Train Conductor Proves Race Discrimination

By Jeffrey Rhodes October 21, 2020
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BNSF train

A train conductor fired by Burlington Northern Santa Fe Railway Co. (BNSF) after two speeding violations in a single shift proved race discrimination because co-workers in similar circumstances received informal discipline, the 7th U.S. Circuit Court of Appeals ruled.

The plaintiff, who is Black, worked for nine years as a train conductor for BNSF, starting in 2004. In 2011, he began operating trains traveling between Savanna and Aurora, Ill. During a shift in March 2013, a data recorder showed that the plaintiff's train—a so-called key train carrying hazardous chemicals—had twice exceeded speed limits by 10 and 12 miles per hour.

The plaintiff failed to follow company rules requiring self-reporting of the violations. An investigation ensued and was likely to result in the plaintiff being disciplined. BNSF had two processes for employee discipline: formal and informal.

In the formal process, BNSF labor relations and management gathered information about the employee's safety infractions and conducted a hearing. The hearing officer recommended what discipline, if any, to impose after considering the facts and a written policy categorizing violations by their level of seriousness. If the hearing officer and the employee's supervisor recommended termination, the company's review board assessed the evidence and made the final decision.

An employee could instead seek permission for one of two informal discipline options: a waiver or alternative handling. If offered a waiver, an employee could admit the alleged misconduct, forgo a formal investigation and agree to accept the recommended sanction with the hope of receiving a lesser discipline than he or she would receive in the formal process.

If offered alternative handling, an employee's discipline would be managed at lower levels. The line supervisors could handle the matters themselves with strong words of warning, without sending the matter to the plant manager or corporate office.

The plaintiff sought to have his two speeding infractions addressed through waiver or alternative handling because other employees had kept their jobs after committing similar safety violations. The superintendent of operations for BNSF's Chicago division rejected the plaintiff's request for alternative handling and made no mention of waiver. His reason for denying alternative handling shifted over time. He first claimed speeding was a violation of critical work practices, then claimed that alternative handling was not available because the plaintiff was operating a key train with dangerous chemicals.

BNSF gave the plaintiff a formal disciplinary hearing with an engineer who worked the same shift during which the two speeding violations occurred. The hearing officer recommended terminating the engineer and suspending the plaintiff for 30 days. The superintendent forwarded the recommendation to the review board, which decided to fire both employees.

The plaintiff filed suit claiming racial harassment and disparate discipline under Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. In the racial harassment claim, the plaintiff asserted that the superintendent, who is white, and other managers made harassing comments. The court eventually dismissed this claim for failure to exhaust administrative remedies.

The case went to a jury trial on the disparate discipline claim. The jury awarded the plaintiff $375,000 in compensatory damages and $500,000 in punitive damages, later reduced by the court to $275,000 and $370,000 respectively. The court awarded back pay of $531,292 and front pay of $137,450 in lieu of reinstatement. BNSF sought to have the verdict set aside, which the court rejected.

On appeal to the 7th Circuit, BNSF challenged the plaintiff's claim that white employees did not suffer the same discipline for the same or worse conduct. At trial, the plaintiff asked the superintendent about several co-workers who were permitted to accept informal discipline despite serious performance issues—including, in one instance, a train derailment.

While the plaintiff did not perform a statistical regression analysis, evidence came out regarding differences in ability to use informal discipline and receive less punishment. The 7th Circuit noted that BNSF did not present contrary statistical analysis to show no bias in outcomes.

BNSF also questioned the plaintiff's theory that the superintendent could have negatively influenced the review board, which made the termination decision. The 7th Circuit nonetheless found that the theory that the superintendent did not offer informal discipline could render BNSF responsible for an outcome less favorable to the plaintiff than to white co-workers.

The 7th Circuit thus upheld the verdict finding discrimination and the monetary awards.

Morris v. BNSF Railway Co., 7th Cir., Nos. 19-2808 and 19-2913 (Aug. 11, 2020), petition for rehearing and rehearing en banc denied (Sept. 9, 2020).

Professional Pointer: An employer offering disciplinary alternatives must carefully monitor how it administers the alternatives to make sure they are freely and equally available to all employees. Otherwise, a disparate discipline lawsuit could ensue.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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