Bennett v. Public Law Board No. 7694 et al

Filing 40

ORDER dismissing as moot 38 Motion for Ruling on Defendant's motion for summary judgment. Signed by Magistrate Judge Christopher L. Ray on 4/21/21. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOHN P. BENNETT,

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Plaintiff,
v.
CSX TRANSPORTATION,
Defendant.

CV417-130

ORDER AND REPORT AND RECOMMENDATION
Before the Court is defendant’s Motion for Summary Judgment,
doc. 21. For the following reasons the motion should be GRANTED. The
Motion for Ruling of Defendant’s motion for summary judgment, doc. 38,
is DISMISSED AS MOOT.
BACKGROUND
Plaintiff is a former union member and locomotive engineer for
defendant CSX Transportation (“CSX”) who is appealing a labor
arbitration award issued by the Public Law Board (“Board”) pursuant to
a labor agreement. In 2014, plaintiff was terminated because he was
caught driving his locomotive fourteen miles over the speed limit. Doc.
10-2 at 12. The Federal Railroad Administration details certain rules

violations, including operating at more than 10 miles per hour over the
posted speed limit, for which immediate revocation of a certification1 is
appropriate.

49 C.F.R. § 240.117(e)(2); 240.117(c)(1).

After an

investigation into the incident, CSX held a hearing and dismissed
plaintiff for violating an internal operating rule prohibiting employees
for speeding and temporarily revoked his certification. Doc. 10-2 at 1, 13,
58.

Plaintiff attended the hearing with a union representative and

acknowledged that he was prepared to proceed. Id. at 11. At the hearing,
testimony from a road foreman showed that plaintiff knew of the speed
limit in the area where his violation occurred, and plaintiff conceded that
he was aware of the speed limit. Id at 19-20, 41-42.
Plaintiff’s union, the Brotherhood of Locomotive Engineers and
Trainmen, appealed plaintiff’s termination both to CSX and to an
arbitration panel of the Board. Id. at 86. The argument raised in the
arbitration was that the speeding violation was a “minor oversight,” and
that plaintiff’s tenure with CSX was long enough to justify leniency. Id.
The arbitration panel ruled against plaintiff. CSX determined that the

dismissal was justified. Id. at 82-83. The Board as arbitral tribunal also
denied petitioner’s claim. Id. at 4.
Plaintiff filed this complaint, ostensibly pro se, on July 13, 2017
alleging that the ruling of the Board was “unreasonable, arbitrary and
capricious.” Doc. 1 at 2. He asserted that the Board relied on an Event
Recorder Automatic Download (“ERAD”) which could not recognize
temporary slow zones and claimed that the Board inappropriately
reviewed his Family and Medical Leave Act absences in reaching a
decision. Id. at 3. He also believed that the Board was provided video
evidence of a speeding train which was not driven by plaintiff, thereby
constituting fraud. Id. Plaintiff sued the Board, CSX and his union. Id.
at 1.
The union, doc. 6, and the Board, doc. 16, filed motions to dismiss
which were granted by the assigned district judge, doc. 19. CSX filed the
instant motion for summary judgment shortly thereafter.

Doc. 21.

However, prior to ruling on the motion, the Court recognized that—
although appearing pro se—his filings were being ghostwritten by
another party.

Doc. 28.

Accordingly, the Court administratively

terminated the motion for summary judgment pending the outcome of

that inquiry. Id. at 6-7. Having disposed of that concern (as well as the
ghostwriter himself2) the Court granted plaintiff the opportunity to
supplement any opposition or adopt the ghostwritten documents as his
own. Doc. 37. Plaintiff then filed a Motion for Ruling, doc. 38, without
filing any supplement. The Court CONSTRUES this as an adoption of
the prior filings. Accordingly, the Court determines that the Motion for
Summary Judgment should be REOPENED and is ripe for review.
ANALYSIS
Summary judgment “shall” be granted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact
is “material” if it “might affect the outcome of the suit under the
governing law.” FindWhat Inv'r Grp. v. FindWhat.com, 658 F.3d 1282,
1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). A dispute is “genuine” if the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.

pro hac vice

The moving party bears the burden of establishing that there is no
genuine dispute as to any material fact and that it is entitled to judgment
as a matter of law. See Williamson Oil Co. v. Philip Morris USA, 346
F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party must
identify the portions of the record which establish that “there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Moton v. Cowart, 631 F.3d 1337, 1341
(11th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). When the nonmoving
party would have the burden of proof at trial, the moving party may
discharge his burden by showing that the record lacks evidence to
support the nonmoving party's case or that the nonmoving party would
be unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)). 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, 477 U.S. at 257.
In determining whether a summary judgment motion should be
granted, a court must view the record and all reasonable inferences that
can be drawn from the record in the light most favorable to the

nonmoving party.

Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee

County, 630 F.3d 1346, 1353 (11th Cir. 2011) (citing Rodriguez v. Sec'y
for Dep't of Corr., 508 F.3d 611, 616 (11th Cir. 2007)). However, “facts
must be viewed in the light most favorable to the non-moving party only
if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.
372, 380 (2007) (quoting Fed. R. Civ. P. 56(c)). “[T]he mere existence of
some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Id.
(emphasis and citations omitted).
Because this is an administrative appeal from an arbitration
decision, the award may be vacated only for failure “to conform, or confine
itself, to matters within the division’s jurisdiction, or [iii] for fraud or
corruption by a member of the division.” 45 U.S.C. § 153 First (q). “It is
thus firmly established that courts will not review the substance of a
labor arbitration award for ordinary error and that courts will not vacate
an award because a judge might have reached a different result.” See
Loveless v. Eastern Air Lines, Inc., 681 F.2d 1272, 1276 (11th Cir. 1982)
(citing Safeway Stores v. American Bakery Workers, Local 111, 390 F.2d

79, 82-83 (5th Cir. 1968)3; Francesco’s B., Inc. v. Hotel Employees Union,
Local 28, 659 F.2d 1383, 1388-89 (9th Cir. 1981); R. Gorman, Basic Text
on Labor Law 585-86 (1976)). The Eleventh Circuit has explained that
“[s]ubstantive judicial review of an arbitral award is limited to a
determination of whether the award is irrational, whether it fails to draw
its essence from the collective bargaining agreement, or whether it
exceeds the scope of the arbitrator’s contractual authority.” Brotherhood
of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment CSX
Transp. N. Lines, v. CSX Transp., Inc., 455 F.3d 1313, 1316 (11th Cir.
2006) (citing Loveless, 681 F.2d at 1276 and Norfolk v. W. Ry. Co. v.
Transp. Commc’ns Int’l Union, 17 F.3d 696, 700 (4th Cir. 1994)). A
determination is “irrational,” only where “the reasoning [of the award is]
so palpably faulty that no judge, or group of judges, could ever
conceivably have made such a ruling.” Safeway Stores v. Am. Bakery and
Confectionery Workers Int’l Union, 390 F.2d 79, 82 (5th Cir. 1968).
Likewise, an award exceeds the authority of the arbitrator only if the
arbitrator “modifies the contract’s clear and unambiguous terms.”

The Eleventh Circuit has adopted as binding precedent all decisions of the former
Fifth Circuit rendered prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981).

3

Wiregrass

Metal

Trades

Council

AFL-CIO

v.

Shaw

Env’t

&

Infrastructure, Inc., 837 F.3d 1083, 1088 (11th Cir. 2016). Finally, to
show fraud, plaintiff must demonstrate “an extremely high degree of
improper conduct” requiring “a greater evidentiary showing than under
common law.” Union Transp. Union v. Birmingham S. R.R. Co., 2014
WL 1338158 at * 16 (N.D. Ala. Mar. 31, 2014) (internal quotation
omitted).
Plaintiff has not met any of the standards necessary to set aside the
arbitration decision. As an initial matter, the Board did not exceed its
jurisdiction by acting beyond the scope of its authority. Rather, the Board
merely determined that there was sufficient evidence to find that
petitioner had violated the speed restriction. Doc. 10-3 at 3. This finding
justified plaintiff’s dismissal under Article 30 of the applicable collective
bargaining agreement and making the determination was clearly within
the scope of the various agreements. Indeed, that the Board could make
the determination is not expressly challenged by plaintiff.

Rather,

plaintiff appears to argue that the Board exceeded its authority by
relying on evidence which it should not have considered. Doc. 23 at 3-4.
However, the Board is allowed to determine what evidence it wishes to

rely on and what evidence it did or did not rely on is not among the
enumerated reasons to overturn. Henry v. Delta Air Lines, 759 F.2d 870,
873 (11th Cir. 1985) (finding no error where Board did not review certain
personnel records which were withheld by employer).

Likewise, the

evidence plaintiff asserts the Board did review inappropriately—the
FMLA leave information, the ERAD data, and the potentially fraudulent
video of a speeding train—was not dispositive. Indeed, plaintiff admitted
that he operated “his train in excess of the posted speed,” although he
was “aware that a temporary speed restriction of the twenty-five (25)
mph existed at the location in question.” Doc. 10-1 at 4-5.
Similarly, there is no indication that the Board acted irrationally.
Plaintiff asserts that it was irrational for the Board to review evidence of
a nine-year-old offense and his FMLA leave. Doc. 23 at 2-4.

Nothing

prohibited the Board from considering offenses older than five years,
however, unless it was considering progressive discipline. Doc. 10-2 at
98. Here, the Board was considering only termination. Thus, nothing in
the collective bargaining agreement prevented the Board from hearing
the evidence, regardless of whether the infraction had been removed from
consideration in plaintiff’s employment record.

Doc. 23 at 3.

Furthermore, as defendant points out, the exhibits for the on-property
investigation did not include the disciplinary entry, doc. 10-2 at 50-79,
nor did the transcript of the proceeding, id. at 6-49. While Plaintiff’s
FMLA information was contained in calendar entries reviewed by the
Board, its presence is also not enough to overturn the decision. The
calendar entries were proffered for the purpose of, and used to discuss,
only whether Plaintiff had worked in certain areas (including the speed
restricted area) prior to his speeding incident. Doc. 10-2 at 20-21. In fact,
the Board noted that the “only purpose and “only reason” for the
documents were to establish that Plaintiff had worked in the area where
the speed restriction existed.

Id at 21.

Moreover, no party to the

arbitration—either in the submissions or the award itself—referenced
the FMLA leave. Doc. 10-1, doc. 10-2.
Plaintiff also complains that the Board was irrational in firing him
because they had apparently reinstated some individuals who had
committed similar offenses. Doc. 23 at 2-4. Whether or not the Board
allowed some individuals to be reinstated for their speeding offenses has
no bearing on the Board’s irrationality.

It was entirely within the

purview of the Board to determine that dismissal was warranted.

Finally, plaintiff asserts that there was fraud or corruption when
the Board reviewed a video which—in his opinion—showed a different
train than the one he was driving. As an initial matter, even if the video
was a fraud, plaintiff still confessed to driving his train faster than the
speed limit. Second, even if the video depicted the incorrect train, there
is no indication that the Board committed fraud or was otherwise corrupt.
In fact, even if all of plaintiff’s claims are true, all it indicates is that some
third-party may have committed fraud on the Board, not that there was
fraud in the decision. Plaintiff neither asserts that the Board was aware
of any error, nor that the error was in any way dispositive of his case.
More problematic, is the fact that plaintiff has provided no evidence,
other than his bare assertion, that the video was incorrect. The standard
for overturning an arbitration determination on the basis of fraud
requires an extremely high degree of improper conduct. See supra p. 7.
Pretermitting whether the allegations regarding the video are true, they
simply do not rise to this level. In the absence of that showing, the Court
cannot find that there was sufficient fraud or corruption to review, let
alone overturn the Board’s determination.

The Court recognizes that Mr. Bennett had a long history of
employment with CSX. However, the standard of review applicable to
these cases precludes review of the arbitration determination unless
certain specific showings are made. Plaintiff’s allegations and responses
to the Motion for Summary Judgment do not contain sufficient factual
showings to allow the Court to reach beyond the scope of the Board’s
determination. There is no indication that the Board’s decision was
beyond the scope of its authority, irrational, or brought about by fraud.
As a result, the Motion for Summary Judgment, doc. 21, should be
GRANTED and this case DISMISSED.

The Motion for Ruling on

Defendant’s motion for summary judgment, doc. 38, is DISMISSED AS
MOOT.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment
should be GRANTED, doc. 21, and the case DISMISSED. This Report
and Recommendation (R&R) is submitted to the district judge assigned
to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local
Rule 72.3.

Within 14 days of service, any party may file written

objections to this R&R with the Court and serve a copy on all parties.