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Prior v. Norfolk Southern Corp.

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

July 30, 2019

TERRY G. PRIOR, Plaintiff,


          John E. Ott, Chief United States Magistrate Judge.

         In this case, Plaintiff Terry G. Prior claims that Defendant Norfolk Southern Railway Company, Inc. (“Norfolk Southern”)[1] 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.[2] 1). The cause now comes to be heard on Norfolk Southern's motion for summary judgment. (Doc. 19). Upon consideration, the court[3] concludes that the motion is due to be granted.


         Pursuant 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.

         Both 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).

         II. BACKGROUND[4]

         Plaintiff 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.

         Prior 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”[5] on August 31, 2015. He was also issued a 30-day deferred suspension for that “serious” infraction.

         The 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 statement”).

         On 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).

         On 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 right-to-sue notice.

         Plaintiff 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.


         A. Discriminatory Discharge under Title VII ...

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