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Ismail v. United Transportation Union

United States District Court, E.D. North Carolina, Southern Division

April 27, 2015



W. EARL BRITT, Senior District Judge.

This matter is before the court on the motions for summary judgment, (DE ## 41, 43), filed by defendants CSX Transportation, Inc., ("CSXT"), and United Transportation Union, ("UTU"), plaintiff's motions to dismiss, (DE ## 56, 59), plaintiff's motion for extension of time to respond to defendants' reply briefs, (DE # 66), and CSXT's motion to strike plaintiff's response, (DE # 69). The issues raised have been fully briefed and are now ripe for disposition.


Plaintiff, who is an Arab Muslim of Palestinian descent, has been employed by CSXT, as a train conductor since 2008 and remains so employed. (Ismail Dep., DE # 44-2, at 46, 125-26.) He was initially assigned to work at CSXT's sub-district in Hamlet, North Carolina. (Id. at 48.) In June 2011, plaintiff voluntarily transferred to CSXT's sub-district in Wilmington, North Carolina.[1] (Id. at 64-65.)

At the time of his transfer to Wilmington, plaintiff was aware that the collective bargaining agreement ("CBA") between CSXT and UTU required a voluntary transferee to "qualify" as a conductor in his new sub-district on his own time without pay.[2] (Id. at 65-66.) In order to "qualify, " a conductor must take "at least one trip" on each of the lines of road within the territory with a more experienced conductor. (Def.'s Mem. Supp. Mot., Ex. D, DE # 42-7, at 1.) The CSXT training agreement indicates that "[t]he number of trips required on a train, ... will be determined by the transportation manager and will take into consideration whether the territory over which the person is being trained demands greater knowledge than the conductor has experienced in the past." (Id.)

On 8 August 2011, plaintiff sent an email to CSXT's Division Manager, Jermaine Swafford, entitled "Discrimination in Wilmington." (Def.'s Mem. Supp. Mot., Ex. C, DE # 42-6.) In the email, plaintiff stated that he had been wrongfully denied payment while qualifying in Wilmington. (Id. at 4.) He also claimed that he was required to spend a substantially longer time in qualifying status than newly-hired conductors despite him having more experience as a conductor. (Id.) Plaintiff identified CSXT Trainmasters Herbert Smalls and Donald Joyner, along with UTU's Local Chairman Todd McCrary, as the individuals who were "making it so hard for [him] to finish [his] qualifying and mark up." (Id. at 5.) Specifically, plaintiff noted that Smalls had failed to provide him with a qualifying schedule or program, and had repeatedly failed to return his calls and text messages concerning the qualification process. (Id. at 3-4.) Approximately 20 minutes after plaintiff sent this email to Swafford, Smalls contacted plaintiff via telephone and informed him that he had finished qualifying on the tracks within Small's section of the territory. (Ismail Dep., DE # 44-2, at 77.)

Subsequently, on 29 August 2011, plaintiff met with Swafford, CSXT Division Manager Bill Setser, Smalls, and McCrary to discuss his discrimination claims and overall concerns about the qualification process. (Id. at 61, 146-47; McCrary Declr., DE # 42-8, at 2.) At the meeting, Swafford concluded that the CBA was appropriately applied to plaintiff when he voluntarily transferred to Wilmington, that there could have been a communication issue between plaintiff and Smalls, and that no discrimination took place. (McCrary Declr., DE # 42-8, at 3.) With regard to plaintiff's qualifying status, Setser noted that even though plaintiff had qualified on the tracks within Small's section of the territory, he had yet to finish qualifying on the grain trains within Joyner's section of the territory. (Setser Declr., DE # 44-6, at 5-6.) Setser identified the grain trains plaintiff still needed to work and determined that if plaintiff was called to work on a grain train, he could take the job and qualify on that train, with pay, so long as he was accompanied by a qualified conductor to serve as pilot. (Id. at 6; Ismail Dep., DE # 44-2, at 111, 148.)

On 1 September 2012, plaintiff filed a discrimination charge against CSXT and United Transportation Union Local 1105, ("UTU Local 1105"), with the Equal Opportunity Commission ("EEOC"), alleging discrimination based on race, religion, national origin, as well as retaliation.[3] (DE # 42-9.) In his charge, plaintiff stated that he had been "denied assignment, not paid for training completed, and made to qualify for work for which others have not, " and that "the union has failed to represent [him] in a diligent fashion." (Id.) On 28 January 2013, the EEOC issued plaintiff a Notice of Rights to Sue. (DE # 42-11.) Plaintiff filed this action on 8 May 2013.


Plaintiff alleges that CSXT discriminated against him on the basis of his race, color, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., ("Title VII"), and 42 U.S.C. § 1981. In addition, plaintiff claims that CSXT subjected him to a hostile work environment in violation of 42 U.S.C. § 1981. Plaintiff also alleges that UTU discriminated against him because of his race, color, religion, and national origin in violation of Title VII.

A. Summary Judgment Motions

1. Standard of Review

Summary judgment shall be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Although the moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact, summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). When considering a motion for summary judgment, the court must view the facts and all reasonable inferences in the light most favorable to the non-moving party. Shealy v. Winston , 929 F.2d 1009, 1011 (4th Cir. 1991).

Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate with specific evidence that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986). "The nonmoving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment." Coleman v. United States , 369 F.Appx. 459, 461 (4th Cir. 2010) (citing Baber v. Hosp. Corp. of Am. , 977 F.2d 872, 875 (4th Cir. 1992)). The party asserting that a fact cannot be or is genuinely disputed must cite to particular materials in the record, including depositions, documentary evidence, affidavits and declarations. Fed.R.Civ.P. 56(c). "[T]he mere existence of some alleged factual dispute between the parties ...

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