United States District Court, E.D. Arkansas, Western Division
JEFFERY L. EDWARDS PLAINTIFF
MONTY WHATLEY and UNION PACIFIC RAILROAD DEFENDANTS
OPINION AND ORDER
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE.
the Court is defendants Monty Whatley and Union Pacific
Railroad's (“Union Pacific”) motion for
summary judgment (Dkt. No. 33). In response, plaintiff
Jeffery L. Edwards filed a motion to certify and response to
motion for summary judgment (Dkt. No. 59). Defendants replied
(Dkt. No. 62). The Court invited the parties to brief certain
issues raised by the Court related to Mr. Edwards' claims
and the pending motion for summary judgment (Dkt. No. 63). In
response to that Order, and while the motion for summary
judgment was pending, Mr. Edwards filed motions for leave to
file an amended complaint (Dkt. Nos. 64, 66). For the
following reasons, the Court denies Mr. Edwards' motions
for leave to file an amended complaint (Dkt. Nos. 64, 66).
The Court determines that the Railway Labor Act, 45 U.S.C.
§ 151 et seq. (“RLA”), preempts and
precludes Mr. Edwards' claims and, therefore, dismisses
with prejudice Mr. Edwards' complaint. The Court denies
as moot defendants' motion for summary judgment and
denies as moot Mr. Edwards' motion to certify (Dkt. Nos.
33, 59). Even if this Court were to consider Mr. Edwards'
claims, the Court would deny his motion to certify, would not
permit him to relitigate issues already decided by the
National Railroad Adjustment Board (the “NRAB”),
and therefore, would grant defendants' motion for summary
Edwards originally filed this case in the Circuit Court of
Jefferson County, Arkansas, against defendants Mr. Whatley
and Union Pacific alleging race discrimination and
retaliation under Title VII of the Civil Rights Act of 1963
(“Title VII”), 42 U.S.C. § 2000e et
seq.; 42 U.S.C. § 1981; and the Arkansas Civil
Rights Act of 1993 (“ACRA”), Ark. Code Ann.
§ 16-123-101 et seq. (Dkt. No. 1). When this
action was originally filed, Mr. Edwards was the only named
plaintiff. Defendants removed the case on the basis of
federal question jurisdiction. See Edwards v. Whatley, et
al., No. 4:12-cv-00747-DPM (E.D. Ark. Nov. 29, 2012).
The Court dismissed Mr. Edwards' federal claims in the
original action and remanded the case to state court.
March 31, 2014, Mr. Edwards filed an amended complaint in the
Circuit Court of Jefferson County, Arkansas, against Mr.
Whatley and Union Pacific alleging race discrimination and
retaliation in violation of the ACRA (Dkt. No. 3,
¶¶ 15, 19). The amended complaint also added claims
for a second plaintiff, Anthony Stokes (Id., ¶
1). On December 28, 2015, Mr. Edwards and Mr. Stokes filed a
second amended complaint that alleged ACRA claims on behalf
of Mr. Edwards and Mr. Stokes and added claims under 42
U.S.C. § 1981 on behalf of Mr. Edwards and Mr. Stokes
(Count 1), a retaliation claim under the ACRA on behalf of
Mr. Stokes in addition to the retaliation claim under the
ACRA already alleged by Mr. Edwards (Count 2), and a claim
under the Family and Medical Leave Act (“FMLA”),
29 U.S.C. § 2601, et seq., on behalf of Mr.
Edwards (Count 3) (Dkt. No. 16, ¶¶ 15, 21-28). With
the addition of these federal claims, defendants removed the
case based upon federal question jurisdiction (Dkt. No. 1).
September 29, 2016, the Court granted defendants' motion
to sever and ordered Mr. Stokes severed from this action
pursuant to Federal Rule of Civil Procedure 21 (Dkt. No. 20).
Mr. Edwards later filed a motion to dismiss and remand (Dkt.
No. 29). Before the Court ruled on that pending motion to
dismiss and remand, Mr. Whatley and Union Pacific filed a
motion for summary judgment, addressing Mr. Edwards'
federal and state law claims (Dkt. No. 33). The Court
granted, in part, and denied, in part, Mr. Edwards'
motion to dismiss and remand: the Court dismissed with
prejudice Mr. Edwards' federal law claims under 42 U.S.C.
§ 1981 and the FMLA at Mr. Edwards' request, but the
Court retained supplemental jurisdiction over Mr.
Edwards' remaining state law claims (Dkt. No. 41).
Accordingly, at this time, the only remaining claims pending
before the Court are Mr. Edwards' race discrimination and
retaliation claims under the ACRA against Mr. Whatley and
reviewing the summary judgment filings, the Court invited the
parties to brief the issue of whether the Court has
jurisdiction to hear Mr. Edwards' remaining ACRA claims
(Dkt. No. 63). Mr. Edwards filed a motion and brief arguing
that the Court has jurisdiction, and the defendants responded
in opposition (Dkt. Nos. 64, 67). Mr. Edwards also filed two
motions for leave to file an amended complaint (Dkt. Nos. 64,
66). Defendants oppose those motions (Dkt. No. 68).
filed a statement of undisputed facts (Dkt. No. 35). Mr.
Edwards filed a signed response to defendants' statement
of undisputed facts (Dkt. No. 60). The following facts are
taken from defendants' statement of undisputed facts,
unless otherwise noted.
Edwards began working at Union Pacific as a
brakeman/switchman in June 2002, and he was an engineer from
September 2005 until his discharge in August 2011 (Dkt. No.
60, ¶ 1). Mr. Edwards took multiple leaves of absence
for various reasons, and Mr. Whatley, the Superintendent,
never denied Mr. Edwards' requests for a medical leave of
absence or an extension of a leave (Id., ¶ 2).
Defendants argue that Mr. Edwards knew that, when he needed
to take leave, his first step was to contact his manager and
inform the manager that leave was needed. Then he would
complete paperwork to be put on an approved leave of absence,
which protected his job seniority (Id., ¶ 3).
Mr. Edwards denies that he ever had to contact his immediate
manager when he sought leave; rather, he asserts that he went
to “Health and Medical” whenever he needed a
leave of absence (Id.).
Edwards took four months of leave between May and September
2004, two months of leave between December 2005 and February
2006, and six months of leave between July 2006 and January
2007 to care for his father (Id., ¶ 4). Mr.
Edwards took another year off of work from September 2009
until September 2010 due to purported mental health issues
after a dispute on the telephone with a crew dispatch caller
from Union Pacific's Crew Management Services
(“CMS”) (Id., ¶ 5). Mr.
Edwards' temporary productive work assignment expired on
September 22, 2010, at which point Mr. Edwards went back on a
leave of absence for three more months, until December 2010,
when he returned to full active duty at Union Pacific
(Id., ¶ 6). Mr. Edwards filed a
“Discrimination Claim” complaining about the fact
that he was removed from “light duty” in
September 2010, though this claim is not alleged in the
operative complaint and therefore is not before this Court
(Dkt. No. 33-1, at 71).
due to a purported off-duty injury to his heel, Mr. Edwards
began “laying off sick” on May 31, 2011, on Union
Pacific's online system that tracks employee availability
for work and dispatch (Dkt. No. 60, ¶ 7). Mr. Edwards
testified that his status between May 31, 2011, to June 15,
2011, was “laying off sick.” (Dkt. No. 33-1, at
22). Mr. Edwards further testified that, while he was laid
off sick between May 31 and June 15, 2011, he continued to
get calls from CMS to come to work (Id., at 22). Mr.
Edwards also stated that he gave a copy of his MRI
appointment to manager Bob Tannehill (Dkt. Nos. 33-1, at 22;
60, ¶ 8).
Edwards asserts that, on June 12, 2011, he told Mr. Tannehill
that CMS kept calling him and that Mr. Tannehill needed to
change Mr. Edwards' status (Dkt. Nos. 33-1, at 22, 60,
¶ 8). According to Mr. Edwards, Mr. Tannehill said that
he would take care of it and, if CMS called Mr. Edwards
again, that Mr. Edwards should just let a manager know (Dkt.
No. 60, ¶ 8). Mr. Edwards contends that Mr. Tannehill
“knew [Mr.] Edwards was having to have an MRI and that
surgery was likely.” (Id., ¶ 9)
Edwards' June 15, 2011, appointment, his doctor scheduled
a tendon repair surgery for June 22, 2011 (Dkt. No. 33-1, at
23). Mr. Edwards testified that he spoke to Bob Tannehill on
June 15, 2011, and told him that he would need to change his
status to medical leave of absence (Id., at 24). On
June 23, 2011, the day after his surgery, CMS called Mr.
Edwards to come to work (Dkt. Nos. 33-1, at 24; 60, ¶
8). Mr. Edwards told them that he could not do so (Dkt. No.
33-1, at 24). Mr. Edwards hung up on CMS' computerized
calls and was eventually connected with a live individual
(Id.). Mr. Edwards testified that he told that
individual that he had surgery the day before and would
“be down for at least a couple of months.”
(Id., at 25). According to Mr. Edwards, the CMS
representative said he would put Mr. Edwards “down for
a 72-hour leave.” (Id.). Mr. Edwards responded
that “it looks like I'm going to have to have a
medical leave of absence.” (Id.). Mr. Edwards
testified that the “next day or a couple of days later,
CMS called me again to come to work.” (Id.).
According to Mr. Edwards, he said or thought: “And here
we go again. Y'all [CMS] just called me the other day,
and I told you I'm in a cast and on crutches.”
(Id.). In response, according to Mr. Edwards, CMS
told Mr. Edwards that “you're going to have to
apply for a medical leave of absence.” (Id.).
Edwards testified that, on July 1 or July 2, 2011, he then
called the manager's office in Pine Bluff, Little Rock,
and Omaha (Id.). He admits that, at this time, CMS
was still calling him to come into work (Id.). Mr.
Edwards testified that, on July 1 or July 2, 2011, he
contacted a CMS Manager and told him that he had spoken with
his manager in Little Rock and had been told that “they
were gonna put me in medical leave of absence status to keep
you all from calling me.” (Id.). Mr. Edwards
also testified that he told the CMS manager that “I
assume they hadn't done it.” (Id.).
According to Mr. Edwards, the CMS manager said, “Okay,
Mr. Edwards, it looks like we have to do it.”
(Id., at 26). According to CMS' records, Mr.
Edwards was in “LS” status from July 2 to August
2, 2011 (Id., at 74). Mr. Edwards testified that he
knew how to check his status on the computer but that he did
not because he assumed that he had spoken with an individual
who would change his status to medical leave of absence
(Id., at 34).
Edwards also testified that, around July 1, 2011, he
attempted to call manager Joe Murphy, and Mr. Murphy called
him back (Id., at 30). Mr. Edwards testified that he
“informed [Mr. Murphy] that CMS keeps calling me to
come to work and what do I need to do.” (Id.).
Mr. Edwards testified that he could not remember what Mr.
Murphy said to him during this conversation (Id.).
Mr. Edwards' phone call with Mr. Murphy is not included
in the self-authored timeline of events provided by Mr.
Edwards (Id., at 73).
Edwards presents an affidavit attached to his response to
defendants' motion for summary judgment which says that
“I contacted Joe Murphy . . . and discussed my need for
leave and the fact that I was on crutches.” (Dkt. No.
59, at 47). In that same affidavit, Mr. Edwards avers that he
“called Mr. Whatley's office, 501-373-2110, twice
on 7/26/11, as proven by my phone bills attached as Exhibit
1. I made these contacts, so I would not be absent for more
than 30 days.” (Id.).
Edwards further testified that, on July 15, 2011, he called
Terry Owens, the “Return to Work Manager, ” and
told her that he had surgery, that he would be in the cast at
least until his next doctor's appointment, but that he
might then be put in a boot and would need to get situated
for light duty at that time (Id.; Dkt. No. 60,
¶ 12; Dkt. No. 33-1, at 26). Mr. Edwards further
testified that Ms. Owens did not ask him to send her any
medical records or other information at that time (Dkt. No.
33-1, at 26). Mr. Edwards also asserted that he told Ms.
Owens that his next doctor's appointment was set for July
25, 2011 (Id., at 27). Mr. Edwards' doctor's
appointment was postponed until July 26, 2011 (Id.).
Mr. Edwards testified that, that same day, he called Ms.
Owens and asked her what medical records she needed
(Id.). Mr. Edwards further testified that he put Ms.
Owens on the phone with the doctor's receptionist, at
which point they had a 10-minute conversation (Id.).
The receptionist then made copies of the needed records and
provided them to Mr. Edwards (Id.). Mr. Edwards told
Ms. Owens that he would provide the records to her, and she
replied, “I'll start working on you from this
end.” (Id.). Mr. Edwards admits that Ms. Owens
is not an operations manager or one of Mr. Edwards'
supervisors (Dkt. No. 60, ¶ 13). Ms. Owens testified
that she spoke to Mr. Edwards' managers, but she could
not confirm whether those conversations occurred before
August 2, 2011 (Dkt. No. 33-3, at 3).
26, 2011, Ms. Owens made the following notation in Union
EE began calling me on 7/18 or so not leaving any information
other than to call him. I returned his call on 7/19 and
received his VM. I got a call from him on 7/21 and when I
returned his call I got his VM. I left [a] message for him to
leave details for me since I do not seem to be able to reach
him. H left VM for me on 7/25 that said he had surgery on
7/22 and wanted to look into TPW. I called and left VM on
7/26 relating that I would need medical documentation to
review, told him my availability for the day and would set
him up in TPW as appropriate. Looking at his work history, ee
hasn't worked since 5/31. He has LS mostly but from
6/23-6/30 he was in FL IE. Not sure he certified this FL.
(Dkt. No. 33-2, at 1). Ms. Owens received Mr. Edwards'
medical record paperwork on August 4, 2011 (Dkt. No. 60
¶ 14). On August 4, 2011, Ms. Owens made an additional
notation in Union Pacific's system:
I received medical from the EE on 8/3 and I sent the notes to
OHN for TPW. Last ee and I talked I had requested medical on
7/26. As I sent the medical I learned ee went into AWOL
status on 8/2. I talked to him today after searching for any
medical faxed to me from him between 7/26-8/2. I saw no
medical received. I was going to request MLOA until his next
MD visit and backdate the MLOA to first date of this
treatment on 6/2/11. He said he had faxed the medical on 7/26
from the MD office (which is the date of the light duty
release) . . . . I have explained that although medical is
sent and received by a health and medical person such as RTWM
or OHN, it does not necessarily protect seniority unless the
medical was timely and able to be handled by appropriate
medical staff to allow MLOA or FMLA. I suggested that he must
always keep his manager updated. His MOP is Bruce Landrum. I
suggested he talk with his MOP and if he needs verification
that I had talked with ee on 7/26 and that I had received
medical on 8/2 I would verify. However, I told him I could
not send his medical documentation to his manager. He will
contact his manager. I also told him the dates in question
[were] 7/2-8/2 the 30 days he seemingly did not
“protect” with operations. He does have
documentation that he was seen by MD on 7/26 which is within
this time frame. I cannot help any further until he gets his
AWOL status cleared.
(Dkt. No. 33-2, at 1).
letter dated August 2, 2011, sent by Mr. Whatley to Mr.
Edwards, Mr. Whatley informed Mr. Edwards that “[o]ur
records indicate that you have not performed service since
July 1, 2011, therefore, you are absent without leave.”
(Dkt. No. 33-1, at 64). Mr. Whatley testified that Mr.
Edwards was fired because “[h]e was AWOL, absent
without leave, for a period equal to or greater than 30
days.” (Dkt. No. 33-4, at 3). He further testified
that, to keep from being fired, Mr. Edwards needed to
“[w]ork within that 30-day period or have some sort of
approved leave.” (Id.). Mr. Whatley testified
that he receives data on employee absences, on a weekly
basis, from CMS (Id., at 4-5). Mr. Whatley further
testified that the “30-day AWOL” policy is
spelled out in the collective bargaining agreement
(Id., at 6-7). Mr. Whatley recalled that he was told
that Mr. Edwards “had not spoken to his manager during
that 30-day [period] . . . .” (Id., at 8). Mr.
Whatley further testified that the collective bargaining
agreement requires communication with a supervisor or manager
and that communication with Ms. Owens would not qualify if an
employee was trying to let Union Pacific know that he or she
would be absent (Id., at 11-12).
Whatley testified that Mr. Murphy “could be” an
appropriate manager for an employee to contact if that
employee wished to be put on approved leave (Id., at
12). Mr. Murphy was a transportation manager, so he was an
appropriate person with whom to speak, according to Mr.
Whatley (Id., at 13-14). Mr. Whatley also testified
that Ms. Owens did not know that Mr. Whatley decided to
terminate Mr. Edwards (Id.). Further, according to
Mr. Whatley, Mr. Murphy did not speak to Mr. Whatley about
Mr. Edwards, although Mr. Whatley conceded that, if Mr.
Murphy had spoken to Mr. Edwards, Mr. Murphy should have told
Mr. Whatley that he had spoken to Mr. Edwards (Id.,
at 13-14). Finally, Mr. Whatley testified that Mr. Murphy
“probably” knew that he was considering
terminating Mr. Edwards (Id., at 14). Mr. Whatley
concluded, however, that neither Ms. Owens nor Mr. Murphy
told him that they had been in contact with Mr. Edwards
(Id., at 12-13).
Edwards' behalf, his union, the Brotherhood of Locomotive
Engineers and Trainmen, challenged Union Pacific's
decision to terminate Mr. Edwards (Dkt. No. 33-5). On August
1, 2014, the NRAB ruled against Mr. Edwards, finding that Mr.
Edwards' union failed to prove that Union Pacific
violated the collective bargaining agreement when it
terminated Mr. Edwards for being absent without leave for
more than 30 consecutive days (Id., at 2).
2010, a fellow employee informed Mr. Edwards that another
employee drove a truck with a rebel flag on it (Dkt. No.
33-1, at 35). In February 2011, Mr. Edwards saw the vehicle
(Id., at 36). Mr. Edwards called manager
“Hatley” and reported the vehicle (Id.,
at 36-37). In response, Mr. Hatley said, “I was having
a good day until you brought me some bullshit like
this.” (Id., at 37). In May 2011, Mr. Edwards
saw the same truck with the same flag in the parking lot
(Id., at 38). He took a picture of the truck with
the flag and sent it to Yvonne Method-Walker, the director of
diversity (Id., at 39, 69). He also sent the picture
to William Turner and Mike Smith, the president of the Black
Employee Network (Id., at 39-40). Mr. Edwards sent
each of these individuals a “certified letter and a
copy of the conversation that depicted what had happened back
in February.” (Id., at 40). A copy of this
letter is included in the record (Id. at 68). A few
weeks later, Mr. Edwards received a call from Amy Bang, a
member of the “EEO department, ” and he told her
what had happened (Id., at 39-40). Later, Mr.
Edwards received a letter dated June 30, 2011, from Ms. Bang
which said that Union Pacific had identified the employee who
owned the vehicle in question and that the employee who owned
the truck had been counseled (Id., at 40, 70).
relation to his termination and this complaint about the
rebel flag, in his affidavit, Mr. Edwards states: “I
did the very same thing with my other leaves . . . . Contact
with CMS or the RTW manager like Ms. Owens was always good
enough for UPRR before I complained. Mr. Whatley had never
denied me a leave before I complained, and my managers had
always relayed the messages to the supervisor. After I
complained, that changed. It became difficult to get managers
on the phone. The only thing ...