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White v. Burlington Northern Santa Fe Railroad Co.

United States District Court, W.D. Washington, Tacoma

February 27, 2017



          Ronald B. Leighton United States District Judge

         THIS MATTER is before the court on Defendant Burlington Northern Santa Fe Railroad's Motion for Summary Judgment [Dkt 58]. Plaintiff Darrell White (an African American) worked as a BNSF carman for over 17 years. He regularly used FMLA leave for chronic pain. BNSF twice accused White of fraudulent FMLA use but found no wrongdoing. White interpreted BNSF's accusations as harassment and reported them to BNSF's hotline.

         In 2013, White and his Caucasian coworker Cameron Rowe were involved in a physical altercation at work. Rowe suffered visible injuries but White did not. At the time, White was in the final stage of progressive discipline for his tardiness while Rowe had a clean record. BNSF terminated both employees, later reinstating only Rowe and not White.

         White sued BNSF for violating the Civil Rights Act and the Washington Law Against Discrimination by refusing to reinstate him on the basis of his race and instead rehiring his Caucasian coworker fired for the same offense. White also claims BNSF refused to reinstate him because he opposed BNSF's unlawful FMLA harassment.

         BNSF seeks summary judgment on White's claims, arguing his race discrimination claim is time barred and unsupported by the evidence, and his FMLA retaliation claim fails to identify a FMLA-protected opposition activity. Additionally, BNSF asserts both claims fail because White cannot establish BNSF's legitimate nondiscriminatory reasons for his non-reinstatement are pretextual.

         In discovery, BNSF learned of White's prior felony convictions that he failed to report in his employment application. BNSF argues it is entitled to summary judgment on it's after-acquired evidence defense, because it would have terminated White had it known his criminal history. White claims BNSF is not entitled to summary judgment on its defense because it failed to prove it certainly would have fired White for his misconduct.

         I. FACTS

         BNSF hired Darrell White in 1997. White had a clean disciplinary record apart from tardiness violations and a write up for wearing a bike helmet at work in 2011 or 2012. He generally maintained positive, collegial, respectful working relationships.

         As one of the few racial minorities on staff, White's coworkers occasionally targeted him with racially insensitive remarks such as the pejorative term “n*****.” White also heard racist terms directed at other minorities including Mexicans, Asians, and Native Americans. In 2004 White's Caucasian co-worker called White a “f****** n*****.” White reported the incident to a foreman who told him “sometimes you need to know when to let things go.” [Dkt 75 at 4].

         White applied for and began using doctor-approved FMLA leave in 2007 for chronic right shoulder and elbow pain. In March 2010, White's supervisor accused him of fraudulent FMLA use. White denied the allegation and a heated discussion ensued, after which, BNSF began closely monitoring White's attendance. White reported BNSF's false accusation and time sheet scrutiny to BNSF's hotline. BNSF investigated White's claim but failed to contact him directly or visit his work site. BNSF found no wrongdoing and continued scrutinizing White's attendance.

         In 2011, White discovered a noose openly displayed around his work area. Two Caucasian coworkers admittedly hung the noose as a “joke.” White reported the incident to a foreman but BNSF failed to discipline the culprits.

         BNSF's hand-scanning device for recording attendance regularly malfunctioned causing late arrivals. In 2012 BNSF held a series of hearings to assess disciplinary action for White's three to eight minute tardiness, which might have been caused by the faulty scanner. BNSF deviated from its normal practice of grouping together questionable late occurrences instead treating them as separate offenses requiring more severe discipline. [Dkt 75 at 11]. In addition, each hearing followed an untimely investigation. BNSF assessed discipline over the objection of White's union representative and in violation of his unions' Collective Bargaining Agreement, requiring investigations within twenty days of each lateness occurrence.

         In July 2013, White received BNSF's investigation notice for his allegedly fraudulent FMLA use on a day he was not scheduled to work. [Id.]. White again reported the false accusation to BNSF's hotline and BNSF subsequently canceled its investigation.

         On August 7, 2013, White was in his office listening to his radio when his co-worker Rowe entered and began listening to music on his phone. [Id. at 5]. Rowe and White exchanged heated words regarding the dueling radios. Rowe threatened White, saying “I will kick your old ass.” [Id.]. Rowe grabbed White's chest area and White grabbed Rowe back, pushing him against a wall and holding his neck to subdue him. [Id.]. When the supervisors arrived Rowe had red marks on his neck, while White had no visible injuries. BNSF found both men violated its conduct and altercation policies and terminated them effective September 5, 2013.

         On October 2, 2013, the union filed grievances for both White and Rowe, seeking reinstatement. BNSF denied both grievances. White challenged BNSF's denial and again requested reinstatement through his union on January 17, 2014. White also requested arbitration for his reinstatement through the National Railroad Adjustment Board. In July, 2014 Rowe entered into a pre-trial settlement agreement with BNSF after appealing an unsuccessful OSHA claim to an ALJ. In August, through his former coworkers White learned of Rowe's reinstatement.

         In response to Rowe's reinstatement White filed a Charge of Discrimination with the EEOC in October, 2014. Pursuant to his Notice of Right to Sue, White filed this lawsuit against BNSF in March, 2015. White claims BNSF violated Title VII and WALD by refusing to rehire him on the basis of his race. White also claims BNSF ...

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