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Armstead v. Norfolk Southern Corp.

March 3, 2006


The opinion of the court was delivered by: Ambrose, Chief District Judge.


Pending is a Motion for Summary Judgment filed by Defendant, Norfolk Southern Corporation. (Docket No. 13). Therein, Defendant asserts that summary judgment should be granted as to Plaintiff's claim for age discrimination, brought pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 621, et seq., and as to Plaintiff's claim for reverse gender discrimination, brought pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended 42 U.S.C. §2000e, et seq. Plaintiff filed a Brief in Opposition thereto. (Docket No. 22). Based on my opinion set forth below, said Motion (Docket No. 13) is granted.


Plaintiff, Timothy Armstead, is a 45 year old male, born on April 23, 1960. He began his railroad employment with Consolidated Rail Corporation ("Conrail") on April 4, 1992. His first job with Conrail was at Conway as a carman. That position was an agreement position, i.e. a position wherein he was covered by a Collective Bargaining Agreement. In 1994, Plaintiff took a position as a mechanical supervisor, which, on Conrail, was also an agreement position. He also retained his seniority rights as a carman. Effective June 1, 1999, Plaintiff became an employee of Defendant, Norfolk Southern Corporation, as a result of the division and operation of Conrail assets by Defendant and CSX Transportation ("CSXT") in an acquisition approved by the Surface Transportation Board. Plaintiff continued to work as a mechanical supervisor, a position that, at Defendant, is not covered by a collective bargaining agreement and, thus, is a non-agreement position.

As a non-agreement mechanical supervisor, Plaintiff's primary duties were to lead, plan and direct agreement employees in the repair and maintenance of freight cars. He was one of six mechanical supervisors (Ross Brandenberg, Michael Bilinsky, Gregory Dalton, Gregory Sebastian, John Zillian, and Timothy Armstead) plus two foremen, Mario Lembo and George Powell, working at the Conway car shop.

In September, 2003, Defendant implemented a voluntary separation plan/program (VSP) designed to reduce the size of the non-agreement work force. Individuals with 20 years of service who had attained the age of 52 were eligible for the VSP. At the same time, the company was engaged in a review of the non-agreement work force with the goal of determining proper staffing levels. The overall plan was to reduce the number of employees and maximize efficient and effective utilization of the non-agreement staff. As a result of individuals leaving pursuant to the VSP and the elimination of jobs as a result of this restructuring, some locations were determined to be overstaffed and others understaffed. The Louisville, Kentucy location was determined to be understaffed and in need of an additional mechanical supervisor. On the other hand, at the Conway facility where Plaintiff worked, it was determined that the car shop was overstaffed by one mechanical supervisor.

Steve Moore, Senior General Foreman and Plaintiff's supervisor, reported to Scott Kershaw, who, at all relevant times, held the position of Division Manager of Mechanical Operations in the Harrisburg Division. Kershaw was on a team which was charged with the duty of determining the post-VSP staffing levels. Kershaw instructed Moore to make a determination as to which of the mechanical supervisor positions on the car side in Conway would be eliminated as a result of the force reduction. Moore did not consider any of the mechanical supervisors on the locomotive side.

Initially, Moore ask Armstead, Brandenberg, Bilinsky, Dalton, Sebastian and Zillian if they would volunteer to relocate and fill the mechanical supervisor position in Kentucky. Each of these individuals declined. The transfer would have involved no loss of pay or benefits. As a result, Moore had to choose someone. Moore chose Plaintiff.

Thus, Moore and George Powell, a general foreman, met with Plaintiff and advised him that he would have to relocate to Louisville, Kentucky to keep his job as a mechanical supervisor. According to Plaintiff, Powell told Plaintiff that he was the "youngest worker." Plaintiff took that to mean youngest in terms of chronological age as opposed to youngest in terms of seniority.

Plaintiff indicated that he wanted some time to decide whether or not to take the position in Louisville, Kentucky. Ultimately, he decided against relocating. Because he had previously been a carman and member of a labor union, Plaintiff had the ability to exercise his seniority and return to a job as a carman, which he did. He remains a carman to this day, employed and working at the Conway yard.

The instant lawsuit filed on behalf of Plaintiff alleges violations of the ADEA and Title VII. Defendant has filed a Motion for Summary Judgment as to both claims. (Docket No. 13). Plaintiff has filed a Brief in Opposition thereto. (Docket No. 22). The case is now ripe for review.



Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id.

Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. Summary judgment must therefore be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting Celotex, 477 U.S. at 322.


Count I of Plaintiff's Complaint seeks relief for age discrimination pursuant to the ADEA,29 U.S.C. §621, et seq. See, Docket No. 1, ¶¶32-37. There are two avenues of proving an ADEA claim: (1) direct evidence under a "mixed motives" theory of liability, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or (2) circumstantial evidence of discrimination under a burden shifting theory of liability. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Because there is no direct evidence presented in the record and because both parties appear argue that this case is a case of circumstantial evidence, I will proceed with a burden shifting analysis set forth in McDonnell Douglas. To establish a prima facie case of age discrimination under the ADEA, Plaintiff must show that: 1) he is a member of a protected class, i.e. over forty, (2) is qualified for the position, (3) suffered from an adverse employment action, and (4) his replacement was sufficiently younger to permit a reasonable inference of age discrimination. Winter v. Cycam/MedSource Technologies, 2006 WL 91567, No. 05-3593 *2 (3d Cir. Jan. 17, 2006), citing, Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir.2004). In the context of a reduction in force age discrimination case, the fourth element changes such that plaintiff must show that the employer retained a sufficiently younger similarly situated employee. Monaco v. American General Assur. Co., 359 F.3d 296, 300-01 (3d Cri. 2004), citing, Anderson v. Consol. Rail Corp., 297 F.3d 242, 249-50 (3d Cir.2002).

If Plaintiff meets his prima facie case, the burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Kautz v. Met-Pro Corp., 412 F.3d 463, 465 (3d Cir. 2005). The defendant, however, is not required to show that the nondiscriminatory reason was the motivating reason for the adverse employment action. Id.; see, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 148, 254 (1981). Thus, it is a minimal burden for Defendant to meet. If the defendant meets this minimal burden, then the burden shifts back to Plaintiff to prove, by a preponderance of the evidence, that the articulated reason was a mere pretext for discrimination. McDonnell Douglas, 411 US. at 802; Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). To succeed on this element of the burden shifting test, a plaintiff must now point to evidence from which a reasonable fact finder could conclude either: (1) that the employer's articulated legitimate reasons are unworthy of belief (i.e. pretextual), or (2) that ...

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