United States District Court, S.D. Alabama, Northern Division
MEMORANDUM ORDER AND OPINION
WILLIAM E. CASSADY, UNITED STATES MAGISTRATE JUDGE.
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.
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).
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).
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.
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,
SUMMARY OF FACTS
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
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).
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).
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).
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).
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).
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).
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).
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,
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).
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,
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).
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,