Mahone v. CSX Transportation Inc

Filing 40

MEMORANDUM OPINION that CSXT's 30 Motion for Summary Judgment is due to be GRANTED. Signed by Judge Abdul K Kallon on 5/29/2015. (YMB)

FILED
2015 May-29 PM 03:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CORNELIUS MAHONE,
Plaintiff,

vs.
CSX TRANSPORTATION, INC.,
Defendant.

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Civil Action Number
2:14-cv-00535-AKK

MEMORANDUM OPINION
Cornelius Mahone, an African American who worked as a train conductor
for CSX Transportation (“CSXT”), alleges that Melvin Murray, his Caucasian
supervisor, treated him more harshly than similarly situated Caucasian co-workers,
and that CSXT subjected him to racial harassment, and discharged him in
retaliation for the two complaints he purportedly filed against Murray and his coworkers. Consequently, Mahone filed this lawsuit against CSXT alleging claims
under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. See doc. 1.
The court has for consideration CSXT’s motion for summary judgment, doc. 30,
which is fully briefed and ripe for review, docs. 36, 38. As the court will explain
below, the motion is due to be granted because of Mahone’s failure to establish a
prima facie case for his retaliation and discrimination claims or to proffer evidence

1

that would allow a reasonable juror to find that CSXT’s justification for his
discharge was pretextual, and to take advantage of CSXT’s corrective
opportunities or establish that he experienced sufficiently severe or pervasive
harassment.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” “Rule 56[]
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear a burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(alteration in original). The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

2

The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is
not required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be a showing that the jury
could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th
Cir. 1990) (citing Anderson, 477 U.S. at 252).
II. FACTUAL ALLEGATIONS
A.

CSXT and its Relevant Policies and Procedures

CSXT is a railway company that operates mainly along the eastern United
States and Canada. Doc. 31-18 at 2. The terms and conditions of employment for
3

most of its roughly 30,000 employees are governed by a collective bargaining
agreement (“CBA”), CSXT’s operating rules, and the Federal Railway Labor Act.
Id. Relevant here is CSXT’s Individual Development and Personal Accountability
Policy (“IDPAP”), a progressive disciplinary procedure that divides rule violations
into three categories: minor, serious, and major. Id. at 2-4. Minor offenses
normally result in informal counseling. Id. at 4; doc. 31-5 at 3. Serious offenses, on
the other hand, while on their own are not “sufficient to warrant dismissal,” can
lead to “suspension and/or retraining . . . depending upon the circumstances,” and a
“third serious incident within three years may result in a dismissal.” 1 Docs. 31-5 at
3; 31-18 at 4. Finally, major offenses “warrant removal from service pending a
formal hearing and possible dismissal from service for a single occurrence if
proven responsible.”2 Docs. 31-5 at 3-4; 31-18 at 5.
Serious or major offenses trigger a formal investigatory hearing to allow
CSXT to develop facts and determine the employee’s responsibility, if any, for the
violation. Docs. 31-5 at 3-4; 31-12 at 2; 31-13 at 3; 31-18 at 5. The hearing, which
is fully transcribed, is adjudicated by a hearing officer. The accused employee can
utilize union representation, present witnesses and documentary evidence, and

1

Serious offenses include leaving cars “in the foul,” and “[o]ther incidents . . .
depending on the circumstances.” Doc. 31-5 at 3.
2
Major offenses include “acts that cause harm to other persons or recklessly
endanger the safety of employees or the public.” Doc. 31-5 at 3-4.
4

cross examine adverse witnesses. Docs. 31-5 at 3-4; 31-18 at 5; see also docs. 3113; 31-14. After the hearing officer issues her findings, a CSXT division manager
reviews the transcript and the findings and independently decides whether to
impose disciplinary measures. Doc. 31-22 at 5.
B. Mahone’s Employment and Discharge from CSXT
CSXT hired Mahone as a train conductor in 2006. Mahone reported directly
to Murray, the Line of Road Trainmaster for the Mobile Division. Docs. 31-6 at 2;
31-19 at 2; 31-23 at 5. As part of his duties, Murray monitored adherence to CSXT
rules and policies and federal railway regulations and, if necessary, assessed
violations against noncompliant employees. Doc. 31-19 at 2-3.
1. Mahone’s Alleged Exposure to Race Based Harassment
Mahone allegedly experienced several instances of racial harassment during
his employment. Between 2008 and 2009, Mahone saw “less than five” personal
automobiles in the CSXT parking lot with confederate flag stickers, one co-worker
wearing a confederate flag shirt, “the N word” written on the wall of two bathroom
stalls and a train engine, and a “pen scribbling” of “KKK . . . on the desk top of [a
train engine].” Doc. 31-21 at 69-78, 80-81. Also, shortly after the Presidential
election in 2008, after an African American trainmaster boarded Mahone’s train to
check Mahone’s paperwork, Mahone’s Caucasian co-worker commented that the

5

trainmaster “thinks that he has power” because of President Barack Obama’s
victory. Id. at 84-85. Mahone did not report these incidents to CSXT even though
he received CSXT’s anti-harassment policy. 3 Id. at 70, 73, 77, 79, 83-84.
The next incident of alleged harassment occurred in 2011 when Murray
secretly boarded Mahone’s train to observe Mahone and a Caucasian engineer’s
compliance with CSXT rules. Id. at 85-99. Although Murray charged Mahone and
the engineer with a rules violation, Mahone maintains nonetheless that Murray
treated him more harshly by “trying to find out everything that [Mahone did
incorrectly],” “badgering” him, and assessing a rule violation against him for
failing to call signals. 4 Id. at 88-90. As a result, Mahone challenged the violation
and the resulting suspension, and ultimately prevailed and received back pay for
the time he missed. Id. at 90. In addition, Mahone claims also that he lodged a
complaint on the Hotline about this incident in May of 2012 in which he
purportedly charged Murray with race discrimination.5 Doc. 31-21 at 152-153.

3

The policy “prohibits . . . employee[s] . . . from harassing another employee
through racial or ethnic slurs, . . . .” Docs. 31-3 at 2; 31-4; 31-17 at 4; 31-21 at 5460. Victims are required to “report the incident to . . . Human Resources . . . or the .
. . Toll Free Hotline [“the Hotline”] . . . .” Docs. 31-3 at 3; 31-17 at 4. The Hotline,
which is operated by an independent company, maintains written records of each
report it receives. Docs. 31-2 at 8; 31-17 at 6-7.
4
Murray charged the engineer for using a mobile phone while operating a train.
Doc. 31-21 at 92.
5
CSXT has no record of a call by Mahone. CSXT has an anonymous complaint
made against Murray in which the caller complained about assessments that are
6

2. Allegations of Threatening Comments and the Staff Meeting
The final incident of alleged racial harassment against Mahone traces its
origin to September 26, 2011, when Christopher Ellis called the Hotline to report
that, after he called Mahone “sleepyhead” over a train radio, Mahone called him on
a mobile phone and threatened him. Doc. 31-9 at 3. Allegedly, Mahone stated that
Ellis did not know who Ellis “was fucking with” and that “you don’t know what
can happen . . . faggott.” Id. Later, a co-worker, who was with Mahone when Ellis
made the “sleepyhead” comment, told Ellis that Mahone “said that he was going to
do something to [Ellis] in Mobile[,] [Alabama] and . . . that he knew where [Ellis]
lived . . . and for $500 he could get one of his buddies to take care of [Ellis].”
Docs. 31-9 at 3; 31-17 at 6. In addition to calling the Hotline, Ellis complained to
Murray, who in turn relayed the incident to Brian Barr, who was the assistant to
Mark Mayo, the Atlanta Division Manager and Murray’s direct Supervisor. Docs.
31-20 at 2; 31-23 at 4, 7. Barr instructed Murray to enter infractions against Ellis
for improper use of a CSXT radio, and Mahone for threatening a co-worker (which
is a major violation under the IDPAP). Docs. 31-5 at 4; 31-10 at 2; 31-19 at 4; 3120 at 3; 31-23 at 5-7. Murray complied, and as a result, CSXT removed Mahone

similar to the rule violation assessments Murray made against Mahone. Doc. 31-8
at 3. However, the anonymous caller did not complain about alleged race
discrimination, id. at 2-17, and, to further complicate the mystery, Mahone denies
ever making an anonymous complaint to the Hotline, doc. 31-21 at 147.
7

from service pending an investigation. See docs. 31-5 at 3-4; 31-10 at 2; 31-21 at
111-112, 135, 138; 35-1 at 1:23:00.
To prevent Mahone from being discharged over the alleged threat, Mayo
“decided to have the charge cancelled[.]” Docs. 31-20 at 3; 31-11 at 2. Mayo
convened a meeting instead in November of 2011 (hereinafter “the staff meeting”)
with Mahone, Ellis, Murray, two union representatives, and two employees who
witnessed the altercation. Docs. 31-11 at 2; 31-19 at 4; 31-20 at 3; 35-1 at 1:03:45;
1:09:30. During the staff meeting, which Mahone surreptitiously recorded, doc. 3120 a 130-133, Mayo and the union representatives stressed the importance of
observing regulations prohibiting mobile phone use while operating trains, and
urged the employees to address personal disputes privately. See doc. 35-1 at
1:06:00. In response, a co-worker, presumably Ellis, asked if “you [sic] going to be
able to do that without somebody come [sic] drive-bying your house?” Id. at
1:19:45. Several minutes later, the co-worker who allegedly heard Mahone make
the threatening remarks claimed that he told Ellis to “watch [his] back . . . [because
Mahone was going to] pay [his] homeboy $500 to ride by over at his house.” Id. at
1:25:25. The meeting devolved into a shouting match between Mahone and his coworkers, while Mayo, Murray, and the union representatives tried to restore order.
Id. at 1:25:00 – 1:26:40. During an interval, one of the union representatives
insisted that Ellis needed assurances that Mahone would not “com[e] by his
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house.” Id. at 1:28:45. A shouting match again ensued, id. at 1:29:30, and Mahone
eventually claimed that the accusation against him amounted to racial harassment,
stating that if he did not, in fact, threaten Ellis, “that means [Mahone’s co-workers]
sat down and said what they were going to put on paper in order for those
statements to match up[.] [T]hat is a hate crime . . . .” Id. at 1:33:21 (emphasis
added).The union representative insisted, however, that “this [was] not about a
black and white issue,” id. at 1:33:20, and that Ellis needed assurances that there
would be no “drive-bys,” id. at 1:40:30. Mayo, who did not discipline Mahone for
the alleged threat, made clear that he did not necessarily accept the allegations
against Mahone, and that if Mahone and his co-workers could not work together,
then CSXT “ain’t the place for [them] to be . . . period.” See id. at 1:36:00; docs.
31-21 at 230-231; 31-23 at 9.
4. Mahone’s Alleged Violation of Rule 100-G and Discharge
Thirteen months after the staff meeting, Murray charged Mahone with
violating rule 100-G, which prohibits train operators from leaving railcars “within
100 feet of crossings equipped with automatic grade crossing warning devices . . .
.” Doc. 31-14 at 2. Allegedly, Mahone left three train cars 52 ½ feet from a railroad
crossing, causing the crossing gates to remain activated, and forcing CSXT to
manually deactivate the gate and use crews to stop traffic while trains passed. See
docs. 31-12 at 2; 31-18 at 6; 31-23 at 14-15. This infraction qualified as a serious
9

violation under the IDPAP and resulted in Mahone’s suspension pending an
investigation and hearing. Docs. 31-6 at 2; 31-12 at 2; 31-14 at 2. At the formal
hearing in January, 2013, Murray provided the relevant background, stating that he
learned about the incident when he overheard a dispatcher request that trains stop
so that crew members could halt traffic at the Pine Haven crossing. See doc. 31-13
at 7. According to Murray, when he arrived to investigate, he learned from the
signal maintainer that Mahone caused the activation of the circuit that lowered the
crossing gates by leaving several train cars too close to the north side of the
railroad crossing. Id. at 8-9; see also docs. 31-18 at 6; 31-23 at 13-14. Murray
added that he used a measuring wheel to determine that Mahone improperly left
the train cars 52 ½ feet from the crossing. See doc. 31-13 at 12.
In response, Mahone testified that: (1) he “took the liberty and measured it
off, [and] it was over 100 feet . . . ,” id.at 11, (2) that the signal maintainer told
Mahone that he did not see Murray measure the train track, see id. at 10, and (3)
that Murray did not test the circuit or move the train cars to rule out another cause
for the malfunction, id. at 15. Mahone also introduced two photographs that
purported to show that the train cars were not resting on the circuit. Id. at 13-14.
However, Murray countered that the photographs simply depicted the unobstructed
south end of the crossing. Id. at 13-14. The hearing ended without Mahone calling
any witnesses to corroborate his contentions. See doc. 31-13.
10

Ultimately, the hearing officer found Mahone guilty of violating rule 100-G.
Doc. 31-15 at 2. Subsequently, Jermaine Swafford, Mayo’s replacement as the
Atlanta Division Manager, reviewed the findings and the hearing transcript, and
sustained the rule 100-G violation. Docs. 31-6 at 2-3; 31-18 at 6; 31-23 at 4. As a
result, because this incident constituted Mahone’s third serious rule violation in
two years, 6 Swafford discharged Mahone. Docs. 31-15 at 2; 31-22 at 4.
III. ANALYSIS
Mahone raises claims for retaliatory discharge (Count I), and race based
discharge (Count II) and harassment (Count III). Doc. 17 at 6-9. The court will
address these claims below, beginning with the retaliatory and race based
discharge claims in Section A, and the hostile environment claim in Section B.
A. Retaliatory (Count I) and Discriminatory Termination (Count II)
Because Mahone’s termination claims are premised on circumstantial
evidence, see doc. 36 at 26-30, the court applies the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under
this framework, Mahone must first establish a prima facie case of retaliation and/or
discrimination. See, e.g.Gerard v. Board of Regents of the State of Georgia, 324
6

The two previous serious violations consisted of: (1) failure to mark “off duty,”
causing a train delay on April 21, 2011, and (2) releasing the handbrakes on
standing cars and failure to provide point protection while coupling trains on April
29, 2012. See docs. 31-6 at 2-3; 31-18 at 6.
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Fed. App’x 818, 825 (11th Cir. 2009); Burke–Fowler v. Orange County., Fla., 447
F.3d 1319, 1323 (11th Cir. 2006). If Mahone satisfies his burden, “then [CSXT]
must show a legitimate, nondiscriminatory reason for its employment action . . . If
it does so, then [Mahone] must prove that the reason provided by [CSXT] is a
pretext for unlawful discrimination [and/or retaliation].” Burke–Fowler, 447 F.3d
at 1323 (citation omitted); see also Gerard, 324 Fed. App’x at 826. However,
“[t]he ultimate burden of persuading the trier of fact that [CSXT] intentionally
discriminated against [Mahone] remains at all times with [Mahone].” Springer v.
Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1347 (11th Cir. 2007)
(citation omitted).
1. Mahone’s Prima Facie Case of Retaliatory Termination
“To establish a claim of retaliation under Title VII or § 1981, a plaintiff must
prove that he engaged in statutorily protected activity, he suffered a materially
adverse action, and there was some causal relation between the two events.” Butler
v. Alabama Dep't of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008). A plaintiff
establishes a causal connection by showing that “(a) the decision-makers were
aware of the protected conduct; and (b) the protected activity and the adverse
[employment] action were not wholly unrelated.” McCann v. Tillman, 526 F.3d
1370, 1376 (11th Cir. 2008) (quotation marks, and citations omitted). Here,
Mahone maintains that CSXT discharged him in retaliation for calling the Hotline
12

in May of 2012 to report that Murray harassed him during the surprise inspection,
and for accusing his co-workers of committing a “hate crime” during the staff
meeting in November of 2011. See doc. 36 at 15, 23. More specifically, as Mahone
puts it in his brief, “[Mahone] accused his supervisor, Melvin Murray, of racial
discrimination on the ethics hotline and then a few months later, Melvin Murray
fabricate[d] a reason to assess [Mahone] with a disciplinary action that [led] to
[Mahone’s] termination.” Doc. 36 at 25. Even assuming that Mahone called the
Hotline in May 2012 as he maintains, 7 there is still a seven and nine month gap
between the alleged complaint and the two adverse employment actions (i.e. the
rule 100-G assessment (November, 2012) and the discharge (January, 2013)).
Moreover, there is an even longer gap (13 to 15 months) between the November,
2011staff meeting where Mahone claims he complained about “a hate crime” and
the adverse employment actions. This seven to thirteen month gap between the
protected activity and the adverse actions is simply too remote to prove causation.
See, e.g. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)
(three month gap is insufficient to prove causation); see also Summers v. City of
Dothan, 444 Fed. App’x 346, 351 (11th Cir. 2011) (“a three to four month period
between the date of the complaints and the date of the adverse employment action,
without more, is insufficient to establish causation.”).

7

CSXT has no record of such a complaint. See supra at n. 5.
13

In an attempt to overcome the temporal gap, Mahone points out that the
Eleventh Circuit construes the causation element “broadly so that a plaintiff merely
has to prove that the protected activity and the negative employment action are not
completely unrelated[.]” See doc. 36 at 25 (citing Goldsmith v. Bagby Elevator
Co., 513 F.3d 1261, 1278 (11th Cir. 2008)). Although this is an accurate statement
of the law, it does not help Mahone because he has failed to proffer any evidence
to suggest that Swafford or Murray intended to retaliate against him for reporting
race discrimination or harassment, or to establish that his complaints and his
discharge “are not completely unrelated.” See infra at 19-21. In fact, the only
argument or theory Mahone offers to support his retaliation claim is the purported
temporal proximity between his complaints and the adverse actions. See doc. 36 at
22-25. Therefore, summary judgment is due to be granted on the retaliatory
termination claim for failure to establish a prima facie case.
2. Mahone’s Prima Facie Case of Discriminatory Termination
Mahone’s discriminatory termination claim is based on the contention that
Murray manufactured the rule 100-G infraction to orchestrate Mahone’s discharge.
See docs. 17 at 7-8; 31-21 at 86-100; 36 at 26-27, 29. As a threshold matter, CSXT
contends that Mahone cannot establish a prima facie case because Mahone has not
proffered evidence that CSXT treated similarly situated employees more favorably.
Doc. 30-1 at 18-21. See Butler, 536 F.3d at 1215 (11th Cir. 2008) (requiring that a
14

plaintiff establish that she “was subjected to an adverse employment action in
contrast with similarly situated employees outside the protected class.”). To
support this contention, CSXT asserts that it discharged Mahone because he
committed three serious rule violations within a two year period. Doc. 31-1 at 2829. In response, focusing only on the last violation, id. at 14-15, Mahone claims
that CSXT did not punish another employee who left a train within 100 feet of
another railroad crossing, doc. 31-21 at 237-238. However, Mahone does not know
the identity or race of this employee, the number of previous infractions this
employee had accrued, or whether Murray had any involvement in the purported
failure to charge the employee with a rule 100-G violation. Id. at 238, 241.The lack
of specifics is fatal to Mahone’s contention that he is similarly situated to this
unidentified employee. See Foster v. Biolife Plasma Serv’s, L.P., 566 Fed. App’x
808, 811 (11th Cir. 2014) (requiring comparator to be comparable “all relevant
aspects,” and evidence that she engaged in conduct that is “nearly identical” to the
plaintiff’s) (citing Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999));
Amos v. Tyson Foods, Inc., 153 Fed. App’x 637, 647-48 (11th Cir. 2005)
(unverifiable, anecdotal evidence of a comparator is insufficient to support a prima
facie case) (citing Bogle v. Orange County Bd. of County Com’rs, 162 F.3d 653,
658 (11th Cir. 1998); Pritchard v. Southern Co. Servs., 92 F.3d 1330, 1135 (11th
Cir. 1996)); Maniccia, 171 F.3d at 1368 (“We require that the quantity and quality
15

of the comparator’s misconduct be nearly identical to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.”).
Perhaps recognizing this deficiency, Mahone attempts to salvage his
discrimination claim by contending also that he “has identified at least three nonminority comparators which were treated more favorably than [Mahone] during the
[staff] meeting.” Doc. 36 at 26. In doing so, Mahone points to his three co-workers
in the staff meeting CSXT held to address the alleged threat Mahone made against
Ellis. The court is confounded by Mahone’s reliance on these employees as
comparators given that Mahone concedes that he was not disciplined as a result of
these employees’ allegations against him, see doc. 31-21 at 230-231; see also
Postell v. Green County Hosp. Auth., 265 Fed. App’x 856, 857 (11th Cir. 2008),
and his concession that these employees’ alleged infraction is premised on whether
Mahone’s version of the facts is true: “if I’m telling the truth . . . [then this] is a
hate crime . . .” Doc. 35-1 at 1:33:21. Moreover, the alleged threats by Mahone that
prompted the staff meeting played no role in the three serious violations that led to
Mahone’s discharge. See doc. 31-18 at 6; see also supra n. 6. Consequently, even
if Mahone’s supervisors treated his accusers more favorably than Mahone during
the staff meeting – a contention the record does not support – that fact has no
bearing on the separate and distinct incident that occurred a year later and which
triggered Mahone’s discharge. Furthermore, even if Mahone is correct about the
16

alleged favorable treatment, at best it establishes only that these three employees
committed one infraction – two less than Mahone and the number necessary to
trigger a discharge under the IDPAP. Put differently, because CSXT discharged
Mahone for committing three serious infractions in a two year period, Mahone’s
reliance on these three employees as purported comparators is unavailing. For
these reasons, CSXT is also due summary judgment on Mahone’s discrimination
claim.
3. Pretext
Alternatively, even assuming that Mahone can establish a prima facie case
of discrimination and/or retaliation, summary judgment is still due because
Mahone failed to show that CSXT’s articulated reason for his discharge is
pretextual. See Burke–Fowler, 447 F.3d at 1323. “To show pretext, [Mahone] must
present sufficient evidence ‘to permit a reasonable fact finder to conclude that the
reasons given by the employer were not the real reasons for the adverse
employment decision.’” Gerard, 324 Fed. App’x at 826 (quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (citation omitted)).
Moreover, Mahone must make this showing through “concrete evidence in the
form of specific facts which show that [CSXT’s] proffered reason [was] mere
pretext. Mere conclusory allegations and assertions [do] not suffice.” Bryant v.
Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
17

As legitimate reasons for discharging Mahone, CSXT points to the rule 100G violation, and the two earlier serious violations, and maintains that it conducted
a fair investigation that led to a good faith belief that Mahone violated rule 100-G.
Doc. 30-1 at 13-14. To bolster its claim of a good faith belief, CSXT asserts that
Swafford, the Atlanta District Manager, reviewed the evidence and the hearing
officer’s findings, and determined independently that Mahone violated rule 100-G.
Doc. 31-1 at 21-22; see also docs. 31-18 at 6; 31-22 at 4. Mahone disagrees, and
asserts that CSXT’s contentions are pretextual because he did not violate rule 100G, and that CSXT’s evidence failed to prove his culpability because (1) no one saw
Murray measure the distance between the train and the crossing, doc. 36 at 8, (2)
CSXT failed to introduce Murray’s measuring wheel as evidence during the
hearing, id., and that (3) Mahone’s own photographs prove he complied with rule
100-G, id. at 9. 8 Unfortunately for Mahone, the proper inquiry is not whether
CSXT had sufficient evidence to determine whether he violated rule 100-G, or
whether Mahone actually violated the rule. Indeed, “[t]he law is clear that, even if
a Title VII claimant did not in fact commit the violation with which he is charged,
an employer successfully rebuts any prima facie case . . . by showing that it
honestly believed the employee committed the violation.” Jones v. Gerwens, 874
F.2d 1534, 1540 (11th Cir. 1989); see also Elrod v. Sears, Roebuck Co., 939 F.2d
8

Mahone did not introduce these photographs as evidence during the hearing, and
has not submitted them to the court. See generally docs. 31; 31-13; 35.
18

1466, 1470 (11th Cir. 1991) (“That the employee did not in fact engage in the
misconduct reported to the employer is irrelevant to the question whether the
employer believed the employee had done wrong.”).
Here, Mahone failed to present any evidence at the hearing or to this court to
establish that CSXT did not hold a fair hearing or honestly believed after the
hearing that he violated rule 100-G. With respect to the fairness of the hearing, the
record establishes that Mahone was represented by a union official and received
the opportunity to testify, call his own witnesses, confront CSXT witnesses, and
present documentary evidence. See docs. 31-5 at 3-4; 31-18 at 5. Ultimately, for
reasons that are unclear, Mahone chose not to call the two co-employees who
purportedly told him that they did not see Murray take measurements, see doc. 3113, and relied instead on two photographs he could not identify with any
specificity, doc. 31-13 at 13-14, a railroad crossing circuit diagram that he found
on the internet, id. at 18-19, and his own testimony that measurements he took
proved that he was in compliance with rule 100-G, id. at 20. Unfortunately for
Mahone, after hearing the case, the hearing officer ultimately found against
Mahone, and after independently reviewing the evidence, Swafford affirmed the
hearing officer’s findings. Docs. 31-6 at 2-3; 31-15 at 2; 31-18 at 6. Significantly,
Mahone does not dispute that Swafford genuinely believed that Mahone violated
rule 100-G. See generally doc. 36; see also docs. 31-18 at 6-7; 31-22 at 4-5.
19

Therefore, based on the record before this court, no basis exists for a finding that
retaliatory or discriminatory animus motivated the hearing officer or Swafford’s
findings.
The court turns next to Mahone’s contention that Murray’s involvement
tainted the decision. Specifically, “traveling under the cat’s paw theory articulated
in [Staub v. Proctor Hospital, 562 U.S. 411 (2011)],” doc. 36 at 1 n.1, Mahone
contends that discriminatory and retaliatory animus motivated Murray’s decision to
charge him with violating rule 100-G, id. at 7. To support his position, Mahone
claims that he “was subjected to unfavorable treatment from [Murray] on multiple
occasions . . . was the victim of racial profiling in the [staff meeting] [,] [and that]
[t]hese occasions elucidate Murray’s attitude to favor Caucasian employees over
and to the detriment of African American employees. . . .” Id. at 26. Allegedly, the
“unfavorable treatment” consisted of Murray “[taking] the word of the Caucasian
employees over that of [Mahone during the staff meeting,]” and assessing a
violation against Mahone after his co-workers accused him of making threats
against Ellis. Id. at 26-27. These contentions are unavailing, in part, because
Murray did not “[take] the word” of any of Mahone’s co-workers. In fact, as
Mahone concedes, Murray sat mostly silent during the staff meeting, and generally
deferred to Mayo, the organizer and leader of the meeting, who decided prior to the
meeting not to discipline Mahone for the alleged threat. See docs. 31-20 at 2; 31-21
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at 224. Furthermore, Murray’s sole involvement in the incident – i.e. issuing the
initial assessment against Mahone for the alleged threat – was at the direction of
Brian Barr. Doc. 31-23 at 6-7. 9 Put simply, Mahone has failed to establish that
Murray acted based on discriminatory animus, or that this alleged animus factored
into CSXT’s findings that Mahone committed three serious infractions in a two
year period.
In short, based on this record, the court finds that Mahone has not proffered
the required concrete evidence and specific facts to show that racial animus
motivated Murray’s decision to issue the 100-G assessment against Mahone, or
that CSXT lacked a good faith belief to find that Mahone committed the 100-G
infraction. Ultimately, Mahone’s attempt to show pretext by arguing that he did not
break CSXT rules misses the mark because “[t]he inquiry into pretext centers on
[CSXT’s] belief, not [Mahone’s] beliefs and, to be blunt about it, not on reality as
it exists outside of the decision maker’s head.” Alvarez v. Royal Atlantic
Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). Therefore, because § 1981
9

Mahone challenges this contention as hearsay. Doc. 36 at 10-11. The statement is
not hearsay because CSXT is offering it to demonstrate Murray’s state of mind.
See Fed. R. Evid. 803(3). Moreover, even if the statement is hearsay, “district
courts may consider a hearsay statement in passing on a motion for summary
judgment if the statement could be reduced to admissible evidence at trial or
reduced to admissible form.” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir.
1999) (citations and internal quotation marks omitted). Here, Murray’s
supervisor’s statement could be reduced to admissible form if, for example, CSXT
produced him as a witness at trial.
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and “Title VII do [] not require [CSXT’s] needs and expectations to be objectively
reasonable” and “it is not [this court’s] role to second guess the wisdom of an
employer’s business decisions . . . as long as those decisions were not made with a
discriminatory motive,” id., summary judgment is due to be granted on Mahone’s
discrimination and retaliation claims.
B. Race Based Hostile Work Environment (Count III)
Finally, Mahone claims that CSXT subjected him to a racially hostile
environment. Doc. 17 at 8-9. Mahone’s claim consists of several incidents that
occurred between 2008 and 2011, none of which are actionable. The first group,
which occurred in 2008 and 2009, consists of the following: Mahone observed (1)
“less than five” confederate flag stickers on co-workers’ vehicles in the parking lot,
doc. 31-21 at 69-71, (2) one co-worker wearing a confederate flag shirt, id. at 8081, (3) two instances of bathroom graffiti containing “the N-word,” id. at 72-78,
(4) one instance of graffiti on a train that stated “KKK,” id., and (5) one instance of
a Caucasian engineer commenting that an African American trainmaster thought
he had more power because of President Barack Obama’s election, id. at 84-85.
Unfortunately, Mahone cannot rely on these incidents to support his claim because
he never reported them to CSXT, see docs. 31-4; 31-21 at 70, 73, 77, 79, 83-84,
despite CSXT’s promulgation of several anti-harassment policies, which CSXT
trained its employees, including Mahone, to utilize, see docs. 31-1; 31-2; 31-3. As
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the Eleventh Circuit has noted, “once an employer has promulgated an effective
anti-harassment policy and disseminated that policy and associated procedures to
its employees, then it is incumbent upon the employees to utilize the procedural
mechanisms established by the company specifically to address problems and
grievances.” Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1300 (11th Cir.
2000) (internal quotation marks omitted). Therefore, because “‘the problem of
workplace discrimination . . . cannot be [corrected] without the cooperation of the
victims,’” id. at 1302 (quoting Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1366
(11th Cir. 1999)), Mahone is precluded from relying on conduct he never reported
to support his claim, see, e.g. id.at 1302-03; see also Farley v. American Cast Iron
Pipe Co., 115 F.3d 1548, 1554-55 (11th Cir. 1997).
The next group of alleged harassment consists of the incident where Murray
secretly observed Mahone and his co-worker and charged both with rule violations,
see doc. 31-21 at 88-89, and the staff meeting where Mahone’s co-workers accused
Mahone of threatening to send his “homeboys” after Ellis, see id. at 107-141.
Neither incident rises to the level necessary to establish a claim because, with
respect to the observation incident, Mahone has failed to show how this incident
constituted “harassment [] based on his membership in the protected group[.]”
Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012). However, it
is clear from the record that the alleged harassment is based solely on Mahone’s
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belief that Murray scrutinized him more than his Caucasian counterpart (even
though Murray also issued this employee a citation). See doc. 31-21 at 89. Because
“Title VII [and § 1981] prohibit[] discrimination[] [and are] not a shield against
harsh treatment at the work place,” McCollum v. Bolger, 794 F.2d 602, 610 (11th
Cir. 1986) (internal quotation marks omitted), absent further objective evidence of
racial animus, this incident is insufficient to support a race harassment claim.
Likewise, the accusations against Mahone in the staff meeting CSXT held to
address, in part, the alleged threats Mahone made against Ellis also fail to support a
harassment claim. During the meeting, a co-worker reported that Mahone
threatened Ellis by purportedly stating he would arrange for his “homeboys” to do
a “drive-by” against Ellis in retaliation for Ellis calling Mahone “sleepyhead.”
Docs. 31-9 at 3; 31-17 at 6. Mahone vehemently denied the accusation and accused
his co-workers of a “hate crime”: “Let’s just say this . . . let’s just say this. If I’m
telling the truth . . . if . . . if I’m telling the truth that means these guys sat down
and said what they were going to put on paper in order for those statements to
match up. That is a hate crime, I don’t care who said.” Doc. 35-1 at 1:33:21. Based
on this incident, Mahone contends in his brief that “[t]he [w]hite employees were
[inaccurately] painting a picture of a black thug and a black gangster, speaking
black gangster talk.” Doc. 36 at 19. Presumably, according to Mahone, in reporting

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that Mahone threatened to ask his “homeboys” to do a “drive by,” his coworkers
were racially harassing him by accusing him of “speak[ing] black gangster talk.”
There are several problems with Mahone’s contentions. First, there is a
difference between being called offensive words (which may rise to a hostile
environment depending on the circumstances) and being accused of directing
purportedly offensive language at a victim. The latter is simply an allegation
against a person and, even if false, does not rise to a “hate crime” merely because
the allegation contains racially offensive language or is made by persons of a
different race. While Mahone believes that his co-workers fabricated the report,
however, as Mahone conceded in the meeting, a purported “hate crime” exists only
“if [Mahone is] telling the truth . . . .” Doc. 35-1 at 1:33:21.To hold under these
facts that the co-workers’ accusation against Mahone created a hostile work
environment would mean that victims of harassment can face accusations of
alleged harassment solely because the victims repeated in their complaint the
alleged harassing language purportedly directed at them. Such a result would have
a chilling effect in the workplace, would likely discourage employees from
utilizing complaint procedures to report alleged harassment, and would frustrate
employers’ efforts to rid the workplace of offensive and discriminatory conduct.
Moreover, even if filing a complaint against an employee can form the basis of that
accused employee’s harassment claim, this single instance of alleged racial
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harassment here is insufficient to establish the severe or pervasive conduct
necessary to support Mahone’s claim. See, e.g. Alexander v. Opelika City Schools,
352 F. App’x 390, 392 (11th Cir. 2009) (“we have stated that racial slurs allegedly
spoken by coworkers had to be so commonplace, overt and denigrating that they
created an atmosphere charged with racial hostility.”). Finally, Mahone’s race
harassment claim fails because he cannot establish that a basis exists to hold CSXT
liable for the alleged conduct by his co-workers in the staff meeting. Based on the
audio recording Mahone created, it is clear that Mayo addressed the concerns,
including Mahone’s contention of a “hate crime,” by, among other things,
reassuring Mahone that Ellis should not have called Mahone a “sleepyhead,” doc.
35-1 at 1:35:28, indicating that he did not necessarily accept the allegations against
Mahone, id. at 1:36:00, and asserting that if Mahone and his co-workers could not
work together without making accusations against each other, then “[CSXT] ain’t
the place for you to be . . . period.” Id. at 1:36:30. Significantly, Mayo’s response
proved effective because Mahone does not allege the recurrence of any similartype conduct by his co-workers. See Steele v. Offshore Shipbuilding, Inc., 867 F.2d
1311, 1316 (11th Cir. 1989) (employer was not liable when the alleged harassment
ended after the employer took remedial measures).

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IV. CONCLUSION
For these reasons, CSXT’s motion for summary judgment is due to be
granted. The court will enter a separate order consistent with this opinion.
DONE the 29th day of May, 2015.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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