Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 36 EPD ¶35,014, Glenn Thompson et al., Plaintiffs v. Seaboard System Railroad, Defendant., (Feb. 07, 1985), (Feb. 7, 1985)

Glenn Thompson et al., Plaintiffs v. Seaboard System Railroad, Defendant.

United States District Court, Eastern District of North Carolina, Wilson Division.Civil Action No. 82-57-CIV-8, February 7, 1985

Title VII--Civil Rights Act of 1964

Race Discrimination--Promotion Denial--Bias Not Shown.

--A black male railroad employee was unable to show that he was initially denied promotion to fireman because of his race. He failed the qualifying exam, but was ultimately promoted when he passed it the second time. Attorney fees were not assessed because the suit was not frivolous.

Back reference.-- ¶2326.453 .

Michael A. Sheely, Charlotte, North Carolina and M. Travis Payne (Edelstein and Payne), Raleigh, North Carolina, for Plaintiffs.

Frank P. Ward, Jr., and Thomas A. Farr (Maupin, Taylor & Ellis), Raleigh, North Carolina, for Defendant.

Britt, D.J.: This action was instituted on 8 October 1982 by plaintiffs, employees of defendant, seeking redress for alleged deprivation of equal employment opportunity because of their race (black). Jurisdiction is founded on 28 U.S.C. §1343, 29 U.S.C. §626(c)(1) , and 42 U.S.C. §2000e-5(f). On 24 October 1984 the action was voluntarily dismissed with prejudice as to plaintiffs Joseph Harris, Jerry A. Sherrod and Donald R. Harris. The parties have stipulated in the Pre-Trial Order that: “(t)here is an insufficient number of persons to meet the requirements of Rule 23(a)(1), F.R.Civ.P.” Remaining for disposition is the individual claim of plaintiff Glenn Thompson. The matter came on for hearing before the undersigned, sitting without a jury, on 4 February 1985. At the conclusion of the plaintiff’s evidence the defendant moved that the case be involuntarily dismissed pursuant to the provisions of Rule 41(b) of the Federal Rules of Civil Procedure.

Based on the Stipulations of the parties as appears in the Pre-Trial Order and the credible evidence presented, the court makes the following:

Findings of Fact

1. Plaintiff Thompson, a black adult male resident of Garysburg, North Carolina, is an employee of defendant railroad. (Stip. #6).

2. Defendant railroad, a corporation, operates a railroad yard and terminal at Rocky Mount, North Carolina. Said defendant is an employer within the meaning of 42 U.S.C. §2000e et seq. (Stip. #8).

3. Thompson filed a charge with the Equal Employment Opportunity Commission (EEOC) on or about 13 August 1980. Said charge was amended by Thompson on 10 September 1980. Thompson received a right-to-sue letter from the EEOC which is dated 30 July 1982. Said letter states that the EEOC dismissed Thompson’s charge on the ground that no reasonable cause was found to believe that the allegations made in the charge are true. (Stip. #9).

4. Thompson was hired by the railroad as a trainman on 3 August 1978. At all times relevant, Thompson was employed at the defendant’s Rocky Mount, North Carolina division. Thompson has established the following seniority dates:

(a) Trainman--3 August 1978.

(b) Freight conductor--6 March 1981.

(d) Engineer--16 April 1981. (Stip. #10).

5. In order to become a fireman, the defendant had the following requirements at the relevant times:

(a) Trainees with at least one year of “continuous” service as a trainman, switchman, or conductor are eligible for consideration. Trainees with less than one year’s service may be selected when the list of applicants with one year’s experience is exhausted.

(b) Selection of trainees is determined by such factors as: job knowledge, work history, knowledge of operating rules, discipline, safety record, attitude, and character.

(c) For positions to be filled in May of 1980 a test score of 70 or better on an operating rules exam consisting of 75 objective questions. (Stip. #11).

6. All applicants for the fireman craft in May of 1980 (with the possible exception of one black applicant, H.L. Faison) were required to take an operating rules exam consisting of 75 objective questions. All applicants took the rules exam sometime in May of 1980 prior to the date on which all nine firemen openings were filled. (Stip. #16).

7. The questions for the operating rules exam given to those fireman applicants who applied in May of 1980 were taken from the more comprehensive A-3 operating rules exam which consists of over 300 questions and covers all areas of defendant’s operations. (Stip. #17).

8. The content of the operating rules exam given to fireman applicants who applied for the positions filled in May of 1980 did not discriminate against blacks. (Stip. #18).

9. Plaintiff applied for a fireman’s position in May of 1980 and took the operating rules exam given to all other applicants. (Stip. #19).

10. Plaintiff failed the test, missing 24 of the 75 questions for a grade of 68.

11. Operating crews of defendant’s trains are required to be familiar with and comply with its operating rules. Failure to observe such rules can result in personal injury and property damages. Knowledge of the rules is of special importance to the duties of firemen and engineers. Successful applicants for the position of fireman undergo a training program which, if successfully completed, leads to promotion to engineer.

12. Plaintiff again applied for the position of fireman in April of 1981, at which time he again took an operating rules examination. Having passed the test, he was transferred to the fireman craft.

The burden is, of course, on the plaintiff to establish a prima facie case of race discrimination. McDonnell Douglas Corp. v. Green [5 EPD ¶8607 ], 411 U.S. 792 (1973). One element of that prima facie case is that plaintiff is qualified for the job. Young v. Lehman [35 EPD ¶34,762 ], 748 F.2d 194 (4th Cir. 1984). Defendant has the right to establish a valid test as a qualification for a job. EEOC v. Federal Reserve Bank of Richmond [30 EPD ¶33,269 ], 698 F.2d 633 (4th Cir. 1983), rev’d on other grounds,--U.S.--, 104 S.Ct. 2794 (1984). This is especially true where there is no contention that the test is racially biased or administered in a racially discriminatory manner. Plaintiff has stipulated that these deficiencies did not exist.

Based on the foregoing FINDINGS OF FACT and guided by the principles of law above set out, the Court makes the following:

Conclusions of Law

1. Plaintiff has failed to meet his burden of proving a prima facie case of racial discrimination.

2. Plaintiff was not denied a promotion because of his race.

3. Plaintiff is not entitled to recover any amount of money or obtain any other relief against defendant.

On 20 September 1984 plaintiff filed a motion to join as parties defendant the International United Transportation Union (UTU) and United Transportation Union (E), Local 1211. As counsel for plaintiff candidly concedes, action on this motion is only necessary in the event that plaintiff prevails in his action against defendant railroad. He having failed in that effort the motion is denied as moot.

Defendant has moved the court for attorney’s fees contending that the action is frivolous. Upon full consideration of the arguments of counsel and review of the record, the court concludes that the action was not frivolous and the motion is, therefore, denied.

In SUMMARY:

The motion of plaintiff to join additional parties defendant is denied.

The motion of defendant for attorneys fees is denied.

The Clerk is directed, pursuant to Rule 58 of the Federal Rules of Civil Procedure, to enter judgment that plaintiff have and recover nothing of the defendant and that this action be dismissed.

Judgment

It is Ordered and Adjudged that the plaintiffs have and recover nothing of the defendant and that this action is dismissed.