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MCCULLOUGH v. CONRAIL

October 30, 1991

WORTHAM M. McCULLOUGH, ROBERT McCULLOUGH, and GERALD A. GORE, Plaintiffs,
v.
CONSOLIDATED RAIL CORPORATION, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Defendant Consolidated Rail Corporation ("Conrail") has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons that follow, the court grants the motion in part, and denies it in part.

 FACTS

 This case involves the alleged discriminatory promotion practices of the railroad company-defendant Conrail. To fully understand the basis for summary judgment and the court's decision, an in-depth description of the facts of this case is necessary.

 Advancement at Conrail was a complicated procedure. When a job such as Yard Master became available, it would be "posted" on what the parties term a "clipboard" or "bulletin board." This was presumably a conspicuously placed board or wall in each Conrail yard upon which was posted a piece of paper listing the grade or level of the job, experience and training requirements, and the salary. According to company procedure, anyone interested in filling the posted position would complete a "CT-88 Application for Position" form. The applicant was required to take the carbon copies from the perforated form and submit one to the Labor Relations Department and one to the local Union Chairman.

 Pursuant to an agreement between the Railroad Yard Masters of America and Conrail, certain employees were given Seniority in application for a Yard Master's position. *fn2" If no one was designated as Senior, the clerk would collect the applications and then refer the names of the various applicants to the Day Terminal Supervisor who would then select the person to fill the vacancy.

 However, the procedure was not always strictly followed. Warren Stapelton said at his deposition that he would consider someone for a Yard Master job without a CT-88 form when the employee was referred to him by that employee's supervisor. Mr. Stefanovich said at his deposition that if someone didn't obtain the appointment he sought, that worker would be considered for the next position without re-applying, at least if the second opening developed shortly after the first application. Finally, Terminal Superintendent Thomas Flannigan stated in an affidavit that the Conrail policy was, in practice, to have the Terminal Superintendent appoint the new Yard Master and that person would assume the job duties until the appointment was approved by the Conrail hierarchy.

 Plaintiffs attempted to apply for several Yard Master jobs during the course of their employment at Conrail. *fn3" Specifically, there are nine *fn4" posted openings at the 55th Street Conrail yard in 1983 through 1984. The first two were posted on September 21, 1983. Although the appointment was normally to be performed by the Day Terminal Supervisor, no one was filling that job at the time since Warren Stapelton had not yet assumed his duties. Therefore, Train Master Michael Chewar filled the jobs, giving one to a person with Seniority and the other to Marty Eglar, a white male.

 The third job was posted on October 19, 1983. Again, Train Master Chewar filled this job, giving it to R.L. Perry, whose race is not in the record. However, Perry held that job for only a short period, being forced out when Perry's superior was demoted into Perry's newly-acquired job. Consequently, when the fourth job was posted on November 2, 1983, Perry had Seniority and was given that job.

 Jobs five through eight were posted on February 8, 1984. By this time, Warren Stapelton had assumed his duties and assigned two of the jobs to Thomas Morgan and P.C. Litto, *fn5" although the race of these two employees is not in the record. The other two openings were filled by employees with Seniority. The final job of contention is the March 7, 1984 opening filled by T.P. Kienzle, a white male. Kienzle was selected by Train Master Crawford while Stapelton was on sick leave.

 The method in which each plaintiff applied for these jobs is a subject of much controversy. The first job Robert applied for was the November 2, 1983 job filled by R.L. Perry, job four. It is undisputed that his application did not comply with official company procedure. Rather, Robert completed the CT-88 form and made two photocopies. He then submitted one to the Manager of Labor Relations via the company mail and hand delivered the second to Terminal Supervisor Flannigan, who gave it to a Division Superintendent. Robert contends he applied for the job openings subsequent to November 2, 1983. He maintains that since he did not receive the November 2 job, he applied for all subsequent jobs by way of the un-official company policy of rolling over applications of those who did not receive the appointment for which they first applied. Robert presents no evidence he applied for any Yard Master promotion prior to November, 1983.

 Wortham followed a similar procedure. The first jobs he specifically applied for were the February 8, 1984 openings, jobs five through eight. Instead of following the company policy, Wortham completed the CT-88 form, photocopied it, placed it in a manila envelope, and then placed that in the company mail addressed to the Superintendent of Labor Relations. Wortham contends he applied for the March, 1984 job since he applied for and did not receive the February jobs for which ...


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