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Drury v. Bnsf Railway Co.

United States District Court, D. Kansas

January 6, 2015

Michael G. Drury, Plaintiff,
BNSF Railway Company, Defendant.


J. THOMAS MARTEN, District Judge.

Plaintiff Michael Drury was employed by BNSF Railway until 2012 when he was fired. In the present action, Drury alleges, among other things, that BNSF terminated his employment because of his Native American ancestry, and in retaliation for his reporting discriminatory conduct by a supervisor in 2007. BNSF has moved for summary judgment on Drury's claims, [1] and the court grants the defendant's motion for the reasons set forth in this Order.

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Findings of Fact and Conclusions of Law

Drury was born in January, 1959. He describes himself as Native American as to race and as Seminole as to national origin, although he concedes that such status is not apparent from his physical appearance. He agrees that another person would know of his race and national origin only if they were told of it. In fact, Drury, who had been adopted, did not discover his own heritage until he was 21 years old.

BNSF hired plaintiff in August 1996 as a "scheduled, " or hourly, employee, working as an assistant signalman, and he held a variety of different positions within the signal department until 2001. Drury was promoted to Signalman, then to Signal Maintainer, then to Retarder Yard Specialist (Signal Electronic Technician).

It is uncontroverted that, over the ten years after starting with BNSF, Drury received a series of promotions, regular raises, bonuses and excellent performance reviews. There were no disciplinary write ups, performance plans or any other black marks of any sort on his performance record during that time period.

In June 2001, Drury applied for and received an exempt management position as a supervisor within the signal department, and in 2005, he moved to a job as a manager of special projects, also within signal.

In April 2006, when he was 47 years old, BNSF promoted Drury to senior manager of signal training at BNSF's Technical Training Center (TTC) at Johnson County Community College. The TTC gives mandatory and optional railroad-related training for employees and other individuals. At the beginning of his TTC assignment, Drury reported to Jeffrey Abbott, the general director of the TTC.

The parties dispute whether decision-makers at BNSF knew of Drury's heritage. BNSF stresses that the key decision makers in Drury's 2012 termination directly aver they were unaware of this heritage.

However, Drury points out that Scott Schafer - his supervisor at TTC, the position he was in immediately prior to his transfer to BNSF's Signal Division - testified that Drury's prior complaint about discrimination on the grounds of his ancestry was "common knowledge" at BNSF.

Drury states that he stays abreast of local Native American Indian events (pow wows) and attends as he can. He belongs to several affinity groups, in order to maintain contact with those in the American Indian community. During his work at BNSF, Drury had a high profile during his years working at BNSF as a representative of Native American Indian interests among employees and potential employees of the BNSF.

For example, from his hiring and for several years thereafter, Plaintiff worked at the Argentine Rail Yard in Kansas City, Kansas. Chuck Gerstner was the manager of signal and Plaintiff's second level supervisor for a time after Drury was hired. Drury avers that it was well known to most all of the employees at the yard that he was American Indian since he talked about it on numerous occasions during conversations.

Drury also states he was involved in the Council of Native Americans, the American Indian affinity group of employees within BNSF, and was asked to serve as a speaker and representative for the group. Schafer sent Drury as his representative to speak to the Choctaw Nation about railroad employment opportunities.

It is uncontroverted that Drury was asked to be the Secretary of the BNSF Council of Native Americans, but Schafer told him he could not accept, due to the time and resource commitments it would have required in Fort Worth, Texas.

Plaintiff also worked to get more American Indian participation in the NARS (National Academy of Railroad Science) training program at the TTC as well. His goal was to increase American Indian representation on the BNSF and to help dispel BNSF prejudices that Native Americans were lazy and useless.

Drury states that he worked to dispel bias and prejudice against Native Americans whenever he encountered it at BNSF.

Drury states in his affidavit that he explained to Golder that he was American Indian and that he believed the issues involved cultural misperceptions and it was not a work ethic issue. Drury had heard the same type of disparaging stories about the American Indian work gangs before and made the same argument numerous times over his years at the BNSF.

BNSF claims that this affidavit statement directly contradicts Drury's deposition testimony.

Q. Did you disclose to Mr. Golder about your race and national origin being Native American and Seminole?
A. No. But once again, he would have had an opportunity to look at that on my profile.
Q. Did you ever hear Mr. Golder make any comments to indicate that he had any animus toward Native Americans or Seminole?
A. Not that I can recall, no, not right now.

Drury identified his Native American/Seminole race and national origin on his public employee officer profile at BNSF that was available for any of his supervisors to view. He states that anyone at BNSF who communicated with him by email would have seen that he subscribed to an American Indian affinity email group.

Drury avers that he frequently discussed his race and national origin with his co-workers, supervisors and managers over the years. Specifically, he states that spoke or wrote about his Native American race and Seminole national origin, his personal membership in various American Indian groups and causes to various BNSF managers, including Jeffrey Abbott, Scott Schafer, Lynne Joplin, Mark Schulze, Steve Klug, Carl Ice, John Shook, Calvin Hobbs, Dwight Golder, Chuck Gerstner, Ralph Young and Jim LeVere.

Drury knew when he began his exempt employment that BNSF had written policies that prohibited discrimination and harassment on the basis of race, national origin, sex and age, as well as retaliation against employees for exercising rights protected by the policies. He knew he could report concerns about discrimination to the human resources department, and by 2007 or 2008 he also knew BNSF had a hotline for such concerns.

In late 2006 or early 2007, Drury (then 48 years old) raised allegations of age discrimination and retaliation against Abbott. Drury complained directly to Abbott, and also to other management officials, including assistant vice presidents of signal and training and human resources, and BNSF's chief operating officer.

These events arose after Drury had been in TTC only a few months. In introducing Drury around the TTC, Abbott identified two workers as "old raisins" who were "bitter" about changes in the department. Drury claimed that Abbott told him he "was supposed to go after one of [his] employees and find something to fire him for because he was old and [Abbott] wanted him out." Further, according to Drury, at one time in 2007 Abbot had asked him to get his "Big Chief notebook" for a meeting. Drury also said that another worker, Jesus "Nacho" Quintero, a friend of Abbott, had described Indians working in BNSF's Southwest division as "lazy and a bunch of drunks, or something... along those lines."

In September of 2006, Drury was interviewed by HR personnel in connection with an age discrimination claim filed by one of the TTC employees. During this interview, Drury told the HR representatives he believed Abbott was biased against older workers and Native Americans.

Calvin Hobbs, BNSF Assistant Vice-President and Abbott's supervisor, later conducted a meeting about the Abbott matter in which he indicated that HR had forwarded "exact quotes" of the interviewees. According to Drury, HR had assured him that his discussion of Abbott's conduct would be kept confidential, and he became concerned that he might be the subject of retaliation by Abbott.

Drury contends that after he expressed his concerns about discrimination, Abbott retaliated by issuing Drury an unsatisfactory performance evaluation, with an overall rating of "needs improvement, " prompting Drury to voice additional concerns to management officials and to appeal the performance rating.[2]

Specifically, on or about January 17, 2007, Drury met with Calvin Hobbs to discuss his concerns. Hobbs "acknowledged that [another manager] had [also] expressed his concerns about the seeming improprieties with the PMP process as conducted by Jeffrey and the indications of retaliation against the BNSF staff." HR Manager Dane Freshour forwarded Drury's concerns about retaliation to Carl Ice (then Chief Operating Officer, now CEO), Steve Klug (then and now Assistant Vice President of Human Resources for Operations), John Shook (then Director of Human Resources) and Mark Schulze (then and now Vice President of Operations and Safety). Klug is Assistant Vice-President of Human Resources for the Operations Department of BNSF, a position he has held since approximately 1997 or 1998, and he was the top HR decision maker involved with Plaintiff from the time of his initial complaints of discrimination in 2006-2007 until his demotion in 2011 and his termination in January 2012.[3]

Freshour wrote that "we ought to intervene in this year[]s [PMP] process."

One of the persons whose performance rating was reduced was Ricky Bell. Bell complained to HR that he felt Abbott was retaliating against him because he "answered the [HR] questions [about Abbott] honestly."

Shortly afterwards, Abbott met with Drury about his year-end PMP. Abbott did not give Drury a copy of the written review, but "wanted to read the PMP to [Plaintiff]." In contrast to his mid-year review, the new review rated Drury as needing improvement in 4 out of 5 major areas, and placed Drury on a performance improvement plan (PIP) Abbott rated Drury as needing improvement in the two critical officer performance benchmarks of Leadership and on the Overall rating-in the BNSF vernacular, this is called "NI/NI" and is often the death knell for an employee's career at BNSF.

Drury told Abbott that he believed this improper rating was retaliation against him for his complaints, and that Abbott's "derogatory comments about American Indians, older workers and now this situation should be intolerable in any work location."

On January 19, 2007, Drury spoke with Hobbs to discuss whether the negative PMP rating was made in retaliation. Hobbs told Drury that he should start looking for another job, because "the senior executives of the BNSF are much younger than [Drury] and will be around longer than [Drury]."

The next day, January 20, 2007, Drury filed a formal written appeal of this performance rating and sent it to HR. Drury described in great detail his concerns about Abbott's discrimination and the retaliation against him. He wrote that Abbott discriminated against Native Americans, making "racial slurs directed at [Plaintiff's] heritage"-including comments such as "get your Big Chief tablet and come in here." Drury also reported concerns about other managers referring to Native American railroad workers in his presence as "Drunken Indians" and expressed that this contributed to a hostile and discriminatory environment at the TTC.

During February, 2007, BNSF removed Abbott from his management position. Schulze responded to Drury's appeal, stating that Drury's overall performance rating had been changed from "needs improvement" to "on target." He added that Drury's rating in the area of leadership remained a "needs improvement, " and wrote that he had instructed Drury's new supervisor, Calvin Hobbs, to prepare a Performance Improvement Plan ("PIP") for Drury.

However, Schulze also wrote that Drury had "demonstrated multiple actions that have been detrimental to the TTC mission" including "not demonstrating support for leadership positions with which you may not personally agree." Therefore, Schulze concluded, Drury would still be rated as Needs Improvement in Leadership, and he would be placed on a PIP.

According to Drury, Klug told him that he needed to change his ways or he would be fired and threateningly told him that your "future is in your hands now."

Drury told Hobbs and Klug the continued NI Leadership rating and the alleged lack of "support" reflected continuing retaliation and discrimination. The same day, Drury sent a supplemental letter to the EEOC detailing this meeting with Klug and Hobbs and his ongoing concerns.

On March 12, 2007, Hobbs gave Drury a PIP. After determining that all suggested actions or goals for performance improvement were in fact already accomplished, Drury emailed John Shook in HR, raising his complaint that the PIP was further retaliation against him. Drury wrote that he would "be happy to sit down and show you the inconsistencies, mistakes, and falsehoods that are present within this PIP."

On March 14, 2007, Drury emailed Carl Ice, then Chief Operating Officer of BNSF, currently the CEO, complaining that the Schulze letter and PIP constituted illegal retaliation against him in violation of the law and BNSF policies. He stated he "would be surprised if the BNSF legal department had any input into either the PIP, or Mr. Schulze[s] letter to [Plaintiff] given the inflammatory nature of each." He also wrote that "instead of congratulating me for having the courage to follow the BNSF Code of Conduct and bring these unethical and illegal practices to light, I am now being persecuted for following the ethical and legal course of action."

Later that day, Shook called Drury at Ice's direction. According to Drury, Shook was dismissive and sarcastic about Drury's complaints. In contrast, Ice wrote to Drury on March 14, stating he was "aware of the situation" and "we certainly have taken and will take your concerns seriously."

Shook wrote to Ice that "Mike's behavior has crossed the line: he is very combative, arrogant and his compliance with Calvin's instructions is malicious at best."

Ice responded to Shook that same day, March 14, 2007, and stated "given your comment that he has crossed the line and his reluctance to or refusal to work to improve I think we get input [from] legal team and decide our next steps."

Shook then wrote to Schulze, stating, "I could not believe how insolent and defiant Mike was. He stated he was merely standing on principle, and even compared himself and the situation to Rosa Parks... can you believe it?... Per Carl's instructions I'm working with the folks in legal."

In March, 2007, Drury filed a Charge of Discrimination alleging retaliation. Although he received a right-to-sue letter regarding the 2007 Charge, he does not ...

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