Hester v. CSX Transportation, Inc.

Filing 50

ORDER denying Plaintiff Martin Hester's #23 Motion for Partial 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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In tl^e ?l9ntteb ^tate^c IBtfl(tirtct Court tor ^outl^em SBiotrirt ot 4^eorgta ^otiannati l^ftitoton FILED Scott L. Poff, Clerk United States District Court By casbell at 4:02 pm, May 17, 2017 MARTIN HESTER, Plaintiff, V. . CV 416-53 CSX TRANSPORTATION, INC., Defendant. ORDER Pending before the Court is Plaintiff Martin Hester's ('"Plaintiff") Motion for Partial Summary Judgment (Dkt. No. 23) and Defendant CSX Transportation, Inc.'s ("Defendant") Motion for Summary Judgment (Dkt. No. 29). The motions have been fully briefed Court's and are now ripe for the review. For the reasons set forth below. Defendant's Motion for Summary Judgment (Dkt. No. 29) is DENIED and Plaintiff's Partial Motion for Summary Judgment (Dkt. No. 23) is DENIED. BACKGROUND Defendant services is a throughout railroad-carrier the United States. corporation Dkt. No. providing 1 3 2. Plaintiff worked as a train conductor for Defendant at all times relevant A0 72A (Rev. 8/82) to the Complaint. SI 9. On June 10, 2014, Plaintiff was the conductor of a train leaving Savannah, Georgia and traveling to Cayce, South Carolina. Plaintiff was accompanied by his engineer, Jeffrey Wittig {'"Wittig"), who was responsible for the operation of the train. Plaintiff was administration primarily of the Dkt. No. 25 p. 1. responsible train. Dkt. for No. the 29-4 overall pp. 34-37. Defendant's trains utilize a speed-management software called a ^'Trip Optimizer." Dkt. No. 29-3 SI 9. The Trip Optimizer works in a similar fashion as a cruise-control device, and is designed to keep the train at a set speed. JA. SI 10. The Trip Optimizer may be turned off and on at the user's discretion. On the day in question. Plaintiff Optimizer to regulate the train's speed. had JA. SI 9. used the Trip Dkt. No. 29-4 p. 30. Nonetheless, Plaintiff was still required to ensure the train did not exceed its speed limitations. In addition, Optimizer company should not regulations be the Dkt. No. 29-4 pp. 30-31. provided primary train, but a supplemental method. method that of the operating Dkt. No. 29-3 SI 12. Trip the A speed restriction of 10 mph existed starting just after the beginning of the Savannah River Bridge. Dkt. No. 29-3 SI 15. Plaintiff and Wittig were aware of this speed restriction. No. 29-6 p. 37; Dkt. No. 29-4 pp. 32-33. Both Dkt. A warning board^ existed two miles before the low-speed zone, which reminded both ^ A warning board is a sign placed along the tracks in order to warn train conductors and staff of dangers and speed limitations. Plaintiff and Wittig of this restriction. Dkt. No. 29-4 p. 60. Dkt. No. 29-6 p. 12; Plaintiff informed Wittig that, the Trip Optimizer accounted for the 10 mph limit. Dkt. No. 29-4 p. 60. The train did begin to slow within the next two miles, but not at the rate needed to Dkt. No. 29-4 p. 60. required speed limit. meet the impending speed restriction. Indeed, the train failed to slow to the Wittig applied the brakes prior to reaching the speed-restricted zone, but only reduced the speed to 23 mph. On Dkt. No. 29-6 p. 38; Dkt. No. 29-4 pp. 73-74. June 11, 2014, Plaintiff and Wittig reported to their supervisor that the Trip Optimizer had malfunctioned, the train had entered a speed-restricted zone 13 mph over the speed limit, and the brakes had been forcibly applied. 74. After an administrative hearing Dkt. No. 29-4 pp. 73- reviewing both Plaintiff and Wittig were suspended. the incident, Dkt. No. 29-1 p. 9. Plaintiff now asserts that Defendant retaliated against him for reporting a safety violation under the Federal Rail Safety Act {^'FRSA"). Dkt. No. 25 p. 2. LEGAL STANDARD The party seeking summary judgment bears the initial burden of demonstrating fact. the absence of a genuine issue of material Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 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 (1986). The v. Liberty nonmovant may Lobby, Inc., satisfy this 477 U.S. burden in 242, two 257 ways: First, the nonmovant ""may show that the record in fact contains supporting evidence, sufficient to withstand a directed verdict motion, which was who ^overlooked or ignored' by the moving party, has thus failed to meet the initial burden absence of evidence." Fitzpatrick of showing an v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J., dissenting)). forward directed with additional verdict evidence motion evidentiary deficiency." Second, the nonmovant ^'may come at sufficient trial based to on withstand the a alleged JA, at 1117. Where the nonmovant instead attempts to carry this burden with nothing more ^'than a repetition of his conclusional allegations, summary judgment for the defendants [is] not only proper but required." (11th Cir. 1981). Morris v. Ross, 663 F.2d 1032, 1033-34 When, as here, the parties have filed cross- motions for summary judgment, the applicable Rule 56 standard is not affected. See Gerlinq Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233-34 (11th Cir. 2001). ^MT]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 have now moved for summary judgment on the issue of whether Defendant retaliated against Plaintiff for reporting a safety violation. Specifically, Plaintiff asserts that he he was suspended because reported the malfunctioning Trip Optimizer and is protected as a ^^whistleblower" under the FRSA. Dkt. No. 25. p. 2. Defendant, on the other hand, argues that Plaintiff s suspension was unrelated to his report of the possibly faulty Trip Optimizer. Defendant argues he was Dkt. No. 41. p. 4. suspended for violations of Defendant's safety policies. failing Instead, to prevent Id. The FRSA prohibits a railroad from retaliating against an employee for, violation. retaliation other 49 U.S.C. claim under things, § the preponderance activity; among (2) of the 20109(b)(1)(a). FRSA, evidence: discharge reporting or a a To work-safety establish plaintiff must show (1) engagement discrimination in in the a by a protected terms or conditions of employment; and (3) that the protected activity was a contributing factor in the adverse employment action. Majali v. U.S. Dep't of Labor, 294 F. App'x 562, 566 (11th Cir. 2008); see also Allen v. Admin. Rev. Bd., 514 F.3d 468, 475-76 {5th Cir. 2008) (stating as a separate element of the prima facie case that the employer must be aware that the employee engaged in protected activity). 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 plaintiff's protected activity. the complete absence Id. at 566-67. of the The plaintiff's protected activity is a ^'contributing factor" in the unfavorable personnel action decision. if it tended to affect the outcome of the Consolidated Rail Corp. v. U.S. Dep't of Labor, 567 F. App'x 334, 337 (6th Cir. 2014); see also Ameristar Airways, Inc. V. Admin. Rev. Bd., 650 F.3d 562, 567 (5th Cir. 2011). In this case, there is no engage in a protected activity. whether he was Instead, the protected subject issue is activity to that Plaintiff did Nor is there a question as to an whether actually question or adverse employment action. not that engagement in the contributed to his suspension. There is no question that reporting a hazardous safety condition is protected by the FRSA. 49 U.S.C. § 20109(b)(1)(a). does not mean, however, that Plaintiff could for causing or failing to Optimizer was not a not be suspended prevent that condition. device that 6 was This completely The out of Trip the control of Plaintiff. Dkt. No. 29-3 SI 9. Instead, the device functions much in the same way a cruise-control device works in a car. his Like the driver of a car, Plaintiff was not absolved of responsibilities to operate the vehicle safely simply because the equivalent of cruise-control was turned on. Plaintiff himself testified as much in his deposition, stating it was his ^^job to pay attention" to the speed of the train even when the Trip Optimizer was turned on. at 30:16-25, 31:1-4. Dkt. No. 29-4 Here, the undisputed facts show that the train was indeed over the speed limit when it entered the speedrestricted train. zone, and that Plaintiff was responsible for the Dkt. No. 29-6 p. 38; Dkt. No. 29-4 pp. 73-74; Dkt. No. 29-3 n 13-15. In addition, it is undisputed that speeding is considered a serious violation under Defendant's policies. Dkt. No. 29-7 SISI 12-14. Plaintiff does not appear to dispute these facts. Instead, Plaintiff claims that had he not reported the incident on June 10, 2014, he would not have been suspended. However, the Eleventh Circuit has long Dkt. No. 25 p. 5. 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.3d 811, 814 1999). (11th Cir. To hold otherwise would mean that incompetent employees could simply report their own incompetence to avoid discipline through threat of a retaliation claim. purpose of whistleblower protections. This is plainly not the 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 partial summary judgment simply because he reported a safety problem and was disciplined. Nonetheless, Defendant is not entitled to summary judgment either. While Defendant argues that Plaintiff has provided no evidence of discriminatory intent in reprimanding Plaintiff, Plaintiff need not point to evidence of a smoking gun to survive summary judgment. The record is undisputed that Plaintiff reported a safety violation and he was immediately reprimanded. A reasonable factfinder could rely on this close temporal proximity to find for the Plaintiff. Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365, 1379-80 (N.D. Ga. 2004). In Collins, the court considered a plaintiff s whistleblower claim under the Sarbane's-Oxley Act. scarcity applied of case law the same 1^. at 1373. evidentiary whistleblower statutes regarding such Sarbane's-Oxley, framework as Acknowledging the the present Wendell H. the in court similar Ford Aviation Investment Reform Act for the 21st Century ("AIR 21"). Applying this framework, the court found that a two-week period between engagement in a protected activity and the adverse employment action was "sufficient to establish circumstances which suggest 8 that protected activity was unfavorable personnel action." a contributing factor to the JA, at 1379-80. As in Collins, the Court borrows the evidentiary framework from AIR 21. reference This is proper because "[t]he FRSA incorporates by the whistleblower rules and cases." procedures Araujo v. applicable New Jersey to (AIR Transit Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013). 21) Rail In this case. Plaintiff's engagement in a protected activity and the adverse action were 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 was suspended—poor performance or the reporting of a safety violation. Defendant does present evidence that perhaps Plaintiff could have stopped the train within a oneminute window. issue of fact Dkt. No. 46 p. 3. as to whether Yet, if there is even an Plaintiff's protected activity contributed to his suspension, he may survive summary judgment. Majali, 294 F. App'x at 566. react quickly enough, as Even assuming Plaintiff did not Defendant asserts, the Court cannot determine whether or not his suspension was due purely to poor performance or if Plaintiff's protected affect the outcome of the decision. activity tended to Further, Defendant has not presented enough evidence to indicate clearly and convincingly 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 Transportation, Inc.'s Motion for Summary Judgment {Dkt. No. 29) is DENIED and Plaintiff Martin Hester's Partial Motion for Summary Judgment (Dkt. No. 23) is DENIED. SO ORDERED, this 17th day of May, 2017. LISA GODBEY WOOD, DISTRICT JUDGE UNITED STATES DISTRICT COURT SOUTHERN 10 DISTRICT OF GEORGIA

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