Yelder v. Norfolk S. Ry. Co.

JEROME YELDER, Plaintiff, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

2:18-CV-10576-TGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 6, 2020

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Jerome Yelder, an African American train conductor, brings this lawsuit against his employer, Defendant Norfolk Southern Railway Company ("Norfolk Southern"), alleging racial discrimination in the workplace and retaliatory termination. Yelder complains that he was assigned lower-paying assignments than his white counterparts and that, after he complained, he was unfairly terminated following an altercation with a taxi driver.

Yelder's claims are under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq., ("Title VII") and 42 U.S.C. § 1981. Norfolk Southern has moved for summary judgment. Norfolk Southern says that Yelder's race discrimination claims are preempted by the Railway Labor Act ("RLA"), 45 U.S.C. §§ 151-188, and alternatively that he has failed to establish a prima facie case of race discrimination. As for Yelder's retaliation claims, Norfolk Southern argues that the cause of his termination was the taxi-cab altercation, and it was not a pretext for discrimination. Yelder's termination was later reversed, and he remains an employee of Defendant. After carefully reviewing the factual record and the legal arguments of the parties, the Court concludes that Defendant's motion is well-taken, so the motion for summary judgment will be GRANTED.

I. Facts and Procedural History

Yelder began working as a conductor for Norfolk Southern in 2011. In August of 2016 he was assigned to the Detroit/Toledo ("DT") pool, operating trains to and from Detroit and Toledo, working in two-member crews consisting of a conductor and an engineer. Members of the DT pool included both regularly scheduled members and "extra board" members; extra board members filled vacancies or extra work when there were not enough regularly scheduled members to complete an assignment. Elium Deposition, ECF No. 27-4, PageID.1686. Yelder was a regularly scheduled member of the DT pool. A union represented Yelder and a Collective Bargaining Agreement ("CBA") governed the terms and conditions of his employment.

Under the provisions of the CBA, employees who join the DT pool are assigned jobs through a "first-in/first-out" process.¹ Defendant describes the "first-in/first-out" process as follows: after a crew completes an assignment, they go to the bottom of available crews that may be called for an assignment (sometimes called a "turn"). As crews on the list are called, each crew moves up the list until they become the next available crew for a new assignment. Elium Deposition, ECF No. 27-4, PageID.1695. Yelder agrees this is how the first-in first-out process is supposed to work. Yelder Deposition, ECF No. 24-3, PageID.165. Crews receive assignments through a "crew call" where a call center notified the individual crews of an upcoming trip. ECF No. 24-3, PageID.161. Crew callers were usually located in Atlanta, Georgia but could also be chief crew dispatchers locally stationed in Dearborn, Michigan. Id. at PageID.162. Defendant asserts that crews are called by crew numbers and not by the names of the individual crew member, while Yelder says that crews are called by name.

Once a crew in the DT pool is on an assignment, there are several ways that the trip can develop that the railroad uses specialized terms to describe. The crew may need to "deadhead turn," "deadhead home" or they may need to be "held-away." When a crew "deadhead turns," theytake a taxi or another mode of transportation from their "departing terminal" to another destination in order to meet the train for the return trip. ECF No. 24-3, PageID.172. For example, a crew stationed in Michigan would take a taxi to Toledo to join a train and conduct it back to Michigan. When a crew is "held-away," they stay in a hotel or other lodging because they are staying away from their "home terminal." Id. at PageID.173. When a crew "deadheads home," this describes the situation where a crew is waiting at the distant terminal for an assignment but because there is no train, the crew is ordered to return home by taxi and Norfolk Southern pays for their transportation. These work conditions are defined and described in the CBA, and the CBA also governs the applicable compensation. See Relevant CBA Provisions, ECF 24-4, PageID.625-26, 692-705, 711-14, 741-43 (Articles 11, 24, 25, 26, 30, 34). The CBA also governs Norfolk Southern's seniority system, which is used to assign these jobs. ECF 24-4, PageID.580 (Article 4). Yelder claims that deadheading and held-away opportunities result in higher pay, ECF No. 27-2, PageID.1676, which Defendant does not contest. With regard to the DT pool, Norfolk Southern contracts with Professional Transport, Inc. ("PTI"), an independent taxi service, to transport crews that are doing a "deadhead turn" or "deadhead home." Gaines Declaration, ECF No. 24-2.

A. Discrimination complaint

On March 15, 2017, Yelder sent an email to a division manager of Norfolk Southern, Michael Grace, in which he expressed a complaint thathe was being discriminated against because of his race. ECF No. 24-3, PageID.311-12. Yelder contended that he was receiving far fewer deadhead and held-way opportunities than his white counterparts and pointed out that he was the only regularly scheduled African American conductor in the DT pool. ECF No. 24-3.² Yelder claimed that the deadhead/held-away assignments result in higher pay and were frequently being called once white employees were ahead of him on the list or immediately after he was called for a traditional assignment, so the deadhead/held-away assignments would go to white employees rather than to him. He believed white employees were receiving these assignments even though he had superior attendance records. ECF No. 24-3, PageID.174; id. at PageID.57 ("[I]t didn't matter what time, the pattern was unless there was some type of event where they absolutely needed someone to deadhead down, I just wasn't called to deadhead. They would call two of my colleagues ahead of me to deadhead then call me for a train and then maybe one or two behind me for the deadhead and that became consistent."). As a result, Plaintiff alleges that these conductors were making more money than he was, even though Plaintiff had superior attendance records. Id. The email also stated that Yelder hadspoken with other African American employees who at some point held the DT pool and was told they did not like holding the DT pool because they also experienced fewer deadhead and held-away opportunities. Id.³

In response to Yelder's email, Norfolk Southern conducted an investigation that included comparing the earnings and deadheading opportunities of Plaintiff with other members of the DT pool. Susan Decker, a Human Resources EEO officer for Norfolk Southern, created and reviewed data sheets, and concluded that from August 2016 (when Plaintiff joined the DT pool) to March 2017 (when Plaintiff made the complaint), Yelder was in the top 10 employees in the DT pool for deadheading trips (he had 32 deadheading trips) and that Yelder was the third-highest earner in the DT pool out of 42 employees. ECF No. 24-7.⁴ Based on Decker's data and analysis, Defendant concluded that Plaintiff's complaint was unsubstantiated and so notified Plaintiff on April 6, 2017. Id.

B. Physical altercation with PTI taxi driver

Approximately three weeks later, on the evening of April 21, 2017, after completing an assignment in Ohio, Yelder and Norfolk Southern engineer James Jackwak took a PTI taxi van from the Toledo rail yard to a hotel. Yelder's Written Statement, ECF No. 24-3, PageID.313-14. This was a held-away trip. Yelder sat in the front passenger seat next to the driver and Jackwak sat in the rear passenger seat behind the driver. Shortly after the ride began, Yelder claims he noticed the driver was taking an alternate route to the hotel. Id. Yelder claims he had made this very drive to the hotel a few times and knew the usual route. Id. Yelder says he asked the driver three times whether he was taking them to the hotel and each time the driver refused to respond. Id. Yelder then picked up the microphone in the taxi van and called the Maumee River Bridge operator and told her that the van was going in the opposite direction of the hotel. Yelder Deposition, ECF No. 24-3, PageID.206.

Yelder then dropped the microphone and attempted to stop the van by grabbing the steering wheel with his hands and using his leg to push the break. Id. The driver pushed Yelder back into his seat and blocked Yelder's hands and legs. Yelder then tried to remove the key from the ignition but the driver again knocked Yelder's hand out of the way. Id. Yelder then "struck" the driver in the chest with his hand.⁵ ECF No. 24-3, PageID.313. The taxi driver eventually stopped the vehicle and Yelder and Jackwak exited. The driver left the scene and another driver in the area arrived to transport Yelder and Jackwak to the hotel. Jerry Simon, trainmaster and Norfolk Southern's supervisor who spoke with Yelder at the hotel that evening, immediately removed Yelder from service pending an investigation of the incident. ECF No. 24-5, PageID.1030.

After an investigation, Norfolk Southern charged Yelder with conduct unbecoming an employee for striking the driver. Yelder, Jackwak, and others testified at a hearing. Yelder confirmed that he struck the taxi driver in the chest but said that he only acted the way he did to protect himself and Jackwak because he believed the driver was not driving them to the hotel. The driver could not be located and did not provide an interview to Norfolk Southern or testify at the hearing. Hearing Transcript, ECF No. 24-5, PageID.1037-1129.

Following the hearing, Norfolk Southern terminated Yelder on June 12, 2017. ECF No. 24-3. However, on ...