Wittig v. CSX Transportation, Inc.
Filing
53
ORDER denying Plaintiff Jeffrey Wittig's #24 Motion for Summary Judgment; denying Defendant CSX Transportation, Inc.'s #29 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 5/17/2017. (ca)
3ifn f^t Uniteli Stalest Bisitrtct Covrt
for tl^e ^ontfient IBtOtrtct of 4leorgta
^obatitiol^ Btbiototi
FILED
Scott L. Poff, Clerk
United States District Court
By casbell at 4:01 pm, May 17, 2017
JEFFREY WITTIG,
Plaintiff,
V.
CV 416-50
CSX TRANSPORTATION, INC.,
Defendant.
ORDER
Pending before the Court is Plaintiff Jeffrey Wittig's
(^'Plaintiff") Motion for Summary Judgment {Dkt. No. 24) and
Defendant
CSX
Transportation,
Inc.'s
for Summary Judgment (Dkt. No. 29).
Defendant")
Motion
The motions have been
fully briefed and are now ripe for the Court's review.
For
the reasons set forth below. Defendant's Motion for Summary
Judgment (Dkt. No. 29) is DENIED and Plaintiff's Motion for
Summary Judgment (Dkt. No. 24) is DENIED.
BACKGROUND
Defendant
is
a
railroad-carrier
services throughout the
United
corporation
States.
providing
Dkt. No. 1
SI
2.
Plaintiff worked as an engineer for Defendant at all times
relevant in the Complaint.
A0 72A
(Rev. 8/82)
SI 9.
On
June 10, 2014,
Plaintiff
was
the
engineer
of
a
train
leaving
Georgia and traveling to Cayce, South Carolina.
Savannah,
Plaintiff
was accompanied by his conductor, Martin Hester (^^Hester"),
who administered the operation of the train.
Dkt. No. 25 p.
1.
Plaintiff was responsible for the actual operation of
the
train.
Dkt.
No.
29-4
p.
34-37.
Defendant's
trains
utilize speed-management software called a ^'Trip Optimizer."
Dkt. No. 29-3 SI 9.
The Trip Optimizer works in essentially
the same fashion as a cruise-control device and is designed
to keep the train at a set speed.
a
cruise-control device, the
the
day
in
question,
JA. SI 9.
Hester
Optimizer to regulate the train's speed.
15-17.
However, like
Trip Optimizer may be turned
off and on at the user's discretion.
On
SI 10.
had
used
the
Dkt. No. 29-5 pp.
Nonetheless, Plaintiff was still required to ensure
the train did not exceed its speed limitations.
29-4 p. 15.
the
Trip
Dkt. No.
In addition, company regulations provided that
Optimizer
should
not
be
the
primary
method
operating the train, but a supplemental method.
29-3 SI 12.
speed
Trip
of
Dkt. No.
Nonetheless, Plaintiff was required to use the
optimizer.
A
speed
restriction
of
10
mph
existed
starting just after the beginning of Savannah River Bridge.
Dkt. No. 29-3 SI 15.
Both Plaintiff and Hester were aware of
this speed restriction.
Dkt. No. 29-4 p. 37; Dkt. No. 29-6
pp. 32-33.
A warning board^ existed two miles before the
low-speed zone which reminded both Plaintiff and Hester of
this restriction.
Dkt. No. 29-4 p. 12; Dkt. No. 29-6 p. 59.
Hester informed Plaintiff that the Trip Optimizer accounted
for the 10-mph limit.
60.
but
Dkt. No. 29-4 p. 37; Dkt. No. 29-6 p.
The train did begin to slow within the next two miles,
not
at
restriction.
the
rate
needed
to
meet
Dkt. No. 29-6 p. 60.
the
impending
speed
Indeed, the train failed
to slow to the required speed limit.
Plaintiff applied the
brakes prior to reaching the speed-restricted zone, but only
reduced the speed to 23 mph.
Dkt. No. 29-4 p. 38; Dkt. No.
29-6 pp. 73-74.
On
June
11,
2014,
Plaintiff
and
Hester
reported
to
their supervisor that the Trip Optimizer had malfunctioned,
such that the train had entered a speed-restricted zone 13
mph over the speed limit and the brakes had been forcibly
applied.
hearing
Dkt. No. 29-6 pp. 73-74.
After an administrative
reviewing the incident, both
were suspended.
Dkt. No. 29-1 p. 9.
Plaintiff and Hester
Plaintiff now asserts
that Defendant retaliated against him for reporting a safety
violation under the Federal Rail Safety Act (^^FRSA").
No. 25 p. 2.
^ A warning board is a sign placed along the tracks in order to warn
train conductors and staff of dangers and speed limitations.
Dkt.
LEGAL STANDARD
The party seeking summary judgment bears the initial
burden of demonstrating the absence of a genuine issue of
material fact.
(1986).
Celotex Corp. v. Catrett, 477 U.S. 317, 323
To satisfy this burden, the movant must show the
court that there is an absence of evidence to support the
nonmoving party's case.
Id. at 325.
If the moving party discharges this burden, the burden
shifts
to
the
nonmovant
to
go
beyond
the
pleadings
and
present affirmative evidence to show that a genuine issue of
fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 257 (1986).
The nonmovant may satisfy this burden in
two ways:
First, the nonmovant ^'may show that the record in
fact contains supporting evidence, sufficient to withstand a
directed verdict motion, which was
^overlooked or ignored'
by the moving party, who has thus failed to meet the initial
burden of showing an absence of evidence."
Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting
Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)).
Second,
evidence
the
nonmovant
sufficient
to
^^may
come
withstand
forward
a
directed
with
additional
verdict
motion
at trial based on the alleged evidentiary deficiency."
at 1117.
Id.
Where
burden
the
with
nonmovant
nothing
conclusional
instead
more
attempts
^^than
allegations,
a
to
carry
repetition
summary
judgment
of
parties
have
filed
cross-motions
the
Morris v.
Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).
the
his
for
defendants [is] not only proper but required."
here,
this
When, as
for
summary
judgment, the applicable Rule 56 standard is not affected.
See Gerling Glob. Reinsurance Corp. of Am. v. Gallagher, 267
F.3d
1228,
1233-34
(11th
Cir.
2001).
''[T]he
facts
are
viewed in the light most favorable to the non-moving party
on
each
motion."
Chavez
v.
Mercantil
Commercebank,
N.A.,
701 F.3d 896, 899 (11th Cir. 2012).
DISCUSSION
Both parties now move for summary judgment on the issue
of
whether
reporting
asserts
Defendant
a
safety
that
he
malfunctioning
Defendant,
on
suspension
was
faulty
Trip
Defendant
was
Optimizer.
and
FRSA.
other
unrelated
argues
because
Optimizer
the
Plaintiff
was
is
41.
25.
that
report
No.
reported
No.
of
p.
suspended
for
Plaintiff
protected
argues
his
Dkt.
he
Dkt.
hand,
to
Plaintiff
Specifically,
suspended
under
the
against
violation.
Trip
^^whistleblower"
retaliated
as
p.
the
a
2.
Plaintiff's
the
4.
for
prevent violations of Defendant's safety policies.
possibly
Instead,
failing
Id.
to
The FRSA prohibits a railroad from retaliating against
an employee for, among other things, reporting a work-safety
condition.
49
U.S.C.
§
20109(b)(1)(a).
To
establish
a
retaliation claim under the FRSA, a plaintiff must show: (1)
engagement
in
protected
activity;
(2)
discharge
or
discrimination in the terms or conditions of employment; and
(3) that the protected activity was a contributing factor in
the
adverse
employment
action.
Majali
v.
United
States
Dep^t of Labor., 294 F. App'x 562, 566 (11th Cir. 2008); see
also
Allen
v.
Admin.
Rev.
Bd.,
514
F.Sd
468,
475-76
(5th
Cir. 2008) (stating as a separate element of the prima facie
case
that
the
employer
must
engaged in protected activity).
be
aware
that
the
employee
If the employee establishes
a prima facie case of retaliation, the burden then shifts to
the employer to prove by clear and convincing evidence that
it would have taken the same unfavorable personnel action in
the complete absence of the plaintiff's protected activity.
Majali, 294
activity
F. App'x
is
a
at 566-67. The plaintiff's protected
^^contributing
factor"
in
the
unfavorable
personnel action if it tended to affect the outcome of the
decision.
Consolidated Rail Corp-.
v.
U.S.
Dep't of Labor,
567 F. App'x 334, 337 (6th Cir. 2014); see also Ameristar
Airways,
Inc.
Cir. 2011).
v.
Admin.
Rev.
Bd.,
650
F.3d
562,
567
(5th
In
this
case,
there
is
no
engaged in a protected activity.
question
that
Plaintiff
Nor is there a question as
to whether he was subject to an adverse employment action.
Instead, the issue is whether or not that engagement in the
protected activity actually contributed to his suspension.
There
is
condition
no
question
is
that
protected
§ 20109(b)(1)(a).
This
reporting
by
the
does
a
hazardous
safety
FRSA.
mean,
not
49
U.S.C.
however,
that
Plaintiff could not be suspended for failing to prevent that
condition.
The Trip Optimizer was not a device that was
completely out of the control of Plaintiff.
1 9.
Instead, the device functions much in the same way as
a cruise-control device works on a car.
a
Dkt. No. 29-3
car,
the
Plaintiff
was
not
Like the driver of
absolved
of
his
responsibilities to operate a vehicle safely simply because
the equivalent of cruise-control was turned on.
Plaintiff
himself testified as much in his deposition, stating:
^^When
I'm on the train and [the Trip Optimizer is] operating I'm,
I have a role .. . . to play.
correctly
That is to make sure [the
train
is] operating
and
speed
restrictions . . . by making
running the appropriate speed."
Plaintiff
centers
on
the
complying
sure
Dkt.
argument
No.
with
[the
29-4
that
all the
train
is]
15:15-24.
had
he
not
reported the incident on June 10, 2014, he would not have
been suspended.
Dkt. No. 25 p. 5.
However, the Eleventh
Circuit has long held that an employee cannot immunize his
own misconduct simply by reporting it and taking advantage
of whistleblower protections.
Fields v. U.S. Dep^t of Labor
Admin. Rev. Bd., 173 F.Sd 811, 814 (llth Cir. 1999).
To
hold otherwise would mean that incompetent employees could
simply
report
their
own
incompetence
to
avoid
through the threat of a retaliation claim.
discipline
This is plainly
not the purpose of whistleblower protections.
Ramsey v. Bd.
of Regents of Univ. Sys. of Ga., No. 1:ll-CV-3862, 2013 WL
1222492,
at
*21
(N.D.
Ga.
Jan.
30,
2013).
As
such.
Plaintiff is not entitled to summary judgment.
Nonetheless,
judgment either.
provided
no
Plaintiff,
gun
to
is
not
entitled
to
summary
While Defendant argues that Plaintiff has
evidence
reprimanding
smoking
Defendant
survive
of
discriminatory
Plaintiff
summary
need
intent
not
judgment.
point
The
in
to
record
a
is
undisputed that Plaintiff reported a safety violation and he
was immediately reprimanded.
rely
on
this
Plaintiff.
2d
1365,
close
temporal
proximity
to
find
for
the
Collins v. Beazer Homes USA, Inc., 334 F. Supp.
1379-80
considered
A reasonable factfinder could
a
Sarbane's-Oxley
(N.D.
Ga.
plaintiff s
Act.
2004).
In
whistleblower
at
8
1373.
Collins,
the
court
claim
under
the
Acknowledging
the
scarcity of case
law
regarding
Sarbane's-Oxley, the
court
applied the same evidentiary framework present in similar
whistleblower statutes such as the Wendell H. Ford Aviation
Investment
Applying
Reform
this
Act
for
the
framework, the
21st
Century
court found
(^^AIR
that
a
21").
two-week
period between engagement in a protected activity and the
adverse
employment
circumstances
contributing
action
which
was
suggest that
factor
to
the
^^sufficient
protected
unfavorable
to
establish
activity
personnel
was
a
action."
Id. at 1379-80.
As
in
Collins,
the
framework from AIR 21.
incorporates
by
Court
borrows
the
evidentiary
This is proper because ^Mtjhe FRSA
reference
the
rules
and
applicable to {AIR-21) whistleblower cases."
procedures
Araujo v. New
Jersey Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d
Cir.
2013).
protected
In
this
activity
and
case.
the
Plaintiff's
adverse
engagement
action
were
in
a
nearly
contemporaneous, as he faced disciplinary action immediately
after reporting the problem with the Trip-Optimizer.
This
immediate temporal proximity between Plaintiff's report and
disciplinary
action,
similar
to
the
two-week
period
in
Collins, is sufficient to create a genuine issue of fact as
to causation.
In addition, a genuine issue of material fact exists as
to
why
Plaintiff
reporting
of
a
was
safety
suspended-poor
violation.
performance
Defendant
does
or
the
present
evidence that perhaps Plaintiff could have stopped the train
within
a one-minute
window.
Dkt. No. 46 p. 3.
Yet, the
Court notes that if there is an issue of fact as to whether
Plaintiff's
protected
activity
even
contributed
suspension, he may survive summary judgment.
App'x at 566.
enough,
as
whether
or
to
his
Majali, 294 F.
Even assuming Plaintiff did not react quickly
Defendant
not
his
asserts,
the
suspension
Court
was
due
cannot
determine
purely
to
poor
performance or if Plaintiff's protected activity tended to
affect the outcome of the decision.
not presented
clear
and convincing
Further, Defendant has
evidence that it would
have taken the same action in the absence of the protected
behavior.
Therefore, both summary judgment motions will be
denied.
CONCLUSION
For the reasons stated above, it is hereby ordered that
Defendant
CSX
Judgment
(Dkt.
Wittig's
Motion
Transportation,
No.
for
29)
is
Inc.'s
DENIED
Summary
DENIED.
10
Motion
and
Judgment
for
Summary
Plaintiff
Jeffrey
(Dkt.
No.
24)
is
so ORDERED, this 17th day of May, 2017.
LIST^ GODBEY WOOD, DISTRICT JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
A0 72A
(Rev. 8/82)
11
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