Turner v. Kansas City Southern Ry. Co.
| Decision Date | 19 May 2009 |
| Docket Number | Civil Action No. 05-2668.,Civil Action No. 03-2742. |
| Citation | 622 F.Supp.2d 374 |
| Parties | Thomas D. TURNER v. KANSAS CITY SOUTHERN RAILWAY COMPANY. |
| Court | U.S. District Court — Eastern District of Louisiana |
Donald F. Deboisblanc, Donald Francis Deboisblanc, Jr., J. Rand Smith, Jr., Deboisblanc & Deboisblanc, New Orleans, LA, for Thomas D. Turner.
Rachel Wendt Wisdom, Ashlee Megan Robinson, John Mark Fezio, Matthew S. Almon, Michael R. Fontham, Stone, Pigman, Walther, Wittmann, LLC (New Orleans), New Orleans, LA, Arthur R. Carmody, Jr., Bobby Stephen Gilliam, Wilkinson, Carmody & Gilliam, Shreveport, LA, Charlie J. Harris, Jr., Seyferth Blumenthal & Harris, LLC, Kansas City, MO, for Kansas City Southern Railway Company.
MEMORANDUM RULING
Before this Court is a Motion for Summary Judgment [Record Document 157], filed on behalf of defendant, Kansas City Southern Railway Company. For the following reasons, defendant's motion is GRANTED.
Thomas Turner, Jesse Frank, Clarence Cargo, Lester Thomas, and Roberta Brown ("Plaintiffs") are, or were at one time, employed by Kansas City Southern Railway Company ("KCS"). Each of the Plaintiffs were terminated or suspended from employment after allegedly violating KCS policies. The Equal Employment Opportunity Commission ("EEOC") filed a complaint on their behalf asserting the Plaintiffs were discriminated and/or retaliated against on the basis of their race (African American). [No. 05-2668, Rec. Doc. 4].1 KCS has filed a motion for summary judgment requesting judgment be granted in its favor as a matter of law. [Rec. Doc. 157].
On October 1, 2002, Thomas Turner ("Turner"), a locomotive engineer, was involved in an incident in which a train derailed causing damage to several train cars. Thomas Schmitt ("Schmitt"), a white conductor, was on the ground providing instructions to Turner regarding how much space Turner had left before the end of the spur track. A formal investigative hearing was held on October 15, 2002 to determine the responsibility of each individual for the incident. [EEOC Ex. 3]. At the hearing, Turner argued Schmitt was entirely at fault because he provided improper signals, while Schmitt argued he provided the correct signals but Turner failed to appropriately respond to those signals. Id. After conducting the hearing, Paul Lobello, the investigating officer, determined Turner violated numerous KCS Operating Rules in the derailment incident. [KCS Ex. A2; Lobello depo. p. 116-130]. Consequently, as a result of the October 1, 2002 incident and his prior disciplinary history,2 Turner was discharged. [KCS Exs. A2, 7, 8].
Pursuant to the collective bargaining agreement ("CBA") between the Brotherhood of Locomotive Engineers and KCS, Turner's union representative appealed his dismissal to Denise L. Brame ("Brame"), Manager of Labor Relations for KCS. Brame, who is also African American, found the "discipline issued in this case was folly warranted and clearly supported by the facts adduced at the formal investigation" and denied Turner's appeal. [KCS Ex. A7]. This decision was then appealed to Kathleen Alexander ("Alexander"), Director of KCS's Labor Relations Department. Alexander also determined Turner was guilty of the rule violations and denied his appeal. [KCS Ex. A8]. Following the last step of the grievance process provided for in the CBA, Turner and his union representative appealed his dismissal to the Public Law Board, a disciplinary review body comprised of one union representative, one carrier representative, and a neutral arbitrator. On January 19, 2004, the Public Law Board issued written findings stating that "shoving the disabled engine over a derail can be attributed to [Turner's] negligence in not following the rules," and that there was "sufficient evidence" to establish Turner's culpability for the charges assessed. [KCS Ex. A11]. Nonetheless, the Public Law Board converted his dismissal to a long suspension, and ordered that he be reinstated without back pay. Id. Following this decision, Turner was reinstated by KCS and remained employed there until his recent retirement.
Pursuant to KCS policy, when an employee would like to request time off, the employee is required to call the crew dispatch office and request to be "marked off" for a certain shift for a particular reason, such as sick leave, family emergency, or personal reasons. [KCS Ex. A ¶ 10]. Unless the employee is sick, the employee's request to be "marked off" will be granted only if KCS has enough available employees on the "extra board" to fill in for the absent employee. If there is no one on the extra board to run the train, the request for leave is denied by the crew dispatcher unless higher-level managerial personnel specifically allow it. Id. ¶ 11.
On December 28, 2002, at the end of his morning shift, Jesse Frank ("Frank") informed his supervisors, Paul Seghers and Lane Bonds, that he had a family emergency and needed to take off work for his next shift, which was scheduled to start at 10:00 p.m. Seghers and Bonds informed him that he would need to call the crew dispatcher to request time off because they did not have the authority to do so. [EEOC Ex. 6]. At 4:30 p.m., less than six hours before his next shift was scheduled to begin, Frank called the crew dispatcher, Michelle Holmes, to request time off and implied that his request had already been authorized by Seghers and Bonds. [KCS Ex. D; EEOC Ex. 6]. Because there were no extra employees available to work on Frank's shift and run the train to which he was assigned, Holmes contacted Seghers and Bonds to verify whether Frank's request had been authorized. When they confirmed that they had not authorized the time off, Holmes informed Frank that there was no one available to replace him and that she could not mark him off. [KCS Ex. D]. At that time, Frank was already several hours away from New Orleans and responded that he would not appear for his shift. [KCS Exs. A18, D.]
On January 27, 2003, an investigative hearing was held to determine Frank's responsibility in connection with his failure to appear at work, also known as a "missed call." [EEOC Ex. 6]. Paul Lobello, the investigating officer, determined Frank violated KCS Operating Rules and was dishonest in his attempt to get time off. [EEOC Ex. 6; KCS Ex. A12; Lobello depo. p. 82-83]. As a result of Frank's violations and the 13 prior disciplinary actions he received between 1985 and 1999 (including repeated violations for "missed calls") [KCS Ex. A14], KCS suspended Frank for 90 days without pay. [KCS Ex. A12].
Frank appealed his suspension to Denise Brame, who found the discipline was justified and denied his appeal. [KCS Ex. A16]. Kathleen Alexander also denied his appeal, noting Frank admitted that no one granted him the authority to be off on December 28, 2002, and that his discipline was clearly justified in light of his substantial disciplinary history. [KCS Ex. A17]. The Public Law Board also found Frank at fault,3 but determined the 90 day suspension should be reduced to 45 days. [KCS Ex. A18].
On February 14, 2004, Lester Thomas ("Thomas") and Joshua Hall ("Hall"), white engineer, were on a train which ran past a "dark signal"4 during a training exercise. An investigative hearing was held and it was determined that Thomas was at fault in failing to stop the train and failing to properly update his "train consist,"5 failures which violated KCS Operating Rules and Federal Railroad Administration regulations. [KCS Ex. A19]. Both Thomas and Hall were fired by KCS, though Hall was reinstated after serving a 30-day suspension.
Thomas appealed his dismissal contending Hall was entirely at fault for the incident and that even if Thomas was partly to blame, there was no reason for him to be punished more severely than Hall. KCS claims the differential treatment was justified because Thomas had nine prior disciplinary actions while Hall had only four prior disciplinary actions. [KCS Ex. A20; Rec. Doc. 116, A52]. During the pendency of the grievance process, KCS offered Thomas leniency reinstatement,6 without back pay, but with his seniority and vacation rights unimpaired. [KCS Ex. A21]. Thomas accepted this offer and agreed to withdraw any and all claims he had against KCS.7 Id.
On May 28, 2003, Clarence Cargo ("Cargo") was suspended for failing to provide a faxed confirmation of a work order on May 1, 2003. [KCS Ex. A22]. Cargo had 16 prior disciplinary actions against him from 1986 and 2003. [KCS Ex. A23]. In 2002 and 2003 alone, prior to the May 1, 2003 incident, Cargo received a written reprimand for failing to fax a work order on December 13, 2002; a 15 day suspension for failing to fax a work order on January 30, 2003; a 5 day record suspension for failure to be available on December 8, 2002; a letter of reprimand for failure to void a DTC form on January 27, 2003; a 15 day actual suspension and 15 day deferred suspension for failure to properly inspect his train on January 27, 2003; and a 15 day suspension and a 15 day deferred suspension for failure to provide proper cover on a hazardous car on January 30, 2003. Id. These incidents were the subject of the Charge of Discrimination filed with the EEOC by Cargo on April 2, 2003, wherein he alleged he was being discriminated against on the basis of his race.8 [EEOC Ex. 61].
With respect to the May 1, 2003 incident, Cargo waived his right to a formal investigative hearing and accepted responsibility. [KCS Ex. A22]. KCS suspended Cargo for 30 days in connection with the May 1, 2003 incident itself and activated the 15 day deferred suspension he previously received, for a total of 45 days suspension. Id.
On January 7, 2004, a KCS train on which Cargo was the conductor and Scott Claiborne (white) was the...
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Turner v. Kansas City Southern Ry. Co.
...moved for summary judgment; the district court granted the motion and dismissed all of the plaintiffs' claims. Turner v. Kan. City S. Ry. Co., 622 F.Supp.2d 374, 378 (E.D.La.2009).2 The district court adopted most of KCSR's summary judgment arguments and concluded that the plaintiffs had fa......
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Player v. Kansas City Southern Ry. Co.
...of the non-protected class who were treated more favorably under "nearly identical" circumstances. See Turner v. Kan. City S. Ry. Co., 622 F.Supp.2d 374, 394 (E.D. La. 2009). Player also fails to demonstrate that KCS's proffered reasons are unworthy of credence. He has signed acknowledgment......
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Player v. Kansas City Southern Ry. Co.
...of the non-protected class whowere treated more favorably under "nearly identical" circumstances. See Turner v. Kan. City S. Ry. Co., 622 F.Supp.2d 374, 394 (E.D. La. 2009). Francis also fails to demonstrate that KCS's proffered reasons are unworthy of credence. He has signed acknowledgment......
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Player v. Kansas City Southern Ry. Co.
...of the non-protected class who were treated more favorably under "nearly identical" circumstances. See Turner v. Kan. City S. Ry. Co., 622 F.Supp.2d 374, 394 (E.D. La. 2009). Gilliam also fails to demonstrate that KCS's proffered reasons are unworthy of credence. He has signedacknowledgment......