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Saellam v. Norfolk Southern Corp.

December 19, 2008

BRUCE D. SAELLAM, PLAINTIFF,
v.
NORFOLK SOUTHERN CORPORATION, NORFOLK SOUTHERN RAILWAY CORPORATION, DEFENDANTS.



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

OPINION AND ORDER OF COURT

Plaintiff, Bruce Saellam ("Plaintiff"), initiated this action against Defendants Norfolk Southern Corporation and Norfolk Southern Railway Corporation ("Defendants" or "Norfolk Southern"), alleging discriminatory treatment on the basis of national origin and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), retaliation under Title VII and the ADEA, and pendent state claims under the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951, et seq. ("PHRA").*fn1

Pending before the Court is Defendants' second motion for summary judgment seeking dismissal of Plaintiff's claims in their entirety. (Docket No. 33). After careful consideration of the parties' submissions and for the reasons set forth below, Defendants' motion is granted.

I. BACKGROUND

A. Factual Background

Unless otherwise indicated, the following material facts are undisputed.

1. Plaintiff's Employment History With Norfolk Southern

Plaintiff, Bruce Saellam (pronounced "Salem"), is a resident of Westmoreland County, Pennsylvania. Plaintiff's father, James George Saellam, is an American citizen born in New Kensington, Pennsylvania, and, according to Plaintiff, is of Syrian descent.

Plaintiff has been employed by Norfolk Southern since June 1, 1999, and prior to that was employed by Consolidated Rail Corporation ("Conrail"). At the time Plaintiff became a Norfolk Southern employee in June 1999, he was employed as a terminal trainmaster, a non-union position. Prior to this, Plaintiff had been employed at Conrail as a train dispatcher, a union position. On February 1, 2003, Plaintiff exercised his seniority and returned to a union position as a train dispatcher for Norfolk Southern.

Mark Hamilton became Superintendent of Norfolk Southern's Pittsburgh Division in November, 2003. Plaintiff alleges that shortly after assuming the Division Superintendent position, Hamilton said to him "Why do you have all of these American Flags on your car, is that so people don't think you are a terrorist?" Plaintiff also alleges that following a safety briefing concerning terrorism, Hamilton approached him and asked how he felt about terrorism. According to Plaintiff, Hamilton did not ask anyone else about their thoughts on terrorism. Plaintiff further alleges that his supervisor, Jim Keller, mispronounced his name in the summer of 2003 in such a way as to emphasize a Middle Eastern pronunciation.

On October 27, 2004, Plaintiff was working the afternoon shift which begins at 2:00 p.m. as train dispatcher in the Pittsburgh Division's office in Greentree, Pennsylvania. Plaintiff was relieving a relatively new train dispatcher, Gary Bowling. At the time, Bowling was a probationary employee, meaning he was still in a learning process and was not subject to all of the rights and obligations afforded to non-probationary employees under the applicable labor agreement, including the agreement's disciplinary procedures. Sometime during his shift, Plaintiff became aware that Bowling had made an error during the prior shift and had altered information contained on the daily dispatcher bulletin. Specifically, Bowling had mistakenly changed the date on certain bulletin orders from October 27, 2004 to October 28, 2004. As a result, the bulletin did not properly notify train crews regarding certain track work that was occurring on October 27, creating a safety concern. According to Plaintiff, he first became aware of Bowling's error at approximately 3:10 p.m. on October 27 when he was contacted by one of the trains operating in his territory. Plaintiff took some action to notify other trains in the affected area and eventually advised the Chief Dispatcher on site at the time, Ken Opalanko. As of 4:00 p.m. on October 27, 2004, any danger caused by the mistake had passed because at that point in time the information on the bulletin order was no longer incorrect.

Upon learning of the situation from Plaintiff, Opalanko took a number of actions on October 27. He got a copy of the relevant bulletin orders. He also reviewed the form D book and saw that Plaintiff had not issued a form D, line 5.*fn2 Opalanko also testified that he reviewed the mandatory directive book on both October 27 and October 28, 2004, and that when he reviewed the mandatory directive book on October 27, there were no entries indicating that Plaintiff had issued mandatory directives. When Opalanko looked at the mandatory directive book on October 28, however, there were entries indicating that Plaintiff had issued mandatory directives. On the following Sunday, October 31, 2004, Plaintiff showed Opalanko the entries in the mandatory directive book and represented to Opalanko that he had made those entries at the time he issued the mandatory directives on October 27. Opalanko testified that he listened to the tape recording of the communications between Plaintiff and the train crews and based on those recordings, concluded that Plaintiff did not issue mandatory directives.

Opalanko initially charged Plaintiff with failure to issue a Form D by letter dated October 28, 2004. See Defs.' App. Ex. 10. Opalanko issued a revised notice of hearing on November 4, 2004 which included the failure to issue a Form D charge along with two additional charges: (1) conduct unbecoming an employee related to falsification of mandatory directive records and (2) providing false and/or conflicting statements to Opalanko. See id. Ex. 11.

An investigative hearing on all three charges was conducted on November 12, 2004 by hearing officer James Young.*fn3 As a hearing officer, it was Young's duty to conduct a fair and impartial investigation of the facts involved in the case and to make a decision on the appropriate discipline.*fn4 At the time of the hearing, Young did not know Plaintiff's national origin. Following the hearing, Young concluded that Plaintiff was responsible for all three alleged violations and determined that termination of employment was the appropriate discipline. See Defs.' App., Ex. 5 (Young Dep.) at 53, Ex. 13. Young issued his decision dismissing Plaintiff in all capacities on or about November 19, 2004. See id. Ex. 14.

Under the applicable labor agreement, the union appealed Young's decision to Mark Hamilton. Hamilton denied the appeal and upheld Plaintiff's dismissal. After Hamilton's decision, the union appealed the matter to Norfolk Southern's labor relations department. A discussion on that appeal was held on March 11, 2005, and by letter dated March 29, 2005, S.R. Weaver, Norfolk Southern's Director of Labor Relations, through Christopher Decker, Assistant Director of Labor Relations, denied the appeal. See id. Ex. 17.

The final step in the grievance resolution mechanism is an appeal to a public law board under the Railway Labor Act. Plaintiff's union appealed his dismissal to Public Law Board No. 6744 which issued a decision dated September 24, 2005, specifically finding that substantial evidence supported Norfolk Southern's conclusion that Plaintiff was responsible for all three of the charges against him. See id. Ex. 18. The Public Law Board also determined that, considering the seriousness of the violations along with the quality and duration of Plaintiff's service, the discipline to date had served its corrective purpose and that Plaintiff would be reinstated. No back pay was awarded. Plaintiff was reinstated to his regular position pending the Public Law Board's decision on July 14, 2005.

2. Plaintiff's FMLA Leave, Alleged Harassment, and Safety Complaints

During the course of his employment, Plaintiff applied for leave under the Family and Medical Leave Act ("FMLA") on a number of occasions. During the course of FMLA leave Plaintiff took intermittently during 2003, he alleges that his supervisor, Keller, "harassed" him for using that leave. He also believed he was being harassed because he had resigned his management position to return to a union position. Plaintiff set out his primary complaints with regard to alleged FMLA harassment in a five-page letter to the U.S. Department of Labor dated June 5, 2004. See Defs.' App. Ex. 30. That letter also briefly mentioned alleged national origin and racial discrimination. Plaintiff contends he sent a letter with substantially the same content to the Norfolk Southern EEO Department in early March 2004. Plaintiff does not have a copy of this latter letter and a search of the EEOC office revealed that neither the letter nor any record thereof exists in its files. Norfolk Southern also denies receiving a copy of the letter. The Department of Labor advised Plaintiff by letter dated January 6, 2005 that its investigation did not confirm a violation of the FMLA.

By e-mail dated June 3, 2004, Plaintiff followed up a phone call complaint he made to the Department of Transportation Federal Railroad Administration ("FRA") on that same date complaining that he had been lied to in a situation involving a train crew working on the Fort Wayne line on June 2, 2004. By letter dated October 25, 2004, the FRA indicated that it had completed its investigation and determined that there was no violation of federal regulations regarding signal maintenance.

Plaintiff testified at his deposition that his retaliation claim is based on the complaint about the FMLA, the complaint about national origin or racial discrimination, and the safety complaints. See Pl. Dep. at 111; see also Complaint ¶ 30.

B. Procedural History

For purposes of ruling upon the pending Motion, the following procedural history is relevant. After exhausting his administrative remedies, Plaintiff filed a Complaint against Defendants on January 27, 2006. (Docket No. 1). Defendants answered Plaintiff's Complaint on April 12, 2006. (Docket No. 2). Prior to filing his Complaint, but after he filed his charge of discrimination with the EEOC, Plaintiff filed a Chapter 7 Bankruptcy petition in the United States Bankruptcy Court for the Western District of Pennsylvania, at Bankruptcy No. 05-34922. In his bankruptcy petition, Plaintiff did not list his employment discrimination claim either as a contingent claim in his schedule of assets, or as a suit or administrative proceeding in a Statement of Financial Affairs. On June 6, 2007, I issued and Opinion and Order granting in part Defendants' First ...


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