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Tubbs v. Norfolk Southern Corporation

United States District Court, N.D. Alabama, Southern Division

September 27, 2017

MARITA TUBBS, on behalf of herself and the class she seeks to represent, Plaintiff,



         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, ¶¶ 33-44).

         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. (Doc. 30-2). Ms. Tubbs 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 material fact. Therefore, the Court will deny Norfolk Southern's motion for summary judgment.

         I. 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 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)).

         II. 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). Additionally, Norfolk 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. (Id.).

         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 ...

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