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Killingsworth v. Union Pacific Railroad Co.

United States District Court, E.D. Arkansas, Western Division

October 4, 2016




         Clifton J. Killingsworth brings this action against Union Pacific Railroad Company (UPRR) alleging discrimination and retaliation in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Arkansas Civil Rights Act of 1993 (ACRA), Ark. Code Ann. § 16-123-101 et seq. Killingsworth alleges UPRR discriminated against him because of his race-African American-and retaliated against him for his having opposed discriminatory practices.

         Before the Court is a motion of UPRR for summary judgment [doc.#8]. Killingsworth has responded in opposition to UPRR's motion and UPRR has replied to Killingsworth's response. For the reasons that follow, the Court grants UPRR's motion for summary judgment.


         Killingsworth was employed at UPRR's North Little Rock Jenks Shop. He was hired in August 2005 and later promoted into the position of machinist.

         On February 26, 2015, Killingsworth reported for his overnight machinist shift under the supervision of Lachina Jones, an African American female. During the shift, Jones asked Killingsworth to load a basket in the Proceco machine. Killingsworth refused this request and claimed that he did not know how to operate the machine, namely how to open its lid. Jones did not believe Killingsworth's alleged inability to perform the task and her disagreement with him went back and forth for some time. Killingsworth ultimately loaded the machine without incident upon learning, he states, that the lid was open.

         Jones emailed a report of Killingsworth's conduct to Gerald (or Jerry) Matella, Manager of Locomotive Maintenance, and Scott Funderburg, Third Shift Foreman. Matella forwarded the email to Robyn Hiatt, then-Assistant Director of Shop Operations. In the course of her subsequent investigation of Killingsworth's conduct, Hiatt reviewed written witness statements from Jones and three additional witnesses to the disagreement. Relying on the result of this investigation, Hiatt concluded that Killingsworth had been argumentative and dishonest with Jones. Hiatt and Don Thomas, Director of System Locomotive I, concluded that Killingsworth should be suspended and withheld from service pending the results of the formal investigation.

         On March 4, 2015, Killingsworth was advised by letter that he was being withheld from service pending a formal investigation. The letter informed Killingsworth that he was accused of violating Company Rule 1.6 Conduct Part (3): Insubordinate and Part (4): Dishonest. This code states that “[a]ny act of hostility, misconduct, or willful disregard or negligence affecting the interest of the company or its employees is cause for dismissal and must be reported. Indifference to duty, or to the performance of duty will not be tolerated.” The letter warned Killingsworth that substantiation of Jones's allegations could result in permanent dismissal and directed him to report for a formal investigation of the charges on March 17, 2015.

         In lieu of proceeding to a formal hearing, UPRR decided to offer Killingsworth reinstatement subject to a Leniency Agreement. The Leniency Agreement provided for an 18-month probationary employment period and required that, should Killingsworth engage in additional misconduct during this probationary period, his employment status would be reverted back to terminated without formal investigation. The Leniency Agreement stated that “Mr. Killingsworth acknowledges that he understands the importance of adhering to the instructions of his supervisors in addition to providing truthful and accurate information on a daily basis.” Killingsworth confirms that he understood the Leniency Agreement as well as the consequences of any future violations if he violated the code again. After consulting union representative Adam Lynch, Killingsworth, on March 19, 2015, decided to accept the Leniency Agreement and his employment was immediately reinstated. Killingsworth states he “in desperation” accepted the Leniency Agreement because it would ensure that he would receive income. Killingsworth states that UPRR knew he was concerned about providing for his family and used such knowledge to influence his decision.

         On July 1, 2015, Killingsworth arrived for his overnight shift around 11:00 p.m. and attended the line-up conducted at the beginning of each shift. Killingsworth states he doesn't remember if his supervisor, Kenneth Halpine, announced that a “town hall” meeting would be happening that shift (or simply didn't hear him make the announcement) but states he nevertheless was aware that a town hall meeting was scheduled for this shift as Halpine had mentioned it earlier in the week. Killingsworth states he assumed the town hall meeting, which he knew he was expected to attend, would be the same time it always was, which he states was 5:00 a.m. or 5:30 a.m.[1]

         Following line-up, Halpine directed Killingsworth to report to the load box area, which was supervised by Robert Franke, for a work assignment. Killingsworth arrived at the load box area around 11:30 p.m and states he told Franke that he would be working with him that night and that Franke replied, “Okay.” Killingsworth states he then “[s] at down and waited” while Franke was in his office. Killingsworth states that “[s]tandard procedure is we all sit and wait for him to go to his office, and return with a work assignment. That night he did not return with a work assignment, so between the hours of 11:30 and 1:00, I knew that he had no assignment for me that night ... Franke never saw me again, because he didn't have anything for me to do ... He made no effort, no contact, to reach out to me for an assignment ... So the entire shift, it was known that they [sic] was nothing for us to do.”

         At 1:00 a.m., Killingsworth left the load box area for a break without telling Franke he was leaving or where he was going. He states he then came back and, not seeing Franke, but without going to Franke's office, went to a unit-UP4009-outside of the load box “[b]ecause I was waiting on [Franke] to give me something to do.” However, Killingsworth discovered that the unit was “dead, ” meaning essentially there was no work to be done there. In any case, Killingsworth states he sat in the unit outside of the load box until right before 5:00 a.m. waiting for an assignment from Franke. During this time, Killingsworth never attempted to find supervisors Halpine or Franke, either to inform them of his location or the fact that he did not have a work assignment.

         Killingsworth states that shortly before 5:00 a.m. he reported to the Jinx shop for the town hall meeting that he assumed was at 5:00 a.m. but that no one was there. Killingsworth states he then went to see Halpine, who told him that he missed the meeting and that it started at 4:00 a.m. Killingsworth states he then asked Halpine if he had any work for him to do but that Halpine didn't. Killingsworth states that from 5:00 a.m. to 7:00 a.m. he stayed in Halpine's office and then went home. Killingsworth states he was informed by Amanda Carroll, Systems Engineer, that missing the town hall meeting was not a significant issue.

         Following his absence, Halpine and Franke emailed reports of Killingsworth's conduct to Matella. Matella forwarded these reports to Hiatt, who again investigated Killingsworth's conduct. Upon returning for a subsequent shift, Killingsworth was told to report to Matella's office. Killingsworth did so and, as Killingsworth and Matella waited for union representation to arrive, Killingsworth asked Matella why he was seemingly trying to ...

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