Williams v. CSX Transportation Inc
MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/25/2015. (AVC)
2015 Mar-25 AM 10:17
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CSX TRANSPORTATION, INC.,
Case No.: 2:13-cv-01557-RDP
This case is before the court on Defendant’s Motion for Summary Judgment (Doc. 25),
filed August 28, 2014. This Motion (Doc. 25) has been fully briefed. (Docs. 33, 35). Plaintiff’s
Complaint (Doc. 1) alleges Defendant CSX Transportation, Inc. violated Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C.
§ 1981. (Doc. 1). In particular, Plaintiff asserts race discrimination claims (Counts One and
Two) and retaliation claims (Counts One and Two). (Doc. 1). These claims are now before the
court on Defendant’s Motion for Summary Judgment (Doc. 25).
This case centers on two incidents that Plaintiff has admitted were his misconduct.
Plaintiff is a locomotive engineer, running freight in Birmingham, Alabama for Defendant CSX
On more than one occasion, Defendant has found Plaintiff’s performance
lacking. In August 2012, Plaintiff left an unqualified person behind the controls of a moving
train. For this violation of company policy and federal regulations, Plaintiff was given a ten-day
suspension. Eight months later, Plaintiff’s supervisors found Plaintiff’s train on the wrong side
of the tracks; Plaintiff parked his engine at the north end of a Birmingham area receiving yard in
violation of a bulletin issued by Defendant. For this second transgression, Defendant suspended
Plaintiff for twenty days. Plaintiff challenges Defendant’s discipline of him, contending it was
because of his race.
Again, Plaintiff readily admits that each incident was a work rule violation.
argument is that “everyone else was doing it, too.” That is, although conceding his actions were
in violation of Defendant’s policy and federal law, Plaintiff claims his white coworkers were not
similarly disciplined for their substantially similar misconduct. To the contrary, after a careful
review of the undisputed facts in the Rule 56 record and the parties’ respective arguments, the
court concludes that Plaintiff has failed to identify a single appropriate comparator. Therefore,
for the reasons stated below, Defendant’s Motion (Doc. 25) is due to be granted.
Standard of Review
Under Rule 56(c), summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary
judgment always bears the initial responsibility of informing the court of the basis for its motion
and identifying those portions of the pleadings or filings which it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party
has met its burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and by
his own affidavits, or by the depositions, answers to interrogatories, and admissions on file,
designate specific facts showing that there is a genuine issue for trial. See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts
and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249. The Eleventh Circuit has “consistently held that conclusory allegations
without specific supporting facts have no probative value.” Leigh v. Warner Bros., Inc., 212
F.3d 1210, 1217 (11th Cir. 2000).
Plaintiff Fletcher Williams, an African-American, is employed as a Locomotive Engineer
for Defendant CSX Transportation, Inc. (Doc. 28, Swafford Decl. ¶ 18). He has been employed
with Defendant since June 23, 1997. (Id.). Defendant is a railroad company operating in the
Eastern United States and Canada and headquartered in Jacksonville, Florida. (Id. at ¶ 4). Id.
Defendant employs approximately 30,000 employees, most of whom, like Plaintiff, are
unionized members of collective bargaining units. (Id.). The terms of their employment are
governed by collective bargaining agreements as well as the federal Railway Labor Act
Defendant maintains Operating Rules that govern conditions and actions on railroads
operated by Defendant in the United States. (Id. at ¶ 5). Plaintiff’s violations of these Operating
Rules and his subsequent discipline are at the heart of this controversy.
The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
Defendant’s Individual Development and Personal Accountability Policy
(“IDPAP”) and Investigations
Defendant addresses engineer discipline issues under its Individual Development and
Personal Accountability Policy (“IDPAP”), which categorizes rule violations into minor
offenses, serious offenses, and major offenses. (See Doc. 31-3, IDPAP). Minor offenses are the
result of “minor deviations,” which can result in informal corrective action, but if repeated, more
formal corrective action may be appropriate. (Id. at 2). Serious offenses under the IDPAP are
those that are more serious than minor, but the commission of a single serious offense typically
is insufficient to warrant dismissal. (Id. at 3). Nevertheless, “suspension and/or retraining may
be appropriate depending upon the circumstances.” (Id.). The IDPAP lists examples of serious
offenses, including but not limited to violations involving securing locomotives. (Id.). Major
offenses under the IDPAP are those offenses that “warrant removal from service pending a
formal hearing and possible dismissal from service for a single occurrence if proven
responsible.” (Id. at 4).
Where appropriate, Defendant sends a charge letter to the employee and sets an
investigation hearing. (Doc. 32, Ex. B-1, Holtz Dep. 23:17-19; see, e.g., Doc. 31-4, Charge
Letter, May 28, 2013). Defendant’s IDPAP follows a progressive discipline approach, in which
any discipline imposed depends on “the nature of the offense, the employee’s record, and taking
into consideration the employee’s willingness to accept responsibility.” (Doc. 31-3, IDPAP, at
4-5; Doc. 32, Ex. B-1, Holtz Decl. ¶ 13). For the first serious offense in a three-year period, the
IDPAP prescribes discipline of five to fifteen days actual suspension. An employee may face up
to thirty days actual suspension for a second such offense, and up to dismissal for a third serious
offense. (Doc. 31-3, IDPAP, at 5).
Pursuant to the Collective Bargaining Agreement (“CBA”), hearings are held to
determine whether an employee is responsible for the charged offense(s). (Doc. 32, Ex. B-1,
Holtz Decl. ¶ 17; see also Doc. 31-3, IDPAP, at 4). The investigation consists of a formal
hearing where the charged employee is afforded union representation and given the opportunity
to confront witnesses, present evidence, and testify on his or her own behalf. (Doc. 32, Ex. B-1,
Holtz Decl. ¶ 18; see also Doc. 31-3, IDPAP, at 4-5). The hearing is presided over by a
Conducting Officer who is responsible for overseeing a fair and impartial hearing. (Doc. 32, Ex.
B-1, Holtz Decl. ¶ 19).
The Work Rule Violations
As noted above, at issue in this case are the circumstances surrounding two discrete work
rule violations attributable to Plaintiff. The court discusses the Rule 56 evidence related to each
of these violations, in turn.
The August 28, 2012, Incident — Plaintiff’s Violation of Operating
In this case, the first relevant disciplinary event involving Plaintiff occurred in August
2012 when he left a moving train in the control of an unsupervised, unqualified trainee engineer.
The material facts surrounding this incident are largely undisputed.
On August 28, 2012, Trainmaster James Jackson performed an Operational Test on
Plaintiff’s train, which required Plaintiff to bring the train to a stop at the display of an electronic
signal on a banner. (Doc. 26, Pl. Dep. 117:10-118:1). While performing this “banner test,”
Jackson observed Plaintiff’s train coming quickly into the control point. (Doc. 30, Jackson Decl.
¶ 10). Over the radio system, Jackson heard Plaintiff giving trainee D.D. Crook instructions,
telling Crook to reduce the speed of the train. (Id. ¶ 11). Plaintiff was not in the locomotive cab
when giving these instructions. (Doc. 26, Pl. Dep. 103:23-104:3).
When the train stopped, Jackson boarded the train with fellow trainmasters Russell
Weeks and Byrl McCoy. (Doc. 30, Jackson Decl. ¶ 13). Jackson saw that Crook “was sitting at
the controls of the locomotive” and that Plaintiff was not with Crook. (Id.). After Crook
informed Jackson that Plaintiff was not in the cab, Jackson walked towards the back of the train
to locate Plaintiff. (Id. at ¶ 13). Jackson found Plaintiff on the front porch of the third
locomotive. (Id. at ¶¶ 13-14). Plaintiff had left the cab to turn off an alarm that was ringing
elsewhere in the train. (Doc. 26, Pl. Dep. 96:11-19). Plaintiff’s violated Operating Rule C-1
because he left an unqualified trainee engineer in control of a moving train without direct
supervision as required by federal regulations. (See Doc. 30, Jackson Decl. ¶ 14; Doc. 31-1,
CSX Operating Rules). However, at the time of the violation, Jackson praised Plaintiff for
stopping for the banner test. (See Doc. 26, Pl. Dep. 122:3-23). Jackson allegedly told Plaintiff,
“y’all did a good job.” (Id. at 122:22). Nonetheless, Plaintiff admits that Jackson instructed him
not to leave the locomotive cab to turn off the alarm while the train was still moving. (Id. at
122:8-21). Instead, he indicated Plaintiff should “let the alarm go off.” (Id.). Jackson discussed
the incident with Weeks and McCoy, and because Plaintiff reported directly to Jackson, Jackson
was the one who entered Plaintiff’s Operational Test failure. (Doc. 30, Jackson Decl. ¶ 15).
Plaintiff quarrels with (1) Jackson’s reaction immediately after the incident and (2) Jackson
thereafter documenting the work rule violation. However, this dispute is not material as it relates
to Plaintiff’s claim of discrimination. Plaintiff’s claim is based on disparate discipline; he does
not contend that he was falsely accused of a work rule violation. 2
Plaintiff also asserts that he was not properly trained on FRA rules before the August 2012 incident, and
therefore, was not aware that his actions were against any policy or regulation at that time. (Id. at 128:1-19, 157:14159:13). Plaintiff was suspended for ten days for violating Operating Rule C-1 and federal regulations, which
dictate that trainee engineers may operate only under the direct supervision of an instructor engineer. However, there
simply is no element of “discrimination” as it relates to Plaintiffs assertion that he was not properly trained as to the
work rule. That is, there is no indication, even assuming Plaintiff did not receive training as to the work rule, that
Investigation of Plaintiff’s Operating Rule C-1 Charge
On September 5, 2012, Defendant charged Plaintiff with failing to ensure that his train
was operating safely. This action was taken because Plaintiff left the cab of a moving train and
allowed an unqualified trainee engineer to operate the moving train without supervision — a
“serious” violation under the IDPAP. (Doc. 28-5, Charge Letter, Sept. 5, 2012). Plaintiff’s
formal investigation hearing was held on October 11, 2012, and he was represented by his local
union chairman, Mike Stone. (Doc. 26, Pl. Dep. 130:13-14; Doc. 28, Swafford Decl. ¶ 21; Doc.
30, Jackson Decl. ¶ 18). At the hearing, Jackson testified that he saw Plaintiff’s train coming
into the terminal at a fast rate of speed, and he heard Plaintiff giving Crook instructions using the
internal radio system (including telling Crook to reduce the speed of the train). After the train
stopped, Jackson boarded with Weeks and McCoy and saw Crook “sitting at the controls of the
locomotive,” but Plaintiff was not in the cab with Crook, as required by rule. (Doc. 28-6, Hr’g
Tr., Oct. 11, 2012, at 27:28-29:25; see also Doc. 30, Jackson Decl. ¶ 19). At the hearing,
Plaintiff conceded that he had left Crook in control of the moving train and was in another area
giving Crook directions over the radio. (Doc. 28-6, Hr’g Tr., Oct. 11, 2012, at 68:1-39).
Plaintiff Suspension for Violating Operating Rule C-1
Division Manager Jermaine Swafford determined that Plaintiff should be disciplined for
violating Operating Rule C-1 because he left an unsupervised, unqualified trainee in control of a
moving train. (Doc. 28, Swafford Decl. ¶ 22). Swafford is African-American. (Id. at ¶ 3). On
November 9, 2012, Plaintiff was notified by letter that he was being suspended for ten days for
violating Operating Rule C-1. (Doc. 28-7, Discipline Letter, Nov. 9, 2012). Plaintiff evidently
any such failure to train was based upon his race. Moreover, it is hardly remarkable to note that a Locomotive
Engineer in Plaintiff’s position is required to be aware of safety work rules and federal regulations.
first learned of the suspension on November 12, 2012, after reporting to work.3 (Doc. 1-1,
EEOC Charge, Dec. 18, 2012, at 1).
There is no dispute that, when Jackson assessed the infraction against Plaintiff on
November 9, 2012, Jackson was unaware that Plaintiff had previously filed an EEOC charge
against Defendant over two years earlier, in June 2010.4
(Doc. 30, Jackson Decl. ¶ 20).
Similarly, when he assessed the ten-day suspension against Plaintiff in November 2012,
Swafford was unaware that Plaintiff had filed an EEOC charge against Defendant. (Doc. 28,
Swafford Decl. ¶ 24).
The December 2012 EEOC Charge Related to the Operating
Rule C-1 Incident
On December 18, 2012, Plaintiff filed a second charge with the Equal Employment
Opportunity Commission (“EEOC”) claiming racially discriminatory discipline and retaliation
related to the August 28 work rule violation. (Doc. 1-1, EEOC Charge, Dec. 18, 2012, at 1). On
June 3, 2013, the EEOC issued a Dismissal and Notice of Right to Sue. (Doc. 1-1, EEOC
Dismissal and Notice of Rights, June 3, 2013, at 2).
The May 23, 2013, Incident — Violation of Bulletin 505
The second relevant disciplinary event involved in this case occurred on May 23, 2013,
when Plaintiff failed to secure his train on the correct end of the receiving station. Plaintiff was
suspended for twenty days for this incident for violating West District Bulletin 505 Item 1-A
(“Bulletin 505”). The details surrounding his suspension are not seriously disputed.
On May 23, 2013, Terminal Superintendent Robert Holtz observed Plaintiff and his
conductor, C.E. Bolton, secure their equipment on the north end of a receiving yard. (Doc. 32,
After one of Plaintiff’s coworkers informed him that he was not on the work schedule, Plaintiff called his
local union representative who informed Plaintiff that he had been suspended. (Id.).
Plaintiff filed his initial charge of discrimination on June 9, 2010. (Doc. 30, Jackson Decl. ¶ 20). The
record is unclear concerning precisely what he complained about in that charge.
Ex. B-1, Holtz Dep. 10:5-13:5). This securement was in violation of Bulletin 505, which
required that equipment be secured on the south end of the receiving track, with hand brakes
placed on the south end.5 (Id. at 12:19-13:5). Bulletin 505 was issued by the Atlanta Division
on April 19, 2013, and went into effect on April 22, a month before Plaintiff’s violation. (Doc.
28-3, Gen. Bulletin 505).
After Holtz observed the violation, Holtz boarded the train to speak with Plaintiff. (Doc.
32, Ex. B-1, Holtz Dep. 18:18-19:9). Plaintiff admitted to Holtz that he had a copy of Bulletin
505 and that he had read it. (Id. at 19:10-15; Doc. 26, Pl. Dep. 194:20-195:15). Nonetheless,
according to Plaintiff, he was not aware that he was supposed to tie down a train in the north end
of the receiving yard. (Doc. 26, Pl. Dep. 196:7-11). Plaintiff testified that the violation occurred
because the Yard Master never informed him where to leave the train, which is what Plaintiff
claims normally occurs. (Id. at 198:3-12).
Plaintiff claims Holtz told him he would not be disciplined for the violation:
And then that’s when my conductor, he was like don’t worry about it, guys. I’m
not going to write y’all up or anything like that. I’m just going to write it as a ICI,
and that’s it. We said, well, okay.
(Id. at 180:16-18).6 However, Holtz eventually did assess Plaintiff’s violation.7
Item 1-A of the Bulletin states that, effective April 22, 2013, “all inbound hump trains or cuts will be
secured at the south end clearance point of the designated receiving yard track with all hand brakes applied on the
south end.” (Id.). It is undisputed that before starting a tour of duty, employees must read and understand the system
and general bulletins that are applicable to the areas where they operate. (Doc. 26, Pl. Dep. 71:25-72:8; Doc. 28,
Swafford Decl. ¶ 13; Doc. 30, Jackson Decl. ¶ 9; Doc. 32, Ex. B-1, Holtz Decl. ¶ 5; see also Doc. 31-1, CSX
Operating Rule A-1, at 8 (“Before starting a tour of duty, employees must read, understand, and carry their own
copy of the system and general bulletin(s) issued during their tour of duty.”)). Furthermore, neither party disputes
that an engineer’s failure to follow a properly issued bulletin is a violation of Operating Rule GR-55, the rule under
which Plaintiff was charged.
Plaintiff appears to reference the speaker as “my conductor” in his deposition testimony. But Plaintiff’s
briefing clearly cites much of this language attributable to Holtz, the Terminal Superintendent. (See Doc. 33, Pl.
Resp., at 3). The court understands that, in his testimony, Plaintiff intended to reference to statements
predominantly made by Holtz. (See Doc. 26, Pl. Dep. 180:1-3 (“They came . . . on the engine, and that’s when
Robert Holtz was speaking to us about the bulletin.”)). This conclusion is consistent with the court’s duty to
construe every inference in favor of the nonmovant.
Plaintiff claims that other train operators similarly violated Bulletin 505, and those crews
were not disciplined for those violations. (Doc. 26, Pl. Dep. 199:10-24). But Defendant asserts
that Holtz never observed any other crew violate Bulletin 505. (Doc. 32, Ex. B-1, Holtz Decl. ¶
Plaintiff Charged with Violating Operating Rule GR-55 &
After Holtz saw Plaintiff and Bolton tie the train down with the handbrakes on the north
end of the terminal receiving yard, Holtz input his assessment of Plaintiff’s performance. (Doc.
32, Ex. B-1, Holtz Dep. 17:25-18:5). Based on Holtz’s assessment, on May 28, 2013, Plaintiff
was charged with failing to secure equipment in accordance with special instructions. (See Doc.
28-8, Charge Letter, May 28, 2013). Plaintiff’s formal investigation hearing was held on June
25, 2013, in Bessemer, Alabama, where he was represented by his local union chairman, Brian
Killough. (See Doc. 28-9, Hr’g Tr., June 25, 2013, at 7).
At the hearing, Holtz testified that he saw Plaintiff’s train arrive at Birmingham terminal
and saw Plaintiff’s crew tie their train down at the north end of the receiving yard, which is a
violation of Bulletin 505. (Id. at 9:19-26). Although Plaintiff initially disputed the charges at the
hearing (id. at 12:26-28), Plaintiff admitted that he failed to secure his train at the south end
clearance point of the Birmingham receiving yard, admitting that his crew “tied the handbrakes
on the north end” of the terminal. (Id. at 12:32-13:30, 22:15-26). According to Plaintiff, after
Furthermore, to clarify, ICI stands for “Informal Corrective Instruction.” (Doc. 32, Ex. B-1, Holtz Dep.
44:10-14). An ICI is a nondisciplinary event that is recorded and kept in an employee’s file. (See id. at 44:10-1;
Doc. 26, Pl. Dep. 191:21-192:24).
Plaintiff argues that it was Holtz who said, “I’m not going to write y’all up.” (Id. at 179:24-181:4).
Defendant disagrees with this account. Instead, Defendant contends that Holtz advised Plaintiff about the purpose of
the Operational Test, the results of the Operational Test, and that the failure would be documented in Plaintiff’s
Operational Test report. (Doc. 32, Ex. B-1, Holtz Dep. 19:6-9). This disagreement is not material. Again,
Plaintiff’s contention is not that he is innocent of violating the work rule (or, for that matter, there was no factual
basis to “write [him] up.”). Rather, he contends that this work rule was not uniformly applied.
the train was stopped at the north end, Holtz instructed him to leave the cut on the north end even
though he (Holtz) claimed having it there was a rule violation.8 (Id. at 19:11-15). Plaintiff also
explained that, at the time of the violation, it was his first time in the train yard in seven months.
(Id. at 16:19-23).
Plaintiff’s Internal Discrimination Complaint Against
On June 26, 2013, Plaintiff made a complaint, via Defendant’s internal ethics hotline, that
Holtz racially discriminated against him and Bolton because Holtz assessed an infraction against
them. (Doc. 29, Wainwright Decl. ¶ 8).
Defendant’s Ethics Team conducted an internal
investigation and found that race was not a factor in Plaintiff’s discipline.
Wainwright Investigative Summ.; see also Doc. 29, Wainwright Decl. ¶ 9-15). Rather, the
Ethics Team concluded that Plaintiff was appropriately disciplined for violating existing
Operating Rules. (Doc. 29-3, Wainwright Investigative Summ.; see also Doc. 29, Wainwright
Decl. ¶ 9-15).
During the investigation, Plaintiff’s local union chairman and personal
representative, Brian Killough, went on record stating that he did not believe Holtz’s assessment
against Plaintiff was racially motivated. (See Doc. 29, Wainwright Decl. ¶ 15 (citing Doc. 29-3,
Wainwright Investigative Summ., at 13)).
Prior to Plaintiff’s internal complaint, Holtz had previously been accused of racial
favoritism by Vanessa Sharp. (See Doc. 32, Ex. B-1, Holtz Dep. 37:23-38:18). Sharp alleged
that Holtz and other managers used racial favoritism in awarding a promotion. (See id. at 38:610). However, after an investigation, Holtz was exonerated and the charge was found to be
without merit. (See id. at 57:24-58:14).
It is undisputed that Holtz was not aware of Plaintiff’s previous EEOC charges when he assessed the
infraction against Plaintiff. (Doc. 32, Ex. B-1, Holtz Decl. ¶ 25).
Plaintiff Suspended for Violating Operating Rule GR-55 &
After Swafford reviewed the circumstances, Plaintiff was disciplined for violating
Operating Rule GR-55 and Bulletin 505 based upon his failure to secure his train at the south end
clearance point of the designated receiving yard track. (Doc. 28, Swafford Decl. ¶ 27). On July
25, 2013, Plaintiff was notified by letter that he was being suspended for twenty days. (Doc. 2810, Discipline Letter, July 25, 2013). At that time, Plaintiff had pending an EEOC charge related
to the earlier August 28, 2012, incident and his consequent suspension. (Doc. 26, Pl. Dep.
307:23-308:18; see Doc. 1-1, EEOC Charge, Dec. 18, 2012, at 1).
Plaintiff alleges that, when the twenty-day suspension was assessed against him,
Defendant was aware that Plaintiff and his coworker, Bolton, had engaged in protected activity.
(See Doc. 26, Pl. Dep. 307:23-308:18; Doc. 1-1, EEOC Charge, Dec. 18, 2012, at 1). After the
investigatory hearing, but before his second suspension was imposed, Plaintiff contacted
Defendant’s ethics hotline and reported that he believed his suspension was discriminatory.
(Doc. 26, Pl. Dep. 308:18-21). Moreover, Bolton -- but not Plaintiff -- testified regarding the
alleged discrimination before Plaintiff’s suspension was handed down. (Doc. 28-9, Hr’g Tr.,
June 25, 2013, at 23:26-43). And, in a document dated July 11, 2013, both Jackson and Holtz
identified the person who likely made the June 26, 2013 internal complaint as either Bolton or
Plaintiff. (Doc. 29-3, Wainwright Investigative Summ., at 30, 31).
However, it is undisputed that Swafford was the decisionmaker regarding whether and
how Plaintiff should be disciplined, and Swafford was not aware that Plaintiff had filed any
EEOC charges or made any complaints internally to Defendant. (Doc. 28, Swafford Decl. ¶ 29;
id. at ¶ 27). In his July 25, 2013, discipline letter, Swafford indicated that the decision to
discipline Plaintiff was “a result of the testimony and other evidence presented in the
investigation,” which led to the determination that Plaintiff violated Bulletin 505 Item 1-A and
Operating Rule GR-55. (Doc. 28-10, Discipline Letter, July 25, 2013).
August 13, 2013, EEOC Charge
On August 13, 2013, Plaintiff filed a second EEOC charge. The second charge alleged
that Plaintiff’s discipline for the May 23, 2013 violation was retaliatory. (Doc. 1-1, EEOC
Charge, Aug. 13, 2013, at 3).
On the same day, the EEOC terminated its processing of
Plaintiff’s charge and, at Plaintiff’s request, issued a Notice of Right to Sue. (Doc. 25, Ex. C-2,
EEOC Notice of Right to Sue, Aug. 13, 2014).
It is undisputed Plaintiff violated the work rules at issue. The question, therefore, is how
Plaintiff was treated compared with other employees.
Plaintiff’s Arguments Regarding Comparators
Holtz has testified that he is not aware of anyone else who has been charged with
violating Bulletin 505. (See Doc. 28-9, Hr’g Tr., June 25, 2013, at 10:14-30). Nevertheless,
Plaintiff offers several handwritten pages of notes, which he claims reveal the names of those
similarly situated individuals who committed similar violations but who were not charged. (Doc.
34-1, Pl. Aff.). The court addresses each of the alleged comparators, in turn.
B.M. Johnson and Kerry Hood Violate Bulletin 505
On May 18, 2013, B.M. Johnson and Kerry Hood,9 two Caucasian engineers, failed to
secure their train at the south end clearance point as outlined in Bulletin 505. (Doc. 29,
Wainwright Decl. ¶ 13; see also Doc. 26, Pl. Dep. 237:8-15)). Johnson read Bulletin 505 and
attempted to comply with it, but was unable to do so because he did not know where the
clearance point was located. (Doc. 29, Wainwright Decl. ¶ 13). Dantay Coleman was the
Trainmaster present when the incident occurred. (Id. at ¶ 14). Coleman decided not to discipline
The briefs and evidentiary submissions reference a Carry Hood and a Kerry Hood interchangeably.
Johnson or Hood for failing to follow Bulletin 505 because: (1) the Bulletin had only been in
effect for a few days at the time of the offense; (2) Johnson and Hood were required to leave the
train temporarily on the north end of the terminal so that an approaching train could connect to
Johnson’s train; and (3) Johnson attempted to comply with Bulletin 505. (Id.). Importantly,
neither Jackson nor Holtz observed this incident. (Doc. 30, Jackson Decl. ¶ 25; Doc. 32, Ex. B-1,
Holtz Decl. ¶ 28).
Brian Painter Left Unqualified Engineer in Control of Stopped Train
Brian Painter and another engineer, both Caucasian, left an unqualified engineer in
control of a stopped train -- not a moving one -- with Byrl McCoy present. (Doc. 26, Pl. Dep.
226:7-228:25). It is not a violation of Operating Rules to have an unqualified trainee engineer at
the controls of a stopped train. (Doc. 30, Jackson Decl. ¶ 30). Jackson is not aware of any other
engineers who violated Operating Rule C-1 by leaving an unqualified trainee in control of a
moving train. (Id. at ¶ 15).
E.E. Jones Disciplined for Running Through a Derail
On November 6, 2013, E.E. Jones, a Caucasian conductor, ran through a derail.
(Id. at ¶ 23). Jackson was informed about Jones’s infraction because, as Trainmaster, it was
Jackson who was required to detect infractions committed by those in his assigned territory.
(Id. at ¶ 24). Holtz never observed E.E. Jones run through the derail. (Doc. 32, Ex. B-1, Holtz
Decl. ¶ 27). Regardless, Jones accepted responsibility for the violation, signed a waiver and
received 10 days actual suspension as a result. (Doc. 30, Jackson Decl. ¶ 23).
Danny Chastein, Randy Dotson, and P.K. Robinson Violating
Plaintiff also asserts that Danny Chastein, Randy Dotson, and P.K. Robinson all violated
certain of Defendant’s operating rules. However, neither Jackson nor Holtz observed Danny
Chastein run through a switch. (Doc. 30, Jackson Decl. ¶ 26; Doc. 32, Ex. B-1, Holtz Decl. ¶
29). Neither Jackson nor Holtz observed Randy Dotson drag a break line. (Doc. 30, Jackson
Decl. ¶ 27; Doc. 32, Ex. B-1, Holtz Decl. ¶ 30). And, neither Jackson nor Holtz observed P.K.
Robinson run through a red board. (Doc. 30, Jackson Decl. ¶ 28; Doc. 32, Ex. B-1, Holtz Decl. ¶
Plaintiff’s Complaint alleges discrimination under Title VII and § 1981. (Doc. 1). In
particular, Plaintiff claims that when he was disciplined on two occasions for violations of
Defendant’s work rules, he was “subjected to discriminatory discipline because of his race” and
“subjected to retaliation for protesting unlawful employment practices.”
(Doc. 1 at 4-5).
Defendant’s Motion for Summary Judgment (Doc. 25) seeks dismissal of all claims set forth in
the Complaint. For the reasons outlined below, the court concludes that Defendant is entitled to
summary judgment on all of Plaintiff’s claims.
Plaintiff’s Claims of Discriminatory Discipline Based Upon Race
Plaintiff’s Complaint alleges that Plaintiff suffered racially discriminatory discipline in
violation of Title VII and § 1981. (Doc. 1 at 5 (Count One and Two)). Race claims asserted
under Title VII and § 1981 are subject to the same standards of proof and court’s employ the
same analytical framework in addressing them. Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th
Cir. 2009). Accordingly, the elements of § 1981 race discrimination claim in the employment
context are the same as those which must be met with respect to a Title VII disparate treatment
claim. Watson v. Dean Dairy Holdings LLC, 2:12-cv-972-RDP, 2014 WL 1155799 (N.D. Ala.
Mar. 21, 2014). For this reason, the court addresses Plaintiff’s Title VII and § 1981 claims
together, applying the same substantive analysis.
Under Title VII and § 1981, “it [is] unlawful for an employer ‘to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin. . . .’” Maynard v. Bd. of Regents, 342 F.3d 1281,
1288 (11th Cir. 2003) (quoting 42 U.S.C. § 2000e–2(a)(1)). Plaintiff is not required to prove
directly that race was the reason for the employer’s challenged decision; instead, Plaintiff may
rely on circumstantial evidence of discrimination. See, e.g., id.; St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 526 (1993). Here, Plaintiff pointed to no direct evidence of discrimination but
instead has opted to offer circumstantial evidence to support his claims. However, as explained
in more detail below, Plaintiff’s claims of discriminatory discipline fail for two reasons. First, he
cannot establish a prima facie case of discrimination.
Second, and alternatively, although
Defendant has offered legitimate, nondiscriminatory reasons for its decisions to suspend
Plaintiff, Plaintiff has not offered any evidence of pretext. For these reasons, Defendant is
entitled to summary judgment on each of Plaintiff’s discrimination claims.
Plaintiff Has Failed to Establish a Prima Facie Case of Discriminatory
Discipline Because Plaintiff Has Not Identified a Viable Comparator.
In order to establish a prima face case, a Title VII plaintiff must make an initial showing
that is sufficient to raise an inference of discrimination. The model to be used in assessing this
inquiry is, of course, a flexible one. But as a general rule, to make out a prima facie case, a
plaintiff must show that: (1) he is a member of a protected class; (2) he was qualified for the
position; (3) he suffered an adverse employment action; and (4) he was treated less favorably
than a similarly-situated individual outside his protected class. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973).
In cases involving alleged racial bias in the application of discipline for violation of work
rules, in addition to being a member of a protected class, a plaintiff must show either (1) that his
employer did not believe in good faith he violated the work rule, or (2) that he engaged in
misconduct substantially similar to that of a person outside the protected class, and that the
disciplinary measures enforced against him were more severe than those enforced against the
other persons who engaged in similar misconduct. Jones v. Gerwens, 874 F.2d 1534, 1540 (11th
Cir. 1989); Winborn v. Supreme Beverage Co., 572 F. App’x 672, 674 (11th Cir. 2014) (citing
Stone & Webster Const., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012)). The
burden is on Plaintiff “to show a similarity between [his] conduct and that of white employees
who were treated differently.” Gerwens, 874 F.2d at 1541 (citations omitted); see also Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (“[I]t is the plaintiff’s task to
demonstrate that similarly situated employees were not treated equally.”). And, “in determining
whether [other employees] are similarly situated for purposes of establishing a prima facie case,
it is necessary to consider whether the employees are involved in or accused of the same or
similar conduct and are disciplined in different ways.” Jones v. Bessemer Carraway Med. Ctr.,
137 F.3d 1306, 1311 (11th Cir.), op. modified by 151 F.3d 1321 (1998). To be similarly situated,
(1) the comparator must be similarly situated in “all relevant aspects”; and (2) the quantity and
quality of the comparator’s misconduct must be “nearly identical.” See Foster v. Biolife Plasma
Servs., 566 F. App’x 808, 811 (11th Cir. 2014); Murphree v. Colvin, No. CV-12-BE-1888-M,
2014 WL 1923822, at *25 (N.D. Ala. May 12, 2014) (citing Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997); Stone & Webster Const., 684 F.3d at 1135). After careful review, the
court concludes Plaintiff has failed to carry his burden.
With regard to the August 28, 2012, and May 23, 2013, incidents, Plaintiff does not argue
that Defendant did not believe in good faith he violated the work rule. (See Doc. 26, Pl. Dep.
103:23-104:3, Doc. 28-6, Hr’g Tr., Oct. 11, 2012, at 68:1-39). Instead, in each instance, Plaintiff
admits he violated the rule. He contends that he was singled out for more severe discipline as
compared to his white coworkers because of his race. (Doc. 33, Pl. Resp., at 8-11; see also Doc.
26, Pl. Dep. 231:8-232:15 (Plaintiff confirming that the only basis for his belief that his
suspensions were discriminatory is that he was punished when others were not)).
Plaintiff has identified a handful of Caucasian comparators, but the Rule 56 record
evidence does not support his assertion that those individuals are similarly situated to him. As a
backdrop to the analysis, the court notes two things. First, Plaintiff has no personal knowledge
of any incident or work rule violation similar to his. Of course, he may rely upon comparator
evidence that is otherwise found in the Rule 56 record; but, the point is that he himself cannot
dispute Defendant’s evidence regarding the details of the alleged comparators’ purported
Second, in some respects, Plaintiff seeks to rely on information from other
employees who have (for example) approached him individually. With respect to this second (or
even third) hand information, Plaintiff’s vague references to other (sometimes nameless)
comparators fall far short of presenting substantial evidence upon which the court may conclude
that Plaintiff has carried his burden of showing similarly situated Caucasian employees. See
Amos v. Tyson Foods, Inc., 153 F. App’x 637, 647-48 (11th Cir. 2005) (noting where evidence of
a comparator is limited to Plaintiff’s allegations, supported entirely by the statements of other
workers to Plaintiff, “[s]uch testimony is insufficient as a matter of law to establish a comparator
for purposes of a retaliation claim”); see also Bogle v. Orange Cnty. Bd. of Cnty. Comm’rs, 162
F.3d 653, 658-59 (11th Cir. 1998) (rejecting plaintiff’s “unverifiable, anecdotal testimony” about
alleged comparators where “witnesses who testified regarding these other incidents had no
personal knowledge”); Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1135 (11th Cir. 1996)
(rejecting plaintiff's testimony “based on the statements of unknown coworkers”).
putting aside this fatal flaw, the court concludes that, even if Plaintiff’s assertions were fully
credited, he has not established that the persons he identified were proper comparators.
Beginning with the August 28, 2012, incident, Plaintiff identifies Brian Painter, a white
engineer, as a comparator. According to Plaintiff, Painter left his trainee engineer in control of
his stopped train, but was not disciplined by Byrl McCoy, his Caucasian Trainmaster. (Doc. 26,
Pl. Dep. 218:8-11). Painter is not a proper comparator because, unlike Plaintiff, he did not leave
the locomotive cab and his trainee engineer in control of a moving train. (Doc. 28, Swafford
Decl. ¶ 20; Doc. 28-6, Hr’g Tr., Oct. 11, 2012, 68:1-69:2). Indeed, Painter’s actions do not even
appear to be a violation of any law or company policy. (See Doc. 30, Jackson Decl. ¶ 30).
Similarly, Plaintiff vaguely identifies “another white engineer” as a comparator for
purposes of the August 28, 2012 incident. (Doc. 33, Pl. Resp., at 9). Plaintiff indicates that this
anonymous engineer left his trainee, Darryl Fuller, in control of a stopped train. (Id.). Again,
even putting aside both the lack of identity of the employee at issue, and the lack of any
specificity about the details of the incident, again, the employee was not involved in similar
misconduct because the train was stopped. (Doc. 26, Pl. Dep. 226:19-24). Therefore, this
unnamed engineer is not an appropriate comparator.10
Although the fact that the trains were stopped is dispositive, it is also relevant that in both the JohnsonHood incident and the other anonymous engineer incident, the supervisor was not Jackson — the supervisor who
was involved with Plaintiff’s August 28, 2012 violation. As discussed in more detail below, differences in treatment
by different supervisors can seldom be the basis for a claim of discrimination. See Murphree v. Colvin, No. CV-12BE-1888-M, 2014 WL 1923822, at *25 (N.D. Ala. May 12, 2014).
With regard to his May 23, 2013 work rule violation, Plaintiff identifies B.M. Johnson
and Kerry Hood, Caucasian engineers, as comparators. Five days before the incident involving
Plaintiff, on May 18, 2013, Johnson and Hood failed to secure their train at the south end
clearance point as outlined in Bulletin 505. (Doc. 29, Wainwright Decl. ¶ 13; see also Doc. 26,
Pl. Dep. 237:8-15). Johnson and Hood were not disciplined (Doc. 33, Pl. Resp., at ¶¶ 13-18;
Doc. 26, Pl. Dep. 199:19-24), but Defendant argues that Johnson and Hood are not similarly
situated for two reasons: (1) Plaintiff had a different supervisor than did Johnson and Hood, and
(2) unlike Plaintiff, Johnson reportedly read Bulletin 505 and attempted to comply with it, but
was unable to locate the correct clearance point. (Doc. 29, Wainwright Decl. ¶ 13). The court
The facts underlying these distinctions pointed out by Defendant are undisputed.
Johnson and Hood are not proper comparators.
One of the factors the court considers in determining if another individual is a proper
comparator is whether the decisionmakers were the same in the two instances being compared
because “differences in treatment by different supervisors or decisionmakers can seldom be the
basis for a viable claim of discrimination.” Murphree, 2014 WL 1923822, at *25 (citing Silvera
v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1261 n.5 (11th Cir. 2001)); see also Chapter 7 Trustee
v. Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012). Plaintiff argues only that this
distinction should not be dispositive. See Anderson v. WEBMG-42, 253 F.3d 561, 565-66 (11th
But, as the Eleventh Circuit has indicated, this distinction matters. See Gate
Gourmet, 683 F.3d at 1257. Johnson and Hood are not similarly situated because it is undisputed
that the supervisor who assessed Plaintiff’s rule violation was different than the individual who
responded to the Johnson-Hood incident. That is, Terminal Superintendent Robert Holtz was
Plaintiff’s supervisor for the May 23 incident, but Trainmaster Dantay Coleman was the
supervisor of the Johnson-Hood incident. (Id. at ¶ 14).
As a matter of logic and law, Coleman’s leniency toward Johnson and Hood simply does
not raise an inference of any discriminatory intent attributable to Holtz. When two different
supervisors independently analyze whether a work rule violation has occurred in two different
instances (and what should be done about it), and they exercise their respective supervisory
judgments in a different manner, there simply is no inference of disparate treatment raised.
Not only are the managers involved in assessing the violations different, but the nature
and circumstances of the offenses are themselves different. Coleman decided not to discipline
Johnson or Hood for failing to follow Bulletin 505 because (1) the Bulletin had only been in
effect for “a few days”; (2) Johnson and Hood were required to leave the train temporarily on the
north end of the terminal so that an approaching train could connect to Johnson’s train; and (3)
Coleman concluded that Johnson attempted to comply with Bulletin 505.
(See Doc. 29,
Wainwright Decl. ¶ 14). In Plaintiff’s case, however, Plaintiff had been to the receiving yard
before, and knew he was securing his train at the north end of the yard. (Doc. 26, Pl. Dep. 16:1923). And, although Plaintiff concedes he read Bulletin 505, Plaintiff contends he still was not
aware that he was supposed to secure his equipment at the south end. (Doc. 32, Ex. B-1, Holtz
Dep. 19:10-15; Doc. 26, Pl. Dep. 194:20-195:15).
These undisputed distinctions make a
difference. And, because of those differences, the court concludes that Johnson and Hood did
not engage in nearly identical misconduct and are not appropriate comparators in this case.
Plaintiff also has identified E.E. Jones as a comparator. (See Doc. 26, Pl. Dep. 243:1244:14). However, Plaintiff’s attempt to compare himself to Jones is simply misplaced. On
November 6, 2013, Jones violated an Operating Rule by running through a derail. (Doc. 30,
Jackson Decl. ¶ 23). It is undisputed that Jones was disciplined for this infraction by Jackson —
the same supervisor who disciplined Plaintiff for the August 28, 2012 incident. (Id.). Jones
accepted responsibility for the infraction, signed a waiver and received a ten-day suspension.
That Jones was disciplined and received a ten-day suspension fatally undermines
Plaintiff’s argument that Jones was treated differently than him.
In addition to his failure to identify any similarly situated comparator who was treated
differently than him, the court notes that Plaintiff has admitted that he committed two “serious”
violations of Defendant’s Operating Rules (as defined by the IDPAP), in an eight-month span.
To be sure, Plaintiff has not identified a single comparator who is similarly situated in this
respect — i.e., someone who committed two separate work rule violations, and therefore was at
the second phase of discipline under Defendant’s progressive discipline policy.
For these reasons, Plaintiff has fallen well short of showing that Defendant treated a
similarly situated employee outside of his protected class more leniently or more favorably than
him. Contrary to Plaintiff’s assertions, none of the evidence tends to show discriminatory
enforcement of Defendant’s work rules. And, because Plaintiff has failed to establish a prima
facie case of racial discrimination, Defendant is entitled to judgment as a matter of law on all of
Plaintiff’s race discrimination claims.
Defendant Has Articulated a Legitimate, Nondiscriminatory Reason
for Suspending Plaintiff
Alternatively, even assuming that Plaintiff could establish a prima facie case of
discrimination related to his November 2012 and July 2013 suspensions (and to be clear, he
cannot), Defendant has articulated legitimate, nondiscriminatory reasons for disciplining
Plaintiff. Under the familiar McDonnell Douglas framework, once a prima facie case is made,
the employer must articulate a legitimate, nondiscriminatory reason for its actions. See Brooks v.
Cnty. Comm’n, 446 F.3d 1160, 1162 (11th Cir. 2006). The employer’s burden of production is
“exceedingly light” and involves no credibility determination. Perryman v. Johnson Prod. Co.,
698 F.2d 1138, 1141 (11th Cir. 1993). Here, Defendant has easily carried its burden.
First, Plaintiff violated Operating Rule C-1 by leaving an unqualified engineer in control
of a moving train. (Doc. 26, Pl. Dep. 103:23-104:3). For this serious violation, Defendant
suspended Plaintiff for ten days — a time period squarely within the five to fifteen day range that
the guidelines proscribe under Defendant’s IDPAP for first-time serious violations. (See Doc.
28-7, Discipline Letter, Nov. 9, 2012). Only eight months later, Plaintiff admits that he again
violated Operating Rules by disregarding Bulletin 505 when he secured his train at the wrong
end of the receiving yard. (See Doc. 26, Pl. Dep. 195:6-196:11). For this second serious
violation, Plaintiff was suspended twenty days. (Doc. 28-10, Discipline Letter, July 25, 2013).
In response to this second violation, Defendant was permitted to suspend Plaintiff up to thirty
days under its progressive discipline policy. (Doc. 31-3, IDPAP, at 5). In articulating these
legitimate reasons, Defendant has easily exceeded its burden of dispersing any inference of
discrimination that even arguably was raised by a prima facie showing.
Plaintiff Has Failed to Show His Discipline Was Pretext for
Once an employer has articulated a legitimate, nondiscriminatory reason for its decision,
the presumption of discrimination disappears, and the burden shifts back to the plaintiff “to
demonstrate that the proffered reason was not the true reason for the employment decision.”
Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012). “An employer’s stated reason is not a
pretext unless it is shown that both: (1) the reason was false; and (2) the real reason was
unlawful.” Burback v. BNSF Ry. Co., 963 F. Supp. 2d 1255, 1262-63 (N.D. Ala. 2013) (citing
St. Mary’s Honor Ctr., 509 U.S. at 515). A plaintiff may show a pretext either “directly by
persuading the court that a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation is unworthy of credence.”
Burdine, 450 U.S. at 256. In both instances, a plaintiff must show pretext with “concrete
evidence in the form of specific facts.” Bryant, 575 F.3d at 1308. Mere “conclusory allegations
and assertions” will not suffice. Id. Here, Plaintiff attempts to establish pretext by suggesting,
that at the time of each of Plaintiff’s admitted rule violations, both Jackson and Holtz told
Plaintiff that he would not be disciplined. Although limited portions of the parties’ accounts
appear disputed, even assuming the accuracy of Plaintiff’s account (as the court must), and
taking into account the uncontroverted Rule 56 record evidence, Plaintiff has failed to present
substantial evidence of pretext.
First, with regard to Jackson’s assessment of Plaintiff’s August 28, 2012, rule violation,
Plaintiff testified that Jackson initially told Plaintiff he “did a good job” on the banner test. (See
Doc. 26, Pl. Dep. 122:3-23). According to Plaintiff, this shows that Plaintiff’s subsequent
discipline was a pretext for discrimination. However, Jackson assessed Plaintiff a rule violation
for leaving an unqualified trainee in control of a moving train -- in violation of Operating Rule
C-1 -- not for failing the banner test. (Doc. 28-7, Discipline Letter, Nov. 9, 2012). Beyond the
entirely unsupported assertions that Defendant treated Plaintiff’s comparators differently,
Plaintiff has not provided the court with any evidence that suggests the real reason for
suspending Plaintiff in November 2012 was his race.11
Second, with regard to Holtz’s assessment of Plaintiff’s May 23, 2013, rule violation,
Plaintiff argues Holtz told Plaintiff, “I’m not going to write y’all up.” (Doc. 26, Pl. Dep. 180:1618). Defendant disputes this statement of fact. However, even assuming (as the court must at
Although certainly not dispositive of the issue, it is noteworthy that Plaintiff’s own representative, Brian
Killough, is on record stating that he did not believe that Holtz’s assessment against Plaintiff was racially motivated.
(See Doc. 29, Wainwright Decl. ¶ 15 (citing Doc. 29-3, Wainwright Investigative Summ., at 13)).
this stage) Plaintiff’s account is entirely correct, without more, Plaintiff cannot show that
Defendant’s proffered legitimate, nondiscriminatory reasons for Plaintiff’s July 2013 suspension
were pretextual. Holtz charged Plaintiff with a rule violation on May 28, 2013, (Doc. 26, Pl.
Dep. 194:7-10), and it is undisputed that Plaintiff violated the rule.12 (See id. at 195:6-196:11).
Finally, with regard to Plaintiff’s July 2013 suspension, Plaintiff argues that prior
discrimination allegations against Holtz (made by a different worker) show that Defendant’s
decision to suspend Plaintiff for his May 2013 rule violation were pretextual. Plaintiff identifies
a single allegation of discrimination lodged by another employee, Vanessa Sharp. Plaintiff
alleges that Sharp filed an internal complaint of racial favoritism against a number of
Defendant’s managers, including Holtz. (See Doc. 32, Ex. B-1, Holtz Dep. 37:23-38:18). But
this evidence has no bearing on Defendant’s decision to suspend Plaintiff for his admitted work
Indeed, it is undisputed in the Rule 56 record that Holtz was ultimately
exonerated of any wrongdoing and Sharp’s allegation was found to be without merit. (See id. at
Plaintiff has failed to carry his burden of showing that Defendant’s proffered reasons for
Plaintiff’s discipline were a pretext, i.e., that they were false and that Defendant’s real,
undisclosed reason for the discipline was Plaintiff’s race. See Burback, 963 F. Supp. 2d at 126263. Accordingly, Defendant is entitled to summary judgment on Plaintiff’s race discrimination
This is not a case in which the court must decide how this question would come out if there were a
dispute as to whether Plaintiff violated the work rule and Defendant was relying upon a “good faith belief” that he
had violated the rule. See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1256 (5th Cir. 1977) (recognizing
“good faith belief” standard. In that event, Holtz’s initial statement that he was not going to write Plaintiff up may
create an issue of fact as to whether Holtz and Defendant had a good faith belief that Plaintiff actually violated a
work rule. But that is not the case here because here Plaintiff admits -- quite candidly -- that he violated the rule
contained in Bulletin 505. Whether or not Holtz said it was not then his intent to write Plaintiff up, he was well
within his authority to subsequently do so.
Plaintiff’s Claims of Retaliation
Plaintiff’s Complaint also alleges retaliation pursuant to Title VII and § 1981. Thus, the
court again applies the familiar McDonnell Douglas framework in evaluating a plaintiff’s
assertions of retaliatory conduct via circumstantial evidence. (Doc. 1 at 5 (Count One and
Two)). For the reasons outlined below, the court concludes that Plaintiff has likely failed to
establish a prima facie case of retaliation; but even if he has done so, Defendant has offered
legitimate, nonretaliatory reasons for its actions that are not pretextual. That is, Plaintiff has not
raised an inference of retaliation and, in any event, has failed to show that Defendant’s reasons
for disciplining him were a pretext for retaliation.
Plaintiff’s Prima Facie Case Proof
It is axiomatic that Plaintiff bears the initial burden of establishing a prima facie case of
retaliation. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). To establish
a prima facie case of retaliation, Plaintiff must show that (1) he engaged in statutorily protected
activity, (2) he suffered an adverse employment action, and (3) there was a causal connection
between the two. Id. at 1266. Defendant challenges Plaintiff’s ability to establish a causal
connection between Plaintiff’s protected activity and the subsequent adverse employment action.
For the reasons outlined below, the court concludes that, at best, Plaintiff can only establish a
sufficient temporal connection between his June 26, 2013, ethics complaint and his July 25,
Defendant argues that Plaintiff’s complaints and subsequent discipline lack temporal
proximity and are insufficient to raise an inference of causation. “If there is a substantial delay
between the protected expression and the adverse action . . . the complaint of retaliation fails as a
matter of law”. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). Both the Eleventh
Circuit and the Supreme Court have held that “mere temporal proximity between . . . knowledge
of protected activity and an adverse . . . action . . . must be very close.’ ” Id. (quoting Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Although some courts have held as
much as a one month period between protected expression and adverse action is not too
protracted, the Supreme Court has indicated that a three to four month lag is insufficient to show
a causal connection. See Breeden, 532 U.S. at 273 (citing favorably Richmond v. ONEOK, 120
F.3d 205, 209 (10th Cir. 1997) (three-month period insufficient); Hughes v. Derwinski, 967 F.2d
1168, 1174–75 (7th Cir. 1992) (four-month period insufficient)); see also Higdon, 393 F.3d at
1220; Summers v. City of Dothan, 444 F. App’x 346, 351 (11th Cir. 2011) (citing Thomas v.
Copper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (a “three to four months disparity
between the statutorily protected expression and the adverse employment action is not enough to
Plaintiff does not contest that his 2012 assessment and suspension lack sufficient
temporal proximity with his June 2010 protected activity to sustain a retaliation claim. Instead,
Plaintiff argues that his July 2013 suspension was in retaliation for his “ongoing” EEOC charge
filed in December 2012 and his June 2013 internal discrimination complaint. (Doc. 33, Pl.
Resp., at 13).13 First, there is simply nothing in the Rule 56 record to suggest that there is
sufficient temporal proximity (or any causal connection, for that matter) between Plaintiff’s
December 18, 2012 EEOC charge of discrimination and his July 25, 2013 suspension. More
than seven months passed between Plaintiff’s protected activity and the adverse employment
action. A seven month gap is insufficient, as a matter of law, to raise an inference that an
adverse employment action was, or could have been, the result of Plaintiff’s protected activity.
Plaintiff also argues he suffered retaliation for Bolton’s allegations of discrimination in the June 2013
hearing. However, this argument is simply not persuasive. Nothing in the record even hints that Defendant was
retaliating against Plaintiff for Bolton’s protected conduct.
Second, it is undisputed that Holtz did not know of Plaintiff’s 2012 EEOC charge when he
assessed Plaintiff’s May 23, 2013, rule violation.
On the issue of temporal proximity, Plaintiff’s contentions regarding his June 26, 2013
ethics complaint and his July 25, 2013 suspension present perhaps a slightly better foundation for
his prima facie case.14 The court assumes (without deciding) that Plaintiff has -- even if barely -nudged the ball far enough down the field to establish a prima facie case in that limited respect.
Defendant Has Articulated a Legitimate, Nonretaliatory Reason for
Similar to the analysis of Plaintiff’s discrimination claims, after assessing whether
Plaintiff has established a prima facie case, the next step is to determine whether Defendant has
articulated legitimate, non-discriminatory reasons related to each of Plaintiff’s suspensions. See
Brooks, 446 F.3d at 1162. As discussed above, Defendant carries this “exceedingly light”
burden of production. See Perryman, 698 F.2d at 1141. With regards to both suspensions,15
Defendant was disciplining Plaintiff for admitted rule violations.
Accordingly, the court
concludes that Defendant has articulated a legitimate, nonretaliatory reason for suspending
Plaintiff Has Failed to Show that Defendant’s Reasons for His
Discipline are Pretextual
Once a defendant has offered a legitimate nonretaliatory reason for an employment
action, “[t]o avoid summary judgment [the plaintiff] must introduce significantly probative
evidence showing that the asserted reason is merely a pretext for discrimination.” Brooks, 446
It is disputed whether Swafford had actual knowledge of Plaintiff’s protected activity as of July 25, 2013,
when Plaintiff’s suspension was handed down. Drawing every inference in favor of Plaintiff, at least for purposes of
summary judgment, the court assumes without deciding that Swafford had actual knowledge of Plaintiff’s June 2013
ethics complaint when he made the decision to suspend Plaintiff.
Although Plaintiff has not established a prima facie case as to his first suspension, the court nevertheless
evaluates Defendant’s articulated reasons as to both decisions out of an abundance of caution.
F.3d at 1163 (quoting Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993)). A
reason is not pretext for discrimination “unless it is shown both that the reason was false, and
that discrimination was the real reason.” Id. (quoting St. Mary’s Honor Ctr., 509 U.S. at 515).
Here, because Defendant has articulated a legitimate, nonretaliatory reason for
suspending Plaintiff, the burden shifts to Plaintiff to “meet it head on and rebut it.” Holland, 677
F.3d at 1055 (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)).
Plaintiff cannot survive a motion for summary judgment simply by “quarrelling with the wisdom
of [an employer’s] reason.” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1206 (11th Cir. 2013).
“It is emphatically not the court’s job to presume or judge whether an employment decision is
fair or wise, but only whether it is legal.” Winborn v. Supreme Beverage Co., No. 2:11-CV00047-RDP, 2012 WL 5511014, at *12 (N.D. Ala. Nov. 8, 2012), aff’d, 572 F. App’x 672 (11th
To succeed, Plaintiff must show “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the Defendant’s rationale. Holland, 677 F.3d at 1055-56
(quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). This Plaintiff has
failed to do.
Plaintiff’s only new pretext argument here is that Defendant’s retaliatory motive is
revealed by its alleged disparate treatment of Plaintiff’s comparator, B.M. Johnson.
discussed in more detail above, this argument fails because Johnson is not an appropriate
Johnson had a different supervisor than Plaintiff, and the incident involving
Johnson occurred under a different set of circumstances. Furthermore, Plaintiff’s supervisor,
Holtz, assessed Plaintiff’s violation on May 23, 2013, nearly a month before Plaintiff engaged in
the only protected activity that could form the basis of his retaliation claim (i.e., his June 26,
2013, internal ethic’s complaint). It is undisputed that Holtz had no knowledge of Plaintiff’s
prior protected activity when he assessed Plaintiff’s May 23, 2013, rule violation.
Finally, Plaintiff’s pretext argument fails with regard to his retaliation claim for the same
reasons that it failed with regard to his discriminatory discipline claim. Plaintiff has not offered
any evidence tending to show that Defendant’s legitimate reasons for disciplining Plaintiff are
false. Plaintiff does not dispute that he violated Defendant’s operating rules in May 2013 by
failing to correctly secure his train. (Doc. 26, Pl. Dep. 12:32-13:30, 22:15-26). For this admitted
violation, Plaintiff was disciplined in lockstep with Defendant’s published disciplinary policy.
(Doc. 31-3, IDPAP, at 3; Doc. 28-10, Discipline Letter, July 25, 2013). Furthermore, no record
evidence has been offered to demonstrate that Defendant’s real reason for Plaintiff’s July 2013
suspension was retaliation for his June 26, 2013, ethics complaint. Perhaps most importantly,
Plaintiff has not offered a single comparator who is otherwise similarly situated to Plaintiff in all
relevant respects, but who received disparate treatment on account of his (or her) race or because
he engaged in protected conduct.
Ultimately, Plaintiff has presented little more than argument that his admitted rule
violation should have been overlooked, despite Defendant’s clear rules to the contrary. This
court does not sit as a super-personnel board, see Chapman v. AI Transp., 229 F.3d 1012, 1030
(11th Cir. 2000) (en banc), and declines the invitation to become the Human Resources Director
for the Northern District of Alabama. “That is, the court has been specifically instructed by the
court of appeals not to be concerned with whether an employment decision is prudent or even
fair, but only if it was motivated by [an] unlawful [reason].” Lawson v. S T Bunn Const., 2014
WL 4258115 (N.D. Ala. 2014) (Proctor, J.). For these reasons, Defendant is entitled to summary
judgment on each of Plaintiff’s retaliation claims. Accordingly, Plaintiff’s claims are due to be
dismissed with prejudice.
A separate order will be entered in accordance with this Memorandum Opinion.
DONE and ORDERED this March 25, 2015.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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