Illinois Central Railroad Company v. Brotherhood of Locomotive Engineers and Trainmen

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ILLINOIS CENTRAL RAILROAD COMPANY * CIVIL ACTION

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VERSUS * NO. 20-1717

*

BROTHERHOOD OF LOCOMOTIVE

ENGINEERS AND TRAINMEN * SECTION “L” (3)

Before the Court are cross Motions for Summary Judgment filed on behalf of Petitioner

Illinois Central Railroad Company, R. Doc. 21, and on behalf of Respondent Brotherhood of

Locomotive Engineers and Trainmen, R. Doc. 20. The Court has reviewed the submitted

memoranda and the applicable law, and having heard oral arguments on the motions, now rules as

follows.

I. BACKGROUND

This case arises out of a dispute over the validity of an arbitration award issued under the

Railway Labor Act (“RLA”). The facts surrounding this matter are not in dispute. While off-duty

on May 19, 2019, Kenneth Ferris, a locomotive engineer employed by Illinois Central, visited the

home of another off-duty coworker. R. Doc. 19-1 at 2. The off-duty coworker was discussing

work-related matters with an on-duty coworker,1 who was in the crew room at the “old Depot”

along with two African-American coworkers. Id. Then, the off-duty coworker handed the phone

to Ferris who continued the conversation, and at one point, commented “Y’all some hardworking

[N-word]s, y’all get it done.” Id. The on-duty worker informed Ferris that he was on speakerphone,

to which he responded, “Oh well.” Id. The reactions of the on-duty employees were “described as

1 The on-duty employee with whom Ferris was speaking, Mr. Martinez, is not African American. R. Doc. 19-1 at 67.

offended, uncomfortable, and surprised.” Id. One of the African American coworkers filed a

complaint thereafter giving rise to this dispute. Id.

Ferris received notice of a formal investigation by the railroad on May 31, 2019 to

determine whether he caused “an intimidating, hostile or offensive atmosphere by verbally using

a racial epithet” or violated any Company rules, policies or the Code of Business Conduct in

connection with the incident. R. Doc. 19-1 at 122. A hearing was held on June 12, 2019. Id. at 137.

Ferris was represented by his union, Brotherhood of Locomotive Engineers and Trainmen (BLET).

On June 27, 2019, Ferris was found in violation of USOR H – Furnishing Information and

Conduct2 and the Code of Business Conduct3 and was immediately dismissed. Id. at 133. On

September 6, 2019, Illinois Central denied BLET’s appeal dated July 11, 2019. Id. at 145-149. A

formal conference was held on October 31, 2019 but no agreement was reached. Id. at. 151. As a

result, the parties submitted the dispute to PLB No. 7154 (“The Board”) in accordance with the

collective bargaining agreement.

Although the Board found that substantial evidence supported a finding that Ferris violated

Illinois Central’s Operating Rules and Code of Business, it ultimately determined that a penalty of

dismissal was “excessive.” R. Doc. 19-1 at 4. Instead the Board ordered that Ferris attend

“diversity sensitivity training” and be reinstated without backpay, as a time-served suspension. Id.

In making its determination, the Board found Illinois Central’s harassment policy was “broad

enough to cover off-duty conduct,” and that “there are sufficient facts to show a nexus between

the off-duty conduct and the workplace.” Id. Notably, the Board recognized that even though the

2 The relevant language of USOR Rule H – Furnishing Information and Conduct provides that employees are

“expected to be familiar with, read and be governed by the Company’s Code of Business Conduct and policies, and

understand how they apply to you and your job.” R. Doc. 19-1 at 124.

3 The Code of Business Conduct states the Carrier’s harassment policy: “Harassment is behavior or communications,

whether written or verbal, which a reasonable person would consider to cause offence of humiliation or affect the

dignity of a person and, in the context of employment, results in an intimidating, hostile or offensive atmosphere. At

CN, harassment is considered employee misconduct and is not tolerated.” R. Doc. 19-1 at 126.

comment was made to a non-African American, “a racial slur does not merely offend the person

so addressed, it offends all African American members of the workforce.” Id. However, the Board

was not persuaded that Illinois Central established just cause for the penalty of discharge in light

of Ferris’ almost twenty-four (24) years of service with no discipline on his record and no similar

incidents of misconduct. Id. The Board also considered Ferris’ apology to the complainant and the

complainant’s willingness to continue working with Ferris. Id.

Petitioner Illinois Central alleges that the arbitration award “violates . . . public policy

expressed in Title VII of the Civil Rights Act of 1964 . . . and the regulations of the Equal

Employment Opportunity Commission,” and as such, claims that the award should be vacated in

its entirety. R. Doc. 1 at 5. Additionally, Illinois Central seeks an award of costs “and any other

relief the Court deems just and proper.” R. Doc. 1 at 6. To date, Petitioner has yet to honor the

award and refuses to reinstate Ferris. R. Doc. 1 at 5.

Respondent BLET counterclaims against Petitioner to enforce Award No. 275 of PLB 7154

and to reinstate Ferris “and make him whole for all losses he has suffered [from the date of the

Award to the date of his reinstatement] plus pre-judgment and post-judgment interest on all

amounts he is due.” R. Doc. 3 at 8. Moreover, Respondent seeks an award of costs, attorney’s fees,

and “other and further relief as the Court may deem appropriate . . . .” R. Doc. 3 at 9.

II. PENDING MOTIONS

a. Illinois Central’s Motion for Summary Judgment [R. Doc. 21]

Illinois Central seeks summary judgment that the PLB 7154 arbitration award be vacated

because it violates the well-defined public policy requiring employers to prevent racial harassment

in the workplace. R. Doc. 21. Illinois Central characterizes this policy as having been established

by “Title VII and decades of case law interpreting Title VII and the EEOC’s regulations and

guidance.” Id. at 8. In particular, Illinois Central contends that the Board failed to account for

Ferris’ “incredibly cavalier attitude toward his use of such an offensive slur and how it could

impact his co-workers.” Id. at 6. Illinois Central argues that ordering the Carrier to reinstate Ferris

without taking into account the likelihood that he would repeat his use of such an offensive word

undermines the employers’ ability to prevent and sanction harassment in the workplace Id. at 11.

BLET opposes the motion and argues that there is no public policy exception to support

vacating an award that reinstated an employee, who on one occasion, made a racially insensitive

remark. R. Doc. 24 at 8. BLET argues that the conduct at issue in this case cannot rise to the level

of a Title VII violation because it fails under West v. City of Houston’s multifactor test that

considers the “severity” and “frequency” of the conduct and distinguishes “mere offensive

utterances” from “physically threatening or humiliating conduct.” Id. at 10. Accordingly, BLET

contends that Illinois Central failed to “produce even one case of authority that supports its

conclusion that the award may be vacated on public policy grounds.” Id. at 15.

b. BLET’s Motion for Summary Judgment [R. Doc. 20]

BLET argues that the arbitration award must be enforced because Ferris’ reinstatement

does not violate public policy. In support, BLET emphasizes the specific facts and circumstances

of this case, mainly that Ferris did not know he was on speakerphone. BLET insists that this

demonstrates Ferris never intended to make the racial slur in the presence of African American

employees; therefore, he cannot “possess a level of culpability that would merit termination” Id.

at 17-18. Further, BLET points to a myriad of cases which have held that the “mere utterance of

an ethnic or racial epithet” is insufficient to violate Title VII. Id. at 18 (citing Rogers v. EEOC,

454 F.2d 234, 238 (5th Cir. 1971)). BLET insists that Ferris does not regularly make comments

like this, on or off the job, and that his coworker’s willingness to continue working with him

demonstrates that he has not created a hostile environment. Id. Lastly, BLET argues that it is

entitled to reasonable attorney’s fees for its counterclaim for enforcement of the Award pursuant

to Section 3, First (p) of the RLA which provides fees for a “prevailing petitioner.”4 Id. at 24-25.

Illinois Central opposes the motion and contends that the law does not require it to establish

that Ferris’ reinstatement violates Title VII. R. Doc. 23 at 2. Instead, Illinois Central maintains that

it is sufficient to show that Ferris’ reinstatement violates the policy expressed in Title VII, which

prohibits the use of such racially offensive language and imposes an obligation on employers to

prevent harassment. Id. (emphasis added). Illinois Central also disputes BLET’s proposition that a

single incident cannot give rise to liability under Title VII, insisting there is “no magic threshold”

number of racially offensive incidents that create a hostile work environment. Id. at 4-7.

III. LAW & ANALYSIS

a. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment is proper

if “there is no genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P.

56(c)). A genuine issue of material fact exists if a reasonable jury could return a verdict for the

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). In ruling on a

summary judgment motion, a court may not resolve credibility issues or weigh evidence. See Int’l

Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). A court must assess the

evidence, review the facts and draw any appropriate inferences based on the evidence in the light

4 “If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order,

the petitioner, or any person for whose benefit such order was made, may file in the District Court of the United States

for the district in which he resides or in which is located the principal operating office of the carrier, or through which

the carrier operates, a petition setting forth briefly the causes for which he claims relief, and the order of the division

of the Adjustment Board in the premises...If the petitioner shall finally prevail he shall be allowed a reasonable

attorney’s fee, to be taxed and collected as a part of the costs of the suit.” 45 U.S. Code § 153(p).

most favorable to the party opposing summary judgment. See Daniels v. City of Arlington, 246

F.3d 500, 502 (5th Cir. 2001); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.

1986).

Summary judgment is particularly appropriate in this case because the parties do not

dispute the material facts found by the arbitrator. See the Stipulated Record, R. Doc. 19. The sole

issue for the Court is whether the arbitrator's decision to reinstate Ferris should be overturned as a

matter of public policy.

b. Judicial Review of Arbitration Award

“Judicial review of arbitration awards is extremely limited.” Weber Aircraft Inc. v. Gen.

Warehousemen & Helpers Union Local 767, 253 F.3d 821, 825–26 (5th Cir. 2001); see also Union

Pac. R. Co. v. Sheehan, 439 U.S. 89, 91 (1978) (recognizing that the scope of judicial review under

the Railway Labor Act is “among the narrowest known to the law.”) Federal labor law has

established an arbitration scheme that favors “private settlement of labor disputes without the

intervention of government.” United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 37

(1987); see also Steelworkers v. Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960) (noting that

“the federal policy of settling labor disputes by arbitration would be undermined if courts had the

final say on the merits of the awards.”).

There is, however, a legal exception developed by the jurisprudence which allows a court

to refuse to enforce an arbitration award under a collective-bargaining agreement if it runs contrary

to public policy. Misco, 484 U.S. at 468; E. Associated Coal Corp. v. United Mine Workers of Am.,

Dist. 17, 531 U.S. 57, 62, (2000). To fall within the scope of this exception, an arbitration award

must violate “some explicit public policy” that is “well defined and dominant, and [can] be

ascertained ‘by reference to the laws and legal precedents and not from general considerations of

supposed public interests.’” W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber,

Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 766 (1983) (quoting Muschany v. United

States, 324 U.S. 49, 66 (1945)). While the Supreme Court has “agreed, in principle, that courts'

authority to invoke the public policy exception is not limited solely to instances where the

arbitration award itself violates positive law,”5 it nevertheless has affirmed that “the public policy

exception is narrow and must satisfy the principles set forth in W.R. Grace and Misco.” E.

Associated Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S. 57, 63 (2000).

Courts have vacated arbitration awards ordering reinstatement “where the discharged

employees' conduct violated public policies while performing duties integral to their employment

and where reinstatement would have jeopardized public health or safety.”

Chrysler Motors Corp. v. Int'l Union, Allied Indus. Workers of Am., AFL-CIO, 959 F.2d 685, 689

(7th Cir. 1992); For example, public policy forbids the reinstatement of a railroad employee to a

safety-sensitive position in those cases in which the employee poses a significant risk to the public

because of the danger of future substance abuse. Union Pac. R. Co. v. United Transp. Union, 3

F.3d 255, 263 (8th Cir. 1993); see e.g., Amalgamated Meat Cutters & Butcher Workmen, Local

Union 540 v. Great Western Food Co., 712 F.2d 122 (5th Cir. 1983) (refusing to enforce award

ordering reinstatement of trucker caught drinking on duty).

The Supreme Court has made clear that the question in these labor cases is not whether the

employee's behavior violated some explicit public policy, but whether his reinstatement with

specified condition violates public policy. E. Associated Coal Corp., 531 U.S. at 62–63; see also

Weber Aircraft Inc. v. Gen. Warehousemen & Helpers Union Local 767, 253 F.3d 821, 826 (5th

Cir. 2001) (“The question to be answered is not whether [the employee’s] sexual harassment of

5 See id, (Scalia, J., concurring) (“It is hard to imagine how an arbitration award could violate a public policy,

identified in this fashion, without actually conflicting with positive law.”).

female co-workers itself violates public policy, but whether the CBA, which (as interpreted by the

arbitrator) provides for his reinstatement, does so.”) Thus, it is not for this Court to determine

whether Ferris’ utterance of a racial slur violated public policy; rather, the question is whether the

Board’s award reinstating Ferris after a year-long suspension does so.

c. Discussion

There is no question that the public policy against racial harassment in the workplace is

clearly defined and well-established. Title VII of the Civil Rights Act of 1964 protects employees

against discrimination in the workplace and “makes it unlawful for employers to require ‘people

to work in a discriminatorily hostile or abusive environment.’” 42 U.S.C. §2000e-2; West v. City

of Houston, Texas, 960 F.3d 736, 741 (5th Cir. 2020) (quoting Gardner v. CLC of Pascagoula,

L.L.C., 915 F.3d 320, 325 (5th Cir. 2019) (internal citations omitted). To prove a hostile work

environment, a plaintiff must show that he 1) belongs to a protected group; 2) was subjected to

unwelcome harassment; 3) the harassment complained of was based on race; 4) the harassment

complained of affected a term, condition, or privilege of employment; 5) the employer knew or

should have known of the harassment in question and failed to take prompt remedial action.

Frazier v. Sabine River Auth. Louisiana, 509 F. App'x 370, 374 (5th Cir. 2013); Septimus v. Univ.

of Houston, 399 F.3d 601, 611 (5th Cir. 2005). An employer will be liable for racial harassment

by co-workers if it “‘knew or should have known’ about the harassment and ‘failed to take prompt

remedial action.’” West, 960 F.3d at 741 (quoting Ramsey v. Henderson, 286 F.3d 264, 268 (5th

Cir. 2002)); see also 29 C.F.R. § 1604.11(d).

Courts consider the totality of the circumstances in determining whether a hostile

environment exists under Title VII. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116

(2002). Relevant factors include “the frequency of the discriminatory conduct; its severity; whether

it is physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510

U.S. 17, 23 (1993)). Racial harassment must be “severe or pervasive” enough to alter the

conditions of the victim’s employment and create an abusive working environment. E.E.O.C. v.

WC&M Enterprises, Inc., 496 F.3d 393, 399 (5th Cir. 2007) (citing Harris., 510 U.S. at 20-21);

see also Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d 864, 872 (9th Cir. 2001) (internal

citations omitted) (“The required level of severity or seriousness varies inversely with the

pervasiveness or frequency of the conduct.”). A single incident of harassment may be sufficiently

severe to give rise to a claim in some instances, while a continuous pattern of much less severe

incidents of harassment may be pervasive enough to violate Title VII in other cases. Melvin v. Barr

Roofing Co., 806 F. App'x 301, 309 (5th Cir. 2020)

The Court recognizes that Ferris’ use of this racial slur was “highly offensive and

demeaning.” The Fifth Circuit has described this term as “perhaps the most offensive and

inflammatory racial slur in English, ... a word expressive of racial hatred and bigotry.” Vess v.

MTD Consumer Grp., Inc., 755 F. App'x 404, 408–09 (5th Cir. 2019) (citation omitted).

Accordingly, the Board was correct in finding Ferris guilty of violating Illinois Central’s Operating

Rules and Code of Conduct. R. Doc. 19-1 at 4.

Rather than sanctioning this conduct, the Board made clear that this is behavior that is not

tolerable in any workplace. Id. Even though Ferris’ was addressing non-African Americans, the

Board emphasized that “a racial slur does not merely offend the person so addressed, it offends all

African American members of the workforce.” Id. Most importantly, the Board took corrective

action and mandated that Ferris participate in racial sensitivity training and be reinstated without

backpay as a time served suspension. Id. This meant, in actuality, that Ferris was suspended

without pay for a year.

In rendering its award, the Board considered the totality of the circumstances, including

the facts giving rise to the complaint, Ferris’ twenty-four years of service without any prior history

of similar conduct, and the willingness of the complainant to continue working with the Ferris.

The Board also highlighted Ferris’ efforts to seek out his coworker to apologize, and complaint’s

acceptance of the apology. Id. For these reasons, the Board found that the railroad had not

sufficiently demonstrated “just cause for the penalty of discharge.” Id.

It is not the Court’s role to substitute its own judgment for that of the arbitrator. See United

Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 43 (1987) (emphasizing that

“there is no broad judicial power to set aside arbitration awards as against public policy”); United

Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 598–99 (1960) (stating that a court

may not overrule an arbitrator's interpretation of a contract merely because the court would have

interpreted it differently). Although “reasonable people can differ as to whether reinstatement of

discharge is the appropriate remedy,” there is no dispute that “both employer and union have

agreed to entrust this remedial decision to an arbitration.” E. Associated Coal Corp. v. United Mine

Workers of Am., Dist. 17, 531 U.S. 57, 67, (2000). Particularly when it comes to “formulating

remedies”, the Board brings an “informed judgment to bear in order to reach a fair solution of a

problem.” Enterprise Wheel & Car Corp., 363 U.S. at 597.

The Board determined that under the totality of the circumstances, a time-served

suspension rather than discharge was an adequate sanction for Ferris. While the Court certainly

does not condone Ferris’ behavior, his reinstatement in accordance with the arbitration award does

not run contrary to any dominant, well-defined public policy. Accordingly, the Court must affirm

the arbitration award in light of the facts and circumstances of this particular incident.

d. Award of Fees

Section 3, First (p) of the RLA provides that “[i]f the petitioner shall finally prevail he shall

be allowed a reasonable attorney’s fee, to be taxed and collected as a part of the costs of the suit.”

45 U.S.C. § 153, First (p). As a counter-petitioner seeking compliance with a Board order, Ferris

is entitled to reasonable attorney’s fees and costs under this provision, which applies “whether the

request for court-ordered compliance is made by way of a separate action or by means of a

counterclaim to a petition for review.” Burlington N. Inc. v. Am. Ry. Sup'rs Ass'n, 527 F.2d 216,

222 (7th Cir. 1975); see also Norfolk & W. Ry. Co. v. Bhd. of Ry., Airline & S. S. Clerks, Freight

Handlers, Exp. & Station Emp., 657 F.2d 596, 603 (4th Cir. 1981). This comports with

Congressional intent in the Railway Labor Act to “redress the imbalance in the wealth of the

parties” so that individual employees and unions would not be discouraged from enforcing its

rights because of the expense of litigation outweighed the value of the award. Burlington N. Inc.,

527 F.2d at 222. Therefore, Ferris is entitled to reasonable attorney’s fees in accordance with the

Railway Labor Act. The amount of these fees will be determined at a later date.

BLET also requests damages for the period during which Illinois Central did not comply

with the arbitration award. R. Doc. 3 at 8. Given the Board’s decision that Ferris is to be reinstated

as a time served suspension, it is clear Ferris is not entitled to backpay from the date of the

dismissal on June 27, 2019 to the date Ferris was ordered to be reinstated on June 28, 2020. R.

Doc. 19-1 at 4. However, to date, Illinois Central has not complied with the Board’s decision,

despite the arbitration order that the Carrier “make the Award effective on or before 30 days

following the postmark date that Award is transmitted to the parties.” Id. at 5. BLET plausibly

argues that since Ferris was entitled to reinstatement on June 28, 2020, he deserves to be made

whole and should be awarded backpay for the period of his employer’s noncompliance. In some

instances, an arbitrator will account for contingencies such as legal challenges to the award. See

e.g., United Steelworkers of America v. New Idea Farm Equipment Corp., 917 F.2d 964, 969 (6th

Cir. 1990). In this case, the Board did not address the possibility of delay in Ferris’ restatement

due to Illinois Central challenging its decision. Therefore, the Court remands the issue of backpay

for this period to the Board to resolve the ambiguity. Marshall Durbin Companies, Inc. v. United

Food & Commercial Workers Union, Local 1991, 254 F.3d 1081 (5th Cir. 2001) (per curiam)

(unpub.) (describing remand as the “best course of action” when the backpay issue was

ambiguous); Glass, Molders, Pottery, Plastics & Allied Workers Int'l Union, AFL-CIO, CLC,

Local 182B v. Excelsior Foundry Co., 56 F.3d 844, 849 (7th Cir. 1995) (remanding the issue of

backpay to the arbitrator when the employee was not reinstated because the award was challenged).

VI.CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Respondent Brotherhood of Locomotive Engineers and

Trainmen’s motion, R. Doc. 20, is GRANTED. Respondent must submit a request for attorney’s

fees together with supporting documentation indicating time spent and nature of work performed

for the Court’s review within 14 days of this Order. See LR 54.2. Petitioner may submit any

objections within 7 days thereafter.

IT IS ORDERED that the Award in case no. 275 of PLB 7154 is AFFIRMED. Illinois

Central must comply with the terms of the Board’s award and reinstate Kenneth Ferris as soon as

practicable. The issue of backpay is REMANDED to the arbitrator to determine whether backpay

is warranted for the period of the Carrier’s noncompliance.

IT IS ALSO ORDERED that Petitioner’s Illinois Central Railroad Company’s Motion

for Summary Judgment, R. Doc. 21, is DENIED.

New Orleans, Louisiana on this 4th day of December, 2020.

i Co

UNITED STATES DISTRICT JUDGI

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