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April 13, 1977

Frances Joy CAPERS et al., each Individually and on behalf of all other persons similarly situated, Plaintiffs,
LONG ISLAND RAILROAD et al., Defendants

Gagliardi, District Judge.

The opinion of the court was delivered by: GAGLIARDI

GAGLIARDI, District Judge.

Plaintiff Edward E. Harris ("Harris"), as a named plaintiff in the above action and a member of the class of black employees of the Long Island Railroad ("LIRR"), moves by order to show cause for a temporary restraining order and a preliminary injunction directing the defendant LIRR to reinstate him to his former position of Assistant Station Master ("ASM") and restraining the LIRR from future violations of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Harris also moves for back pay and reasonable counsel fees. This court has jurisdiction under 42 U.S.C. § 2000e-5(f)(3).

 Harris alleges that he is entitled to the requested relief under 42 U.S.C. § 2000e-5(g) *fn1" because his demotion from the position of ASM was the result of race discrimination, 42 U.S.C. § 2000e-2(a), *fn2" and/or retaliation for his participation in this lawsuit. 42 U.S.C. § 2000e-3(a). *fn3" Harris also alleges that he has been deprived of his Fourteenth Amendment due process rights because the LIRR did not grant him a hearing in connection with his demotion. The LIRR contends that Harris was lawfully dismissed for poor performance, insubordination and his past employment record and is therefore not entitled to the requested relief. The court denies plaintiff injunctive relief.

 Plaintiff's motion having been brought before this court on November 19, 1976, the motion was set for hearing the following day and the TRO application denied. The LIRR was prepared to commence the hearing the next day, however, at plaintiff's request the hearing was postponed to allow plaintiff further discovery. Six days of evidentiary hearings were held in December, 1976 and January, 1977. Sixteen witnesses were called and numerous depositions and exhibits were introduced into evidence. The court having considered the pleadings, the testimony of witnesses and the documents in evidence makes the following findings of fact and conclusions of law as required by Rule 52 Fed.R.Civ.P.

 A brief summary of the history of Harris' employment with the LIRR including his involvement underlying the instant preliminary injunction action is initially required. Plaintiff is a black American citizen, 55 years of age. He was first employed by the Pennsylvania Railroad in 1954 as a mail handler. In 1963 he became an usher, the top union job at the Pennsylvania Railroad, and in 1964 he went on the Long Island Railroad's payroll. In 1972 he was appointed an ASM, a management level, non-union job.

 On two prior occasions plaintiff has appeared before this court seeking injunctive relief for alleged LIRR discrimination. The first time, in September 1974, the LIRR attempted to demote the plaintiff from ASM to usher status on the ground that he had failed a Book of Rules examination. After a hearing, the matter was resolved when the LIRR agreed to restore Harris to the position of ASM if he passed another Book of Rules examination administered to a randomly selected group of ASMs. This examination was conducted and Harris, receiving the highest score of the seven ASMs who took the test, was immediately reinstated.

 The second request for injunctive relief occurred in September 1975 when the LIRR removed Harris from service as an ASM for alleged insubordination and dereliction of duty when he argued with his superior and failed to have an usher announce a track change for a departing train. After a three day hearing in this court, the LIRR agreed to reinstate Harris to his ASM position after Harris agreed to accept a 60 day suspension.

 At that 1975 hearing, the LIRR introduced evidence of Harris' prior unsatisfactory performance in his ASM position in 1974 and 1975. This evidence included five instances, not effectively rebutted by the plaintiff, where Harris was formally notified or reprimanded for his failure to make proper log entries or reports or for his poor performance in connection with train delays.

 On November 11, 1976, Harris was again removed from his ASM position. This removal is the cause of plaintiff's current motion for injunctive relief. Harris worked the 11:00 P.M. November 9th to 7:00 A.M. November 10th ASM shift at Pennsylvania Station. On that night shift the ASM is in overall charge of the LIRR operation at the railroad station. On that morning of November 10th the departure of four trains was delayed. Harris was demoted for his alleged responsibility for the delay, for failing to timely file a specially requested report of the November 10th incident, and for his past record.

 On the morning of November 10th four LIRR trains were delayed directly or indirectly up to eleven minutes by the taking out of service of line 3 of Pennsylvania Station, the Long Island Railroad's east-bound tunnel. When line 3 is taken out of service, the departing Long Island Railroad trains must be rerouted by the ASM to share line 1, Amtrak's eastbound tunnel. Line 3 is removed from service several times a month, usually between midnight and 1:00 A.M., for regularly scheduled maintenance.

 It is undisputed that on the night of November 9, 1976, Harris and other Long Island Railroad personnel knew that line 3 would be going out of service sometime after 11:00 P.M., and that Harris ascertained this fact at the time he reported for duty. The exact time line 3 closes is determined by the operator in Amtrak's A Tower and then communicated to other Amtrak and Long Island Railroad personnel. The ASM must ascertain the time line 3 is to close in order to position Long Island Railroad trains on their arrival so that they can use line 1 after line 3 is closed without changing crews and without unnecessary delay. That night A Tower determined that line 3 would close at 12:41 A.M. after the departure of Train 400 and prior to the departure of Train 82.

 At the hearing there was sharply conflicting testimony as to the exact time Harris received notice of the closing. Notice is received over a squawk box in the ASM's office. Several defense witnesses testified that Harris had notification between 11:55 P.M. and 12:05 A.M., in sufficient advance notice for him to reposition the LIRR trains and avoid the subsequent delays, while Harris testified that he received no notice until 12:41 A.M., the exact time of the closing.

 The court does not resolve this factual dispute but only notes that Harris had a duty to be more thorough in his investigation of the time of the line closing and more cautious and responsible in performing his ASM duties. Harris and all other LIRR and Amtrak employees on duty that night knew that line 3 was going out after 11:00 P.M. and based on recent past Penn Station history he had good reason to know that it was likely it would go out prior to or around the time of the departure of Train 82, requiring that train, and those following it, to be diverted to line 1. *fn4" He also knew that A Tower, which often conferred with ASMs on line closings, had often not been communicating with him over the past months. *fn5" Because of the important duties of the ASM between notification and closing of line 3, Harris, particularly in view of his communication problems, had the responsibility to continuously investigate and to ascertain the exact time of the closing. Even assuming as true Harris' disputed testimony that he was out of the office between 12:15 and 12:25 A.M. and could not hear the squawk box communications, it is not enough that he called the yardmaster twice between 11:45 and 12:15 to find out when line 3 was going out. Further, that absence at a crucial time is not sufficient excuse. Harris should have properly repositioned Train 82, and even if he was notified at 12:41 of the line 3 closing, he should have been alert to promptly reposition and avert or reduce the delays of the following trains. While others may have also been able to avert these delays, Harris had the final responsibility.

 As a result of the delay of the four trains, the assistant superintendent of transportation for the LIRR on the morning of November 10th requested the terminal superintendent, Mr. Gaynor, to find the reason for the delay. Gaynor instructed an assistant to request Harris to provide a written report setting forth the facts of the delay. Harris was told when he reported to work at 11:00 P.M. ...

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