Garmon v. AMTRAK
Filing
43
MEMORANDUM ORDER granting Defendant's 31 Motion for Summary Judgment on the sole remaining claim of Plaintiff's Amended Complaint. So Ordered by Judge Mary M. Lisi on 6/22/2015. (Duhamel, John)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
GREGORY GARMON, SR.
Plaintiff,
v.
C.A. No. 13-516-ML
AMTRAK,
Defendant.
MEMORANDUM AND ORDER
Gregory
Garmon,
Sr.
(“Garmon”),
the
plaintiff
in
this
employment discrimination case brought under 42 U.S.C. § 1981, has
alleged that he was subjected to harassment and discrimination on
account of his race in the course of his 18-year employment by the
defendant, the National Railroad Passenger Corporation (“Amtrak”).
The gravamen of Garmon’s claims appears to be that in 2012 and
2013, Garmon, who is African-American, received fewer opportunities
for overtime hours than some of his Caucasian colleagues. Garmon
seeks compensatory damages, punitive damages, and attorney fees and
costs. Amended Complaint (Dkt. No. 14). The matter before the Court
is Amtrak’s motion for summary judgment1 on the sole remaining
1
Amtrak has requested oral argument on his motion. In light of
the parties' extensive memoranda, affidavits, and exhibits, the
Court is of the opinion that oral argument is not necessary in this
case and will proceed to decide the motion on the submitted
pleadings and supporting documentation. See Fed.R.Civ.P. 78(b);
Cia. Petrolera Caribe, Inc. v. Arco Carribean, Inc., 754 F.2d 404,
411 (1st Cir.1985)(district court has “wide latitude” in deciding
whether oral argument is necessary before determining summary
judgment).
1
claim2 of Garmon’s Amended Complaint.
I. Factual Background3
Garmon was hired by Amtrak in 1997 as a signal helper. He is
currently employed by Amtrak as an Electric Traction Lineman, a
position to which he was promoted in 2001 and which includes a
variety of duties. DSUF 1-3. Between 2003 and February 2015, the
first
shift
Providence
for
the
included
Amtrak
Garmon,
Electric
Traction
Christopher
Alves
Department
(“Alves”),
in
and
William Butler (“Butler”). Alves and Butler are both qualified as
linemen and as High Rail Operators (“HROs”). HROs operate high rail
equipment and also perform lineman duties. DSUF 5. According to
Garmon, he “simply had not desired to be an HRO” and never
qualified for that position. PSUF 10.
In
February
2015,
Amtrak
made
operational
changes
which
included splitting the first shift (which ran from 6:00 a.m. to
2
Garmon’s claims for negligent and intentional infliction of
emotional distress, brought under the Federal Employers’ Liability
Act, 45 U.S.C. §51 et seq., were dismissed on January 15, 2014,
when this Court adopted Magistrate Judge Almond’s Report and
Recommendation (Dkt. No. 20), to which no objections were filed.
3
The summary of facts is based on Amtrak’s Statement of
Undisputed Material Facts (“DSUF”)(Dkt. No. 33) and Garmon’s
responses thereto (“PSUF”)(Dkt. No. 39), as well as the related
exhibits both parties submitted in support of their respective
positions.
2
2:00 p.m. Monday through Friday) into two shifts.4 Garmon is
assigned
to
the
first
shift
running
6:00
a.m.
to
4:30
p.m.
Wednesday through Saturday; the other first shift runs at the same
times, Sunday through Wednesday. DSUF 6. The first-shift foreman is
Thackaberry, who posted for and received that position in 2008.
DSUF 8. Since July 30, 2005, Garmon has been supervised by day
shift supervisor Gregory Brennan (“Brennan”) who is qualified as a
lineman, HRO, foreman, and supervisor. DSUF 9.
Amtrak is unionized and operates under a collective bargaining
agreement (“CBA”) negotiated by the International Brotherhood of
Electrical Workers (“IBEW”). The applicable CBA in this case is the
agreement between Amtrak and IBEW System Council No. 7, effective
September
1, 1975,
last
modified
October 20,
2010.
DSUF 13.
Although Garmon maintains that the CBA does not govern overtime and
that overtime plans are promulgated by Amtrak, it is undisputed
that the CBA includes provisions addressing the manning of overtime
plans (as well as matters of grievances and discipline). Id., PSUF
13. Pursuant to Rule 13 of the CBA, “[o]vertime
[is] to be
distributed in conjunction with the duly authorized local committee
of the craft or of their representative and the local management.
Record will be kept of overtime worked and men called with the
4
In effect, Amtrak was consolidating three 8-hour shifts into
two 10.5-hour shifts. DSUF 28. Amtrak cites budgetary reasons;
Garmon suggests that the change was effected to separate him from
Alves, Butler, and James Thackaberry (“Thackaberry”). PSUF 28.
3
purpose in view [sic] of distributing the overtime equally.” DSUF
21.
Under the CBA, all claims and grievances other than those
involving discipline must be timely presented to the IBEW in
writing. DSUF 15. It is undisputed that Garmon, who is a member of
the IBEW and whose employment is governed by the CBA, has never
filed any claim or grievance with the IBEW and that the IBEW has
not received any overtime-related grievances from Garmon. DSUF 1618. On his part, Garmon suggests that the CBA provision regarding
grievances is not applicable to race-based discrimination claims.
PSUF
15.
Garmon
acknowledges
that
Amtrak
maintains
an
Anti-
Discrimination and Anti-Harassment Policy and an Equal Employment
Opportunity/Affirmative Action Policy and that Amtrak has a Dispute
Resolution Office to resolve complaints of discrimination and
enforce Amtrak’s policies. DSUF 20. Garmon suggests, however, that
Amtrak does not enforce these policies or abide by them. PSUF 20.
Garmon concedes that he has never been disciplined by an
Amtrak manager or supervisor. He maintains, however, that his loss
of income under a new overtime distribution process which, Garmon
alleges, was implemented by Brennan in Fall 2012, constitutes an
adverse employment action against him. PSUF 4, 29. It is noted that
Garmon’s assertion that Amtrak instituted a new overtime policy in
Fall 2012, on which his claim rests, is entirely unsupported by any
factual evidence. On its part, Amtrak asserts that the process of
4
how overtime is distributed did not change in 2012. DSUF 29, 31,
37.
Since February 24, 2011, Assistant Division Engineer Michael
Poole (“Poole”) has been in charge of determining the amount of
overtime needed for Garmon’s department, taking a number of factors
into
consideration,
and
then
seeking
budgetary
approval
from
Amtrak’s senior management. DSUF 22. Weekend overtime is staffed by
members of the Boston/Providence cost center to cover both cities
and to service the connecting track. DSUF 23. According to Garmon’s
allegations, Poole follows Brennan’s suggestion as to who should
participate in overtime. PSUF 22.
Generally, Garmon denies that overtime is structured pursuant
to the CBA, insisting that Amtrak, not IBEW, “promulgates” the
overtime plans, and that IBEW merely addresses manning of the
positions as set forth in the overtime plan. PSUF 21, 23, 24.
According to Garmon, beginning in Fall 2012, IBEW allowed HROs to
fill slots available for HROs. PSUF 29. In addition, employees with
foreman qualifications can apply for overtime slots designated for
foremen. PSUF 24. As a result, a foreman can now work overtime,
whereas before the alleged change, a foreman could not have filled
that overtime slot unless Garmon, or Alves and Poulter5 had first
rejected
it.
Id.
Garmon
asserts
that
Amtrak
engages
in
5
It is unclear whether Garmon meant to refer to Butler here.
5
discrimination against Garmon (the sole lineman) by making overtime
slots available to HROs and foremen, and keeping linemen out of the
positions (or, more accurately, giving lower priority to linemen
for selecting certain slots). PSUF 26.
Amtrak employees are given an opportunity to select overtime
based on their respective shifts, positions, and locations. Firstshift employees are given preference for first shift overtime,
provided they are qualified for the position posted, e.g., a firstshift HRO can select an HRO slot, a lineman cannot do so unless no
HRO has selected the slot first. DSUF 29, PSUF 32. According to
Garmon,6 beginning in Fall 2012, Brennan began assigning overtime
by position (as well as shift), which deprived Garmon of overtime
opportunities (because he was a lineman and could only qualify for
overtime slots designated for linemen or for HRO/foreman designated
slots not first selected by HROs and/or foremen). PSUF 29. Garmon
asserts that, prior to Fall 2012, he “shared overtime opportunities
equally.” PSUF 31.
It is undisputed that Garmon can fill overtime slots for
positions other than first-shift lineman only if no qualified
6
Garmon’s response to the Defendants’ Statement of Undisputed
Facts is not a model of clarity in that, at least in part, it does
not specifically dispute the Defendant’s version of events, but
provides Garmon’s own interpretation of those events. In addition,
Garmon’s
response
adds
extraneous
information,
including
unsupported allegations of unrelated misconduct against some of his
co-workers.
6
individual holding that position has filled it, making it available
to Garmon. DSUF 31. In addition, Garmon has priority to obtain an
overtime slot one weekend shift each month in Providence and, if no
Boston lineman or an HRO fills the slot, an additional weekend
shift in Boston. PSUF 31. If no lineman, HRO, or foreman selects an
overtime shift, a Supervisor or Assistant Supervisor (who are
qualified
for
all
positions)
may
elect
the
shift
to
ensure
sufficient coverage. DSUF 34.
The undisputed facts reveal that, between 2009 and 2013,
Garmon worked 2,720 overtime hours. During that same time period,
Butler (who is an HRO and Caucasian) worked 1,456 overtime hours;
Alves (who is an HRO and Caucasian) worked 4,166 hours; and
Thackaberry (who is a foreman and Caucasian) worked 2,228 hours.
DSUF 38. Between January 1, 2013 and July 31, 2013 (following the
alleged change in overtime distribution until shortly after Garmon
filed his complaint) Garmon worked 269 overtime hours. During that
same time period, Butler worked 141 overtime hours; Alves worked
646 hours; and Thackaberry worked 272 hours. Def.’s Mot. 8 (Dkt.
No. 32). In 2012, which includes the period before and after the
alleged change in overtime distribution, Garmon also worked more
overtime hours (491) than both Thackaberry (294) and Butler (256).
In other words, Garmon worked as much or more overtime than two of
his three first-shift Caucasian colleagues before and after the
alleged
change,
notwithstanding
7
the
fact
that
both
of
his
colleagues had qualifications that would give them priority over
Garmon with respect to HRO and/or foremen slots. DSUF 38.
Garmon concedes that he did not accept certain shifts that
were available to him and, particularly, that “he did not accept
slots on many Sundays because he needs to attend church.” PSUF 39.
In
other
words,
Garmon
complains
that
he
was
given
“fewer
opportunities to accept or reject slots,” as a result of which he
worked fewer overtime hours. Id.
According to Garmon, until the distribution of overtime was
changed in Fall 2012, overtime was distributed fairly (in that it
made
more
slots
available
to
him).
Because
the
overtime
distribution gave priority to HROs from all shifts for HRO slots
and included foremen into the rotation, Garmon’s opportunities for
overtime (should he decide to apply for a slot) were reduced. PSUF
44-46.
As
a
result
of
the
alleged
change
in
the
overtime
distribution scheme, Garmon lost the opportunity of choosing a
first-shift HRO overtime slot if Andy Bendigo (“Bendigo”), a thirdshift HRO (who is African-American and was promoted from lineman to
HRO in March 2012) selected that option. DSUF, PSUF 48, 49.
Although Garmon points out that Bendigo could only select that slot
after
Alves
and
Butler
(both
Caucasian)
declined
it,
that
limitation is consistent with the scheme of giving priority for
selecting
a
first-shift
HRO
slot
to
first-shift
HROs
before
offering it to a third-shift HRO (after which a lineman like Garmon
8
could apply for that slot). PSUF 48.
Regarding
supervisor,
overtime
Garmon
hours
concedes
worked
that
by
most
of
Brennan,
those
Garmon’s
hours
were
designated specifically for supervisors pursuant to the CBA between
Amtrak
and
ARASA
[American
Railway
and
Airway
Supervisors
Association] and consisted of overtime opportunities to which
Garmon was not entitled. DSUF, PSUF 51.
Eventually, Garmon complained about the overtime designations
to Division Engineer George Fitter (“Fitter”), who determined that
overtime was being distributed in accordance with the provisions of
the IBEW CBA. DSUF 52, 53. (Garmon’s denial of this statement is
based on the contention that Fitter “could not have conducted any
such investigation because the Amtrak plan and not the union
created the discriminatory treatment,” a statement which is both
argumentative and non-responsive. PSUF 53.) At Fitter’s suggestion,
Garmon spoke with Amtrak EEO [Equal Employment Opportunity] Officer
Sten Siebert regarding Brennan, but never followed up with Siebert.
DSUF 55.
It is undisputed that Garmon never complained to his
union about the alleged discriminatory conduct. DSUF 66.
Much of Garmon’s race-based harassment claim is based on his
interactions with Brennan. Garmon alleges that Brennan would not
speak to him between 1998-2008 if Garmon was among a group of
9
certain electric traction employees, DSUF, PSUF 57.7 Although
Garmon concedes that the lack of communications ended in 2008, he
maintains that Brennan’s discriminatory practices did not. As an
example, Garmon alleges that he was directed by Brennan to work
alone in 2012 and 2013. PSUF 57. In addition, Garmon claims that,
since 2005, Brennan has prevented him from having keys to certain
storage canisters, PSUF 61, and that, in 2005, Brennan refused to
allow Garmon to use structural erection diagrams while building
cantilevers. DSUF, PSUF 62. With regard to the latter, Garmon
concedes that he never asked to use the diagrams. Maintaining that
he did not receive as much training as HROs Alves and Butler,
Garmon does not dispute that he received training on diagrams with
all other original linemen, that he attended a 13-week training
class in 1999-2000, and that he received further training on the
diagrams from Thackaberry and Pat Rockett. DSUF 62.
As other examples of alleged discriminatory conduct at his
work place, Garmon notes that all Caucasian workers separated from
him when he complained about overtime and that former Assistant
Engineer Jim Candlish failed to specifically praise Garmon during
monthly safety meetings. Although Garmon could not identify any
Caucasian individuals who were praised during the meetings, he
maintains that he remembers Caucasian employees receiving positive
7
Similarly, Garmon complained that his colleague Butler would
not speak to him between 1998-1999. DSUF, PSUF 56.
10
comments. PSUF 57, 58.
Further
allowed
allegations
Alves
to
go
made
home
by
and
Garmon
retrieve
include
his
that
wife’s
Brennan
car
(an
opportunity that Garmon never requested); that Brennan opposed
Barack Obama’s bid for the presidency (it is unstated and unknown
on what grounds); and that Thackberry gave Garmon an assignment
that Garmon believed was intended to get him “in trouble.” PSUF 63,
64, 65. Garmon also claims that since September 2013, there have
been two traffic-related incidents with two colleagues from other
departments,
which
Garmon,
without
offering
further
factual
support, attributes to his having commenced this lawsuit. PSUF 59,
60.
II. Procedural History
On July 11, 2013, Garmon filed a three-count complaint against
Amtrak, alleging race-based discrimination and intentional and
negligent infliction of emotional distress. (Dkt. No. 1). Garmon
filed an Amended Complaint on October 22, 2014, alleging the same
claims (Dkt. No. 14). Following a hearing on the Defendants’ motion
to dismiss both emotional distress claims (Dkt. No. 15), Magistrate
Judge Almond issued a Report and Recommendation (“R&R”), in which
he recommended that those claims be dismissed (Dkt. No. 20). No
objection was filed to the R&R, and this Court, after conducting an
independent review of the Amended Complaint and the R&R, adopted
the R&R in its entirety on January 15, 2014 (Dkt. No. 21).
11
On March 3, 2015, Amtrak filed a motion for summary judgment
on Garmon’s remaining claim (Dkt. No. 31), to which Garmon objected
on April 20, 2015 (Dkt. No. 40). Amtrak filed a reply to Garmon’s
objection on May 11, 2015 (Dkt. No. 42).
III. Standard of Review
A party is entitled to 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(c). In deciding a motion for summary judgment, the Court reviews
the evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in the nonmoving party's favor.
Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir.1997).
In summary judgment, the burden shifts from the moving party,
who must first aver “‘an absence of evidence to support the
nonmoving party's case,’” Garside v. Osco Drug, Inc., 895 F.2d 46,
48 (1st Cir.1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,
325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)), to the nonmoving
party, who must present facts that show a genuine “trialworthy
issue remains.” Cadle, 116 F.3d at 960 (citing
Inc.
v.
Town
Maldonado–Denis
of
v.
Dedham,
43
F.3d
731,
Castillo–Rodriguez,
23
Nat'l Amusements,
735
F.3d
(1st
576,
Cir.1995);
581
(1st
Cir.1994)).
In the context of an employment discrimination claim, “a
plaintiff's ability to survive summary judgment depends on his
12
ability to muster facts sufficient to support an inference of
discrimination.” Bennett v. Saint-Gobain Corp., 507 F.3d 23, 30
(1st Cir. 2007). Accordingly, a plaintiff “cannot rely exclusively
on
bald
assertions,
surmises.” Id. (citing
unsupported
conclusions,
or
optimistic
Medina–Muñoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir.1990)). Garmon, as the plaintiff, has the
burden of proof in this case; therefore, the “evidence adduced on
each of the elements of his asserted cause of action must be
significantly probative in order to forestall summary judgment.”
Bennett v. Saint-Gobain Corp., 507 F.3d at 30 (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249–50, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986)).
IV.
Discussion
A. Adverse Employment Actions
Title VII mandates that “[a]ll personnel actions” affecting
federal employees “shall be made free from any discrimination based
on race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e–16(a). Morales-Vallellanes v. Potter, 605 F.3d 27, 35 (1st
Cir.
2010).
Under
the
burden-shifting
framework
set
out
in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973), and explained in Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981), the litigation follows three stages in which Garmon has to
show that (1) he was within a protected class; (2) he met the
13
employer's
legitimate
performance
expectations;
(3)
he
was
adversely affected; and (4) there was some evidence of a causal
connection between his membership in a protected class and the
adverse employment action. Bhatti v. Trustee of Boston University,
659 F.3d 64, 70 (1st Cir. 2011); Thomas v. Eastman Kodak Co., 183
F.3d 38, 56 (1st Cir.1999). Only after Garmon makes such a prima
facie showing, does the burden shift to Amtrak to articulate a
legitimate nondiscriminatory reason for the employment action. Id.
Once Amtrak has made such a showing, the burden shifts back to
Garmon to prove that Amtrak’s articulated reason is merely pretext
for discrimination. Id.
To succeed on his race-based disparate treatment claim, Garmon
must establish that Amtrak either (1) took something of consequence
away from him, e.g. by discharging or demoting him, reducing his
salary, or divesting him of significant responsibilities, or (2)
withheld from him “an accouterment of the employment relationship.”
Blackie v. Maine, 75 F.3d 716, 725 (1st Cir.1996) (citing Hishon v.
King & Spalding, 467 U.S. 69, 75–76, 104 S.Ct. 2229, 2233–34, 81
L.Ed.2d 59 (1984)). In other words, Garmon must first show that he
suffered an “adverse employment action” on account of a protected
ground. García v. Bristol–Myers Squibb Co., 535 F.3d 23, 31 (1st
Cir.2008).
The
determination
of
whether
an
employment
action
“materially adverse” is based on an objective standard.
14
is
Morales-
Vallellanes v. Potter, 605 F.3d at 35 (citing Blackie v. Maine, 75
F.3d at 725. The Supreme Court has defined “adverse employment
action”
as
one
that
“affect[s]
employment
or
alter[s]
the
conditions of the workplace” Burlington Northern and Santa Fe Ry.
Co. v. White, 548 U.S. 53, 61–62, 126 S.Ct. 2405 (2006). Typically,
it “involves discrete changes in the terms of employment, such as
‘hiring,
firing,
failing
to
promote,
reassignment
with
significantly different responsibilities, or a decision causing
significant change in benefits.’” Morales-Vallellanes v. Potter,
605 F.3d at 35 (quoting Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)); see also Gu
v. Boston Police Dep't, 312 F.3d 6, 14 (1st Cir.2002) (“To be
adverse,
an
action
must
materially
change
the
conditions
of
plaintiffs' employ.”
The First Circuit has explained that “[a]dverse employment
actions
include
assignments,
‘demotions,
refusals
to
disadvantageous
promote,
unwarranted
transfers
or
negative
job
evaluations, and toleration of harassment by other employees.’ ”
White v. New Hampshire Dept. of Corrections, 221 F.3d 254 (1st Ci.
2000) at 262 (quoting Hernandez–Torres v. Intercontinental Trading,
Inc., 158 F.3d 43, 47 (1st Cir. 1998)). The First Circuit has also
recognized that “‘[w]ork places are rarely idyllic retreats, and
the mere fact that an employee is displeased by an employer's act
or omission does not elevate that act or omission to the level of
15
a materially adverse employment action.’” Marrero v. Goya of Puerto
Rico, Inc., 304 F.3d 7, 23 (1st Cir. 2002)(quoting Blackie v.
Maine, 75 F.3d at 725).
In this case, Garmon has conceded that the only asserted
adverse employment action he has incurred relates to the alleged
change in overtime scheduling. Garmon continues to be employed by
Amtrak; he is continuing his work as a lineman; he has never been
demoted, disciplined or, based on his own assertions, suffered a
disadvantageous transfer or a reduction in responsibilities, nor
has he received a negative job evaluation. Rather, Garmon’s claim
is predicated entirely on his contention that, following a change
in
overtime
scheduling,
his
opportunities
for
overtime
hours
decreased.
When examined more closely, and undisputed by Garmon, the
schedule did not suddenly exclude Garmon from existing slots for
overtime
work.
Rather,
the
schedule
attempts
to
ensure
that
overtime was distributed equitably, in accordance with the CBA.
Employees are qualified to apply for certain designated overtime
slots
based
on
their
respective
shifts,
their
positions/qualifications, and the primary location of their work.
As a result, a first-shift lineman in Providence (like Garmon) has
priority in selecting a slot designated for the first-shift lineman
in Providence on Saturday and Sunday. Garmon’s ability to select
other overtime slots that carried a different designation (third-
16
shift, HRO only, or Boston), depends on whether employees who
carried those designations declined those slots. In addition,
because Garmon is the only lineman in the Boston/Providence cost
center, Garmon has priority for first-shift lineman overtime slots
in both Boston and Providence. Garmon is not eligible for priority
in selecting an HRO designated overtime slot, because he is not an
HRO (and, based on his own statement, “simply had not desired to be
an HRO.” PSUF 10). However, Garmon can select a first-shift,
Providence-based, HRO designated slot if no HRO elects to work that
overtime shift.
Notwithstanding the alleged change in overtime scheduling, it
is undisputed that in 20138, like in the four preceding years,
Garmon worked as many or more overtime hours than two of his
Caucasian
colleagues,
both
of
whom
had
HRO
and/or
foreman
qualifications. Garmon also concedes that he did not avail himself
of overtime opportunities offered to him on many Sundays. PSUF 39.
(Garmon denies, inexplicably, that his overtime hours would have
increased had he elected all the overtime shifts available to him.
PSUF 42.)
Essentially, it is not the exclusion from overtime opportunity
that Garmon complains of, it is the inclusion of other employees
8
The overtime data for 2013 comprises only seven months and,
accordingly, shows lower overtime hours for all first-shift
employees than for the preceding full years. Def.’s Mem. at 8 (Dkt.
No. 32).
17
who have additional qualifications, like HRO or foreman, who work
on a different shift, or who are primarily located in Boston. One
of the employees who, by virtue of being promoted to HRO, had
priority over Garmon in selecting an HRO overtime slot, was Andy
Bendigo
(“Bendigo”).
Under
the
overtime
designation
scheme,
Bendigo, who is African-American and worked the third shift, could
select a first-shift HRO slot if no other first-shift HRO had
selected that slot. Garmon could select that slot only if no other
HRO, regardless of shift, had chosen to work that overtime slot.
Garmon suggests that Butler and Alves had greater opportunities for
overtime than Bendigo because Bendigo “could participate only when
those two white workers declined the slots.” PSUF 48. However, that
appears to be true (and Garmon does not assert otherwise) with
respect to first-shift slots only, for which Butler and Alves, as
first-shift HROs, had priority because Bendigo was a third-shift
HRO.
In sum, there is no evidence to support Garmon’s contention
that his alleged decrease in opportunities for selecting overtime
slots was the result of race-based discrimination or that the
overtime
distribution
plan
was
changed
based
on
an
illegal
discrimination criterion, nor does Garmon refute Amtrak’s proffered
reason that the overtime distribution scheme is intended to ensure
that overtime is distributed equitably.
Garmon had fewer opportunities to work overtime because he
18
was not an HRO (by his own choice), because he worked first shift,
and because he was located primarily in Providence. Accordingly,
employees with HRO or foreman qualifications, or those located
primarily in Boston, had priorities to select overtime slots that
fit their designations. Nevertheless, Garmon accumulated as many or
more overtime hours than two of his three first-shift colleagues
who were both Caucasian and qualified as HROs and/or foreman. In
addition, Garmon had priority in choosing the first-shift lineman
designated slot for either Providence or Boston, because he was the
only first-shift lineman for the combined cost center. Garmon’s
complaint about losing priority to third-shift HRO Bendigo can also
not serve to support his claims of race-based discrimination
because Bendigo, like Garmon, is African-American and had priority
over Garmon in selecting an HRO slot because he carried that
qualification, whereas Garmon did not.
Notably, Garmon does not offer a single example of being
denied an overtime slot for which he had priority, either because
it was lineman designated or because other eligible employees had
declined the slot, thus making it open for Garmon’s election.
Instead, Garmon concedes that he would have had opportunities for
additional overtime on Sundays but that he declined to exercise
them. Under those circumstances, the Court is of the opinion that,
based on the undisputed facts of the case, Garmon has not met his
burden to establish a prima facie case because he failed to show
19
that (1) he suffered an adverse employment action and/or (2) there
was a connection between his membership in a protected class and
the allegedly adverse employment action.
B. Hostile Work Environment
To be successful on a claim of hostile work environment,
Garmon must establish harassment “sufficiently severe or pervasive
so as to alter the conditions of plaintiff's employment and create
an abusive work environment.” Douglas v. J.C. Penney Co., 474 F.3d
10, 15 (1st Cir.2007). To establish a prima facie case for a
hostile work environment claim, Garmon must establish:
(1) that he is a member of a protected class; (2) that he
was subjected to unwelcome ... racial harassment; (3)
that the harassment was based upon ... race; (4) that the
harassment was sufficiently severe or pervasive so as to
alter the conditions of [his] employment and create an
abusive work environment; (5) that ... racially
objectionable
conduct
was
both
objectively
and
subjectively offensive, such that a reasonable person
would find it hostile or abusive and [he] did perceive it
to be so; and (6) that some basis for employer liability
has been established. Douglas v. J.C. Penney Co., Inc.,
474 F.3d 10, 15 (1st Cir.2007).
Race-based employment discrimination claims under
subject to a four year statute of limitations.
§ 1981 are
Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 382, 124 S.Ct. 1836, 158
L.Ed.2d 645 (2004). Garmon filed his complaint on July 11, 2013;
therefore, his § 1981 claims are limited to employment actions
occurring after July 11, 2009. Garmon’s unsubstantiated allegations
of racial harassment by fellow employees fall far short of meeting
20
that standard.
Garmon complains, inter alia, that Brennan and Butler refused
to speak to him, but he acknowledges, without further explanation,
that such lack of communication ended in 2008. Further, Garmon
complains of not receiving individual praise during weekly safety
meetings; he does not assert, however, that he was in any way
criticized
or
humiliated
in
such
meetings, nor
is
there
any
assertion of racial epithets or race-based comments. With respect
to not being allowed to work with structural erection diagrams,
Garmon concedes that he did not ask to work with those diagrams and
he acknowledges, albeit reluctantly, that he did receive training
on the diagrams.
None of those alleged events, which also fall outside of the
limitations period of § 1981 claims, contain any allegations of
race-based harassment. Although Garmon takes the opportunity to
point to alleged wrongdoings by other employees, he makes no
assertion that he engaged in similar conduct but that, unlike his
Caucasian colleagues, he was disciplined for it. Garmon’s claim
that
Brennan
opposed
Barack
Obama’s
candidacy
for
President
includes no allegation that Brennan’s alleged opposition was based
on race.
Garmon’s allegations regarding two traffic related incidents,
involving two Amtrak employees who do not work with Garmon, also
fail to support any racial harassment claims. Garmon himself,
21
without
further
evidentiary
support,
simply
attributes
those
incidents to his having filed this case because they happened after
commencement of the litigation; he makes no allegations that the
incidents were race-related. In sum, Garmon has not even suggested
a
race-based
connection
to
any
of
the
conduct
he
considers
discriminatory. In the absence of any evidence that would indicate
a discriminatory animus, the Court finds that Garmon has not met
his burden to establish a prima facie case for a hostile work
environment case. Accordingly, Amtrak’s motion for summary judgment
is GRANTED with respect that claim as well.
Conclusion
The Court finds that Garmon has failed to make a prima facie
showing of a race-based adverse employment action or a hostile work
environment claim. Amtrak’s motion for summary judgment is GRANTED.
The Clerk is directed to enter judgment for the Defendant.
SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
United States District Judge
June 22, 2015
22
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