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Alyna Walker v. Union Pacific Railroad Co

January 10, 2011

ALYNA WALKER, PLAINTIFF,
v.
UNION PACIFIC RAILROAD CO., DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Maria Valdez

MEMORANDUM OPINION AND ORDER

Plaintiff Alyna Walker brings this complaint against Defendant Union Pacific Railroad Co. ("UP") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., as amended, and the Age Discrimination in Employment Act ("ADEA") of 1967, 29 U.S.C. § 621 et seq., as amended, alleging employment discrimination. Count I alleges that he was harassed and denied a promotion based on his race; Count II alleges he was harassed and denied a promotion based on his age; and Counts III and IV allege retaliation for filing a charge of discrimination, in violation of Title VII and ADEA. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is now before the Court on UP's motion for summary judgment [Doc. No. 57]. For the reasons that follow, UP's motion is granted.

FACTS

Unless otherwise noted, the following material facts are undisputed or are deemed admitted due to a party's failure to comply with Local Rule 56.1, which this Court strictly enforces.*fn1 Plaintiff was employed by Defendant from 1996 until his termination on July 26, 2007. (Def.'s LR 56.1(a)(3) ¶¶ 48, 57.) During his employment with UP, Plaintiff was a member of the International Association of Machinist and Aerospace Workers, and the terms and conditions of his employment were governed by a collective bargaining agreement. (Id. ¶ 6.) At the time of his termination, Plaintiff worked as a machinist in UP's commuter operations facility, known as M19A. (Id. ¶ 5.)

While employed at the M19A facility, Plaintiff had a number of documented incidents related to his behavior and performance. On August 13, 2001, Plaintiff's foreman attempted to give him a letter about Plaintiff's failure to clean a cart, but Plaintiff refused to take the letter. When the foreman instructed him to take it, Plaintiff stated that he did not have to take anything from him. (Id. ¶ 8.) Plaintiff was written up for this incident and was informed that if a supervisor asks him to do something, failing to do so is an insubordinate act. (Id. ¶ 9.)

On December 9, 2002, Plaintiff refused to perform a job assigned to him by another foreman. The M19A Supervisor notified the Shop Director, Don Thomas, Sr., of the incident in writing. (Id. ¶ 10.) The write-up, which described a violation of Rule 1.13 Reporting and Complying with Instructions, was given to Plaintiff by his foreman. Plaintiff responded, "I ain't signing this shit, fuck that. I don't have to listen to you." (Id. ¶ 11.) The M19A Supervisor told Plaintiff that he could not talk to a supervisor like that, and Plaintiff responded, "I'll talk to him any fuckin' way I want to and I'll talk to you any fuckin' way I want to." (Id. ¶ 12.)

On October 10, 2003, it was reported that Plaintiff's foreman instructed him to perform a job, but Plaintiff said he would not do the job. (Id. ¶ 13.) Another supervisor noted three separate incidents, on October 16, 24, and 31, 2003, in which Plaintiff was uncooperative and confrontational over job assignments. (Id. ¶ 14.) On November 3, 2003, Plaintiff signed a Management/Employee/Union Conference report concerning his lack of teamwork and poor communication with another employee in relation to an incident that took place on October 31, 2003. (Id. ¶ 15.) On November 11, 2003, Andreas Bakopoulos*fn2 submitted a written complaint against Plaintiff, stating that Plaintiff had been making racial remarks to him and harassing him for quite some time. (Id. ¶ 16.) After this complaint, Plaintiff was told in a letter dated November 14, 2003 that he had to submit to a medical review and clearance in accordance with Defendant's medical rules and was temporarily removed from service pending the medical review results. (Id. ¶ 17.) Plaintiff submitted to the medical review and was medically cleared to return to work on December 16, 2003, with the requirement that he complete anger management counseling. (Id. ¶ 18.) Plaintiff later contested the medical leave through the grievance arbitration procedure of the collective bargaining agreement, but his claim was denied by the Public Law Board on July 11, 2005. (Id. ¶ 19.)

In May 2004, Plaintiff transferred from the M19A facility to the Global I facility; he returned to the M19A commuter operations facility in September 2006 and remained there until his termination. (Id. ¶ 22.) On October 13, 2006, William Martin came to work at 2:00 a.m. to conduct a safety class for the shift, and Plaintiff told him he was on a lunch break. Martin told Plaintiff that there was no break in his contract and the class was starting, after which Plaintiff argued with Martin, swore at him, and yelled, "You're not going to fucking tell me what to do, I'm no mother fucking kid." (Id. ¶ 24.) On November 10, 2006, Plaintiff received a Level 1 Coaching Session for his failure to comply with instructions from his manager John Corio. (Id. ¶ 25.)

On February 1, 2007, supervisor Dave Simmering assigned Plaintiff to complete a lube and fuel, and while they were talking about the job assignment, Plaintiff became argumentative and walked away. (Id. ¶ 26.) Later in the day, when Simmering asked Plaintiff whether he had the fuel ticket associated with the job, Plaintiff ignored him, threw the fuel ticket on Simmering's desk, and refused to respond to Simmering's questions as to whether the job was complete. (Id. ¶ 27.) On April 16, 2007, foreman Don Thomas, Jr. and supervisor Simmering saw Plaintiff working in an unsafe manner. When they told him to stop and correct it, Plaintiff refused until they forced him to do so. (Id. ¶ 28.) Two days later, Simmering reported to foreman Anthony Sabatine that Plaintiff refused to sign off on some work, and while Simmering was trying to explain to Plaintiff why it was necessary, Plaintiff walked away and disappeared for twenty-five minutes. (Id. ¶ 29.) When Sabatine met with Plaintiff to discuss the incident, Plaintiff raised his voice, became argumentative, and then walked away from Sabatine, who eventually sent Plaintiff home for the day. Sabatine noted that during their entire conversation, Plaintiff was quarrelsome, insubordinate, raising his voice, and would not let anyone else finish a statement without cutting them off. (Id. ¶ 30.)

On June 25, 2007, Plaintiff met with Shop Director Don Thomas, Sr. and Plaintiff's friend Al Maldonado, whom Plaintiff asked to be present. During this meeting, they talked about the turmoil Plaintiff had created for his supervisors over the years, and Plaintiff stated he felt he knew more than a lot of his previous supervisors, and it was not right that they asked him to support them. (Id. ¶ 32.) Plaintiff was instructed that he should do what he is told by his supervisors, unless it was unsafe. During the conversation, Plaintiff interrupted with questions, which Thomas pointed out was the same issue his supervisors dealt with when trying to assign him work. (Id. ¶ 33.) On July 6, 2007, Sabatine again met with Plaintiff after learning that he refused a job assigned to him by foreman Marcus Dean. Plaintiff had felt that because he was senior, he could refuse the job and instead have a journeyman who was junior to him do the work. (Id. ¶ 34.) On July 25, 2007, Simmering assigned Plaintiff a job, and Plaintiff complained, claiming he was the senior man on the shift and questioning why another person was not assigned the work instead of him. Ten minutes later, Plaintiff told Simmering that his head hurt and he was going home. Simmering told Plaintiff to clock out when he left, but Plaintiff failed to do so. (Id. ¶¶ 36-37.)

At the start of the shift briefing on July 26, 2007, Simmering introduced Marcus Dean as the new third shift supervisor, explaining that Dean would be giving the job assignments and running the floor, and that Simmering would handle all of the computer work. (Id. ¶ 38.) Plaintiff then asked, "So who is my supervisor?" Simmering told him that both he and Dean were Plaintiff's supervisors. Plaintiff responded, "That ain't right, I can only have one supervisor." (Id. ¶¶ 39-41.) Later that day, when Dean assigned Plaintiff to perform a lube and monthly maintenance, Plaintiff responded, "You did not give me my job briefing, you're not my Foreman," and walked away as Dean called his name. (Id. ¶ 43.) Dean and Simmering found Plaintiff sitting at a computer. Dean told Plaintiff to complete the lube, but Plaintiff did not respond and instead stared at the computer. Plaintiff was asked several more times whether he was going to perform the job or answer their questions, but Plaintiff remained unresponsive. (Id. ¶¶ 44-46.) Simmering and Dean then discussed that it was not safe for Plaintiff to be at work if he refused to answer to either of them. Simmering told Plaintiff to clock out, go home, and report back at his next scheduled shift. (Id. ¶ 47.) Afterwards, Richard Jacobs, Director System Locomotive Facility, decided to take Plaintiff out of service on July 26, 2007 pending an investigation. Don Thomas, Sr. notified Plaintiff of Jacobs's decision. (Id. ¶¶ 48-49.) Plaintiff was also sent a letter dated July 26, 2007, notifying him to report for an investigation and hearing on August 2, 2007 on charges that "at approximately 0200 hours on July 26, 2007, while working as a Machinist at M19A, you were allegedly insubordinate, and argumentative by refusing to follow instructions from your supervisor regarding work you were to perform on the UP 3586 and then later refused to answer questions asked by your supervisor." (Id. ¶ 50.) Plaintiff attended the investigation and hearing, at which he testified. (Id. ¶ 51.) Following the investigation, Jacobs made the decision to terminate Plaintiff's employment for violating UP's General Code of Operating Rules, Rule 1.6. (Id. ¶ 52.) Plaintiff later received a letter dated August 21, 2007 notifying him, in part, that:

Based on careful consideration of the testimony adduced at this investigation, I find that there was more than substantial evidence presented at this investigation to support the charges brought against you and to support the conclusion that you were in direct violation of Rule 1.6, Conduct, Part 3, Insubordinate, Part 6, Quarrelsome and Part 7, Discourteous. Any act of hostility, misconduct, or willful disregard or negligence affecting the interest of the Company or its employees is cause for dismissal and must be reported. Indifference to duty, or to the performance of duty, will not be tolerated, and Rule 1.13, Reporting and Complying with Instructions. Accordingly, you are hereby advised that you have been assessed Level 5 Discipline and [sic] effective on this date, August 21, 2007 and hereby dismissed from the service of the Union Pacific Railroad Company. (Id. ¶ 53.)

Plaintiff's union appealed Plaintiff's dismissal, but the appeal was denied. In a June 9, 2008 letter, the union informed Plaintiff that in his case adjudicated before the Public Law Board, the arbitrator ruled in favor of Defendant and upheld Plaintiff's dismissal, finding:

[Plaintiff] has frequently been charged with a failure to follow instruction. It is noted a majority of these charges occurred within two years preceding this instance. Those charges do not indicate the [Plaintiff] was guilty of insubordination. Regardless, his record over the last two-three years does not serve to mitigate his behavior here. There was no evidence presented to support the [Plaintiff's] allegations the Foreman had a bias or animosity towards the [Plaintiff]. Even if he did, his ...


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