United States District Court, N.D. Alabama, Southern Division
MARITA TUBBS, on behalf of herself and the class she seeks to represent, Plaintiff,
NORFOLK SOUTHERN CORPORATION Defendants.
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
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).
Southern moved to dismiss, or, in the alternative, moved for
summary judgment on Ms. Tubbs's discriminatory failure to
promote claims. (Doc. 30). 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.
Standard of Review
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).
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
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).
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).
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).
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.
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 ...