WEEKS v. NORFOLK SOUTHERN RAILWAY COMPANY
ORDER DENYING 27 Motion for Reconsideration. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 11/7/2017. (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 this Court to
reconsider its order denying Norfolk Southern’s Motion for Summary Judgment (Doc.
26). Doc. 27. The Motion is DENIED.
Pursuant to Local Rule 7.6, “Motions for Reconsideration shall not be filed as a
matter of routine practice.” M.D. Ga., L.R. 7.6. Indeed, “reconsideration of a previous
order is an extraordinary remedy to be employed sparingly.” Bingham v. Nelson, 2010
WL 339806, at *1 (M.D. Ga.) (quotation marks and citation omitted). It “is appropriate
only if the movant demonstrates (1) that there has been an intervening change in the
law, (2) that new evidence has been discovered which was not previously available to
the parties in the exercise of due diligence, or (3) that the court made a clear error of
law.” Id. “In order to demonstrate clear error, the party moving for reconsideration must
do more than simply restate [his] prior arguments, and any arguments which the party
inadvertently failed to raise earlier are deemed waived.” McCoy v. Macon Water
Authority, 966 F. Supp. 1209, 1222-23 (M.D. Ga. 1997).
Norfolk Southern presents two arguments for reconsideration. First, Norfolk
Southern argues that the Eleventh Circuit’s decision in Clover v. Total System Services,
Inc., 176 F.3d 1346 (11th Cir. 1999), requires the Court to reach a contrary conclusion
as to whether Plaintiff Keith Weeks’s supervisor, David Walker, had knowledge of his
protected activity, which Weeks must establish to state a retaliation claim under the
Federal Railway Safety Act, 49 U.S.C. § 20109. Doc. 27 at 4. The Court disagrees. In
Clover, much like this case, the plaintiff attempted to prove her supervisor was aware of
her protected conduct through circumstantial evidence, but the Eleventh Circuit held the
evidence was insufficient to avoid summary judgment on her Title VII retaliation claim.
Clover, 176 F.3d at 1354-55. But the circumstantial evidence in this case is simply
stronger than that in Clover, in which the plaintiff relied on attenuated evidence of
relationships and communication between her supervisor and other parties. Id.
Here, as discussed in the Court’s order, Weeks has presented sufficient
circumstantial evidence from which a reasonable jury could find that David Walker,
Weeks’s supervisor and the relevant decision-maker, knew of Weeks’s protected
activity, including Walker’s deposition testimony that there “could have been a
discussion” about Weeks with a Norfolk Southern claims agent. Doc. 26 at 5, 5 n.3; cf.
Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 n. 12, 1163-64 (11th Cir. 1993)
(affirming the district court’s finding of sufficient evidence to find the decision-maker was
aware of the plaintiff’s protected conduct, despite the decision-maker’s testimony to the
contrary, where the decision-maker was impeached with his deposition testimony that
he may have had a conversation about the plaintiff’s claims); see also Carlton v. Norfolk
Southern Railway Co., No. 1:16-cv-729-RWS, Doc. 43 at 25 (N.D. Ga. June 28, 2017)
(“The decision-maker’s knowledge may be established through a wide range of
circumstantial evidence, including the acts or knowledge of a combination of individuals
involved in the decision-making process.” (quotation marks and citation omitted)).
Finally, Norfolk Southern also points to a recent decision in the Northern District
of Georgia, Carlton & Fuller v. Norfolk Southern Railway Co., in which Judge Story
granted summary judgment to Norfolk Southern on the grounds that a supervisor did not
have knowledge of protected activity. As in this case, the decision-maker in Carlton
denied having knowledge of the plaintiff’s protected conduct, and, unlike here, the
plaintiffs failed to present evidence of such knowledge to contradict that denial,
prompting Judge Story to state that the plaintiffs could not avoid summary judgment by
relying “on mere speculation that a jury might arbitrarily disbelieve . . . testimony.” Id. at
25 (quotation marks and citation omitted). But that is not what the Court found in this
case; rather, the Court found Weeks has presented sufficient evidence from which a
jury could find that Walker indeed had knowledge of the protected activity. Doc. 26 at 5.
As such, Norfolk Southern has raised no change in the law, newly discovered
evidence, or clear error to justify reconsideration of the Court’s order denying summary
judgment. Accordingly, Norfolk Southern’s Motion for Reconsideration (Doc. 27) is
SO ORDERED, this the 7th day of November, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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