Edwards v. Whatley

          OPINION AND ORDER

          KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE.

         Before 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 judgment.

         I. Procedural Background

         Mr. 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.

         On 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).

         On 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 Union Pacific.

         After 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).

         II. Factual Background

         Defendants 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.

         Mr. 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.).

         Mr. 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).

         Later, 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).

         Mr. 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)

         At Mr. 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.).

         Mr. 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).

         Mr. 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).

         Mr. 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.).

         Mr. 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).

         On July 26, 2011, Ms. Owens made the following notation in Union Pacific's system:

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).

         In a 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).

         Mr. 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).

         On Mr. 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).

         In 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).

         In 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 ...