Fleet v. CSX Intermodal, Inc.

JOHN FLEET v. CSX INTERMODAL, INC., et al.

CIVIL ACTION NO. 17-3562

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

July 18, 2018

KEARNEY, J.

MEMORANDUM

An African American employee with diabetes, after hearing insults over the work radio which he perceived to be directed to him, chose to drive to his Caucasian co-worker's location to confront and exchange words with the co-worker. A supervisor investigating this confrontation concluded the employee caused the problem and told him to go home for the remainder of his shift. The employee refused to leave work and admits cursing at his supervisor as overheard by another supervisor. The employer charged him with insubordination, held a hearing with union representation, and the hearing officer concluded the former employee is responsible for insubordination. The employer then terminated his employment. The former employee then sued his former employer and supervisors for race and disability based discrimination and retaliation. Ignoring his conduct, he complains this termination is race-based discrimination or retaliation - although he sprinkles disability in here and there. There is no evidence his employer treated African American workers charged with insubordination differently than Caucasian workers. The opposite is shown and the employee does not answer the undisputed evidence. The employee has not adduced evidence to support his theories. Absent genuine issues of material fact on the claims before us, we grant summary judgment for the former employer and supervisors.

I. Undisputed Facts¹

John Fleet, an African American and diabetic, worked for CSX Intermodal Terminals, Inc. ("Terminals") as an intermodal service worker from November 2015 until Terminals fired him on March 3, 2017 after a disciplinary hearing.² Terminals provides intermodal shipping services to its customers, shipping freight by truck and train from its intermodal terminals including in Philadelphia.³ The Transportation Communication Union represented Mr. Fleet under a collective bargaining agreement with Terminals governing Mr. Fleet's employment.⁴

Mr. Fleet reported directly to Terminals' Operations Supervisor Ryan Gomez. Mr. Gomez's responsibilities included supervising intermodal service workers like Mr. Fleet to ensure work is completed productively and safely.⁵ Mr. Gomez, in turn, reported directly to Jonathan Lowe, Manager of the Philadelphia workplace.⁶ Mr. Lowe's responsibilities included managing the workplace and, indirectly, supervising Terminals' employees.⁷ Mr. Lowe interviewed and hired Mr. Fleet.⁸

Mr. Fleet receives counseling from March to August 2016, including

for eating during a safety meeting.

Several months after his hiring, Terminals counseled Mr. Fleet and a co-worker regarding a verbal altercation between the two of them.⁹ Terminals wrote a letter reminding Mr. Fleet the company's policies prohibit "mak[ing] another employee feel uncomfortable or threatened by [his] words or actions in the workplace."¹⁰ Mr. Fleet received counseling for violating safety rules on May 9, May 11, June 10, July 29, and August 17, 2016.¹¹

On May 9, 2016, Terminals posted a notice prohibiting "eating/snacking during or after job safety briefing[s]."¹² Terminals' management holds mandatory job safety meetings with intermodal service workers at the beginning of each shift to discuss safety issues and responsibilities in the work day.¹³ The meetings typically last five to ten minutes and it isundisputed it is important for employees to pay attention during the safety meetings.¹⁴ At the beginning of the May 10, 2016 safety meeting - the day after Terminals posted the no eating notice - Mr. Fleet began eating a sandwich at the start of the meeting.¹⁵ Mr. Gomez told Mr. Fleet he should not eat during the safety meeting.¹⁶ Mr. Lowe issued Mr. Fleet a counseling letter on May 16, 2016 for eating a sandwich at the meeting and also for the May 9 and 10 violations of safety rules.¹⁷

Several days later, Mr. Gomez saw another intermodal service worker, Jim Thompson, finishing a sandwich as a job safety meeting began.¹⁸ Mr. Gomez told Mr. Thompson, who is Caucasian, he must finish eating before the start of safety meetings.¹⁹ It is undisputed Mr. Thompson did not receive written counseling.²⁰ Defendants contend Mr. Thompson did not receive written counseling because he was finishing the sandwich as the safety meeting began, as opposed to starting to eat as the meeting began, and because he had no other counseling.²¹ Mr. Fleet attributes the difference in treatment between Mr. Fleet and Mr. Thompson to Mr. Gomez's "pattern of treating" Caucasian employees more favorably than African American employees.²²

Terminals' disciplinary policies and procedures.

Terminals' written disciplinary policy classifies offenses into three categories: minor, serious, and major (the "Policy").²³ A minor offense is defined as "a policy or rule violation that does not result in damage to equipment or property, and that are not otherwise identified as 'serious' or 'major' in [other parts] of this policy."²⁴ A serious offense is defined as "including all policy or rule violations that result in damage to equipment or property."²⁵ A major offense is defined as "a rule violation or offense so serious or egregious as to warrant removal from service prior to hearing and which may result in dismissal."²⁶

Minor and serious offenses are handled progressively, with the first minor offense resulting in counseling, and subsequent minor offenses possibly resulting in suspension or discharge.²⁷ Employees committing serious offenses receive discipline points which, upon accumulation, may result in discharge.²⁸ Points are measured in a three year rolling period.²⁹

Under Terminals' Policy, counseling is not considered discipline and, consequently, employees receiving counseling do not face actual discipline, do not receive a charge letter, and are not entitled to an investigation hearing.³⁰ For "repetitive cases" of minor offenses, Terminals "may elect to conduct a formal hearing under the collective bargaining agreement" and, based on the findings of any hearing, may administer appropriate discipline.³¹

Terminals' Policy and the applicable collective bargaining agreement prohibit Terminals from disciplining employees without an investigation hearing unless the employee waives a hearing.³² When a manager believes an employee committed a rule violation, Terminals notifies the employee in writing of the charge and schedules a hearing.³³ The hearing is conducted by a hearing officer from Terminals' management (with no involvement in the decision to charge the employee) and the employee with union representation who may cross-examine any Terminals witness and present evidence.³⁴ After the hearing, the hearing officer in consultation with the company's Labor Relations Manager decides whether to, and the extent of, employee discipline.³⁵

Mr. Fleet's request for FMLA leave.

Mr. Fleet applied for intermittent leave under the Family Medical Leave Act (FMLA) on August 1, 2016 because of his diabetes.³⁶ Terminals approved Mr. Fleet's request for intermittent FMLA leave beginning August 1, 2016 despite Mr. Fleet's ineligibility for FMLA leave at that time.³⁷ There is no dispute Mr. Fleet began working at Terminals on November 19,2015 and, under the FMLA, did not become eligible for FMLA leave until employed for at least twelve months.³⁸ Terminals attributes its mistake to clerical error.³⁹ Terminals realized its error, informed Mr. Fleet, advised him to re-apply for FMLA leave after November 19, 2016, and did not penalize him for any absences taken in reliance on the approval of FMLA leave.⁴⁰

On October 19, 2016, Mr. Fleet reported to Mr. Lowe numbness in his hands, blurry vision, and the need to see a doctor.⁴¹ Mr. Lowe completed a "Withheld from Service Form" the same day attributing the reason for removal to Mr. Fleet's high blood sugar, and prepared a letter to Mr. Fleet's doctor asking for an evaluation of Mr. Fleet's ability to safely return to work.⁴² At his deposition, Mr. Fleet swore Mr. Lowe put him out of service on October 19 because of safety issues, and not as discipline.⁴³ Mr. Fleet's doctor reported Mr. Fleet could return to work without restrictions on October 26, 2016 and, after review by CSX's Chief Medical Officer, Mr. Fleet returned to work on October 26, 2016.⁴⁴ Terminals' FMLA File Record does not count Mr. Fleet's October absence as FMLA leave.⁴⁵

Mr. Fleet again applied for FMLA leave on November 19, 2016, Terminals approved his request, and he began using intermittent FMLA leave in November 2016.⁴⁶

Mr. Fleet complains about Mr. Gomez to the Terminals' ethics hotline.

On November 6, 2016, Mr. Fleet called Terminals' ethics hotline to complain about the counseling he received for eating a sandwich at the May 9 job safety meeting and other "write ups," and to report Mr. Gomez following him to the bathroom and around work.⁴⁷ At his deposition, Mr. Fleet testified he called the ethics hotline "about the diabetes thing" and expressed his "complaints and [his] concerns about the diabetes and whatever else was going on at the time of me feeling like I was being a target."⁴⁸

Terminals' Employee Relations Manager Matthew Charron investigated Mr. Fleet's complaint to the ethics hotline.⁴⁹ In the course of his investigation, Mr. Charron interviewed Mr. Fleet, Mr. Gomez, Mr. Lowe, and Safety Manager Glen Gunther.⁵⁰ Mr. Charron did not find unethical or unfair treatment of Mr. Fleet.⁵¹

During his investigation, Mr. Charron told Mr. Fleet on two occasions he could seek a reasonable accommodation for his diabetes by completing forms to CSX's medical department.⁵² Mr. Fleet never completed the forms requesting an accommodation.⁵³ Mr. Fleet told Mr. Charron he (Mr. Fleet) did not have any further problems with his manager.⁵⁴

December 30, 2016 incident resulting in a finding of Mr. Fleet's insubordination.

On December 30, 2016,...