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Hance v. BNSH Railway Co.

United States District Court, W.D. Tennessee, Western Division

July 15, 2015



S. THOMAS ANDERSON, District Judge.

Exercising jurisdiction under 28 U.S.C. § 1331, the Court tried this case without a jury from April 20 to April 21, 2015. Plaintiff Kelly Wayne Hance alleged that Defendant BNSF Railway Company ("BNSF") violated the Uniformed Services Employment and Reemployment Rights Act of 1994[1] ("USERRA") because Hance's prior protected activity was a motivating factor in BNSF's decision not to hire Hance. Federal Rule of Civil Procedure 52 requires that "[i]n an action tried on the facts without a jury..., the court must find the facts specially and state its conclusions of law separately."[2] For the reasons stated below, the Court holds that BNSF denied Hance employment for legitimate, nondiscriminatory reasons.


I. BNSF Hiring Event

Kelly Hance was a member of the Tennessee Army National Guard at all times relevant to this case. (Pretrial Order, Stipulated Facts ¶ 7(a), ECF No. 84). On January 23, 2013, Hance filled out an application for a Conductor Trainee position at BNSF's train yard in Birmingham, Alabama. ( Id. ¶ 7(b)). After Hance applied, he received a letter instructing him to complete an online assessment, which he passed. ( Id. ¶ 7(c)). BNSF then invited Hance to one of its hiring events in Birmingham on February 7, 2013. ( Id. ¶ 7(d)). At the event, Maxine Kazen, a third-party human-resources consultant contracted by BNSF to oversee some of its hiring events, gave a PowerPoint presentation that included an overview of BNSF and its history. ( Id. ¶ 7(e)-(g)). Kazen also explained to the applicants the potential consequence of misstating work history or anything else on the application: termination of any conditional offer given. (Tr. 192:21-193:12). After Kazen's presentation, the candidates took a 90-minute aptitude test, which Hance passed. (Pretrial Order, Stipulated Facts ¶ 7(h)-(j)). Passing the test progressed Hance to the interview stage, and that same day, Kazen and BNSF Training Coordinator Michael Snow interviewed Hance, with Kazen leading the questioning. ( Id. ¶ 7(l)). Kazen questioned Hance about his work experience in light of statements in his cover letter, resume, and application. Hance's representations about his prior work history with Norfolk Southern Railway and BNSF's subsequent decision not to hire him are the subjects of this lawsuit.

II. Hance's Previous Employment with Norfolk Southern

Hance started as a conductor trainee with a separate railroad company, Norfolk Southern Railway, in May 1999. (Tr. 62:1). He did not conduct any train operations for Norfolk Southern after January 18, 2001, and Norfolk Southern discharged him on August 23, 2001. (Tr. 64:12-15). Hance exhausted appeals under a collective bargaining agreement and filed a grievance regarding his termination to the Public Law Board. He then filed a lawsuit in the Eastern District of Tennessee in 2004, alleging that Norfolk Southern fired him in violation of the Railway Labor Act and USERRA.[3] (Tr. 31:19-23). The Eastern District of Tennessee held that Norfolk Southern violated USERRA in dismissing Hance from employment. In 2009, the Sixth Circuit upheld the lower court's finding of liability under USERRA. See Hance v. Norfolk S. Ry., 571 F.3d 511, 523 (6th Cir. 2011). Although a court later ordered reinstatement, Hance waived reinstatement and agreed to a monetary settlement with Norfolk Southern. (Tr. 71:11-72:2). During these years of litigation, Hance was not employed with Norfolk Southern. Thus, despite prevailing in his previous lawsuit, Hance had only gained-at most-about one and a half years of experience while working at Norfolk Southern.

III. The Interview

BNSF interviewers evaluated each candidate in six areas of competence and graded each candidate as "acceptable" or "not acceptable." (Tr. 230; Scheduled Employee Selection System, Ex. 20). Hance received a not-acceptable grade on two of the six areas: "work ethic and conscientiousness" and "communication." (Ex. 20). The not-acceptable grade on "work ethic and conscientiousness" mandated an overall conclusion of not acceptable and a decision not to hire. ( Id. ). Before the interview, Kazen and Snow had already reviewed Hance's application, cover letter, and resume. Hance's cover letter begins, "As a talented Railroad professional, I have over 10 years of experience in implementing solid strategies that have consistently provided reliable operations while promoting safety." (Ex. 9). His resume indicates that he worked for Norfolk Southern from 1999 to 2009. (Ex. 9). On his BNSF application, Hance typed that he "Resigned with Notice" in a section asking for his "Reason for Leaving."[4] (Ex. 2).

During the interview, Kazen first went through the work experience that Hance listed on his application.[5] (Tr. 125:8-20). She testified that Hance "talk[ed] extensively about his work on the [Norfolk Southern]" and about how he "had been a conductor trainee" until "he left in 09." (Tr. 133:12-16). Kazen testified that Hance told her and Snow that "[h]e had no safety violations; and he talked about it again with a great deal of pride, his railroad experience. He said he had significant railroad experience and that he would consider with BNSF a management position, that he wanted to continue a railroad career." (Tr. 144:3-8). When asked, Hance initially answered that the information listed on his application was correct: that he started with Norfolk Southern in 1999 and resigned with notice in 2009. (Tr. 127:15-21). But when later asked a standard BNSF question-whether he had ever been fired from a job-Hance answered that he was terminated unlawfully from Norfolk Southern. (Tr. 132:24-134:3). Hance handed Kazen a copy of the Sixth Circuit's decision in his favor and attempted to explain. (Tr. 145:3-9). Kazen testified that she did not read the opinion, but instead asked why Hance was not reinstated if the court ordered him reinstated, as Hance had told her. (Tr. 248:24-249:14). Kazen stated that

at that point in time, I went back to the following question; and I asked him, "Mr. Hance, you've told us that you had ten years of experience. That's ten years of seniority, and seniority on the railroad is a big deal. It means a lot to have seniority. So if [Norfolk Southern] reinstated you, then, you know, why did you resign?" I didn't know at that point that he hadn't resigned with notice....

(Tr. 145:1-8). When Hance began describing the lengthy legal process, Kazen realized that he could not have gained "anywhere close to ten years of experience as he stated in his resume and his application." (Tr. 251:4-6).

After reading Hance's cover letter-"I have ten years of experience"-and believing that it meant Hance had "boots on the ground" and was "someone who's actually in the yard, on the trains, working, performing, supervising crews, " Kazen now believed Hance had lied about his work experience. (Tr. 210:11-21; Resume, Ex. 10). BNSF valued trust and honesty in conductor trainees because of a conductor's responsibility for care of cargo. (Tr. 203:1-11). Thus, she graded Hance "not acceptable" for "work ethic and conscientiousness." (Tr. 132:18-20). She also gave Hance a "not acceptable" grade on "communication" because of his lack of eye contact. (Tr. 146:17-23; 147:14-23).

Kazen testified that the same night, she scanned the Sixth Circuit opinion that Hance gave her. But she affirmed that her "decision was based on the fact that he misrepresented initially in his application what he had told us, and he misrepresented himself in a good portion of the interview. It was quite apparent from both his body language and his responses that he wasn't forthcoming." (Tr. 139:4-12). At trial, Hance's counsel repeatedly referred to Hance's status as listed on the U.S. Railroad Retirement Board's form BA-6, which gives Hance retirement credits for the years he would have worked had Norfolk Southern not illegally discriminated against him. ( See 2009 Certificate of Service Months and Compensation, Ex. 3). In other words, Hance used the BA-6 at trial to show that he was being truthful when he represented that he had 10 years' experience at Norfolk Southern. (Tr. 35:21-36:3). But Kazen testified that "hav[ing] a form that says you've been credited with certain months of service, that doesn't mean you actually worked at the ...

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