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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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