Sellers v. BNSF Ry. Co.
| Decision Date | 18 March 2013 |
| Docket Number | CIVIL ACTION NO. 1:11-CV-190 |
| Parties | DENISE SELLERS, Plaintiff, v. BNSF RAILWAY COMPANY, Defendant. |
| Court | U.S. District Court — Eastern District of Texas |
Pending before the court is Defendant BNSF Railway Company's ("BNSF") Motion for Summary Judgment (#27), in which BNSF seeks judgment as a matter of law on Plaintiff Denise Sellers's ("Sellers") claims of sex discrimination and retaliation brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e—2000e-17. Sellers opposes BNSF's motion, asserting that the record contains disputed material facts that make summary judgment inappropriate. Having considered the pending motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that BNSF's motion should be granted.
BNSF initially hired Sellers in 1997 as a trainman. From 1998 until her ultimate termination in 2008, she was employed as a locomotive engineer. During that time, several issues arose concerning her employment. In 1999, Sellers filed a sexual harassment suit against the company, which settled out of court. In 2006, she received several letters relating to her purported violations of various BNSF work rules. The first letter, sent by BNSF on February 6,2006, assessed a formal reprimand and ten-day record suspension1 against Sellers for failing to contact her supervisor within 24 hours of missing work for a family emergency and for purportedly violating another unspecified work rule.2
Several months later, on June 20, 2006, BNSF sent a second letter formally reprimanding Sellers for violating work attendance guidelines. Specifically, the letter stated that Sellers failed to perform service as a full-time employee between February 2006 and April 2006. Sellers's supervisor, Darren Whitten, sent a third letter to her on August 18, 2006, informing her that she was dismissed from BNSF due to her continued violations of BNSF's attendance guidelines. According to the letter, Sellers missed a call on July 8, 2006, violated the attendance policy between April and June 2006, and violated the attendance policy, pending investigation, between May and July 2006.3 Sellers did not file a charge with the Equal Employment Opportunity Commission ("EEOC") at that time.
Despite her previous violations, the General Manager of BNSF's Gulf Division, John Klaus ("Klaus"), offered to reinstate Sellers on March 15, 2007, on the basis of "managerial leniency." The parties dispute whether Klaus's offer was simply a matter of managerial grace or based on the request of Sellers's union, the United Transportation Union ("UTU"). At the very least, an informal request by Sellers's union prompted Klaus to offer reinstatement to Sellers. In any event, the letter stated that her reinstatement was "contingent upon Ms. Sellers maintaining a 'full-time'working relationship with the carrier [BNSF]." The letter further advised that if she failed to do so, for example, by violating BNSF's attendance guidelines, missing a call, "laying off on call," or not reporting to work, she could be permanently dismissed after a formal investigation. It also specified that if she maintained full-time status consecutively for one year without a non-serious or serious incident, her previous discipline would not be considered when assessing future discipline. Further, the letter emphasized that it was Sellers's "final opportunity" to prove that she would "protect her service opportunities" with BNSF. Sellers accepted the offer and was reinstated on March 26, 2007.
According to BNSF, on August 3, 2007, Sellers again violated BNSF's work rules. That day, Sellers and her conductor were operating a train pursuant to a track warrant.4 The track warrant authorized Sellers to move the train only up to a specific mile marker. Sellers did not stop the train in time, however, so she placed the train in "emergency" mode and stopped it a few feet past the marker. She then removed the train from "emergency" mode, reversed it, and brought it behind the mile marker. She allegedly did not immediately report the incident to anyone at BNSF. According to BNSF, all of these actions—exceeding the track warrant authority, taking the train out of emergency mode and reversing it, and not immediately reporting the incident—violated BNSF rules.
As a result of the aforementioned incident, Utilis Vinson ("Vinson"), the Superintendent of Operations, suspended Sellers from service on August 8, 2007. In explaining his decision, Vinson stated that he considered the severity of the incident, its proximity to Sellers'sreinstatement, and his interpretation of her reinstatement offer, which he viewed as putting Sellers on a form of probation. The reinstatement offer, however, does not expressly reference the term "probation." For her part, Sellers contends that the incident was her first operations rules violation, for which BNSF employees ordinarily receive no more than a 30-day suspension. Her suspension, however, lasted four months, during which time BNSF conducted a formal investigation.
On November 26, 2007, while on suspension for the August 2007 incident, Sellers filed an EEOC charge against BNSF. The charge avers that her August 8, 2007, suspension was the result of sex discrimination and retaliation by BNSF. It also alleges that she was subjected to a hostile work environment. After the investigation into the August 2007 incident was completed, Vinson ended Sellers's suspension. She returned to service on December 8, 2007, subject to a three-year probationary period expressly set out in a letter from BNSF.
On January 1, 2008, Sellers reportedly committed additional violations of BNSF rules. BNSF contends that Sellers again exceeded her track warrant authority and had to put the train into "emergency" mode to stop. Although Sellers contacted the dispatcher to state that she had placed the train into emergency mode and to receive further instructions, she failed immediately to disclose to the dispatcher that she had also exceeded her track warrant authority. Shortly thereafter, the conductor accompanying Sellers on the train notified the dispatcher that the crew had exceeded its track warrant authority. While admitting that she did not advise the dispatcher she had exceeded her track warrant authority in her first communication with him, Sellers disputes the characterization of her conduct as dishonest. She notes that the dispatcher was informed that she had exceeded her track warrant authority by the conductor only minutes after she first reportedthat she had to place the train in emergency mode. In her view, the fact that BNSF labeled that delay as a failure to notify demonstrates the abnormal scrutiny to which she was subjected on the job.
After BNSF conducted a formal investigation into the January 1, 2008, incident, Vinson discharged Sellers in February 2008. He reached his decision to terminate her based on the January 2008 incident as well as Sellers's prior disciplinary record. In his deposition, Vinson stated that he was particularly concerned that Sellers had been involved in two similar incidents, both of which involved exceeding her track warrant authority and a failure to report, in a very short period of time. He further claimed that he did not base his decision on Sellers's EEOC charge because he did not know about it. Sellers did not file an additional EEOC charge after her discharge nor did she supplement her November 2007 EEOC charge.
BNSF did not directly replace Sellers after her termination. Instead, her job duties were distributed among other engineers and conductors pursuant to BNSF policies on work assignments. In short, BNSF assigns work by choosing individuals from pools of employees listed on "boards" that cover specific tasks.5 For example, before her termination, Sellers was last on Board 43, which lists employees available to perform the task of moving a train from Beaumont, Texas, to Somerville, Texas.
Following her termination, the UTU asked BNSF's Labor Relations Department to reinstate her, but BNSF refused. Afterward, the union challenged her dismissal before a PublicLaw Board,6 which also denied the request for reinstatement. Meanwhile, the EEOC continued to investigate the allegations in the 2007 charge. Based on its investigation, the EEOC eventually concluded that Sellers was "subjected to a hostile environment based on her sex and retaliated against based on her complaints of discrimination in violation of Title VII . . . ." It also stated that the "[e]vidence suggests [Sellers] was discharged for an event which other employees who committed the same type of infractions were not discharge [sic] for." The EEOC did not bring suit on her behalf but issued Sellers a notice of right to sue on January 26, 2011.
On April 25, 2011, Sellers filed this action against BNSF challenging her 2007 suspension and her 2008 discharge.7 As noted, she alleges that both were the result of sex discrimination. In addition, she contends that both actions were taken in retaliation for her 1999 sexual harassment suit against BNSF and that the 2008 discharge was in retaliation for the 2007 EEOC charge. BNSF denies all of her allegations and argues that Sellers failed to exhaust her administrative remedies in connection with her 2008 discharge.
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and themovant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact....
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