Marsh v. Union R.R. Co.

• Decision Date: 29 September 2021
• Docket Number: 2:20-cv-01145-RJC
• Parties: CHARLES MARSH, individually and on behalf of all others similarly situated, Plaintiff, v. UNION RAILROAD COMPANY, LLC., TRANSTAR, LLC, UNITED STATES STEEL CORPORATION, SMART TRANSPORTATION DIVISION, JOEL HUDSON, JONATHAN CARNES, and MALISA SOMMERS, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

CHARLES MARSH, individually and on behalf of all others similarly situated, Plaintiff,
v.
UNION RAILROAD COMPANY, LLC., TRANSTAR, LLC, UNITED STATES STEEL CORPORATION, SMART TRANSPORTATION DIVISION, JOEL HUDSON, JONATHAN CARNES, and MALISA SOMMERS, Defendants.

No. 2:20-cv-01145-RJC

United States District Court, W.D. Pennsylvania

September 29, 2021

MEMORANDUM OPINION

Robert J. Colville, United States District Judge

Before the Court are two motions to dismiss: First, the Motion to Dismiss (ECF No. 30) filed by the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (“SMART-TD” or “the Union”), and second, the Motion to Dismiss filed by Defendants Jonathan Carnes, Joel Hudson, Malisa Sommers (collectively, the “Individual Defendants”), as well as the Union Railroad Company, LLC (“the Railroad”), Transtar, LLC (“Transtar”), and United States Steel Corporation (“U.S. Steel”) (collectively, the “Non-Labor Defendants”) (ECF No. 31). Defendants' Motions have been fully briefed and are ripe for disposition.

I. Factual Background and Procedural History

Plaintiff, Charles Marsh, brings this action alleging: 1) at Count I, violations of the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621, et seq. (“ADEA”), against

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U.S. Steel, Transtar and the Railroad, 2) at Count II, violations of the Americans with Disabilities Act (“ADA”) against U.S. Steel, Transtar, and Union Railroad, 3) at Count III, violations of the Pennsylvania Human Relations Act (“PHRA”) against U.S. Steel, Transtar, Union Railroad, Joel Hudson, Jonathan Carnes, and Malisa Sommers, 4) at Count IV, breach of duty of fair representation against Smart-TD.

The allegations in the Amended Complaint (ECF No. 26) (“Am. Compl.”) are as follows. Plaintiff, Scott Marsh, is an adult individual and a resident of Trafford, Pennsylvania. (Am. Compl. ¶ 1). Effective March 8, 2019, at the age of 57, Plaintiff was terminated from Railroad where he had worked as a brakeman for more than 8 years, and then as conductor for five years. (Am. Compl. ¶ 52, 54, 63). The Railroad is a wholly owned subsidiary of Transtar, an entity engaged in the business of transporting raw materials and finished products for a variety of industries. (Am. Compl. ¶ 14, 15). The Railroad and Transtar are wholly owned subsidiaries of and operate in concert with U.S. Steel. (Am. Compl. ¶ 14).

Plaintiff alleges that in or about May 2012, Defendants, led by 1) the Railroad, 2) the Railroad General Superintendent, Joel Hudson, 3) U.S. Steel, 4) U.S. Steel General Manager, Jonathan Carnes, 5) U.S. Steel Managing Director, Malisa Sommers and 6) Transtar, initiated a pretextual scheme to terminate Railroad employees over age 40.^[1] (Am. Compl. ¶ 18). Defendants' scheme included forcing many Senior Employees to sign “last chance” agreements, then manipulating the Railroad's demerits policy to issue a disproportionate number of demerits to Senior Employees so they could be fired for cause. (Am. Compl. ¶ 20). Conversely, younger employees alleged to have committed the same or comparable offenses as Plaintiff and other Senior Employees routinely received no demerits, substantially less demerits, or were given an opportunity to expunge

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demerits from their records over time. (Am. Compl. ¶ 21). In many cases, Senior Employees received a disproportionate number of demerits for technical offenses the Railroad had historically exercised discretion to ignore. (Am. Compl. ¶ 22). At their grievance hearings and/or arbitrations, Plaintiff and other Senior Employees lacked adequate representation and were overwhelmingly denied relief due to a concerted effort by the Defendants to fabricate or exaggerate the bases for their terminations. In some cases, the Railroad withheld potentially exculpatory evidence from Senior Employees without repercussion. Instead of fairly representing its union members as required by the collective bargaining agreement and applicable federal law, the Union was complicit in the scheme. (Am. Compl. ¶ 23). Plaintiff alleges he was the victim of a discriminatory pattern and practice designed to weed out specific categories of employees. (Am. Compl. ¶ 24).

Demerits Policy and Last Chance Agreement

The Railroad's demerits policy was created to provide a uniform structure to address employee rule and policy violations in a consistent and fair manner. According to the Railroad, the policy serves as a tool to assure rule compliance while offering employees the opportunity to correct poor behavior as well as to facilitate additional training where necessary. (Am. Compl. ¶ 25). The demerits policy is used to manage employee discipline for offenses such as tardiness, safety violations and misuse of carrier property. (Am. Compl. ¶ 26). Under the policy, managers may use informal coaching in lieu of formal discipline (demerits) for minor violations and have significant discretion with respect to the number of demerits assessed if they elect to issue demerits. (Am. Compl. ¶ 27). If a manager elects to issue demerits, the maximum number of demerits that can be assessed for a single violation is 60. Employees who reach 100 demerits are subject to termination. (Am. Compl. ¶ 28). The Railroad's demerits policy includes a provision for the removal of demerits from an employee's personnel records if the employee does not

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accrue additional demerits in the 12, 24 and/or 36 months following his or her last offense. (Am. Compl. ¶ 29).

Beginning in or about May 2012, the U.S. Steel Companies, led by Sommers, Carnes, and Hudson, began manipulating the demerits policy to ensure that Plaintiff and other Senior Employees could be fired for cause. (Am. Compl. ¶ 30). As part of the scheme, the U.S. Steel Companies targeted the Senior Employees to sign “last chance” agreements^[2]the company had historically used to informally manage disciplinary action for employees with substance abuse problems. (Am. Compl. ¶ 31).

The Non-Labor Defendants' discriminatory application of these internal rules, regulations, policies and procedures targeted the older employees while protecting younger (under age 40) employees. (Am. Compl. ¶ 36). It is further alleged that younger employees alleged to have committed the same or comparable violations routinely received no punishment, substantially less punishment or were given an opportunity to remove any evidence of rules violations from their records after a certain amount of time lapsed. (Am. Compl. ¶ 37). In many cases, senior employees were disproportionately punished after they were accused of committing highly technical offenses such as “stealing” four minutes of overtime or causing a train to move a few inches into a “red zone” when the train slacked. (Am. Compl. ¶ 38).

As a senior employee, Plaintiff was subjected to this pattern and practice of discrimination on the basis of his age. (Am. Compl. ¶ 39). Upon information and belief, Plaintiff was replaced by a younger candidate. (Am. Compl. ¶ 40).

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The Union: Smart-TD

Plaintiff and other employees (conductors, brakemen and/or switchtenders (“yardmen”)) were exclusively represented by the Union pursuant to the CBA, effective November 1, 1943. (Am. Compl. ¶ 41). Under the CBA, these senior employees were entitled to an investigation, including a fair and impartial hearing, before they could be suspended or dismissed from service. (Am. Compl. ¶ 42). The Union retained or otherwise provided to senior employees the services of a law firm (“the Law Firm”). (Am. Compl. ¶ 43). As part of this agreement the Union would bring attorney-representatives from the Law Firm to regularly scheduled union meetings and introduce them as the “union attorneys.” As a result, senior employees would seek counsel from those attorneys on a variety of work-related matters. (Am. Compl. ¶ 44). When discussing work-related disputes, such as claims of age discrimination, Plaintiff, along with other senior employees, was advised on numerous occasions by representatives from the Law Firm that there was nothing they could do for him. When pressed further, Plaintiff was told that he had no other recourse but to rely on the union for work-related disputes because “when you're in [the company's] ballpark, you have to work by their rules.” (Am. Compl. ¶ 45). Plaintiff and other senior employees initially turned to officers of the Union's local chapter, who largely accepted the pretextual bases for Plaintiff and other senior employees' terminations rather than take steps to rebut the discriminatory application of the last chance agreements and demerits policy. (Am. Compl. ¶ 46).

Plaintiff and other Senior Employees then turned to officers of Defendant Smart TD's Division Headquarters for assistance. Those officers refused to provide any assistance and deferred to the decisions made by officers of the Union's local chapter. (Am. Compl. ¶ 47). Officers of Defendant Smart TD's Division Headquarters supported and encouraged the local chapter's continued refusal to address the Non-Labor Defendants' targeting of the Senior Employees through the discriminatory application of the demerit policy. Defendant Smart TD's refusal to take action, on

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any level, constituted an organization-wide ratification of the rampant discrimination impacting its members who were employed throughout the Non-Labor Defendants' companies. (Am. Compl. ¶ 48).

In addition, the Union itself or through the Law Firm, failed to inform Plaintiff and other senior employees that certain statute of limitations may apply to their disputes and filing grievances would not toll application of those statute of limitations to their claims of discrimination. In fact, Plaintiff and other senior employees were specifically told they were forbidden from seeking other outside counsel until they had arbitrated their claims and exhausted any applicable appeals. (Am. Compl. ¶ 49)...