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Kemp v. CSX Transp., Inc.

United States District Court, N.D. New York

January 27, 2014


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DAVID N. HURD, United States District Judge.


Plaintiffs Terrance Kemp, Theodore Smith, Dennis McKay, Stephon Burkett, and Matthew Thompson (collectively " plaintiffs" ) work, or have worked, for defendant CSX Transportation, Inc. (" CSX" ) as train conductors in the company's Albany Division, which is based in Selkirk, New York. They initiated this action on June 23, 2011, and filed an amended complaint on

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December 14, 2011.[1] Plaintiffs allege racial discrimination by CSX, and they each bring the following three claims pursuant to the Civil Rights Act of 1866, as amended in 1991, 42 U.S.C. § 1981: (1) disparate treatment by being terminated and/or subjected to harsher discipline than non-minority colleagues (" First Cause of Action" ); (2) disparate treatment by being denied an equal opportunity to work on the more lucrative Buffalo rail line[2] (" Second Cause of Action" ); and (3) a hostile work environment (" Third Cause of Action" ). They also assert three pendent New York Human Rights Law (" NYHRL" ) claims that mirror the three federal claims (" Fourth, Fifth, and Sixth Causes of Action" ).

The parties have completed discovery, and CSX has filed six separate motions--a motion for summary judgment with regard to each of the five plaintiffs and a motion to preclude the testimony of plaintiffs' expert, Jamie C. Modesitt. The motions have been fully briefed, and oral argument was heard on September 5, 2013, in Utica, New York. Decision was reserved.


Unless otherwise noted, the following facts are undisputed. CSX is a large corporation that operates railroads across the United States and has its headquarters in Florida. It maintains policies on equal employment opportunity, harassment, and ethics. CSX employees receive training on these policies, which are posted on the company's internal website and in its regional railroad yard offices. CSX also has an " Ethics Hotline" through which employees may report violations of company policies, triggering an internal investigation. In addition, the company maintains various policies regarding employee discipline and absenteeism.

Disciplinary infractions are handled pursuant to CSX's Individual Development and Personal Accountability Policy (" IDPAP" ). Under this policy, which applies to conductors as well as engineers, an employee's infraction is categorized as a minor, serious, or major offense. The potential disciplinary measures increase with the severity of the offense. Depending on the infraction, the disciplinary process may include a hearing at the local level. The charged employee is permitted to have a union representative present at such a hearing, which is conducted by a hearing officer and recorded. The employee may appeal the determination of the hearing officer to the Public Law Board.[3] If an employee is terminated, the union may seek a " leniency reinstatement" of that employee after a certain period of time and depending on the offense that led to dismissal. The disciplinary process takes into account the number of prior violations for an offending employee. Infractions are removed from an employee's record after three years.

Patrick Murphy is the Manager of Field Administration for CSX and is based in Florida. The parties agree that Murphy is tasked with maintaining consistency in the handling of employee disciplinary measures under IDPAP, but they dispute his involvement in the actual imposition of discipline. CSX asserts that Murphy is involved

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" from the initial charge to the discipline letter that is sent to the employee." Def.'s Statement of Material Facts, ECF No. 44-38, ¶ 16. Plaintiffs allege that Murphy merely codes the employee's conduct as minor, serious, or major, while the actual discipline is left to the discretion of divisional managers.

Infractions related to absenteeism are guided by the company's Absenteeism Policy, which also provides for progressive discipline. The first two violations result in counseling letters. This is followed by three " Steps" of formal discipline. Possible discipline for a Step 3 violation includes termination. Anita Tingley, based in Florida, is the Manager of Manpower and Crew Availability Specialist for CSX. She is tasked with handling disciplinary issues related to employee absenteeism. When an employee has violated the Absenteeism Policy, she verifies what step in the disciplinary process that employee is at and creates an incident form. Similar to the IDPAP scheme, violations of the Absenteeism Policy are removed from an employee's record after three years.

Plaintiffs Kemp, Smith, Burkett, and Thompson are African--Americans; plaintiff McKay is a Jamaican--American. All five plaintiffs reside in the Albany, New York, area and are either currently employed or have been employed by CSX as train conductors based in Selkirk, New York. Their employment is subject to the aforementioned company policies and the provisions of a collective bargaining agreement between CSX and the United Transportation Union, of which plaintiffs were members at the relevant time.

Generally, plaintiffs claim CSX employees repeatedly hurled racial slurs at them or in their presence, painted the words " nigger," " porch monkey," and " spook" on bathroom walls and other surfaces at the Selkirk facility, and displayed images of the Confederate flag at various facilities in the region. They allege that CSX supervisors were often present when racial slurs were used. Defendant maintains that any graffiti was removed, and employees were counseled on the unacceptable use of racial slurs. Plaintiffs acknowledge that the graffiti was periodically painted over, but claim it regularly reappeared. In addition to these common allegations of a hostile work environment, plaintiffs have unique employment histories and each allege different incidents of disparate treatment.

A. Plaintiff Terrance Kemp

On October 31, 1996, Kemp began working as a laborer for Conrail, which was acquired by CSX in June 1999. He became a conductor in 2001 and worked on the River Line, which runs from Selkirk to New Jersey. Kemp initially asked to qualify to work on the Buffalo Line in 2003, but William Edwards, the Crew Management Director, allegedly delayed his qualification while allowing less-senior non-minority conductors to qualify.[4] Kemp claims that he was permitted to start the qualification process only after he complained of unequal treatment. He eventually became qualified to work on the Buffalo Line, passed the written exam in August 2006, and began working on that line in September or October of 2006. He alleges that Division Foreman Mark Novenche accused him and co-plaintiff Theodore Smith of cheating on the exam and required them

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to retake the test. They maintain that no other conductor has ever been required to retake the exam.

Kemp received four " operational test failure notations" under IDPAP for infractions in 2005. The first incident occurred on February 21, 2005, and involved the derailment of a train operated by Kemp and a Caucasian engineer, Cory Engle. Supervisor Mark McGee issued Kemp a citation for the derailment. Kemp claims that although Engle admitted the derailment was completely his fault, he was not cited for the incident. No disciplinary action was taken against Kemp, but the citation remained on his employment record.

The second incident took place on May 8, 2005, when Trainmaster Deyo[5] cited Kemp for a communication lapse during a maneuver. No disciplinary action was taken, but Kemp claims he was singled out for the citation while the white engineer with whom he was working was not cited. Kemp was cited for the third time on July 26, 2005, after Trainmaster Chris Cameron reportedly witnessed him improperly dismount a train. Kemp was required to attend a safety counseling session, but no formal disciplinary action was taken.

The fourth incident occurred in September 2005 when Road Foreman Joseph Distefano cited Kemp and a white engineer for failure to sound a horn at a railroad crossing. Kemp claims that when the engineer attempted to take full responsibility for the infraction, Distefano told the engineer that Kemp should " be swinging from a tree." Am. Compl. ¶ 24. Kemp acknowledges that he did not personally hear the remark.

Kemp alleges that, in December 2005, engineer Paul Splain repeatedly used the word " nigger" while working with Kemp and discussing the death of comedian Richard Pryor. Kemp alleges that while working with John Lacona, Sr., in October 2006, Lacona began talking loudly on the phone in Kemp's presence. Lacona reportedly yelled " I'm glad the nigger chief is gone," referring to Trainmaster Marcus McCant, an African--American. Am. Compl. ¶ 38. Kemp further alleges that multiple CSX employees often called Trainmaster McCant a " coconut" or " coconut head," which Kemp argues are racial slurs. Id. ¶ 56.

During his employment with CSX, Kemp was accused of violating the Absenteeism Policy numerous times. He received counseling letters for violations on May 15, 2005, and October 27, 2005. On October 23, 2006, he was charged with a Step 1 violation for a missed call. He signed a letter accepting responsibility for that violation and waived his right to a formal investigation. On June 29, 2007, he was charged with a Step 2 violation for missing a call on June 21. An investigative hearing was held, and he was suspended for five days. In May 2008 he was charged with a Step 3 violation for failure to be available to work a sufficient amount of days during the time period ending on May 4, 2008.[6] At the ensuing hearing, which was presided over by Hearing Officer Seth Fowler, Kemp admitted that he used bereavement leave inappropriately,[7] and his employment was terminated.

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In a post-hearing email to Fowler, Assistant Terminal Superintendent Gene Payne, Jr., wrote: " Great job on this one." Hoke Decl., Ex. W, ECF No. 61-23. Payne then emailed Assistant Division Manager Jerald Lewandowski and, referring to Kemp, noted that " He didn't belong." Id. Kemp's request for a leniency reinstatement was denied. Thereafter, he appealed the finding of Hearing Officer Fowler as well as the discipline imposed. The Public Law Board affirmed the absenteeism violation but reinstated his employment--without back pay--as of September 2011.

Kemp claims that since his return to work, the Albany Division Manager, John Gaylord, has refused to speak with him about his reintegration into the Selkirk facility. He further alleges that, although permitted to participate in computer testing and training, he has not been granted access to the rail yard in order to re-qualify to work as a conductor. Finally, he claims that the use of racial slurs continues at CSX. During a training session on November 3, 2011, Kemp heard co-worker Kent Clark call Trainmaster McCant a " coconut." Kemp reported this to the Ethics Hotline, which was his first such complaint to the Hotline.

B. Plaintiff Theodore R. Smith

Smith began working as a conductor on the River Line in September 2004. He claims that in 2005 another River Line conductor, Richard Carroll, remarked: " Why do they let monkeys on the railroad?" Def.'s Statement of Material Facts, ECF No. 45-53, ¶ 63. Smith maintains this comment was directed at him because he had incorrectly filled out a form. An unknown Caucasian employee was present when Carroll uttered this statement.

In April 2006 Smith contacted William Edwards, the Crew Management Director, and requested to qualify for the Buffalo Line. In August 2006 he became qualified to work on that line and passed the written exam. As noted above, he alleges that Division Foreman Mark Novenche accused him and Kemp of cheating on the exam and required them to retake the test.

Between January and October 2007, Smith was granted intermittent leave under the Family Medical Leave Act (" FMLA" ) in order to recover from a back injury. Three subsequent requests for additional FMLA leave were denied because, according to CSX, he did not meet the eligibility requirements of the FMLA. On August 6, 2008, he was advised that any absences would be counted as violations of the Absenteeism Policy unless he obtained a new FMLA approval. Smith then contacted his union representative and requested a light duty assignment while he convalesced. Smith claims CSX management denied this request. Defendant maintains that Smith did not make this request through the proper channels. At least one Caucasian employee was granted light duty and excess FMLA leave while temporarily disabled.

During his employment with CSX, Smith was accused of violating the Absenteeism Policy several times. He received counseling letters for attendance issues and/or missed calls on January 29, 2006; November 3, 2006; and November 26, 2006. On January 18, 2007, he received a letter charging him with a Step 2 violation for missing a call on January 12. He accepted responsibility for that infraction and was suspended for two days. In September 2007 and April 2008 Smith acknowledged separate failures to meet minimum availability requirements and was suspended for three days and one month, respectively. He thus progressed to Step 3 of the Absenteeism Policy. He claims that these absences were due to his back

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injury and defendant's refusal to grant his requests for FMLA medical leave.

Smith resigned on September 9, 2008, two days before a scheduled hearing into two additional alleged attendance violations. He claims that he resigned due to the continued racist remarks directed at him and because his union representative advised that the management intended to fire him. He did not report any instances of discrimination to the Ethics Hotline, but instead reported all incidents to his union representative.

C. Plaintiff Dennis G. McKay

McKay began his employment with Conrail in 1993. He took the test to qualify as a conductor on the Buffalo Line in April 1999, before CSX acquired Conrail in June 1999. He claims less-senior, non-minority conductors were permitted to qualify for that line immediately after being hired. He also alleges that while working on the Buffalo Line, engineer Steve Bennie regularly called him a " nigger" and " black bastard." He also worked with engineer Tim Addison, who he alleges often told him to " get back on a banana boat and go back to Jamaica." Def.'s Statement of Material Facts, ECF No. 46-41, ¶ 60. McKay did not report any of the incidents involving Addison.

On April 15, 2005, McKay was reprimanded, pursuant to IDPAP, for failure to properly control the train he was operating, excessive speed, failure to secure the dispatcher's authorization, not protecting a reverse move, and failing to provide information to investigators. Defendant claims McKay's employment was terminated on that date and that he was granted a leniency reinstatement on April 25, 2005. McKay denies receiving any notice of termination or reinstatement, and maintains that he was only suspended for seven or fifteen days.

McKay was issued counseling letters for violations of the Absenteeism Policy on June 10, 2007, and September 14, 2007. He received notice of a Step 1 violation for missing a call on July 26, 2008. He accepted responsibility for this infraction and was suspended for two days. He was charged with a Step 2 violation for another missed call on August 31, 2008. He again accepted responsibility and was suspended for five days. He was again charged with missing a call on August 26, 2009, was suspended for fifteen days, and was elevated to Step 3 of the Absenteeism Policy.

Finally, McKay was assessed for a missed call on April 18, 2010, and, after a hearing presided over by Seth Fowler, his employment was terminated on June 3, 2010. This missed call charge arose from the fact that McKay had locked his keys and work equipment in his car. He informed his supervisor that he could find alternative transportation to work and requested permission to borrow tools for his shift. The supervisor denied that request and instead wrote him up for an absenteeism violation. McKay appealed his termination and was subsequently reinstated, without back pay, by the Public Law Board. He reports that upon his return to work, Steve Bennie continued to direct racial slurs at him, as he had done in the ...

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