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Johnson v. Fairfield Southern Company Inc.

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

September 7, 2018




         The court has before it the January 31, 2018 motion for summary judgment and the March 2, 2018 motion to strike filed by Defendant Fairfield Southern Company (“FS”) (Docs. 37, 44).[2] Both motions have been fully briefed (Docs. 38, 40, 43, 45, 46) and are now under submission. For the reasons set forth below, both motions are due to be granted.


         On June 30, 2016, Plaintiff Joseph Johnson filed a complaint against Defendant FS stating two causes of action. (Doc. 1). Count one alleges unlawful race discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and count two alleges a civil conspiracy. (Id.). On August 15, 2016, Defendant moved to dismiss count two of the complaint. (Doc. 7). Plaintiff responded to this motion by stipulating to the dismissal of his civil conspiracy claim with prejudice, and the court dismissed this claim. (Docs. 12, 14).

         Defendant moved for summary judgment on the remaining Title VII claim. (Doc. 37). Defendant contends summary judgment is due to be granted in favor of FS because (1) Plaintiff cannot establish a prima facie case of race discrimination in his termination; (2) FS acted for legitimate, nondiscriminatory reasons and Plaintiff cannot show the reasons are a pretext for intentional race discrimination; and (3) Plaintiff released his claims against FS. (Id. at 2). Additionally, Defendant contends Plaintiff cannot recover back pay or front pay after August 15, 2015, because his position would have been eliminated on that date. (Id.). Plaintiff filed a brief and evidence in opposition to the motion (doc. 41) and Defendant filed a reply brief (doc. 43).

         With its reply, Defendant also filed a motion to strike portions of the two affidavits submitted by Plaintiff in opposition to summary judgment. (Doc. 44). Plaintiff filed a response in opposition to the motion to strike (doc 45) and Defendant filed a reply (doc. 46). The court begins with the motion to strike and then addresses the motion for summary judgment.


         Defendant asks the court to strike portions of two affidavits of former employees Anthony Olds and Dwight Smith. (Doc. 44). The affidavits were submitted by Plaintiff in opposition to summary judgment. (Doc. 42-1 (“Olds Aff.”) at 2-5; Doc. 42-3 (“Smith Aff.”) at 2-4). Defendant contends the court should strike the affidavits in part because they contain statements that are (1) conclusory and lack foundation in that they are not based on personal knowledge, (2) hearsay, and (3) irrelevant. (Id.). The court finds that the motion to strike is due to be granted.

         “A district court has broad discretion in determining the admissibility of evidence” on a motion for summary judgment. Hetherington v. Wal-Mart, Inc., 511 Fed.Appx. 909, 911 (11th Cir. 2013).[3] Under Federal Rule of Civil Procedure 56(c)(4) “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “[C]onclusory allegations without specific supporting facts have no probative value.” Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000).

         The court agrees with Defendant that the objected-to portions of the affidavits are inadmissible. The statements in both Olds' and Smith's affidavits regarding their conclusions that widespread prejudice and/or discrimination occurred at FS[4] are conclusory and do not contain the necessary specific supporting facts. Neither affiant identifies the specific people with the alleged racial animus but merely refers to “supervisors” in general. Where some specifics are provided, the necessary context to support the allegations is absent.

         Additionally, the court rejects Plaintiff's argument that the testimony contested by Defendant is admissible as lay opinion evidence under Federal Rule of Evidence 701. (Doc. 45 at 5). Federal Rule of Evidence 701 allows a lay witness to testify in the form of an opinion, provided such testimony “is limited to” those opinions or inferences that are: “(a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. Although Plaintiff focuses on the “witness's perception” requirement in 701(a), it is actually the “helpfulness” requirement in 701(b) that is not met by the testimony at issue. Subpart (b) is designed to “provide assurances against the admission of opinions which would merely tell the jury what result to reach.” United States v. Rea, 958 F.2d 1206, 1215 (2d Cir. 1992) (quoting Fed.R.Evid. 701 Advisory Committee Note on 1972 Proposed Rule); see also Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997) (same).

         In the context of employment discrimination cases, the Eleventh Circuit has cautioned that “a discharged employee's mere suspicion of . . . discrimination, unsupported by personal knowledge of discrimination, will not constitute [proof of] pretext.” Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1026 (11th Cir.1994) (citing Slaughter v. Allstate Insurance Co., 803 F.2d 857, 860 (5th Cir. 1986)). The Second Circuit explained this principle as follows:

[I]n an employment discrimination action, Rule 701(b) bars lay opinion testimony that amounts to a naked speculation concerning the motivation for a defendant's adverse employment decision. Witnesses are free to testify fully as to their own observations of the defendant's interactions with the plaintiff or with other employees, but “the witness's opinion as to the defendant's [ultimate motivations] will often not be helpful within the meaning of Rule 701 because the jury will be in as good a position as the witness to draw the inference as to whether or not the defendant” was motivated by an impermissible animus. Rea, 958 F.2d at 1216. . . . A jury can draw its own conclusions “from observed events or communications that can be adequately described” to it. . . . But [a witness's] speculative lay opinion that [a supervisor's conduct] is attributable to race, rather than anything else, is not helpful . . . because it “merely tells the jury what result to reach.” Id. at 1215.

Hester v. BIC Corp., 225 F.3d 178, 185 (2d Cir. 2000).

         The objected-to opinion testimony of Olds and Smith does exactly what Rule 701(b) attempts to prevent. The testimony relaying the subjective opinions of Olds and Smith as to why certain decisions were made are inadmissible. There are a multitude of reasons why the actions could have been taken and Olds and Smith may not testify as to the decision maker's ultimate motivations. For the foregoing reasons, Defendant's motion to strike is due to be granted.



         Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See Id. at 324.

         The substantive law identifies which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249.


         FS is owned by Transtar and operates a rail line within United States Steel Corporation's Fairfield Works in Birmingham, Alabama. (Doc. 39-1 (“Rutherford Decl.”) ¶ 2; Doc. 38 at 3). The bargaining unit employees at FS are represented by the United Steelworkers of America union and the terms and conditions of their employment are governed by a collective bargaining agreement. (Doc. 39-2 (“Johnson Dep.”) at 82).

         Plaintiff, an African American, was hired on December 16, 2009, as a helper trainee. (Id. at 81; Doc. 39-4 at 55). Plaintiff was a union employee and his employment was governed by the collective bargaining agreement. (Johnson Dep. at 82). After approximately six months, Plaintiff became a helper. (Id. at 88). Helpers work with train operators in a two-man crew. (Id. at 89). The train operator moves railcars around the Fairfield Works with a remote control, and the helper directs the safe movement of the rail cars, operates railroad switches, and secures railcars. (Id.).

         1. FS's rules and disciplinary process

         Because of the inherent dangers of working in and around trains, FS has a number of safety rules to help prevent accidents to people and property. Cardinal Rules are directed at safety and cover situations when a failure to follow a rule can result in substantial risk of harm or person or property and are identified as life threatening rules. (Id. at 90-91; Doc. 39-2 at 115-17; Doc. 39-6 (“Dalton Dep.”) at 48). Operating Rules are rules, including safety rules, specific to a facility. (Dalton Dep. at 48). General rules are basic safety rules. (Id.). Plaintiff admits he was trained on all safety rules. (Johnson Dep. at 90-91).

         FS follows a disciplinary process for violations of safety rules, including grievance and arbitration procedures dictated by the collective bargaining agreement. (Doc. 39-5 (“Weideman Dep.”) at 67-77; Doc. 39-5 at 58-59). As relevant here, under the collective bargaining agreement, an employee suspended for five days or more may have the union request a preliminary hearing, commonly referred to as a 9(b) hearing. (Id.; Doc. 39-7 (“Baginski Dep.”) at 44). If the outcome of the hearing is unsatisfactory to the employee, the union may file a grievance, which can include another hearing, appeal and arbitration. (Weideman Dep. at 70-77; Doc. 39-5 at 58-59; Baginski Dep. at 44, 105).

         2. July 19, 2011 accident

         On July 19, 2011, Plaintiff uncoupled a railcar from another train and failed to secure the handbrake, as required. (Johnson Dep. at 22, 28, 30). Instead, Plaintiff put air on the railcars and then put the railcar into emergency. (Id. at 93). Although Plaintiff's actions should have kept the railcar in place, unbeknownst to Plaintiff, the air brake pipe was broken and failed to prevent the railcar from rolling. (Id. at 93-94, 119-20; Weideman Dep. at 39-40; Doc. 39-4 at 48). As a result, the railcar rolled over twenty feet until it hit another car. (Johnson Dep. at 95). There was no damage to the cars or injury to any person as a result of the accident. (Doc. 42-3 (“Smith Aff.”) at 2; Weideman Dep. at 117-18).

         Anthony Olds, the train operator working with Johnson at the time of the accident, called David Tarwater, the Superintendent of Transportation, to inform him about the accident.[6] (Johnson Dep. at 95-96; Doc. 39-4 (“Tarwater Dep.”) at 11). When Tarwater arrived, [7] Johnson admitted he did not secure the handbrake as required. (Johnson Dep. at 97-99). Tarwater directed Plaintiff and Olds to submit to a drug test. (Id.). Plaintiff initially refused to take the drug test, and Plaintiff and Tarwater got into a “heated conversation” about it. (Id. at 97-100). Plaintiff asked Tarwater why he had to take a drug test when he heard that Joey Simmons, a white helper, was not required to take a drug test only days before when he allegedly failed to properly apply a hand brake. (Id. at 71-72; 97-102). Tarwater refused to discuss the situation regarding Simmons, and Plaintiff ultimately submitted to the drug test and passed. (Id.).

         3. The accident investigation

         A meeting was held shortly after the accident. From what the court can glean from the record, Plaintiff, Tarwater, Clarence Rutherford, the General Superintendent for FS, Tommy Hosmer, a manager on duty at the time of the accident, and David Weideman, the Director of Human Resources and Labor Relations, attended the meeting. (Rutherford Decl. at 3; Johnson Dep. at102-03; Tarwater Dep. at 101; Doc. 39-8 (“Hosmer Dep.”) at 16-19; Weideman Dep. at 9, 119-20). Plaintiff described the meeting as follows:

[T]hey asked me about the incident and what happened. I told them what happened, that I didn't tie a hand brake.[8] And they told me it was required under the rules, you had to take your drug test. And Clarence Rutherford asked me did I want to come up there and talk to the new what they call cubs, the new trainees about my situation, incident what happened. And I asked him was I going to get paid for it, and he told me no. And I told him I wasn't going to do it unless I get paid for it. . . . [T]hey were saying that - Tarwater said I laughed when he asked me something. He basically asked me was - do you want to get home safely to your family, and that sounded kinda crazy coming from him because we had just got into a heated conversation [about the drug test] . . . so I knew he wasn't worried about my safety. So I kind of looked at him and said, yeah, I want to get home safely to my family, and they considered that as laughing, [9] which I know is not a laughing matter. Of course I want to get home safe to my family.

(Johnson Dep. at 104-05). When asked in his deposition if he laughed in response to Tarwater's question, Plaintiff stated, “No, I just made a huh noise like that, but actually laughing, no I didn't.” (Id. at 105).

         Plaintiff testified Tarwater and Rutherford did not visibly react to him making the noise. (Id.). Rutherford testified, however, “Johnson's poor attitude about his safety violation was very concerning, and I had never witnessed an employee laugh and express no remorse for a Cardinal Rule violation.” (Rutherford Decl. ¶ 7). Likewise, Tarwater testified he was disappointed in Johnson's “cavalier attitude” towards safety, especially because he had personally been involved in fatalities in the rail industry and safety is very serious. (Tarwater Dep. at 48-50).

         Additionally, Rutherford testified he was “very disappointed” when Johnson refused to talk to other employees about his safety violation. (Rutherford Decl. ¶ 8). Rutherford used the process to help prevent future accidents and as a way to mitigate discipline. (Id.). He used the process before Johnson's accident and after the accident.[10] (Id.). No. employee had ever refused the request and Rutherford believed Johnson's behavior showed he did not understand the severity of his conduct. (Id.). Plaintiff admitted Rutherford “got kind of mad when [he] said [he] wasn't going to come talk to the trainees about my incident if [he] wasn't going to get paid for it.” (Johnson Dep. at 103).

         4. Plaintiff's suspension, disciplinary meeting and termination

         On July 22, 2011, Tarwater issued Plaintiff a letter detailing the findings of the investigation and Plaintiff's discipline. (Doc. 39-2 at 123-24). The letter stated FS determined the following rules were violated by Plaintiff's ...

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