A railroad employee fired in 2018 who filed a discrimination lawsuit in 2016 and an internal discrimination complaint in 2018 could not claim retaliation based on her 2016 lawsuit. Her claim could only proceed based on her 2018 complaint, the 5th U.S. Circuit Court of Appeals ruled.
The plaintiff worked for Union Pacific Railroad Company from 1996 to 2018. In 2013, the plaintiff began working as a claims representative at Union Pacific's Palestine, Texas, location. In 2015, the plaintiff lodged complaints of discrimination and retaliation both internally at Union Pacific and with the Equal Employment Opportunity Commission.
Union Pacific terminated the plaintiff from the claims-representative position in March 2016. As a union member, the plaintiff had "bumping" rights that allowed her to seek another position with Union Pacific. Exercising those rights, in April 2016, the plaintiff began working as a materials handler at Union Pacific's Houston warehouse.
That same month, the plaintiff's new supervisor asked about her employment discrimination claims. The supervisor told the plaintiff that her husband had also filed a complaint against Union Pacific and referred the plaintiff to two attorneys.
In August 2016, the plaintiff sued Union Pacific for the discrimination and retaliation she allegedly experienced at the Palestine location. The parties settled that case in January 2018.
Five months later in June, the plaintiff disagreed with her supervisor about her pay during time off and appealed to her second-level supervisor. After this pay dispute, the plaintiff felt her supervisor's behavior toward her changed and that the supervisor was trying to find ways to damage her employment record.
On July 10, 2018, the supervisor called the plaintiff to review a video of the plaintiff receiving merchandise. Apparently, some fuel injectors were missing from a delivery of supplies. The plaintiff maintained that she did nothing wrong.
On July 19, the supervisor told the plaintiff that she was writing her up and instructed the plaintiff to undergo coaching after work. When the plaintiff requested union representation for the coaching session, the supervisor called the local union chairman but could not reach him. The supervisor allegedly told the plaintiff that she should proceed with coaching without representation.
The plaintiff continued seeking union representation for the coaching, and the supervisor allegedly instructed her to work on another assignment until she completed the coaching. The plaintiff called Union Pacific's internal Equal Employment Opportunity (EEO) line. She complained that her supervisor had created a hostile work environment and had discriminated against her. She also complained that the supervisor seemed to mock her for requesting union representation.
On July 23, the supervisor again allegedly instructed the plaintiff to complete the coaching session. When the plaintiff requested union representation again, the supervisor suspended her for insubordination. On July 24, a union representative appeared to attend the coaching with the plaintiff, but the supervisor purportedly did not arrive to provide the coaching, and it was canceled.
That same day, Union Pacific scheduled a disciplinary hearing against the plaintiff for Aug. 15. At the hearing, the plaintiff testified that she did not refuse coaching but only asked for a union representative to be present. On Aug. 23, Union Pacific fired her for insubordination.
The plaintiff filed a lawsuit against Union Pacific, alleging that it violated Title VII of the Civil Rights Act of 1964 by suspending and terminating her in retaliation for her 2016 lawsuit and 2018 internal EEO complaint. She also claimed that Union Pacific violated the Railway Labor Act (RLA) and the Texas Labor Code (TLC) by retaliating against her for requesting union representation.
Union Pacific moved to dismiss the lawsuit for failure to state a claim, which the district court granted.
On appeal, the 5th Circuit determined that the retaliation claim could not proceed based on the plaintiff's 2016 lawsuit. While filing a lawsuit was a protected activity, it had occurred too long before the August 23, 2018, firing to establish a causal connection between the 2016 lawsuit and her firing. However, the current lawsuit could proceed based upon the July 2018 EEO complaint that the plaintiff had filed internally.
The court also upheld the dismissal of the plaintiff's RLA and TLC claims, finding that the RLA pre-empts the TLC and that the RLA claim itself had to be pursued in arbitration. Thus, the court upheld dismissal of the plaintiff's lawsuit, except her Title VII retaliation claim based on her 2018 complaint, which it reinstated.
Wright v. Union Pacific Railroad Co., 5th Cir., No. 20-20334 (March 5, 2021).
Professional Pointer: An employee can show retaliation if she suffers an adverse action a short time after engaging in a protected activity, such as filing a discrimination complaint or lawsuit. Thus, employers should think carefully before making disciplinary decisions soon after an employee brings a discrimination complaint.
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
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