                                                 Filed:   May 11, 1999

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 98-1485
                          (CA-96-443-3-P)



Willie F. Caldwell,

                                               Plaintiff - Appellant,

          versus


Norfolk Southern Railway Co., etc.,

                                                Defendant - Appellee.



                             O R D E R



     The court amends its opinion filed April 20, 1999, as follows:

     On the cover sheet, section 3, line 3 -- the spelling of the

district judge’s name is corrected to read “Potter.”

                                         For the Court - By Direction



                                          /s/ Patricia S. Connor
                                                   Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIE F. CALDWELL,
Plaintiff-Appellant,

v.
                                                                   No. 98-1485
NORFOLK SOUTHERN RAILWAY
COMPANY, a/k/a Norfolk Southern
Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-96-443-3-P)

Argued: March 3, 1999

Decided: April 20, 1999

Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Joe Lee White, Collinsville, Oklahoma, for Appellant.
James Stanton Whitehead, SIDLEY & AUSTIN, Chicago, Illinois, for
Appellee. ON BRIEF: Mack Sperling, BROOKS, PIERCE,
MCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro,
North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Willie Caldwell (Caldwell) brought this action against Norfolk
Southern Railway Company (Norfolk) in the United States District
Court for the Western District of North Carolina alleging that Norfolk
discriminated against him on account of his race in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), as amended. See 42
U.S.C. §§ 2000e - 2000e-17. The district court granted Norfolk's
motion for summary judgment, concluding that Caldwell's Title VII
claim was preempted by the Railway Labor Act (RLA). See 45 U.S.C.
§§ 151 - 188.1 We now affirm, but for reasons other than those stated
by the district court.

I.

Caldwell is an employee at Norfolk's Charlotte Roadway Shop (the
Shop), where he has worked as a machinist since September 7, 1971.
_________________________________________________________________

1 The district court described the question of whether the RLA pre-
cludes the application of Title VII in terms of preemption. The district
court's description of this question is misleading because preemption
involves the presence of a state law claim. See Allis-Chalmers Corp. v.
Lueck, 471 U.S. 202, 208 (1985). However, even though the district
court should have described the relevant legal question in terms of
whether one federal statute (the RLA) precludes the application of
another federal statute (Title VII), see Atchison, Topeka & Santa Fe Rail-
way Co. v. Buell, 480 U.S. 557, 562 (1987), the case law characterizes
this question in terms of preemption. See e.g., Felt v. Atchison, Topeka
& Santa Fe Railway Co., 60 F.3d 1416, 1418-19 (9th Cir. 1995).
Because the case law characterizes this question as one of preemption,
for clarity and uniformity, we do also. Further, because both the preemp-
tion of state law and the preclusion of federal statutory remedies involve
questions of congressional intent, reliance on preemption cases is appro-
priate. See id.

                    2
The employees in the Shop are represented by a union, the Interna-
tional Association of Machinists and Aerospace Workers (the Union).

The Union and Norfolk are parties to a collective bargaining agree-
ment and various side agreements (collectively the CBA) that pre-
scribe the process for awarding new or vacant positions at the Shop.
Rule 20 of the CBA provides as follows regarding the manner in
which positions are bid and awarded:

         VACANCIES (PERMANENT) OR NEW POSITIONS

         RULE 20. (a) New positions and permanent vacancies in
         the respective crafts shall, except as provided in Rule 16, be
         bulletined previous to or within ten (10) days following the
         dates such vacancies occur for a period of five (5) days.

             (b) Applications for such positions or vacan-
         cies must be filed in writing with the appropriate carrier
         officer on or before 12 midnight of the fifth day of the bulle-
         tin period, with copy to the local chairman of the craft
         involved. Applications of employees failing to follow this
         procedure will not be considered.

             (c) Bulletined positions may be filled tempo-
         rarily pending assignments.

             (d) Assignments to such new positions or
         vacancies shall be made within twenty (20) days from the
         date of bulletin and bulletin shall be posted announcing the
         name of the employee assigned.

              (e) An employee shall be given a reasonable
         trial [period] to prove his qualifications.

             (f) Except as otherwise provided in Rule 22
         with respect to serious illness, an employee who is absent
         from work due to vacations or sickness may, within five (5)
         days after his return from vacation or sickness make appli-
         cation for positions bulletined during his absence.

                    3
              (g) Bulletins issued under this rule will uti-
          lize the sample forms appearing on pages 215 and 216 of
          this agreement.

(J.A. 207). Although Rule 20(e) provides that employees are entitled
to a trial period in a new position, a special rule is applicable to "skill
differential" machines such as the lathe at issue in this case. Skill dif-
ferential machines2 are governed by items three and four of Side Let-
ter No. 16 of the Imposed Agreement dated July 31, 1993, which is
part of the CBA. Those items state:

          3. Employees seeking to qualify and train for work subject
          to a differential under this Article will qualify and train on
          [their] own time for such work. Employees will be given
          reasonable cooperation from their supervisors to do so.

          4. An employee bidding on an assignment subject to a dif-
          ferential under this Article must be qualified, or demonstrate
          qualifications to [the] carrier on [their] own time, for such
          assignment before expiration of [the] bid period.

(J.A. 208).

On April 10, 1995, pursuant to the CBA's provisions, Norfolk bul-
letined a new position operating a piece of equipment at the Shop
known as the Cincinnati Milacron CNC Lathe (the CNC Lathe). Four
employees bid for the position, in order of seniority, they were: Cald-
well, Rick Lash (Lash), Steven Dickens (Dickens), and David Reid.
Other than his seniority, Caldwell had no qualifications for the CNC
Lathe position. Caldwell only had two months' experience operating
the lathe that was replaced by the CNC Lathe, and during those two
months he had required periodic assistance. Caldwell had no experi-
ence writing programs for the old lathe. Moreover, he had never oper-
ated a CNC Lathe, or any other machinery built by Cincinnati
Milacron, nor had he ever attended any courses to learn how to oper-
ate the CNC Lathe. Accordingly, Norfolk determined that Caldwell
had no qualifications for the CNC Lathe position. When Lash, the
_________________________________________________________________

2 A "skill differential" machine is one whose operator receives a higher
wage rate because of the higher skills required to operate it.

                     4
next most senior bidder, who is white, disclosed that he did not have
any experience operating CNC Lathes, Norfolk did not award him the
position.

The third most senior bidder was Dickens. Norfolk reviewed Dick-
ens' employment application that showed he had manually set-up,
programmed, and operated Cincinnati Milacron mills, boring
machines, drills, and lathes. Dickens had been involved with setting
up a Cincinnati Milacron vertical milling machine at the Shop and
had helped, on occasion, the employees operating that machine.
Based upon these qualifications, the CNC Lathe position was awarded
to Dickens. Dickens was then sent to the Cincinnati Milacron factory
for training.

On April 18, 1995, Caldwell filed an Equal Employment Opportu-
nity Commission (EEOC) charge alleging that he was discriminated
against due to his race because "[t]he position was awarded to a less
senior white employee." (J.A. 11). On May 20, 1996, the EEOC
determined that there was a reasonable basis to believe Caldwell's
discrimination charge and concluded that Norfolk had a "practice of
awarding jobs under the bid system based on company seniority" and
the CBA required "that employees seeking job bids shall be given a
reasonable trial to prove their qualifications." (J.A. 197).

On May 10, 1995, Caldwell commenced a grievance proceeding
through the Union protesting the assignment of the position to a
machinist with less seniority. On July 5, 1995, the grievance was
denied by Norfolk. Caldwell and the Union appealed, and, on October
10, 1995, Norfolk denied the appeal. On March 4, 1996, Caldwell, the
Union, and Norfolk agreed to submit the dispute for a hearing before
the Public Law Board (PLB).3 The PLB ruled that: (1) Norfolk's
interpretation of the CBA was correct; (2) the interpretation urged by
the Union and Caldwell (and accepted by the EEOC) was wrong; (3)
Norfolk had complied with the terms of the CBA in awarding the
_________________________________________________________________

3 A PLB is a private arbitration board established by a rail carrier and
a union under § 3 of the RLA. See 45 U.S.C. § 153. The parties may
establish a PLB as an alternative to submitting a dispute to the National
Railroad Adjustment Board (NRAB) for a final and binding decision
under RLA § 3. See id.

                    5
CNC Lathe position; and (4) Caldwell had not been discriminated
against.

After exhausting these administrative remedies and receiving a
"right to sue" letter from the EEOC, Caldwell filed this action against
Norfolk in the United States District Court for the Western District of
North Carolina, claiming that he was the victim of a racially discrimi-
natory breach of his rights under the CBA in violation of Title VII.
Specifically, Caldwell claimed that Norfolk violated Title VII
because, under the CBA, he was entitled to the CNC Lathe position
due to his seniority.

On October 24, 1997, Norfolk filed a motion for summary judg-
ment claiming it was entitled to judgment because: (1) Caldwell's
Title VII claim was preempted by the RLA because the racial dis-
crimination claim could not be resolved without interpreting the
CBA; (2) Caldwell could not prevail on his Title VII claim because
of the final and binding determination of the PLB that rejected his
interpretation of the CBA; and (3) Caldwell's Title VII claim failed
on the merits.

On March 3, 1997, the district court granted Norfolk's motion and
entered judgment in favor of Norfolk on the ground that Caldwell's
claim was preempted by the RLA because the racial discrimination
claim could not be resolved without interpreting the CBA. Caldwell
noticed this timely appeal.

II.

On appeal, Caldwell argues that the district court erred in conclud-
ing that his Title VII claim was preempted by the RLA. We need not
decide whether Caldwell's claim is preempted by the RLA, because,
even if Caldwell's claim is not preempted by the RLA, its lack of
merit is apparent. See Washington v. Union Carbide Corp., 870 F.2d
957, 960 (4th Cir. 1989) (holding that preemption issue need not be
decided if the insubstantiality of the underlying claim is apparent).

Caldwell alleges that Norfolk awarded the CNC Lathe position to
a white employee with less seniority in violation of his rights under

                    6
the CBA. Because his Title VII claim is based upon indirect evidence,
Caldwell's claim of discriminatory failure to promote must be ana-
lyzed under the McDonnell Douglas4 paradigm that contains a famil-
iar three-step proof scheme. See St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 511 (1993); Evans v. Technologies Applications & Serv.
Co., 80 F.3d 954, 959 (4th Cir. 1996). The first of the three steps
under McDonnell Douglas requires Caldwell to establish a prima
facie case of discriminatory failure to promote. To accomplish this,
Caldwell must demonstrate by a preponderance of the evidence that:
(1) he is a member of a protected class; (2) Norfolk had an open posi-
tion for which he applied; (3) he was qualified for the position; and
(4) he was rejected for the position under circumstances giving rise
to an inference of unlawful discrimination. See Hughes v. Bedsole, 48
F.3d 1376, 1383 (4th Cir. 1995); Carter v. Ball, 33 F.3d 450, 458 (4th
Cir. 1994). Under McDonnell Douglas, Caldwell cannot prove the
third element--that he was qualified for the CNC Lathe position.

Caldwell alleges that he was qualified because he was the applicant
with the most seniority. However, the CNC Lathe position for which
Caldwell applied is subject to a skill differential. Under the plain lan-
guage of the CBA, an employee bidding on a position subject to a
skill differential "must be qualified, or demonstrate qualifications to
[Norfolk] on [his] own time, for such assignment before expiration of
bid period." (J.A. 208). Other than his seniority, Caldwell can prove
no qualifications for the CNC Lathe position. Caldwell had only two
months' experience operating the lathe that was replaced by the CNC
Lathe and he had required periodic assistance during those two
months. Caldwell had no experience writing programs for the old
lathe. Moreover, he had never operated a CNC Lathe, or any other
machinery built by Cincinnati Milacron, nor had he attended any
courses to learn how to operate the CNC Lathe. Caldwell did not
prove to Norfolk that he was qualified to operate the CNC Lathe
before the bid period expired as required by the CBA. Therefore,
Caldwell cannot establish a prima facie case under McDonnell
Douglas. See St. Mary's Honor Ctr., 509 U.S. at 511. Accordingly,
Caldwell has failed to establish a claim of discriminatory failure to
promote under Title VII and Norfolk is entitled to summary judg-
ment.
_________________________________________________________________

4 McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973).

                    7
III.

For the reasons stated herein, we affirm the district court's grant of
summary judgment in favor of Norfolk.

AFFIRMED

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