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Gallerson v. Burlington Northern Santa Fe Railway Co.

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

July 9, 2019




         This 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.


         On 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.

         On 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.

         On 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.

         On 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.

         On 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.[1]On April 12, 2019, BNSF replied. Dkt. 57.


         Gallerson is an African-American man over the age of 40 who began working for BNSF in 2001. Dkt. 1-2, ¶¶ 4.1, 5.1.[2] 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 factual chronology.

         A. Commencement of Events at Issue-Fall 2013

         In 2013, Gallerson was working for BNSF in Edmonds and Seattle as a laborer. Dkt. 56-2, at 6; Dkt. 56-1 at 15.[3] Laborers work in "sections," teams of between three and seven people doing track maintenance work. Dkt. 56-3 at 19-20.[4] 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.

         On 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.[5] 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.

         A local 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.

         B. Return from Medical Leave-August 2014

         In 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.

         Gallerson 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.

         At some 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.

         Gallerson 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.

         The 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.

         Baker 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.

         Baker 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.

         At some 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.

         Also 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.

         When 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.

         On 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, 5.7.

         On 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.

         On 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.

         In 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.[6] 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 5.17.

         Gallerson 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.

         C. ...

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