United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant Burlington
Northern Santa Fe Railway Company's ("BNSF")
motion for summary judgment. Dkt. 44. The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion in part and denies the motion in
part for the reasons stated herein.
October 22, 2015, Plaintiff Karey Gallerson
("Gallerson") sued BNSF in Pierce County Superior
Court for the State of Washington. Dkt. 1-2. Gallerson
asserted claims for hostile work environment, disparate
treatment, unlawful retaliation, and wrongful discharge under
the Washington Law Against Discrimination ("
WLAD"), RCW 49.60, et seq., and negligent
infliction of emotional distress ("MED").
Id. ¶¶ 6.1-6.5. BNSF removed the case to
this Court under 28 U.S.C. § 1332. Dkt. 1, ¶ 3.
November 19, 2015, BNSF moved to dismiss or stay. Dkt. 13. On
February 29, 2016, the Court granted the motion, dismissed
Gallerson's wrongful termination claim, and stayed the
matter pending arbitration of that claim. Dkt. 23.
October 19, 2017, Gallerson filed a motion to lift the stay.
Dkt. 24. Gallerson informed the Court that the arbitrator
ordered Gallerson be reinstated and awarded him backpay. Dkt.
24. On December 4, 2017, the Court granted Gallerson's
motion to lift the stay. Dkt. 26.
February 27, 2019, Gallerson filed a motion to amend his
complaint to add allegations based on events that occurred
after he was reinstated in 2017. Dkt. 40.
March 20, 2019, BNSF filed a motion for summary judgment on
the claims in Gallerson's original complaint. Dkt. 44. On
March 21, 2019, the Court granted Gallerson's motion to
amend. Dkt. 49. On March 25, 2019, Gallerson filed an amended
complaint. Dkt. 51. On April 8, 2019, Gallerson responded to
BNSF's motion for summary judgment. Dkt.
53.On April 12, 2019, BNSF replied. Dkt. 57.
is an African-American man over the age of 40 who began
working for BNSF in 2001. Dkt. 1-2, ¶¶ 4.1,
During the period at issue, Gallerson worked as a laborer
maintaining railroad track. Dkt. 56-1 at 40. Gallerson's
claims against BNSF are based on both racial discrimination
and age discrimination. The factual history and chronology of
this case are extensive and complex, and BNSF seeks summary
judgment only on the events occurring through April 2015.
Dkt. 57 at 1. Therefore, the Court will set forth a detailed
Commencement of Events at Issue-Fall 2013
2013, Gallerson was working for BNSF in Edmonds and Seattle
as a laborer. Dkt. 56-2, at 6; Dkt. 56-1 at 15. Laborers work in
"sections," teams of between three and seven people
doing track maintenance work. Dkt. 56-3 at
19-20. Typically a section includes a foreman, an
assistant foreman, a laborer, and a truck driver who all work
together on the same tasks. Id. at 20, 29-30.
Members of a section are union employees and are supervised
by non-union management who perform only supervisory tasks.
Id. at 18, 28. The roadmaster is the management
employee directly supervising the section and the division
engineer supervises the roadmaster. Id. at 23.
Gallerson had sued BNSF for racial discrimination in 2012,
and the case was ongoing in 2013. Dkt. 56-1 at 15.
Gallerson's roadmaster at this time was Jessica Batista,
and Gallerson had no objection to Batista's treatment of
him. Id. at 38-40.
December 24, 2013, Gallerson was involved in a domestic
altercation. Dkt. 1-2, ¶ 5.5. He was charged with
several felonies but continued to work while the charges were
pending. Id. ¶ 5.5. In early February 2014,
Gallerson's racial discrimination lawsuit settled. Dkt.
56-1 at 15; Dkt. 1-2, ¶ 5.2. On February 18, 2014,
Gallerson broke his thumb while working and commenced medical
leave. Dkt. 1-2, ¶ 5.4; Dkt. 56-1 at 16. On March 29,
2014, Gallerson was involved in another domestic altercation
and was charged with "criminal violations." Dkt.
1-2, ¶ 5.5.
news outlet ran an article describing one of the domestic
altercations, explaining that "a man allegedly tried to
attack his ex girlfriend's new boyfriend in the parking
lot with a hammer" and identified Gallerson as the
individual wielding the hammer. Dkt. 56, ¶ 16; Dkt. 56-6
at 22-23. Antonio Espinosa ("Espinosa"), a coworker
of Gallerson's who also worked as a laborer, phew
testified that after Gallerson injured his thumb, someone
printed the article and hung it up "in the section house
in Seattle for everybody to see." Dkt. 56-2 at 44. It is
unclear specifically when this occurred. Dkt. 56-2 at 44,
79-80; Dkt. 56, ¶ 16; Dkt. 56-6 at 22-23. The article
was displayed on a corkboard that had only otherwise been
used for obituaries or company news. Dkt. 56-2 at 79-80. The
article was up briefly-"[m]aybe that day."
Id. at 88. Espinosa testified that coworkers
referred to Gallerson as "MC Hammer" for a short
period of time while Gallerson was on leave because of the
hammer and because "MC Hammer is black."
Id. at 45, 79-80, 87.
Return from Medical Leave-August 2014
August 2014, Gallerson returned to work from medical leave.
Dkt. 46 at 41; Dkt. 1-2, ¶ 5.4. Daniel Baker
("Baker"), a BNSF management employee who
supervised Gallerson during part of the time period at issue,
was the roadmaster and Gary Maack ("Maack") was the
foreman. Dkt. 56-2 at 38. Espinosa testified that Baker had a
reputation for not knowing what he was doing and for trying
to take shortcuts but that Maack "always seemed to treat
[Gallerson] with respect." Id. at 38-40. Baker
had joined BNSF in January of 2012 as a management trainee
after earning his undergraduate degree and became Seattle
Terminal Roadmaster in June 2014. Dkt. 56-3 at 11, 14-17.
testified that though he had "never even met [Baker]
before" he felt that Baker was "on me
constantly" as soon as he returned to work. Dkt. 56-1 at
18, 138. Gallerson testified that Baker harassed him, asking
every day about Gallerson's criminal charges in a
degrading, raised tone of voice that he did not use with
Caucasian employees, even though Gallerson told Baker that he
would keep him updated. Id. at 24, 135. Baker denied
that he had harassed Gallerson or spoke to him
disrespectfully, testifying that "I thought I was very
understanding . . . when Mr. Gallerson brought up that he had
to go to court, you know, and on pretty short notice, you
know, making sure he took the day off and that everything was
fine," though admitted that he "might have"
asked Gallerson for periodic updates about the status of his
felony charges Dkt. 56-3 at 42, 56-57, 58.
point in November or December of 2014, Gallerson testified
that either Baker told him "well, I was told to make
sure I get you this time," or Baker told Gallerson that
the division engineer Chad Scherwinski
("Scherwinski") had told Baker to "make sure
he gets rid of [Gallerson] this time." Dkt. 56-1 at 24,
102. In deposition, Baker denied ever telling Gallerson that
he was going to "get him" or was told to "get
him." Dkt. 56-3 at 57-59. Gallerson was unsure whether
Baker knew about his prior discrimination lawsuits against
BNSF. Dkt. 56-1 at 45.
testified that when he did not "tell [Baker] what he
wanted to hear," regarding updates on his criminal
charges, Baker started assigning him to tasks outside his job
description which were not appropriate for someone who had
worked at BNSF as long as Gallerson had. Id. at 26.
Though a foreman, Maack in this instance, would typically
allocate daily assignments and Gallerson believed Maack was
fair, Gallerson testified that Baker would sometimes
specifically assign Gallerson to undesirable tasks.
Id. at 42-44, 79. Baker testified that there was no
requirement that tasks be assigned by seniority, and he was
not aware of a practice of assigning tasks based on
seniority. Dkt. 56-3 at 31-32.
undesirable tasks included being separated from the work crew
to do cleanup "just doing stuff that nobody did or had
to do," or flagging. Dkt. 56-1 at 35. Flagger was an
alternative to laborer, and workers could bid on the job they
wanted to perform. Id. at 50. Based on his fifteen
years of experience at BNSF, Gallerson believed individual
cleanup and flagging to be outside the job duties of a
laborer. Id. at 134. Gallerson testified that
typical laborer tasks included loading equipment for and
performing jobs such as taking rail ties out or replacing
rail defects, and if laborers had to do cleaning work, it was
only assigned to the group and never to individuals.
Id. at 40, 52, 77. Gallerson testified that during
the entire time he had worked at BNSF, he had never seen
anyone ordered to do these cleanup tasks: cleaning an area
which was "completely dirty and stuff everywhere
anyway" and stacking items without instruction but being
told later by Baker that the items were stacked incorrectly.
Id. at 35, 51. While sometimes other laborers were
asked to do flagging work, Gallerson explained that he was
the only one who was mandated to do it. Id. at 75.
testified that it was not unusual that a laborer might need
to do some flagging during the day while other laborers did a
minor task and explained that he understood it to be a
preferred task because it was less physically demanding than
other work, though he knew some workers "wanted to work
as hard as they could to get the job done quickly" and
found flagging "boring." Dkt. 56-3 at 34-37. Baker
testified that Gallerson never told Baker that he did not
enjoy flagging, that he could only recall one instance of
Gallerson doing flagging work, and that Baker did not recall
whether he or Maack had assigned Gallerson to that task.
Id. at 37, 46-47. Baker testified that the only
reason a worker would be assigned to do cleanup work on an
individual basis was if that person was not feeling well or
was experiencing personal stress such that it was not safe to
have them working on live railroad track. Id. at
51-54. Baker testified that he never assigned anyone such
work who did not request it. Id. at 54.
ordered Gallerson to perform undesirable tasks four or five
times between August 2014 and March 2015. Dkt. 56-1 at 78-79.
Gallerson believed Baker was acting on behalf of Scherwinski,
Baker's supervisor. Id. at 57; Dkt. 56-3 at 23.
Regarding his environment at work, Gallerson explained
"I work - - walk in a room, 25 guys, I'm the only
black guy there" and his coworkers "gave [him] s***
everyday. Everyday." Dkt. 56-1 at 31.
point, Gallerson called BNSF's human resources hotline to
report Baker's behavior, telling the person he spoke with
that he believed he was experiencing retaliation based on his
previous lawsuit. Id. at 22-30. Gallerson expected
that someone would talk to Baker and ask him to leave
Gallerson alone because BNSF had a policy espousing zero
tolerance of harassment. Id. at 30.
within this time period, a coworker told Gallerson that a
management-level BNSF employee told the coworker Gallerson
had "played the race card." Id. at 59-61.
Gallerson testified that after this, his other coworkers did
not want to work with him "because if they do something
wrong they're afraid that that the company is watching me
or sending people out to watch me, that they'll see them
do something wrong as well. And everybody is afraid to lose
their job, and I don't blame them." Id. at
62. Gallerson testified that trust among the crew is a
critical part of work as a laborer because of the safety
risks involved in working on live railroad tracks-"[w]e
lose our lives out there and we depend on each other as a
group"-and so it worried him to be snubbed by his
coworkers as the result of being singled out by management.
Id. at 67-70.
asked in his deposition whether he told anyone that Gallerson
had "played the race card," Baker testified
"[n]ot that I can remember, no." Dkt. 56-3 at 43.
He recalled having conversations with BNSF union employees
about Gallerson's previous "situations" but did
not "specifically remember a time" when someone
told him Gallerson "played the race card."
Id. Baker testified that "at that time, I
don't think I knew. I didn't know" about
Gallerson's lawsuits, and explained that by
"situation," he meant Gallerson's injury or the
domestic dispute. Id. at 44. Baker testified that he
did not tell any union employees that Gallerson had sued BNSF
in the past. Id. at 45.
January 22, 2015, Gallerson pled guilty to two felony
charges. Dkt. 1-2, If 5.6. He provided notice to BNSF
according to BNSF policy. Id., ¶¶ 5.6,
March 5, 2015, Gallerson informed his supervisor that he
would be sentenced the following day. Id., ]f 5.8.
On March 6, 2015, Gallerson was sentenced to ten months of
home monitoring which included permission to attend work.
Id. On March 9, 2015 Baker gave Gallerson a notice
that "an investigation had been scheduled against
[Gallerson] dated March 16, 2015," based upon his
alleged failure to report his criminal convictions. Dkt. 1-2,
ff 5.9; Dkt. 56-3 at 107, 113-14. Gallerson testified that he
had complied with the collective bargaining agreement in
reporting his felony convictions. Dkt. 56-1 at 107-08.
Gallerson also testified that Scherwinski was aware of his
previous lawsuit and likely recommended that he be
investigated. Id. at 45-46. Baker testified that
Scherwinski told Baker to "give the investigation"
to Gallerson, but also testified that no one in management
ever complained to him about Gallerson's previous
lawsuit. Dkt. 56-3 at 70, 78. Baker brought a BNSF police
officer with him to deliver the notice of investigation,
which he testified was fairly typical. Id. at 62-65.
Baker told Gallerson that anyone who is convicted of or
pleads guilty to a felony gets fired from BNSF, Dkt. 56-1 at
108, though Baker testified that he did not actually know
whether BNSF discharges every employee with a felony
conviction and that Gallerson was the only person with a
felony conviction he encountered while working there, Dkt.
56-3 at 61. Gallerson testified that his union representative
Tim Gillum told him about another BNSF worker who had a
felony charge and was not fired but in fact allowed to keep
working without interruption on a probationary status. Dkt.
56-1 at 106-08. Gallerson testified that there were other
employees who went "outside the limits" multiple
times and did not get investigated or got investigated but
received a waiver. Dkt. 56-1 at 98-101.
March 16, 2015, the investigation was postponed from March
16, 2015 to March 18, 2015. Dkt. 1-2, ¶5.10. Gallerson
testified that the collective bargaining agreement required
investigations to take place within two weeks of an incident,
but because he was not investigated until "a month and a
half after the fact," he believed the investigation was
being conducted for illegitimate, retaliatory purposes. Dkt.
56-1 at 103. Baker testified that Gallerson told Baker he had
pled guilty "but that he could change that plea anytime
up until sentencing." Dkt. 56-3 at 79. Gallerson also
testified he believed BNSF treated older workers differently
from younger workers-"it seems they just find a way to
terminate you." Dkt. 56-1 at 111.
mid-April 2015, Gallerson was terminated from BNSF. Dkt. 1-2,
¶5.1. The stated reason for the termination was
'"violation of MWOR 1.6.2 Notification of Felony
Conviction' and MWOR 1.6 Conduct." Id. If
5.13. Gallerson appealed the termination.
Id. If 5.17. BNSF did not respond or answer the
appeal within 60 days, which as Gallerson alleges, triggered
a policy "which necessitated reversal of the termination
and reinstatement of [Gallerson] with back wages."
Id.; Dkt. 56-6 at 103-04. Gallerson also alleged
that "[d]uring this same time, another Caucasian male
named Andrew Dube filed an appeal of his termination with
BNSF and BNSF also failed to respond/answer Mr. Dube's
appeal as well. Mr. Dube's termination/discipline,
however, was overturned and dismissed based on BNSF's
untimeliness to respond/answer the appeal." Dkt. 1-2, If
filed this lawsuit on October 28, 2015. Dkt. 1-2. Gallerson
was out of work from Spring 2015 through Fall 2017 and was
unable to find any job with pay similar to his BNSF wages.
Dkt. 56-1 at 34. On February 29, 2016, the Court granted
BNSF's motion to dismiss Gallerson's termination
claim and stayed Gallerson's remaining claims pending
completion of arbitration. Dkt. 23.