WEEKS v. NORFOLK SOUTHERN RAILWAY COMPANY
ORDER DENYING 20 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/15/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
NORFOLK SOUTHERN RAILWAY
CIVIL ACTION NO. 5:16-CV-102 (MTT)
Defendant Norfolk Southern Railway Company has moved for summary
judgment. Doc. 20. The motion is DENIED.
Plaintiff Keith Weeks alleges that Norfolk Southern violated the Federal Railroad
Safety Act (FRSA), 49 U.S.C. § 20109, by retaliating against him for reporting a workrelated injury. See generally Doc. 1. Specifically, he alleges that, when he attempted to
return to work in 2014 after being out because of an injury since 2012, Norfolk Southern
delayed his return to work by forcing him to undergo a functional capacity evaluation
(FCE) to test his readiness for work, which he was physically unable to do, and that this
caused him to lose his health insurance. Docs. 1 at 3; 23 at 13-14. Weeks further
alleges that Norfolk Southern took these actions against him because he reported the
2012 injury as work-related to a Norfolk Southern claims agent in 2013. Docs. 1 at 3;
23 at 4. Norfolk Southern now moves for summary judgment as to Weeks’s FRSA
claim and his claim for punitive damages. Doc. 20.
II. SUMMARY JUDGMENT STANDARD
A court must grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “A factual dispute is genuine only if ‘a reasonable
jury could return a verdict for the nonmoving party.’” Info. Sys. & Networks Corp. v. City
of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels
of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant may support its assertion that a fact
is undisputed by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A).
If the movant makes this showing, “the burden shifts to the non-moving party to
rebut that showing by producing . . . relevant and admissible evidence beyond the
pleadings.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th
Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The non-moving
party does not satisfy its burden “if the rebuttal evidence ‘is merely colorable, or is not
significantly probative’ of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249-50).
Further, where a party fails to address another party’s assertion of fact as required by
Fed. R. Civ. P. 56(c), the Court may consider the fact undisputed for purposes of the
motion. Fed. R. Civ. P. 56(e)(2). However, “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge . . . . The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
III. FRSA CAUSE OF ACTION
The parties agree that, for a FRSA claim, a plaintiff must establish by a
preponderance of the evidence that (1) “he engaged in protected activity”; (2) “the
employer knew that [he] engaged in protected activity”; (3) “he suffered an unfavorable
personnel action”; and (4) “the protected activity was a contributing factor in the
unfavorable action.” Docs. 20-1 at 5 (quoting Consolidated Rail Corp. v. United States
Dep’t of Labor, 567 F. App’x 334, 337 (6th Cir. 2014)); 23 at 2 (quoting Araujo v. N.J.
Transit Rail Op., Inc., 708 F.3d 152, 157 (3rd Cir. 2013)); see also James v. CSX
Transp. Inc., 2017 WL 2471828, *5 (M.D. Ga.) (quoting Majali v. U.S. Dep’t of Labor,
294 F. App’x 562, 566 (11th Cir. 2008) (“The FRSA incorporates the Wendell H. Ford
Aviation Investment and Reform Act’s burden-shifting framework for retaliation claims.”
(citing 49 U.S.C. § 42121(b)(2)(B); Araujo, 708 F.3d at 157)). Once an employee
establishes a prima facie case, the employer then holds the burden to demonstrate “by
clear and convincing evidence, that it would have taken the same adverse action in the
absence of the protected activity.” Consolidated Rail Corp., 567 F. App’x at 337; see
also Araujo, 708 F.3d at 159; James, 2017 WL 2471828, *5 (quoting Majali, 294 F.
App’x at 566-67). “To meet [this] burden, the employer must show that ‘the truth of its
factual contentions are highly probable.’” Araujo, 708 F.3d at 159 (quoting Colorado v.
New Mexico, 467 U.S. 310, 316 (1984)).
Considering the evidence in the light most favorable to Weeks, it is clear that
Weeks has adduced evidence that would authorize a jury to find that he has established
a prima facie case. Norfolk Southern does not appear to dispute that Weeks suffered
an unfavorable personnel action. And there is at least an issue of fact as to whether
Weeks engaged in protected activity that was a contributing factor in the unfavorable
personnel action. The Court cannot accept Norfolk Southern’s argument that Weeks’s
protected activity is too removed from the adverse employment action to be considered
a contributing factor as a matter of law.1 Doc. 20-1 at 6-8. Weeks was on leave at the
time of the protected conduct without expectation, on Norfolk Southern’s part, of him
returning. See Doc. 25-2 at 62:7-14. Indeed, Weeks’s supervisor, David Walker,
admitted that he did not think Weeks was going to return after he left work in 2012 until
he attempted to do so in 2014. Id. Thus, as Weeks argues, a jury could find Norfolk
Southern retaliated against him at the first opportunity after his protected conduct. Doc.
23 at 5. Moreover, there was no intervening conduct worthy of disciplinary action, and
Weeks has presented evidence beyond temporal proximity to establish a causal
Norfolk Southern also argues the protected conduct was not a contributing factor
in forcing Weeks to undergo an FCE because asking an employee to do so was routine
and that it was “entirely normal” for Weeks’s supervisor, David Walker, to be involved in
that process. Doc. 20-1 at 15. But the evidence suggests otherwise, especially when
The cases cited by Norfolk Southern to support this position are distinguishable. See, e.g., Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (concluding that a “three to four month
disparity between the statutorily protected expression and the adverse employment action” was not close
enough temporally to establish causation alone); Adams v. Cobb Cty. School Dist., 242 F. App’x 616, 621
(11th Cir. 2007) (concluding that the plaintiff failed to state a retaliation claim where there was a threeyear delay between the protected conduct and the adverse action when the plaintiff was employed by the
defendant during the entirety of that time); Gunderson v. BNSF Railway Company, 850 F.3d 962, 969
(8th Cir. 2017) (“[The Plaintiff]’s prior safety-related activities were remote in time and disconnected from
the [adverse employment action] by an intervening event that independently justified adverse disciplinary
action.” (internal quotation marks omitted)); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.
1997) (“[T]he district court held that the three-month period between the activity and termination, standing
alone, does not establish a causal connection.”).
comparing the 2014 FCE and Walker’s involvement therein to the procedure leading to
Weeks undergoing an FCE in 2010. Docs. 23-1¶ 23-25; 23-3; 23-6; 23-18. Similarly, a
fact issue remains as to the cause of, and Norfolk Southern’s involvement in, the
cancellation of Weeks’s insurance. See Doc. 23-1 ¶ 32.
Moreover, even if Weeks must establish discriminatory intent to prove the
protected activity was a contributing factor, as Norfolk Southern argues, there is a fact
issue as to whether there was such intent based on the evidence of Walker’s animus
towards Weeks.2 Finally, drawing all justifiable inferences in Weeks’s favor, he has
presented sufficient evidence, albeit circumstantial, from which a reasonable jury could
infer that Walker was in fact aware of Weeks’s protected conduct at the time he
attempted to return to work in 2014.3 See Anderson, 477 U.S. at 255 (“The evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.”); see also Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (“Circumstantial
evidence is not only sufficient, but may also be more certain, satisfying and persuasive
than direct evidence.” (internal quotation marks and citations omitted)); cf. Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1327 (11th Cir. 2011) (stating that, in a
discrimination case under the McDonnell-Douglas framework, a plaintiff may defeat a
summary judgment motion by “present[ing] a convincing mosaic of circumstantial
This includes Weeks’s testimony that Walker: (1) told him, after he returned to work following previous
injuries, “that they would be watching [him] now” and that Weeks had a “bullseye on [his] back” (Doc. 25-1
at 30:1-5, 144:34-146:1); and that Walker told Weeks he would not allow him to come back to work when
Weeks was on leave after his 2012 injury prior to his attempted return to work in 2014 (Id. at 31:2-4).
The parties appear to agree that the relevant inquiry is whether Walker, as Weeks’s supervisor, knew of
his protected activity at the time he attempted to return to work in 2014. Docs. 20-1 at 8; 23 at 5; 24 at 4.
Weeks admitted that he told only a Norfolk Southern claims agent about his intention to file a work-related
injury claim, and Walker testified that he was not aware of Weeks’s protected conduct when he attempted
to return to work. Docs. 25-1 at 126:25-127:16; 25-2 at 55:20-564. But Walker also testified that he
spoke with the claims department as a part of his job, that “there could have been a discussion” about
Weeks with the claims department at some point, and that he spoke with Weeks during the time he was
on leave from his 2012 injury. Doc. 25-2 at 54:24-55:9, 58:12-19, 62:12-64:1.
evidence that would allow a jury to infer intentional discrimination by the decisionmaker”
(internal quotation marks and citations omitted)).
Norfolk Southern has also failed to establish an absence of a genuine fact
dispute as to whether it would have taken the same unfavorable personnel actions
towards Weeks regardless of the protected conduct. Norfolk Southern’s argument on
this point hinges on its assertion that the FCE, and Walker’s involvement, was routine,
relying on a comparison between Weeks’s 2010 and 2014 return-to-work processes.
Docs. 20-1 at 15 (“The critical comparator in this case is Weeks himself.”). But, as
stated, there is a fact issue as to whether those processes were in fact the same,
particularly as to Walker’s involvement. And the same can be said regarding Weeks’s
insurance – a fact issue remains as to both the cause of and process that led to it being
IV. WEEKS’S CLAIM FOR PUNITIVE DAMAGES
Norfolk Southern has failed to establish that Weeks is not entitled to punitive
damages as a matter of law. Therefore, Norfolk Southern is not entitled to summary
judgment as to this claim.
Accordingly, the Court DENIES Norfolk Southern’s Motion for Summary
Judgment (Doc. 20).
SO ORDERED, this the 15th day of September, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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