Armstrong v. BNSF Railway Company
Filing
118
MEMORANDUM Opinion and Order. Signed by the Honorable John Robert Blakey on 9/4/2015. Mailed notice(ntf, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Glen Armstrong,
Plaintiff,
v.
Case No. 12 C 7962
Judge John Robert Blakey
BNSF Railway Co.,
Defendant.
MEMORANDUM OPINION AND ORDER
This is an employment action brought under the Federal Rail Safety Act’s
anti-retaliation and interference with medical care provisions.
49 U.S.C. §
20109(a)(4), (c)(1). Plaintiff claims that on May 4, 2010, his supervisor assaulted
him at Chicago Union Station, injuring Plaintiff’s left foot and left knee. Plaintiff
claims that his employer, Defendant BNSF Railway Company, delayed procuring
medical care for Plaintiff after the assault and ultimately terminated him for filing
an injury report. The parties now cross-move for summary judgment [82] [92] [93].
Both motions are denied.
I.
Legal Standard
Summary judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.
2014). A genuine dispute as to any material fact exists if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The party seeking summary
judgment has the burden of establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining
whether a genuine issue of material fact exists, this Court must construe all facts
and reasonable inferences in the light most favorable to the nonmoving party, here,
each party with respect to the other’s motion. See CTL ex rel. Trebatoski v. Ashland
School District, 743 F.3d 524, 528 (7th Cir. 2014).
II.
Facts 1
A.
Parties
Plaintiff Glen Armstrong is a former Conductor assigned to the Suburban
Train Service for Defendant BNSF Railway Company, a railroad carrier. DSOF ¶¶
1-2; PSOF ¶ 1. In his role as Conductor, Plaintiff also was a union member of the
Brotherhood of Locomotive Engineers and Trainmen. DSOF ¶ 1.
B.
The May 4, 2010 Incident
On May 4, 2010, Plaintiff arrived at Chicago Union Station (“Union Station”)
a few minutes past 5:00 p.m. on a Suburban-line train with Middle Brakeman
Tangie Wigley and Rear Brakeman Roy Nicholas.
DSOF ¶ 7.
Upon arrival,
Plaintiff received a radio call from Trainmaster Christopher Motley to come to the
Glasshouse. DSOF ¶¶ 6, 8; PSOF ¶ 2; 10/18/13 Armstrong Dep. at 104-05. The
Glasshouse is the name given to Motley’s office, and it is located between Tracks 2
The facts are taken from the parties’ Local Rule 56.1 statements and the exhibits
thereto. “DSOF” refers to Defendant’s statement of undisputed facts [92-2] [109-1], with
Plaintiff’s responses [96]. “PSOF” refers to Plaintiff’s statement of facts [82-1], with
Defendant’s responses [94-1]. “PSOAF” refers to Plaintiff’s statement of additional facts
[98], with Defendant’s responses [106].
1 1
2
and 4 in Union Station. DSOF ¶ 8; PSOF ¶ 2. At 5:25:58 p.m., Plaintiff arrived at
the Glasshouse. DSOF ¶ 12. Motley and Conductor John Nelson (who was getting
a cup of coffee) were present. DSOF ¶ 13.
What occurred in the Glasshouse is the basis of this lawsuit and largely is
disputed by the parties. What is undisputed is that:
•
there is video footage taken from a train resting on Track 4 that recorded
a partial view of the Glasshouse during the alleged assault;
•
Motley’s desk, but not the area just inside the Glasshouse door, is visible
in the video footage;
•
the video footage shows that Plaintiff remained in the Glasshouse for 46
seconds;
•
for approximately the first 30 of those seconds and until Motley asked him
to leave, Nelson remained in the Glasshouse;
•
Nelson then remained outside the Glasshouse door for approximately five
seconds;
•
Motley reprimanded Plaintiff, telling him that he was not wearing the
correct summer uniform; and
•
there are only four consecutive seconds of video footage where Motley is
not visible in the frame and Nelson is outside the Glasshouse.
DSOF ¶¶ 9-10, 13-15, 17, 20; PSOAF ¶¶ 1, 25; 10/18/13 Armstrong Dep. at 119.
The principal dispute between the parties is whether Motley slammed the
Glasshouse door on Plaintiff’s left foot and left knee.
Plaintiff narrates the
following events. Plaintiff testified that Motley was angry, yelling and shouting at
Plaintiff about his uniform. Response to DSOF ¶ 17; PSOAF ¶ 1. Plaintiff testified
that Motley pointed his finger less than one foot from Plaintiff’s face. PSOAF ¶ 1;
6/6/11 Armstrong Dep. at 126.
Plaintiff told Motley that he was wearing an
3
authorized summer shirt, and, given Motley’s behavior, also said that he would not
discuss the issue further without a union representative present.
Response to
DSOF ¶ 17. Plaintiff attempted to leave the Glasshouse by backing out the door,
and, during the four consecutive seconds when Motley is not visible in the video
footage, Motley slammed the Glasshouse door against Plaintiff’s left foot and left
knee. DSOF ¶ 18.
Defendant disagrees with this narration. When Plaintiff stated his refusal to
speak with Motley further about his uniform without a union representative
present, Motley asked Plaintiff to remain in the Glasshouse to discuss the matter
but Plaintiff refused. DSOF ¶ 17. Plaintiff instead left the Glasshouse, and Motley
pulled Plaintiff out of service for insubordination. DSOF ¶ 17. Motley testified that
he never pushed or even pressed on the Glasshouse door while Plaintiff was leaving.
DSOF ¶ 22.
At 5:26:51 p.m., after Plaintiff left the Glasshouse and according to the video
footage, Plaintiff passed Security Officer Rice. DSOF ¶ 24. It is undisputed that
Plaintiff did not alert Security Officer Rice that he was injured or needed medical
attention. DSOF ¶ 24.
Instead, Plaintiff spoke with Nelson, who also was in the area, for about one
minute. DSOF ¶ 25. Plaintiff asked Nelson if he had heard what had gone on in
the Glasshouse. DSOF ¶ 26. Nelson refused to discuss the subject with Plaintiff.
DSOF ¶ 26. At Plaintiff’s request, however, Nelson gave Plaintiff the telephone
number for Union Representative Bobby Mitchell. DSOF ¶ 26. It is undisputed
4
that Plaintiff did not tell Nelson that Motley had slammed the Glasshouse door on
his left foot and left knee. DSOF ¶ 26; Response to DSOF ¶ 26.
Plaintiff called Mitchell. DSOF ¶ 29. Plaintiff told Mitchell that Motley had
slammed a door on his foot and that his foot was hurting. DSOF ¶ 30. Plaintiff did
not expressly request medical care. DSOF ¶ 30. Plaintiff did request that Mitchell
come to Union Station, but Mitchell (who apparently was in the Chicago suburbs)
said he was unable to come downtown. DSOF ¶¶ 29, 36; 10/18/13 Armstrong Dep.
at 164.
Mitchell instructed Plaintiff to contact Union Representative Terry
Hartwood instead. DSOF ¶ 29; 10/18/13 Armstrong Dep. at 164.
Before contacting Hartwood, Plaintiff spoke with his train crew, Wigley and
Nicholas. DSOF ¶ 31; 10/18/13 Armstrong Dep. at 171. Nicholas testified that the
group spoke two minutes before “we had … to leave town,” perhaps referring to the
Suburban-line train departing Union Station. 6/23/11 Nicholas Dep. at 7. Plaintiff
told Wigley to take over as conductor because Motley had fired him. DSOF ¶ 30. It
is undisputed that Plaintiff did not tell Wigley or Nicholas that Motley had
slammed the Glasshouse door on his left foot and left knee. DSOF ¶ 31; Response to
DSOF ¶ 31.
Plaintiff then called Hartwood. DSOF ¶ 32. The call appears to have been
short. As Plaintiff began describing the alleged assault, Hartwood remarked: “Both
of you guys are wrong.” DSOF ¶ 32; 10/18/13 Armstrong Dep. at 165. From that
comment, Plaintiff inferred that Hartwood already had spoken with Motley.
10/18/13 Armstrong Dep. at 165-66. Plaintiff ended the call with Hartwood once
5
Plaintiff saw Cederick Fuller, a member of the Union’s Safety Committee, walk by.
DSOF ¶ 32; PSOAF ¶ 2. Plaintiff had not told Hartwood that he was injured or that
he required medical treatment. DSOF ¶ 32.
Plaintiff spoke with Fuller at around 5:30 p.m. PSOAF ¶ 3. Plaintiff said he
had been in an altercation with Motley about his uniform and asked Fuller to be his
union representative. DSOF ¶ 33; PSOAF ¶¶ 3-4. Plaintiff told Fuller that his foot
hurt and that he required medical attention.
DSOF ¶ 33; PSOAF ¶ 4.
Fuller
agreed to be Plaintiff’s union representative. 12/17/13 Fuller Dep. at 44.
Also around this time, Motley called Clayton Johanson, the Terminal
Manager of Suburban Operations.
DSOF ¶¶ 34, 36; 9/1/11 Motley Dep. at 77.
Johanson was responsible for employee safety at BNSF Railway and also
investigated employee injury reports. DSOF ¶ 35. Motley and Johanson spoke for
two to three minutes, DSOF ¶ 36, but the parties do not address what was said
during the call. Whatever was said, Johanson took the next train from the La
Grange Road Station to Union Station. DSOF ¶ 36; 6/23/11 Johanson Dep. at 27.
Motley testified that before Johanson arrived at Union Station, he saw
Plaintiff on Track 4. 9/1/11 Motley Dep. at 78. Motley testified that he told Plaintiff
that Johanson was coming and that Plaintiff was “going to be removed from service
for insubordination.” 9/1/11 Motley Dep. at 78.
Johanson arrived at Union Station at approximately 6:00 p.m. DSOF ¶ 36;
PSOAF ¶ 5. Johanson first spoke with Plaintiff and Fuller; then Johanson spoke
with Motley only. 12/13/13 Johanson Dep. at 65-68; 12/17/13 Fuller Dep. at 46-47.
6
Johanson testified that these conversations each lasted about five minutes, 12/13/13
Johanson Dep. at 65-68; Fuller testified that first conversation lasted three
minutes, 12/17/13 Fuller Dep. at 47. Plaintiff gave a different estimate for the
length of the second conversation. Plaintiff testified that Johanson went to the
Glasshouse and stayed there to talk with Motley for 15 to 30 minutes. 10/18/13
Armstrong Dep. at 175-76.
At approximately 6:15 p.m., Johanson spoke with
Plaintiff and Fuller for a second time, and asked Plaintiff to complete an “Accident –
Incident Interview Statement Form.” PSOAF ¶ 7; 12/13/13 Johanson Dep. at 65.
There is conflicting testimony about whether Fuller, Johanson and Plaintiff
discussed Plaintiff’s purported injury in their first or second conversation together.
Fuller testified that in the first conversation, Johanson asked Plaintiff how he felt,
and Plaintiff answered that his foot hurt.
PSOAF ¶ 5.
Johanson responded,
according to Fuller, that he would get Plaintiff medical care. 12/17/13 Fuller Dep.
at 46-47. Likewise, Plaintiff testified that during the group’s first conversation, he
told Johanson that he had been injured in the Glasshouse and required medical
attention. Response to DSOF ¶ 37; 10/18/13 Armstrong Dep. at 175; see PSOAF ¶ 5.
Johanson, for his part, recalled asking Plaintiff if he wanted to see a doctor during
the group’s second conversation. 12/13/13 Johanson Dep. at 65, 68-69. Johanson
recalled Plaintiff answering yes to wanting to see a doctor. DSOF ¶ 37.
After these conversations and before obtaining medical care, Johanson
interviewed six employees. DSOF ¶ 6; PSOF ¶ 6; PSOAF ¶ 8; 6/23/11 Johanson
7
Dep. at 48; 4/25/14 Johanson Dep. at 78-89.
Johanson testified that these
interviews did not take “very long.” 4/25/14 Johanson Dep. at 80.
Plaintiff completed the “Accident – Interview Statement Form.” PSOAF ¶ 17;
Accident – Interview Statement Form [98-3]. According to Plaintiff, Johanson took
the completed Form and went to the Glasshouse to speak with Motley. 10/18/13
Armstrong Dep. at 177-78. Johanson then returned to see Plaintiff, and Johanson
had Terminal Manager Timothy Merriweather on the telephone for Plaintiff. DSOF
¶ 6; 10/18/13 Armstrong Dep. at 178. Johanson gave the telephone to Plaintiff, and
Plaintiff spoke with Merriweather. PSOAF ¶ 11; 10/18/13 Armstrong Dep. at 178.
Plaintiff testified that Merriweather said: “Don’t be putting in no injury report if
you ain’t injured. Now are you injured?” 10/18/13 Armstrong Dep. at 179-80; see
PSOAF ¶ 11.
Plaintiff answered: “Yes.”
10/18/13 Armstrong Dep. at 180; see
PSOAF ¶ 11. Plaintiff understood from Merriweather’s tone that Merriweather was
threatening Plaintiff if he filled out an injury report.
PSOAF ¶ 11; 10/18/13
Armstrong Dep. at 179.
Merriweather testified that during the call, he asked Plaintiff how he was
doing, and Plaintiff requested medical attention.
Response to PSOAF ¶ 11.
Merriweather testified that when Plaintiff handed the telephone back to Johanson,
Merriweather told Johanson to ensure that Plaintiff received medical attention.
Response to PSOAF ¶ 11.
Johanson did request medical care. Johanson called “1-800 NURSE” to make
arrangements to take Plaintiff to a medical facility. DSOF ¶ 38; PSOF ¶ 5; 4/25/14
8
Johanson Dep. at 88-89. “1-800 NURSE” is a third-party vendor that identifies and
contacts medical facilities where injured BSNF Railway employees should go.
DSOF ¶ 38. “1-800 NURSE” directed Johanson to take Plaintiff to the Clearing
Clinic. 12/13/13 Johanson Dep. at 70.
At an undetermined time, Johanson walked—and Plaintiff limped—to a
vehicle, and Johanson drove Plaintiff to the Clearing Clinic. DSOF ¶ 39; PSOAF ¶
12; 10/18/13 Armstrong Dep. at 188; 12/13/13 Johanson Dep. at 108-09. Johanson
testified that it takes about 30 minutes to drive from Union Station to the Clearing
Clinic. 12/13/13 Johanson Dep. at 79; see DSOF ¶ 39; Response to DSOF ¶ 39. It is
undisputed that the Clearing Clinic is not the closest medical facility to Union
Station. DSOF ¶ 40; PSOF ¶ 8. Plaintiff saw other medical facilities while driving
to the Clearing Clinic, but he did not tell Johanson that he wished to be treated at a
different facility. DSOF ¶ 41; 10/18/13 Armstrong Dep. at 189-90.
Plaintiff arrived at the Clearing Clinic at 8:02 p.m. and remained there until
9:14 p.m. DSOF ¶ 43; PSOAF ¶ 21; 1/10/14 Gorovitis Dep. at 21. Plaintiff entered
the Clearing Clinic “unassisted,” but limping.
DSOF ¶ 43; PSOAF ¶ 12.
Dr.
Anatoly Gorovits examined Plaintiff and found left knee tenderness and left ankle
swelling and tenderness. DSOF ¶ 42; PSOAF ¶¶ 20-21. Dr. Gorovits also x-rayed
the ankle, and the x-ray showed a possible fracture. PSOAF ¶ 21. The fracture was
confirmed on May 14, 2010, when a MRI revealed a talar dome fracture. PSOAF ¶
21.
9
Plaintiff returned to Union Station the evening of May 4, 2010, and, as
before, Plaintiff walked from the vehicle to Union Station “unassisted,” yet limping.
DSOF ¶ 43; PSOAF ¶ 13; 12/13/13 Johanson Dep. at 109. Plaintiff wore a brace on
his left foot. Response to DSOF ¶ 43; PSOAF ¶ 15.
At Union Station, Merriweather conducted a reenactment of the alleged
assault that included Plaintiff. DSOF ¶ 44; PSOAF ¶ 13. The reenactment took 20
to 40 minutes. DSOF ¶ 44. Merriweather took five photographs as part of the
reenactment. PSOF ¶¶ 17, 27; PSOAF ¶ 13; 5/15/14 Merriweather Dep. at 76-77.
Just prior to the reenactment, Merriweather also took a photograph of Motley
holding the Glasshouse door open. PSOAF ¶ 13; 5/15/14 Merriweather Dep. at 7677. After the reenactment, Motley, in the presence of Merriweather, told Plaintiff:
“I’m sorry to see you’re hurt,” “I’m sorry about your foot,” or something to that
effect. PSOAF ¶ 14; 10/18/13 Armstrong Dep. at 162; 9/1/11 Motley Dep. at 87.
Plaintiff understood this as Motley apologizing for slamming the Glasshouse door
on Plaintiff’s foot and knee. PSOAF ¶ 14. Also that evening, Plaintiff completed
the “Employee Personal Injury / Occupational Illness Report.” DSOF ¶ 45; PSOAF
¶ 17.
C.
Investigation and Subsequent Medical Treatment
Also the evening of May 4, 2010, Merriweather called General Manager
Matthew Igoe and informed Igoe of the alleged incident. DSOF ¶¶ 6, 46; 5/20/14
Igoe Dep. at 21, 46. Igoe was two steps removed from supervising Plaintiff. DSOF
¶ 6.
Igoe supervised Merriweather who supervised Trainmaster Christopher
10
Motley who, in turn, supervised Plaintiff.
DSOF ¶ 6.
Apparently that same
evening, Igoe called Merriweather and recommended that Merriweather have
Motley report to the “Cicero yard” to be supervised by Merriweather pending an
investigation. DSOF ¶ 46; 5/20/14 Igoe Dep. at 24-25.
Either the same evening or the next morning, Igoe called Director of Human
Resources Duncan Brown and asked Brown to conduct a formal investigation, using
the procedure outlined by the Collective Bargaining Agreement between BNSF
Railway and Plaintiff’s union, the Brotherhood of Locomotive Engineers and
Trainmen. DSOF ¶¶ 46, 48; PSOAF ¶ 29; 5/21/14 Brown Dep. at 22; 5/20/14 Igoe
Dep. at 25-26. Igoe played no role in the investigation. DSOF ¶ 49. When asked
why he had Brown conduct the investigation, Igoe explained that BNSF Railways
took violence in the workplace incidents seriously: “It was a workplace in the
violence [sic] incident, which we take very seriously, and I wanted to make sure that
any investigation was fair and impartial, so I asked the HR manager to do it.”
5/20/14 Igoe Dep. at 26; see DSOF ¶ 46.
On May 5, 2010, Brown obtained written statements from Johanson, Motley
and Nelson. PSOAF ¶ 30. Brown kept hard copies of those statements in the
Human Resources Department. Response to PSOAF ¶ 30. At an unknown time
thereafter, Igoe saw the May 4, 2010 video footage of the incident and determined
that Motley could return to work in his normal role at Suburban Service. DSOF ¶
47.
11
On May 6, 2010, Plaintiff received on-duty injury medical leave. PSOAF ¶
18.
On May 18, 2010, Plaintiff filed battery charges against Motley with the
Chicago Police Department. PSOAF ¶ 19. The outcome of these charges is not in
the parties’ statements of facts.
On May 19, 2010, Plaintiff was seen by a second doctor: Dr. Steven
Marciniak. PSOAF ¶ 22. Dr. Marciniak is an orthopedic surgeon, and he diagnosed
Plaintiff with an injury to his left talus and a lateral meniscal tear in his left knee.
PSOAF ¶ 22. Dr. Marciniak repaired the tear on July 19, 2010. PSOAF ¶ 22.
On or about June 17, 2010, Plaintiff, at BSNF Railway’s request, wrote a sixpage statement of the May 4, 2010 incident. PSOAF ¶ 17.
On October 1, 2010, Plaintiff was seen by a third doctor: Dr. Simon Lee.
DSOF ¶ 69; 9/17/13 Lee Dep. at 20-21. Dr. Lee is an orthopedic surgeon, and he
performed an arthroscopy on Plaintiff’s left ankle. DSOF ¶ 69. Dr. Lee found bone
spurs on Plaintiff’s left ankle. DSOF ¶¶ 69-70.
The Collective Bargaining Agreement formal investigation hearing was
initially scheduled for May 23, 2010, but postponed multiple times by mutual
agreement and ultimately held on March 25, 2011. DSOF ¶¶ 52-53; PSOF ¶ 10;
3/25/11 Investigation Tr.
[92-4] at 4.
Randy
McMahan,
the Terminal
Superintendent at BNSF Railway’s Corwith Yard, was selected by Merriweather to
serve—and did serve—as the hearing officer on March 25, 2011. DSOF ¶¶ 49, 56;
PSOF ¶ 11. Years earlier, for four months in 2004, Motley and McMahan were
12
roommates, having rented rooms in the same house at the same time. PSOF ¶ 11;
PSOAF ¶ 37; 9/1/11 Motley Dep. at 97-98.
The March 25, 2011 hearing covered three topics:
1. Plaintiff’s alleged insubordination in refusing to remain in the Glasshouse
despite an instruction from Motley to do so;
2. Plaintiff’s alleged dishonesty relating to his “written statement regarding
an incident with Motley”; and
3. Plaintiff’s alleged misrepresentation in the “Employee Personal Injury /
Occupational Illness Report” as to the manner in which his alleged injury
occurred.
DSOF ¶ 52. Twenty-eight exhibits were introduced at the hearing. DSOF ¶ 57.
Igoe explained that all “pertinent materials” were introduced at the hearing as
required by the Collective Bargaining Agreement. Response to PSOF ¶ 22 (citing
5/20/14 Igoe Dep. at 85).
Merriweather—and not McMahan—determined what
exhibits were “pertinent” and thus introduced at the hearing. DSOF ¶ 51; 5/20/14
Igoe Dep. at 85. The following materials were not presented as exhibits at the
hearing:
•
the May 4, 2010 photograph taken by Merriweather before the
reenactment that depicts Motley with his hand on the Glasshouse door.
•
the May 4, 2010 statement from Motley;
•
the May 5, 2010 statement from Johanson; and
•
the May 5, 2010 statement from Nelson.
PSOF ¶ 15.
After the hearing concluded, on April 1, 2011, McMahan sent an email to
BNSF Railway’s Director of Labor Relations James Hurlburt (copying Igoe and
13
others) recommending that Plaintiff be terminated.
PSOAF ¶ 38; 4/1/11 McMahan Email [101-10].
Response to DSOF ¶ 61;
Three days later, on April 4,
Hurlburt responded (also copying Igoe and others) and concurred with McMahan’s
recommendation. PSOAF ¶ 38; 4/1/11 McMahan Email [101-10].
In an April 5, 2011 letter from McMahan, BNSF Railway terminated
Plaintiff, effective immediately, finding that the March 25, 2011 investigation
hearing had revealed that Plaintiff had violated Sections 1.2.7 (“Furnishing
Information”), 1.13 (“Reporting and Complying with Instructions”) and 1.6
(“Conduct”) of the General Code of Operating Rules.
DSOF ¶ 58; 4/5/11
Termination Letter [93-12]. The termination letter listed the same three grounds
that were the basis of the hearing as the grounds for termination. DSOF ¶ 59. The
letter stated that Plaintiff was terminated for:
insubordination relating to your refusal to remain in the Glasshouse
Office after receiving instruction from Trainmaster Chris Motley, your
dishonesty relating to your written statement regarding an incident
with Trainmaster Chris Motley, and misrepresentation of information
relating to your Employee Personal Injury / Occupational Illness
Report as to the manner in which your injury occurred on May 4,
2010[.]
DSOF ¶ 59.
The parties dispute who made the ultimate decision to terminate Plaintiff.
Defendant argues that Igoe made this decision. DSOF ¶ 62. Defendant cites Igoe’s
deposition testimony to argue that Igoe made the ultimate decision. DSOF ¶ 62
(citing 5/20/14 Igoe Dep. at 91). When asked if he was “responsible … for making
the decision to terminate Mr. Armstrong,” Igoe answered: “Yes, sir, I was.” 5/20/14
14
Igoe Dep. at 91.
By comparison, Plaintiff infers that McMahan made the final
decision because the April 5, 2011 termination letter was electronically signed by
him. Response to DSOF ¶ 62; PSOF ¶ 14; PSOAF ¶ 38; see 4/5/11 Termination
Letter [93-12].
D.
Appeals
Plaintiff twice unsuccessfully appealed his termination. On May 6, 2011,
Plaintiff appealed to Assistant Vice President of Labor Relations Milton Siegele.
DSOF ¶ 63; 6/10/11 Siegele Letter [93-13]. Plaintiff claimed that he was denied a
fair and impartial investigation, and that the evidence did not support the findings
against him. DSOF ¶ 63. Siegele denied that appeal on June 10, 2011. DSOF ¶ 64;
6/10/11 Siegele Letter [93-13]. Sometime thereafter, Plaintiff appealed to the Public
Law Board, a private dispute resolution forum. DSOF ¶ 65. On March 12, 2013,
the Public Law Board denied Plaintiff’s appeal too. DSOF ¶¶ 66-68. This lawsuit
followed.
III.
Analysis
This Court addresses Plaintiff’s retaliation and interference with medical
treatment claims under the Federal Railroad Safety Act (“FRSA”) in turn, and finds
that there are disputed issues of material fact that warrant a trial.
A.
Retaliation Claim
Plaintiff brings a retaliation claim under the FRSA.
The FRSA creates
certain protections for railroad workers who report a “work-related personal injury”
to the railroad carrier. 49 U.S.C. § 20109(a)(4). This claim is governed by the rules
15
and procedures set forth in 49 U.S.C. § 42121, part of the Wendell H. Ford Aviation
Investment and Reform Act for the 21st Century (“AIR–21”).
See 49 U.S.C. §
20109(d)(2)(A).
To establish a retaliation claim under the FRSA and the AIR-21 framework,
Plaintiff must show by a preponderance of the evidence that: (1) he engaged in
protected activity; (2) his employer knew that he engaged in the protected activity;
(3) he suffered an unfavorable personnel action; and (4) the protected activity was a
contributing factor to the unfavorable action. Harp v. Charter Communications,
Inc., 558 F.3d 722, 723 (7th Cir. 2009); see also Myles v. Northeast Illinois Regional
Commuter Rail Corp., No. 12-7704, 2015 WL 4247811, at *3 (N.D. Ill. July 14, 2015)
(citing Harp); Gutierrez v. Norfolk & Southern Railway Co., No. 12-2396, 2014 WL
551684, at *4 (N.D. Ill. Feb. 12, 2014) (same); Koziara v. BNSF Railway Co., No. 13834, 2015 WL 137272, at *5 (W.D. Wis. Jan. 9, 2015) (same). Plaintiff’s task at this
initial stage is not onerous, indeed, it is less demanding than the McDonnell
Douglas standard employed in other employment actions. Addis v. Department of
Labor, 575 F.3d 688, 691 (7th Cir. 2009); see also Araujo v. New Jersey Transit Rail
Operations, Inc., 708 F.3d 152, 159 (3d Cir. 2013); Koziara, 2015 WL 137272, at *5
(collecting cases).
If Plaintiff establishes his prima facie case, Defendant
nonetheless can avoid liability if it proves by clear and convincing evidence that it
would have taken the same unfavorable personnel action in the absence of
Plaintiff’s protected behavior. Harp, 558 F.3d at 723; see also Gutierrez, 2014 WL
551684, at *4 (citing Harp).
16
Here, there is no dispute that the relevant protected conduct under the FRSA
is Plaintiff reporting his May 4, 2010 injury, such as through the “Accident –
Interview Statement Form” and the “Employee Personal Injury / Occupational
Illness Report.” The parties instead file cross-motions for summary judgment on
just the first and fourth elements of the prima facie analysis. Ultimately, however,
there are disputes issues of material fact that preclude summary judgment for
either party on either issue.
1.
Protected Activity (Element 1)
The first issue in the prima facie analysis is whether Plaintiff acted in good
faith when he reported his May 4, 2010 injury that same day. The FRSA protects
an employee’s “good faith act done ... to notify, or attempt to notify, the railroad
carrier or the Secretary of Transportation of a work-related personal injury.” 49
U.S.C. § 20109(a)(4).
Courts in this Circuit (and elsewhere) interpreting this
language have imposed the dual requirements that the employee (1) subjectively
believe his reported injury was work-related; and (2) his belief was objectively
reasonable. E.g., Koziara, 2015 WL 137272, at *6 (collecting cases); Gutierrez, 2014
WL 551684, at *4; see also Murphy v. Norfolk Southern Railway Co., No. 13-863,
2015 WL 914922, at *5 (N.D. Ohio March 3, 2015). The Seventh Circuit has not yet
addressed the issue.
Defendant argues that Plaintiff could not have acted with good faith because
he fabricated the assault with Motley. Defendant relies on (1) the video footage
taken of the Greenhouse at the time of the purported assault, (2) Plaintiff’s own
17
conduct and (3) the medical evidence to show that Motley could not have assaulted
Plaintiff.
This evidence, however, reveals disputed issues of material fact that
preclude summary judgment for either party.
Video footage. Beginning with the video footage, the parties agree that the
footage shows that the assault had to have occurred within a four second window
when only Motley and Plaintiff remained in the Glasshouse and Motley was outside
the video frame. The parties disagree whether that was enough time for the assault
to occur. Defendant argues it was impossible for Motley to have assaulted Plaintiff
within this short time. But Plaintiff has propounded expert testimony from Dr.
Jamie Williams (a biomechanical engineer) who opined that four seconds was
sufficient time for Motley to assault Plaintiff. PSOAF ¶ 28. Based on the standard
maximum walking speed for adults approximately 30 years old (Motley was 33
years old at the time of the alleged assault), Dr. Williams inferred that it would
have taken less than two seconds to traverse the 13 feet, leaving more than two
seconds for the altercation. PSOAF ¶ 28. Defendant doubts that the brief assault
could have occurred in two seconds, but that argument is for the jury to decide and
not for this Court on summary judgment.
Relatedly, Plaintiff challenges the integrity of the video footage Defendant
relies on because the footage has a two minute gap before the alleged assault
occurred.
PSOAF ¶ 26.
That argument is unpersuasive based on Defendant’s
undisputed explanation for the gap. The video camera was mounted to a train on
Track 4, and Defendant has propounded unrefuted expert testimony explaining that
18
video footage was not saved when, in the normal course, the train temporarily shut
down its electrical system while parked in the train station. DSOF ¶ 9; PSOAF ¶
27.
Plaintiff’s conduct. Defendant argues that Plaintiff’s own conduct belies
his testimony that he suffered injuries, but this credibility argument does not get
Defendant far at the summary judgment stage of the proceedings.
Defendant
argues that Plaintiff saw at least six individuals following the purported assault,
including Security Officer Rice, yet told none of them of the incident or that he
required medical treatment. That is correct, but the inference to draw from those
facts is for the jury to decide.
Indeed, based on the entire record, a reasonable jury may disagree with the
inference Defendant has drawn.
For example, Plaintiff immediately sought to
procure representation from a union representative following the alleged assault.
DSOF ¶¶ 26, 29, 32; PSOAF ¶ 2.
Just five minutes after the alleged assault,
Plaintiff told Fuller (his union representative) about the assault and that he
required medical attention. DSOF ¶ 33; PSOAF ¶¶ 3-4. Thirty minutes later,
Plaintiff and Fuller met with Johanson and, again, Plaintiff described the assault
and requested medical care.
Response to DSOF ¶ 37; PSOAF ¶ 5; 10/18/13
Armstrong Dep. at 175; 12/13/13 Johanson Dep. at 65, 68-69. It will be up to the
jury to determine what inferences should be drawn from Plaintiff’s behavior.
Medical evidence. Defendant also argues that the injuries to Plaintiff’s left
foot and left knee are inconsistent with the alleged assault. Here again, there is
19
conflicting factual evidence that cannot be resolved on summary judgment.
Defendant has propounded a medical expert (Dr. Kris Alden) who has opined to a
reasonable degree of medical certainty that Plaintiff’s injuries are inconsistent with
an alleged assault but consistent with pre-existing, chronic and degenerative
conditions to his foot and knee. By comparison, all three doctors who treated
Plaintiff reached the opposite conclusion. Those three doctors concluded—also to a
reasonable degree of medical certainty—that Plaintiff’s injuries were consistent
with an assault on May 4, 2010. PSOAF ¶¶ 21-23. This evidence thus supports
that Plaintiff had an objectively reasonable belief that he suffered a work-related
injury.
Consider each treating doctor’s testimony:
1. Dr. Gorovits testified to a reasonable degree of medical certainty that
Plaintiff’s injuries were consistent with the assault Plaintiff had
described. PSOAF ¶ 21. Dr. Gorovits rendered this testimony based on:
(1) his May 4, 2010 physical exam; (2) the May 14, 2010 MRI; and (3)
Plaintiff’s self-reported findings.
1/10/14 Gorovits Dep. at 28-30.
Defendant argues that Dr. Gorovits also testified that he found evidence
of arthritis (see PSOAF ¶ 21), yet that does negate his bottom line
conclusion that the assault was the more likely cause of the fracture,
indeed, the two factors can be consistent.
2. Dr. Marciniak testified to a reasonable degree of medical certainty that
the injury to Plaintiff’s left talus and his lateral meniscal tear were more
likely than not caused by the assault. PSOAF ¶ 22. Dr. Marciniak
rendered this testimony based on the acute nature of the trauma, imaging
studies and Plaintiff’s self-reported history. 9/23/13 Marciniak Dep. at 2527.
3. Dr. Lee testified to a reasonable degree of medical certainty that
Plaintiff’s injuries were related to the assault. PSOAF ¶ 23. He also
found from his medical examination that the ankle inflammation was not
chronic or pre-existing. PSOAF ¶ 23. That contradicts the testimony
from Dr. Alden.
20
Defendant correctly notes that each doctor also concluded that Plaintiff suffered
some degenerative conditions, but that does not negate their bottom-line
conclusions. In the end, a jury must assess the conflicting testimony at trial.
In all these respects, this case is analogous to Koziara, 2015 WL 137272, at
*6-7, where the Court denied cross-motions for summary judgment under the first
prong of the prima facie test. The employee in Koziara had fractured his tibia, and
there were disputed issues of material fact as to whether the employee reported
that injury in good faith. Id. The employee: (1) admitted that he had lied to coworkers four days after the injury, stating that he had injured his leg at home; (2)
delayed reporting his injury for five days; and (3) suffered prior injuries that may
have been the true cause for his fractured tibia. Id. at *2, 6-7. While the purported
facts in support of good faith here are perhaps more compelling than in Koziara,
because Plaintiff did not admit to lying or delay reporting any injury for days, the
material facts here nonetheless remain disputed, so judgment for Plaintiff is not
warranted at this stage.
For these reasons, summary judgment is not warranted for either party
under the first prong of the prima facie analysis.
2.
Causal Connection (Element 4)
For the final element in his prima facie case, Plaintiff must show a causal
connection between his May 4, 2010 injury report and Defendant’s adverse action,
that is, the decision to terminate Plaintiff. This is a low standard for Plaintiff to
meet. As the Seventh Circuit observed, Congress passed the FRSA recognizing that
21
“employees in the transportation industry are often best able to detect safety
violations and yet, because they may be threatened with discharge for cooperating
with enforcement agencies, they need express protection against retaliation for
reporting these violations.” Formella v. United States Department of Labor, 628
F.3d 381, 388-89 (7th Cir. 2010) (internal quotations omitted). Thus Plaintiff need
only show that his injury report was a “contributing factor”—not the “but-for”
cause—for his termination.
A contributing factor is something less than a substantial or motivating one;
instead, the term means “any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of the decision.” Addis, 575 F.3d at
691 (internal quotations omitted); see also Araujo, 708 F.3d at 158; Koziara, 2015
WL 137272, at *9-11.
Under the FRSA’s “contributing factor” standard for
causation, Plaintiff need not conclusively demonstrate Defendant’s retaliatory
motive; the contributing factor that Plaintiff must prove is intentional retaliation
prompted by the employee engaging in protected activity. Kuduk v. BNSF Railway
Co., 768 F.3d 786, 791 (8th Cir. 2014); accord Koziara, 2015 WL 137272, at *9 (W.D.
Wis. Jan. 9, 2015).
The employer’s motive can be shown, as here, through
circumstantial evidence. Myles, 2015 WL 4247811, at *3-4; Gunderson v. BNSF
Railway Co., No. 14-223, 2015 WL 4545390, *8-9 (D. Minn. July 28, 2015); Ray v.
Union Pacific Railroad Co., 971 F. Supp. 2d 869, 885 (S.D. Iowa 2013).
One common type of circumstantial evidence district courts in this Circuit
and elsewhere find compelling is evidence that the injury report initiates the events
22
that culminate in the adverse action taken against the employee. E.g., Mosby v.
Kansas City Southern Railway Co., No. 14-472, 2015 WL 44086406, at *6-7 (E.D.
Ok. July 20, 2015); Myles, 2015 WL 4247811, at *4-5; Koziara, 2015 WL 137272, at
*9-11; Smith-Bunge v. Wisconsin Central, Ltd., 60 F. Supp. 3d 1034, 1041-42 (D.
Minn. 2014); Ray, 971 F. Supp. 2d at 888. This is known as the “chain of events”
approach to causation under the FRSA, and evidence substantiating this approach
shows that a triable issue of fact exists as to causation.
The Court in Koziara, 2015 WL 137272, at *9-11, for example, denied crossmotions for summary judgment based on the chain of events approach because the
employee’s injury report triggered the investigation that led to his suspension and
later his termination. The investigation uncovered both that the employee had been
inattentive when injured and also unrelated misconduct by him—stealing railroad
ties a week before the reported injury. Id. at *10-11. That theft, despite not being
the trigger for the investigation, was the basis of the employee’s termination. Id. at
*3. The Court, also bound by Seventh Circuit law, recognized that the theft and
termination had a tenuous link to the subject matter of the injury report, yet reemphasized the expansive causal connection standard under the FRSA. Id. at *10.
Another instructive case is Ray, 971 F. Supp. 2d at 872, which involved a
railroad employee who lied to his supervisor about whether his knee injuries were
work-related. When the employee finally reported his injuries as work-related, he
was fired for dishonesty and failure to timely report an injury. Id. With regard to
causation, the Court found that had the employee not reported his alleged work-
23
related injury, then the railroad carrier would not have undertaken an investigation
into either: (1) the honesty of the employee’s earlier statement to his supervisor that
his injury was not work-related; or (2) the timeliness of the employee’s injury report,
and, for those reasons, the employee would not have been terminated. Id. at 888.
The railway carrier in Ray also argued, like Defendant here, that it had
“ample basis” to discipline the employee. 971 F. Supp. 2d at 885 n.19. Yet that
argument missed the mark in light of the expansive causation standard. The Court
found that even if dishonesty and late reporting comprised “99.9% of the reason” for
the termination, the employee’s FRSA claim would “still be viable because his
injury report could still have been a contributing factor in the disciplinary action.”
Id. (internal quotations omitted and emphasis in original).
As in Koziara and Ray, among other cases, here, Plaintiff has cleared the low
causation hurdle. There is a genuine issue of fact whether Defendant would have
initiated the investigation that led to Plaintiff’s termination had Plaintiff not
reported any injury. The injury reports and commencement of the investigation are
not only temporally close, but also intertwined factually. See Araujo, 708 F.3d at
160-62 (crediting temporal proximity to show causation); Myles, 2015 WL 4247811,
at *4 (collecting cases for the same point). The investigation began either the same
day or the day following Plaintiff reporting the alleged assault and his injury.
DSOF ¶ 46. Further, two of the three bases for the March 25, 2011 investigation
hearing, and for Plaintiff’s termination expressly, regard the substance of Plaintiff’s
injury reports, that is, whether the allegations in the “Accident – Incident Interview
24
Statement Form” and “Employee Personal Injury / Occupational Illness Report”
were truthful. DSOF ¶¶ 52, 58; 4/5/11 Termination Letter [93-12]. Similar to Ray,
971 F. Supp. 2d at 885 n.19, 888, had Plaintiff not made these injury reports, then
the honesty of those statements could not have come under scrutiny.
Defendant argues that the investigation was triggered by Igoe watching the
May 4, 2010 video footage sometime after that date—not any injury report made by
Plaintiff. That is mistaken. Igoe testified that there was a single investigation,
and, as shown above, Igoe instructed Brown to commence an investigation before
Igoe saw the video footage. 5/20/14 Igoe Dep. at 43-44.
Perhaps Defendant also has an argument that Plaintiff still would have been
terminated for insubordination in the Glasshouse. The factual basis for Defendant
initiating the investigation, however, has not been extensively developed. In any
event, there is deposition testimony from Igoe suggesting that the injury report was
a basis for the investigation. Igoe emphasized that he asked Brown to conduct the
investigation because the company took violence in the workplace allegations “very
seriously.” 5/20/14 Igoe Dep. at 26; see DSOF ¶ 26.
Even if Defendant’s above arguments are credited, the evidence that
Defendant held animus towards him for filing an injury report further bolsters
Plaintiff’s theory of causation. In this context, animus is permissible circumstantial
evidence to show causation. Davis v. Union Pacific Railroad Co., No. 12-2738, 2014
WL 3499228, at *8 (W.D. La. July 14, 2014); Ray, 971 F. Supp. 2d at 888. Plaintiff
points to his May 4, 2010 call with Merriweather. Merriweather told Plaintiff “don’t
25
be putting in no injury report if you ain’t injured.” 10/18/13 Armstrong Dep. at 17980; see PSOAF ¶ 11. That may be an innocuous comment or, as Plaintiff understood
it, a veiled threat.
PSOAF ¶ 11; 10/18/13 Armstrong Dep. at 179.
It also is
significant that the comment came from Merriweather, because he selected the
hearing officer for the March 25, 2011 investigation hearing and chose which
exhibits to introduce at the hearing. DSOF ¶¶ 49, 51, 56. Merriweather thus may
have had the power to influence the hearing. Plaintiff argues that Merriweather
wielded that power in a biased manner, selecting a friend as the hearing officer and
withholding pertinent documents from the hearing.
Plaintiff’s chain of events theory and evidence of temporal proximity and
animus distinguish this case from Gunderson, 2015 WL 4545390, at *8-13, 15, a
recent decision where the Court granted summary judgment for the defendant
railway carrier (also BNSF Railway) in an FRSA action based on the absence of
sufficient evidence at summary judgment showing a causal connection.
Unlike
here, the investigation that led to the employee’s termination in Gunderson was not
triggered by the employee making a safety report, instead, the investigation there
followed reports that the employee had harassed one co-worker and threatened
another. Id. at *9-10. The employee did argue that his superior Richard Ebel was
hostile to his prior injury reports, but, unlike what Plaintiff has done with
Merriweather, the employee in Gunderson failed to show that Ebel influenced the
decisions to investigate or terminate him.
inapposite to the present case.
26
Id. at *2, 9-10.
Thus Gunderson is
Based on this record, Defendant cannot prevail on summary judgment as to
the fourth prong of the prima facie analysis.
Nor can Plaintiff.
Drawing all
inferences in favor of Defendant, which this Court must do when Plaintiff is the
moving party, this Court cannot say that the undisputed evidence establishes by a
preponderance of the evidence that Plaintiff’s injury reports were the contributing
factor behind his termination. 2
B.
Interference with Medical Treatment Claim
Also under the FRSA, Plaintiff can bring—and has brought—a claim for
interference with medical treatment. Plaintiff has moved for summary judgment on
this claim.
Section 20109(c)(1) of the FRSA imposes two requirements on railroad
carriers when an employee is injured during the course of employment. First, the
railroad carrier “may not deny, delay, or interfere with the medical or first aid
treatment of an employee who is injured during the course of employment.” 49
U.S.C. § 20109(c)(1). Second, if “transportation to a hospital is requested by an
employee who is injured during the course of employment,” the railroad carrier
must promptly arrange the transportation of that employee to the “nearest hospital
where the employee can receive safe and appropriate medical care.” Id.
Defendant last states its disagreement with the Seventh Circuit’s decision in Reed v.
Norfolk Southern Railway Co., 740 F.3d 420, 425 (7th Cir. 2014), which held that an
employee is not precluded from seeking relief under the FRSA even though he appealed his
underlying grievance to the Public Law Board. [92-1] at 15. As Defendant recognizes, this
Court is bound by that controlling law, and has no power or desire to revisit the Seventh
Circuit’s decision in Reed.
2
27
As a threshold matter, Defendant argues that Plaintiff is foreclosed from
raising an interference with medical treatment claim now because no such claim
was pled in his Complaint [1]. The Complaint includes a single count (“FRSA Cause
of Action”) that does not differentiate between the retaliation and interference with
medical treatment claims. Yet this Court finds that Plaintiff is not foreclosed from
maintaining an interference with medical treatment claim.
Under Rule 8(a),
Plaintiff must plead only enough detail to give Defendant fair notice of what the
claim is and the grounds upon which it rests. Tamayo v. Blagojevich, 526 F.3d
1074, 1083 (7th Cir. 2008). Complaints do not have to identify legal theories or
point to the specific statute for relief. McDonald v. Household International, Inc.,
425 F.3d 424, 427-28 (7th Cir. 2005).
Here, the Complaint gave Defendant fair notice of a potential claim for
interfering with medical treatment. In Paragraphs 10 and 12 of the Complaint,
Plaintiff expressly identified two times when Defendant delayed procuring medical
care:
•
Paragraph 10: “Despite reporting his injury, Mr. Glen Armstrong
remained at Union Station for approximately 3 hours. He was required to
re-enact the incident and pose for photographs, despite having reported his
injury.”
•
Paragraph 12: “In seeking medical care, a railroad supervisor drove Mr.
Armstrong past two emergency rooms, delaying his medical care further.”
Moreover, in the section titled “FRSA Cause of Action,” the Complaint states that
Defendant violated Plaintiff’s protected rights under the FRSA. Complaint ¶¶ 18-
28
19.
These facts are enough for Plaintiff now to proceed on an interference of
medical treatment theory under Section 20109(c)(1) of the FRSA.
Turning now to the merits, there are disputed issues of material fact that
preclude summary judgment for Plaintiff. Most importantly, both requirements of
Section 20109(c)(1) apply only if Plaintiff was “injured during the course of
employment,” and, as shown above, there a genuine factual dispute whether
Plaintiff was, in fact, assaulted and injured by Motley on May 4, 2010.
Even assuming that Plaintiff was injured on the job, there is also a factual
dispute about when and how Plaintiff requested medical treatment, which may
affect Plaintiff’s claim. See, e.g., Response to DSOF ¶ 37; PSOAF ¶ 5; 10/18/13
Armstrong Dep. at 175; 12/17/13 Fuller Dep. at 46-47; 12/13/13 Johanson Dep. at
65, 68-69. Perhaps a detailed statutory analysis of what constitutes a “delay” or
“interference” with medical treatment may simplify that dispute, but Plaintiff did
not engage in that analysis in his moving papers. Nor does this Court need to
engage in that analysis on its own accord, given that this Court already has found a
disputed issue of fact precluding summary judgment.
For these reasons, Plaintiff’s motion for summary judgment on his
interference with medical treatment claim is denied.
IV.
Conclusion
The parties’ cross-motions for summary judgment [82] [92] [93] are denied.
The status hearing set for September 9, 2015 at 9:45 a.m. in Courtroom 1725
stands. At that time, the parties should be prepared to select a trial date. In
29
connection with trial, Plaintiff requests that this Court exercise its discretion under
Rule 56(g) and deem certain undisputed facts admitted. That request is denied.
This Court will address whether undisputed facts at summary judgment should be
deemed admitted at trial through its standing procedures for Pretrial Orders.
Dated: September 4, 2015
Entered:
____________________________
John Robert Blakey
United States District Judge
30
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