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Marshall v. BNSF Railway Co.

United States District Court, D. Kansas

October 16, 2019

Ervin J. Marshall, Jr., Plaintiff,
BNSF Railway Co., Defendant.



         Plaintiff Ervin J. Marshall, Jr. filed this lawsuit against his former employer, BNSF Railway Company, alleging discrimination, retaliation, harassment and constructive discharge in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. This matter is presently before the court on defendant's motion for summary judgment on plaintiff's claims (doc. 40). As will be explained, the motion is granted in part and denied in part.[1]

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Defendant BNSF Railway Company is an interstate Class I freight railroad and employs more than 40, 000 employees. Plaintiff Ervin J. “Joe” Marshall, Jr. began his employment with defendant in May 1977 as a bridge and builder helper based in Kansas City, Kansas. He was 20 years old at that time. At the time of his hiring, plaintiff was an hourly employee and a member of the union. Over the next thirty years, plaintiff worked in a variety of hourly positions for defendant in its Structures Department, which is part of the railroad's Engineering Department and is responsible for maintaining defendant's structures, including bridges.

         In August 2007, plaintiff bid for and was chosen for a salaried position as a Scale Inspector, which was also in the Structures Department. The Scale Inspector position was headquartered in Kansas City, Kansas, but required work across the country in terms of testing, repairing and working on industrial scales that were used to weigh rail cars. Plaintiff was the only Scale Inspector employed by defendant and no other employee had the same job duties as plaintiff. In July 2014, plaintiff's job title changed to “Supervisor, Scales, ” although the title change did not impact his job duties or responsibilities. Throughout this time, plaintiff's performance was consistently rated as satisfactory and the record reveals no issues with plaintiff's performance.

         In June 2015, when plaintiff was 58 years old, defendant informed him that his position was being moved from the Heavy Bridge team to the Facilities team, both of which were within the Structures Department. The change in teams did not impact plaintiff's job title, geographic base of employment, compensation or benefits. The change, however, required a change in plaintiff's supervisor. In Facilities, plaintiff began reporting to Joseph Buelt, Manager of Engineering, who was also new to the Facilities team. Mr. Buelt, in turn, reported to Dwayne Curbow, Director of Facility Engineering. Plaintiff testified that he believed that Mr. Buelt was approximately five years younger than plaintiff and that Mr. Curbow's age was “really close” to plaintiff's age. Plaintiff was the oldest employee in Facilities.

         Shortly after his assignment to the Facilities team, Mr. Buelt, without explanation, advised plaintiff to turn in the car keys for his company-owned vehicle and to turn in his company “Procard, ” a card that plaintiff was able to use in case of an emergency or a “maintenance situation” to make timely purchases of materials while testing scales. Plaintiff does not know whether any other employees on the Facilities team had a company-owned vehicle or access to a Procard. Mr. Buelt also instructed plaintiff that, as an exempt employee, he should no longer be performing manual labor on scales. According to plaintiff, the decision to take away plaintiff's company-owned vehicle and Procard significantly impaired plaintiff's ability to do his job and indicated that Mr. Buelt and Mr. Curbow did not fully understand the nature of plaintiff's job. He testified that Mr. Curbow, on plaintiff's first day in Facilities, told him “we'll find something for you to do, ” which plaintiff interpreted as Mr. Curbow's belief that plaintiff did not actually perform any work in his job. In an effort to clarify expectations about the nature of his job going forward, plaintiff sent an email to Mr. Buelt and Mr. Curbow in August 2015 asking that they provide him with a new job description in light of “fundamental changes” to plaintiff's job duties. Although plaintiff had a meeting with Mr. Buelt and Mr. Curbow to discuss his concerns, he testified that he did not gain any clarity on his job description or management's expectations of him.

         Plaintiff testified that Mr. Buelt, sometime in late 2015, asked plaintiff to structure his job so that a “college kid” or “any 26-year-old new hire” could perform it. He also testified that Mr. Buelt, despite the fact that plaintiff intended to work for another 6 years and not retire until age 65, occasionally made comments such as “I know you are going to be retiring soon.” According to plaintiff, Mr. Buelt “was always talking about the fact that I would be moving on and that he wanted me to start to develop a program that would allow a new employee, a younger employee coming in to do my job.” Mr. Buelt testified that he did not recall plaintiff ever telling him that he intended to retire in September or October 2015 when he turned 60 years of age, but that he has seen very few employees with 30 years of service who elect to work beyond the age of 60 years old. Plaintiff does not dispute that defendant's employees and management assume that employees with 30 years of service will retire at the age of 60.

         In January 2016, plaintiff received his year-end performance evaluation for 2015. Defendant refers to its salaried employee evaluation system as its Performance Management Process (“PMP”). Plaintiff's 2015 year-end PMP was completed and delivered by Mr. Buelt. Plaintiff received an overall rating of “on target, ” but Mr. Buelt gave plaintiff a “needs improvement” rating on two categories in the PMP, including a specific scales project for which plaintiff was responsible and the leadership model. Mr. Buelt gave plaintiff an “on target” or “exceeds target” rating in other categories. Shortly after receiving his 2015 year-end PMP, plaintiff wrote to Mr. Curbow to set forth his concerns about the PMP, including his belief that the “needs improvement” ratings were unfair and were based on inaccurate information despite the fact that plaintiff had presented contrary evidence to Mr. Buelt. The letter also indicated plaintiff's belief that Mr. Buelt lacked any understanding of plaintiff's job and provided no guidance on projects that he assigned to plaintiff.

         On February 26, 2016, Mr. Buelt met with plaintiff. Mr. Buelt told plaintiff that “he was required to start keeping a daily log of his work activities, including his stop and start times and all activities that were worked on each day. Mr. Beult did not ask any other employee on the Facilities team to keep a daily log of work activities. In the course of the February 2016 discussion with Mr. Buelt, plaintiff asked Mr. Buelt why he was “fucking with” him. On March 18, 2016, plaintiff wrote to Mr. Curbow to address a number of issues, including Mr. Buelt's daily log requirement; the fact that Mr. Buelt had added more duties to plaintiff's original job duties; the “ridiculous” 2015 year-end PMP; Mr. Buelt's micro-managing plaintiff's activities; and Mr. Buelt's repeated statement that plaintiff did not have enough work to do. At the end of the letter to Mr. Buelt, plaintiff expressed his belief that Mr. Buelt had “taken a personal dislike” toward plaintiff and that Mr. Buelt wanted to replace plaintiff with “someone younger and easier to manipulate.” Finally, plaintiff stated his belief that Mr. Buelt's “constant negative scrutiny and singular treatment” of plaintiff constituted harassment and age discrimination “and illustrates [Mr. Buelt's] ongoing attempt to get rid” of plaintiff.

         On April 12, 2016, plaintiff met with Sarah Reedy, one of defendant's human resource managers. Ms. Reedy, tasked with investigating plaintiff's complaint of age discrimination, separately interviewed plaintiff and Mr. Buelt about plaintiff's complaint of age discrimination. According to plaintiff, the focus of that investigation quickly turned to plaintiff's performance and “unsupported allegations” from defendant's management about plaintiff's behavior. Ms. Reedy drafted a statement for plaintiff to sign after giving him the opportunity to make corrections to the statement. Ms. Reedy did the same for Mr. Buelt. Plaintiff's statement largely mirrored his prior letters to Mr. Curbow-that Mr. Buelt provided no instruction to plaintiff but added duties in an effort to force plaintiff out in favor of a younger employee. In his lengthy statement, Mr. Buelt denied any suggestion that he was discriminating against plaintiff based on his age and expressed frustration at plaintiff's desire to have a “free pass” to “do whatever he wants” at work. Mr. Buelt's statement also introduced a new concern-his asserted belief that plaintiff had a potential for violence. According to Mr. Buelt, plaintiff yelled at him or “blew up at him” on multiple occasions. Mr. Buelt wrote:

I've never seen him blow up at anyone other than me and Dwayne. I'm not nervous if he's not armed, but it's unprofessional and unproductive. I've taken classes, and I was a plant manager and required to take workplace violence and recognizing when your employees were going to go off. He seems to represent a lot of the traits I was shown in that training of people that may do that type of activity-he's very resistant to change, he a pretention [sic] to have unexpected outbursts that are uncontrollable-it seems like he can't control himself, the PMP review process was one of them. . . . The fact that he blows up is what concerns me. He thinks we are out to get him and I've told him multiple times that I'm here to support you and what he does but I need to know what he does and that he needs to help me understand so that when you leave here it's seamless when you leave.

         The record does not reflect whether Ms. Reedy interviewed any other individuals about plaintiff's complaint of age discrimination.

         On June 10, 2016, plaintiff attended a “communications meeting” with Mr. Curbow, Mr. Buelt, Ms. Reedy and Tamala Cleaver, one of defendant's human resources directors. Plaintiff believed that the purpose of this meeting was to discuss his complaint of age discrimination and the investigation into that complaint. Instead, defendant presented plaintiff with a Performance Improvement Plan (PIP) indicating areas of plaintiff's performance that needed improvement. The PIP highlighted plaintiff's alleged “unacceptable temper” and inability to accept constructive feedback “without having loud outbursts with personal attacks towards the person delivering the feedback;” plaintiff's alleged “difficulty” in working a full day when in the office; and plaintiff's purported deficiencies in communicating with Mr. Buelt concerning his daily tasks. After presenting the PIP, Mssrs. Buelt and Curbow left the room and Ms. Reedy and Ms. Cleaver stayed with plaintiff to advise him that defendant had found plaintiff's allegations of discrimination and harassment to be unsubstantiated. Ultimately, Ms. Reedy provided a written document to plaintiff memorializing that defendant had “reviewed the facts thoroughly” and could not substantiate any instances of discrimination, harassment, or unfair treatment by Mr. Buelt. Ms. Reedy also advised in the letter that defendant had found “communication issues” that would be addressed. On June 16, 2016, plaintiff prepared a detailed, lengthy written response to the PIP in which he expressed his disagreement with the alleged deficiencies set forth in the PIP.

         On July 7, 2016, plaintiff provided written notice to Mr. Buelt and Mr. Curbow that he was resigning from his salaried position “due to the untenable position” in which his supervisors and human resources had placed him. In that letter, plaintiff stated that he had no choice but to resign his position as an exempt employee and that he intended to return to an hourly position with the union prior to retiring. (“I will return to the ranks of the BNSF Railway Companies Scheduled Employees, and then retire.”).[2] Plaintiff wrote that he would remain in his salaried position until September 21, 2016 and move back to an hourly position on September 22, ...

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