Adams v. CSX Transportation Inc
Filing
51
MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/18/2020. (KAM)
FILED
2020 Mar-18 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HOWARD ADAMS,
}
}
Plaintiff,
}
}
v.
} Case No.: 2:18-CV-00319-RDP
}
CSX TRANSPORTATION, INC.,
}
}
Defendant.
}
MEMORANDUM OPINION
This case is before the court on Defendant CSX Transportation Inc.’s Motion for Summary
Judgment. (Doc. # 36). The Motion is fully briefed (Docs. # 36, 38, 43, 44, 45, 50) and ripe for
review. After careful consideration, and for the reasons discussed below, Defendant’s Motion
(Doc. # 36) is due to be granted.
I.
Background1
This case stems from Defendant CSX Transportation Inc.’s (“CSX” or “Defendant”)
suspension of Plaintiff Howard Adams (“Plaintiff” or “Adams”) due to its finding that he
dishonestly used FMLA leave on December 25, 2017. CSX is a freight railroad that maintains an
operations hub in Birmingham, Alabama (Doc. # 38-1 at ¶ 2). Adams was hired by CSX in 2006
as a locomotive conductor in the CSX’s Southwest region (specifically, the Birmingham terminal).
(Id.; Doc. # 1 at ¶¶ 5-6). Locomotive conductors operate trains. (Doc. # 38-1 at ¶ 2). Most
locomotive conductors are part of the Defendant’s “Train and Engine Workforce” (“T&E”). (Id.).
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).
1
Throughout 2016-2017, Adams was a T&E employee responsible for operating trains between
Birmingham and Nashville. (Doc. # 38-3 at 13-14).
A. CSX Staffing Procedures
To meet customer demands, CSX runs trains twenty-four hours a day, seven days a week,
365 days a year. (Doc. # 38-2 at ¶ 4). Generally, T&E employees do not work a set schedule. (Id.).
Rather, T&E employees are assigned to a pool and placed on a rotating list. (Id.). Employees are
then called into work on an as needed basis, meaning that they can be called in at any time.2 (Id.).
T&E employees indicate that they are available to work by “marking up” for it. (Id.). Similarly,
T&E Employees indicate they are unavailable to work by “marking off” for an approved reason.
(Id.). If an employee is marked off, he cannot be called into work. (Id.).
B. CSX Attendance Policy
T&E Employees are subject to the “CSX Transportation Attendance Point System”
(“CAPS”). (Doc. # 30-10 at 1). Generally, that policy assesses points to employees for certain
absences, and employees are progressively disciplined each time they reach a 20-point threshold.3
(Id. at 1, 4-6). Employees are not assigned points for taking FMLA leave. (Id.). CAPS also provides
a Good Attendance Credit:
Three points will be deducted from an employee’s accumulated point total for every
calendar month in which the employee has no attendance incidents covered under
the [a]ttendance [p]oint [s]chedule [] and has not otherwise been absent during the
calendar month for any reason, with the exception of approved vacation, demand
day off (DDO), personal leave, jury duty, work-related illness or injury with valid
doctor’s note and bereavement leave days.
2
Unless, of course, the employee had “marked off” for an approved reason. (Doc. # 38-2 at ¶ 4).
3
For example, if a T&E employee is sick and does not provide valid medical documentation he accrues four points
per day Monday-Thursday, and six points per day Friday-Sunday. (Doc. # 38-10 at 5).
2
(Id. at 5). So, while T&E employees are not assessed points for their FMLA absences, they are not
eligible for the good attendance credit when they take FMLA leave. (Id. at 7).
C. Adams’s FMLA Leave
Adams suffers from “lumbar radiculopathy and cervical radiculopathy,” which causes him
to experience reoccurring symptoms of severe back pain, back spasms, and sharp radiating pain in
his right leg. (Doc. # 38-3 at 58-65; Doc. # 1 at ¶ 59). Due to these conditions, Adams applied for
intermittent Family and Medical Leave Act (“FMLA”) leave in June 2015. (Doc. # 38-3 at 49).
Adams’s initial request for FMLA leave was approved by CSX, and so were his subsequent
applications in 2015 and 2016. (Id.). Adams’s most recent approval occurred on June 7, 2017.
(Doc. # 1 at ¶ 14). CSX approved Adams for FMLA leave for the certified leave period of June 6,
2017 through December 30, 2017. (Id.). Adams was approved for FMLA leave based on an
estimated frequency of two episodes per month at three days per episode, and two office visits per
month. Adams began using his FMLA leave in 2015, and continued to use it through December
2017. (Doc. # 38-3 at 58-65).
Prior to the events that gave rise to his claims in this case, CSX warned Adams twice for
misusing his FMLA benefits. (Doc. # 38-2 at 2, 4, 17, 20). First, in August 2016, Adams received
a warning letter from CSX after he used his FMLA benefits on fourteen weekends in a twentyeight-week span. (Id.). Second, in May 2017, CSX sent Adams a final warning letter after he used
his FMLA benefits on four weekends in a seven-week span. (Id.).
D. CSX Disciplinary Process
CSX prohibits employee dishonesty and classifies it as a fireable offense. (Doc. # 38-1 at
19-20). The company maintains a disciplinary process. (Id. at 2, 7-14). Employees who are
believed to have engaged in misconduct are charged with an offense, and then are required to
3
attend a disciplinary hearing on the charges.4 (Id.). Hearings are conducted by a CSX manager.
(Id. at 2, 10). At the hearing the CSX manager testifies about the basis for the charges, questions
witnesses, and rules on evidentiary objections. (Id.). In most cases, the CSX manager who testifies
as the charging officer is the same manager who decided to bring the charges. (Id.).
The CSX managers who serve as hearing officers are neither lawyers nor labor relations
specialists. (Doc. # 38-1 at 2-3). To aid the charging officer, CSX’s labor relations department or
other company officials will sometimes prepare a script or a list of questions to be asked. (Id.).
According to CSX, this practice is designed to provide continuity in disciplinary proceedings. (Id.).
Additionally, the “script” ensures that that the facts relevant to the charges become part of the
disciplinary record. (Id.).
The charged employee is represented by a union official and may present evidence in his
own defense. (Doc. # 38-1 at 2, 7-14). The union official who represents the employee is also
allowed to prepare questions for witnesses prior to the hearing. (Id. at 2-3). Discipline is not
decided upon or assessed at the hearing. (Doc. # 38-1 at 2, 7-14). However, after the hearing
concludes, the hearing officer may issue recommendations or findings. (Id. at 19-20). Disciplinary
decisions are made by the General Superintendent for the Region (or his designee) after receiving
a recommendation from the Labor Relations Department. Generally, discipline must be assessed
within 30 days of the hearing. (Id. at 8). An employee who is disciplined can “grieve” it and have
his claim heard by a neutral arbitrator. (Id. at 12-13).
E. CSX Employees’ Suspect FMLA Usage in December 2017
Over Christmas 2017, over 750 CSX employees used their FMLA benefits and marked off
from work. (Doc. # 38-2 at 2). Based on the unusual number of employees who marked off from
4
When charged with certain major offenses, employees may be suspended from service without pay, pending a
hearing. (Doc. # 38-1 at 2, 7-14
4
work over the Christmas 2017 holiday, CSX believed that some employees had used their leave
dishonestly and began investigating the mark-offs. (Id. at 2-3). To determine whether T&E
employees with FMLA benefits had a pattern of marking off over other holidays or special events,
CSX reviewed the attendance records of those employees who used FMLA benefits over the
Christmas 2017 holiday. (Id.). Generally, if an employee had marked off at least four out of the
past ten holidays, he was charged with dishonesty. (Id.). The employee was subsequently removed
from service pending a disciplinary hearing.5 (Id.).
F. Adams’s FMLA Leave on December 25, 2017
On December 25, 2017, Adams worked as a conductor on a train from Nashville to
Birmingham. (Doc. # 38-3 at 74). Adams testified that a “rough riding locomotive” made for a
“bumpy, bumpy ride.” (Id. at 75, 77, 79). Adams testified that the jarring of the ride irritated his
back and triggered an episode. (Id.). According to Adams, the pain increased throughout the trip,
and by the time he reached home, due to the severe pain, he marked off using his FMLA leave.6
(Id. at 82-83). After returning home, Adams testified that he managed a few hours of sleep, and,
consistent with his chiropractor’s instructions for managing the pain, spent the majority of
Christmas day laying down. (Id. at 84-85).
Previously in 2017, Adams also marked off for Father’s Day, the fourth of July, 7 and the
day after Thanksgiving (Black Friday) until the following Monday. (Doc. # 38-2 at 5; Doc. # 38-
5
CSX excluded employees who used their FMLA benefits for medical conditions that, in the eyes of CSX, obviously
explained their mark off. (Doc. # 38-2 at 2-3; Doc. # 38-5 at 84, 92, 98). For example, CSX did not charge employees
who used the FMLA benefits for pregnancy or maternity leave. (Doc. # 38-5 at 141-43).
6
Specifically, Adams marked off using his FMLA benefits from 2:38 a.m. on Christmas day until 5:30 a.m. on the
day after Christmas. (Doc. # 38-2 at 5; Doc. # 38-3 at 68).
7
On the fourth of July, Adams only marked off for part of the day. (Doc. # 38-2 at 5; Doc. # 38-3 at 88; Doc. # 38-4
at 105-06).
5
3 at 88; Doc. # 38-4 at 105-06). According to CSX, this pattern combined with the timing of the
December 25, 2017, mark-off suggested that Adams may have been using his FMLA benefits
improperly (i.e., in a dishonest way). (Doc. # 38-2 at 5). CSX charged Adams with misusing his
FMLA leave and suspended him from service, pending a disciplinary hearing. (Doc. # 38-3 at 9091).
Adams was not the only CSX employee removed from service. (Doc. # 38-2 at 3). CSX
also charged 123 other employees with dishonesty. (Id.). Similar to Adams, these employees used
FMLA benefits over the Christmas 2017 holiday, and also marked off on at least 3 previous
holidays or special events.8 (Id.).
G. Adams’s Disciplinary Hearing
At Adams’s hearing, the manager who testified as the hearing officer was not the manager
who had brought the charges. (Doc. # 38-1 at 2). CSX manager Jolanda investigated Adams’s
suspected FMLA misuse in December 2017. (Doc. # 38-5 at 107). But, because 123 employees
were charged, Johnson could not testify at all of the hearings. (Doc. # 38-2 at 3-4). As a result,
other managers assisted Johnson and filled in for her at various hearings. (Id.). The managers were
given “talking points” to use when answering questions at the hearing. (Id.; Doc. # 38-5 at 76-80).
According to CSX, the “talking points” included answers to questions commonly asked at
hearings. (Id.). CSX contends that the purpose of the “talking points” was so that the managers
could adequately explain the basis for the charges. (Id.).
At Adams’s hearing, Anita Tingley, the CSX Manager of Field Administration, testified in
place of Johnson. (Doc. # 38-2 at 5). Tingley stated that it was possible that Adams’s back
condition prevented him from working over the Christmas 2017 holiday. (Doc. # 38-4 at 132-33).
8
Of the 123 CST employees charged with dishonesty, 81 were disciplined. (Doc. # 38-2 at 3).
6
But, she also testified that the circumstantial evidence—including the time Adams marked off on
Christmas day, his pattern of FMLA usage over holidays and weekends, and his previous FMLA
warnings in 2016 and early 2017—indicated that Adams had improperly used his FMLA benefits
to avoid working on Christmas. (Id.).
At the hearing, Adams did not dispute that he marked off on Christmas day. (Id. at 14647). Rather, he maintained that he marked off on Christmas day because his “back was bothering
him.” (Id.). Adams submitted two notes from his chiropractor. (Doc. # 38-2 at 110-112). The first
note, dated December 26, 2017, asked that Adams be excused from work from December 25-27
because of “ongoing treatment for [] disc herniation as seen on MRI.” (Id.). The second note, dated
January 18, 2018, asked that Adams be excused from work on the other holidays Adams marked
off for in 2017.9 (Id.). The Rule 56 evidence record shows that Adams did not see his chiropractor
on any of the aforementioned dates, but simply “was under [the chiropractors] care[.]” (Id. at 111).
After the hearing, the CSX Manager of Labor Relations, Macon Jones, reviewed the
hearing record and recommended that Adams receive a time-served suspension.10 (Doc. # 38-6 at
112-13). Jones sent his recommendation to CSX Southwest General Superintendent, John Layne.
(Id. at 123-24). Upon review, Layne believed that a time-served suspension was not enough, given
Adams’s two previous FMLA warning letters. (Id.). Six minutes after receiving the disciplinary
recommendation from Jones, Layne replied “Dismissed.” (Doc. # 38-6, Exh. E, at 85). Layne
followed up with an e-mail encouraging Jones to “[w]in the arbitration!!!” (Id.). Jones replied
“[c]onsider it done.” (Id.).
Again, these holidays included Father’s Day, part of the day on July fourth, and the day following Thanksgiving
(Black Friday).
9
Jones’s transcript indicates that he recommended a time-served suspension, as opposed to dismissal, because he
was concerned that an arbitrator might view the chiropractor’s note differently than he did and overturn the discipline
on that basis. Doc. # 38-6 at 123-24).
10
7
The morning after the e-mail exchange between Layne and Jones was the day Adams’s
discipline decision was due. (Doc. # 38-6 at 198). Erica McNair, a member of CSX’s Field
Administration group, was responsible for sending out Adams’s disciplinary letter. (Id.). McNair
e-mailed Layne asking him to inform her of the final disciplinary decision.11 (Doc. # 38-7 at 117).
There is no evidence in the Rule 56 record that Layne ever responded to McNair. (Id.). Jones’s
boss, Melissa Wheaton, mistakenly believed that Layne had not responded to the disciplinary
recommendation. (Doc. # 38-9 at 80-82). Wheaton asked Field Administration to re-send the
disciplinary recommendation to Layne. (Id.). Again, there is no Rule 56 record evidence that Layne
responded to this e-mail. (Doc. # 38-7 at 117). Due to the confusion, Adams was issued a timeserved suspension letter, consistent with Jones’s initial recommendation. (Doc. # 38-6, Exh. E, at
93).
CSX later realized Adams received a time-served suspension, instead of the dismissal
recommended by Layne. Doc. # 38-6 at 23-24). But, CSX left Adams’s time-served suspension in
place and did not convert it to a dismissal. (Id. at 39; Doc. # 38-3 at 109). ). Adams subsequently
filed a claim with CSX challenging his suspension. (Doc. # 38-1 at 4). CSX denied the claim.12
(Doc. # 40-1 at ¶ 4). Plaintiff filed his complaint on February 19, 2018. (Doc. # 1).
II.
Standard of Review
Under Federal Rule of Civil Procedure 56, 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
11
McNair was not copied on Layne’s “[d]ismissed” e-mail to Jones.
12
Adams was given until July 31, 2019 to institute arbitration proceedings. (Doc. # 40-1 at ¶ 4).
8
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 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). All reasonable doubts 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 U.S. at 252. “[A] party opposing a
properly supported motion for summary judgment ‘may not rest upon the mere allegations or
denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue
for trial.’” Id. at 248 (citations omitted).
9
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 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 25152); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1381 (S.D. Fla. 1999) (“The law is
clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for
summary judgment.”).
III.
Analysis
The court has carefully reviewed the Rule 56 record and analyzed Plaintiff’s claims under
the appropriate legal frameworks. For the reasons stated below, the court concludes that
Defendant’s Motion for Summary Judgment is due to be granted. 13
In its Motion for Summary Judgment, CSX argues that it is entitled to summary judgment on Adams’s claim that it
engaged in disability discrimination and violated the ADA. (Doc. # 43 at 29). However, Adams’s Complaint does not
contain allegations that CSX violated the ADA (Doc. # 1), and Adams’s responsive briefing does not address disability
discrimination under the ADA. (See Doc. # 45). Thus, to the extent Plaintiff alleged disability discrimination claims
under the ADA, the court considers any such claim abandoned. Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301,
1324 (N.D. Ga. 2001) (“When a party fails to respond to an argument or otherwise address a claim, the Court deems
such argument or claim abandoned.”) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995).
13
10
A. FMLA Claims
“The FMLA grants eligible employees a series of entitlements, among them the right to ‘a
total of 12 workweeks of leave during any 12–month period’ for a number of reasons, including
‘a serious health condition that makes the employee unable to perform the functions of the position
of such employee.’” Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d 1261, 1267
(11th Cir. 2017) (citing 29 U.S.C. § 2612(a)(1)(D)). “To preserve and enforce these rights, ‘the
FMLA creates two types of claims: [1] interference claims, in which an employee asserts that his
employer denied or otherwise interfered with his substantive rights under the Act . . . and [2]
retaliation claims, in which an employee asserts that his employer discriminated against him
because he engaged in activity protected by the Act.’” Jones, 854 F.3d at 1267 (quoting Strickland
v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001))
(internal citations omitted)
Adams brings claims against CSX for both interference with and retaliation for his
exercise of FMLA rights on December 25, 2017. The court first addresses Adams’s FMLA
retaliation claim. It will then turn to his interference claim.
i. FMLA Retaliation
Adams asserts that he was “denied full benefits and rights under the FMLA, in that he was
retaliated against based on his exercise of right to which he was entitled under the FMLA[.]” (Doc.
# 1 at ¶ 38). Specifically, Adams claims that, as a result of taking FMLA leave on December 25,
2017, “he was pulled out of service on January 2, 2018 through February 16, 2018, and was
assessed a time-served suspension without pay.” (Id.).
To succeed on this claim, Adams must demonstrate that CSX intentionally discriminated
against him for exercising his FMLA rights. Jones, 854 F.3d at 1270; see Strickland, 239 F.3d at
11
1207. Stated differently, Adams must show “that his employer’s actions were motivated by an
impermissible retaliatory or discriminatory animus.” Jones, 854 F.3d at 1270 (internal quotations
and citations omitted). Adams argues that the Rule 56 evidence provides circumstantial evidence
of CSX’s retaliatory intent.14 (Doc. # 45 at 32-40); Shannon v. Nat’l R.R. Passenger Corp., 774 F.
App’x 529, 544 (11th Cir. 2019) (“Absent direct evidence of a defendant’s retaliatory intent, a
plaintiff’s FMLA retaliation claim is evaluated under the McDonnell Douglas framework.”).
A plaintiff may establish a prima facia case of FMLA retaliation by using a modified
version of the McDonnell Douglas standard that applies to Title VII retaliation cases. Under this
model, a FMLA plaintiff must show that: “(1) [he] engaged in statutorily protected activity, (2)
[he] suffered an adverse employment decision, and (3) the decision was causally related to the
protected activity.” Jones, 854 F.3d at 1271 (internal quotation marks and citations omitted); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If the plaintiff successfully establishes
his prima facia case, the burden shifts to the defendant to articulate “a legitimate,
nondiscriminatory reason” for the adverse employment action, “which, if believed by the trier of
fact, would support a finding that unlawful discrimination was not the cause of the employment
action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal citations and quotation
marks omitted) (emphasis in original). If the defendant satisfies that burden, then once again, the
burden shifts back to the plaintiff to prove that defendant’s stated reason is merely a pretext for
the retaliatory conduct. (Id.).
Despite this shifting of the burden of production between the plaintiff and the defendant
under the McDonnell Douglas framework, “[t]he ultimate burden of persuading the trier of fact
14
To be clear, Adams does not argue, and the court does not find, that there is any direct evidence in the Rule 56
record of FMLA retaliation. (See Doc. # 45 at 32-40). Nor has Adams analogized to the Eleventh Circuit’s “mosaic”
framework in presenting his FMLA retaliation arguments. (Docs. # 1, 45).
12
that the defendant intentionally [retaliated] against the plaintiff remains at all times with the
plaintiff.” Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Here, CSX has not argued that Adams failed to establish a prima facia case of retaliation.
(Doc. # 43 at 19; Doc. # 45 at 33). Thus, Adams’s FMLA retaliation claim hinges on whether CSX
has articulated a legitimate, non-retaliation basis for discipline, and, if so, whether Adams has
shown that the reason given for his suspension is actually pretext for retaliation.
1. Has CSX Articulated a Good Faith Belief That Adams
Dishonestly Used His FMLA benefits?
“Once the plaintiff has shown a prima facie case and, thereby, has raised the presumption
of [retaliation], the burden of production shifts to the employer to articulate a legitimate,
non[retaliatory] reason for its actions.” Gilbert v. Wal-Mart Stores, Inc., No. 2:08-CV-2405-RDP,
2010 WL 11565278, at *5 (N.D. Ala. July 30, 2010) (citing Combs v. Plantation Patterns, 106
F.3d 1519, 1528 (11th Cir. 1997)).
CSX argues that it did not discipline Adams because he used FMLA leave. (Doc. # 43 at
20). Rather, CSX argues it had a good faith belief, based on Adams’s prior suspected FMLA
misuse, that Adams dishonestly used his FMLA on December 25, 2017. (Id.). CSX maintains that
disciplining an employee for suspected dishonesty, even if that belief turns out to be mistaken, is
a legitimate, non-retaliatory basis for discipline. (Id.). CSX is correct. E.E.O.C. v. Total Sys. Servs.,
Inc., 221 F.3d 1171, 1176 (11th Cir. 2000) (holding that an employer is entitled to rely on its good
faith belief about falsity of employee’s statements in issuing discipline); see Damon v. Fleming
Supermarkets of Florida, Inc., 196 F.3d 1354, 1360 (11th Cir. 1999) (“An employer who fires an
employee under the mistaken but honest impression that the employee violated a work rule is not
liable for discriminatory conduct.”).
13
Courts have consistently held that an employee violation of a work rule (or policy) is a
legitimate, non-retaliatory reason for adverse actions. See Burdine, 450 U.S. at 256; see also
Douglas v. DeKalb County, GA, 308 F. App’x. 396, 400 (11th Cir. 2009); Brillinger v. City of
Lake Worth, 317 F. App’x. 871, 877 (11th Cir. 2008). Thus, the burden shifts back to Adams to
show that this reason was pretext for retaliation.
2. Has Adams Pointed to Substantial Evidence Suggesting That
Defendant’s Reason for His Suspension is a Pretext for
Retaliation?
A “[p]laintiff may demonstrate that [a defendant’s] reasons were pretextual by revealing
‘such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in
[defendant’s] proffered legitimate reasons for its actions that a reasonable factfinder could find
them unworthy of credence.’” Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344,
1348-49 (11th Cir. 2007), quoting Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004),
cert. denied, 546 U.S. 960 (2005). However, a reason is not a pretext for retaliation “unless it is
shown both that the reason was false, and that [retaliation] was the real reason.” Springer, 509
F.3d at 1348 (quoting Brooks v. County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th
Cir. 2006) (emphasis in original)); see St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, (1993).
The Eleventh Circuit has found in cases similar to this one that an honest, but mistaken,
belief that an employee engaged in misconduct is enough to defeat a retaliation claim. Total Sys.,
221 F.3d at 1176-77 (holding that a plaintiff cannot show pretext merely by showing that an
employer’s good faith belief that she engaged in misconduct is mistaken.); Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“[Courts] are not in the business
of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is
whether unlawful discriminatory animus motivates a challenged employment decision.”).
14
Adams argues that a reasonable jury could find for him on a “cat’s paw” theory of liability.
The “[c]at’s paw theory of liability, also referred to as ‘subordinate bias theory,’ [seeks] to hold
an employer liable for the animus of a supervisor who was not charged with making the ultimate
employment decision.”15 Sims v. MVM, Inc., 704 F.3d 1327, 1335 (11th Cir. 2013) (citing Staub
v. Proctor Hosp., 562 U.S. 411, 414 (2011). Cat’s paw liability requires proof that: (1) a supervisor
performed an act motivated by discriminatory (or, in this case, retaliatory) animus which was
intended to cause an adverse employment action; and (2) the supervisor’s act proximately caused
the ultimate employment action. Staub, 562 U.S. at 414.
Adams maintains that where, as here, “a disciplinary recommendation by a party with no
power to actually discipline the employee may be actionable if the plaintiff proves that the
recommendation directly resulted in the employee’s [discipline’].” (Doc. # 45 at 34 ) (citing
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999)); see Jones v. City of Heflin,
207 F. Supp. 3d 1255 1272-73 (“In such a case, the recommender is using the decision maker as
the mere conduit, or ‘cat’s paw’ to give effect to the recommender’s discriminatory [or retaliatory]
animus.”). Adams argues that Jolanda Johnson was the “de facto” decisionmaker, and “that [fact
that] Johnson and her team prejudged Adams and the other charged employees is undeniable in
view of the scripts and instructions to the hearing officers on handling the union’s objections.”
(Doc. # 45 at 33-34).
“The term ‘cat’s paw’ derives from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected
into United States employment discrimination law by Judge Posner in 1990. In the fable, a monkey [uses flattery to]
induce[] a cat [] [] to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process,
the monkey makes off with the chestnuts and leaves the cat with nothing. A coda to the fable (relevant only marginally,
if at all, to employment law) observes that the cat is similar to princes who, flattered by the king, perform services on
the king’s behalf and receive no reward.” Staub v. Proctor Hosp., 562 U.S. 411, 416 n.1 (2011).
15
15
Even viewing the facts in the light most favorable to Adams, the Rule 56 evidence falls far
short of establishing that Johnson’s decision to charge him with dishonesty was motivated by a
“retaliatory animus.” Adams does not dispute any of the facts on which Johnson based her
recommendation. In fact, Adams admits that he used FMLA leave on four of the past ten holidays,
and that he received two warnings regarding suspected improper FMLA prior to his suspension.
Adams admits that that his condition is not more likely to flare up over holidays or weekend.
It is also undisputed that over 750 CSX employees used FMLA leave to mark off over the
Christmas 2017 holiday break. Of those 750 employees, Johnson investigated and charged 123
employees with dishonesty. Only 81 employees were formally disciplined. Johnson reviewed
Adams’s file, along with hundreds of others, in determining whether he used his FMLA
dishonestly. Adams was treated in the same way as every other CSX employee who marked off
FMLA for Christmas day. He was not singled out by Johnson, or otherwise targeted by CSX. Thus,
the evidence in the Rule 56 record does not give any indication that Johnson was motivated by a
“discriminatory animus.”
Further, even if the Rule 56 evidence suggested some motive on the part of Johnson (and,
to be clear, it does not), Adams has failed to show that she was the “proximate cause” of his
suspension. Adams does not dispute that he was given the opportunity to appear at a disciplinary
hearing and to present evidence. It is also undisputed that Jones made the initial decision in this
matter, after thoroughly reviewing the hearing evidence, and then submitted a disciplinary
recommendation to Layne. Further, there is no nothing in the Rule 56 file that indicates Jones (or
Layne) consulted with Johnson in deciding whether and how to discipline Adams.
Adams also argues that Jones’s review was not truly independent because his boss (Melissa
Wheaton) gave him criteria to use when reviewing the record. But, the Rule 56 record suggest in
16
any way that Johnson worked with Wheaton to develop the criteria. Again, this evidence fails to
show that Johnson was the “de facto” decisionmaker. Because Adams has failed to show that
Johnson was motivated by a “retaliatory animus” and, in any event, also failed to show that she
was the “proximate cause” of his suspension, his cat’s paw theory necessarily fails.
Alternatively, Adams argues the following evidence is sufficient to show that his
suspension was pretext for retaliation: (1) Johnson failed to perform a sufficient individualized
review of his December 25, 2017 FMLA usage; (2) CSX was “willfully ignorant” because it failed
to fully investigate Adams’s FMLA usage ; (3) CSX departed from its normal policies and
procedures in disciplining Adams; (4) Jones’s mistake as to Adams’s FMLA authorization; and
(5) Johnson’s testimony that the only employees exonerated for dishonest FMLA usage over the
Christmas 2017 holiday were those who presented medical documentation at their disciplinary
hearing.
But, Adams cannot get to a jury by merely criticizing CSX’s investigation. A reason
articulated by an employer is not a pretext for retaliation “unless it is shown both that the reason
was false, and that [retaliation] was the real reason.” Springer, 509 F.3d at 1348 (quoting Brooks,
446 F.3d at 1163 (emphasis in original)). Adams has pointed to what he contends were flaws in
the CSX disciplinary process.16 However, he has failed to make the necessary showing that CSX
did not have a good-faith belief that he dishonestly used his FMLA leave, and that the underlying
reason for his suspension was actually retaliation. In other words, even if it could be said that CSX
was mistaken in its view that Adams misused his FMLA leave, and even if Adams actually used
his FMLA leave honestly, that would still be insufficient to create an issue of fact for a jury to
16
Of course, one of those flaws was that Erica McNair and Melissa Wheaton never got a response from Layne about
the final disciplinary decision for Adams. (Docs. # 38-7 at 117; 38-9 at 80-82). Therefore, Adams received a timeserved suspension rather than being fired. (Doc. # 38-6, Exh. E at 93).
17
decide here. This is because Adams has not pointed to any Rule 56 evidence that suggests that
CSX’s belief that he misused FMLA leave, even if in error, was not in good faith. Total Sys., 221
F.3d at, 1176-77 (11th Cir. 2000).
Adams has failed to submit evidence sufficient to show that his suspension is a pretext for
retaliation; therefore, his FMLA retaliation claim is due to be dismissed.
B. FMLA Interference
To establish an FMLA interference claim, “‘a[] [plaintiff] need only demonstrate by a
preponderance of the evidence that he was entitled to the benefit denied.’” Krutzig v. Pulte Home
Corp., 602 F.3d 1231, 1235 (11th Cir. 2010) (quoting Strickland v. Water Works and Sewer Bd.
of Birmingham, 239 F.3d 1199, 1206-07 (11th Cir. 2001)). The employee need not allege that his
employer intended to deny the benefit, because “the employer’s motives are irrelevant.”
Strickland, 293 F.3d at 1208.
“Courts faced with similar facts have repeatedly held that a termination based on such ‘an
honest suspicion’ cannot support an [FLSA] interference claim[.]”17 Robinson v. Sailormen, Inc.,
No. 1:14CV44-MW/GRJ, 2017 WL 10635662, at *4 (N.D. Fla. Sept. 22, 2017) (holding that “the
undisputed evidence establishes that an employer terminated Plaintiff because he honestly (though,
perhaps, mistakenly) believed that Plaintiff was not using leave time for its intended purpose and
that she had not been candid with him about her leave.”); Moughari v. Publix Super Markets, Inc.,
Plaintiff cites to Diamond v. Hospice of Florida Keys, Inc., for the proposition that that an employer’s good faith
belief does not preclude FMLA interference claims. 677 F. App’x 586, 592 (11th Cir. 2017). Specifically, Plaintiff
contends Diamond stands for the proposition that “[t]he intent of the employer is not relevant to an FMLA interference
claim.” Id. Of course, as a general principle, that is true. However, to the extent Plaintiff argues that Diamond precludes
consideration of an employer’s honest suspicion in disciplining an employee for dishonestly using FMLA leave, that
decision is distinguishable from this case. In Diamond, the Eleventh Circuit stated that “[t]he intent of the employer
is not relevant” in the context of “unlawful employer interference” which “includes not only refusing to authorize
FMLA leave, but also ‘discouraging an employee from using such leave.” Id. (citing Martin v. Brevard Cty. Pub.
Sch.,543 F.3d 1261, 1267 (11th Cir. 2008).
17
18
1998 WL 307454, *2 (N.D. Fla. April 27, 1998) (finding no violation of the FMLA where
undisputed evidence established that the employer terminated employee based on conclusion that
employee was not using his leave time for its intended purpose and was not being candid with his
managers about his leave, even if in fact no misuse occurred), aff’d without published opinion, 170
F.3d 188 (11th Cir.1999); see Scruggs v. Carrier Corp., 688 F.3d 821, 825 (7th Cir. 2012) (“an
employer can defeat an [FMLA] interference claim by showing, among other things, that the
employee did not take leave for the intended purpose.”) (internal quotations omitted); Warwas v.
City of Plainfield, 489 F. App’x 585, 588 (3d Cir. 2012) (“[A]n employer may defeat an FMLA
claim if the discharge was based upon the employer's honest belief that the plaintiff either misused
or failed to use her medical leave for the intended purpose.”).
First, as an initial matter, and to reiterate this point, Adams took his FMLA leave on
Christmas day 2017. So, his interference theory is not that he was prohibited from taking his leave,
only that he was disciplined for doing do. “‘Thus, Plaintiff’s FMLA claims [for retaliation and
interference] essentially merge into one claim,’ which ‘sounds in retaliation, not interference.’”
Talley v. Triton Health Sys., LLC, No. 2:14-CV-02325-RDP, 2016 WL 4615627, at *11 (N.D. Ala.
Sept. 6, 2016) (citing Hawkins v. BBVA Compass Bancshares, Inc., No. 2:12-CV-03922-RDP,
2014 WL 4715865, at *16 (N.D. Ala. Sept. 22, 2014), aff’d, 613 F. App’x 831 (11th Cir. 2015)) .
And, “[b]ecuase ‘h[is] interference claim is largely a clone of h[is] FMLA retaliation claim,’
Plaintiff’s interference claim based on h[is] termination fails as a matter of law, and the question
vel non is whether Defendant retaliated against her.” Id. (citing Hawkins, 2014 WL 4715865, at *
16) (emphasis in original).
Second, it follows inexorably that if an employer articulates a good faith (but mistaken)
reason for believing that an employee has misused his FMLA benefits, a subsequent disciplinary
19
action cannot support an FLSA interference claim. “Otherwise, [a] plaintiff would enjoy a greater
right to continued employment that if he been continuously employed during his FMLA leave.”
Wu v. Se.-Atl. Beverage Corp., 321 F. Supp. 2d 1317, 1341 (N.D. Ga. 2004) (internal quotations
omitted). As previously discussed, CSX articulated a good faith belief for Adams’s suspension.
And because CSX articulated this good faith belief, under these circumstances, the Rule 56 facts
surrounding Adams’s suspension do not support an FLSA interference claim.18
Third, and alternatively, Adams claims that his temporary reinstatement (i.e., returning to
his position as a conductor after marking off FMLA on December 25, 2017) was illusory because
he was removed from service a mere seven days later. (Doc. # 45 at 31-32). Adams argues that his
alleged “illusory” reinstatement is analogous to an employer allowing cursory reinstatement to
comply with the law, and subsequently demoting an employee a short time later. But, this argument
misses the mark by a wide margin. Adams was not demoted or terminated after returning to work
from his December 25, 2017 FMLA mark-off. Rather, he was suspended pending a disciplinary
hearing. To be clear, Adams was neither demoted nor terminated for using his FMLA leave.
Finally, Adams argues that CSX’s FMLA policy limits the number of holidays an
employee may use FMLA leave (i.e., four out of the previous ten holidays). (Doc. # 45 at 29). He
contends that this restriction necessarily deprives any employee who marks off on four or more
holidays within a ten-holiday period of his FMLA benefits. (Id.). As persuasive as his Adams’s
policy argument may be, (again) Adams has failed to show that he was actually denied his FMLA
18
To be clear, this is not a case where the Rule 56 evidence suggests that CSX “failed to investigate” or was “willfully
ignorant.” Although Johnson’s initial review of the suspected dishonest Christmas FMLA usage by Adams occurred
in a short window of time, CSX provided Adams with a hearing, allowed him to present evidence, and permitted him
to question witnesses. And, the recommendation to suspend him was reviewed by both Jones and Layne before formal
discipline was issued. Thus, Adams’s willful ignorance and failure to investigate arguments lack any merit.
20
benefits. Indeed, there is no evidence in the Rule 56 record that indicates Adams was ever denied
FMLA leave. Therefore, Adams’s FMLA interference claim is due to be dismissed.
C. Outrage
Under Alabama law, to recover for the tort of outrage “a plaintiff must demonstrate that
the defendant’s conduct ‘(1) was intentional or reckless; (2) was extreme and outrageous; and (3)
caused emotional distress so severe that no reasonable person could be expected to endure it.’”
Little v. Robinson, 72 So. 3d 1168, 1172 (Ala. 2011) (citations omitted); see Am. Rd. Serv. Co. v.
Inmon 394 So. 2d 361 (Ala. 1980). The tort of outrage “does not recognize recovery for mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Inmon, 394 So. 2d
at 364-65 (internal citations and quotation marks omitted). Rather, the Alabama Supreme Court
has severely limited the instances in which it will find the tort exists. As the court has stated:
[O]ne who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress
and for bodily harm resulting from the distress. The emotional distress thereunder
must be so severe that no reasonable person could be expected to endure it. Any
recovery must be reasonable and justified under the circumstances, liability ensuing
only when the conduct is extreme. By extreme we refer to conduct so outrageous
in character and so extreme in degree as to go beyond all possible bounds of
decency, and to be regarded as atrocious and utterly intolerable in a civilized
society.
Id.
In fact, the Alabama Supreme Court has historically found the tort of outrage arises
only in cases dealing with severe sexual harassment, reckless handling of dead bodies, and
extremely coercive tactics used by an insurer to force an insured to surrender a claim. See Busby
v. Truswal Sys. Corp., 551 So.2d 322 (Ala. 1989) (finding sufficient evidence to support a claim
of outrage against a defendant when plaintiffs provided seventeen examples of his lewd sexual
harassment, including evidence that the defendant said that he wished that the plaintiffs would
come to work braless and wear less clothing, openly stared at the plaintiffs’ sexual anatomy, and
21
stated that he should send one of the plaintiffs across the street to where a group of men were
standing because she stayed sexually aroused all of the time); Whitt v. Hulsey, 519 So.2d 901 (Ala.
1987) (finding evidence sufficient to support a claim of outrageous conduct when Defendant acted
recklessly in clearing the land around the cemetery where relatives of the plaintiffs were buried);
National Sec. Fire & Cas. Co. v. Bowen, 447 So.2d 133 (Ala. 1983) (finding outrageous conduct
when insurance agents (1) bribed witnesses to testify falsely against plaintiff; (2) attempted to
coerce the plaintiff to drop said insurance claim and plead guilty to criminal charges by telling
plaintiff they could obtain probation for the plaintiff; (3) harassed the plaintiff by continually
telephoning, at all times of the day, the plaintiff and other members of her family; and (4)
threatening the plaintiff and members of his family in an effort to coerce plaintiff to drop the
insurance claim).
Here, Adams’s outrage claim necessarily fails. Adams alleges that “CSX engaged in a
widespread protracted pattern of outrageous conduct designed to contravene public policy in order
to intimidate employees into not exercising their legitimate and approved FMLA rights on
holidays.” (Doc. # 1 at ¶ 57). Even viewing the facts in the light most favorable to Adams, these
allegations are not distinguishable from the thousands of garden variety discrimination claims filed
each year.
Adams claims that this is not a “run-of-the-mill employment dispute.” (Doc. # 45 at 48).
Adams cites to Lees v. Sea Breeze Health Care Center., Inc., for the proposition that outrage claims
may exist in the employment context if the violation of public policy furnishes the requisite “sound
of fury.”19 391 F. Supp. 2d 1103, 1108 (S.D. Ala. 2005). In Lees, the district court found that “a
19
The court notes that Lees was issued in 2005 and was based on a Rule 12(b)(6) Motion to Dismiss. See FED. R. CIV.
P. 12(b)(6). In allowing plaintiff’s outrage claim to proceed, Judge Steele ruled that “[a]t this nascent stage of the
proceedings, the [c]ourt cannot rule out the possibility that Lees may be able to prove such a set of facts.” Lees, 391
F. Supp. 2d at 1108. However, since the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
22
ten-month onslaught of harassment, a slew of adverse repercussions, and a firing, all because the
plaintiff had enlisted in the U.S. Air Force Reserves, would offend public policy.” Id. Whatever
can be said about whether the Alabama Supreme Court would recognize the tort of outrage if
presented with the facts in Lees, this court can say with confidence that Lees is distinguishable
from this case. Here, Adams was previously warned (twice!) about his suspect FMLA usage,
suspended from work pending a disciplinary investigation, given the opportunity to appear at a
hearing, and was ultimately suspended. Clearly, these facts do not furnish the requisite “sound of
fury.”
The bottom line here is that the Rule 56 facts in this case simply do not support a finding
that CSX “caused emotional distress so severe that no reasonable person could be expected to
endure it.” Little, 72 So. 3d at 1172. As a result, his claim for outrage is due to be dismissed.
D. Remaining State Law Claims20
Adams further alleges that CSX is liable for negligent and/or wanton training and
supervision. (Doc. # 1 at ¶¶ 49-58). Specifically, Adams asserts that CST negligently trained and
supervised the managers involved in disciplining him. (Id.). But, to maintain a claim for negligent
and/or wanton training or supervision against CSX, Adams must allege a tort claim that is
cognizable under Alabama Law. Shuler v. Ingram & Assocs., 441 F. App’x 712, 721 (11th Cir.
(2007), and Ashcroft v. Iqbal, 566 U.S. 662 (2009), a plaintiff must plausibly allege facts on the face of the wellpleaded complaint sufficient to state a claim. Thus, the court is unsure of how Lees would be decided today. In any
event, this issue is presented in a Motion for Summary Judgment and the Rule 56 record is clear.
CSX argued in its motion for summary judgment (Doc. # 43) that Adams’s claims for negligent and/or wanton
training, as well as negligent and/or wanton supervision should be dismissed. Adams failed to respond to CSX’s
argument in its responsive briefing. (Doc. # 45). In its reply brief, CSX maintains that summary judgment should be
granted on the claims ignored by Adams. (Doc. # 50 at 10-11); Hudson v. Norfolk S. Ry. Co., 209 F. Supp. 2d 1301,
1324 (N.D. Ga. 2001) (“When a party fails to respond to an argument or otherwise address a claim, the Court deems
such argument or claim abandoned.”) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.
1995). The court agrees. However, in an abundance of caution, the court analyzes Adam’s remaining state law claims
on their merits.
20
23
2011) (finding that Plaintiff’s “wanton and reckless supervision and training claim fails as a matter
of law because they have failed to establish that [defendant’s] employees committed any tort under
Alabama law.”). As previously discussed, Adams’s outrage claim is due to be dismissed.
Further, Adams’s remaining federal causes of action will not support his allegations of
negligent and/or wanton training or supervision. Williams v. United Launch All., LLC, 286 F. Supp.
3d 1293, 1311 (N.D. Ala. 2018) (holding that “[t]o establish a negligent supervision and training
claim, Alabama law requires that the alleged, derelict employee engage in tortious conduct. The
underlying wrongful conduct must constitute a common-law, Alabama tort, not a federal cause of
action such as Title VII.”) (internal citations and quotations omitted). Therefore, Adam’s
allegations of negligent and/or wanton training or supervision are due to be dismissed, because the
claim has been abandoned and also because it fails on the merits.
IV.
Conclusion
After careful consideration, and for all of the reasons stated above, Defendant’s Motion for
Summary Judgment (Docs. # 36, 38, 43) is due to be granted, and Plaintiff’s Complaint (Doc. # 1)
is due to be dismissed with prejudice. An order consistent with this memorandum opinion will be
entered contemporaneously.
DONE and ORDERED this March 18, 2020.
_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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