United States District Court, E.D. Arkansas, Western Division
CLIFTON J. KILLINGSWORTH, Plaintiff,
UNION PACIFIC RAILROAD COMPANY, Defendant.
OPINION AND ORDER
WEBBER WRIGHT UNITED STATES DISTRICT JUDGE
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.
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.
was employed at UPRR's North Little Rock Jenks Shop. He
was hired in August 2005 and later promoted into the position
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.
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.
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.
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.
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
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.”
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.
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.
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