Morgan v. Norfolk Southern Ry Co

Filing 23

MEMORANDUM OPINION AND ORDER For the reasons noted within, the court concludes that this case contains genuine disputes as to material facts, so that defendant is not entitled to judgment as a matter of law. Defendant's motion for summary judgment (Doc. 16) is DENIED. A pretrial conference is scheduled, in chambers, on August 22, 2014, at 10:30 a.m. before Judge William M Acker Jr. Signed by Judge William M Acker, Jr on 8/8/14. (SAC )

FILED
2014 Aug-08 PM 02:03
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
GREGORY MORGAN,

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Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY, et al.,
Defendants.

CIVIL ACTION NO.
2:13-cv-0257-WMA

MEMORANDUM OPINION AND ORDER
Plaintiff Gregory Morgan brings this action against defendant
Norfolk Southern Railway Company (“Norfolk”) seeking damages for
alleged

violations

of

the

anti-retaliation

provisions

Federal Railway Safety Act (“FRSA”), 49 U.S.C. § 20109.
has moved for summary judgment.

of

the

Defendant

The motion is fully briefed.

For

the reasons that follow, the motion will be denied.
Background
The FRSA provides that “[a] railroad carrier . . . may not
discharge,

demote,

suspend,

reprimand,

or

in

any

other

way

discriminate against an employee if such discrimination is due, in
whole or in part, to the employee’s lawful, good faith act done, or
perceived by the employer to have been done or about to be done[,]
. . . to refuse to violate or assist in the violation of any
Federal law, rule, or regulation relating to railroad safety or

1

security.”

49 U.S.C. § 20109(a)(2).

The question in this case is

whether plaintiff, a railroad employee, was demoted for refusing to
fabricate safety violations for the sake of making his safety
reports appear more thorough and impressive than justified by the
facts.

The parties are in agreement that such a refusal would be

a protected activity under the statute, but disagree as to whether
such a refusal actually occurred and, if it did, whether it was a
contributing cause of the disciplinary action.
Plaintiff explains the events upon which he bases his action
as follows: Defendant, a railroad company, desperately wanted to
give the appearance that it was improving its safety standards. It
thus instructed its Road Foremen of Engines (“RFEs”), including
plaintiff, to find and report more safety violations, along with
corresponding

corrective

action,

on

the

trains

they

managed.

Defendant went so far as to require a strict quota of safety
violations to be reported and, in a raging, screaming fit, a
supervisor specifically instructed plaintiff that if he was unable
to meet the quota, he was to make violations up in order to do so.
Plaintiff was unable to find enough violations to satisfy his
bosses, and did not want to malign the loyal engineers working
under him by writing up errors that they didn’t actually commit.
He

therefore

refused

to

meet

defendant’s

reporting

quota.

Defendant responded by “transferring” him to a position in a
2

different state, with a lower rank and lower pay.
to

resign

instead

of

accepting

the

Plaintiff chose

transfer.

He

claims

constructive discharge.
Defendant has an entirely different spin. Yes, defendant told
plaintiff to find more safety violations, but why wouldn’t it?
After all, the primary purpose of the RFE position is to uncover
safety violations.

Plaintiff reported by far the lowest number of

safety violations of any RFE with the company, a fact made more
alarming by the fact that, during the time period at issue here,
plaintiff’s division was suffering a spike in train derailments,
with dire risk to the lives and property of employees and the
public. Time and time again, plaintiff attributed these derailment
incidents to unavoidable equipment malfunction and the like, though
when defendant reviewed incidents with plaintiff, it was always
able to find safety violations that plaintiff had overlooked.
Defendant tried everything it could think of to improve plaintiff’s
performance.

It “encouraged” him, perhaps harshly, but without

imposing an actual “quota,” to include more safety violations in
his regular reports.

It went over specific incident reports with

him in painstaking detail.

It scheduled him for two “Performance

Improvement

Plans”

(“PIPs”),

trainings.

Plaintiff performed poorly in both PIPs, and his

performance

never

improved.

which

are

Defendant
3

essentially

strongly

corrective

implies

that

plaintiff is the type who simply can’t be bothered with paperwork.
At last, defendant had no choice but to transfer plaintiff to a
position he was better suited for.
Analysis
The

anti-retaliation

provisions

of

the

FRSA

are

recent

additions to the statute, and have never yet been interpreted in
this circuit.

This court finds persuasive and therefore follows

the analysis of the statute employed by the Third Circuit in Araujo
v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 156-57
(3d Cir. 2013).

As the Third Circuit explained, “[t]he FRSA

incorporates by reference the rules and procedures applicable to
Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (“AIR–21”) whistleblower cases.”
U.S.C. § 20109(d)(2)(A)).

Id. at 157 (citing 49

Under this framework, “an employee must

show, by a preponderance of the evidence, that ‘(1) she engaged in
protected activity; (2) the employer knew that she engaged in the
protected activity; (3) she suffered an unfavorable personnel
action; and (4) the protected activity was a contributing factor in
the unfavorable action.’” Id. (quoting Allen v. Admin. Review Bd.,
514 F.3d 468, 475–76 (5th Cir. 2008)).

Once the employee does

this, “the burden shifts to the employer to demonstrate ‘by clear
and convincing evidence[] that the employer would have taken the
same

unfavorable

personnel

action
4

in

the

absence

of

that

behavior.’”

Id. (quoting 49 U.S.C. § 42121(b)(2)(B)(ii)).

Defendant in this case denies that plaintiff has produced
evidence sufficient to satisfy the first and fourth elements of his
initial burden, namely, whether plaintiff engaged in protected
activity,

and

whether

unfavorable action.

it

was

a

contributing

factor

in

the

Defendant also briefly argues that it would

have taken the same unfavorable action even if plaintiff had
engaged in protected activity.
A.

Protected Activity

The parties’ dispute over the “protected activity” element is
a purely factual dispute, with no legal component. The parties are
in full agreement that fabricating safety violations on a safety
report would violate federal safety regulations, and thus that an
employee’s

refusal

to

fabricate

protected activity under the FRSA.

a

safety

violation

would

be

The only question is whether

plaintiff has produced evidence to reflect that defendant did, in
fact, instruct plaintiff to make one or more fabrications. If not,
plaintiff had nothing to refuse, and defendant had nothing to
retaliate against.
Plaintiff relies primarily on two pieces of evidence to show
that defendant instructed him to report safety violations that did
not occur.

First, he has produced an April 2010 email sent by

Daniel Bostek, plaintiff’s supervisor, to all of defendant’s RFEs.
5

The email says:
Every RFE on this division is expected to report on the
Tuesday May 4th safety call[] the total number of
proactive handlings [made.] . . . Each RFE should be
prepared to discuss not less than six (6) unique
handlings during the call. If you are not prepared to
discuss your handlings on the call, we will discuss them
in my office on May 5th at 0600am. . . . This activity is
not optional.
Bostek Email of April 23, 2010 (Pl.’s Ex. “D.17-2” at 11).
The import of this email is open to interpretation. Plaintiff
makes the argument that the jury can be expected to note that the
email lists an exact number of “handlings” (reports of safety
violations with proper corrective action) that are required, and
that it threatens reprisal if that number is not met.

The jury may

conclude from this that, by strong insinuation, defendant was
instructing plaintiff to fabricate safety violations, i.e., “this
is a strict quota, meet it by any means necessary, wink wink.”

On

the other hand, from defendant’s point of view, the jury should not
be allowed to read a “quota” into an email in which “quota” is not
mentioned.

The email impresses upon the RFEs the importance of

reporting

violations, but

the

“quota”

of six

reports

is

not

absolute.

An employee with a really great excuse might offer it to

Bostek during the May 4 telephone call or in the private meeting
the following day.
discipline.

The email does not advertise any automatic

More importantly, the email contains no reference

6

whatsoever to fabrication or falsification of safety reports.
Plaintiff, in order to win, would be expecting the jury to make a
significant, if not impossible, inferential leap.
Plaintiff’s explanation of the email, however, gains greater
strength when viewed in the context of his second primary evidence,
that is, plaintiff’s own deposition testimony of what occurred on
May 5, 2010.

Just as the email promised, plaintiff had been asked

to discuss six proactive handlings during a May 4 conference call
and, having failed to find six handlings, had been required to show
up in Bostek’s office at 6:00 a.m. the next day.
conversation was not a pleasant one.

Predictably, the

As soon as plaintiff walked

into the room, he says, “Mr. Bostek started hollering, ‘Why did you
not

get

six

violations.
violations.’”

violations?

My

boss

instructed

me

to

get

six

No matter how I had to do it, I was to show six
Morgan Dep. at 64 (Pl.’s Ex. “D.17-1” at 16).

Plaintiff says that he tried to explain that there were simply no
violations to report, but Bostek continued to yell: “No matter
what, if my boss tells me to do something, you are to do it no
matter how you are to do it.”

Id.

Plaintiff says that he tried to

explain that the only way he could report more safety violations
would be to make them up.

Bostek allegedly responded, “Well, I

would do whatever my boss instructed me to do.
it, I would get it done.”

However I had to do

Id. at 65 (Pl.’s Ex. “D.17-1” at 17).
7

This May 5 conversation, as described by plaintiff, provides
extra punch for the insinuation theory of the May 4 email.

The

conversation and the email, viewed together, provide sufficient
evidence for a jury to conclude that defendant instructed plaintiff
to fabricate safety violations.

It is undisputed that plaintiff

did not make any such fabricated reports.

Plaintiff has therefore

met his burden, for the purpose of defending summary judgment, of
showing that he engaged in a “protected activity” under the FRSA.
This is not to say, of course, that the jury will necessarily
agree with plaintiff once all relevant evidence is presented.

As

defendant rightly points out, plaintiff’s own deposition testimony
is blatantly self-serving, and the jury may choose not to credit
it.

Moreover, defendant argues, Bostek’s angry comments are much

less damning when viewed in full factual context.

In April, 2010,

at

oral

the

time

plaintiff’s

of

Bostek’s

division

was

email
on

and

pace

follow-up

to

suffer

comments,

approximately

72

derailment incidents for the year, an increase of almost 70% from
the previous year.

See RVD Report at 1 (Def.’s Ex. F.A. at 1).

Defendant’s management was understandably frustrated and chagrined.
Defendant says that Bostek’s so-called “quota” was spurred by a
desperate need to improve train safety, something that Bostek
thought would be achieved if the RFE’s found and reported more real
safety

violations,

not

made-up
8

ones.

Viewed

in

light

of

defendant’s apparent safety crisis, the jury may conclude that
Bostek’s angry “whatever it takes” comments were inspired by
justifiable incredulity at plaintiff’s claims that he could not
find safety violations, rather than that the comments were meant as
an order to fabricate violations. Finally, to the extent relevant,
defendant points out that any “quota” obligation apparently had the
desired effect.

Derailment incidents tapered off in the second

half of the year, with a final count of 49, only about a 14%
increase from the previous year.
It is not for the court to weigh the evidence designed to make
it more or less likely for the jury to interpret defendant’s
communications to plaintiff as an instruction to fabricate safety
violations.

It is enough at this stage to say that plaintiff has

produced sufficient evidence upon which a jury could find that his
interpretation is the correct one.

Defendant is therefore not

entitled to summary judgment. Its attack on the reliability and/or
significance of plaintiff’s evidence will make for an interesting
jury trial.
B.

Causation
The second issue on summary judgment consideration is over

whether plaintiff has produced sufficient evidence to carry his
burden of showing that “the protected activity was a contributing
factor in the unfavorable action.”
9

Araujo, 708 F.3d at 157.

Defendant has two arguments on this issue.

First, it points out

that plaintiff’s participation in the PIP programs was intended to
correct not only his failure to report enough safety violations,
but also several other shortcomings.

It was his failure to “pass”

the PIP trainings, including failure to improve on these other
issues, that caused his eventual demotion or transfer.

Defendant

says that the court must not second guess its demotion decision in
this context because doing so would violate the rule that the court
should not act “as a super-personnel department that reexamines an
entity’s business decisions.”

Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir. 1991).

Defendant next argues that the

demotion, which occurred in February, 2012, was too far temporally
removed from the May 2010 communications for there to be any causal
connection between the two.

Defendant points out that a DOL

regulation allows an employee to demonstrate causation by showing,
“for example, . . . the adverse personnel action took place shortly
after the protected activity.”

29 CFR § 1979.104(b)(2).

It

reasons that an adverse action that does not take place shortly
after the protected activity cannot show causation.

It cites a

number of Title VII cases for the proposition that an extended time
lapse between the protected activity and the adverse employment
action is a barrier to proving causation.
Defendants’ two arguments both fail for the same reason.
10

The

FRSA contains, on its face, a lighter causation standard than do
other employment retaliation statutes.
42

U.S.C.

§

2000e-3(a) (“It

Compare, e.g., Title VII,

shall be an

unlawful

employment

practice for an employer to discriminate against [an employee] . .
.

because

he

has

made

a

charge,

testified,

assisted,

or

participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”) (emphasis added), with the FRSA,
49 U.S.C. § 20109(a)(2) (Unlawful when the “discrimination is due,
in whole or in part, to the employee’s [protected act].”) (emphasis
added); see Araujo, 708 F.3d at 158 (“Considering the plain meaning
of the statute, FRSA burden-shifting is much more protective of
plaintiff-employees
Defendant’s

than

reliance

on

the

McDonnell

Elrod,

Douglas

which

dealt

framework.”).
with

the

Age

Discrimination in Employment Act, and the several time-bar type
cases,

which

dealt

with

Title

VII,

is

thus

misplaced.

The

standards developed in those cases are not applicable to this case.
Under the FRSA, a plaintiff need only show that retaliation
was a “contributing factor” to the adverse employment decision,
“which alone or in combination with other factors, tends to affect
in any way the outcome of the decision.”

Id. at 158 (quoting

Ameristar Airways, Inc. v. Admin. Review Bd., U.S. Dep't of Labor,
650 F.3d 562, 567 (5th Cir. 2011)).

11

If it is assumed that

defendant did instruct plaintiff to fabricate safety violations,
defendant’s apparent anger in response to plaintiff’s refusal is
enough

for

a

jury

to

find

that

plaintiff’s

refusal

was

a

contributing factor to defendant’s demotion decision.
Moreover, plaintiff has produced evidence that would satisfy
a much less lenient burden. In addition to circumstantial evidence
that

his

protected

activity

played

some

part

in

defendant’s

decision, plaintiff has presented direct evidence that defendant’s
motive was retaliatory, to the point of vengefulness.

Shortly

after the spring 2011 email and conversations, an anonymous RFE
sent an email to a company higher-up complaining about the quota,
and Bostek received a scolding phone call about it.

Plaintiff

alleges that Bostek responded by calling plaintiff, along with one
other RFE, into his office a second time.
apologize.

His purpose was not to

As plaintiff recounts: “[Bostek] looked at me straight

in the eye and said, ‘I’m going to fire whoever sent that email.’
. . . I said, ‘Boss, I didn’t send it.’ . . . He said, ‘I will find
out.’

He said, ‘And they will lose their job.

be a company officer.’”
19).

They will no longer

Morgan Dep. at 73 (Pl.’s Ex. “D.17-1” at

As with plaintiff’s other deposition testimony, whether the

jury will believe this or not is an open question.

But if the

testimony is believed, it provides adequate evidence upon which the
jury

can

find

that

plaintiff’s
12

refusal

to

fabricate

safety

violations

was

a

contributing

factor

to

defendant’s

demotion

decision.1

Indeed, this court ventures to guess that a jury would

be persuaded by this testimony, if they believe it, that the
demotion was, at least in part, payback for plaintiff’s protected
refusal to fabricate.
C.

Other Arguments
Conceding arguendo that plaintiff has met all elements of his

initial burden, defendant argues that it is still entitled to
summary

judgment

because

it

has

demonstrated

“by

clear

and

convincing evidence[] that the employer would have taken the same
unfavorable personnel action in the absence of that behavior.”
Araujo, 708 F.3d at 157.

Defendant claims that its standard

practice for underperforming employees was to schedule them for
PIPs and, if performance did not improve, transfer them to other
positions.

It presents evidence that it treated a large number of

other employees, none of whom were part of the alleged “quota”

1

This retaliatory behavior is arguably a better fit for 49
U.S.C. § 20109(a)(1)©, another paragraph of the statute, which
prohibits retaliation for “provid[ing] information . . . in any
investigation regarding any conduct which the employee reasonably
believes constitutes a violation of any Federal law, rule, or
regulation, . . . if the information is provided to . . . a person
with supervisory authority over the employee or such other person
who has the authority to investigate, discover, or terminate the
misconduct.” Plaintiff references this paragraph in complaint, see
Compl. ¶ 29, but the parties focus their summary judgment arguments
on the “refusal” language of § 20109(a)(2).
13

discussions, exactly the same way it treated plaintiff.

From this

it argues that its treatment of plaintiff was not affected in any
way by any possible refusal to falsify safety reports.
Oddly, defendant pursues its argument that plaintiff was
treated the same as other employees by pointing out dissimilarities
in his treatment.

No doubt in an effort to emphasize its overall

fairness and patience, defendant claims that “Mr. Morgan was the
only person given two PIPs [rather than just one,] and the only one
who was offered a transfer to another officer position when he did
not successfully complete his PIP.”
this

dissimilar

treatment

could

Def.’s Mem. at 36.
be

viewed

as

However,

evidence

that

defendant was trying to cover its tracks or talk plaintiff out of
litigation, and not as evidence of fairness and patience.

Even if

not so viewed, it will be up to the jury to determine whether
defendant has proven by the higher burden of “clear and convincing
evidence” that it would have reached the same decision without any
regard

whatsoever

to

plaintiff’s

refusal

to

fabricate

safety

violations.
CONCLUSION
For the foregoing reasons, the court concludes that this case
contains genuine disputes as to material facts, so that defendant
is not entitled to judgment as a matter of law. Defendant's motion
for summary judgment (Doc. 16) is therefore DENIED.
14

Unless the parties notify the court that they have settled the
case

or

made

arrangements

to

engage

in

alternative

dispute

resolution, a pretrial conference shall be held, in chambers, on
August 22, 2014, at 10:30 a.m.

A court reporter shall be present.

The court strongly encourages the parties to mediate.
DONE this 8th day of August, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

15