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Opsatnik v. Norfolk Southern Corp.

March 20, 2008


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


Plaintiff, Jeffrey M. Opsatnik ("Plaintiff" or "Opsatnik"), initiated this action against his former employer, Defendant Norfolk Southern Corporation ("NSR"), and his former union, Brotherhood of Locomotive Engineers and Trainmen, a Division of the Rail Conference of the International Brotherhood of Teamsters, and Brotherhood of Locomotive Engineers and Trainmen Local Division No. 590 ("BLET") (collectively "Defendants"), alleging discriminatory treatment on the basis of race, sex, and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq. ("PHRA").

Pending before the Court are two motions for summary judgment filed by Defendants BLET and Norfolk Southern Corporation, respectively. (Docket Nos. 42, 43). Each Defendant seeks dismissal of Plaintiff's claims against it in their entirety. Plaintiff opposes both Motions. (Docket Nos.69, 70). After careful consideration of the parties' submissions and for the reasons set forth below, Defendants' motions are granted.


A. Factual Background

Unless otherwise indicated, the following material facts are undisputed.

1. General Background

Plaintiff Opsatnik is a Caucasian male born on October 15, 1959. Plaintiff began his railroad employment when he was hired by Consolidated Rail Corporation ("Conrail") on August 22, 1994. Plaintiff became an employee of NSR on June 1, 1999 after NSR acquired Conrail's assets. During all relevant times, NSR was organized into 11 operational divisions, each of which was headed by a Division Superintendent. Plaintiff worked as a locomotive engineer in NSR's Pittsburgh division from June 1, 1999 until his employment was terminated.

Upon joining NSR in June 1999, Plaintiff changed his union affiliation and became a member of BLET. BLET is the collective bargaining representative of locomotive engineers employed by NSR. The Railway Labor Act ("RLA") and the applicable collective bargaining agreement between NSR and BLET set forth detailed procedures for opposing discipline and provide employees several procedural safeguards to protect against arbitrary, excessive, or unfair discipline, including the right to appeal discipline to a Labor Arbitration Board such as a Public Law Board. One part of the collective bargaining agreement negotiated by the parties effective January 1, 2000, is the "START policy," an acronym for System Teamwork and Responsibility Training policy. See NSR's App'x (Docket No. 44) Exs. 3-4.

2. Plaintiff's Disciplinary Record at NSR

Plaintiff was disciplined five times between April 24, 2001 and the termination of his NSR employment in September 2004. On April 24, 2001, Plaintiff received a 10-day deferred suspension for failure to take calls on March 28 and 29, 2001, and for attempting to persuade the crew caller to falsify records. Plaintiff states that this was a minor violation under the START policy.

Plaintiff signed a waiver accepting responsibility in connection with these violations. NSR's App'x, Ex. 5. On October 15, 2001, Plaintiff was counseled for a START violation for making an unauthorized shove move without permission. Plaintiff states that this, too, was only a minor START violation. On December 13, 2002, a 30-day deferred suspension was imposed on Plaintiff for operating his train in excess of the authorized speed in Conway Yard. In connection with this violation, Plaintiff signed a waiver, waiving his right to a formal hearing and accepting responsibility for the violation. Id., Ex. 6. Plaintiff states that he signed the waiver on BLET's advice. He also states that the violation was serious, not major, and was not the equivalent of "excessive speeding." On December 23, 2002, a 30-day deferred suspension was imposed on Plaintiff for failing to properly report a personal injury which occurred on October 27, 2002. Plaintiff appealed this suspension to the Special Board of Adjustment No. 1063, which, on July 29, 2004, rendered a decision upholding the suspension. Id., Ex. 7.

3. Plaintiff's Final Discipline And Termination From Employment

Plaintiff's fifth discipline, and the discipline that gives rise to this litigation, occurred when Plaintiff failed to comply with verbal instructions from a dispatcher with regard to weather-related speed restrictions during the operation of a train. Specifically, on September 8, 2004, Plaintiff was the engineer on an NSR "key" train (i.e., a train transporting hazardous materials). Plaintiff was accompanied on the trip by conductor Randy Zam. The normal speed limit for the train was 50 miles per hour. The train dispatcher in the area in which Plaintiff's train was operating, however, issued an area-wide speed limit directive, reducing all trains in the area to a maximum speed of 40 miles per hour. The reason for the speed limitation was that heavy storms were expected in the area. Upon the train's return to Conway Yard, it was discovered that Plaintiff and Zam's locomotive had not been properly secured.*fn1 As a result, NSR pulled and reviewed the train's event recorder which revealed that the train had exceeded the 40-mile per hour speed restriction eight times, including two instances where the train exceeded the normal track authorized speed of 50 miles per hour. Although Plaintiff offered explanations for his conduct, he admitted that he did not heed the reduced-speed directive.*fn2 As a result of Plaintiff's actions on September 8, 2004, NSR charged him with failure to properly secure a locomotive, improper train handling, and excessive speeding.

On September 21, 2004, a formal hearing pursuant to the collective bargaining agreement was held on Plaintiff's dismissal for excessive speeding before hearing officer Neville Wilson, an African-American NSR employee. At the time of the hearing, Wilson was terminal superintendent for the Conway Yard. At times during the hearing, Wilson noted Plaintiff's irresponsible attitude and that Plaintiff appeared to be sleeping. As a result of the hearing testimony, documentary evidence, and Plaintiff's prior record, Wilson found Plaintiff responsible for all violations with which he was charged and dismissed Plaintiff from service in all capacities.*fn3

Pursuant to the collective bargaining agreement and the RLA, Plaintiff's union representative, Robert Salyers, appealed Plaintiff's dismissal to Mark Hamilton, Superintendent of NSR's Pittsburgh Division. Hamilton independently reviewed the September 21, 2004 hearing transcript and all related exhibits, and issued a letter denying the appeal. The BLET then appealed the dismissal to the Special Board of Adjustment, arguing, inter alia, that the penalty of removal was excessive and should be reduced. In an Award dated March 30, 2005, the Special Board of Adjustment denied the appeal and upheld Plaintiff's dismissal.

Plaintiff has never denied that he was advised of the speed restriction by the dispatcher or that he committed the speeding infractions with which he was charged. He argues, however, that NSR disciplined him more harshly than it disciplined African-American, female, and/or younger employees for similar infractions in violation of Title VII, the ADEA, and/or the PHRA. Plaintiff also argues that BLET acquiesced to this harsher discipline in violation of the same statutes. Defendants dispute Plaintiff's claims and seek summary judgment in their favor on all counts of Plaintiff's Complaint.

B. Procedural History

On January 19, 2006, Plaintiff filed a Complaint against Defendants. (Docket No. 1). On March 10, 2006, Defendant NSR filed its Answer to Plaintiff's Complaint. (Docket No. 5). The BLET Defendants filed their Answer to the Complaint on March 15, 2006. (Docket No. 6). On June 4, 2007, Defendants filed the instant Motions for Summary Judgment and supporting materials. (Docket Nos. 42-45, 48-52). Plaintiff filed a Responsive Statement of Material Facts, Exhibits, and a Brief in Opposition to each Defendant's Motion. (Docket Nos. 59, 61-62, 69-70). Both Defendants filed Responses to Plaintiff's Statement of Additional Facts and Reply Briefs to Plaintiff's Opposition. (Docket Nos. 68, 72-74). Defendant NSR also filed supplemental exhibits to its Motion. (Docket Nos. 71, 77). Both Motions are now ripe for my review.


A. Standard of 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. Int'l Raw Materials, Ltd. v. Stauffer Chem. 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 non-moving 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 Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988) (quoting Celotex, 477 U.S. at 322).

B. Plaintiff's Claims Against NSR

1. "Reverse" Race and Gender Discrimination - Title VII and PHRA*fn4

NSR alleges that it is entitled to summary judgment as to Plaintiff's "reverse" race and gender discrimination claims because Plaintiff cannot establish a prima facie case of discrimination and/or there is no genuine issue of material fact that NSR's reason was a pretext for discrimination.

Plaintiff alleges that he was fired by NSR because of his race (Caucasian) and/or his gender (male) in violation of Title VII and the PHRA.

In determining whether or not to grant summary judgment in a "reverse" employment discrimination case, I must apply the burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Iadimarco v. Runyon, 190 F.3d 151, 158 (3d Cir. 1999).*fn5 To prevail under the burden shifting analysis, Plaintiff must first establish a prima facie case of discrimination, which, in the reverse discrimination context, requires the plaintiff to "present sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based upon a trait that is protected under Title VII." Id. at 161; Mosca v. Cole, 217 F. App'x 158, 161 (3d Cir. 2007); Geddis v. Univ. of Del., 40 F. App'x 650, 652 (3d Cir. 2002). The primary purpose of evaluating the prima facie case is to "eliminate the most obvious, lawful reasons for the defendant's action," Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999), and the plaintiff's evidentiary burden at this stage is "not intended to be onerous." Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996).

If a plaintiff establishes a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See Burdine, 450 U.S. at 254-56. The defendant satisfies this burden by introducing evidence, which, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the defendant meets this minimal burden, then the plaintiff must prove, by a preponderance of the evidence, that the articulated reason was a mere pretext for discrimination. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997). Throughout this analysis, the ultimate burden of proving intentional discrimination rests with the plaintiff. Fuentes, 32 F.3d at 763.

a. Prima Facie Case

NSR first argues that Plaintiff cannot meet his burden of proving a prima facie case of reverse gender and/or race discrimination because there is no evidence of similarly-situated female and/or non-Caucasian employees who were treated more favorably than Plaintiff. Plaintiff disagrees and points to a list of alleged comparators he claims received less severe discipline for similar infractions. Although, for the reasons set forth infra, I find that NSR's arguments have considerable force, I also recognize that the burden of establishing a primafacie case is much less onerous than proving pretext with similar evidence. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 646 (3d Cir. 1998). I do not need to resolve this question, however, because even assuming arguendo that Plaintiff has established a primafaciecase, I find, for the reasons set forth below, that NSR has articulated a legitimate, nondiscriminatory reason for terminating his employment, and Plaintiff cannot point to sufficient evidence from which a fact finder could conclude that NSR's stated reason was a pretext for discrimination.

b. NSR's Articulated Reason

NSR's articulated reason for terminating Plaintiff's employment is that, while driving a "key train" containing hazardous materials on September 8, 2004, Plaintiff disregarded specific instructions from a train dispatcher to reduce his speed, and operated his train over the speed limit multiple times during the same trip. NSR's Br. (Docket No. 45) at 15-16. Hearing officer Neville Wilson made the decision to discharge Plaintiff after an investigative hearing, and Division Superintendent Mark Hamilton upheld that decision on appeal. Plaintiff's union (Defendant BLET) further appealed his dismissal to Special Board of Adjustment No. 1063, which also upheld Plaintiff's discharge. In its written findings denying Plaintiff's appeal, the Special Board of Adjustment stated, among other things:

We note that this was not Claimant's first discipline for speeding. In December 2002, Claimant was issued a thirty day suspension for speeding. This Board, on previous occasions, has recognized that speeding is a serious violation that may warrant dismissal. Claimant's disregard for the Carrier's rules is magnified when one considers that his train was designated a key train because of the number of cars carrying hazardous materials. Claimant was not only over the speed limit for all trains because of the weather conditions, but was in excess of the speed ...

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