Choice v. Csx Transportation

BRIEF/MEMORANDUM in Opposition Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment

M.D. Ala.March 3, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION JANEL W. CHOICE ) ) Plaintiff, ) ) Civil Action Number: v. ) ) 2:16-cv-00026-PCH-TFM CSX TRANSPORTATION ) ) UNOPPOSED Defendant. ) PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT COMES NOW the Plaintiff in the above-styled matter and submits the following brief in response to the Defendant's Motion for Summary Judgment. I. INTRODUCTION The Plaintiff, Janel W. Choice, (hereinafter “Plaintiff” or “Choice”) filed this lawsuit alleging that CSX Transportation (hereinafter “Defendant” or “CSX”) discriminated against her on the basis of race, sex, and disability in the terms and conditions of employment and retaliated against her when she reported and/or opposed such discriminatory acts. The Defendant denies that it discriminated against the Plaintiff in any shape, fashion or form and also denies that it subjected her to any retaliation. At issue here then is the Defendant’s decision to terminate the Plaintiff’s Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 1 of 33 2 employment. The Defendant alleges that the decision to terminate Choice's employment was made in response to her violation of its anti-workplace violence policy. It is undisputed that Choice made the threatening statements to her mother regarding Pacey, however, it is also undisputed that these statements were not made while Choice was at work, and nor were they made by Choice to any of the Defendant’s employees. It is equally undisputed that white male employees violated the Defendant’s anti-workplace violence policy and were not terminated. The Defendant claims that the incidents are not comparable, however, the Plaintiff says differently and claims that the Defendant terminated her because of her race, sex, and/or disability by applying one set of rules for white males and another for her, an African-American female. The Plaintiff also challenges the Defendant’s refusal to explore her request for a reasonable accommodation in accordance with the ADAAA. Finally, the Plaintiff alleges that CSX allowed its managers to retaliate against with impunity for years before her termination. The Defendant denies any such retaliation occurred. Therefore, basic credibility choices must be made here that are the province of a jury and summary judgment is due to be denied. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 2 of 33 3 II. FACTUAL ALLEGATIONS A. Choice’s Begins Working at CSX Transportation Choice began her employment with CSX on or about October 20, 2005 as a Field Clerk. [Choice Decl. ¶1]. She worked out of the CSX terminal located in Montgomery, Alabama. [Choice Decl. ¶1]. Her job duties consisted of hauling crews from one part of the CSX train yard to the other, entering payroll, ordering supplies, and light cleaning. [Choice Decl. ¶1]. During my employment, she was a member of the Transportation Communications Union. [Choice Decl. ¶1]. In her almost nine-years of employment with CSX, Choice was never the subject of any disciplinary action. [Choice Decl. ¶1]. As Field Clerk, Choice was supervised by Terminal Managers and Terminal Trainmasters. [Choice Decl. ¶2]. From 2008 until 2011, David Harris [white male] was her Terminal Manager, from 2011 until 2013 Phil Logan [African-American male] was her Terminal Manager, and, from 2103 until her termination in March 2014, Bobby Franklin [white male] was her Terminal Manager.[Choice Decl. ¶2]. From September 2011 until her termination, Jeff Pacey [white male] was her Terminal Trainmaster. [Choice Decl. ¶2]. B. Racial/Gender Discrimination and Harassment In 2009, after the election of President Barack Obama, the Defendants’ Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 3 of 33 4 managers and employees began to subject Choice and other African-Americans to a racially hostile work environment. [Choice Decl. ¶3]. For example, white co-workers would call Choice “girl”, when at that time she was thirty-eight years old. [Choice Decl. ¶3]. Terminal Manager David Harris, the highest ranking CSX employee at the terminal, expressed to Choice that she should smile more and when she didn’t he insinuated that she was an “angry black woman”. [Choice Decl. ¶3]. This is a derogatory racist stereotype propagated by the media and in popular culture that indicates that black women are “sassy” and emasculating. [Choice Decl. ¶3]. Also, LaGaria Rogers [an African-American co-worker] and Choice began to report seeing racially hostile graffiti and pictures in CSX's restrooms. [Choice Decl. ¶3]. Specifically, Rogers and Choice reported seeing the word “nigger” written in CSX’s bathrooms and graffiti depicting the lynching of a man. [Choice Decl. ¶4]. Harris was the Terminal Manager when this was occurring. [Choice Decl. ¶4]. Choice personally observed these offensive and threatening images because one of her assignments was to clean the restrooms. [Choice Decl. ¶4]. Rogers and Choice communicated their complaints to CSX officials and to its ethics hotline. [Choice Decl. ¶5]. No managers ever reported these incidents even though they used the same restrooms as the bargaining unit employees. [Choice Decl. ¶5]. CSX policies and procedures require that its manager report any such incidents Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 4 of 33 5 to the ethics hotline. [Choice Decl. ¶5]. Rogers and Choice never received any confirmation that their complaints had been investigated or that those responsible had been identified. [Choice Decl. ¶5]. On some occasions the graffiti was removed or painted over, only for it to reappear. [Choice Decl. ¶5]. No one from CSX ever came and expressed to its employees that it had a zero tolerance policy for this kind of behavior. [Choice Decl. ¶5]. No one was ever disciplined for any of these acts. [Choice Decl. ¶5]. Choice and other African-Americans were also subjected to racial discrimination in the assignment of job duties. [Choice Decl. ¶6; Rogers Dep. p. 15: ln. 20-p. 18: ln. 9]. CSX assigned Rogers and Choice trash pick-up and restroom cleaning duties almost exclusively, while white employees were allowed to skip such tasks or leave them for the next shift. [Id.]. Rogers and Choice made several complaints about being made to perform tasks that had originally been assigned to white employees. [Id.]. No corrective action was taken by CSX. [Rogers Dep. p. 18: lns. 10-15]. Conversely, when white female Trainmaster Laura Touchstone lodged a complaint against Terminal Manager Harris [white male], CSX’s labor relations personnel came the very next day to investigate the issue. [Rogers Dep. p. 34: ln. 13- p. 36: ln. 12]. Complaints of African-Americans were not treated with the same sense of urgency. [Id.]. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 5 of 33 6 On or around January 14, 2011, Choice lodged yet another complaint to the ethics hotline about Terminal Manager Harris. [Choice Decl. ¶7]. In that complaint Choice shared an incident where Terminal Manager Harris tried to intimidate her into signing a document she knew to be partially false. [Choice Decl. ¶7]. Choice explained that as a compromise, she signed her name to the parts of the document that were truthful and returned it to Harris. [Choice Decl. ¶7]. Harris became angry that Choice did not do as instructed and told her she had to attest that the entire document was true and correct. [Choice Decl. ¶7] Choice signed the document a second time, but added that she was signing under duress. [Choice Decl. ¶7]. Harris became enraged with Choice’s actions and demanded that she sign the document as requested. [Choice Decl. ¶7]. At this point Choice informed him that she wanted a Union Representative to witness this exchange. [Choice Decl. ¶7]. Choice placed a call to a Union Representative, however, before they could arrive, Harris made her go home. [Choice Decl. ¶7]. Choice’s complaint also expressed that Terminal Manager Harris did not treat black and white employees the same. [Choice Decl. ¶7]. After Choice made this report, Harris began to scrutinize her movements at work and made generally negative comments about her. [Choice Decl. ¶8]. He did not treat white and/or male employees in this manner. [Choice Decl. ¶8]. In or around September 2011, Jeff Pacey came on board at the CSX terminal Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 6 of 33 7 in Montgomery. [Choice Decl. ¶9]. Pacey’s position was Trainmaster. [Choice Decl. ¶9]. Choice was never introduced to Pacey and never had any meaningful interaction with him until February 3, 2012. [Choice Decl. ¶9]. On that day Choice was ferrying workers as she had always done and was cleaning up in between movements when Pacey confronted her in the Clerk's office. [Choice Decl. ¶9]. Specifically, Pacey approached Choice in an aggressive manner and began asking her questions about why she had not responded to some earlier radio calls. [Choice Decl. ¶9]. Every time Choice attempted to offer Pacey an explanation, he became irate and raised his voice. [Choice Decl. ¶9]. Pacey several times ordered Choice to “sit down” and threatened to send her home. [Choice Decl. ¶9]. Choice immediately sought help because she feared what Pacey would do next. [Choice Decl. ¶9]. Road Foremen Wayne Powe and Melvin Murray came to her aid and defused the situation. [Choice Decl. ¶9]. On or about November 21, 2013, Choice lodged an ethics complaint against Pacey because he attempted to initiate a confrontation with her over the company radio. [Choice Decl. ¶11]. Specifically, on November 20, 2013, Pacey accused Choice of refusing to pick up a crew of workers. [Choice Decl. ¶11]. Choice informed Pacey that she was not refusing to do her job and that she was following policy, which was to take assignments from CSX’s Yardmaster. [Choice Decl. ¶11]. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 7 of 33 1Choice also filed a complaint about the incident with CSX’s ethics hotline. [Doc.#42-6: ps. 19-23]. 8 Pacey then informed Choice that she had to follow his directives rather than CSX policy. [Choice Decl. ¶11]. During the exchange Choice backed down and did as Pacey instructed, which went against CSX policy. [Choice Decl. ¶11]. However, the next day Choice discussed the issue with Terminal Manager Franklin, who advised her that Pacey’s request was outside of CSX policy and he was out of line of communicating in that manner over the radio. [Choice Decl. ¶11]. Choice shared with Franklin that Pacey did not address white employees in this manner over the radio and that she felt he was discriminating against her.1 [Choice Decl. ¶11]. Choice continuously reported Pacey’s discriminatory and retaliatory treatment of her to CSX officials, however, it did not stop. [Choice Decl. ¶12]. Pacey would follow Choice around the train yard in his company issued vehicle observing her make pick-ups. [Choice Decl. ¶13]. He had no reason to do this other than to intimidate and harass her. [Choice Decl. ¶13]. Pacey was made aware of Choice’s November 21, 2013 complaint on November 26, 2013. [Doc.#42-6: p. 22]. C. Retaliation From November 22, 2013 to December 16, 2013 Choice was on medical leave and partial hospitalization due to work related stress. [Choice Decl. ¶14]. While she Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 8 of 33 9 was out, three complaints were filed on my behalf by TCU representative Matt Hollis regarding Pacey’s refusal to call the extra 3rd shift driver on Saturdays and Sundays [Choice] and instead calling a contractor to perform the duties on her rest days [Saturday and Sunday]. [Choice Decl. ¶14]. This is significant because per the collective bargaining agreement, if a Field Clerk is on his/her off day and work is required, that individual is to be called first and offered the opportunity to perform the work if the extra-board employees have exhausted their work days. [Choice Decl. ¶14]. This was an opportunity for the Field Clerk to earn extra money via over time. [Choice Decl. ¶14]. It was common knowledge to Pacey and others that Saturday and Sunday were Choice’s rest days as she had been working the job the same job that a white Field Clerk, Elizabeth Cherry, previously held. [Choice Decl. ¶15]. It was standard procedure to ask the Trainmaster for 3rd shift Saturday and Sunday if they needed a driver and if so, Choice was the Field Clerk to be called. [Choice Decl. ¶15]. Pacey would intentionally tell the Clerks to not call for a driver, but would then utilize a contractor to perform work for which Choice should have been called to perform, if she so desired. [Choice Decl. ¶16]. Cherry confronted Pacey regarding his actions and mentioned to him that when she was on the job [just 2 months prior] it was being called if needed on Saturday and Sunday and she was called first. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 9 of 33 10 [Choice Decl. ¶16]. Cherry also stated that the other Trainmasters were calling it correctly and why was he now calling it differently. [Choice Decl. ¶16]. Pacey advised her that he was calling it differently because “Janel was on the job”. [Choice Decl. ¶16]. Pacey intentionally denied Choice the opportunity to protect the work and make money on overtime. [Choice Decl. ¶17]. For this reason, the union filed claims on Choice’s behalf. [Choice Decl. ¶17]. On or about December 27, 2013, Terminal Manager Franklin sent a threatening email to Union Representatives LaGaria Rogers and Matt Hollis regarding Choice’s overtime claim which stated in part, “We talked about this and this is falsifying claims. Employees cannot input claims for jobs that are not there. I will be moving forward on this as we have talked about this and it is in fact false report and willful misleading and misuse of company assets.” [Choice Decl. ¶18]. Union Representative Hollis advised Choice that CSX had never threatened to discipline an employee for filing a claim for overtime. [Choice Decl. ¶19]. Hollis advised Franklin that this email was escalated up the ranks within CSX and that the Union had filed the claim on Choice’s behalf. [Choice Decl. ¶19]. Hollis also shared with Choice that CSX’s general practice was to either pay the claim or deny it, and if the latter occurred the Union would respond accordingly. [Choice Decl. ¶19]. White Field Clerks were not treated in this manner. [Choice Decl. ¶19]. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 10 of 33 11 On or about February 2, 2014, Choice learned that Pacey ordered Field Clerk LaShonda Howell not request that her rest day job be filled because no such position existed. [Choice Decl. ¶20]. By doing this Pacey again denied Choice an opportunity to receive overtime. [Choice Decl. ¶20]. Pacey was intentionally denying Choice the contractual rights of first refusal and to protect the work. [Choice Decl. ¶20]. Again, when Cherry, white female, had the position Pacey did not treat her in that manner. [Choice Decl. ¶20]. On February 5, 2014, Choice attended a regularly scheduled appointment with her therapist where she discussed Pacey's treatment of her. [Choice Decl. ¶21]. After this appointment Choice became so distraught that she called her mother and began venting to her that if Pacey’s treatment of her did not cease she would do him bodily harm. [Choice Decl. ¶21]. Choice’s mother became so afraid for her mental well-being that she called 911 and reported the call to the authorities. [Choice Decl. ¶21]. Choice also expressed to her mother that she understood how people felt who had reached the end of their rope with supervisors and contemplated violence as a solution. [Choice Decl. ¶22]. Pacey never made a direct threat to Pacey or any CSX employee. [Choice Decl. ¶22]. Choice’s mother called 911 to make a report on what she had expressed to her about Pacey’s continued harassment and retaliation and Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 11 of 33 12 its effects. [Choice Decl. ¶22]. The 911 operator, Choice and her were all on the call at the same time; however, Choice was not told of this fact until later. [Choice Decl. ¶22]. The 911 operator called CSX and informed it that Choice had made a threat against Pacey. [Choice Decl. ¶23]. Choice did not make a direct threat against Pacey as she had not even spoken to him and was off-duty. [Choice Decl. ¶23]. Nevertheless, she was terminated on March 13, 2014 for making a direct threat to harm Jeff Pacey, which she did not do. [Choice Decl. ¶23]. D. CSX Never Engaged in The Mandatory Interactive Process In October 2012, Choice was diagnosed with Major Depressive Disorder with Paranoid Occurrences. [Choice Decl. ¶10]. This diagnosis was directly attributable to the problems Choice was having at her job. [Choice Decl. ¶10]. Choice also informed CSX of her diagnosis, and asked for reasonable accommodations in the form of having her schedule adjusted so that she did not have to work with Pacey. [Choice Decl. ¶10]. Choice’s request was denied outright and CSX never explained to her its reasoning or basis for doing so. [Choice Decl. ¶10]. E. CSX Policies on Discrimination and Workplace Violence 1. Anti-Harassment/Discrimination CSX’s Anti-Harassment Policy prohibits any employee or supervisor from Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 12 of 33 13 harassing and/or discriminating against another employee through racial or ethnic slurs or subjecting an employee to any verbal, visual, or physical abuse relating to a person’s race, color, religion, sex, age, national origin, physical or mental disability, veteran’s status, sexual orientation, gender identity, genetic information, or any other basis protected by applicable federal, state, or local law or engaging in any behavior that interferes with maintaining a work place free of discriminatory intimidation. [Exs. 3 & 4-Anti-Harassment/Discrimination Policies]. Examples of harassment prohibited by CSX, include, but are not limited to: comments, slurs, negative stereotyping, or threatening, intimidating, or hostile acts that relate to race, sex, disability . . . or any other basis protected by applicable federal, state, or local law. CSX also policy also prohibited the dissemination written, graphic or taped material that demeans or shows hostility or aversion toward an individual or group because of race, sex, or disability. [Exs. 3 & 4-Anti- Harassment/Discrimination Policies]. All of CSX employees were expected to support its Anti-Harassment policy by reporting any violations. CSX policy also states that it had a zero tolerance for discrimination or harassment. [Id.]. 2. Violence in the Workplace Policy CSX’s anti-violence in the workplace policy, “prohibits threats or acts of violence against the Companies’ or non-employees doing business with CSX or while Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 13 of 33 14 on CSX property or in CSX-sponsored lodging. Violation of these rules, agreements, practices, or this policy by any employee may result in removal of the employee from the Companies’ premises and disciplinary action up to and including termination of employment.” [Ex. 5-Workplace Violence Policy]. The policy defines threats or acts of violence as, “any words or actions that create a perception of intent to harm persons or property at the workplace or that actually bring about such harm.” [Ex. 5- Workplace Violence Policy]. With regards to firearms, CSX’s anti-workplace violence policy states the following, “in accordance with longstanding rules and regulations and this policy, employees shall not bring onto CSX premises any guns, knives, or other dangerous devices or weapons, whether legally or illegally possessed. Employees shall not carry these items while on CSX premises or conducting CSX business.” [Ex. 5-Workplace Violence Policy]. CSX’s Director of Employee Relations testified that its anti- harassment/discrimination and anti-workplace violence policies applied across the board to all employees. [Mundy Dep. p. 49: ln. 24-p. 50: ln. 21]. F. White Males Who Violated Workplace Violence Policy It is indisputable that white male employees Scott Merrell and R. J. Fochtmann violated CSX’s workplace violence policy but were not terminated.]. Merrell Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 14 of 33 2Fochtmann’s actions earned him the nickname “pistol gripper” or “pistol ripper”. [Rogers Dep. p. 48: ln. 5-p. 49: ln. 1]. 15 threatened a co-worker by stating, “wait until I see you . . . I’m coming down there.” [[Mundy Dep. p. 46: ln. 2-p. 50: ln. 25; Rogers Dep. p. 41: ln. 21-p. 43: ln. 21; Rogers Dep. p. 46: ln. 18-p. 48: ln. 22]. Fochtmann brandished a handgun at hotel personnel while staying at the hotel on company business. [Mundy Dep. p. 40: ln. 5-p. 43: ln. 17]. Both Merrell and Fochtman admitted to these violations of CSX’s anti- workplace violence policies and were not terminated.2 Both of these incidents occurred while these individuals were on either CSX property or conducting CSX business. [Mundy Dep. p. 40: ln. 5-p. 43: ln. 17; Mundy Dep. p. 46: ln. 2-p. 50: ln. 25]. After almost nine-years of employment without a single disciplinary mark on her record, Choice was terminated for a single incident of threatened violence. [Choice Decl. ¶24]. Choice was never offered an opportunity to accept responsibility for her actions or waive her contractual right to a formal investigation and grievance in exchange for keeping her job. [Choice Decl. ¶24]. White employees [Scott Merrell and R.J. Fochtmann] who were accused of making threats of workplace violence and brandishing a firearm received the opportunity to accept responsibility for their actions and waive their contractual rights to a formal investigation and Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 15 of 33 16 grievance in exchange for remaining employed. [Choice Decl. ¶25]. III. SUMMARY JUDGMENT STANDARD In Hinson v. Clinch County, 231 F.3d 821 (11th Cir. 2000), the Eleventh Circuit set forth the applicable standard of review for summary judgment. “A court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weight the evidence." * * * "[T]he court should give credence to the ‘evidence favoring the non-movant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.'" Id. In other words, we must consider the entire record, but "disregard all evidence favorable to the moving party that the jury is not required to believe.” Id. (citations omitted; quotations from Reeves v. Sanderson Plumbing, 530 U.S. 133 (2000). IV. ARGUMENT A. Choice has a Disability Under the ADAAA of 2008. The implementing Regulations for the ADAAA clarify that its primary purpose ‘is to make it easier for people with disabilities to obtain protection under the ADA. 29 C.F.R. § 1630.1(c)(4).” Caporicci v. Chipotle Mexican Grill, Inc., 189 F.Supp.3d 1314, 1322-23 (2016). As a result, the definition of disability “shall be construed broadly in favor of expansive coverage.” A “disability” is defined as (1) a physical or mental impairment that substantially limits one or more major life activities, (2) a Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 16 of 33 17 record of such impairment, or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Caporicci v. Chipotle Mexican Grill, Inc., 189 F.Supp.3d 1314, 1322-23 (2016). “Major life activities” include concentrating, thinking, interacting with others, and working, as well as the operation of a major bodily function, such as neurological or brain function. 29 C.F.R. § 1630.2(i)(1)(i)-(ii).” Caporicci v. Chipotle Mexican Grill, Inc., 189 F.Supp.3d 1314, 1322-23 (2016). Furthermore, “the ADAAA emphasizes that ‘[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.’ 29 C.F.R. § 1630.2(j)(1)(ii). Caporicci v. Chipotle Mexican Grill, Inc., 189 F.Supp.3d 1314, 1322-23 (2016). In light of these principles, the Regulations specifically provide that “it should easily be concluded” that major depressive disorder “will, at a minimum ... substantially limit brain function.” 29 C.F.R. § 1630.2(j)(3)(iii). Choice suffered from Major Depressive Disorder, with Paraonoid Occurrences and as such has a mental impairment that substantially limits one or more major life activities. 1. CSX Discriminated Against Choice By Refusing to Reasonably Accommodate Her. CSX discriminated against Choice when it refused her request to adjust her shift so that she would not have to encounter Jeff Pacey. The ADAAA prohibits an Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 17 of 33 18 employer from discriminating against a qualified individual with a disability in virtually all areas of employment, including shift adjustments, unless the employer demonstrates the existence of an undue hardship. See 42 U.S.C. 12112(b)(5)(A) and (B) and 29 C.F.R. § 1630.9(a). In reasonable accommodation cases, the issues of intent or pretext are non-existent. Holly v. Clairson Industries, LLC, 492 F.3d 1247, 1262 (11th Cir. 2007)(“an employer's failure to reasonably accommodate a disabled individual itself constitutes discrimination under the ADA, so long as that individual is ‘otherwise qualified,’ and unless the employer can show undue hardship”); Nadler v. Harvey, No. 06-12692, 2007 WL 2404705, *4 (Aug. 24, 2007) (unpublished); Wright v. Hospital Authority of Houston County, 2009 WL 274148 (M.D.Ga.); Jones v. Georgia Dep't of Corr., 2008 WL 779326 (N.D.Ga.2008); Alexander v. TFM Boral Brick, Inc., 2008 WL 4951240 (M.D.Ala.2008); Allmond v. Akal Sec., Inc., 2007 WL 2904023 * 4 (M.D.Ga.2007). Once an employee has identified a reasonable accommodation, an employer may only prevail by demonstrating that the reasonable accommodation would constitute an undue hardship, as that term is defined under the ADAAA. CSX has the burden of proof on this issue. Willis v. Conopco Inc., 108 F.3d 282 (11th Cir. 1997) (“. . . undue hardship is an affirmative defense to be pled and proven by an ADA Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 18 of 33 19 defendant.”); Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1526 (11th Cir. 1997). The term “undue hardship” is defined as “significant difficulty or expense incurred by a covered entity.” See 29 C.F.R. 1630.2(p)(1) and (2). CSX does not even attempt to argue that the reasonable accommodations sought herein constituted any undue hardship. Why? Because there is not one scintilla of evidence to support the notion that restructuring Choice’s shift to lessen her contacts with Pacey would have caused any, let alone significant, difficulty or expense to CSX. Furthermore, the determination of a reasonable accommodation is broad and it expressly includes, inter alia, modifications to the manner in which a position is customarily performed, modified work schedules and reassignments. 29 C.F.R. 1630.2(o); Pritchard v. So. Co. Services, 92 F.3d 1130 (11th Cir. 1996); see also AKA v. Washington Hospital Center, 156 F.3d 1284, 1301 (D.C. Cir. 1998). Thus, CSX should have explored modifying Choice’s schedule to accommodate her, however, it chose not to do so. Again it has offered no evidence that doing so would have caused it significant difficulty or expense. Second, whether the shift modification would have benefitted CSX is not relevant because the standard is whether it would have caused any “undue hardship”. Again, no evidence of undue hardship has been presented. In short, CSX has failed Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 19 of 33 20 to put forth any credible evidence that it actually experienced any difficulties, or that the requested accommodation would have caused it any disruption. Choice’s accommodation request received no consideration, even though it was mandated by law. 2. Choice Requested a Shift Re-Assignment Because of Her Disability. Before an employer’s duty to provide a reasonable accommodation is triggered, the employee must make an adequate request thereby placing the employer on notice. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999). Here, it is undisputed that Choice asked CSX for a reasonable accommodation. Williamson v. Clarke County Dept. of Human Resources, 2011 WL 2680738 (S.D. Ala.)(to constitute an adequate request for an accommodation, at a minimum, the employee must request some change or adjustment in the workplace and must link that request to his disability). Clearly, Choice made an adequate request for accommodations. Once an adequate request for an accommodation is made, it is then the employer’s duty to engage in an “interactive process” with the disabled employee to determine whether and which reasonable accommodations are feasible. Crutcher v. Mobile Housing Board, 2005 WL 2675207 (S.D.Ala.). There was no “interactive Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 20 of 33 21 process” about any possible accommodations for Choice, other than the rejection of her requests for a shift re-assignment. In Barnett v. U.S Air, 535 U.S 391, 407 (2002), Justice Stephens concurring, explained that when confronted with a disabled person, the employer is supposed to engage in an interactive process: “The Court of Appeals also correctly held that there was a triable issue of fact precluding entry of summary judgment with respect to whether petitioner violated the statute by failing to engage in the interactive process concerning respondent's three proposed accommodation.” Barnett, at 407. CSX breached its duty to timely initiate the “interactive process” so as to determine a reasonable accommodation, choosing instead to deny Choice without explanation. 29 C.F.R. 1630.2(o). Benson v. Northwest Air Lines Inc., et al., 62 F.3d 1108, 1112 (8th Cir.1995); Willis v. Conopco, 108 F.3d 282, 285 (11th Cir. 1997). 3. Choice was Qualified to Perform the Essential Functions of Her Job. The ADAAA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8); 29 C.F.R. 1630.2(m); 29 C.F.R. 1630.2(n). Given that all the facts in the pleadings must be interpreted in the light most favorable to the Plaintiff, Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 21 of 33 22 and all inferences must be drawn in her favor, Plaintiff has undoubtedly sufficiently pled facts that she is a qualified individual under the ADAAA. By contrast, CSX contends that Choice’s threat to do Pacey bodily harm rendered her unqualified under the ADAAA. Defendant does so by attempting to unjustly paint Choice as a violent individual intent on killing her supervisor. Such a contention, however, is patently untrue. It quite clear that when viewing all the facts in a light most favorable to Plaintiff, she is a qualified individual with a disability. First, a disabled individual cannot be qualified for a specific job if he poses a “direct threat” to the health or safety of himself or others that cannot be eliminated by reasonable accommodations. 42 U.S.C. § 12111(3); see also Pinckney v. Potter, 186 Fed.Appx. 919, 925 (11th Cir.2006); Walton v. Spherion Staffing LLC, 152 F.Supp.3d 403 (2015). The ADAAA defines a “direct threat” as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3) and 29 C.F.R. § 1630.2(r). “A slightly increased risk, a mere speculative or remote risk is insufficient; there must be a high probability of substantial harm.” Equal Employment Opportunity Comm'n v. Hussey Copper Ltd., 696 F. Supp. 2d 505, 520 (W.D. Pa. 2010). None of these factors exists here. Choice’s emotional outburst occurred away from work and only manifested Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 22 of 33 23 itself after years of abuse, discrimination and retaliation by Pacey. Furthermore, Choice was venting to her mother when she made the comments about harming Pacey and was seeking help. There is no evidence that she was driving to the train yard to confront Pacey or that she had taken any steps to bring him harm other than venting to her mother and the 911 operator. Pacey was only made aware of Choice’s threat later. Further, nothing in Choice’s employment history suggests that she was capable of harming anyone as she had never been subject of any discipline other than the incident that led to her termination. Unlike the case cited by CSX, Choice did not actually directly threaten anyone. In fact, she was doing everything within her power not to pose a significant risk to others. Her depression caused her extreme internal turmoil, and she was seeking help from the only person she trusted, her mother. From the transcript of the 911 call, Choice is literally begging and crying for help. [Doc.#42-9: ps. 2-9]. CSX completely disregards these facts for the sake of securing a legal victory. In doing so, they rely heavily on Snider v. U.S. Steel-Fairfield Works Med. Dep’t., 25 F.Supp. 1361, 1367 (N.D. Ala. 2014). However, one need not look any further than the facts of Snider to see that CSX’s reliance is misplaced. In that case, after a confrontation where he was the aggressor, the Plaintiff threatened to kill an entire work crew. Snider, at 1364. As if that wasn’t enough, the Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 23 of 33 24 Plaintiff confronted the work crew the following day in the bathhouse. Id. The Defendant then instructed the Plaintiff to report to its medical director for a fitness for duty examination and noted that he “did not understand why he was here,” was initially “angry and confrontational,” displayed sadness regarding his mother-in-law's illness, had “personality disorder with some component of paranoia and aggressiveness,” and was “angry” upon learning that the medical director intended to refer him to the Defendant’s Employee Assistance Program. Id. Based on the medical directors’ evaluation, the Defendant temporarily disqualified the Plaintiff from work until he completed anger management training. Id. Subsequent to being referred for anger management training, the Plaintiff in Snider refused to cooperate with the Defendant’s medical director and his own physician regarding treatment. Snider, at 1364-65. Even going so far as to submit false information to the physician of his choosing. Id. With all of that, the Defendant was agreeable to putting the Plaintiff back to work under certain conditions that were refused, one being continue treatment with healthcare providers. Id. After this unsuccessful attempt to get him back to work , the Plaintiff visited the Defendant’s medical center to obtain copies of his medical records and exhibited “threatening behavior” that caused the receptionist to call security. Eventually, the Plaintiff was returned to work. Id. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 24 of 33 25 Choice’s case could not be more inapposite to Snider. As stated above, it is undisputed that she did not threaten Pacey in person, there is no evidence whatsoever that she formulated any plan to cause him harm, and her disciplinary history reflects no propensity for violence. Choice maintains, and the record reflects, that her actions did not constitute a “direct threat” and that she was a “qualified” individual under the ADAAA. Finally, whether Choice posed a “direct threat” presents a question of material fact because this whole episode could have been avoided with the reasonable accommodation of a shift re-assignment. Again, “the ADA defines a “direct threat” as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3). The “direct threat” could have been remedied with the reasonable accommodation of a shift re-assignment, which was never considered. Therefore, summary judgment with regards to Choice’s ADAAA claim is inappropriate. B. Race and/or Gender Were Motivating Factors in Choice’s Termination. The Eleventh Circuit has long held that , “the ultimate question in a disparate treatment case is not whether the plaintiff established a prima facie case or Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 25 of 33 26 demonstrated pretext, but ‘whether the defendant intentionally discriminated against the plaintiff.” Nix v. WLCY Radio/Rahall Commc's, 738 F.2d 1181, 1184 (11th Cir.1984). Thus, “the Plaintiff will always survive summary judgment if he presents circumstantial evidence that creates a triable issue concerning the employer’s discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Here, facts exist that raise a triable issue regarding whether CSX acted with discriminatory intent towards Choice making summary judgment inappropriate. For example, there is considerable evidence that Choice and other African-Americans lodged numerous complaints of discrimination and harassment with CSX only to have their concerns ignored or glossed over. These complaints concerned use of the term “nigger”, the depiction of a lynching and the racially discriminatory assignment of work related tasks. There is also credible evidence that CSX managers singled Choice out for unfair treatment based on her race and/or gender such as Harris calling her an “angry black woman” and Pacey denying her overtime that was regularly received by a white worker. CSX also subjected to the Plaintiff to harsher discipline than that received by white employees who violated its anti-workplace violence policy by threatening co-workers [Merrell] or brandishing handguns [Fochtmann] while attending to the company’s business. It is of little import that CSX tries to trivialize these incidents in their motion for summary judgment as their own Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 26 of 33 27 documents undercut any arguments that these actions fell outside of its anti- workplace violence policy. Thus, for these reasons alone summary judgment is improper with regard to Choice’s termination claim. 1. Choice Establishes a Prima Facie Case of Discrimination. To prove a prima facie case for a claim of discriminatory discharge, Choice must show: (1) she is a member of a protected class; (2) she was qualified for the job from which she was discharged; (3) that she engaged in misconduct similar to that of a person outside the protected class and the disciplinary measures enforced against her were more severe than those enforced against the other persons who engaged in similar misconduct. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1276 (11th Cir. 2008) (citing Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.1989). Here the Defendant contests the third element of the analysis and argues that Choice’s claim fails because she cannot demonstrate that a similarly situated, non-minority comparator exists. Defendant's contention is at odds with the great weight of the evidence present here making this case one that should be heard by a jury. First, a “similarly-situated” employee is one who “engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish his conduct or the employer's treatment of [him] for it.” Anderson v. Twitchell-A-Tyco, Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 27 of 33 28 76 F.Supp.2d 1279, 1286 (M.D.Ala.1999) (citation omitted). Although the comparator's conduct need not be identical to Choice’s, the “quantity and quality of the comparator's misconduct must be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999); Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001). There are no mixing apples with oranges here as Choice has pointed to two similarly situated white employees who were treated more leniently than her for violating CSX’s anti-workplace violence policy. Merrell and Fochtmann violated the Defendant’s anti-workplace violence policy while at work or on company business. Merrell threatened to physically assault someone at the job and Fochtmann brandished a handgun at hotel personnel while on CSX business. Conversely, Choice, while under extreme mental duress, made comments to her mother and a 911 operator about needing help with her thoughts of doing Pacey bodily harm. Basically, Choice suffered a mental breakdown brought about by Pacey’s treatment of her. Merrell and Fochtmann infractions were more severe than Choice’s because they occurred at work or while on company business. No one would have known about Choice’s breakdown if her mother, in attempting to get her help, had not called 911. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 28 of 33 29 CSX’s argument that Choice is dissimilar to Merrell and Fochtmann because they held different positions, reported to different supervisors, and were disciplined by different decision-makers is equally unavailing. First, the Eleventh Circuit has held that, “differences in job ranks between a plaintiff and another employee are not, in and of themselves, dispositive as to whether the two individuals may be compared for purposes of evaluating a discrimination claim.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008)(citing Lathem v. Dep't of Children & Youth Servs., 172 F.3d 786, 793 (11th Cir.1999) (different job titles not dispositive)). Second, Linda Mundy [Director of Employee Relations] testified that CSX’s Anti-Workplace Violence Policy applied equally to all of its employees. [Mundy Dep. p. 49: ln. 24-p. 50: ln. 21; Ex. 5-Workplace Violence Policy]. Finally, CSX’s contention that Choice could have remained employed had she simply accepted responsibility for her actions and waived her contractual right to a formal investigation and grievance sounds reasonable on the surface; however, under scrutiny it crumbles. Why? Because Choice never received any such opportunity. It is undisputed that CSX did not offer Choice any alternative to termination before she exercised her rights for a hearing under the collective bargaining agreement. Thus, CSX’s argument on this point is incredible and unworthy of belief, in other words falsum in uno, falsum in omnibus. Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 29 of 33 30 Based on the foregoing it should be held that Choice has produced similarly situated comparators and makes out a prima facie case. 2. CSX’s Articulated Reason For Choice’s Termination Is Pretextual. CSX's articulated reasons for terminating Choice-violation of its anti- workplace violence policy-is pretextual. For the reasons already stated above, CSX’s explanation for its action with regard to Choice and its inaction with regard to Merrell and Fochtmann are indicative of race discrimination. The undisputed evidence shows that CSX applied its anti-workplace violence policy in a discriminatory manner insofar as it bent the rules with regard to white employees. See, Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270, 1279 (11th Cir.2002) ( “The bending of established rules may, of course, be suggestive of discrimination.”); Rojas v. Florida, 285 F.3d 1339, 1344 n. 4 (11th Cir.2002) (“To establish pretext, a plaintiff must show that the deviation from policy occurred in a discriminatory manner.”); Bass v. Bd. of County Com'rs, Orange County, Fla., 256 F.3d 1095, 1108 (11th Cir.2001) (stating that employer’s violation of its own procedure could be evidence of pretext); accord Rudin v. Lincoln Land Community Coll, 420 F.3d 712, 727 (7th Cir.2005) (“An employer's failure to follow its own internal employment procedures can constitute evidence of pretext.”). Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 30 of 33 31 A reasonable jury could conclude that the Defendant's reason for terminating Choice was a pretext for discrimination. C. Choice’s Retaliation Claim Should Proceed to Trial. That CSX would attempt to confine Choice’s retaliation claim to her termination is understandable because the full scope of its retaliatory treatment of her would survive summary judgment. For example, CSX glosses over the fact that a reasonable jury could conclude that his denial of her right to work overtime was in retaliation for her many complaints of discrimination against him. Especially, since he was informed of her complaint against him on November 26, 2013 and denied her overtime on February 2, 2014, a scant nine-weeks later. Also, Choice is not foreclosed by the “but for” standard of causation from asserting a retaliation claim for her termination. The Eleventh Circuit has never ruled that a plaintiff cannot plead alternative theories of discrimination nor has it stated that a plaintiff must elect a theory to travel under at summary judgment. See, Savage v. Secure First Credit Union, 2016 WL 2997171 (11th Cir. May 25, 2016); Archie v. Home-Towne Suites, LLC, 749 F. Supp.2d 1308, n. 4 (M.D.Ala. 2010); DeAngelo v. Dentalez, Inc., 738 F.Supp.2d 572, 578 (E.D. Pa. 2010); Houchen v. Dallas Morning News, Inc., No. 08-1251, 2010 WL 1267221, at *3 (N.D. Tex. April 1, 2010); Siegel v. Inverness Med. Innovations, Inc., Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 31 of 33 32 No. 09-1791, 2010 WL 1957464, at * 6 (N.D. Ohio May 14, 2010); Belcher v. Service Corp., Int'l, No. 07-285, 2009 WL 3747176, at *3 (E.D.Tenn. Nov. 4, 2009). This Court should not do so either. For the reasons previously stated, Choice’s retaliation claim is due to be heard by a jury as well. V. CONCLUSION Premises considered, the Plaintiff respectfully requests that the Defendant’s Motion for Summary Judgment to be denied in its entirety and that this matter be set for trial. Respectfully Submitted, s/Roderick T. Cooks Attorney for Plaintiff OF COUNSEL: WINSTON COOKS, LLC The Financial Center 505 20th Street North Suite 815 Birmingham, AL 35203 Tel: (205)502-0970 Fax: (205) 278-5876 email: rcooks@winstoncooks.com Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 32 of 33 33 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document on all persons listed below by Electronic Mail as follows: Peter N. Farley, Esq. Igor Babichenko, Esq. McGuireWoods LLP Promenade 1230 Peachtree Street, N.E. Suite 2100 Atlanta, GA 30309-3534 T: +1 404.443.5623 F: +1 404.443.5680 pfarley@mcguirewoods.com Done this the 3rd day of March, 2017. /s/Roderick T. Cooks Of Counsel Case 2:16-cv-00026-PCH-TFM Document 48 Filed 03/03/17 Page 33 of 33