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Turner v. Alabama & Gulf Coast Railway LLC

United States District Court, S.D. Alabama, Northern Division

December 22, 2017

WILLIE TURNER, Plaintiff,
v.
ALABAMA & GULF COAST RAILWAY LLC, Defendant.

          MEMORANDUM ORDER AND OPINION

          WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant Alabama & Gulf Coast Railway, LLC's, (“AGCR”) Motion for Summary Judgment, (Doc. 48), and Brief in Support of Motion for Summary Judgment, (Doc. 49), (collectively, “motion for summary judgment”), which were filed on September 20, 2017, and Plaintiff Willie Turner, Jr.'s, Motion and Incorporated Memorandum to Strike Exhibits Submitted in Support of Defendant's Motion for Summary Judgment (“motion to strike exhibits”), (Doc. 53), which was filed on October 13, 2017. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Docs. 33 & 34 (“In accordance with the provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States magistrate judge conduct any and all proceedings in this case, including the trial, order the entry of a final judgment, and conduct all post-judgment proceedings.”)). Upon consideration of the briefs of the parties and the record and those argument presented at oral argument, the undersigned has determined Defendant AGCR's motion for summary judgment is due to be granted and Plaintiff Turner's motion to strike exhibits is due to be denied.

         I. PROCEDURAL HISTORY

         On June 12, 2017, Plaintiff Turner's current attorney filed a notice of appearance following the withdrawal of a former attorney. (Doc. 38). The parties previously attempted to negotiate settlement, and following Plaintiff Turner's counsel's appearance, the parties continued to attempt settlement; however, the negotiations were unsuccessful. (See Docs. 26, 39, & 42).

         On July 12, 2017, the parties jointly motioned the Court for a telephonic status conference to reset deadlines to complete discovery. (Doc. 42, at 1). On the same day, this Court denied the motion, stating that the parties had not indicated what needs remained and how much time would be necessary. (Doc. 43). Defendant AGCR subsequently filed a more specific motion with the Court in which Defendant AGCR motion the Court to allow Defendant AGCR until August 15, 2017, to depose Plaintiff Turner. (Doc. 44). Despite the Court's previous order, and Defendant AGCR's limited motion to take only the deposition of the Plaintiff Turner, Plaintiff Turner did not file a similar motion for leave to depose any defense witness. (See Docket Sheet). Rather, Plaintiff emailed opposing counsel, seeking to conduct depositions following the close of discovery and without an order from this Court. (See Doc 53-1, at 2-4; Doc. 53-2, at 2).

         Pursuant to this Court's Rule 16(b) Scheduling Order, (Doc. 35), as amended, (see Docs. 45 & 47), Defendant AGCR filed its motion for summary judgment on September 20, 2017, (Doc. 48). Pursuant to the Court's submission order for Defendant AGCR's motion for summary judgment, (Doc. 51), Plaintiff Turner filed his response to Defendant AGCR's motion for summary judgment on October 13, 2017, (Doc. 52), and Defendant AGCR filed its reply on October 20, 2017, (Doc. 55).

         On October 13, 2017, Plaintiff Turner contemporaneously filed his motion to strike exhibits, (Doc. 53), and pursuant to the Court's submission order for Plaintiff Turner's motion to strike exhibits, Defendants AGRC filed its response on October 24, 2017, (Doc. 56). The Court set this matter for oral argument on November 7, 2017, on Defendant AGCR's motion for summary judgment and Plaintiff Turner's motion to strike, (Docs. 54, 58, & 57), and the parties telephonically appeared before the undersigned on said date, (Doc. 60).

         II. SUMMARY OF FACTS

         Defendant AGCR is a railroad, which operates from Pensacola, Florida, export terminals, through Alabama and Columbus, Mississippi. (Doc. 50-1, ¶ 2). On April 15, 2013, Defendant AGCR hired Plaintiff Turner, as a conductor. (Doc. 50-1, ¶ 4). Plaintiff Turner was assigned to a terminal in Magnolia, Alabama, which was designated his “home terminal.” (Doc. 50-1, ¶ 4; Doc. 50-2, at 9). As a conductor, Plaintiff Turner's job assignments and location were governed by the seniority provisions of the collective bargaining agreement between Defendant AGCR and its operating employees, who are represented by the United Transportation Union. (Doc. 50-1, ¶ 5; Doc. 50-2, at 20-22).

         Defendant AGCR, also, maintains an extra board at some terminal locations. (Doc. 50-1, ¶ 7). The extra board is a roster of employees who are available to cover assignments at various locations for regular employees. (Doc. 50-1, ¶ 7). Thus, employees who work the extra board may be assigned additional work in other terminals. (Doc. 50-1, ¶ 7; Doc. 50-2, at 10). Defendant AGCR pays conductors mileage to work at a terminal outside of the conductor's home terminal. (Doc. 50-1, ¶ 8).

         In January 2014, Plaintiff Turner was assigned to the Demopolis, Alabama, terminal and consistently worked the Demopolis terminal from February 26, 2014, to October 2, 2014. (Doc. 50-1, ¶ 9). In August of 2014, Plaintiff Turner's father became ill. (Doc. 50-2, at 12-13). As a result, Plaintiff Turner sought and was approved for leave, which was effective September 16, 2014, under the Family and Medical Leave Act of 1993 (“FMLA”), (Doc. 50-2, at 13-15; Doc. 50-3, ¶ 3). In or about late September 2014, Plaintiff Turner sought and was approved for intermittent FMLA leave, which became effective on September 29, 2014. (Doc. 50-2, at 12-17; Doc. 50-3, ¶ 3). Plaintiff Turner took intermittent FMLA leave for approximately one year and did not return to work until August 2015. (Doc. 50-2, at 12-16; Doc. 50-3, at 25). Following Plaintiff Turner's intermittent FMLA leave, he took bereavement leave from June 12, 2015, to June 16, 2015, as well as additional vacation time following his bereavement leave. (Doc. 50-3, ¶ 4).

         Plaintiff Turner contends, while he was on intermittent FMLA leave, he received between five (5) and ten (10) phone calls from Operations Manager Timothy Wallender; Train Master Michael Grice; and Human Resources Director Cynthia Strawn or “Pam” in HR in regard to Plaintiff Turner returning to work. (Doc. 50-2, at 6-7 & 46-47). Plaintiff Turner alleges Wallender and Grice made the following statements to Plaintiff Turner: (1) “Willie, we hired you to do a job, we didn't hire you to sit at home, ” (Doc. 50-2, at 47-48); (2) “Willie, we need you to come on back to work, we'll work with you, ” (Doc. 50-2, at 37); (3) “You scratch my back and I'll scratch your back, ” (Doc. 50-3, at 56-57); (4) “[Plaintiff Turner] better enjoy the time he was off, ” (Doc. 50-3, at 57-58); (5) “[I]f [Plaintiff Turner] was going to play that game, to stay at home . . . [he] would be buried on the job that [he] was on, the Demopolis job, ” (Doc. 50-3, at 59); and (6) “[I]f Plaintiff Turner [was not] willing to work with them, they [would not] be willing to work with [him], ” (Doc. 50-2, at 51). Plaintiff Turner concedes he took several additional months of FMLA leave after the communications. (Doc. 50-2, at 52). Moreover, Plaintiff Turner admits he was permitted to take all the FMLA leave that he wanted. (Doc. 50-2, at 44 & 45; Doc. 50-3, at 27).

         Upon Plaintiff Turner's return to work for periods during his intermittent FMLA leave, and after his FMLA leave, he was returned to the same job as a conductor and assigned the same job responsibilities at the same rate of pay. (Doc. 50-2, at 19, 20-21, 27, 31, & 45-46; Doc. 50-3, at 25). Plaintiff Turner, also, received mileage reimbursements prior to, and following, returns from his intermittent FMLA leave. (Doc. 50-3, at 8-11; Doc. 50-4, at 5-18). Plaintiff Turner received mileage in July 2014 and August 2014, while he was assigned to the Demopolis terminal; in September 2014 and October 2014, while he was assigned to the Magnolia, Alabama, terminal; and in November 2014 and December 2014, while he was assigned to the Fountain, Alabama, terminal. (Doc. 50-3, at 19-22; Doc. 50-4, at 5-18).

         Prior to Plaintiff Turner's intermittent FMLA leave, and following his return, he was assigned to a home terminal at the Demopolis terminal. (Doc. 50-2, at 19 & 30). Plaintiff Turner was assigned to the Demopolis terminal until October 2, 2014. (Doc. 50-1, ¶ 9). Plaintiff Turner admits his assignment to the Demopolis terminal was proper and pursuant to his seniority under the collective bargaining agreement. (Doc. 50-1, ¶ 9; Doc. 50-2, at 19, 25-30, 31, 32-33, 35-36, & 37-38). The Demopolis terminal had no extra board or overtime work. (Doc. 50-2, at 31).

         Plaintiff Turner's pay was reduced after his Demopolis terminal assignment because he was unable to work the extra board or overtime work. (Doc. 50-2, at 24-25). Plaintiff Turner desired to return to a prior terminal at which he had worked in Magnolia, Alabama; however, under the collective bargaining agreement, he was unable to transfer to the Magnolia terminal unless a job became available at that location and he was the most senior bidder for that job. (Doc. 50-2, at 22, 49, 52-53). Following Plaintiff Turner's return from FMLA leave, he contends he wrote a letter to Defendant AGCR management in which he complained Grice would not let him exercise his seniority to return to the Magnolia terminal. (Doc. 50-2, at 32-34 & 57-60; Doc. 50-3, at 6-8). The collective bargaining agreement between Defendant AGCR and union employees states temporary “vacancies known to be at least five (5) scheduled days but less than thirty (30) days can be filled by the senior applicant for such position.” (Doc. 50-1, ¶ 6; Doc. 50-1, at 17). Permanent vacancies are assigned to the senior qualified bidder. (Doc. 50-1, ¶ 6; Doc. 50-1, at 17). “Employees can move from their bid position only by bidding another vacant position, by exercising their seniority if their job is abolished, or if they are displaced by a senior employee exercising his/her seniority.” (Doc. 50-1, ¶ 6; Doc. 50-1, at 17).

         As a result of Plaintiff Turner's discontent with his Demopolis terminal assignment, Grice created a position for Plaintiff Turner in Fountain, Alabama. (Doc. 50-1, ¶ 12; Doc. 50-2, at 43 & 65; Doc. 50-3, at 1). The Fountain terminal had extra board work, and Plaintiff Turner was able to add his name to the extra board. (Doc. 50-2, at 42).

         During Plaintiff Turner's intermittent FMLA leave, he was required to submit to drug testing following a leave of thirty (30) or more days. (Doc. 50-1, ¶ 14; Doc. 50-2, at 6). After thirty (30) or more days out of work, all employees of Defendant AGCR are required to submit to drug testing to return to work. (Doc. 50-1, ¶ 14). Accordingly, Plaintiff Turner was required to take a drug test after a return from a thirty-day (30) leave. (Doc. 50-1, ¶ 14). Plaintiff Turner was required to drive to different test locations based on the testing centers' hours of operation, scheduling, and availability. (Doc. 50-1, ¶ 14).

         After an absence, employees of Defendant AGCR who are not on extended leave are required to update their availability status within twenty-four (24) hours of the absence using the “Crew Callers” telephone line. (Doc. 50-1, ¶ 15). Plaintiff Turner was out sick on April 6, 2015; however, he failed to update his availability on the following day, April 7, 2015. (Doc. 50-1, ¶ 15). On April 8, 2015, Plaintiff Turner provided only twenty-six (26) minutes notice he would not be at work before his scheduled start time. (Doc. 50-1, ¶ 15).

         Prior to Plaintiff Turner's FMLA leave, Wallender counseled Plaintiff Turner about Plaintiff Turner's late arrival to work. (Doc. 50-1, ¶ 16). On April 9, 2015, Wallender stood at Plaintiff Turner's depot and observed Plaintiff Turner arrive to work ten (10) minutes late at 7:10 a.m. (Doc. 50-1, ¶ 16). Wallender told Plaintiff Turner he was late, and Plaintiff Turner stated his “brakes on his truck got stuck.” (Doc. 50-1, ¶ 16). Later that day, Plaintiff Turner submitted his Federal Hours of Service Timeslip that showed he arrived on duty at 7:00 a.m. (Doc. 50-1, ¶ 16). Wallender, later, learned Plaintiff Turner used the Unicorn pay system to clock in via his personal telephone prior to arriving at work. (Doc. 50-1, ¶ 16).

         Wallender, also, reviewed Plaintiff Turner's clock in history and observed Plaintiff Turner clocked in at 6:40 a.m. on several occasions, though employees are not permitted to clock in more than fifteen minutes before the employee's on duty time. (Doc. 50-1, ¶ 16).

         As a result of the above disciplinary issues, a formal investigation was initiated in regard to whether Plaintiff Turner: (1) failed to update his availability status within 24 hours with crew callers on April 7, 2015; (2) failed to give proper notice before taking off sick on April 8, 2015; (3) submitted a false Federal Hours of Service Time sheet on April 9, 2015; and (4) called into the Unicorn pay system via his personal telephone showing himself on duty at 7:00 a.m. before arriving to work on April 9, 2015 at 7:10 a.m. (Doc. 50-1, ¶ 17; Doc. 50-3, at 28-30). Plaintiff Turner waived any right to contest the charges alleged in the Notice of Investigation and pled guilty to the charges. (Doc. 50-1, ...


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