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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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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