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)

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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