United States District Court, D. Rhode Island
GREGORY GARMON, SR. Plaintiff,
MEMORANDUM AND ORDER
MARY M. LISI, District Judge.
Gregory Garmon, Sr. ("Garmon"), the plaintiff in this employment discrimination case brought under 42 U.S.C. § 1981, has alleged that he was subjected to harassment and discrimination on account of his race in the course of his 18-year employment by the defendant, the National Railroad Passenger Corporation ("Amtrak"). The gravamen of Garmon's claims appears to be that in 2012 and 2013, Garmon, who is African-American, received fewer opportunities for overtime hours than some of his Caucasian colleagues. Garmon seeks compensatory damages, punitive damages, and attorney fees and costs. Amended Complaint (Dkt. No. 14). The matter before the Court is Amtrak's motion for summary judgment on the sole remaining claim of Garmon's Amended Complaint.
I. Factual Background
Garmon was hired by Amtrak in 1997 as a signal helper. He is currently employed by Amtrak as an Electric Traction Lineman, a position to which he was promoted in 2001 and which includes a variety of duties. DSUF 1-3. Between 2003 and February 2015, the first shift for the Amtrak Electric Traction Department in Providence included Garmon, Christopher Alves ("Alves"), and William Butler ("Butler"). Alves and Butler are both qualified as linemen and as High Rail Operators ("HROs"). HROs operate high rail equipment and also perform lineman duties. DSUF 5. According to Garmon, he "simply had not desired to be an HRO" and never qualified for that position. PSUF 10.
In February 2015, Amtrak made operational changes which included splitting the first shift (which ran from 6:00 a.m. to 2:00 p.m. Monday through Friday) into two shifts. Garmon is assigned to the first shift running 6:00 a.m. to 4:30 p.m. Wednesday through Saturday; the other first shift runs at the same times, Sunday through Wednesday. DSUF 6. The first-shift foreman is Thackaberry, who posted for and received that position in 2008. DSUF 8. Since July 30, 2005, Garmon has been supervised by day shift supervisor Gregory Brennan ("Brennan") who is qualified as a lineman, HRO, foreman, and supervisor. DSUF 9.
Amtrak is unionized and operates under a collective bargaining agreement ("CBA") negotiated by the International Brotherhood of Electrical Workers ("IBEW"). The applicable CBA in this case is the agreement between Amtrak and IBEW System Council No. 7, effective September 1, 1975, last modified October 20, 2010. DSUF 13. Although Garmon maintains that the CBA does not govern overtime and that overtime plans are promulgated by Amtrak, it is undisputed that the CBA includes provisions addressing the manning of overtime plans (as well as matters of grievances and discipline). Id., PSUF 13. Pursuant to Rule 13 of the CBA, "[o]vertime [is] to be distributed in conjunction with the duly authorized local committee of the craft or of their representative and the local management. Record will be kept of overtime worked and men called with the purpose in view [sic] of distributing the overtime equally." DSUF 21.
Under the CBA, all claims and grievances other than those involving discipline must be timely presented to the IBEW in writing. DSUF 15. It is undisputed that Garmon, who is a member of the IBEW and whose employment is governed by the CBA, has never filed any claim or grievance with the IBEW and that the IBEW has not received any overtime-related grievances from Garmon. DSUF 16-18. On his part, Garmon suggests that the CBA provision regarding grievances is not applicable to race-based discrimination claims. PSUF 15. Garmon acknowledges that Amtrak maintains an Anti-Discrimination and Anti-Harassment Policy and an Equal Employment Opportunity/Affirmative Action Policy and that Amtrak has a Dispute Resolution Office to resolve complaints of discrimination and enforce Amtrak's policies. DSUF 20. Garmon suggests, however, that Amtrak does not enforce these policies or abide by them. PSUF 20.
Garmon concedes that he has never been disciplined by an Amtrak manager or supervisor. He maintains, however, that his loss of income under a new overtime distribution process which, Garmon alleges, was implemented by Brennan in Fall 2012, constitutes an adverse employment action against him. PSUF 4, 29. It is noted that Garmon's assertion that Amtrak instituted a new overtime policy in Fall 2012, on which his claim rests, is entirely unsupported by any factual evidence. On its part, Amtrak asserts that the process of how overtime is distributed did not change in 2012. DSUF 29, 31, 37.
Since February 24, 2011, Assistant Division Engineer Michael Poole ("Poole") has been in charge of determining the amount of overtime needed for Garmon's department, taking a number of factors into consideration, and then seeking budgetary approval from Amtrak's senior management. DSUF 22. Weekend overtime is staffed by members of the Boston/Providence cost center to cover both cities and to service the connecting track. DSUF 23. According to Garmon's allegations, Poole follows Brennan's suggestion as to who should participate in overtime. PSUF 22.
Generally, Garmon denies that overtime is structured pursuant to the CBA, insisting that Amtrak, not IBEW, "promulgates" the overtime plans, and that IBEW merely addresses manning of the positions as set forth in the overtime plan. PSUF 21, 23, 24. According to Garmon, beginning in Fall 2012, IBEW allowed HROs to fill slots available for HROs. PSUF 29. In addition, employees with foreman qualifications can apply for overtime slots designated for foremen. PSUF 24. As a result, a foreman can now work overtime, whereas before the alleged change, a foreman could not have filled that overtime slot unless Garmon, or Alves and Poulter had first rejected it. Id . Garmon asserts that Amtrak engages in discrimination against Garmon (the sole lineman) by making overtime slots available to HROs and foremen, and keeping linemen out of the positions (or, more accurately, giving lower priority to linemen for selecting certain slots). PSUF 26.
Amtrak employees are given an opportunity to select overtime based on their respective shifts, positions, and locations. First-shift employees are given preference for first shift overtime, provided they are qualified for the position posted, e.g., a first-shift HRO can select an HRO slot, a lineman cannot do so unless no HRO has selected the slot first. DSUF 29, PSUF 32. According to Garmon,  beginning in Fall 2012, Brennan began assigning overtime by position (as well as shift), which deprived Garmon of overtime opportunities (because he was a lineman and could only qualify for overtime slots designated for linemen or for HRO/foreman designated slots not first selected by HROs and/or foremen). PSUF 29. Garmon asserts that, prior to Fall 2012, he "shared overtime opportunities equally." PSUF 31.
It is undisputed that Garmon can fill overtime slots for positions other than first-shift lineman only if no qualified individual holding that position has filled it, making it available to Garmon. DSUF 31. In addition, Garmon has priority to obtain an overtime slot one weekend shift each month in Providence and, if no Boston lineman or an HRO fills the slot, an additional weekend shift in Boston. PSUF 31. If no lineman, HRO, or foreman selects an overtime shift, a Supervisor or Assistant Supervisor (who are qualified for all positions) may elect the shift to ensure sufficient coverage. DSUF 34.
The undisputed facts reveal that, between 2009 and 2013, Garmon worked 2, 720 overtime hours. During that same time period, Butler (who is an HRO and Caucasian) worked 1, 456 overtime hours; Alves (who is an HRO and Caucasian) worked 4, 166 hours; and Thackaberry (who is a foreman and Caucasian) worked 2, 228 hours. DSUF 38. Between January 1, 2013 and July 31, 2013 (following the alleged change in overtime distribution until shortly after Garmon filed his complaint) Garmon worked 269 overtime hours. During that same time period, Butler worked 141 overtime hours; Alves worked 646 hours; and Thackaberry worked 272 hours. Def.'s Mot. 8 (Dkt. No. 32). In 2012, which includes the period before and after the alleged change in overtime distribution, Garmon also worked more overtime hours (491) than both Thackaberry (294) and Butler (256). In other words, Garmon worked as much or more overtime than two of his three first-shift Caucasian colleagues before and after the alleged change, notwithstanding the fact that both of his colleagues had qualifications that would give them priority over Garmon with respect to HRO and/or foremen slots. DSUF 38.
Garmon concedes that he did not accept certain shifts that were available to him and, particularly, that "he did not accept slots on many Sundays because he needs to attend church." PSUF 39. In other words, Garmon complains that he was given "fewer opportunities to accept or ...