United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
B. Leighton United States District Judge
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
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.
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.
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.
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.
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
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].
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.
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.
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.
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.
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.
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
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 ...