Romero v. Union Pacific R.R.

• Decision Date: 22 February 1980
• Docket Number: No. 78-2006,78-2006
• Citation: 615 F.2d 1303
• Parties: 22 Fair Empl.Prac.Cas. 338, 22 Empl. Prac. Dec. P 30,679 Abraisto Vincent ROMERO, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD, a corporation, United Transportation Union and Association, H. H. Brandt, R. B. Murdock, D. D. Sorenson, and A. L. Young, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1303

615 F.2d 1303

22 Fair Empl.Prac.Cas. 338,

22 Empl. Prac. Dec. P 30,679

Abraisto Vincent ROMERO, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD, a corporation, United Transportation Union and Association, H. H. Brandt, R. B Murdock, D. D. Sorenson, and A. L Young, Defendants-Appellees.

No. 78-2006.

United States Court of Appeals Tenth Circuit.

Submitted Nov. 28, 1979.

Decided Feb. 22, 1980.

Edgar Young of Patrick E. Hacker & Associates, Cheyenne, Wyo., for plaintiff-appellant.

Henry F. Bailey, Jr. of Loomis, Lazear, Wilson & Pickett, Cheyenne, Wyo. (Frederick G. Loomis, Cheyenne, Wyo., with him on the brief), for defendants-appellees Union Pac. RR. Co., H. H. Brandt, D. D. Sorenson and A. L. Young.

Edwin H. Whitehead of Urbigkit, Mackey & Whitehead, Cheyenne, Wyo. (Walter C. Urbigkit, Jr., Cheyenne, Wyo., with him on the brief), for defendants-appellees United Transp. Union and Ass'n and R. B. Murdock.

Before HOLLOWAY, McWILLIAMS and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Plaintiff Abraisto Vincent Romero, a citizen of the United States whose national origin is Mexican-American, brought this action against the Union Pacific Railroad, and three Railroad employees, H. H. Brandt, D. D. Sorenson, and A. L. Young, as well as the United Transportation Union and R. B. Murdock, Union general chairman. The amended complaint alleges that the Railroad and its named employees violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by delaying Romero's reinstatement because of his national origin and in retaliation for his filing a discrimination complaint with the Wyoming Fair Employment Commission and the Equal Employment Opportunity Commission. Romero further alleges that the Union and its general chairman violated Title VII by consenting to and conspiring with the Railroad in the discrimination and retaliation, thereby also violating Title VII. In addition, the suit charges a conspiracy in violation of 42 U.S.C. § 1985(3), and a common law count of infliction of serious mental distress based upon pendent jurisdiction. Romero seeks back pay for loss of income, compensatory damages for alleged embarrassment, humiliation and mental suffering, and punitive damages.

The defendants filed certain motions to dismiss, contending among other things that the court lacked subject matter jurisdiction over the individual defendants under Title VII, that Romero failed to exhaust administrative remedies provided him under the National Railway Labor Act, 45 U.S.C. § 151 et seq., and that Romero failed to state a claim under 42 U.S.C. § 1985(3). In addition, all defendants filed motions for summary judgment on the Title VII claims.

The trial judge treated the various motions filed in the action as a single one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. He then granted the motion for summary judgment on the Title VII claims without addressing the other issues. On appeal, Romero urges that there are controverted material issues of fact precluding summary judgment. We agree.

I. The Title VII Summary Judgment Issue

On April 9, 1976, approximately five months after entering service as a Switchman-Brakeman for the Union Pacific Railroad, Romero was involved in an incident at the Union Pacific clubhouse in Rawlins, Wyoming, with a maid employed by the Railroad. The maid claimed Romero was intoxicated and attacked her. As a result of the incident, Romero was arrested by the Rawlins police department and suspended by the Railroad pending the outcome of a Railroad investigation into possible rule violations.

On April 21, 1976, a formal fact finding proceeding was conducted by representatives of the Railroad. Romero was present and represented by Dick Tritt, local chairman of the Union, and K. P. Murphy, former local chairman of the Union. Romero denied that he attacked the maid, contending that he just covered her mouth because she was hysterical. Rec., vol. I, at 217. He admitted, however, that he had consumed four or five beers during the course of the evening. The hearing officer found that Romero was acting under the influence of alcoholic beverages and conducting himself in a manner that manifested a disregard for the safety of others, thereby subjecting the Railroad to criticism and loss of goodwill, all in violation of General Rules B and G and Operating Rules 700 and 701. As a result, Romero was dismissed from service on April 26, 1976.

Following his discharge, Romero voluntarily enrolled in the Employee Assistance Program of Union Pacific Railroad, a program designed to assist current and former employees in overcoming drug or alcohol related personal problems and to promote eventual reinstatement of rehabilitated individuals. The Railroad agrees that between April, 1976 and August, 1976, Romero worked with the Employee Assistance Program and received favorable reports. Rec., vol. I, at 175, 180. Then in August of 1976, the charges that had been filed in the justice court in Rawlins, Wyoming in connection with the alleged assault were dismissed with prejudice after Romero paid the complainant $500 for the damage to her hearing aid and glasses. Rec., vol. IV, at 38. Thereafter, Romero requested but was denied reinstatement by the Railroad.

In October, 1976, Romero filed complaints with the Wyoming Fair Employment Commission and the Equal Employment Opportunity Commission charging the Railroad ¹ with national origin discrimination in its discharge and subsequent refusal to rehire him. Rec., vol. I, at 91. In April, 1977, he also filed complaints against the Union, ² alleging national origin discrimination in its follow-up of the discharge, and retaliation ³ for his filing complaints against the Railroad. Rec., vol. I, at 92, 357.

Romero continued to request reinstatement by the Railroad until he was finally returned to service, with full seniority and other employment benefits, in July, 1977, approximately fifteen months after his discharge.

Romero contends that his reinstatement was unlawfully delayed because of his national origin and his filing of the discrimination complaints with the Wyoming Commission and the EEOC. In this connection, the investigator for the Wyoming Commission, David Garcia, found reasonable cause to believe the delay in Romero's reinstatement was the result of discrimination and retaliation, although he concluded Romero had not been discriminated against in the original discharge. Rec., vol. I, at 267-268. After conciliation efforts failed, Romero obtained his right to sue letters from the EEOC on December 7, 1977, and thereafter filed this suit on March 6, 1978.

Following the submission of briefs and oral arguments on defendants' motions, the trial court granted summary judgment. In so doing, the judge explained his reasoning in an accompanying Memorandum Opinion:

It is asserted that the plaintiff has not carried his burden. The plaintiff has not shown that a prima facie case of retaliation exists. From the facts, it is clear that the disciplinary action was not a result of plaintiff's Complaint. The reason for discharge was that Company rules were violated. Plaintiff attacked a woman on Company property while under the influence of alcohol. There was a potential of great risk to other individuals and property if the plaintiff was retained in service. The reason plaintiff was not rehired when he felt he should have been was because he did not fully cooperate in the Employee Assistance Program and the severity of the rules violations required complete rehabilitation and assurances that further activities of this sort would not result. Clearly, the disciplinary action would have occurred irregardless of plaintiff's pursuit of statutory remedies.

The facts also show that the length of time the plaintiff was discharged was not disproportionately greater than other employees discharged under similar circumstances. Further, the facts do not indicate the causal connection between protected activity and acts of alleged retaliation.

Rec., vol. I, at 377-378 (emphasis added).

Certainly there can be no question that plaintiff's conduct presented a situation where the Company had to decide whether he was fit for service and instead presented a very high risk of danger to himself and to other individuals working for the Company. This was a valid business judgment based upon a valid business policy and was in no way related to plaintiff's national origin or any filing of complaints or charges.

Rec., vol. I, at 379. Based on these conclusions, the judge found no genuine issue as to any material fact and held the defendants entitled to summary judgment as a matter of law.

A.

Issues of fact pertaining to the Railroad's liability

As we have previously noted, Romero's complaint against the Railroad is two-pronged: that the company delayed his rehiring because of his national origin and in retaliation for pursuing his statutory right to file a discrimination complaint with the EEOC. The trial court correctly held that the employment discrimination analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies both to the charge of discrimination and to the charge of retaliation. We note too that a plaintiff need not be successful on an original charge of discrimination in order to have a valid claim of retaliation. Rutherford v. American Bank of Commerce, 565 F.2d 1162 (10th Cir. 1977).

McDonnell Douglas sets out the following three-step analysis for determining employment discrimination: the plaintiff must first establish a prima facie case of discrimination; the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision in question; thereafter, the plaintiff must be afforded an opportunity to show that the employer's stated reason for making the employment decision was in fact a pretext for unlawful...