues, it contains inadmissible evidence. Specifically, Ms. Lindsey argues that Ms. Foster's affidavit is not based on personal knowledge as required by Federal Rule of Civil Procedure 56(e) and Federal Rule of Evidence 602. See Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir.2002).

Ms. Foster's affidavit states that she has "personal knowledge of the matters" therein, and identifies her as the manager over the clerical group at Manpower Planning that fills job vacancies and handles employment issues for Union employees. (Foster Aff. Ml 2-3.) Ms. Foster's affidavit describes the procedure Manpower Planning and Roadmasters in the field follow in filling short vacancies pursuant to the CBA, and opines that field moves in which a less senior employee is mistakenly promoted to an open position "may be the basis for Plaintiffs grievances that she submitted to [the Union] in 2000 and 2001 in which she alleged that she was furloughed while less senior males were permitted to work." (Foster Aff. ¶ 15.) Ms. Foster also details statistics of male employees whose claims were paid...