Head v. Norfolk Southern Ry. Co.

Filing 41

MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/13/2017. (KAM)

FILED
2017 Sep-13 AM 09:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

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

JASON HEAD,
Plaintiff
v.
NORFOLK SOUTHERN RY. CO.,
Defendant

}
}
}
}
}
}
}
}
}

Case No.: 2:15-cv-02118-RDP

MEMORANDUM OPINION
This case is before the court on Defendant’s Motion for Summary Judgment (Doc. # 26),
filed on February 10, 2017, and Defendant’s Motion to Strike Certain Evidence (Doc. # 34), filed
on March 31, 2017. The parties have fully briefed the motions, which are now under submission.
(Docs. # 27, 28, 29, 32, 36). For the reasons explained below, Defendant’s Motion to Strike is
due to be denied. And, Defendant’s Motion for Summary Judgment is due to be granted in part
and denied in part.
Defendant is a railroad carrier under 49 U.S.C. § 20102 and 49 U.S.C. § 20109 and
Plaintiff Jason C. Head (“Plaintiff”) was an employee within the meaning of § 20109. (Doc. #
28-20 at 1). Plaintiff claims that Defendant violated § 20109, also known as the Federal Railroad
Safety Act (“FRSA”), by (1) removing him from service on September 20, 2013, (2) charging
him with a rule violation and subjecting him to a disciplinary investigation, and (3) dismissing
him on February 14, 2014. (Doc. # 28 at 22). After careful review, the court finds there are
material issues of fact about whether Plaintiff’s safety complaints were protected activities that
contributed to Defendant’s decision to terminate Plaintiff’s employment.

I.

Statement of Facts
The facts set out in this opinion are gleaned from the parties’ submissions and the court’s

own examination of the evidentiary record. All reasonable doubts about the facts have been
resolved in favor of the nonmoving party. See Info Sys. & Networks Corp. v. City of Atlanta, 281
F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary judgment purposes only.
They may not be the actual facts that could be established through live testimony at trial. See Cox
v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).
A.

Plaintiff’s Employment History

Plaintiff was employed by Defendant as a carman from 1998 until February 14, 2014.
(Doc. # 32-2 at 1). At the times relevant to this case, Plaintiff worked as a gang leader on the
third shift at Norris Yard near Birmingham, Alabama. (Doc. # 28-1 at 102-03, 161-62, 227-28).
The gang leader is part of a crew of carmen, but is paid extra to arrive early and stay late during
shifts in order to complete daily train yard reports of the crew’s car inspections. (Docs. # 28-21
at 24; 28-26 at 4). As members of Defendant’s Mechanical Department, carmen regularly inspect
railcars on outgoing trains, perform light repairs on cars, and test the air brakes on the trains.
(Docs. # 28-1 at 137-38; 28-14 at 1; 28-26 at 2-3). If, during the course of the inspection, a
carman deems a railcar to be unsafe, the car receives a “bad-order tag” and is sent to the repair
shop. (Doc. # 28-1 at 12).
Norris Yard has two main yards, the East Yard and the West Yard. (Doc. # 28-26 at 3).
More trains depart from the West Yard, and it is longer than the East Yard. (Docs. # 28-26 at 3;
28-28 at 12-13). In September 2013, the Mechanical Department at Norris Yard had six Kubota

2

ATVs1 and Chevrolet trucks at its disposal for travelling between the diesel shop, car shop, and
inspection yards. (Doc. # 28-26 at 2). Typically, at that time, the West Yard crew used two
Chevrolet trucks, while the East Yard crew used two Kubotas. (Doc. # 28-1 at 99). Carmen who
worked in the West Yard traveled along “the main thoroughfare” with 18-wheelers and dump
trucks. (Id. at 82-83).
During Plaintiff’s tenure at Norfolk Southern, but at least several years2 before a
September 2013 disciplinary action that is at issue in this case (and discussed in detail below),
Plaintiff came to believe that Norfolk Southern’s management was responding to an increase in
Federal Railway Administration (“FRA”) inspections at the Norris Yard by discouraging carmen
from taking mechanically defective cars out of service. (Id. at 46-47). Plaintiff has testified that
several managers at the Norris Yard, including (1) Steve Collier, a general foreman, (2) Tom
Bartley, a former superintendent at Norris Yard, (3) Tim Spence, Bill Swanson, and G.G. Jones,
mechanical supervisors, (4) David Walker, a senior general foreman, and (5) Ed Mickens, a
division manager, discouraged employees from bad-ordering cars.3 (Id. at 29-56). Plaintiff
recalled that Swanson “made it appear[ ] that [he] had fraudulently bad[-]ordered a car” because
Collier and Swanson made him explain why he reported a car for droplets of hydraulic fluid that
were present at the time of Plaintiff’s inspection. (Id. at 37-41). Although the hydraulic fluid had

1

An all-terrain vehicle, or “ATV,” is “any motorized, off-highway vehicle designed to travel on 3 or 4
wheels, having a seat designed to be straddled by the operator and handlebars for steering control.” 15 U.S.C. §
2089(e)(1)(A).
2

During his deposition, Plaintiff could not recall when the supervisors discouraged him from bad-ordering
rail cars. (See Doc. # 28-1 at 30-31, 42, 44, 49, 52). Plaintiff testified, though, that an incident with Bill Swanson
occurred well before Plaintiff’s leave of absence from Norfolk Southern in 2011. (Id. at 42). And, he asserted that
David Walker discouraged him from bad-ordering cars “well before” his leave of absence. (Id. at 45). Finally,
Plaintiff recalled that G.G. Jones questioned some of his bad-order tags years before his leave of absence. (Id. at 5253).
3

Another unnamed supervisor told the carmen “to keep the bad orders low.” (Id. at 60-61).

3

been “wiped away from the truck side frame,” Plaintiff found more hydraulic fluid underneath
the frame. (Id. at 38). Moreover, Collier threatened to “abolish [Plaintiff’s] job” by changing his
schedule so that he could not work as a carman and attend school. (Id. at 63-64).
In 2004, Plaintiff filed a complaint with the FRA. (Id. at 11, 13). In the FRA complaint,
Plaintiff alleged that Collier had illegally removed the bad-order tags for four railroad cars and
had sent them on to further destinations without performing necessary repairs.4 (Id. at 12-16).
According to Plaintiff, Ferrell Arms, a FRA agent, told him that the cars were in fact defective
and should have been bad-ordered.5 (Id. at 14). Collier was not interviewed by the FRA or
disciplined for an FRA violation after the cars were sent on without repair. (Doc. # 28-14 at 2;
see also Doc. # 28-1 at 16-17 (Plaintiff testifying that he did not know whether Collier was
disciplined for the incident)). Following his FRA complaint, John Manning, another carman, told
Plaintiff that he heard management state that they were “out to get” him. (Doc. # 28-1 at 254-55).
Manning informed Plaintiff that he had been questioned about the bad-ordered railcar with
leaking hydraulic fluid because of management’s feelings towards him. (Id.). Eric Churilla, a
supervisor, told Plaintiff not to bad-order any more cars because they were “looking for” him.6
(Doc. # 28-1 at 255).
In 2004, Norfolk Southern disciplined Plaintiff for sleeping in a company vehicle while
on duty. (Doc. # 28-11 at 2). He received a deferred 15-day suspension for the offense. (Id.). In

4

Running bad-ordered cars is an FRA violation, unless the cars are being moved for repair purposes. See
generally 49 C.F.R. § 215.9.
5

In contrast, Collier has recounted that another carman and he appropriately removed the bad-order tags
because the air brakes on the railcars were in good working order. (Doc. # 28-14 at 2). Given that this case is at the
Rule 56 stage, the court accepts Plaintiff’s averment that Arms informed him of an FRA violation concerning the
railcars.
6

Defendant did not raise any hearsay objection to this statement in its Motion to Strike. (See generally
Doc. # 34).

4

November 2010, Norfolk Southern disciplined Plaintiff for excessive speeding and careless
driving. (Id.). Plaintiff received a five-day deferred suspension for that offense. (Id.). In August
2011, Norfolk Southern disciplined Plaintiff for hanging an end-of-train device on a train
“without blue flag protection.”7 (Id.). Plaintiff received a deferred 30-day suspension for that
violation. (Id.). Then, in November 2011, Plaintiff disciplined Plaintiff again for failing to
display a blue flag. (Id.). Plaintiff received a five-day suspension for that offense, and Norfolk
Southern also activated the previously deferred 30-day suspension. (Id.). In December 2011,
Plaintiff left his position under a leave of absence after breaking the scaphold bone in his left
hand. (Id. at 1; Doc. # 28-1 at 77). He returned to work in June 2013. (Doc. # 28-11 at 1).
B.

Plaintiff’s Use of the “Unsafe” Kubota ATV

In September 2013, one of the trucks in the West Yard was taken out of service due to
front axle damage. (Doc. # 28-1 at 277). From September 12, 2013 until September 18, 2013, the
West Yard crew used a Kubota ATV while their truck was in the repair shop. (Id. at 95-96, 103).
Plaintiff drove the ATV assigned to the West Yard crew during that week. (Id. at 95). Although
Plaintiff “complained about the Kubota from the beginning,” his complaints were not always
related to the vehicle’s safety. (Id. at 96-97). Plaintiff’s first grievance to Mike Weaver, a
supervisor, concerned only the fact that that he had to drive the Kubota. (Id.). Plaintiff has
testified that he did not complain about the Kubota’s safety during his initial complaints to
Weaver because he “was just gaining experience with the Kubota at that point.” (Id. at 96).
Weaver allowed the West Yard crew to use his supervisor’s truck until the other truck was
repaired, but Plaintiff continued to use the ATV, while other members of the West Yard team
used Weaver’s truck. (Id. at 186-187). Plaintiff did not complain about the assignment of the

7

Carmen use a blue flag or blue light while inspecting trains to warn others that the track is blocked. (See
Doc. # 28-1 at 145).

5

ATV on the daily reports he submitted for September 12, September 15, September 16, or
September 17. (See Doc. # 28-27 at 1, 4-6).
On September 18, 2013, Plaintiff worked as the gang leader of the five-person third shift
crew in the West Yard. (Doc. # 28-1 at 103). The Third Shift started working at 11 p.m. the night
of the 18th and ended work at 7 a.m. the morning of September 19th. (Id. at 103, 105; Doc. # 2821 at 19). Around that time, the West Yard’s truck was returned from the repair shop. (Doc. #
28-1 at 96). Upon the vehicle’s return, Collier and Jeff Freeman, a mechanical supervisor,
decided to assign the repaired truck to the East Yard crew instead of the West Yard crew. (Docs.
# 28-21 at 13-14; 28-26 at 4; 28-28 at 22-23). Freeland has explained that they reassigned the
truck “to protect [their] operation” because West Yard crews -- on all three shifts -- had damaged
several vehicles.8 (Doc. # 28-21 at 14). However, Plaintiff has testified that the East Yard crew
did not use the truck at all because one of the bridges in the East Yard was too narrow for a
truck. (Doc. # 28-1 at 271-74). Although Norfolk Southern’s paperwork stated that the truck was
assigned to the West Yard, it remained parked in the East Yard. (Id. at 273-74).
Plaintiff has recounted that the Kubota ATV presented several safety issues. First, he
observed that the Kubota used by the West Yard crew had an inadequate windshield and the
driver could not see through it. (Id. at 81). Second, he believed that the ATV was unsafe because
workers had to drive it on the same road with 18-wheelers and dump trucks. (Id. at 82-84).
Plaintiff complained about this issue at some point before September 18, 2013. (Id. at 84). Third,
he also complained that the ATV had a governor on its engine. (Id. at 85). Plaintiff explained that
the governor created problems because the ATV backed up traffic on the road in the West Yard.
(Id. at 85-86). Finally, Plaintiff asserted that the ATV could not handle the rough roads in the

8

In contrast, Ryan McLain has averred that Freeman and Collier reassigned the truck so that each yard
crew would have a truck and an ATV to use. (Doc. # 28-26 at 4-5).

6

West Yard. (Id. at 88-89). He contends that a driver could not reduce the effect of the rough
roads through throttle control because the power would suddenly increase as the driver applied
more throttle. (Id. at 89-91).
C.

Plaintiff’s Complaints About the Kubota ATV

At 6:44 a.m. on September 19, 2013, Plaintiff contacted Freeman and asked him when
the truck would be returned to the West Yard. (Doc. # 28-21 at 24-26). Freeman told him “the
truck wasn’t coming back out there” and refused to discuss the issue further because a train had
derailed in Norris Yard. (Docs. # 28-1 at 208-10; 28-21 at 24-26). Plaintiff told Freeman that he
“wanted to come and see him” because Plaintiff was “soaked” after driving the ATV for the
shift. (Doc. # 28-21 at 26).
At 7:10 a.m., Plaintiff complained to Mariola Green, a clerk who worked in Norris
Yard’s locomotive shop, that Freeman was an “asshole” and a “motherfucker” for assigning the
ATV to the West Yard because “riding in the [open-air] Kubota wasn’t good” for his health.
(Docs. # 28-5 at 22-23; 28-22 at 6, 9-10). Plaintiff attempted to call Freeman again to arrange a
meeting but did not reach him. (Doc. # 28-23). Green testified that Plaintiff appeared upset, but
she did not believe Plaintiff was dangerous. (Docs. # 28-5 at 23; 28-22 at 11). Green did not
report Plaintiff’s outburst as a threat, despite the fact that Norfolk Southern employees who
perceive serious threats are expected to report them immediately. (Docs. # 28-22 at 34; 28-25 at
77). Indeed, Green conversed with Plaintiff about their daughters after the outburst. (Doc. # 2823). Green stated during her deposition that she was “used” to that type of language. (Doc. # 2822 at 10). And, Freeland admitted to using the word “motherfucker” and other curse words while
working. (Doc. # 28-21 at 62-63).

7

Following his conversation with Green,9 Plaintiff stated to Chris Dodson, another
carman, that Freeman had “an ass whipping coming.” (Docs. # 28-6 at [158]; 28-9). Dodson
went to work with Freeman on the train derailment, but did not mention Plaintiff’s comment to
Freeman while at the derailment site. (Doc. # 28-21 at 30). After the two men returned to the
office, Dodson relayed Plaintiff’s comment to Freeland, who asked Dodson whether he was
serious. (Id. at 30-31). Although Dodson replied to the question by saying “that’s what he said,”
he did not affirmatively answer whether or not he perceived the threat to be a serious one. (Id. at
31-32). Freeman reported Plaintiff’s statement to Collier at approximately 1:00 p.m., after
Collier had arrived at Norris Yard. (Id. at 33-34).
After his conversation with Dodson, Plaintiff prepared the daily safety and maintenance
checklist for his shift. (See Doc. # 28-1 at 176, 178). In the report, Plaintiff explained that the
third shift had to work on a train transferred to them by the second shift. (Doc. # 28-3). Plaintiff
also explained other delays that the third shift encountered on its assigned trains. (See id.). Then,
he discussed the assignment of the ATV to the West Yard crew:
Much time was lost [ ] due to Mech. Super. Jeff Freeland giving our yard truck to
the East Yard who doesn’t need it & historically hasn’t used it, & giving us a
Kubota to traverse the expansive perimeter of the West Yard @ a snail’s pace.
Mech. Super. Freeland denies a policy of blanket punishment but the facts speak
clearly. The Kubota is inappropriate for West Yard use. It exposes us to hazards
& dangers not encountered in a yard truck given the extreme distances we are
required to traverse in performance of our duties. Freeland took our truck &
assigned us a Kubota due to truck damage done by a few.
(Id.).10 Plaintiff delivered copies of the daily report to Ryan McLain, a division manager, and
Greg Swany, a mechanical superintendent, at approximately 11:00 a.m. on September 19. (Doc.

9

Plaintiff has agreed with Dodson’s averment that their conversation occurred between 7:15 and 7:45 a.m.
on September 19. (Docs. # 28-1 at 182; 28-9).
10

Kenneth Cooper, a local union chairman, has indicated that a consulting firm investigated management’s
use of “collective punishment” and that he participated in the process. (Doc. # 32-3 at 3). According to Cooper, the

8

# 28-1 at 179-80). Plaintiff also sent copies of the daily report to a distribution list for the
mechanical department. (Id. at 189-90). McLain and Swany were not in their offices when
Plaintiff submitted the report to them. (Id. at 187-88).
Plaintiff worked on the third shift at the West Yard during September 19 and 20, 2013.
(Doc. # 32-2 at 3). At the beginning of his September 19 shift, Plaintiff contacted Ladel Miles, a
supervisor, to again voice his concerns about the safety of the Kubota. (Doc. # 28-28 at 24-25).
Specifically, Plaintiff complained about his ability to see through the ATV’s windshield. (Doc. #
28-1 at 166). Miles met Plaintiff in the West Yard office and inspected the Kubota. (Docs. # 28-1
at 166-67; 28-28 at 25). Miles also rode with Plaintiff in the ATV for a distance. (Doc. # 28-1 at
168-70). Miles did not find that the Kubota was unsafe, but he nevertheless attempted to resolve
Plaintiff’s complaints by cleaning the windshield. (See Doc. # 28-28 at 30-31). Plaintiff asked
Miles whether the truck would be returned, but Miles replied that the allocation of vehicles “had
already been made by [his] supervisors.” (Id. at 31).
Plaintiff was not formally disciplined for his comments in the September 18 train report.
But, on September 20, Plaintiff was counseled against using the daily report to raise complaints
because the report was “a record widely circulated within [Norfolk Southern].” (Doc. # 28-26 at
8). Collier, Freeman, and Miles attended the counseling meeting. (Doc. # 28-1 at 118). The
managers told Plaintiff that the daily report “was not a proper place to report safety violations.”
(Id.). The managers also complained about Plaintiff’s management of the third shift and accused
them of “goofing off.”11 (Id. at 152-53). Plaintiff was unfamiliar with any written grievance
consulting firm “found that the Mechanical Department work environment in Birmingham was intimidating to
employees and that there were bad misuses of the discipline process by [Norfolk Southern] management.” (Id.).
Cooper has stated that the use of collective punishment harmed employees’ morale and created “a less safe work
environment” at Norris Yard. (Id.).
11

Plaintiff suggested during the deposition that the management complaints occurred while they were
discussing the bad-order tags placed on two railcars. (Doc. # 28-1 at 152). But, the record is unclear as to whether

9

procedure for safety issues. (Id. at 120-21). Plaintiff asked Collier, Freeman, and Miles why the
truck had been reassigned to the East Yard. (Id. at 127). When Miles summoned Plaintiff to the
meeting, he told Plaintiff -- in response to a question -- that he did not need to bring a union
representative. (Id. at 128). Nevertheless, Plaintiff brought a union representative, Kenneth
Cooper, to the meeting. (Id. at 128-29).
D.

The Norfolk Southern Disciplinary Process

Under the employee conduct rules in the Norfolk Southern Corporation Book of Safety
and General Conduct, “[e]mployees are to conduct themselves in a professional manner and not
engage in behavior or display material that would be considered offensive or inappropriate.”
(Doc. # 28-5 at 21). This includes the making of disparaging remarks. (Id.). According to Dennis
Kerby, Norfolk Southern’s Assistant Vice President of Labor Relations, the level of appropriate
disciplinary action for inappropriate language depends on the circumstances.12 (Doc. # 28-24 at
12-13). The Norfolk Southern disciplinary system is intentionally flexible to address “things that
can be corrected” while also addressing “situations where maybe someone has shown that they
are incorrigible or can’t correct their activity.” (Id. at 16). Kerby testified that use of the words
“asshole” and “motherfucker” could subject an employee to a range of discipline from
counseling to a formal disciplinary hearing, depending primarily on the particulars of the
employee’s conduct and secondarily on the employee’s service record, history, and intent. (Id. at
15-16). He explained that an employee could be terminated for using those expletives to refer to
another specific individual if (1) the employee “didn’t have the best record” and (2) the
Collier, Freeman, or Miles made any negative comment about the bad-order tags issued by the third shift on
September 18.
12

Defendant utilizes a progressive discipline system. Low-level punishments are handled with the START
program, which differentiates between “START minor” infractions and “START serious” infractions. More serious
disciplinary infractions are handled through a formal disciplinary hearing initiated with a charge letter. (Doc. # 32-3
at 5).

10

employee could not correct his or her behavior. (Id. at 16). Kerby understands a threat is “some
kind of verbal statement or action that the other individual would perceive as intended to cause
some kind of harm or injury or put him at some type of risk.” (Id. at 18).
E.

The Investigation, Plaintiff’s Dismissal, and Post-Dismissal Proceedings

On September 20, 2013, McLain asked permission of Swany by email to remove
Plaintiff from service because of “conduct unbecoming [of] an employee.” (Doc. # 32-4 at 6364). McLain asked Kevin Krull, a Norfolk Southern division manager in Knoxville, Tennessee,
to conduct the removal hearing. (Id. at 63). In his email to Krull, McLain labeled Plaintiff as
“easily the worst guy we have when it comes to attitudes [sic].” (Id.). Despite McLain’s request,
he never disciplined Plaintiff between June 2013 and September 2013.13 (Doc. # 28-25 at 3).
Nor was McLain aware of any safety complaints made by Plaintiff until September 19, 2013.
(Id.).
At approximately 5:00 p.m. on September 20, Collier called Plaintiff and told him that
Norfolk Southern was taking him out of service pending a formal investigation. (Doc. # 28-1 at
191-92). Collier told Plaintiff that he did not know the reason for the investigation. (Id. at 192).
No one at Norfolk Southern questioned Plaintiff about his comments to Green or Dodson before
he was removed from service. (Id. at 192, 216).
On September 23, 2013, McLain charged Plaintiff with conduct unbecoming of an
employee for: (1) engaging in offensive and/or inappropriate behavior, in violation of Norfolk
Southern’s General Regulation GCR-1; and (2) making a threatening statement. (Doc. # 28-7 at
1). McLain’s charge did not specify which regulation Plaintiff violated by making a threatening

13

McLain began working at the Norris Yard in June 2012, while Plaintiff was on a leave of absence. (Doc.
# 28-26 at 3).

11

statement. (Id.). Norfolk Southern did not give Plaintiff the option of waiving a disciplinary
investigation. (Id.).
In an email exchange occurring on September 24, 2013, McLain informed Krull that
Plaintiff’s union had indicated that they would produce two witnesses to rebut the charges
against Plaintiff. (Doc. # 32-4 at 65). McLain stated his belief that Norfolk Southern could “get
around” their testimony because he doubted that both witnesses were in the locomotive office
“for the whole 30 minutes or so that [Plaintiff] was there.” (Id.). In response, Krull asked
whether a witness who had testified in an earlier investigation, Gulledge, would be testifying at
Plaintiff’s hearing. (Id.). McLain replied, “No, unfortunately. The charged employee thinks he’s
smarter than Gulledge.” (Id.). The email exchange ended with Krull writing, “We shall see. I like
a challenge.” (Id.). During his deposition, Krull explained that the earlier investigation described
in the email exchange had presented a challenge to Krull because Gulledge had provided detailed
information for the employee’s case. (Doc. # 32-4 at 86). Krull recalled asking whether Gulledge
would be present because, as Krull put it, Gulledge was “an exemplary witness in my mind.” (Id.
at 85). Despite Gulledge’s “exemplary” testimony, Krull did not find his testimony credible.
(Id.).
Krull presided over the disciplinary hearing held on January 16, 2014. (Doc. # 28-5 at 1).
Plaintiff has acknowledged that no one directly referenced or discussed the FRA complaint
investigated by Ferrell Arms during the termination proceedings. (Doc. # 28-1 at 253). During
the hearing, McLain introduced the September 19 daily report as an exhibit and read Plaintiff’s
report about the ATV to Krull. (Doc. # 28-5 at 13-17). McLain also recounted that he directed
Collier “to counsel [Plaintiff] regarding the comments on his train yard sheet in that that
document is not the appropriate vehicle for [Plaintiff] to voice his opinion and that [Plaintiff]

12

should have sent a separate email with his concerns.” (Id. at 17). McLain explained that Plaintiff
should not have included the complaints about the ATV in the daily report because such reports
were “official Norfolk Southern documents.” (Id. at 27). And, he asserted that the ATV
presented no “additional hazard or danger” as compared to a truck. (Id. at 28). He admitted that
he had used profanity while working for the railroad, but he denied directing profanity towards a
particular individual. (Id.).
Freeman also testified that he heard profanity used at the work site by supervisors and
carmen (id. at 75-76), but he similarly distinguished profanity from profanity “directed at
somebody, or about somebody.” (Id. at 76). Green affirmed that she had heard profanity used in
the office. (Doc. # 28-6 at 40). According to Green, supervisors had used profanities when
discussing situations, but she could not recall whether they had directed profanities toward
individuals. (Id.). Plaintiff candidly confirmed that he used profanity during the conversation
with Green. (Id. at 70). He affirmed that he said “something close” to the statement reported by
Dodson. (Id. at 72-73).
Following the hearing, Krull recommended to Norfolk Southern’s Labor Relations
Department that Plaintiff be terminated and the Department approved that recommendation.
(Doc. # 1 at ¶ 73).14 On February 14, 2014, Krull informed Plaintiff of his termination in a letter
drafted by Labor Relations. (Id.). (See also Doc. # 32-4 at 73) (confirming that Krull sent the
letter to Plaintiff).
On February 19, 2014, Plaintiff filed a complaint with the regional director of the
Occupational Safety and Health Administration (“OSHA”). (Doc. # 28-2). In his OSHA
complaint, Plaintiff claimed that Norfolk Southern had discriminated against him in violation of

14

To be clear, Defendant has admitted these allegations in the complaint. Krull’s recommendation and the
February 14, 2014 termination letter are not in the Rule 56 record.

13

§ 20109. (Id. at 1). The complaint discussed Plaintiff’s history of “complaints about hazardous
conditions and safety issues” and noted that Plaintiff had earlier refused to quit bad ordering cars,
despite management’s removal of bad order tags. (Id.). It stated that Plaintiff had reported
“safety issues” concerning the “inadequate and unduly hazardous Kubota vehicle” in the
September 18-19 daily report. (Id.). In response, the OSHA complaint asserted that management
harassed Plaintiff during the September 20 meeting to intimidate him. (Id. at 1-2). When the
harassment failed, the complaint alleged that Norris Yard management took him out of service
and terminated him. (Id. at 2).
On August 5, 2014, following its investigation, OSHA issued a decision finding no
reasonable cause to support the § 20109 complaint. (Doc. # 28-20). On August 14, 2014,
Plaintiff objected to OSHA’s findings and requested a hearing before an Administrative Law
Judge (“ALJ”). (Doc. # 1 at ¶ 87). On October 27, 2015, Plaintiff notified the ALJ of his intent to
file this lawsuit. (Id. at ¶ 88). On November 20, 2015, Plaintiff filed this suit.
F.

Norfolk Southern’s Discipline of Identified “Comparators”

In their briefing, the parties have discussed three prior cases of profanity and threats in
the Alabama Division of Norfolk Southern. (See, e.g., Doc. # 28-26 at 9-10). In a 2009
altercation, carman E.B. Roy physically threatened a student carman. (Id. at 9). Roy stated that
he would “knock [his] f--- white ass out” and “punch [him] in the f---ing mouth, bitch.” (Id.).
McLain, who was then a general foreman in New Orleans, charged Roy with a violation of
General Regulation GCR-1. (Id. at 9-10). Following a disciplinary hearing, Norfolk Southern
dismissed Roy. (Id. at 10). Cooper, who represented Roy as a local chairman for the union shop,
has distinguished Roy’s incident from Plaintiff’s incident because Roy’s incident was “much

14

more serious,” it was “much more dangerous,” and it presented “a racial component and racial
slurs.” (Doc. # 32-3 at 5-6).
In July 2013, carman A.D. Moore confronted General Foreman Collier and threatened
him. (Doc. # 28-26 at 9). Collier told Moore that he would be removed from service for
providing a false reason for missing work. (Id.). Moore threatened to “kill that mother---er” and
had to be physically restrained by Cooper. (Docs. # 28-26 at 9; 32-3 at 6). During the course of
that conflict, Moore broke the glass window in the car shop door. (Doc. # 32-3 at 6). According
to Cooper, “[the] situation came very close to a very violent physical assault.” (Id.). McLain
removed Moore from service and charged him under General Regulation GCR-1. (Doc. # 28-26
at 9). Moore resigned from Norfolk Southern prior to a disciplinary hearing. (Id.).
In March 2015, two gang leaders, S.S. Smith and D.S. Brown, argued in front of the
Birmingham car shop office over the combination to a supervisor’s door lock. (Doc. # 32-3 at 45). The two men threatened each other with profane language. (Id. at 5). Ultimately, one gang
leader told the other, “I’m going to kill you motherfucker.” (Id.). When a foreman informed
Cooper about the incident, the foreman expressed uncertainty about whether the gang leaders
would receive dismissal charges. (Id.). But, after Swany reviewed the incident, Cooper learned
that the gang leaders would not receive dismissal charges. (Id.). Both gang leaders were given a
ten-day deferred suspension.
II.

Defendant’s Motion to Strike
Plaintiff relies on the affidavit of Kenneth Cooper, a union representative, to support his

claims. Defendant argues that Cooper’s affidavit, all of its exhibits, and any portions of
Plaintiff’s reply brief discussing the affidavit should be stricken from the Rule 56 record because
the opinions expressed by Cooper are (1) irrelevant, (2) hearsay under Federal Rule of Evidence

15

801, (3) duplicative and conclusory under Federal Rule of Evidence 701(b), and (4)
contradictory of Plaintiff’s testimony. (Doc. # 34 at 2-3). For the following reasons, the court
disagrees.
As an initial matter, Plaintiff argues that Defendant’s Motion to Strike is procedurally
improper because it is not directed towards a pleading. (Doc. # 36 at 2). This assertion reflects
different approaches that federal courts take on the appropriate procedural vehicle to contest
Rule 56 evidence. Some courts permit motions to strike that challenge evidence submitted into
the Rule 56 record because the Federal Rules of Civil Procedure do not provide another means to
contest the evidence’s sufficiency. See, e.g., Morris v. Precoat Metals, 2013 WL 830868, at *2
(N.D. Ala. Mar. 4, 2013) (explaining that a motion to strike can be treated like a motion in
limine). Other courts allow a party to challenge Rule 56 evidence through a motion to exclude.
See, e.g., UCB, Inc. v. Teva Pharm. USA, Inc., 2015 WL 11199058, at *9 (N.D. Ga. Mar. 18,
2015). Still other courts require a party to challenge the opposition’s factual assertion, rather than
its submitted evidence, on the ground that the factual assertion “cannot be presented in a form
that would be admissible in evidence.” See, e.g., Norris v. GKN Westland Aerospace, Inc., 2013
WL 440755, at *1 (M.D. Ala. Feb. 5, 2013) (quoting Fed. R. Civ. P. 56(c)(2)). Given the
divergent case law on this issue, the court finds it appropriate to consider the merits of
Defendant’s Motion to Strike. Cf. Stuckey v. Ala. Bd. of Pardons & Paroles, 2012 WL 3670644,
at *1 n. 2 (M.D. Ala. Aug. 27, 2012) (considering the substance of a party’s motions to strike
even though “the form of the motions is not grounded in a federal procedural rule”).
The standard of relevance for admissible testimony is well known. Evidence is relevant if
it “has any tendency to make a fact more or less probable than it would be without the evidence,”
and that fact “is of consequence in determining the action.” Fed. R. Evid. 401; see also

16

McCaskill v. Ray, 279 F. App’x. 913, 915 (11th Cir. 2008). Cooper’s affidavit addresses the
safety of the Kubota ATV, the use of blanket punishment at the Norris Yard, and Norfolk
Southern’s response to similar incidents of profane threats to commit violence within the
Alabama Division of Norfolk Southern. (See Doc. # 32-3 at 2-6). Cooper’s statements are
relevant because they concern whether Plaintiff’s report was submitted in good faith, whether
Plaintiff reported a hazardous safety condition, and whether Defendant would have terminated
Plaintiff in the absence of any protected conduct.
Further, Cooper’s testimony about the East Yard’s use of a truck and the use of blanket
punishment satisfy Rule 701, which permits opinion testimony so long as the opinions are (a)
rationally based on the witness’ perception, (b) helpful to clearly understanding the witness’
testimony or to determining a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702. Cooper’s testimony is neither scientific nor
technical, and his comments are based on his first-hand knowledge of the operations at the Norris
Yard, gathered through his 37 years as a carman and his work as a local chairman for the
Brotherhood of Railway Carmen. (See Doc. # 32-3 at 2) (describing Cooper’s experience).
Cooper also had first-hand knowledge of the September 20 meeting between Plaintiff and Norris
Yard managers, and his views about the reasons for the “heated” meeting are helpful to
determining whether Norfolk Southern would have terminated Plaintiff in the absence of the
alleged protected statement in the daily report. Thus, Cooper’s opinions on these matters are
relevant and admissible.
Defendant argues that Cooper’s testimony and opinions concerning a consultant’s study
of blanket punishment are inadmissible because Cooper relies on hearsay evidence to present an
irrelevant issue. The court is not convinced. Contrary to Defendant’s argument, blanket

17

punishment is a relevant issue in this action because Plaintiff has argued in his opposition brief -and alleged in his complaint -- that his complaint about blanket punishment presented a safety
issue. (See Doc. # 36 at 21) (“Moreover, the train yard report raises a valid concern regarding
blanket or collective punishment, which is also a safety issue, as it creates bad morale.”). And,
Cooper has testified that he personally participated in the investigation. Accordingly, Cooper’s
testimony about the investigation into blanket punishment at Norris Yard is relevant to this case.
Likewise, Cooper’s lay opinion testimony that blanket punishment harmed employees’ morale
and created a “less safe work environment” is admissible opinion testimony based on Cooper’s
personal experience as a carman and local union representative. (See Doc. # 32-3 at 2-3). These
opinions are relevant to whether Plaintiff made a good faith safety complaint when discussing
the alleged use of blanket punishment.15
Finally, Defendant seeks to strike Cooper’s testimony about the March 2015 incident
between S.S. Smith and D.S. Brown. (Doc. # 34 at 8-9). Defendant claims that the evidence is
hearsay because Cooper lacks personal knowledge about the incident and relies on statements
made by other individuals. (Id. at 8). But, Cooper has testified that he discussed the matter with
Norris Yard management as a union representative.16 (Doc. # 32-3 at 5). And, the statements
made by Eric Thomas are non-hearsay statements by a Norfolk Southern’s employee within the
scope of his employment relationship with Norfolk Southern. See Fed. R. Evid. 801(d)(2)(D).
The discipline reports submitted by Plaintiff show that Thomas was the officer who signed off on

15

In contrast, the printout and magazine article attached to Cooper’s affidavit (Doc. # 32-3 at 16-22) do
not specifically discuss the use of collective punishment at Norfolk Southern. And, these exhibits would be hearsay
evidence if considered for the truth of the matters stated therein. At least arguably, these documents may be related
to the question of whether Plaintiff had a good faith basis for complaining about blanket punishment without raising
hearsay concerns. But, the court finds that the documents are not relevant to that issue because they do not discuss
collective punishment. In any event, although the court denies Defendant’s motion to strike these documents, it
notes that they do not present material evidence in support of either party’s argument.
16

Indeed, Cooper was the designated union representative for Smith and Brown. (Docs. # 32-3 at 24, 26).

18

Smith’s and Brown’s discipline. (See Doc. # 32-3 at 24, 26). For these reasons, the court finds
that Cooper’s testimony about Smith’s and Brown’s incident is not due to be excluded from the
Rule 56 record on hearsay grounds.
Defendant also argues that the evidence about Smith’s and Brown’s altercation is
irrelevant to this case because they are not appropriate comparators. Defendant insists that Smith
and Brown are not comparators because they were charged with use of profanity, whereas
Plaintiff was charged with making a threat. (Doc. # 34 at 8). In the context of employment
discipline, the Eleventh Circuit requires a plaintiff to show that her proposed “comparator” is
“similarly situated to the plaintiff in all relevant respects” and that the “quantity and quality of
the comparator’s misconduct must be nearly identical.” Stone & Webster Const., Inc. v. U.S.
Dep’t. of Labor, 684 F.3d 1127, 1135 (11th Cir. 2012) (citations omitted). The court must
determine “whether the comparator [was] involved in the same or similar conduct as the plaintiff
yet disciplined in a different way.” Id.
The court finds Cooper’s testimony and the documentary evidence regarding Smith’s and
Brown’s discipline to be admissible comparator evidence. The key question is not what
Defendant charged Smith and Brown (on the one hand) and Plaintiff (on the other hand) with.
The question is whether their respective conduct was nearly identical.17 A reasonable jury,
accepting Cooper’s testimony as credible, could find that Smith and Brown used expletives in a
personal confrontation and threatened each other with profane language.18 Moreover, the
disciplinary records indicate that Plaintiff, Smith, and Brown did not have a history of infractions
17

Labels are not controlling. Rather, the court compares conduct. If an employer could influence the
analysis of whether an employee was a comparator of another worker by virtue of what disciplinary label the
employer placed on misconduct, that could skew the proper comparator analysis required by the Eleventh Circuit.
18

Cooper testified that Smith and Brown were “threatening to badly hurt or kill each other. One of them
said ‘I’m going to kill you mother-fucker.’” (Doc. # 32-3 at 5).

19

within the 12 months prior to the respective incidents. (See Docs. # 28-11 at 2; 32-3 at 24, 26). A
reasonable fact finder could find that the disparity between Plaintiff’s charges and those issued to
Smith and Brown for profane threats actually strengthens his retaliation claim because, according
to Cooper, “there is no question that the Brown-Smith situation was much more serious,
confrontational and dangerous, in every way, than [Plaintiff’s] situation.” (Doc. # 32-3 at 5).
Thus, Plaintiff’s proffered evidence about the Smith-Brown incident and the resulting discipline
is relevant comparator evidence.
In conclusion, for the reasons explained above, Defendant’s Motion to Strike (Doc. # 34)
will be denied.
III.

Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The party asking for summary judgment always bears the initial responsibility of
informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file -- designate specific facts showing that there is a genuine issue for trial.
Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Anderson”). All reasonable doubts

20

about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v.
Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If
the evidence is merely colorable, or is not significantly probative, summary judgment may be
granted. See id. at 249.
When faced with a “properly supported motion for summary judgment, [the nonmoving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson
teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the
complaint; instead, as the party bearing the burden of proof at trial, she must come forward with
at least some evidence to support each element essential to her case at trial. See Anderson, 477 at
252. “[A] party opposing a properly supported motion for summary judgment ‘may not rest upon
the mere allegations or denials of [her] pleading, but … must set forth specific fats showing that
there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477
U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue

21

for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear … that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
IV.

Analysis
Defendant presents five arguments in support of its motion for summary judgment

directed at Plaintiff’s FRSA claim: (1) Plaintiff’s safety complaints were neither sufficiently
described nor reported in good faith because Plaintiff did not complain about the Kubota ATV
until the West Yard’s truck had been assigned to the East Yard; (2) Plaintiff failed to properly
exhaust his administrative remedies; (3) no connection exists between Plaintiff’s bad-ordering of
railcars and his dismissal for using improper language and threatening a supervisor; (4)
insufficient evidence has been presented to show that his alleged protected activity was a
“contributing factor” in the adverse employment action; and (5) clear and convincing evidence
proves that Defendant would have terminated Plaintiff regardless of his safety complaints. (See
generally Doc. # 27). The court addresses these arguments below.
A.

Legal Standards Applicable to Plaintiff’s FRSA Retaliation Claim

The FRSA’s anti-retaliation provision incorporates the burdens of proof set out in the
Wendell H. Ford Aviation and Investment Reform Act for the 21st Century (“AIR-21”) antiretaliation provision. 49 U.S.C. § 20109(d)(2)(A)(i) (incorporating burdens of proof from 42
U.S.C. § 42121(b)). The aviation act’s anti-retaliation provision provides that an employee only
needs to prove that the protected conduct “was a contributing factor in the unfavorable personnel

22

action alleged in the complaint.” 42 U.S.C. § 42121(b)(2)(B)(i). The Eleventh Circuit has
concluded that the aviation act’s anti-retaliation provision “is more protective of plaintiffemployees than many similar measures” because a plaintiff can prevail by merely showing that
the protected conduct “tend[ed] to affect in any way the outcome of the decision.” Majali v. U.S.
Dep’t of Labor, 294 F. App’x 562, 566 (11th Cir. 2008) (quotation omitted).
The Third Circuit has similarly explained that Congress explicitly instructed courts to
apply the AIR-21 burden-shifting framework to retaliation claims under § 20109. See Araujo v.
New Jersey Transit Rail Operations, 708 F.3d 152, 157-58 (3rd Cir. 2013) (stating that “when a
burden-shifting framework other than McDonnell Douglas is present in a statute, Congress
specifically intended to alter any presumption that McDonnell Douglas is applicable”). The Third
Circuit determined that the plain meaning of the statute created a framework that is far more
protective of plaintiff-employees than McDonnell Douglas. Id. at 158. Thus, in the Third Circuit,
a plaintiff-employee must only show that their protected activity under the FRSA was a
“contributing factor” to the adverse employment action, not the predominant or sole cause of the
retaliation. See 49 U.S.C. § 42121(b)(2)(B)(ii).
This court finds persuasive the analysis of another judge on this court, who applied the
Araujo standard in an FRSA retaliation action. See Morgan v. Norfolk So. Ry. Co., 2014 WL
3891984, at *1, *6 (N.D. Ala. Aug. 8, 2014) (Acker, J.). In Morgan, the plaintiff brought suit
against Norfolk Southern under the FRSA. Id. at *1. The defendant instructed engine foremen,
including the plaintiff, to make up and report safety violations in order to give the appearance
that the defendant was improving its safety standards. Id. When the plaintiff refused to do so, he
was “transferred” to a lower-ranked, lower-paid position in a new state. Id. The parties debated
the nature of the protected activity and whether sufficient evidence existed to satisfy the

23

contributing factor standard. Id. at *2. Similar to this case, the alleged protected activity included
emails and an inflammatory conversation between the plaintiff and his supervisor. Id. at *2-4.
And, as in this case, the defendant argued that it would have taken the same adverse action
regardless of the protected activity. Id. at *6.
In Morgan, the court found that the emails and conversation were sufficient for a jury to
decide the protected activity question. Id. at *3. The court also found, using Araujo, that the
FRSA has a less demanding causation standard than other employment retaliation statutes. Id. at
*5. The court found that the plaintiff presented enough circumstantial evidence for a jury to find
that retaliation was a contributing factor. Id. Once the plaintiff had satisfied his initial burden, the
court declined to grant the defendant summary judgment on the basis that it would demoted the
plaintiff regardless because it concluded that the “same decision” issue was one for a jury to
decide. Id. at *6.
Implementing the Araujo framework here,19 Plaintiff must show by a preponderance of
the evidence that: (1) he engaged in protected activity; (2) the employer knew that he engaged in
the protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected
activity was a contributing factor in the adverse action. Araujo, 708 F.3d at 157; 29 C.F.R. §
1982.104(e)(2). Under the FRSA, a contributing factor is one which, “alone or in combination
with other factors, tends to affect in any way the outcome of the decision.” Morgan, 2014 WL
3891984, at *5 (quoting Ameristar Airways, Inc. v. Admin. Review Bd., U.S. Dep’t. of Labor, 650
F.3d 562, 567 (5th Cir. 2011)). “Once the plaintiff makes a showing that the protected activity
was a ‘contributing factor’ to the adverse employment action, the burden shifts to the employer
19

The Third Circuit’s approach has also been adopted by the Fourth and Sixth Circuits. See Lee v. Norfolk
S. Ry. Co., 802 F.3d 626, 631 (4th Cir. 2015) (quoting Araujo); Consol. Rail Corp. v. U.S. Dep’t of Labor, 567 F.
App’x 334, 337 (6th Cir. 2014) (citing Araujo). But see Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014)
(finding that “the contributing factor that an employee must prove is intentional retaliation”); BNSF R. Co. v. U.S.
Dep’t. of Labor, 816 F.3d 628 (10th Cir. 2016).

24

to demonstrate[,] ‘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
(quoting 42 U.S.C. § 42121(b)(2)(B)(ii)).
B.

Plaintiff Exhausted His Administrative Remedies by Raising the Bad-Order
Issue in His 2004 OSHA Complaint.

Defendant argues that it is entitled to summary judgment for any retaliation claim based
on Plaintiff’s bad-order tags because Plaintiff did not raise that retaliation claim to OSHA in his
February 2014 OSHA complaint or his interview with an OSHA investigator. (Doc. # 26 at 2225). Plaintiff responds that he presented the bad-order tag issue in his February 2014 complaint
because that complaint informed OSHA that he had refused to stop bad-ordering railcars. (Doc.
# 32 at 19-20). On this issue, the court agrees with Plaintiff.
The FRSA requires an employee to exhaust his administrative remedies with OSHA
before filing a complaint in federal court against his employer. Brisbois v. Soo Line R.R. Co., 124
F. Supp. 3d 891, 899 (D. Minn. 2015) (citing 49 U.S.C. § 20109(d)). An employee exhausts his
FRSA claim “if the civil claim grows out of or is like or reasonably related to the substance of
the allegations in the administrative charge.” Id. (quoting Fanning v. Potter, 614 F.3d 845, 85152 (8th Cir. 2010)). The court must construe Plaintiff’s OSHA complaint liberally. Id. (quoting
Tart v. Hill Behan Lumber Co., 31 F.3d 668, 673 (8th Cir. 1994)). And, the court may consider
an action “as broad as the scope of any investigation that reasonably could have been expected to
result from the initial charge of discrimination.” Id. (quoting Fanning, 614 F.3d at 852). In
Brisbois, the district court considered whether the plaintiff had exhausted retaliation claims
concerning the denial of “other reimbursements” and denied promotions. Id. at 899-900. The
district court found that the plaintiff had failed to exhaust the claims because her OSHA

25

complaint presented “discrete and highly specific incidents of alleged retaliation,” which did not
include a broad claim for denied reimbursements or a denied promotion. See id.
To the contrary, here, Plaintiff’s claim that Norfolk Southern retaliated against him for
refusing to stop bad-ordering railcars is within the scope of the retaliation claim presented in his
OSHA complaint. Plaintiff’s OSHA complaint asserted that he had raised “many” complaints
about safety problems and hazardous conditions before 2013. (Doc. # 28-2 at 1). He explicitly
mentioned that he previously had “refused to quit bad ordering cars, even though [Norfolk
Southern] management had removed bad order tags from cars that he had tagged.” (Id.). The
OSHA complaint alleged that Norfolk Southern retaliated against him for engaging in “the
protected activities noted above,” which included Plaintiff’s failure to stop bad ordering cars. (Id.
at 2). Since Plaintiff’s complaint alleged retaliation for a series of protected complaints about
safety hazards, in addition to the incident that occurred in September 2013, OSHA’s
investigation reasonably could have considered the bad-order tag issues that occurred several
years before September 2013. Plaintiff’s OSHA complaint is distinguishable from the one at
issue in Brisbois because his complaint presents both general and specific causes for Norfolk
Southern’s retaliatory discharge. Cf. Brisbois, 124 F. Supp. 3d at 899-900. That is, liberally
construed, Plaintiff’s OSHA complaint alleged that the ATV complaints, in conjunction with the
earlier bad-order tag issues and Plaintiff’s history of protected safety complaints, led Norfolk
Southern to violate the FRSA and terminate him. (See Doc. # 28-2 at 1-2). Accordingly,
Defendant is not entitled to summary judgment for Plaintiff’s FRSA claim on the ground of
administrative non-exhaustion.20

20

Because the court finds that the OSHA complaint sufficiently raised the retaliation claim concerning badorder tag issues, the court need not address the admissibility of the OSHA investigator’s report because the report is
not material evidence.

26

27

C.

Plaintiff Has Established a Prima Facie Case of Retaliation

Defendant does not dispute that Plaintiff suffered an adverse employment action when
Defendant terminated his employment on February 14, 2014. (See generally Doc. # 27).
Defendant argues, though, that Plaintiff cannot establish the first, second, and fourth prongs of
his prima facie case. (Id. at 20-30). That is, Defendant contends Plaintiff cannot establish a prima
facie case because (1) Plaintiff did not engage in statutorily protected activity, (2) the
decisionmakers who terminated Plaintiff were unaware of any FRSA protected activity, and (3)
Plaintiff’s termination was not causally connected to any protected activity. The court disagrees
and addresses these arguments, in turn.
1.

Plaintiff Engaged in Protected Activity

The FRSA prohibits a railroad from discharging or discriminating against an employee
for “reporting, in good faith, a hazardous safety or security condition.”21 49 U.S.C.
§ 20109(b)(1)(A). This anti-retaliation provision, along with the rest of the FRSA, is intended “to
promote safety in every area of railroad operations and reduce railroad-related accidents and
incidents.” Id. § 20101. This anti-retaliation provision must be read in conjunction with the
FRSA’s prohibition on retaliation for providing information to certain agencies, officials, and
supervisors about “conduct which the employee reasonably believes constitutes a violation of
any Federal law, rule, or regulation relating to railroad safety or security.” Id. § 20109(a)(1). As
§ 20109(a) specifies situations where railroads and related employers cannot retaliate for an
employee’s report regarding a violation of a federal rule or regulation, § 20109(b)(1)(A) cannot
be interpreted to require an employee to report a hazardous safety condition that violates a
21

Plaintiff relies on this provision to establish that he committed protected conduct. (See Doc. # 32 at 2224). Notably, Plaintiff does not rely on the FRSA’s prohibitions against retaliation for providing information to a
regulatory agency about a violation of a federal law, rule, or regulation. See 49 U.S.C. § 20109(a)(1). Nor does he
claim that Norfolk Southern retaliated against him for refusing to violate or assist in violating a federal law, rule, or
regulation. See id. § 20109(a)(2).

28

federal law, rule, or regulation in order to be protected from retaliation. To prove that a report
was made in good faith, the plaintiff must genuinely believe that he was reporting a hazardous
safety condition, and his belief must be objectively reasonable. See Koziara v. BNSF Ry. Co.,
2015 WL 137272, at *6 (W.D. Wisc. Jan. 9, 2015) (discussing good-faith reports of work-related
injuries), rev’d on other grounds, 840 F.3d 873 (7th Cir. 2016), cert. denied, 137 S. Ct. 1449
(2017).
The Third Circuit has concluded that § 20109(b)(1)(A) does not apply to complaints
about any and all hazardous safety conditions. See Port Auth. Trans-Hudson Corp. v. Sec’y, U.S.
Dep’t of Labor, 776 F.3d 157, 165-66 (3d Cir. 2015) (explaining that § 20109(b)(1)(A) would
not protect an employee who protested hazardous conditions at a power plant unrelated to a
railroad). According to the Third Circuit, a plaintiff must complain about a “work-related”
hazardous safety condition in order to fall under the protections of the statute, even though the
statute contains no express requirement for an employee to report a work-related hazardous
condition. Id. at 166. Beyond the Third Circuit’s discussion of the provision in Trans-Hudson
Corp., there has been very little judicial or administrative interpretation of § 20109(b)(1)(A).
The Code of Federal Regulations reiterates the FRSA’s anti-retaliation provision, see 29 C.F.R.
§ 1982.102(b)(2)(i)(A), but no regulation has defined what constitutes a hazardous safety
condition. Nevertheless, a few judicial and administrative opinions provide guidance on what
may be considered a report of a hazardous safety condition.
In Foster v. BNSF Railway Co., 2017 WL 3426374, at *1 (8th Cir. Aug. 10, 2017), the
plaintiffs reportedly were directed to walk over a bridge with no walkway, side rails, or lighting
while conducting a crew change. After a co-employee fell from the bridge, the employees
reported the directions and the unsafe walking conditions in a written statement to a trainmaster.

29

Id. One employee also provided a recorded statement to a claims representative. Id. BNSF
Railway then charged the plaintiffs with rule infractions and disciplined them. Id. at *1-2. An
arbitration panel ultimately overturned the discipline imposed against the plaintiffs, but they sued
under the FRSA. Id. at *2. The Eighth Circuit held that the plaintiffs’ written statements were not
reports of a violation of federal law protected under § 20109(a)(1). Id. at *4-5. But, it found that
the statements were good faith reports of a hazardous safety condition that would have been
protected under § 20109(b)(1)(A) if the plaintiffs had brought a claim under that provision. Id. at
*4.
In Leiva v. Union Pacific Railroad Co., 2015 WL 3539576, at *1-2 (DOL Admin. Rev.
Bd. May 29, 2015), an employee complained to Union Pacific that he could not work with a
conductor who had threatened him and used profanity towards him. Union Pacific removed the
employee from service because he declined to continue traveling with the conductor. Id. at *2.
The employee testified that the complaint concerned a safety hazard because “the level of
communication between an engineer and conductor is very important and essential to the safe
operation of a train.” Id. at *3. The Administrative Review Board affirmed an ALJ’s finding that
the complaint qualified as a report of a hazardous safety or security condition protected by
§ 20109(b)(1)(A). Id. at *4. It determined that substantial evidence supported the ALJ’s finding
because: (1) several witnesses stated that the employee felt threatened; (2) the employee testified
“that communication between an engineer and a conductor is essential to the safe operation of a
train”; (3) the conflict increased the likelihood of a safety hazard; (4) another witness found the
conductor’s conduct to create a safety issue; and (5) a supervisor did not question the employee’s
good faith in reporting the incident. Id.

30

In Jackson v. Union Pacific Railroad Co., 2015 WL 1519814, at *1 (DOL Admin. Rev.
Bd. Mar. 20, 2015), an employee reported a smoky smell and asked his supervisor to determine
whether “any health advisories had been issued.” The employee asked to be reassigned to a
different area with no smoke. Id. Instead, Union Pacific sent the employee away from the
worksite and directed him to obtain medical clearance to return to work. Id. The Administrative
Review Board affirmed an ALJ’s finding that the verbal complaint about smoke was protected
conduct under § 20109(b)(1)(A). Id. at *2. It observed that other employees had complained
about the conditions. Id. Moreover, a Union Pacific supervisor testified that he expected
employees to report “safety concern[s] about smoky conditions.” Id.
Here, a reasonable jury could find that Plaintiff’s complaints about the Kubota ATV were
good-faith reports of a hazardous safety condition.22 The Rule 56 record reveals that Plaintiff
tried to give a verbal complaint about the Kubota ATV to Freeman on September 19, 2013, but
Freeman did not allow him to discuss the issue because of a derailment. (Doc. # 28-1 at 208-10).
Then, Plaintiff wrote in the daily report on September 19 that the Kubota ATV exposed carmen
to hazards and dangers because of the long distances carmen had to drive in the West Yard and
the ATV’s lack of speed. (See Doc. # 28-3). That evening, Plaintiff called Miles and complained
about the lack of visibility in the ATV. (Docs. # 28-1 at 166-70; 28-28 at 24-25, 30-31). As in
Leiva, Plaintiff’s written complaint about the ATV identified a specific safety concern -- the
ATV’s lack of speed -- and explained how that concern created a hazard for carmen. (See Doc. #
28-3). See also Leiva, 2015 WL 3539576, at *4 (finding substantial evidence to support an
employee’s assertion that a report about an argument affecting communication was a report of a
hazardous safety condition). Moreover, as in Leiva, one of Plaintiff’s supervisors, Miles,
22

Defendant has not argued that Plaintiff’s reports about the bad-order tags fail to qualify as reports about
hazardous safety conditions. Without question, that conduct concerns hazardous safety conditions (i.e., the removal
of bad-order tags placed on railcars so that they would be repaired).

31

perceived his complaint to be one regarding a safety issue. (Doc. # 28-28 at 31). In light of the
relatively minor safety hazards at issue in Leiva and Jackson and Miles’s testimony that he
viewed Plaintiff’s complaint to be one about a safety issue, the court cannot find that -- as a
matter of law -- Plaintiff’s written and verbal complaints fail to present a report of a hazardous
safety condition.23
Defendant contends that “no reasonable jury could conclude that [Plaintiff] reasonably
believed that he was reporting in good faith a hazardous safety condition when he had been
personally running the Kubota at least 4 days with no safety complaint whatsoever.” (Doc. # 27
at 19). The court disagrees. As an initial matter, an employee could reasonably accept the risk of
a short-term safety issue for a few days and later complain when he learns that the safety issue
will not be remedied as expected. Such a delay does not preclude an employee from presenting
an objectively reasonable safety complaint. Moreover, Plaintiff has testified that he complained
about the ATV before September 18. (Doc. # 28-1 at 96-97). While Plaintiff may not have
complained about the ATV’s safety during that period, Defendant’s argument that he made “no
complaints about the Kubota until after the truck came back from repairs” is not supported by the
Rule 56 record. (Doc. # 27 at 20). Accordingly, Plaintiff has established the first prong of his
prima facie retaliation claim.
2.

Defendant’s
Complaints

Decisionmakers

Knew

About

the

Kubota

ATV

To show that Defendant knew of this protected activity, “it is not enough for the plaintiff
to show that someone in the organization knew of the protected expression; instead, the plaintiff

23

Of course, a reasonable fact finder could determine that Plaintiff’s complaints were motivated by the less
comfortable ride the Kubota offered. (See Doc. # 28-1 at 89) (testifying that the ATV “couldn’t gently accommodate
the potholes and the ruts and the washouts” in the West Yard). But, the point is that Plaintiff’s complaints in
September 2013 presented possible safety hazards the ATV presented, such as its lack of speed and inadequate
windshield. It is for a jury to resolve these disputed facts and inferences.

32

must show that the person taking the adverse action was aware of the protected expression.” Bass
v. Bd. of Cty. Comm’rs, Orange Cty., Fla., 256 F.3d 1095, 1119 (11th Cir. 2001). See also
Conrad v. CSX Transp., Inc., 824 F.3d 103, 107-08 (4th Cir. 2016) (citing Administrative
Review Board opinions in support of the holding that “[t]he ‘knowledge’ relevant for a
retaliation claim under the FRSA must be tied to the decision-maker involved in the unfavorable
personnel action”).
Defendant has not argued that its decision-makers were unaware of Plaintiff’s September
2013 complaints about the Kubota ATV. (See Doc. # 27 at 20-22). Indeed, McLain testified
about the September 19 daily report during Plaintiff’s disciplinary hearing, and Krull heard that
testimony. (See Doc. # 28-5 at 13-17). McLain stated during the hearing that Plaintiff
inappropriately complained about the ATV in an official document. (Id. at 27). Thus, the Rule 56
record shows that the charging officer and the hearing officer knew of the Kubota ATV
complaints.
In addition to the September 2013 ATV complaints, Plaintiff also asserts his termination
was in retaliation for his 2004 complaint about bad-ordering cars. (Doc. # 32 at 20-21).
Defendant contends Plaintiff cannot establish that any decisionmaker involved in his termination
knew or was involved in the 2004 controversy. (Doc. # 27 at 25). Plaintiff claims that Collier,
one of the supervisors involved in the investigation into his comments, was the supervisor at
issue in the bad-order tag complaint. (Doc. # 32 at 20-21). The court does not find sufficient
evidence to show that the decisionmakers knew of the bad-order tag complaints, which occurred
several years before 2013. Although Collier was involved in both incidents, no evidence supports
the supposition that Collier informed McLain about Plaintiff’s prior safety complaints.
Moreover, no witness discussed Plaintiff’s bad-order tag complaints during the disciplinary

33

hearing. So, no Rule 56 evidence indicates that Krull knew of the bad-order tag complaints.
Accordingly, Plaintiff has not shown that the relevant decisionmakers at Norfolk Southern knew
of the bad-order tag complaints when considering his termination, and Plaintiff cannot maintain
any FRSA retaliation claim against Norfolk Southern premised on those safety complaints.24
3.

Plaintiff’s Protected Activity was a Contributing Factor in His
Termination

To satisfy the final element of a prima facie FRSA retaliation claim, a plaintiff must
demonstrate “that retaliation was a ‘contributing factor’ to the adverse employment decision,
‘which alone or in combination with other factors, tend[ed] to affect in any way the outcome of
the decision.” Morgan, 2014 WL 3891984, at *5 (quoting Araujo, 708 F.3d at 158).
Circumstantial evidence, including temporal proximity and hostility towards a complainant’s
protected activity, can satisfy the contributing factor standard. See Ray v. Union Pac. R.R. Co.,
971 F. Supp. 2d 869, 884-885 (S.D. Iowa 2013).
In the instant case, Plaintiff was removed from service one day after he submitted his
daily report to management with safety complaints regarding his immediate superiors and one
day after he complained to Miles about the ATV’s windshield. (Doc. # 28-1 at 191-92). Thus,
from a temporal standpoint, his removal from service was immediately after his written and
verbal complaints about the ATV’s safety. Moreover, Plaintiff’s supervisors counseled him
against placing such safety complaints in daily reports on the day that he was removed from
service. (See Doc. # 28-26 at 8). McLain has explained that complaints like Plaintiff’s should not
be placed in daily reports because those reports are “widely circulated.” (Id.). Thus, a jury could
reasonably conclude that McLain, the charging officer, expressed hostility towards Plaintiff’s
24

Alternatively, Plaintiff cannot show that his bad-order tag complains were a contributing factor in his
termination. Those complaints occurred several years before the termination at issue. And, the bad-order tag
complaints were not discussed in the charge against Plaintiff or at the disciplinary hearing. Thus, no reasonable jury
could conclude that the bad-order tag complaints played any role in Plaintiff’s termination.

34

protected conduct by having supervisors counsel him and by charging him with a terminable
offense for conduct that would not have resulted in a termination otherwise.
Likewise, a reasonable jury could conclude that hostility towards Plaintiff’s protected
reports of hazardous safety conditions contributed to Krull’s recommendation. McLain arranged
for Krull to serve as the hearing officer for the disciplinary investigation. (Doc. # 32-4 at 63). In
his email to Krull, McLain described Plaintiff as “easily the worst guy we have when it comes to
attitudes.” (Id.). Then, at the disciplinary hearing, McLain read Plaintiff’s complaint about the
Kubota ATV into the record and criticized Plaintiff for including such a complaint in an official
Norfolk Southern document. (Doc. # 28-5 at 13-17, 27). As Defendant has not placed Krull’s
recommendation to human resources personnel in the record, the court cannot determine whether
Krull relied on the Kubota ATV report as a basis for recommending Plaintiff’s termination.
Nevertheless, since McLain criticized Plaintiff’s “attitude” to Krull and informed Krull about the
safety complaints, a reasonable jury could find that the protected safety complaints about the
ATV contributed to Krull’s recommendation to terminate Plaintiff. Accordingly, Plaintiff has
established a prima facie case of retaliatory termination in violation of the FRSA.
D.

Defendant’s Affirmative Defense is an Issue that Must be Decided at Trial

Defendant contends that it is entitled to summary judgment because “clear and
convincing evidence [demonstrates] that the employer would have taken the same unfavorable
personnel action in the absence of that behavior.” Araujo, 708 F.3d at 159 (quoting 49 U.S.C.
§ 42121(b)(2)(B)(ii)). Defendant contends that Plaintiff’s conduct was so serious that it
warranted termination -- regardless of the protected activity -- because threats and improper
language are not tolerated by Defendant. (Doc. # 28-26 at 8, 10). Defendant points to the
discipline imposed against carmen Moore and Roy for making profanity-laced threats of

35

violence. (See id. at 9-10). Like Plaintiff, Norfolk Southern charged Moore and Roy with
violating GCR-1. (See id.). And, like Plaintiff, Norfolk Southern terminated Roy for his threats.
(Id.). Despite the evidence surrounding these two compelling comparators, it is not entitled to
summary judgment on this affirmative defense.
Plaintiff, like Defendant, has also put forth evidence of comparators who engaged in
similar conduct to him. D.S. Brown and S.S. Smith cursed at each other and threatened each
other in a face-to-face confrontation in March 2015. (Doc. # 32-3 at 4-5). Yet, Brown and Smith
received suspensions and were not issued formal charges that could have led to termination. (Id.
at 5). Defendant insists that Brown and Moore are improper comparators because Norfolk
Southern charged them with using profanity and did not charge them with issuing threats. (Doc.
# 35 at 15). But, Norfolk Southern management controlled the nature of the charges issued to an
employee for a work violation. McLain’s email to Krull indicates that he issued more severe
charges against Plaintiff because Plaintiff had “one of the worst attitudes” among employees at
Norris Yard. In light of McLain’s hostile response to the ATV complaint in the September 19,
2013 daily report, this statement can reasonably be read as an indication that McLain instituted
more serious charges because of Plaintiff’s attitude towards the purported safety hazards created
by the Kubota ATV. Likewise, Defendant’s argument that Plaintiff was disciplined by a different
decisionmaker is unconvincing because management’s charging decision led to Krull’s
involvement in the case. Because McLain instituted formal charges against Plaintiff, rather than
START charges, a hearing officer from a different Norfolk Southern division was brought in.
In its reply brief, Defendant argues that Plaintiff has failed to present comparators with
“nearly identical” records. (Doc. # 35 at 14). The court observes, though, that Defendant has not
presented the disciplinary records for its proposed comparators. Accordingly, the court cannot

36

determine whether Moore and Roy had nearly identical records to Plaintiff’s when Norfolk
Southern instituted formal charges against them. And, unlike the situation an employer faces
when confronted with a retaliation claim under Title VII and similar anti-discrimination statutes,
Defendant faces a burden of proof, not a burden of production, to rebut Plaintiff’s prima facie
case. See Araujo, 708 F.3d at 159. Although the Rule 56 record does not show that Brown and
Smith were “nearly identical” comparators, Norfolk Southern’s handling of their profanity-laced
threats raises a genuine factual dispute about whether Plaintiff would have been terminated for
his profane statements and one-line threat to Freeman in the absence of his statutorily-protected
safety complaints.
E.

Plaintiff is Not Entitled to Seek Punitive Damages

Defendant requests summary judgment on Plaintiff’s claim for punitive damages. (Doc. #
27 at 31). Plaintiff has not responded to this issue. (See generally Doc. # 32). Thus, Plaintiff has
abandoned any claim for punitive damages. See Coalition for the Abolition of Marijuana
Prohibition v. City of Atlanta, 219 F.3d 1301, 1325-26 (11th Cir. 2000) (holding that a state law
claim was effectively abandoned when a party failed to brief and argue the issue before the
district court).
In any event, the court finds that Plaintiff is not entitled to seek punitive damages at trial.
The court may award punitive damages under the FRSA if a railroad acted “with malice or ill
will or with knowledge that its actions violated federal law or with reckless disregard or callous
indifference to the risk that its actions violated federal law.” Pan Am Rys., Inc. v. U.S. Dep’t of
Labor, 855 F.3d 29, 38 (1st Cir. 2017) (emphases omitted). The Rule 56 record presents no
evidence of a reckless or intentional violation of the FRSA. The parties clearly disagree about
whether Plaintiff observed a safety hazard created by continued use of the Kubota ATV in the

37

West Yard. Moreover, McLain charged Plaintiff with rules violations for incidents in which he
did not present a protected safety complaint. Accordingly, the court finds that Defendant is
entitled to summary judgment on the punitive damages issue.
V.

Conclusion
For the reasons explained above, Defendant’s motion to strike is due to be denied.

Defendant’s motion for summary judgment is due to be granted in part and denied in part. While
Defendant is entitled to summary judgment for Plaintiff’s punitive damages claim, it is not
entitled to summary judgment on Plaintiff’s FRSA retaliation claim. A separate order in
accordance with this memorandum opinion will be entered.
DONE and ORDERED this September 12, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

38