Marshall v. C & S Rail Servs., LLC

Decision Date09 April 2021
Docket Number1:19CV986
CourtU.S. District Court — Middle District of North Carolina

This matter is before the Court on a Motion for Partial Dismissal [Doc. #14] by Defendants C&S Rail Services, LLC ("C&S" or the "Company") and Jack Wilson, Dustin Wilson, and Jason Wilson (the "Wilson Defendants") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained below, the motion is granted in part and denied in part.


For purposes of Defendants' motion to dismiss, the facts alleged in the Complaint are construed in the light most favorable to Plaintiffs and all reasonable inferences are drawn in their favor. U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014). Plaintiffs Aubrey Marshall, David Walker, Ricky Lee Jones, Jr., Autwain Worthy, and April Adams are African-Americans who were employed at all relevant times by C&S, a railroad servicing business owned by the Wilson Defendants. (Compl. Introduction, ¶¶ 1-6, 10, 14, 27, 36, 66 [Doc. #1].) Their employment, they allege, ended when they were either terminated or chose not to return to work out of fear for their lives after superiors failed to address the racism Plaintiffs experienced at work.

The Company's Caucasian employees are alleged to have subjected African-American employees, including Plaintiffs at times, to threats of violence, racial slurs, derogatory comments, differential treatment, and unreasonable demands based on the employees' race, (e.g., id. ¶¶ 83, 87, 88), while the Wilson Defendants are alleged to have encouraged, assisted with, and condoned this conduct, (id. ¶ 83). The Wilson Defendants are also alleged upon information and belief to have set policies and practices related to the Company's compensation structure and termination of employees. (Id. ¶¶ 44, 62.)


Aubrey Marshall was a Field Manager for C&S from December 15, 2017 to June 2018, having received a raise in his annual salary from $54,000 to $60,000 in May 2018 for successfully executing his duties. (Id. ¶¶ 10-11.) Because of his job responsibilities, he traveled to worksite locations along the Eastern seaboard supervising approximately twenty employees who performed railroad services and repair contract services. (Id. ¶¶ 10, 12.) His crews were made up mostly of African-Americans, a segregation practice that made him uncomfortable and about which he questioned Company management. (Id. ¶ 13.) In early May 2018, C&S sent Marshall to work with a mostly white crew in New York, and he repeatedlytold Operations Manager Tim Ritter that he was uncomfortable with the racial segregation of employees. (Id. ¶¶ 14-16.)

That same month, Dustin Wilson and Ritter instructed Marshall to fire an African-American employee because he did not have clearance from the railroad board for eRailSafe, yet Ritter told Marshall not to fire David Skeens, a Caucasian employee, even though he also did not have clearance for eRailSafe. (Id. ¶ 14.)

Marshall and Ritter continued to interact in May when Marshall complained that Rueben Hensley, a Caucasian employee, was insubordinate, called him "'a big dummy'", and "used other racially offensive language" directed towards Marshall. (Id. ¶ 17.) Five days later, Marshall met with "Company owner Wilson" and Ritter and told them he felt the Company was racist because it had not addressed his complaints about Hensley's conduct. (Id. ¶ 18.) Upon information and belief, "Wilson" and Ritter refused to remediate the Company's racist conduct towards its African-American employees. (Id.)

Hensley's behavior toward Marshall had not changed when Marshall called him several times on May 24 to check on the worksite and Hensley made derogatory comments and hung up each time. (Id. ¶ 19.) Marshall again reported Hensley's behavior to Ritter who said he would take care of the situation, but upon information and belief, did not do so, as evidenced by Hensley's bragging that C&S management gave his family a vacation and free motel stay. (Id. ¶¶ 19-20.)

Not long afterwards, on May 30, Marshall received a telephone call from David Walker, the only African-American employee on Marshall's New York crew,reporting that his coworkers told him they were going to hang him from a tree. (Id. ¶ 21.) Marshall informed Ritter, and within minutes Hensley texted Marshall, "can we go on a nigger hanging spree". (Id. ¶ 22 (citing Ex. 1 to Compl.).) Marshall told Ritter that neither he nor other African-American members of his crew felt safe coming to work, and he asked the Company to take steps so that he could return. (Id. ¶ 23.) C&S and "the individual Wilson Defendants" failed to take action and, fearing for his life and that of his crew members, Marshall did not return to work, and in retaliation C&S did not pay him for all the hours he had worked. (Id. ¶¶ 24-25.) Meanwhile, Hensley is still employed with the Company and upon information and belief was promoted into Marshall's position. (Id. ¶ 26.)


David Walker was employed as a Laborer for C&S from April to June 2018 earning approximately $13 per hour. (Id. ¶ 27.) While working on Marshall's crew in New York in May 2018, Walker's Caucasian crewmembers repeatedly referred to him using racially derogatory terms like "'boy'" and "'you-n'". (Id. ¶ 28.) One coworker, "Stevo", refused Walker's help and told him "'your kind is always beneath me'". (Id. ¶ 29.) The following day, while Walker was in a truck with two Caucasian coworkers, one of them said, "'We are going to have a David Walker hanging today'" and "'We are going to hang David today.'" (Id. ¶ 30.) Upon information and belief, this racial hostility was tolerated by Skeens who supervised these employees. (Id. ¶ 33.) As noted above, Walker reported this threat and his fear to Marshall. (Id. ¶ 31.) Like Marshall, Walker did not feel safe returning towork after Ritter, "the Wilson Defendants", and C&S managers failed to take immediate action to protect the African-American employees. (Id. ¶¶ 34-35.)


Marshall also worked with Rickey Lee Jones, Jr., whom he hired in February 2018 to work on his crew in Georgia as a dump truck driver for $15 to $17 per hour. (Id. ¶¶ 36-37.) Ritter told Jones that Marshall should not have hired him and that he did not like either of them. (Id. ¶ 39.) Ritter "repeatedly cursed at", "spoke harshly to", and "made unreasonable demands" of Jones such as when he told Jones to get his "'ass'" in the truck and travel from Kentucky to Tennessee or be fired, even though Ritter knew the truck was faulty and without working lights. (Id. ¶ 40.) Upon information and belief, Ritter did not direct similar offensive language and unreasonable demands towards Caucasian employees. (Id.)

After Marshall left C&S, Jones was supervised by Dylan Cox, a Caucasian employee, who spoke about Marshall in a "derogatory manner", leading Jones to complain about Cox's unprofessionalism. (Id. ¶ 49.) Cox also made Jones do extra work without pay after Cox and Dustin Gambles, a Caucasian dump truck driver, would go out drinking and gambling. (Id. ¶¶ 38, 42.) After Gambles told Jones in July 2018 that he wanted Jones's dump truck which had air conditioning, C&S managers told Jones they needed to fix his truck, gave it to Gambles, and provided Jones with a "'new'" 1998 model truck without air conditioning that leaked asphalt. (Id. ¶ 43.) The Company repeatedly denied him proper equipment while providing it to Caucasian employees. (Id. ¶ 47.)

And, on information and belief, Gambles was paid over $20 per hour despite having less experience than Jones. (Id. ¶ 44.) When Jones asked for a raise, C&S managers ignored his request and asked him to drive a riskier and more difficult combination trailer and truck. (Id. ¶ 45.) Jones alleges that, upon information and belief, C&S has a pattern and practice of underpaying African-Americans for the same or similar jobs as Caucasian employees. (Id. ¶ 44.)

When Jones was the only African-American employee on Cox's crew, the other employees - who did not have a commercial driver's license ("CDL") - repeatedly told Jones - who did have a CDL - what to do and questioned his credentials. (Id. ¶ 47.)

Jones was also supervised at some point by Cody Lord. (Id. ¶ 48.) Lord's crew was young, white men, many of whom used racist language. They called Jones "'you-n'" and referred to "'your kind'". (Id.) Jones complained to C&S management about his Caucasian co-workers' language, habits, and avoiding work duties. (Id. ¶ 50.) Upon information belief, Ritter said he would teach Jones a lesson for trying to go by the book and/or opposing the Company's and managers' racist treatment and disparate practices. (Id. ¶ 51.) C&S fired Jones in July 2018. (Id.) Meanwhile, on information and belief, the Company made Gambles a supervisor. (Id. ¶ 52.)


Autwain Worthy worked for C&S on and off over five years as a driver, laborer, and ground foreman and was paid approximately $12.50 per hour. (Id.¶ 53.) Adams and Marshall supervised Worthy, "and he noticed that C&S placed all African American employees together and segregated the Caucasian employees on different teams." (Id. ¶ 54.) He trained at least five Caucasian employees who frequently refused to follow his orders or show him respect because of his race, treatment that was observed by Jones. (Id. ¶¶ 41, 55.) Those employees were then moved into all-white crews. (Id. ¶ 55.)

Worthy also heard racist comments such as when Caucasian employees, including Skeens, referred to him and other African-American employees as "'boy'" and "'you-n'" and cursed at and used harsh and abusive language towards them. (Id. ¶¶ 56, 57.) Worthy observed C&S treat Caucasian employees differently than African-Americans such as when Caucasian employees were allowed to go to a...

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