Tubbs v. Norfolk Southern Corporation
MEMORANDUM OPINION AND ORDER - For the reasons discussed above, the Court dismisses Ms. Tubbss § 1981 failure to promote claim and denies Norfolk Southerns motion to dismiss, or in the alternative motion for summary judgment, on Ms. Tubbss Title VII failure to promote claim. Signed by Judge Madeline Hughes Haikala on 9/27/2017. (KEK)
2017 Sep-27 AM 09:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MARITA TUBBS, on behalf of
herself and the class she seeks to
Case No.: 2:15-cv-01547-MHH
MEMORANDUM OPINION AND ORDER
Plaintiff Marita Tubbs brings this action against her former employer,
defendant Norfolk Southern Corporation for alleged race discrimination and
retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e, et seq. and Section One of the Civil Rights Act of 1866, as
amended, 42 U.S.C. § 1981a.
(Docs. 1 & 25).
Ms. Tubbs asserts a race
discrimination claim against Norfolk Southern on behalf of herself and a putative
employee class based on the defendant’s failure to select African-American
employees for its Remote Intelligent Terminal System Training Team. (Doc. 25,
Norfolk Southern moved to dismiss, or, in the alternative, moved for
summary judgment on Ms. Tubbs’s discriminatory failure to promote claims.
(Doc. 30). 1 Norfolk Southern attached the declaration of Timmy W. Veazey to its
motion. The declaration includes as exhibits Ms. Tubbs’s charge of discrimination
and business records maintained by the defendant.
attached two exhibits to her response in opposition to Norfolk Southern’s motion:
a sworn declaration and business records maintained by the defendant. (Doc. 36).
Because the parties relied on matters outside the pleadings, the Court will treat
Norfolk Southern’s motion as a motion for summary judgment pursuant to Fed. R.
Civ. P. 12(d). For the reasons discussed below, the Court finds that Norfolk
Southern has not met its burden of proving that there are no genuine issues of
Therefore, the Court will deny Norfolk Southern’s motion for
Standard of Review
“The court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary judgment, a party opposing a
Ms. Tubbs also asserts an individual claim against Norfolk Southern for race
discrimination and retaliation based on her termination from Norfolk Southern. (Doc. 25, ¶¶ 4552). Ms. Tubbs’s discriminatory and retaliatory termination claim is not subject to Norfolk
Southern’s pending motion. (Doc. 30-1, p. 1, n. 1).
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When considering a summary judgment motion, a court must view the
evidence in the record and draw reasonable inferences in the light most favorable
to the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188,
1191 (11th Cir. 2015). “If the movant bears the burden of proof on an issue,
because, as a defendant, it is asserting an affirmative defense, it must establish that
there is no genuine issue of material fact as to any element of that defense.”
International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th
Cir. 2006) (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412
(5th Cir. 2003)).
Factual and Procedural Background
Ms. Tubbs is an African-American female.
She worked for Norfolk
Southern from August 8, 2004 until June 6, 2014, when Norfolk Southern
terminated her employment. (Doc. 36, p. 20). Ms. Tubbs worked as a conductor
from December 2004 to February 2007. (Id., p. 22). Sometime prior to 2009,
Norfolk Southern promoted Ms. Tubbs to a locomotive engineer position, and she
held that position until her termination. (See Id.; Doc. 30-2, p. 7).
In 2009, Ms. Tubbs learned that her supervisor, Train Master Hill selected
Brad Baker, a Caucasian male who worked as a conductor, for a training position
with Norfolk Southern. (Doc. 30-2, p. 7; Doc. 36, p. 20). Ms. Tubbs wanted to
work in training for Norfolk Southern, and she asked Mr. Hill how to apply for the
training position that Mr. Baker received. (Doc. 36, p. 20). Mr. Hill informed Ms.
Tubbs that she was not eligible for the training position because only conductors
were eligible, and she was an engineer. (Doc. 30-2, p. 7; Doc. 36, p. 20).
Between 2009 and 2012, Norfolk Southern selected five employees,
including Mr. Baker, to work as Remote Intelligent Terminal (“RIT”) trainers in
the southeast. (See Doc. 30-2, p. 2; Doc. 36, p. 27). The RIT trainers were
actively working as conductors when Norfolk Southern selected them as trainers,
and they trained other conductors on the use of an electronic reporting device.
(Doc. 30-2, p. 2). Norfolk Southern officials hand-selected employees to interview
for the RIT trainer positions; the company did not post notices about the training
program or the available positions.
(Doc. 36, p. 26).
Southern did not make announcements about its selections for the RIT training
program. (Id., p. 21).
In late August 2012, Anthony Ceephus, a coworker, informed Ms. Tubbs
that Norfolk Southern had not selected an African-American employee to be an
RIT trainer in Alabama. (See Doc. 30-2, p. 7; Doc. 36, p. 21). This was the first
time Tubbs learned of the RIT training program by name. (Id.). Ms. Tubbs then
spoke to a union representative, Justin Humphries, to learn more about the RIT
training program and the employees Norfolk Southern selected to be RIT trainers.
When they met, Mr. Humphries gave Ms. Tubbs a letter dated August 29,
2012. (Doc. 36, pp. 21-22). The letter is addressed to members of the United
Transportation Union Local 622. The letter explained that certain union members
requested that Mr. Humphries conduct “an investigation on Norfolk Southern’s
R.I.T. Traning program . . . to examine a possible improper hiring process as well
as possible racial discrimination when choosing who would be employed on the
R.I.T. Training team.” (Doc. 36, p. 26). The letter stated in pertinent part:
The R.I.T. training program is a small group of Norfolk Southern
Conductors that are sent around the system to train other conductors
on the use of the R.I.T. device. . . .
 The R.I.T. Training program has been going on for about 3 years.
 R.I.T. employees are all conductors prior to joining [the] team. 
All R.I.T. employees were hand selected by company officials to join
the team. There were no bulletins, memos, or any application process
to apply for the job to become part of the R.I.T. Training team.  No
R.I.T. employees to my knowledge in the southern section of Norfolk
Southern system are of any other race other than white (no African
Americans or other minorities). . . .  Working on the R.I.T. team
provides employees with a greater opportunity to seek promotion in
R.I.T. employees that were hired locally are all white males.
1. Nathan Lane
2. James Hubbard
3. Shane Whitlow
4. Bradley Baker
5. Brandon Cleckler
(Doc. 36, pp. 26-27).
Before reading the August 29, 2012 letter, Ms. Tubbs did not know that
Norfolk Southern selected Lane, Hubbard, Whitlow, or Cleckler for RIT trainer
positions, or for any other training position. (Id., p. 22). Ms. Tubbs knew that
Whitlow was qualified as a locomotive engineer, just as she was, and he was not
just a conductor when Norfolk Southern selected him to be a RIT trainer. (Id.).2
Therefore, after reading the letter, Ms. Tubbs believed that Mr. Hill misled her in
2009 when he said that only conductors were eligible for the training position.
(Id.). Ms. Tubbs later learned that Nathan Lane also had qualified as a locomotive
engineer before Norfolk Southern selected him for the RIT training team. (Id., p.
23).3 Although both Whitlow and Lane were qualified to work as locomotive
Whitlow’s abbreviated employee profile from Norfolk Southern shows that he was
promoted to locomotive engineer on April 20, 2007 and promoted to the RIT conductor trainer
position on October 4, 2009. (Doc. 36, p. 29).
Lane’s abbreviated employee profile shows that he was promoted to locomotive
engineer on October 10, 2007 and promoted to the RIT conductor trainer position on April 11,
2011. (Doc. 36, p. 31).
engineers, Norfolk Southern’s records indicate that both men were actively
working as conductors when Norfolk Southern selected them for RIT trainer
positions. (Doc. 30-2, pp. 2, 10-16).
After learning about the RIT training program and the employees Norfolk
Southern selected as RIT trainers, Ms. Tubbs filed a charge of discrimination with
the Equal Employment Opportunity Commission (“EEOC”) on September 4, 2012.
(Doc. 30-2, pp. 4-8). In her charge, Ms. Tubbs asserts that Norfolk Southern
discriminated against her on the basis of race and sex, and she alleges that Norfolk
Southern only selects white males to work on its RIT training team and that a white
conductor was promoted to a RIT trainer position in August 2012. (Id. at 7).4 Ms.
Tubbs received no relief on the basis of her EEOC charge. Consequently, she filed
Norfolk Southern asks this Court to dismiss Ms. Tubbs’s discriminatory
failure to promote claims under § 1981 and Title VII because the claims are
untimely. (Doc. 30-1). Ms. Tubbs concedes that her § 1981 failure to promote
claim is untimely. Therefore, the Court grants Norfolk Southern’s motion as to
Ms. Tubbs § 1981 claim. The Court devotes the balance of this opinion to Ms.
Tubbs’s Title VII claim.
Ms. Tubbs does not assert a sex discrimination claim in this action. (See Doc. 25).
Title VII prohibits an employer from “discriminat[ing] against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, religion, sex, or national origin . . .
.” 42 U.S.C. § 2000e-2(a)(1). Under Title VII, an aggrieved employee must file a
charge of discrimination with the Equal Employment Opportunity Commission
within 180 days of the date on which the alleged discriminatory act occurred. 42
U.S.C. § 2000e-5(e)(1); Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1220
(11th Cir. 2001). A Title VII claim based upon an alleged discriminatory act that
occurred more than 180 days before a plaintiff filed her EEOC charge generally is
untimely and subject to dismissal.
The discriminatory act that forms the basis of Ms. Tubbs’s Title VII failure
to promote claim occurred in 2009 when Mr. Hill told Ms. Tubbs that she was not
eligible to become an RIT trainer because she was an engineer, not a conductor.
Ms. Tubbs did not file an EEOC charge until 2012. (Doc. 30-1, pp. 1, 6-7, 11-14).
Consequently, Ms. Tubbs’s Title VII claim survives Norfolk Southern’s summary
judgment motion only if the doctrine of equitable tolling saves her claim.5
Courts apply the doctrine of equitable tolling sparingly. A “finding of
extraordinary circumstances necessary for equitable tolling is reserved for
extraordinary facts.” Cabello v. Fernandez-Larios, 402 F.3d 1148, 1154–55 (11th
Ms. Tubbs was not required to plead equitable tolling in her complaint. See Villarreal v. R.J.
Reynolds, 839 F.3d 958, 971 (11th Cir. 2016) (en banc).
Cir. 2005) (quotation marks and alteration omitted).
Absent proof that an
employer actively tried to mislead a plaintiff, a plaintiff may avail herself of
equitable tolling by proving “‘(1) that [s]he has been pursuing [her] rights
diligently, and (2) that some extraordinary circumstance stood in [her] way and
prevented timely filing.’” Villarreal v. R.J. Reynolds, 839 F.3d 958, 971–72 (11th
Cir. 2016) (en banc) (quoting Menominee Indian Tribes of Wisc. v. United States,
__ U.S. __, 136 S.Ct. 750, 755 (2016)). If evidence indicates that an employer
tried to mislead the plaintiff, then “‘the statute does not begin to run until the facts
which would support a cause of action are apparent or should be apparent to a
person with a reasonably prudent regard for [her] rights.’” Villarreal, 839 F.3d at
972 (quoting Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 930 (5th
As grounds for its summary judgment motion, Norfolk Southern relies on
the Eleventh Circuit’s recent decision in Villarreal v. R.J. Reynolds Tobacco
Company. (Doc. 30-1, p. 16; Doc. 38).7 In Villarreal, the plaintiff applied for a
The Eleventh Circuit has adopted as binding precedent all decisions the former Fifth
Circuit issued before October 1, 1981. Bonner v. City of Pritchard, Ala., 661 F.2d 1206, 1209
(11th Cir. 1981).
In its brief in support of its motion for summary judgement, Norfolk Southern relied
upon the panel decision in Villarreal v. R.J. Reynolds Tobacco Company, 806 F.3d 1288 (11th
Cir. 2015). (See Doc. 30-1 at 16). On February 10, 2016, the Eleventh Circuit vacated the panel
decision and granted a petition for rehearing en banc, see 2016 WL 635800, and the Circuit
released its en banc opinion on October 5, 2016. Villarreal v. R.J. Reynolds Tobacco Company,
position with R.J. Reynolds when he was 49 years old, and R.J. Reynolds rejected
the plaintiff’s application. 839 F.3d at 961. The company did not provide Mr.
Villarreal with a notice of the rejection or a reason for rejecting his application.
Mr. Villarreal did not follow up on his application. Id. More than two years after
Mr. Villarreal submitted his application, a lawyer “contacted [him] and told him
that R.J. Reynolds may have discriminated against him on the basis of his age.” Id.
Mr. Villarreal then filed a charge of discrimination with the EEOC against R.J.
Reynolds. Id. After the EEOC rejected Mr. Villarreal’s charge, he filed suit in
federal district court, asserting Title VII claims against R.J. Reynolds and alleging
that “he did not become aware until shortly before filing the charge that there was
reason to believe that his  application had been rejected on account of his age[,
and that] the facts necessary to support his charge of discrimination were not
apparent to him, and could not have been apparent to him, until less than a month
before he filed his  charge.” Id. at 262 (alterations and quotations in original
omitted). The district court granted R.J. Reynolds’s motion to dismiss, and Mr.
Villarreal appealed. Id.
The Eleventh Circuit affirmed the district court’s dismissal of Mr.
Villarreal’s Title VII claims in part because it found that Mr. Villarreal was not
entitled to equitable tolling. 839 F.3d at 961. In reaching its decision, the Eleventh
839 F.3d 958 (11th Cir. 2016) (en banc). Norfolk Southern brought the en banc opinion to the
Court’s attention. (Doc. 38).
Circuit applied the general test for equitable tolling. Id. at 971-72. The Eleventh
Circuit found that Mr. Villarreal was not diligent as a matter of law because “he
alleged he did nothing for more than two years between his initial application and
the communication from the lawyer.” Id. In its opinion in Villarreal, the Eleventh
Circuit noted that the former Fifth Circuit’s decision in Reeb v. Economic
Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975), did not apply to Mr.
Villarreal’s claims because he “did not allege or attempt to allege that R.J.
Reynolds actively misled him.” Id. at 972.
Based on the Villarreal opinion, Norfolk Southern argues that the doctrine
of equitable tolling cannot apply in the present case because Ms. Tubbs’s
allegations establish that she was not diligent as a matter of law. (Doc. 38 at 2). In
particular, Norfolk Southern asserts that Ms. Tubbs cannot show she was diligent
because, like Mr. Villarreal, Ms. Tubbs did nothing for more than two years after
Mr. Hill told her she was ineligible for the training positions because she was a
The Court is not persuaded because Norfolk
Southern’s argument ignores an important distinction between the case at hand and
Villarreal: Mr. Villarreal did not allege that R.J. Reynolds actively misled him
about the reason for his rejection, see 839 F.3d at 972, while in this case, Ms.
Tubbs alleges in her fourth amended complaint that Norfolk Southern actively
misled her about her eligibility for the RIT training program. (Doc. 25, ¶¶ 26-27).
In addition, with respect to the putative plaintiff class, Ms. Tubbs alleges in her
amended complaint that Norfolk Southern “prevented African-Americans from
learning about and/or competing for opportunities in jobs traditionally held by
Caucasian employees.” (Doc. 25, ¶ 10).
Even so, Norfolk Southern argues that equitable tolling does not apply in
this case because Ms. Tubbs has admitted that she learned of the facts supporting
her Title VII claim more than 180 days before she filed her EEOC charge. (Doc.
30-1, pp. 17-18).
Specifically, Norfolk Southern asserts that Ms. Tubbs’s
allegation that Whitlow and Lane “were working as  Locomotive Engineers at the
time of their selection to the RIT team” establishes that she knew of Whitlow’s and
Lane’s promotions to RIT trainer positions in 2009 and 2011 respectively. (See id.
(quoting Doc. 25, ¶ 26)). That is a logical leap. Ms. Tubbs stated in her sworn
declaration that she did not know Whitlow and Lane had been promoted to the RIT
training position until she received the August 29, 2012 letter from Justin
Humphries. (Doc. 36, pp. 21-22). Viewing the record in the light most favorable
to Ms. Tubbs, she learned of the Whitlow and Lane promotions less than a week
before she filed her EEOC charge on September 4, 2012.
Again, viewing the evidence in the light most favorable to Ms. Tubbs, the
Court is not persuaded that Ms. Tubbs’s supervisor told her the truth when he
informed her that she was ineligible for the RIT training program because only
conductors were eligible. (See Doc. 30-1, p. 15; Doc. 37, pp. 1-2, 8-9). Norfolk
Southern argues that “[a]t most, Tubbs has demonstrated that she was confused
over her supervisor’s use of the word ‘conductor,’ assuming ‘conductor’ excluded
everyone who ever attended locomotive engineer school, regardless of whether
they were actually working as an engineer.” (Doc. 37, p. 9). According to Norfolk
Southern, its evidence demonstrates that “Lane and Whitlow were actively working
as conductors” when Norfolk Southern selected them for the RIT training
program. (Id., pp. 8-9 (emphasis in original)).
According to Ms. Tubbs, Mr. Hill told her that only conductors were eligible
for the RIT training position, not that only employees “actively working as
conductors” were eligible. (See Doc. 25, p. 11; Doc. 36, p. 20). Although the
distinction may seem minor, it is important. The statement that only conductors
were eligible for the RIT training position could reasonably be expected to lead to
an inference that employees who had qualified for and been promoted to
locomotive engineer positions were not eligible to be RIT trainers even if the
engineers previously served as conductors. Thus, viewing the evidence in the light
most favorable to Ms. Tubbs, the Court finds that there are questions of fact
regarding equitable tolling.
Viewing the facts in the light most favorable to Ms. Tubbs and making all
reasonable inferences in her favor, as the Court must at this stage in the litigation,
the Court finds that there is a question of material fact regarding application of the
doctrine of equitable tolling to Ms. Tubbs’s Title VII failure to promote claim. As
a result, Norfolk Southern has not demonstrated that it is entitled to a judgment in
its favor as a matter of law.
For the reasons discussed above, the Court dismisses Ms. Tubbs’s § 1981
failure to promote claim and denies Norfolk Southern’s motion to dismiss, or in the
alternative motion for summary judgment, on Ms. Tubbs’s Title VII failure to
DONE and ORDERED this September 27, 2017.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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