UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1623
JAMES RAY,
Plaintiff - Appellant,
versus
CSX TRANSPORTATION, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-04-134-7)
Argued: March 16, 2006 Decided: May 23, 2006
Before WILKINSON and SHEDD, Circuit Judges, and Cameron McGowan
CURRIE, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Devon James Munro, LICHTENSTEIN, FISHWICK & JOHNSON,
P.L.C., Roanoke, Virginia, for Appellant. Robert Craig Wood,
MCGUIREWOODS, L.L.P., Charlottesville, Virginia, for Appellee. ON
BRIEF: John P. Fishwick, Jr., LICHTENSTEIN, FISHWICK & JOHNSON,
P.L.C., Roanoke, Virginia, for Appellant. Aaron J. Longo,
MCGUIREWOODS, L.L.P., Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Ray, an African-American employee of CSX Transportation,
Inc., brought this Title VII action against CSX for race
discrimination. See 42 U.S.C. §§ 2000(e) et seq. Ray alleged that
CSX discriminated by enforcing disciplinary measures against him
differently than against white employees. The jury found in Ray’s
favor and awarded him $72,000 in compensatory damages and $128,000
in back pay. On CSX’s post-trial motion, the district court
granted judgment as a matter of law to CSX; alternatively, the
district court sua sponte granted a conditional new trial. See
Fed. R. Civ. P. 50, 59. Ray now appeals these rulings. For the
following reasons, we affirm the district court’s grant of judgment
as a matter of law in favor of CSX.
I.
On March 31, 2003, CSX transferred Ray -- a longtime CSX
employee -- to its Balcony Falls work site in Glasgow, Virginia.1
At Balcony Falls, Ray worked as a conductor on CSX’s two-man train
crews, which consisted of a conductor and an engineer. Upon the
completion of the work day, the conductor was responsible for
1
In this appeal from a ruling on CSX’s Rule 50 motion, we view
the facts in the light most favorable to Ray, the nonmovant.
Babcock v. BellSouth Adver. and Publ’g Corp., 348 F.3d 73, 75 n.1
(4th Cir. 2003).
2
logging the train crew out at a designated CSX computer terminal at
Balcony Falls.
After Ray had been at Balcony Falls for 17 days, CSX became
suspicious that several Balcony Falls employees (including Ray) had
been wrongfully claiming (“stealing”) overtime. Specifically, CSX
suspected that some of its train crews were stealing overtime by
logging-out at home instead of logging-out at the designated
computer terminal. CSX’s suspicion first arose because of
information learned by Steve Persinger, a white CSX trainmaster,
about the payment of overtime to William Hardbarger, a white CSX
engineer. Persinger relayed this information to Wes Knick, CSX’s
terminal manager, and Don Hensley, CSX’s district superintendent.
Hensley asked Persinger to investigate.2
As part of this investigation, Knick visited Balcony Falls.
On the day of his visit, Knick observed the train crew finish its
work for the day, but contrary to CSX’s policy, the crew did not
log-out from the designated terminal. Thus, Knick made visual
confirmation of a CSX overtime policy violation. The offending
2
Lenford Hatcher, an African-American CSX trainmaster, was the
same rank as Persinger and was the direct supervisor of Ray’s
territorial jurisdiction. Hatcher was not at work on the day the
investigation began. When Hatcher later asked for information on
the investigation, he was told that CSX had it under control.
Testimony established that CSX’s ordinary practice was that a
manager who began an investigation maintained control of it until
its conclusion.
3
crew that day was composed of Ray and T.S. Mahaffey, a white CSX
engineer.
Meanwhile, Persinger was continuing the investigation from
his office. Using his computer, Persinger accessed the log-in/log-
out times for all Balcony Falls employees for the preceding several
weeks. Because some employees had logged-out from terminals that
Persinger did not recognize, he sent an e-mail cataloguing log-out
information from March 31 through April 17, 2003, to CSX’s
Information Security Office ("Infosec"), in Jacksonville, Florida,
asking how to identify the locations of those unrecognized
terminals. Infosec explained in response that certain Union
officials employed by CSX had access to a computer program called
the “Blue Zone.”3 Although CSX had a zero tolerance policy for
employees logging-out from remote locations, Blue Zone had the
unintended effect of allowing employees with the software and an
internet connection to log-out from a remote location, usually the
employee’s home. Logging out from such remote locations allowed
employees to steal overtime by receiving credit for time they were
actually not working. The terminals that Persinger did not
recognize were remote locations where employees had used Blue Zone
to log-off. Because each entry for log-out times displayed an
3
Ray was not a Union official and did not have authorization
to possess the Blue Zone software.
4
employee identification number, Persinger could identify which
employees had improperly logged-out using Blue Zone.
Given this explanation, Persinger suspected that several
employees had stolen overtime. In an effort to confirm his
suspicion, Persinger obtained the “engine download” information
from the train’s “black box,” which records the time when the train
engine was operating. Because Persinger believed that it usually
took a crew no more than one hour after a train’s engine shut down
to complete necessary paperwork and log-out, he was able to
estimate from the black box data the approximate time that the
train crews should have logged-out on each day. Persinger
discovered, however, that the engine download information was
available only from April 11 through April 17, 2003.4
At some point during the investigation, Persinger called
Hardbarger to inquire about what time he and Ray had finished work
on a day that Ray had logged-out using Blue Zone. The next day,
Hardbarger confessed to Persinger that he had also used Blue Zone
on one occasion to log-out. Hardbarger’s use of Blue Zone was on
April 5, 2003. Hardbarger maintained throughout the investigation
4
The black box had a limited amount of recording tape and
continuously recorded over previously recorded data. If the train
was used daily, the tape stored approximately six days of
information before it recorded over previous recordings.
5
and subsequent disciplinary proceedings that in using Blue Zone he
had not intended to steal overtime.5
After conducting this investigation, Persinger spoke with
Hensley and John Thompson, CSX’s director of labor relations, and
informed them of the information he had compiled. Thompson then
instructed Persinger to bring charges against Ray and three white
employees (Hardbarger, Mahaffey, and Larry Woodward) for overtime
violations. Ray was charged for four violations in which he had
improperly logged-out. These violations occurred on or after April
11, 2003. Two of these violations involved Hardbarger, one
involved Mahaffey, and one involved Woodward. These men were
charged as crew members. There is no dispute that Ray committed
these violations. Additionally, Ray and Hardbarger were charged
for the separate April 5 incident to which Hardbarger had
confessed. Hardbarger had logged-out on that day, and Ray was a
crew member.
Although it was evident from Persinger’s e-mail to Infosec
that both Ray and Woodward had improperly logged-out using Blue
Zone on several occasions prior to April 11, CSX did not charge
either for those violations. Persinger explained that he did not
charge for those earlier violations because he had no corroborating
evidence. Although the black box data only revealed when the train
5
As a union official, Hardbarger was entitled to have Blue
Zone.
6
stopped, not when the employee actually left work, Persinger
believed that the data provided a sufficient form of corroboration
to charge an employee with a violation of company policy.
Pursuant to a Collective Bargaining Agreement (“CBA”) between
CSX and the Union which represented CSX’s employees, CSX conducted
a Board of Inquiry for each charged violation. At each Board of
Inquiry involving a charge that Ray had improperly used Blue Zone
to log-out, Ray took full responsibility for the violation and
exonerated the other employees with whom he was charged.
Specifically, Ray admitted that he was the one improperly using
Blue Zone and that the other members of his train crew were
ignorant of, and had nothing to do with, his use of Blue Zone.
Additionally, Ray refused to divulge how he obtained the Blue Zone
software.
Following these Boards of Inquiry, Garhart Williams, the head
of the CSX Huntington Division, reviewed the Boards’ proceedings
and discussed them with Thompson. Williams then recommended to
Doug Greer, CSX’s regional vice-president, that Ray be terminated
based on his admitted multiple Blue Zone violations. Williams also
recommended a 15-day suspension for Woodward and no punishment for
Mahaffey based on their relatively minor role in the offenses, and
he recommended a 60-day suspension for Hardbarger, who had
confessed and attributed his use of Blue Zone to a mistake. CSX
7
accepted Williams’ recommendation and disciplined the employees
accordingly.6
Pursuant to the CBA, Ray appealed his termination to an
arbitrator. As a result of an arbitration award, Ray was
reinstated without back pay. Although the arbitrator reinstated
Ray, he found that there was “not a scintilla of credible proof
[of] any form of racial discrimination.” J.A. 599.
II.
At trial, Ray bore the burden of proving “that he has been the
victim of intentional discrimination.” Jiminez v. Mary Washington
Coll., 57 F.3d 369, 377 (4th Cir. 1995) (internal punctuation
omitted). After the verdict for Ray, the district court granted
judgment as a matter of law in favor of CSX under Rule 50(b), which
provides that a district court may grant such a motion if “there is
no legally sufficient evidentiary basis for a reasonable jury to
find for that party on that issue.” Specifically, the district
court held that the facts of this case support only one conclusion:
CSX was not motivated by discrimination in charging or terminating
Ray for his overtime violations.
Ray contends that the district court erred in granting this
Rule 50 motion. We review this ruling de novo. Bryant v. Aiken
6
According to Williams, he told Greer that he intended to
implement his recommendations unless he was instructed otherwise.
8
Reg’l Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003). Under
Rule 50(b), our inquiry is whether a jury, viewing the evidence in
the light most favorable to Ray, “could have properly reached the
conclusion reached by this jury.” Id. (internal punctuation
omitted). If reasonable minds could differ about the result in
this case, we must reverse the grant of judgment as a matter of
law. Id. In reviewing the district court’s judgment, “we examine
the full trial record to determine whether sufficient evidence
supported the jury’s verdict.” Id. (internal punctuation omitted).
A.
Ray first contends that he was treated differently than white
CSX employees who were not charged with overtime violations. The
district court recognized that CSX presented evidence that it would
not charge employees without black box data or other corroboration,
and stated that Ray’s “subjective beliefs that the charges were
limited based on the engine download information in order to target
him does not render [CSX’s] explanations unworthy of belief.” J.A.
591. Like the district court, we conclude that Ray has presented
insufficient evidence that he was discriminated against when CSX
brought charges against him.
Initially, we point out that the other three employees charged
along with Ray were white. This fact militates against a
conclusion that CSX discriminated against Ray. See Hicks v.
9
Southern Md. Health Sys. Agency, 737 F.2d 399, 403 (4th Cir. 1984).
Further, CSX maintained that it would only charge an employee with
a violation for stealing overtime if there was corroborating
evidence, such as black box data or the employee’s own confession,
and the facts establish that CSX did not charge any overtime
violations against either white or African-American employees where
there was no corroborating evidence. Indeed, CSX did not charge
Ray for two prior instances when he stole overtime because there
was no corroborating evidence.
Ray contends that the black box data does not corroborate an
overtime violation and was therefore unnecessary to bring charges.
Although Ray points to evidence that in hindsight suggests that the
black box data did not provide any corroboration for these
offenses, he presented no evidence to establish that Persinger’s
belief that the black box data offered corroboration was anything
but honest. Thus, whether the black box data was actually
necessary or not is immaterial because “it is not our province to
decide whether the reason was wise, fair, or even correct,
ultimately, so long as it truly was the reason for” Persinger’s
decision. DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.
1998).7
7
Although Ray points to additional evidence to support his
claim that CSX unfairly charged him, we find that evidence to be
insufficient to establish that CSX discriminated against him.
10
Because CSX only charged those employees for violations where
it believed corroborating evidence existed, and it charged white
and African-American employees equally under this standard, “there
was no disparity of treatment from which one could conclude that
[CSX’s decision to charge Ray] was a product of racial
discrimination.” Cook v. CSX Transp. Co., 988 F.2d 507, 512 (4th
Cir. 1993). Accordingly, we find that Ray presented insufficient
evidence that he was discriminated against when CSX brought charges
against him.
B.
Ray also claims that he was treated differently than white CSX
employees who were charged for overtime violations because he
received a more severe punishment. The district court rejected
this theory, holding that Williams, the decisionmaker, was not
motivated by Ray’s race but, instead, based his decision on Ray’s
admitted multiple overtime violations. Like the district court, we
conclude that Ray failed to establish that CSX discriminated
against him in this regard.
Although Ray argues that Persinger was the relevant
decisionmaker and that Williams had a limited role in handing down
a foregone sentence, even if we assume Persinger was biased, we
decline to deem “a biased subordinate who has no supervisory or
disciplinary authority and who does not make the final or formal
11
employment decision . . . a decisionmaker simply because he had a
substantial influence on the ultimate decision” or because he
played a significant role in the adverse employment decision. Hill
v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 291 (4th Cir.
2004) (en banc). Given the facts of this case, we find that at
this stage in the disciplinary proceedings Williams made the
relevant decision himself. Further, we find that based on Ray’s
confessions -- which completely exonerated his fellow crew members
on those instances in which he improperly logged-out -- he was no
longer engaged in conduct that “was comparable in seriousness to
misconduct of employees outside the protected class.” Cook, 988
F.2d at 511. Thus, because the coworkers charged along with Ray
were not engaged in conduct of comparable seriousness, Ray cannot
establish that the discipline enforced against him was a product of
racial discrimination. See id. For these reasons, CSX did not
discriminate against Ray by punishing him more severely than others
also charged for overtime violations.8
8
Although Hardbarger admitted using Blue Zone to log-out
improperly on one occasion, his situation differs from Ray’s.
Hardbarger had previously confessed to his own violation, and
unlike Ray he attributed the violation to a mistake. Ray has not
pointed to any evidence in the record to suggest that CSX had
reason to doubt Hardbarger’s explanation.
12
III.
In conclusion, we hold that the district court did not err in
granting judgment as a matter of law in favor of CSX. The
evidence, even viewed in the light most favorable to Ray,
established that CSX charged Ray and other employees for overtime
violations only when it had what it considered to be corroborating
evidence of a violation. In those instances when CSX had such
evidence, it charged all white and African-American employees.
Likewise, when CSX was aware of an overtime violation but did not
have corroborating evidence, it did not charge white or African-
American employees (including Ray). Moreover, CSX terminated Ray
only because of his own admissions that evinced more culpable
conduct than other employees who were charged. Accordingly, we
affirm the district court’s grant of CSX’s motion for judgment as
a matter of law.9
AFFIRMED
9
Because we affirm the district court’s grant of judgment as
a matter of law, we need not address Ray’s contention that the
district court erred in granting a conditional new trial.
13