United States District Court, N.D. Alabama, Southern Division
TERRY G. PRIOR, Plaintiff,
NORFOLK SOUTHERN CORPORATION, Defendant.
E. Ott, Chief United States Magistrate Judge.
case, Plaintiff Terry G. Prior claims that Defendant Norfolk
Southern Railway Company, Inc. (“Norfolk
Southern”) terminated his employment because of race,
in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §
1981. (Doc. 1). The cause now comes to be heard on
Norfolk Southern's motion for summary judgment. (Doc.
19). Upon consideration, the court concludes that the motion is
due to be granted.
SUMMARY JUDGMENT STANDARDS
to Rule 56 of the Federal Rules of Civil Procedure, a
defendant is authorized to move for summary judgment on the
claims asserted against it. Under that rule, 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. Proc. 56(a). The party moving for summary judgment
“always bears the initial responsibility of informing
the district court of the basis for its motion, ”
relying on submissions “which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see also Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); Adickes v. S.H. Kress &
Co., 398 U.S. 144 (1970). Once the moving party has met
its burden, the nonmoving party must “go beyond the
pleadings” and show there is a genuine issue for trial.
Celotex Corp., 477 U.S. at 324.
the party “asserting that a fact cannot be, ” and
a party asserting that a fact is genuinely disputed, must
support their assertions by “citing to particular parts
of materials in the record, ” or by “showing that
the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ.
Proc. 56(c)(1)(A), (B). In its review of the evidence, a
court must credit the evidence of the non-movant and draw all
justifiable inferences in the non-movant's favor.
Stewart v. Booker T. Washington Ins., 232 F.3d 844,
848 (11th Cir. 2000). At summary judgment, “the
judge's function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
is African-American. He was hired by Norfolk Southern on
January 17, 2005. During his employment, Plaintiff worked as
a “Carman” at Norfolk Southern's Norris Yard
in Irondale, Alabama, inspecting and repairing railroad cars.
Norfolk Southern terminated Plaintiff's employment on
December 30, 2015, as discipline for several alleged work
rule violations occurring on a shift he worked in October
2015. Plaintiff admits his guilt with respect to at least
most of that alleged malfeasance. The crux of his claim in
this court, rather, is one of racially disparate discipline,
based principally upon an assertion that Norfolk Southern
accused other, white employees of similar misconduct but did
not fire them.
to October 2015, Plaintiff had been involved in four
disciplinary events. First, on July 26, 2010, following an
investigative hearing on June 29, 2010, Plaintiff was
determined to have been sleeping on duty on May 31, 2010. For
that infraction he was given a 30-day deferred suspension.
Second, on April 16, 2014, Plaintiff was again found to be
sleeping on duty, for which he was given a 15-day deferred
suspension. Third, Plaintiff received a written discipline
report on August 6, 2015, for failing to complete a proper
brake test on July 28, 2015, a “minor” offense.
And fourth, on September 8, 2015, Plaintiff was issued
another written disciplinary warning for “improper
performance of duty, failure to detect previously tagged
(obvious) safety appliance damage” on August 31,
2015. He was also issued a 30-day deferred suspension for
that “serious” infraction.
discipline immediately resulting in Plaintiff's
discharge, however, was based on alleged work rule violations
occurring on the night of October 27-28, 2015. At that time,
Plaintiff was inspecting a train with three other carmen:
Jabrell Peterson, who is black, and Tommy Jerrell and Lloyd
Salter, who are both white. Based on their work on that
shift, disciplinary charges were brought against both
Plaintiff and Peterson, but not, apparently, against Jerrell
or Salter. The alleged violations against Plaintiff and
Peterson were laid out in a letter dated November 5, 2015,
written by Norfolk Southern's Senior General Foreman
Thomas Wynne, Jr., who is white. As it relates to Plaintiff,
Wynne claimed in the letter that he and General Foreman
Jordan Murphy, also white, observed Plaintiff failing to
“call clear” at a certain track at approximately
12:22 a.m. on October 28th (the “failing to call
clear”). Second, Wynne's letter asserted that
Peterson saw Plaintiff sleeping on duty at about 2:08 a.m.
(the “sleeping on duty”). Third, Plaintiff was
alleged to have failed to conduct a proper brake inspection
at approximately 2:26 a.m. (the “improper brake
inspection”). Finally, Norfolk Southern's letter
averred that Plaintiff made four false or conflicting
statements regarding matters under investigation that night.
In this vein, Norfolk Southern alleged that, in response to
questioning by Wynne, Plaintiff had falsely claimed to have
“walk[ed] the brakes off” on the train under
inspection (the “walk-the-brakes-off false
statement”). Norfolk Southern also identified that,
when asked by Mechanical Supervisor Ledell Miles, who is
black, “Why was the (bleed rod) defect not reported
during the initial inspection, ” Plaintiff gave a false
answer by stating, “The bad order car (CLIX 298037)
only had one bad order ticket on it” (the
“bad-order-ticket false statement”). Next,
Norfolk Southern charged that Wynne had asked Plaintiff
whether he had “check[ed] the pressure at the rear for
initiating a brake application, ” to which Plaintiff
had answered falsely, “Peterson had checked the
pressure three times” (the “brake-pressure false
statement”). And lastly, the letter addressed
Plaintiff's responses to a question by Wynne regarding
whether Plaintiff and Peterson had “inform[ed] the
supervisory gang lead the track had been completed prior to
detecting the bad order car (CLIX 298037).”
Particularly, Wynne's letter recited that Plaintiff had
initially answered that the “track had not been
released to Transportation” at that time, but he
“later changed his story” by saying that it had
been so released (the “track-release false
December 3, 2015, Norfolk Southern held an investigative
hearing into the charges against Plaintiff. The hearing
officer presiding at that proceeding, David G. Price, is
white, while the assistant hearing officer, Terry Williams,
is black. With two exceptions, Plaintiffs now admits his
guilt on the charges arising from his shift on the night of
October 27-28, 2015. Specifically, Plaintiff only denies the
charges that he failed to call clear and that he made the
break-pressure false statement. Ultimately, however, Price
determined that Plaintiff was guilty of all charges and
dismissed Plaintiff from his employment with Norfolk Southern
on December 30, 2015. The parties also appear to agree that
Peterson's employment was likewise terminated based on
the disciplinary charges against him arising from the night
of October 27-28, 2015. (See Doc. 21 at 16
¶¶ 42, 43; Doc. 26 at 1, 12 ¶¶ 42, 43;
Doc. 28 at 4).
February 2, 2016, Plaintiff filed an administrative charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Plaintiff claimed therein
that Norfolk Southern had unlawfully discharged him because
of his race. In support, Plaintiff identified four white
employees, namely, Jerrell, Salter, Chris Ham, and Todd
Pelkey, that he claimed to have been accused of like
misconduct but had been retained. On August 9, 2017, the EEOC
dismissed Plaintiff's charge and issued him a
filed this action on November 7, 2017. In his complaint,
Plaintiff brings claims under Title VII and § 1981
founded on an allegation that Norfolk Southern terminated his
employment because of race. Following the close of discovery,
Norfolk Southern filed its instant motion for summary
judgment. (Doc. 19). That motion is accompanied by an
evidentiary submission (Doc. 20) comprised of Plaintiff's
deposition (Doc. 20-1) and the exhibits thereto (Doc. 20-2),
as well as a supporting brief (Docs. 21, 22-1). Plaintiff has
filed a brief opposing the motion (Doc. 26), plus an
affidavit from Pelkey (Doc. 27-3). Norfolk Southern fired the
last shot with its reply brief. (Doc. 28). The motion for
summary judgment is thus ripe for decision.
Discriminatory Discharge under Title VII ...