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PARKER v. BALTIMORE & OHIO R.R. CO.

August 8, 1986

KARL PARKER, JR., Plaintiff,
v.
THE BALTIMORE AND OHIO RAILROAD COMPANY, et al., Defendants



The opinion of the court was delivered by: GREENE

 The plaintiff in this case, a white male, brought these "reverse" discrimination and retaliation actions against his employer, defendant B & O Railroad. *fn1" The essence of plaintiff's claim is that B & O discriminated against him on the basis of his race and sex through its affirmative action program when it failed to transfer him to a position as a locomotive fireman. Plaintiff also claims that, because he had complained of discrimination, B & O retaliated against him through various acts of harassment. After a long and tortured history, *fn2" the action went to trial before the Court on October 7, 1985. The Court has now reviewed a voluminous record, including two weeks of trial testimony, extensive exhibits, and proposed findings of facts and conclusions of law, and it concludes that plaintiff has failed to establish discrimination or retaliation on the basis of race or sex. Accordingly, judgment will be entered in favor of defendants.

 I

 The evidence adduced at trial established the following facts. *fn3" In response to a historic underutilization of minorities and females in particular craft areas in its workforce, including the locomotive fireman craft, B & O adopted and implemented an affirmative action program, *fn4" involving both hiring and transfers, *fn5" with the goal of increasing the numbers of blacks and females employed in these white male dominated crafts. *fn6"

 In addition to setting these hiring goals, B & O entered into Seniority Modification Agreements (SMAs) with various unions which provided some opportunities for members of minorities and females already employed by B & O to transfer to white male dominated crafts. The SMAs, which went into effect in 1976, permitted certain minority and female employees with company seniority dates prior to August 1971 to file applications to transfer to another craft within 180 days of the effective date of the SMA. When a position opened up *fn8" in a craft listed on the SMA transfer candidate's application form, the candidate had fifteen calendar days to apply for the opening. If the SMA candidate met the minimum qualifications for the position, he or she would be transferred ahead of non-SMA applicants in the order of his or her seniority.

 B & O's affirmative action program has in fact resulted in an increase in the number of minorities and women employed in the white dominated craft of locomotive engineers, although it has fallen far short of its goals. In the period beginning December 1976 and ending in January 1982, 81 persons have been selected for locomotive fireman positions in the Baltimore West End district to which plaintiff applied for transfer. Of these 81 persons, eight have been minority males, one has been a minority female, and five have been white females. Put another way, 82% of the firemen selected have been white and 91% have been male.

 Plaintiff's claims of reverse discrimination and retaliation arise from his unsuccessful attempts to be transferred from his position as a trainman to a position as a locomotive fireman. *fn9"

 Although B & O had no written guidelines on procedures for transfer during the relevant period, testimony at trial established that application for transfer to a locomotive fireman position at all times relevant to this case was a four step process. First, the employee had to be referred to the employment office for testing and interview. In order to be so referred, the employee had to express interest in transfer to the General Road Foreman of Engines or the Superintendent of Operations and have a favorable recommendation from a supervisor. Second, the employee had to achieve a passing score on the required tests. *fn10" Third, if the candidate achieved satisfactory scores on all the tests, he or she would be interviewed. Finally, those candidates who interviewed satisfactorily would be referred for a medical examination. Candidates passing the medical examination would then be transferred into fireman service.

  II

 Plaintiff Karl Parker began working for B & O Railroad on October 14, 1974, and he worked as a brakeman and as a conductor in the Baltimore West End Division of the B & O for the period of time relevant to this lawsuit. On August 18, 1975, plaintiff submitted a written expression of interest in a transfer to locomotive fireman. The following year, a job order issued to hire six locomotive firemen in the Baltimore West End. *fn11" In December 1976 and January 1977, two white males, one white female, one black female, and two black males were selected for these six positions. The two black males were selected pursuant to the SMAs, *fn12" and the two women were selected pursuant to other parts of B & O's affirmative action program. *fn13" Although both SMA candidates received favorable recommendations from supervisors, neither was required to take the applicable tests because the SMA provided that SMA candidates did not have to take non-skills tests. The two women took and passed the requisite EQC test. *fn14"

 Plaintiff was not referred for testing at this point because Acting General Road Foreman Kessecker had not obtained a favorable recommendation from plaintiff's supervisor. As a consequence, plaintiff was not considered further for transfer to one of the six slots.

 After his non-selection, plaintiff met with General Road Foreman Kirk to complain that he had been treated unfairly in the selection process. Kirk, who assumed the job of Road Foreman in February 1977, had no responsibility for or knowledge of the January 1977 selections, and he told plaintiff that he would be considered for referral for testing on the next job opening for locomotive fireman (which was expected to occur in the spring of 1977).

 In June and July 1977, a new job order was issued, requesting ten locomotive firemen for the Baltimore West End district. Although Kirk had initially placed plaintiff's name on the list of candidates to be referred for testing, he actually referred for testing only half of the candidates because of the disproportionately large number of candidates eligible for a small number of positions. Plaintiff was not among those so referred because Kirk had not received a positive recommendation from plaintiff's supervisor. Of the 26 candidates who were referred for testing, 15 were white males and 11 were minority males, all with positive recommendations. The nine white males who were ultimately selected for the position all satisfactorily completed the required steps for the transfer discussed supra.15

 When plaintiff discovered that he had not been referred for testing, he called Kirk at home and asked why he had not been transferred. *fn16" A heated conversation followed, during which Kirk stated that "Any man who is really sincere and wants advancement does not walk out and threaten -- or even go through with suing the company he works for." *fn17" Kirk also told plaintiff that "When your turn comes up, you'll be interviewed. And if you have the necessary qualifications, you'll be selected." *fn18"

 In November 1977 Kirk again placed plaintiff on a list of individuals to be referred for testing, despite the fact that plaintiff had still not received a positive recommendation from a supervisor. In April 1978, plaintiff took the required Davis Reading and SRA Mechanical tests, but he failed the former by one point and as a consequence was not considered further. Ultimately, two white males were selected for the positions, ...


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