WINDOM v. NORFOLK SOUTHERN RAILWAY COMPANY et al
Filing
25
ORDER DENYING 11 Motion to Dismiss Complaint. Ordered by Judge Marc Thomas Treadwell on 2/1/2013. (tlh)
INTHE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PAUL WINDOM,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION NO. 5:12-CV-345(MTT)
ORDER
Before the Court is Defendant Sharon R. Heyob’s Motion to Dismiss. (Doc. 11).
Heyob contends Plaintiff Paul Windom fails “to state any legally plausible claim for
relief” against her, or, alternatively, that Windom failed to exhaust his administrative
remedies against her. (Doc. 11-1 at 2-3). For the following reasons, the Motion is
DENIED.
I.
FACTUAL AND PROCEDURAL HISTORY1
Windom was employed as a welder by Defendant Norfolk Southern Railway
Company (Norfolk). He alleges he was injured at work on August 6, 2010, when he
slipped while getting off a truck. Windom contends that he reported his injury to Tommy
Thornhill, his immediate supervisor. (Doc. 1 at 3). He further contends Thornhill told
Lucious Bobbitt, a managerial employee with supervisory authority over Windom.
Following Thornhill’s phone call to Bobbitt, Windom alleges that he spoke with Bobbitt
and Bobbitt “repeatedly interrogated [the] Plaintiff regarding the incident and injury.”
(Doc. 1 at 4). Windom continued to work until August 11. He then informed Thornhill
1
The facts are taken from the Complaint (Doc. 1) and are accepted as true.
he needed medical treatment for his injury. Windom contends Thornhill immediately
reported this information to Bobbitt. Though Windom told Thornhill he needed a
medical provider near Tifton, Thornhill instead took him to a medical doctor in Valdosta.
However, the doctor was not available and Thornhill eventually had to take Windom to
the hospital in Valdosta. Windom alleges was he was unable to work because of
injuries sustained in the August 6 accident.
Windom was eventually charged with violating company safety rules. (Doc. 1 a
5). On August 19, 2010, “Defendant Norfolk Southern, acting through Defendant
Heyob, began writing [the] Plaintiff demanding that he provide medical records.” (Doc.
1 at 5). Defendant Sharon Heyob was Norfolk’s Manager of Administrative Services.
(Doc. 1 at 2). On September 14, Norfolk was informed that Windom was represented
by legal counsel, and that all further communication regarding the August 6 incident
should be directed to Windom’s counsel. (Doc. 1 at 5). On September 20, Norfolk
acknowledged in writing that it knew Windom was represented by counsel. (Doc. 1 at
6). On October 1, Heyob again wrote directly to Windom seeking medical records
related to the August 6 incident. (Doc. 1 at 6). On October 28, Windom filed a FELA
action2 as a result of the August 6 accident. (Doc. 1 at 6). On November 11, Heyob
again demanded that Windom provide medical records relating to the August 6
accident. (Doc. 1 at 6). Heyob also threatened to terminate Windom’s employment if
he did not comply with the demand. (Doc. 1 at 6). Windom contends Bobbitt also
called and threatened termination. (Doc. 1 at 6). On November 15, Norfolk received
Windom’s medical records, and then on December 2 Heyob terminated Windom’s
employment. (Doc. 1 at 7).
2
Windom v. Norfolk Southern Railway Company, Civil Action Number 5:10-cv-407 (MTT).
-2-
Windom now brings this action pursuant to the Federal Rail Safety Act (FRSA)
against Norfolk and Sharon Heyob.3 (Doc. 1). Windom contends that reporting his
injury and seeking medical treatment are both activities protected by the FRSA.
Windom contends that Norfolk knew he “had suffered and was reporting an on the job
injury.” (Doc. 1 at 8). He contends Norfolk “planned to punish [him] at least in part
because of his report of an on the job injury.” (Doc. 1 at 8). He contends the
Defendants acted together to violate the FRSA because he reported the injury. (Doc. 1
at 8). Windom further contends that the Defendants’ actions are motivated by the
Defendants’ policy of “retaliating against and harassing and intimidating employees who
suffer and report on the job injuries.” (Doc. 1 at 8).
II.
MOTION TO DISMISS STANDARD
To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
specific factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “At the motion to dismiss stage, all well-pleaded facts are accepted as true,
and the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006).
However, “[w]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘shown’ – that
the pleader is entitled to relief.” Iqbal, 556 U.S. at 679. “[C]onclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will not
prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.
2002).
3
Defendants Bobbitt and Thornhill were dismissed by Stipulation on September 13, 2012. (Doc. 7).
-3-
III.
A.
DISCUSSION
Whether Windom Exhausted his Administrative Remedies against
Defendant Sharon Heyob
The FRSA requires that before a plaintiff seeks review of his FRSA claim in a
district court, he must first file a complaint with the Secretary of Labor, specifically the
Occupational Safety and Health Administration (OSHA). 49 U.S.C. § 20109(d). With
regard to an employee who believes he “has been retaliated against by an employer in
violation of … FRSA,” “[n]o particular form of complaint is required. A complaint may be
filed orally or in writing.” 29 C.F.R. §§ 1983.103(a), (b). The purpose of an OSHA
complaint is to “afford OSHA the opportunity to resolve the plaintiff’s allegations through
the administrative process.” Bozeman v. Per-Se Technology, Inc., 456 F. Supp. 2d
1282, 1358 (N.D. Ga. 2006) (citing Hanna v. WCI Communities, Inc., 348 F. Supp. 2d
1322, 1326 (S.D. Fla. 2004)). However, if OSHA “has not issued a final decision within
210 days after the filing of the complaint …, the employee may [bring an action] in the
appropriate district court.” 49 U.S.C. § 20109(d)(3).
Windom filed a timely OSHA complaint with the United States Department of
Labor. (Doc. 11-8 at 2). For reasons unclear, Windom used the “Notice of Alleged
Safety or Health Hazards” complaint form. In the complaint heading, the establishment
named is “Norfolk Southern Corp.,” and the management official named is “S.R.
Heyob.” (Doc. 11-8 at 2). The type of business listed is “Railroad-interstate commerce
FRSA.” There are no other places on the complaint form to name specific individuals.
Defendant Heyob contends that though Windom filed an administrative
complaint, he failed to specifically name Heyob as a “respondent in his OSHA
complaint.” (Doc. 11-1 at 8). Heyob acknowledges that she is listed as the
-4-
management official, but argues that because of his failure to list her as a “respondent,”
Windom failed to exhaust his administrative remedies against her, and thus she must be
dismissed from this action.
Heyob cites two cases, Bozeman v. Per-Se Technology, Inc., 456 F. Supp. 2d
1282 (N.D. Ga. 2006) and Smith v. Psychiatrist Solutions, Inc., 2009 WL 903624 (N.D.
Fla.), to support this argument. Both Bozeman and Smith involve Sarbanes-Oxley
whistleblower violations. 4 Heyob contends that the administrative exhaustion process
for this type of violation is akin to the process for alleged FRSA violations. Even
assuming that the administrative process for Sarbanes-Oxley whistleblower and FRSA
whistleblower actions are similar, these two cases do not warrant Heyob’s dismissal
from this action.
In Bozeman, the court concluded that mentioning an individual defendant in the
body of the complaint was insufficient for administrative exhaustion purposes.
Bozeman, 456 F. Supp. 2d at 1358. The court reasoned that even if it assumed the
individual defendant “‘was placed on notice that he had allegedly violated the law, that
notice has no consequence as to whether OSHA was placed on notice that it was
required to investigate the individual defendant’s action in this case.’” Id. (quoting
Hanna, 348 F. Supp. 2d at 1326). Thus, the court held that because the plaintiff “had
failed to specifically name [the proper defendants] in the heading of his administrative
complaint,” the defendants were entitled to summary judgment. Id. (emphasis added).
Similarly, in Smith, the plaintiff did not name the defendants “in the heading of her
4
The Court notes that though the time period requirements for Sarbanes-Oxley whistleblower claims are
different, “[b]efore an employee can assert a cause of action in federal court under the … Act, the
employee must file a complaint with OSHA and afford OSHA the opportunity to resolve the allegations
administratively,” similar to FRSA whistleblower claims. Bozeman, 456 F. Supp. 2d at 1357 (internal
quotations and citation omitted).
-5-
administrative complaint or indeed anywhere in her complaint …. Thus, [the plaintiff
was] unable to establish a claim against either of these defendants due to her failure to
properly exhaust her administrative remedies with respect to them.” Smith, 2009 WL
903624, *8 (emphasis added). Ultimately, the court held the plaintiff’s “Sarbanes- Oxley
whistleblower claim can lie against … the only defendant named in her administrative
complaint.” Id.
Here, Windom named Norfolk as the establishment and Heyob as the
management official in the heading of his complaint. Windom contends “[i]t is obvious
that [the] Plaintiff intended for Heyob to be named specifically in the OSHA complaint –
that is why he listed her name specifically on the OSHA form in the only location that
seeks a person’s name.” (Doc. 20 at 12). The Court agrees that it is sufficiently clear
that Windom intended his OSHA complaint to be directed at Norfolk and Heyob. There
is no other location on the complaint for Windom to have named Heyob. Heyob is
clearly listed in the heading of the complaint. Thus, Bozeman and Smith are inapposite.
Heyob also contends that “[t]he body of [the] Plaintiff’s OSHA complaint …
makes clear that Defendant NSRC is the respondent in his complaint.” (Doc. 11-1 at 9).
The Court disagrees. Reasonably interpreted, the form states that Norfolk, through its
management official, engaged in improper conduct. The specific acts described in the
form were acts of Heyob’s. Had OSHA investigated5, it would have been apparent to
OSHA that Windom was complaining of Heyob’s actions. Thus, the Court finds that
5
As discussed above, the purpose of the OSHA administrative exhaustion requirement is to give OSHA
the opportunity to resolve the plaintiff’s allegations through the administrative process. Here, the OSHA
complaint notified OSHA that, if it were to investigate Windom’s claim, its investigation would include
Heyob.
-6-
Windom’s failure to mention Heyob in the body of the OSHA complaint does not require
Heyob’s dismissal.
Further, any arguments related to the form of complaint submitted by Windom
are misplaced. Heyob acknowledges that the regulations permit Windom to submit a
complaint in any form, and thus, her arguments regarding whether or not Windom
submitted the correct “whistleblower complaint” warrant no analysis.
Heyob also contends that only one copy of Windom’s complaint was sent to
Norfolk’s Atlanta headquarters, and that Heyob never received a complaint addressed
specifically to her. This suggests, Heyob argues, that OSHA did not interpret the
complaint to identify Heyob as a respondent. The Court cannot draw this conclusion.
The complaint was sent to the only address Windom provided on the OSHA complaint
for Norfolk and Heyob. In any event, both parties admit that Windom filed a timely
complaint with OSHA, and that more than 210 days passed with no decision from
OSHA. (Doc. 1 at 2, ¶13; Doc. 10 at 2, ¶8).6 Thus, OSHA failed to officially act on
Windom’s complaint at all, and the Court does not find OSHA’s alleged failure to send
Heyob a copy of the complaint dispositive.
Therefore, the Court finds that because Windom named Heyob, specifically, in
the heading of his properly filed OSHA complaint, he has exhausted his administrative
remedies against her.
B.
Whether Windom States a Claim for Relief against Defendant Sharon
Heyob
Heyob also contends that Windom failed to state “any legally plausible claim for
relief” against her. (Doc. 11-1 at 3). She argues that Windom’s complaint does not
6
Heyob denies that those allegations are sufficient to confer jurisdiction on this court or to allege
satisfaction of administrative prerequisites, but admits to the underlying factual contentions.
-7-
allege any wrongdoing by her. Further, Heyob admits that her name appears several
times in the complaint, but argues “the paragraphs in which her name appears are
actually allegations made against” Norfolk. (Doc. 11-1 at 5). Further, Heyob points to
paragraphs in the complaint that allege wrongdoing, but that mention Norfolk and other
individuals without mentioning her by name. Thus, Heyob argues that allegations in the
complaint do not permit the Court to infer more than a mere possibility of misconduct by
her.
On the other hand, Windom contends he complies with Federal Rule of Civil
Procedure 8 requirements and has pled facts sufficient to allow the Court draw “the
reasonable inference that the [D]efendant is liable for the misconduct alleged.” (Doc. 20
at 5). He points to several specific allegations in the complaint regarding Heyob’s
actions and argues that these are not general or legal conclusions but specific factual
allegations supporting his FRSA claim against Heyob.7
A complaint must contain sufficient factual matter that if accepted as true states a
claim to relief that is plausible on its face. Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at
678. Twombly and Iqbal “do not suggest that the Supreme Court intended to rewrite
Rule 12(b)(6) or abandon notice pleadings.” Meyer v. Snyders Lance Inc., 2012 WL
6913724, *1 (M.D. Ga). Further, at this stage, “the pleadings are construed broadly
and … the allegations in the complaint are viewed in the light most favorable to the
plaintiff.” Watts v. Florida Intern. University, 495 F.3d 1289, 1295 (11th Cir. 2007)
(internal citations and quotations omitted). Though “a formulaic recitation of the
7
Windom attached documents to his Response that are not attached to the original complaint. Heyob
contends that Windom is improperly attempting to amend his complaint. The Court did not consider these
additional documents in determining whether Windom stated a claim, because at the Motion to Dismiss
stage all facts alleged in the Complaint are accepted as true. Thus, Windom need not provide evidentiary
support of the facts alleged.
-8-
elements … will not do,” Rule 12(b)(6) does not permit dismissal of a complaint if the
factual allegations are “enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
Here, Windom satisfied Rule 8’s pleading requirements. Windom’s whistleblower
claim is based on allegedly unlawful retaliation for reporting an on-the-job injury.
Windom contends that reporting his injury and seeking medical treatment are both
activities protected by the FRSA. Windom contends that Norfolk knew the Plaintiff “had
suffered and was reporting an on the job injury.” (Doc. 1 at 8). He contends Norfolk
“planned to punish [him] at least in part because of his report of an on the job injury.”
(Doc. 1 at 8). He contends the Defendants acted together to violated the FRSA
because he reported this injury. (Doc. 1 at 8).
Though Heyob is not mentioned in every factual contention, it is unlikely any
individual would be the sole actor in this FRSA whistleblower action. Windom alleges
Heyob was Norfolk’s Manager of Administrative Services. (Doc. 1 at 2). Further,
Windom alleges that on August 19, 2010 “Defendant Norfolk Southern, acting through
Defendant Heyob, began writing [the] Plaintiff demanding that he provide medical
records.” (Doc. 1 at 5). After Norfolk was notified that Windom was represented by
counsel and all communications should be directed to his counsel, Heyob again wrote
directly to Windom seeking medical records related to the August 6 incident. (Doc. 1 at
6).
Then, on October 28, Windom filed a FELA action as a result of the August 6
accident. (Doc. 1 at 6). On November 11, Heyob again demanded that the Plaintiff
provide medical records relating to the August 6 accident. (Doc. 1 at 6). Heyob also
-9-
threatened to terminate Windom’s employment if he did not comply with the demand.
(Doc. 1 at 6). On November 15, Norfolk received Windom’s medical records, and then
on December 2, Heyob terminated Windom’s employment. (Doc. 1 at 7).
Windom contends that all the Defendants terminated his employment because of
his August 6 injury and for “reporting” the injury. (Doc. 1 at 8). Windom further
contends that the Defendants’ actions are motivated by the Defendants’ policy of
“retaliating against and harassing and intimidating employees who suffer and report on
the job injuries.” (Doc. 1 at 8). It is clear to the Court that Windom has alleged
sufficient facts that if accepted as true state a plausible FRSA claim against Heyob.
Accordingly, Defendant Sharon Heyob’s Motion to Dismiss is DENIED.
SO ORDERED, this 1st day of February, 2013.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?