Hunter v. Union Pacific Railroad Company

Filing 35

MEMORANDUM AND OPINION entered DENYING 33 MOTION for Reconsideration. (Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
STEVEN HUNTER,
Plaintiff,
VS.
UNION PACIFIC RAILROAD COMPANY,
Defendant.

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CIVIL ACTION NO. H-11-3408

MEMORANDUM AND OPINION
Steven Hunter sued his former employer, Union Pacific Railroad Company, alleging race
discrimination under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Hunter, who
is African-American, alleged that Union Pacific discriminated against him on the basis of his race.
He based his claim on two incidents. The first was when Union removed him from service after he
left the workplace instead of taking a scheduled drug test. He was reinstated after that incident. The
second incident occurred several months later, when he was fired after taking and failing a second
drug test. The court granted Union Pacific’s summary judgment motion on all Hunter’s claims and
entered final judgment. (Docket Entry No. 31, 32). Hunter now moves for reconsideration under
Federal Rule of Civil Procedure 59, and Union Pacific responded. (Docket Entry No. 33, 34).
Based on the pleadings; the motion and response; the record; and the relevant law, Hunter’s
motion for reconsideration is denied. The reasons are explained below.
I.

The Rule 59(e) Standard
The Federal Rules of Civil Procedure do not specifically provide for a motion for

reconsideration. Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 (5th Cir. 2004); see also St. Paul

Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997). Motions asking a court
to reconsider a judgment or order are generally analyzed under the standards for a motion to alter
or amend judgment under Rule 59(e) or a motion for relief from a judgment or order under Rule
60(b). Hamilton Plaintiffs v. Williams Plaintiffs, 147 F.3d 367, 371 n. 10 (5th Cir. 1998). Because
Hunter’s motion for reconsideration was filed 28 days after this court’s opinion, his motion is
appropriately considered under Rule 59(e).
A Rule 59(e) motion “calls into question the correctness of a judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 478–79 (5th Cir. 2004) (citing In re Transtexas Gas Corp., 303 F.3d
571, 581 (5th Cir. 2002)). “[A] motion to alter or amend the judgment under Rule 59(e) ‘must
clearly establish either a manifest error of law or fact or must present newly discovered evidence’
and ‘cannot be used to raise arguments which could, and should, have been made before the
judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64 (5th Cir. 2003) (quoting
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). “‘Manifest error’ is one that ‘is plain
and indisputable, and that amounts to a complete disregard of the controlling law.’” Guy v. Crown
Equip. Corp., 394 F.3d 320, 325 (5th Cir. 2004) (quoting Venegas–Hernandez v. Sonolux Records,
370 F.3d 183, 195 (1st Cir. 2004)). The Fifth Circuit warns that altering, amending, or reconsidering
a judgment under Rule 59(e) is an extraordinary remedy that courts should use sparingly. Templet,
367 F.3d at 479; see also 11 CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY KAY KANE,
FEDERAL PRACTICE & PROCEDURE § 2810.1, at 124 (2d ed. 1995). The Rule 59(e) standard
“favor[s] denial of motions to alter or amend a judgment.” S. Constructors Grp., Inc. v. Dynalectric
Co., 2 F.3d 606, 611 (5th Cir. 1993).
II.

Analysis

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Hunter contends that the court failed to consider important summary-judgment evidence
about his refusal to take the drug test that led to his firing. That evidence included that it was his
first drug test in 20 years of employment with Union Pacific, he was unfamiliar with the testing
process, and no manager was at the testing site to answer his questions. As the court noted in the
opinion, however, Hunter did not identify any Union Pacific requirement for a manager to be present
during testing. The earlier opinion explained why the court rejected Hunter’s argument that he did
not have to take the test because a manager was not present:
Paragraph 9.3.2 of Union Pacific’s Drug and Alcohol Policy states
that a “[d]etermination of drug use must be made by two managers,
at least one of whom is trained in accordance with 49 C.F.R. Part
219.11(g) and is on site.” (Docket Entry No. 20, Ex. D). This rule
applies only to drug testing based on reasonable suspicion or
reasonable cause. Hunter’s test was random, and Union Pacific’s
policies for random tests do not require a manager to be present
during testing. . . . Hunter also points to the “donor instructions for
drug tests.” Although those instructions state, “You must cooperate
with the railroad representative and the collector,” they do not state
that a railroad representative must be physically present during the
sample collection. (Docket Entry No. 21, Ex. 2).
(Docket Entry No. 31 at 9–10).
Hunter also points to a provision in Union Pacific’s drug-testing instructions stating: “You
have every right to question and understand [the drug testing] requirements before, during, and after
the testing process.” (Doc. Entry No. 21, Ex. 2). But, as this court noted in its earlier opinion, those
instructions do not state that an employee “may refuse to take a drug test because he has questions”
and leave the testing site. (Docket Entry No. 31 at 12). Union Pacific’s drug-testing instructions
clearly state that not submitting to a test for any non-emergency reason is a “refusal.” The
instructions warn: “Your test must begin immediately. There can be no delay for any reason. If you
delay the test or if you don’t cooperate, it will be considered refusal.” (Docket Entry No. 21, Ex.
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2). The instructions also state that the “railroad will excuse compliance with these testing
requirements only in case of a documented medical or family emergency, e.g., a life threatening
condition.” (Id.).
Hunter contends that he was excused from taking Union Pacific’s drug test because his
supervisor Jason Wood did not warn him that he could be fired if he refused to submit to the drug
test and left the worksite. But, as Hunter acknowledges in his motion for reconsideration, Wood was
not a manager, had no knowledge of Union Pacific’s drug-testing policy, and played no role in
administering his test. Hunter has not provided or pointed to any evidence that either of the two
individuals who were involved in his drug test — Ronald Lewis and the sample collector — told him
that he was permitted to leave work without taking the test. This argument is not a basis for
reconsideration.
Summary judgment was also warranted for another reason. Hunter failed to submit or point
to evidence that Union Pacific’s decision to terminate his employment was a pretext or that racial
discrimination was a motivating factor.
Even if Hunter is correct that Union Pacific failed to follow its testing
procedures, this is not sufficient to give rise to an inference or fact
dispute that he was subject to racially discriminatory disparate
treatment. “A defendant’s failure to follow its own policy is not
probative of discriminatory animus in the absence of proof that the
plaintiff was treated differently than other non-minority employees
because Title VII does not protect employees from the arbitrary
employment practices of their employer, only their discriminatory
impact.” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337 (5th
Cir. 2007) (quotation marks and citation omitted). Hunter has not
pointed to any comparators or other evidence suggesting that Union
Pacific followed the policies he cites for employees who were not
African-American.
(Docket Entry No. 31 at 11).

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Hunter contends that Wood “has shown his discriminatory animus in general at work by
using the word, ‘nigger’ in a work setting.” (Docket Entry 33 at 3). As this court pointed out,
Wood’s remarks, although highly offensive, do not support an inference that Hunter’s October 2009
drug test and the discipline for his refusal to take it was racially discriminatory:
To be evidence of discrimination, workplace comments must be “‘1)
related to the protected class of persons of which the plaintiff is a
member; 2) proximate in time to the terminations; 3) made by an
individual with authority over the employment decision at issue; and
4) related to the employment decision at issue.’” Barrientos v. City
of Eagle Pass, Tex., 444 F. App’x 756, 758 (5th Cir. 2011) (quoting
Krystek v. Univ. of S. Miss., 164 F.3d 251, 256 (5th Cir. 1999)).
Wood made the comments in November 2011, long after Hunter’s
drug tests. The comments were not related to the decision to remove
Hunter from service for declining the October 2009 test. (Docket
Entry No. 21, Ex. B at 7). Hunter has also failed to point to any
evidence that Wood was involved in having Hunter take the drug test
or in removing him from service for refusing to do so. Wood’s
derogatory remarks are not evidence that Union Pacific discriminated
against Hunter in testing him, considering his actions a refusal, or
withdrawing him from service.
((Docket Entry No. 31 at 12–13).
Hunter contends that he complained to Union Pacific that his proposed termination was
discriminatory but Union Pacific failed to investigate. The evidence Hunter has submitted suggests
otherwise. Hunter points to Union Pacific’s recorded description of his October 15, 2009
complaint. That description reflects that Hunter told Union Pacific that “his rights were violated”
by the drug test and that he felt that “this may be an issue of racism because there are only Caucasian
males at this location.” (Docket Entry No. 21, Ex. 5). Hunter also points to an October 15 email
from Paul Jones, Union Pacific’s Houston operations support director, to Amy Bang, its EEO
compliance manager. In his email, Jones stated that he will “close out [Hunter’s] value line
complaint showing it being handled by EEO.” (Id., Ex. 6). Jones instructed Bang to “request any
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information you deem helpful in closing this file from the investigation from Ronnie Lewis or Curtis
Grace” and to “[l]et [him] know if you need further information on the case.” (Id.). The following
day, Bang forwarded Jones’s email to Penny Lyons, asking that she look at it and then call her.
(Id.). Hunter has not submitted or pointed to any evidence of showing how Union Pacific’s internal
investigation into the complaint progressed after October 16. The evidence in the record does not
support an inference that Union Pacific failed to investigate Hunter’s discrimination complaint or
that the investigation it conducted was racially discriminatory.
III.

Conclusion
Hunter’s motion for reconsideration is denied.
SIGNED on August 23, 2013, at Houston, Texas.

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Lee H. Rosenthal
United States District Judge

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