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August 8, 1986

KARL PARKER, JR., Plaintiff,

The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, United States District Judge.

 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.


 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"

  From 1974 to 1976, B & O set hiring goals for blacks on a percentage basis as part of its affirmative action program. These hiring goals were based on a workforce analyses, availability analyses, and past hiring experience. In 1975 and 1976, the system-wide hiring goal for blacks was 25%. In 1977, after the goals were revised and re-established on a reporting unit basis, the goal in plaintiff's reporting unit was 20%. While fixed percentage hiring goals for women were not established until 1981, *fn7" B & O attempted to lessen underutilization of women in its workforce as well. Since 1977, B & O has compiled reports pertaining to its hiring of minorities and females on a quarterly and yearly basis, complete with an EEO officer's analysis of each reporting unit's performance in attempting to meet the goals.

 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.


 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, both of whom had passed the Davis Reading test as well as satisfying the other requirements for transfer.

 While a number of other job orders were filled between April 1978 and December 1981, plaintiff was not considered for any of them because he had failed the Davis Reading test and had never requested retesting. *fn19" All of the candidates selected for the position after April 1978 satisfied all of the requirements for transfer. *fn20"

 In January 1979, after exhausting administrative remedies, plaintiff filed a complaint in this Court alleging discrimination. Although 12 more firemen were hired in the months following the filing of the complaint, plaintiff again was not referred because he had not passed the Davis Reading test and had never received a positive recommendation. The 12 persons selected, eight white males, two black males, and two white females, all satisfied the requirements for transfer discussed supra.

 Beginning in July 1979, after plaintiff filed his initial lawsuit, he had a series of confrontations with Kirk and other railroad officials, some of which resulted in disciplinary action. *fn21" Thus, plaintiff was charged, among other things, with violation of company rules for failing to notify the proper authority for delay of train, countermanding an instruction to move a train given by Kirk, and failing to exercise proper care while boarding a caboose. Plaintiff thereafter filed his second and third lawsuits, claiming retaliation based on these and other incidents.


 The first issue presented by this action is whether plaintiff was discriminated against because of his status as a white male in the December 1976-January 1977 referrals and selections for locomotive firemen. To establish a prima facie case of reverse discrimination, *fn22" plaintiff must prove: (1) that background circumstances support the suspicion that B & O is the unusual employer who discriminates against white males; (2) that he applied for and was qualified for a job for which B & O was seeking applicants; (3) that despite his qualifications, he was rejected; and (4) other employees of similar qualifications who were not white males were indeed promoted at the time his request for transfer was denied. Parker v. B & O, 209 U.S. App. D.C. 215, 652 F.2d 1012, 1017-18 (D.C. Cir. 1981); see also, Bishopp v. District of Columbia, 788 F.2d 781 (D.C. Cir. 1986); Dougherty v. Barry, 607 F. Supp. 1271, 1281-82 (D.D.C. 1985). Plaintiff has the initial burden of proving a prima facie case of discrimination before the burden shifts to the defendant to show a non-discriminatory reason for its action. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981).

 Plaintiff argues that he has sustained his burden of establishing a prima facie case of race and sex discrimination because of his non-selection for one of the December 1976-January 1977 locomotive firemen vacancies. It is uncontroverted that plaintiff applied for the vacancies and was rejected -- he was not even referred for testing -- and it is also uncontroverted that candidates who were not white males were selected for the vacancies -- two blacks and two females in addition to the two white males also selected. Further, for purposes of determining whether plaintiff has established a prima facie case, the Court will assume that the existence of B & O's affirmative action program satisfies the requirement that plaintiff show that background circumstances support the suspicion that B & O discriminates against white males. *fn23" See Bishopp v. District of Columbia, 788 F.2d 781 (D.C. Cir. 1986); Lanphear v. Prokop, 227 U.S. App. D.C. 89, 703 F.2d 1311 (D.C. Cir. 1983).

 The remaining elements necessary to prove a prima facie case, however, are more problematic. Essentially, they break down into two issues: (1) whether plaintiff was qualified for the position, and (2) whether the four minority candidates promoted to locomotive firemen and plaintiff were similarly qualified.

 The Court concludes on the basis of the trial evidence that plaintiff has failed to establish his side of the issue on these two factors and hence that he has failed to establish a prima facie case of discrimination. Plaintiff was not referred for testing because he had not received a positive recommendation from a supervisor, one of the requirements for promotion. As a consequence, therefore, plaintiff did not possess the threshold qualifications for the job: referral by virtue of an expression of interest and a positive recommendation from a supervisor. *fn24" Further, even assuming that plaintiff was qualified, the evidence produced at trial establishes beyond question that the minority candidates given the positions ahead of plaintiff were not only similarly qualified but were better qualified.

 Plaintiff's contention that the minority selectees were less qualified than he (as well as a part of his contention that he was himself qualified) rests primarily on the assertion that "road experience," or experience on the trains themselves as they run the tracks, was a requirement for promotion. *fn25" Plaintiff had road experience while some of the minority candidates promoted did not. Plaintiff's evidence on this point consisted only of testimony from several railroad employees to the effect that they believed road experience was required. *fn26" A number of B & O managerial personnel testified, however, that road experience was never a requirement; and none of the documentary evidence introduced indicates that road experience was ever required. In fact, prior to 1976, B & O even hired people off the street for locomotive firemen positions although they had no experience whatever with railroads. *fn27"

 Plaintiff argues that road experience is a logical requirement for the position of locomotive engineer, but the law only requires that an employer's choice of minimum qualifications not be a pretext for discrimination. *fn28" Clay v. Hyatt Regency Hotel, 724 F.2d 721, 725 (8th Cir. 1984); Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). There was no evidence at trial that B & O devised the minimum qualifications for locomotive engineer for the purpose of screening out white male candidates.

 While some of the minority applicants had no road experience, they did meet the other requirements: expression of interest, a supervisory recommendation, and successful completion of the appropriate tests. As long as the chosen candidates satisfied the minimum requirements -- as these candidates did -- it was not discriminatory for B & O to transfer them ahead of plaintiff as part of its affirmative action efforts. *fn29" See Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (6th Cir. 1985).


 In short, then, given that plaintiff did not possess all of the minimum requirements, while those selected for the position did, he has failed to make out a prima facie case. But even assuming that plaintiff did make out such a case, his claim of discrimination would still fail because B & O has successfully rebutted that prima facie case.

 To rebut a prima facie case of discrimination, B & O had the burden of showing that it had legitimate, non-discriminatory reasons for not transferring him. In that regard, the railroad claimed that the selection of minorities over him was pursuant to a legitimate affirmative action plan. *fn30"

 An affirmative action plan represents a legitimate basis for a failure to hire or promote a member of the majority race if the program is designed to eliminate conspicuous racial imbalance and it does not "unnecessarily" trammel the interests of white employees. United Steelworkers v. Weber, 443 U.S. 193, 208-09, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979).

 It is uncontroverted that the position of locomotive fireman on B & O Railroad has traditionally been dominated by white males. *fn31" See Van Aken v. Young, 541 F. Supp. 448, 457 (E.D. Mich. 1982), aff'd, 750 F.2d 43 (6th Cir. 1984). Several B & O management personnel testified that they were aware of the racial imbalance in their work force and that they developed an affirmative action plan to remedy that imbalance. The plan set hiring goals based on workforce analysis, availability analysis, and past hiring experience. In addition, the SMAs were instituted as part of B & O's affirmative action efforts. Thus, the first Weber criterion was clearly satisfied here.

 The evidence at trial also established that B & O's plan did not unnecessarily trammel the rights of white employees. White males were not precluded from transfer by the plan -- in fact, 82% of the locomotive firemen selected over the years since 1976 have been white. *fn32" Further, B & O's plan never required white or male employees to be fired in order to replace them with minority employees. *fn33" The plan focused on filling new job openings with minority candidates, rather than firing existing employees to create employment opportunities for minorities. Finally, as noted, B & O has never successfully met its hiring goals -- approximately 10% of the hires for the position since 1976 have been minorities. The modest hiring goals set, together with the low number of minorities actually hired, can hardly be said to have "trammeled the interest of white employees." *fn34"


 Plaintiff also argues that even if the affirmative action plan itself is proper under Weber, B & O unlawfully discriminated because it strayed outside the boundaries of the plan in order to hire minorities. Where a plaintiff seeks to prove discrimination in the context of an affirmative action plan, he must show that any infirmities or deviations were the result of the defendants' purposeful maintenance or administration of the plan as a pretext for discrimination. Hunter v. St. Louis-San Francisco Ry. Co., 639 F.2d 424, 426-27 (8th Cir. 1981). In this respect, plaintiff claims that B & O impermissibly waived or manipulated some of the testing requirements for certain transfer candidates. *fn35" A review of the evidence does not support plaintiff's claim on two bases.

 First. B & O provided reasonable nondiscriminatory explanations where minimum testing requirements were waived. In a few instances testing was deemed unnecessary because of some special circumstance attending the transferee's application. For example, neither Francis Joura, a white male, nor John King Lee, a black male, were required to pass the tests because they had already been working as locomotive engineers elsewhere. *fn36" In other instances, the transfer of some applicants with what appear to be unsatisfactory scores is explained by the fact that B & O raised the minimum passing score in June 1977, yet continued to use the pre-June 10 passing rate for candidates who took the test prior to June 10. *fn37"

 Second. The discrepancies alleged by plaintiff benefitted white male applicants more often than minority or female applicants. For example, plaintiff claims that B & O waived test scores for eight transferees between 1977-1979. *fn38" None of those eight were women, and only three were black. *fn39" It would appear, then, that plaintiff is asking the Court to strike down an affirmative action plan as impermissibly discriminating against white males on the basis that there are irregularities in the plan which have inured to the benefit of white males more directly than to the benefit of minorities. This proposition must, of course, be rejected.


 Plaintiff also claims that he was retaliated against by B & O officials for complaining about the December 1976-January 1977 selections and his subsequent filing of EEO complaints. It is unlawful for an employer to discriminate against an employee because he has opposed what he reasonably believes to be discriminatory action by the employer. 42 U.S.C. § 2000e-3(a); 42 U.S.C. § 1981; see McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 790 (D.C. Cir. 1984); Goff v. Continental Oil Co., 678 F.2d 593, 598 (5th Cir. 1982). To establish a prima facie case of retaliation, a plaintiff must show: (1) that he exercised rights conferred or protected by Title VII; (2) that he received adverse treatment from the employer contemporaneously with or subsequent to such exercise; and (3) that a causal connection exists between the exercise of rights and the adverse action. Williams v. Boorstin, 213 U.S. App. D.C. 345, 663 F.2d 109, 116 (D.C. Cir. 1980).

 Plaintiff claims that B & O retaliated against him in the years following his complaint over the December 1976-January 1977 selections by refusing to transfer or consider him further for a locomotive fireman position, and by subjecting him to unwarranted disciplinary actions. There is no dispute that plaintiff exercised rights protected under Title VII or that he received adverse treatment in that he was subjected to a series of disciplinary actions and was never transferred to a locomotive fireman position. Plaintiff has not succeeded, however, in establishing any causal connection between the two, and his retaliation claim therefore must fail.

 It is plaintiff's theory that various railroad officials, most notably General Road Foreman Kirk, knew that plaintiff was pursuing a discrimination claim because of the December 1976-January 1977 selections and retaliated against him for pursuing that claim. His case regarding a causal connection rests largely on the telephone conversation he had in June 1977 with Kirk. As stated above, plaintiff called Kirk at home to complain that he had been discriminated against, and he surreptitiously taped the conversation. During the course of the conversation, Kirk expressed disapproval of plaintiff's projected lawsuits and some hostility towards plaintiff. While this is some evidence of retaliatory animus, when viewed with all the circumstances it does not establish a case of retaliation.

 First, despite Kirk's expression of disapproval of plaintiff's actions, *fn40" Kirk also promised plaintiff several times in the same telephone conversation that he would be considered for upcoming transfers and that he would be eventually transferred if he met the minimum qualifications. Moreover, Kirk did indeed refer plaintiff for testing in connection with the April 1978 job order, despite the fact that plaintiff still did not have a positive recommendation. Plaintiff was not transferred to the locomotive fireman position after Kirk's referral because he failed the Davis Reading test; neither Kirk nor any other railroad official had anything to do with that failure. *fn41"

 Plaintiff also claims that Kirk retaliated against him by not referring him for testing for the June 1977 selections, which occurred before he had failed the Davis Reading test. The evidence showed that Kirk divided his list of applicants into two halves because he had a disproportionately high number of applicants for a small number of slots. Plaintiff was placed in the bottom half because Kirk referred candidates who had positive recommendations ahead of him. In any event, plaintiff was referred on the very next job order along with the other eligible candidates not referred in the June order. The Court concludes that Kirk's decision to place plaintiff in the bottom half of a list of candidates to be referred for testing, when he was, in fact, referred on the next job order, does not amount to illegal retaliation.

 Moreover, B & O subsequently had another legitimate reason to conclude that plaintiff might not be a suitable candidate for transfer; he behaved in such a way as to provide B & O with a reasonable basis for believing that he was an abrasive and insubordinate employee. The evidence showed that plaintiff went over his superior's head on several occasions, called B & O managerial personnel at home repeatedly to complain about various matters, twice in succession countermanded a superior's order, and insisted on adhering to his own interpretation of the company rules against his supervisors' conflicting interpretations. *fn43" If plaintiff was indeed not treated with particular favor, it was doubtlessly on the basis of his personality rather than his race or sex.

 Plaintiff also claims that Kirk and other railroad officials retaliated against him by taking a series of unjustified disciplinary actions against him. However, the Court is convinced on the basis of the evidence that the disciplinary actions taken were justified and not related to plaintiff's discrimination claim. In most instances, plaintiff was charged with violations of company rules which were sustained by reviewing boards of inquiry. In addition, while the disciplinary actions were sometimes initiated by Kirk, plaintiff failed to establish that the B & O officials who investigated each charge, such as Stuart Stigall, a Trainmaster in Baltimore, or the members of the boards of inquiry, were aware that he was pursuing a discrimination claim. *fn44" Consequently, the Court finds that the defendants were not guilty of retaliatory action.

 For the reasons stated, judgment will be entered in all three actions in favor of defendant.

 August 8, 1986


 United States District Judge


 In accordance with the Opinion issued contemporaneously herewith, it is this 8th day of August, 1986

 ORDERED that judgment be and it is hereby entered in favor of defendant B & O; and it is further

 ORDERED that the complaints be and they are hereby dismissed.


 United States District Judge

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