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Mullanix v. Union Pacific Railroad Co.

United States District Court, D. Nebraska

November 22, 2017

JESS MULLANIX, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD (UNITED STATES DISTRICT JUDGE

         The plaintiff, Jess Mullanix, alleges that he was sexually harassed by a coworker while employed by the defendant, Union Pacific Railroad (UP), in 2014 and 2015. Mullanix claims that after he reported those incidents, UP retaliated against him by changing his position and cutting his pay. He further alleges that UP discriminated against him on account of his disability, and retaliated against him for requesting medical leave under the Family Medical Leave Act.

         Mullanix has sued UP for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Rehabilitation Act; hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and unlawful retaliation under the ADA and Title VII. UP moves for summary judgment, arguing that Mullanix's claims fail as a matter of law. For the reasons discussed below, UP's motion will be granted.

         BACKGROUND

         The following facts are not meaningfully disputed. Jess Mullanix began his employment with UP in 2011 as a utility clerk. The following year, Mullanix was promoted to an internal support services position, which he held until 2015. Filing 28-1 at 3. In that role, Mullanix worked directly with crew dispatchers and managers, fielding their questions and assisting with technical support. Filing 28-1 at 7-8. One of those managers was a UP employee named William Bowman.

         (a) Alleged Harassment

         Mullanix claims that Bowman harassed him on at least four separate occasions beginning in 2014. The first incident, Mullanix alleges, occurred on June 19 when Mullanix left his work station to use the restroom. Filing 28-1 at 8. Mullanix says that he was standing at the urinal when Bowman approached him and asked if he could "piss on demand . . . can you take your cock and can you piss on demand?" Filing 28-1 at 8. After a short back-and-forth, Bowman left the restroom, and Mullanix returned to his work station. Filing 28-1 at 8. The entire incident-from Bowman entering the restroom to exiting-lasted approximately one minute. Filing 28-1 at 8.

         Bothered by the encounter, Mullanix reported the incident to Bowman's supervisor, Sara Foust, who sent Bowman home for the night. Filing 27 at 5; filing 28-1 at 8; filing 28-5 at 2. Bowman later admitted to Foust that he "said something in poor taste" to Mullanix while the two men were in the restroom, attributing the comment to their shared military experience. Filing 28-6 at 2. Bowman agreed to treat Mullanix "[j]ust like normal" and to act as if "nothing had happened" until Foust could work out a resolution between the parties. Filing 28-6 at 3. Meanwhile, within a 24-hour span, Mullanix had reported the incident to two additional sources: UP's "Values Line, " which is a means by which employees can report problems or concerns, and Jim Swan, Mullanix's local union chairman. Filing 28-1 at 8-9; filing 28-8 at 1.

         The second alleged incident occurred two days later while Mullanix was working in a shared cubicle with Matthew Besse. Filing 28-1 at 9. According to Mullanix, Bowman approached his work space 6 times over a 30 minute period while Mullanix was on the phone with a different crew manager. Filing 28-1 at 10. Besse, who was unoccupied at the time, eventually asked Bowman how he could help, but Bowman allegedly insisted on speaking with Mullanix. See filing 28-1 at 9-10. Mullanix says that immediately upon hanging up the phone, Bowman pulled up a chair and "scooted over as close as he could to me, put his leg touching mine, and he said, you know, you and I are like brothers. I pay union dues just like you do." Filing 28-1 at 10. Mullanix claims that he walked away from Bowman and then reported the incident to Foust and UP's Values Line. Filing 28-1 at 10. Foust sent Bowman home a second time before the end of his shift.

         Several conversations with UP management followed. For example, Mullanix spoke with Foust after the second alleged incident, telling her that he "wasn't interested in having a relationship with Mr. Bowman" because Bowman was "talking about things that guys don't normally talk about with each other." Filing 28-1 at 11. Mullanix also spoke with his direct supervisor, Mark Applegate. Filing 28-1 at 12. Applegate, like Foust, acknowledged the improper nature of Bowman's alleged comments, but encouraged Mullanix to maintain a professional relationship with him. See filing 28-1 at 12.

         Mullanix also learned of an internal investigation by UP's Equal Employment Opportunity (EEO) division, which found that Bowman had, in fact, violated the company's sexual harassment policy. Filing 27 at 7; filing 31-4 at 7. As a result, Bowman was required to take an EEO class and sign an official letter of reprimand. Filing 27 at 8-9; filing 28-9 at 3. He was also instructed to stay out of the restroom when Mullanix was using it and to limit his conversations with Mullanix to work-related topics. Filing 27 at 8.

         Two months passed without incident. However, on or around August 8, Mullanix reported that Bowman had followed him into the restroom, looked at him, and left. As Mullanix explained:

[Bowman] would have been at his desk. I was at mine. I got up, walked to the bathroom. He got up behind me, walked to the bathroom. I'm going to the bathroom. He looks in the door, walks out, leaves.

         Filing 31-3 at 20. Then, in January 2015, Mullanix reported a similar incident in which Bowman allegedly followed him out to UP's parking garage. As to that incident, Mullanix claims that Bowman "stalked" him "to the edge of the parking lot" and then "watched [him] walk to [his] car and then get in[.]" Filing 31-3 at 20. According to Mullanix, that incident, coupled with the prior encounters, made him uncomfortable in his job and encouraged him to "get out of the department where Bowman was working." Filing 31-3 at 25.

         (b) Train Dispatcher Position

         In September 2014, before the alleged parking lot incident, Mullanix applied for a position as a train dispatcher. Filing 31-3 at 25. The following month, UP notified Mullanix that he was selected for the position, contingent upon his successful completion of a background investigation and a pre-placement physical exam. Given those contingencies, the letter recommended that Mullanix "not giv[e] notice to [his] current employer or incur[] any expense in reliance ...


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