McLaughlin v. CSX Transportation Inc

Filing 99

ORDER denying 72 Motion for Reconsideration. Signed by the Honorable R. Bryan Harwell on 6/2/2017. (hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
MICHELLE McLAUGHLIN,

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)
Plaintiff,
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v.
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CSX TRANSPORTATION, INC.,
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)
Defendant.
)
____________________________________)

Civil Action No.: 4:15-CV-00245-RBH

ORDER

This matter is before the Court to consider Defendant’s Motion for Reconsideration filed
on October 18, 2016. [ECF #72]. Defendant CSX Transportation, Inc. (“CSX”) requests this
Court reconsider its previously issued Order, dated September 29, 2016, wherein this Court granted
in part and denied in part summary judgment in favor of Defendant. [ECF #70]. On November
11, 2016, Plaintiff filed a Memorandum in Opposition to Defendant’s Motion for Reconsideration
[ECF #75], and on November 21, 2016, Defendant filed its Reply Brief [ECF #76]. All parties
have had the opportunity to extensively brief the issues raised in the motion, and this Court has
thoroughly considered all the filings in this case.1 This Court now issues the following ruling.
Background
On January 28, 2016, Defendant filed a Motion for Summary Judgment. [ECF #35]. On
February 26, 2016, Plaintiff filed her response in opposition to Defendant’s Motion. [ECF #47].
Defendant filed its reply in support of its Motion on March 7, 2016. [ECF #49]. In accordance

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Under Local Civil Rule 7.09 (D.S.C.), “hearings on motions may be ordered by the Court in its discretion.
Unless so ordered, motions may be determined without a hearing.” Upon review of the briefs, the Court finds
that a hearing is not necessary.

with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02 (D.S.C.) this matter was referred to a
Magistrate Judge for pretrial handling, and the Magistrate Judge recommended granting summary
judgment to Defendant on all claims. [ECF #61].

After Plaintiff filed her objections, and

Defendant responded to those objections, this matter came before this Court. This Court granted
summary judgment to Defendant with respect to most of Plaintiff’s claims, except on one failureto-promote claim regarding the 2013 Florence roadmaster selection of another candidate. This
Court found that Plaintiff met her burden to show that she may be able to prove that Defendant’s
proffered reason for selecting another individual instead of Plaintiff was pretextual. [ECF #64].
Defendant now argues that the Court erred in determining that Plaintiff may be able to prove this
claim because it offered two reasons for its decision to hire another candidate, and Plaintiff has
not shown that both of these reasons were “false” or an “ex post justification.” [ECF #72-1, pp.
1-2]. Specifically, Defendant argues that this is the first time it has had the opportunity to address
the argument that its proffered reason given for hiring another candidate was false. [ECF #72-1,
p. 2]. Defendant argues that in Plaintiff’s objections she did not challenge Defendant’s proffered
reason for its decision to hire another candidate as “false” or an “ex post justification,” and
Plaintiff also did not raise specific objections to this particular job candidate selection. [ECF #721, p. 2]. Plaintiff contends Defendant did in fact have the opportunity to raise these arguments,
and further, that Plaintiff did provide facts to combat the proffered reason for selecting another
candidate for the 2013 Florence position and show why she felt the reason was “false” or
pretextual. [ECF # 75, pp. 1-3].

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Standard of Review
Defendant makes its Motion for Reconsideration under Federal Rule of Civil Procedure
54(b). Rule 54(b) governs the Court’s reconsideration of interlocutory orders. Rule 54(b) permits
a district court to revise “any order or other decision . . . that adjudicates fewer than all the claims
and all the parties’ rights and liabilities. FED R. CIV . P. 54(b). A district court’s discretion to
modify an interlocutory order under Rule 54(b) is broader than “the strict standards applicable to
motions to alter or amend a final judgment under Rule 59(e) or for relief from judgment under
Rule 60(b).” AMCOL Sys., Inc. v. Lemberg Law, LLC, No. 3:15-3422-CMC, 2016 WL 613896,
at *2 (D.S.C. Feb. 16, 2016)(quoting Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 51415 (4th Cir. 2003). However, though the strict standards applicable to Rule 59 do not apply to
motions brought under Rule 54(b), district courts within this circuit look to the standards of Rule
59 for guidance. Poole v. Transcon. Fund Admin., Ltd., No 6:12-2943-BHH, 2016 WL 301225,
at *1 (D.S.C. Jan 25, 2016).
The Fourth Circuit has held that, as with a motion under Rule 59, Rule 54(b) motions
should be granted for three reasons: (1) to follow an intervening change in controlling law; (2)
on account of new evidence; or (3) “to correct a clear error of law or prevent manifest injustice.”
Id.; see also Collison v. International Chemical Workers Union, 34 F.3d 233, 235 (4th Cir. 1994).
Defendant does not explicitly point to which of the three reasons it believes warrants this Motion
being granted, however its argument appears to be that it was a clear error of law or manifestly
unjust to deny summary judgment on this claim. Having reviewed the Motion, Response, and
Reply, the Court concludes that the denial of summary judgment on the ground discussed in the
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Motion was appropriate, albeit this Court acknowledges that whether Plaintiff can make a robust
argument to a trier of fact based on the current evidence to support her remaining claim is
questionable.
Discussion
Plaintiff’s Complaint alleged several claims against Defendant, including violations of Title
VII, violations of § 1981, and assault and battery, a claim she later abandoned. [ECF #1]. The
Complaint asserted that Plaintiff was denied numerous promotions, which were given instead to
male employees who were equally or less qualified than Plaintiff. [ECF #1, p. 3]. In this Court’s
Order granting in part and denying in part summary judgment in favor of Defendant, this Court
declined to grant summary judgment on one of Plaintiff’s failure-to-promote claims. The particular
claim was that in February 2013, Defendant placed another employee, Jonathan Thomas, in an
available roadmaster position in Florence, SC, that Plaintiff believes evidences a discriminatory
intent on the part of Defendant to prevent her from receiving this promotion. Defendant argued
that it directly placed this employee in the position because he had the qualifications Defendant
was looking for, was more qualified than Plaintiff for this position, and Plaintiff was not ready
to be placed in a roadmaster position.
This Court considered the fact that Plaintiff provided the following circumstantial evidence
surrounding this position: (1) she had spent more time with the company; (2) Mr. Thomas did not
have the same railroad experience; (3) Florence had never had a female manager; and (4) she was
better qualified in that she had been trained by Defendant. [ECF #70]. This Court also found
relevant the fact that she was temporarily placed to fill Mr. Thomas’s position while he was
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absent, and she was appointed and placed as an assistant roadmaster in the Florence division.
[ECF #72]. All of these facts together led this Court to find that Plaintiff had provided sufficient
facts to get past summary judgment on this one claim.
As an initial matter, Defendant argues that this Motion is the first time it has had the
opportunity to address or challenge the argument that its proffered reason for its employment
action (to hire Jonathan Thomas) was false or an ex post justification (i.e. pretextual) because
Plaintiff did not raise this issue. [ECF #72-1, p. 2]. The flaw in Defendant’s argument, as will
be more fully addressed below, is that Defendant assumes that this Court’s decision was
necessarily based on the fact that Plaintiff only met her burden of showing pretext in one of two
ways (i.e. that she did not make the proper showing that she better qualified, because the Court
did not explicitly make that finding). [ECF #72-1, p. 1]. The Order actually points to Plaintiff’s
arguments regarding her qualifications as one circumstantial piece of evidence that supports the
finding that she met her burden of proof. [ECF #70, p. 1]. Moreover, a review of the record
reveals that while Plaintiff may not have explicitly said Defendant’s proffered reason was “false,”
she clearly raised this argument. For example, she argued that her testimony, along with the
testimony of Ernest McWhite, another employee, refute Defendant’s proffered reason that Plaintiff
did not have the requisite technical skill required for the position and that Mr. Thomas was better
qualified than Plaintiff. [ECF #47, pp. 26-27]. Again in her objections to the R&R, Plaintiff
objected to that finding, with respect to each failure to promote claim, that Plaintiff could not
show she was more qualified than the other candidate chosen. [ECF #64, p. 8]. In fact, relying
upon prior case law stating pretext can be established by showing a given reason is “unworthy of
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credence,” Plaintiff argued the facts she believed showed that Defendant’s proffered reason or
reasons were “unworthy of credence” (i.e., that they were false). [ECF #65, pp. 9-11].
This Court considered both arguments, but ultimately agreed with Plaintiff that she brought
forth enough evidence with respect to this position to meet her burden of proof for summary
judgment purposes.

Accordingly, this Court finds that Defendant has previously had the

opportunity to address arguments regarding whether its proffered reasons for promoting Mr.
Thomas were pretextual in that its reasons may have been false. Nonetheless, this Court has
considered Defendant’s Motion and will consider its arguments.
To prove a case of discriminatory failure to promote under Title VII, a plaintiff must either
put forth direct evidence of a discriminatory purpose by a defendant in promoting employees, or
circumstantial evidence of “sufficiently probative force to raise a genuine issue of material fact.”
Cutshall v. Potter, 347 F. Supp. 2d 228, 233 (W.D.N.C. Dec. 1, 2004) (citing Evans v. Tech.
Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996)). A plaintiff may also satisfy this
burden by showing that an employer’s proffered reason for an employment action is unworthy of
credence. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000). Defendant
asserts that it provided two legitimate, nondiscriminatory reasons to select another candidate over
Plaintiff for the position in question: (1) the candidate was better qualified; and (2) Plaintiff did
not have the requisite technical knowledge needed, as indicated in recent performance reviews.
[ECF #72-1, p. 3]. Defendant argues that in order to defeat summary judgment, Plaintiff had to

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show that both of these reasons were pretextual.2 First, this Court notes that what Defendant seeks
to characterize as two distinct proffered reasons actually overlap in that one necessarily impacts
or subsumes the other. Second, Plaintiff adequately addressed the reasons given by Defendant for
hiring Mr. Thomas, regardless of whether she parsed them out individually or considered them all
at once. Specifically, Plaintiff argued that Defendant was unworthy of credence for finding Mr.
Thomas was better qualified in that she was with the company longer and she was trained by
Defendant, and that the reason given that she lacked the technical knowledge needed was unworthy
of credence because they later asked her to fill in for that same position (i.e. Defendant would not
ask someone lacking the necessary skills to temporary fill in for that position). Plaintiff also
produced the affidavit of Ernest McWhite, a fellow former employee and roadmaster who testified
as to Plaintiff’s technical skills and qualifications and bolstered Plaintiff’s belief that Defendant’s
given reasons for not hiring her were steeped in pretext. [ECF #47-1]. Thus, this Court agrees
with Plaintiff that her showing that she was better qualified simultaneously also showed that
Defendant’s proffered reason that someone else was more qualified was false or pretextual.
1. Mr. Thomas was more qualified than Plaintiff for the roadmaster position.
Defendant does not appear to dispute that Plaintiff argued she was more qualified than Mr.
Thomas, and thus, this reason given by Defendant was mere pretext. Instead, Defendant now

2

In Potter, a case considering a reverse race discrimination failure to promote claim, the defendant argued
that the plaintiff was not promoted to a position because of his excessive tardiness, and because in its
discretion, it chose to select an equally qualified candidate. 347 F. Supp. 2d. at 239. However, the
tardiness timeline included many dates after the promotion already occurred. Potter concluded
that the defendant was still entitled to summary judgment because evidence conclusively supported its
other non-discriminatory reason for its employment action. Id. In that case, the plaintiff could not rebut
the fact that its employer chose someone equally qualified, and further, that his employer had previously
offered the position to another white candidate. Id.

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argues in its Motion that Plaintiff’s reasons given to show she was better qualified are based on
her own criteria for judging qualifications and merely show she was around longer than Mr.
Thomas. [ECF #72, pp. 5-7]. In essence, Defendant argues Plaintiff has not made a showing that
her qualifications were “demonstrably superior” to those of Mr. Thomas. See Heiko v. Colombo
Savings Bank, F.S.B., 434 F.3d 249, 261 (4th Cir. 2006) (finding that a reasonable fact finder
could conclude the plaintiff was posed for a specific position and displayed the applicable aptitude
needed for that position).3 Beyond a general roadmaster job description, this Court does not have
before it the selection criteria used by the alleged decisionmaker or makers to conclude who was
the most qualified candidate. Plaintiff provides as evidence the fact that she had seniority with
the company, was trained by CSX, and another male roadmaster (Mr. McWhite), felt she had the
necessary qualifications. In construing these facts in the light most favorable to Plaintiff, this
Court previously determined that Plaintiff provided enough evidence to show a material question
of fact exists as whether she was more qualified than Mr. Thomas.

Accordingly, upon

reconsideration, this Court denies Defendant’s Motion as to this argument.

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Defendant argues that Plaintiff mischaracterized Mr. Thomas as an “external hire.” [ECF #72, p. 6].
W hile this is probably a mischaracterization in that Mr. Thomas had been a CSX employee since August 7,
2011, this Court did not rely on this mischaracterization in its ruling as a reason given by Plaintiff as
sufficient evidence to get past summary judgment. The Court noted, however, the extent of Plaintiff’s
railroad experience as compared to Mr. Thomas’s experience. Furthermore, Defendant points to Anderson
v.Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir. 2005) to argue that, Plaintiff cannot
“establish her own criteria” for a position. However, in Anderson, the position in question had a detailed
job description, including “core and functional competencies” listed within the job description by which
the candidates presumably were measured. In this case, Defendant presented Plaintiff with a general
roadmaster job description to review, marked as Exhibit 2 to her deposition. This exhibit was not
attached to Plaintiff’s deposition filed as an exhibit.

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2. Plaintiff did not have the required technical skill for the roadmaster position.
Defendant next argues that Plaintiff did not address this reason for nonselection, and
further, that it provided a legitimate reason for not placing Plaintiff in this position, namely, the
fact that she performed poorly in interviews for other positions. [ECF #72-1, p. 9]. Defendant
states on the one hand that Plaintiff did not raise an objection to this issue, however on the other
hand implicitly acknowledges that this Court read Plaintiff’s argument regarding the fact that she
was thereafter called upon to fill in for Mr. Thomas as Plaintiff’s proof that Defendant’s reasons
for not hiring Plaintiff were pretextual. [ECF #72-1, p. 10]. While this Court has thus previously
considered this issue, it will address the three stated reasons to reconsider this analysis.
First, Defendant argues that because Plaintiff did not make a “false-reasoning” argument
as to whether Defendant was truthful in its allegation regarding her skill level before the
Magistrate Judge or in her objections, it should not have been considered by this Court. As
previously discussed in this Order, this Court does not agree with Defendant that Plaintiff did not
adequately raise this issue or otherwise put Defendant on notice of this argument. Even so, while
the Court is not obligated to consider new arguments raised after the R&R, it may do so in its
discretion. Dune v. G4s Regulated Security Solutions, Inc., 13-CV-01676, 2015 WL 799523, *2
(D.S.C. Feb. 25, 2015). In any event, because Defendant is now being heard by this Court on
its Motion for Reconsideration, this argument is moot.
Second, Defendant disagrees with this Court that Plaintiff raised a genuine issue of material
fact when she presented as evidence the fact that she was used as a temporary replacement for
Mr. Thomas in his absence, despite the fact that Defendant stated her alleged inadequate technical
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knowledge was a reason to deny her the promotion. Defendant argues that this is an improper
means to show pretext because Plaintiff has not shown that Mr. Elliott, the supervisor who filled
the Florence position, also made the decision to use her as a temporary replacement, citing to
Jarvis v. Astrue, CCB-05-2950, 2007 WL 2332694 (D. Md. July 31, 2007). Jarvis does not
establish such a holding. Jarvis involved a distinguishable factual scenario where several
individuals were involved in the decision to hire an employee for a position, and some of those
individuals were found to have exaggerated another candidate’s qualifications. Jarvis, 2007 WL
2332694, at *8. That Court held that the ultimate decision-maker did not rely on those areas of
qualification to make a decision, thus there was no inference of discrimination. Id. In its reply,
Defendant cites to Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980), arguing that the Fourth
Circuit has held that only the perception of the decisionmaker is relevant. In Smith, the Court was
considering a plaintiff’s own perception of his ability versus the decisionmaker’s ability. By
contrast, Plaintiff argued that the Defendant’s own decision to place her in a temporary roadmaster
position calls into question its own proffered reason for making the decision not to promote her
to that job because she did not have the technical skill required for the job.

Whether this

particular stated reason by Defendant was legitimate or not, given the fact that she was used as
a temporary replacement, she was brought to Florence to be an assistant roadmaster in training,
she had been with the company for several years and had been trained by the company, is a
question of fact reserved for a jury. Moreover, the Defendant actually highlights the fact that the
record does not contain any information regarding who made the decision to put Plaintiff in this
temporary assignment, for how long, and whether others were available. [ECF #72-1, p. 12]. This
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Court, in viewing the evidence in the light most favorable to the Plaintiff, determined that a
material question of fact existed regarding whether this stated reason for hiring another candidate
over Plaintiff was pretextual. After considering Defendant’s argument, this Court will not grant
Defendant’s Motion on this ground.
Third, Defendant argues that this Court should reconsider its ruling because Plaintiff’s
argument that there had never been another female roadmaster cannot establish pretext. This Court
acknowledges that a mere absence of minorities in upper level positions, without evidence of the
relevant applicant pool, does not necessarily establish pretext. See June v. City of Gastonia, 3:13CV-612-RJC, 2015 WL 4249877, at *4 (W.D.N.C. July 13, 2015). However, this was not the
sole reason Plaintiff provided to show pretext. In fact, her argument was that in considering
several different facts together, Defendant’s proffered reason becomes suspect and raises a genuine
issue of material fact as to whether it was pretextual. Thus, this Court agrees with Plaintiff and
finds this argument is not sufficient to grant Defendant’s Motion.
Conclusion
The Court has thoroughly reviewed the entire record, including all pleadings and exhibits
filed in this case. While this Court acknowledges the somewhat weak nature of Plaintiff’s
remaining claim, for the reasons stated above, it is enough to withstand summary judgment, and
this Court DENIES Defendant’s Motion for Reconsideration. [ECF #72].
IT IS SO ORDERED.
Florence, South Carolina
June 2, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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