WORCESTER v. PAN AM RAILWAYS INC et al
Filing
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ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT denying 33 Motion for Summary Judgment By JUDGE NANCY TORRESEN. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JASON WORCESTER,
Plaintiff,
v.
SPRINGFIELD TERMINAL
RAILWAY COMPANY,
Defendant.
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) Civil No. 2:12-cv-00328-NT
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Defendant’s motion for summary judgment (ECF No.
33). The Plaintiff, Jason Worcester, brings a claim alleging that the Defendant,
Springfield Terminal Railway Company (“Springfield Terminal”), charged him
with company rule violations and terminated his employment because he engaged
in conduct protected by 49 U.S.C. § 20109, the whistleblower provision of the
Federal Railroad Safety Act (“FRSA”). Pl.’s Am. Compl. (“Am. Compl.”) (ECF No.
22). The Defendant claims that Worcester cannot show that he engaged in protected
conduct, a necessary element of a prima facie case of whistleblower retaliation. For
the reasons that follow, the Court DENIES the Defendant’s motion.
FACTUAL BACKGROUND
Because this case comes to the Court on a motion for summary judgment filed
by the Defendant, the narrative below is constructed from the record evidence
viewed in the light most favorable to the Plaintiff, with all reasonable inferences
resolved in the Plaintiff’s favor.1 See Jakobiec v. Merrill Lynch Life Ins. Co., 711
F.3d 217 (1st Cir. 2013).
Springfield Terminal is a railroad carrier.2 Jason Worcester worked for
Springfield Terminal from 1996 until his employment was terminated on November
28, 2011.3 At the time of his firing, Worcester was a foreman in Springfield
Terminal’s signal department. DSMF ¶ 58.
On October 6, 2011, over twenty gallons of hydraulic oil leaked onto a
railroad bed at Elm Street in North Yarmouth, Maine. DSMF ¶¶ 4-5, 54.
Springfield Terminal representatives reported the leak to Ann Hemenway, an
official at the Maine Department of Environmental Protection (“MDEP”). DSMF
¶¶ 4-5. Hemenway made arrangements to meet Springfield Terminal’s clean-up
crew at Elm Street the next morning. DSMF ¶ 5.
Christopher Gessman, a Springfield Terminal bridge inspector, and Kenneth
Pelletier, the assistant supervisor for Springfield Terminal’s eastern division, met
Hemenway at the Elm Street site. DSMF ¶¶ 6-7. Gessman’s crew began removing
saturated soil by digging between the railroad ties with shovels. DSMF ¶ 8.
Hemenway suggested Springfield Terminal use an excavator so the crew could dig
deeper and remove more soil. DSMF ¶ 8. Gessman called Worcester, who was at a
nearby worksite on the Field Road in Falmouth, Maine, to request that a small
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This includes disputed facts for which the Plaintiff has offered record support.
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Am. Compl. ¶ 2; Def.’s Affirmative Defenses & Answer ¶ 2 (ECF No. 23).
Def.’s Statement of Material Facts (“DSMF”) ¶ 3 (ECF No. 34); Pl.’s Statement of Material
Facts (“PSMF”) ¶ 77 (ECF No. 35). Citations to paragraphs in the parties’ statements of material
facts incorporate the opposing parties’ answers to those paragraphs.
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excavator belonging to the signal department be brought to Elm Street. DSMF
¶¶ 10, 14; PSMF ¶¶ 91, 96, 100. Worcester did not pick up or call back, so Gessman
left a voicemail and later drove to the Field Road to speak with Worcester in person.
DSMF ¶ 19; PSMF ¶ 91.
Worcester expressed reservations about the plan. See DSMF ¶ 19. He told
Gessman that he needed to speak with his union representative about whether it
was appropriate for signal department employees to be involved in cleaning up
hazardous materials. DSMF ¶ 19. That task was typically handled by Springfield
Terminal’s “Buildings & Bridges” department (“B & B”). DSMF ¶ 19; PSMF ¶ 87.
As Worcester understood it, signalmen did not have enough training to clean up oil.
DSMF ¶ 85. After Gessman left, Worcester instructed Jeremy Butland, an assistant
signalman under his supervision, to deliver the excavator to Elm Street. DSMF
¶¶ 21; PSMF ¶¶ 72-73, 100. Worcester told Butland not to get involved in the cleanup and to bring back the excavator as soon as B & B was done using it. DSMF ¶ 22;
PSMF ¶ 100. At the time, Butland had less than three months of experience on the
job. PSMF ¶ 71. He had used the excavator for the first time less than a month
before and had little experience operating it. DSMF ¶ 61; PSMF ¶ 97.
After Butland arrived at Elm Street, he was instructed to unload the
excavator and use it to dig between the ties to remove saturated soil. DSMF
¶ 26. Butland told Pelletier and Gessman that he was nervous about operating the
excavator “because he was green.” DSMF ¶ 27; PSMF ¶¶ 102-103. Butland received
a text message from Worcester reiterating that he was not to get involved in the
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clean-up effort. DSMF ¶ 29. Stuck in the middle of a dispute between his higherups, Butland called Russ Libby, a lead signalman, to ask what he should do. DSMF
¶ 30. Libby told Butland to follow Pelletier’s instructions. DSMF ¶ 30. Butland
texted Worcester and asked him to call Pelletier. PSMF ¶ 106.
Worcester and Pelletier spoke on the phone but were not able to resolve the
issue, so Worcester decided to drive to the Elm Street site himself. PSMF ¶¶ 108109. When he arrived, he approached Hemenway, the MDEP official. PSMF ¶ 110.
Worcester asked her what dangers were involved in the clean-up and whether the
state would draft a report about the incident. PSMF ¶¶ 111, 114. Hemenway told
Worcester that the leaked substance was hydraulic oil and that any report the
MDEP drafted about the incident would be made public. PSMF ¶¶ 111, 113-14.
Hemenway offered Worcester a business card and asked him to follow her to her
truck. PSMF ¶ 114.
At this point, Pelletier noticed Worcester’s presence and charged toward
Worcester and Hemenway, demanding to know what Worcester had asked. PSMF
¶¶ 117-19. Worcester told Pelletier he was concerned about the safety of having
Butland involved in the clean-up. PSMF ¶ 120. Pelletier told Worcester he could not
challenge the decision because hydraulic oil is not a hazardous material.4 See PSMF
Pelletier later testified that hydraulic oil is a hazardous material and could present risks to
the environment. PSMF ¶ 131. Under Springfield Terminal’s “Hazard Communication Program,” a
policy the company established to comply with OSHA workplace safety regulations, a hazardous
material is defined as “any substance or compound that has the capability of producing adverse
effects on the health and safety of humans or [poses] unreasonable risk to the environment or
property.” PSMF ¶¶ 125, 128; see also 29 C.F.R. §§ 1910.1000, 1910.1200; Attach. 10 to PSMF 24
(copy of the “Hazard Communication Program”). A “Material Safety Data Sheet” used by Springfield
Terminal states that hydraulic oil contains no “hazardous ingredients,” but also that: (1) acute
exposure to hydraulic oil can cause “[i]rriation to skin and eyes”; (2) “inhalation of hot oil mist or
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¶ 120. Apparently angered by Worcester’s obstinacy, Pelletier asked Worcester if he
knew what color Pelletier’s hard hat was, a reference to the fact that Springfield
Terminal’s supervisors wear white hard hats. PSMF ¶ 121.
On October 25, 2011, Pelletier issued charges against Worcester for allegedly
being insubordinate at both the Field Road worksite and the Elm Street worksite.
PSMF ¶ 133-34. A hearing was held by the company on November 6, 2011. PSMF
¶ 135. On November 28, 2011, Springfield Terminal issued Worcester a letter
finding him guilty of the charges and terminating his employment. PSMF ¶ 138.
PROCEDURAL HISTORY
On October 25, 2012, the Plaintiff brought a complaint against both the
Defendant and Pelletier alleging that filing charges against him and firing him
constituted FRSA whistleblower retaliation. On December 18, 2012, the Defendant
filed an answer, and Pelletier filed a motion to dismiss the claim against him. On
January 11, 2013, the Plaintiff filed a notice of voluntary dismissal as to his claim
against Pelletier. The Plaintiff filed an amended complaint on January 30, 2013. On
July 24, 2013, the Defendant filed its motion for summary judgment.
SUMMARY JUDGMENT STANDARD
The Court may grant a motion for summary judgment brought under Federal
Rule of Civil Procedure 56 only where the movant shows that “there is no genuine
dispute as to any material fact” and that it “is entitled to judgment as a matter of
vapours may irritate the upper respiratory tract”; and (3) “[r]epeated or prolonged exposure may
cause dermatitis.” PSMF ¶ 130; Ex. N to PSMF 1 (copy of “Material Safety Data Sheet”).
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law.” Fed. R. Civ. P. 56(a). A “genuine issue” is one that a reasonable factfinder
“could . . . resolve[ ] in favor of either party.” Calero-Cerezo v. U.S. Dep’t of Justice,
355 F.3d 6, 19 (1st Cir. 2004) (quoted by Jakobiec, 711 F.3d at 223). A “material
fact” is one “that has the potential of affecting the outcome of the case.” Id. (same).
In deciding a motion for summary judgment, the Court construes the record
in the light most favorable to the nonmovant and resolves all reasonable inferences
in its favor. See Jakobiec, 711 F.3d at 223. The Court may not weigh the evidence or
make credibility determinations, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986), and must set aside “conclusory allegations, improbable inferences, and
unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,
8 (1st Cir. 1990) (quoted by Pina v. Children’s Place, 740 F.3d 785, 787 (1st Cir.
2014)). The motion should be denied if the nonmoving party’s evidence is strong
enough “to support a verdict in her favor.” Calero-Cerezo, 355 F.3d at 19 (quoted by
Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir. 2013)).
Where the reasonableness of a party’s behavior is a dispositive issue, summary
judgment is appropriate only where “no reasonable fact finder” could find the
party’s conduct reasonable under the record evidence. Bratt v. Int’l Bus. Machs.
Corp., 785 F.2d 352, 359 (1st Cir. 1986); see also Candelario Del Moral v. UBS Fin.
Servs. Inc. of P.R., 699 F.3d 93, 100 (1st Cir. 2012).
DISCUSSION
The Plaintiff claims that the Defendant violated the FRSA by terminating
him for engaging in conduct protected by the FRSA’s whistleblower provision, 49
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U.S.C. § 20109 (“Section 20109”). The Defendant argues that the evidence in the
record fails to create a genuine issue of material fact as to whether the Plaintiff
engaged in any whistleblowing activity protected by Section 20109.
I.
The Governing Law
To establish a prima facie case of FRSA whistleblower retaliation against an
employer subject to the FRSA, an employee must establish four elements: (1) that
the employee engaged in activity protected by Section 20109;5 (2) that the employer
knew the employee engaged in protected activity; (3) that the employee suffered an
unfavorable personnel action; and (4) causation. Araujo v. N.J. Transit Rail
Operations, Inc., 708 F.3d 152, 157 (3rd Cir. 2013). Only the first element is at issue
on this motion.
The Defendant argues that Worcester did not engage in any protected
conduct under Section 20109. The Plaintiff contends that a reasonable fact finder
could conclude that Worcester’s conduct satisfied four6 of Section 20109’s
subsections: (1) Subsection (a)(1)(A); (2) Subsection (a)(1)(C); (3) Subsection (a)(2);7
Section 20109 protects thirteen different types of conduct as whistleblowing activity. See 49
U.S.C. § 20109(a)(1)(A) through § 20109(b)(1)(C).
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In its motion for summary judgment, the Defendant discusses all four of these subsections in
detail. Def.’s Mot. for Summ. J. 4-8. Near the beginning of its opposition to the Defendant’s motion,
the Plaintiff writes that “a reasonable jury could find that Mr. Worcester satisfies the requirements
of three separate provisions of the statute, namely 49 U.S.C. § 20109(a)(1)(C), 49 U.S.C. § 20109
(a)(2) or 49 U.S.C. § 20109(b).” Pl.’s Opp’n 3 (ECF No. 18). The omission of subsection (a)(1)(A)
appears to have been a typographical error, as the opposition goes on to discuss that subsection as
well. See Pl.’s Opp’n 7.
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Together, Subsections (a)(1)(A), (a)(1)(C), and (a)(2) protect an employee’s
(a) . . . lawful, good faith act done, or perceived by the employer to have been done or about
to be done—
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and (4) Subsection (b)(1)(A).8 To knock this case out on a motion for summary
judgment, the Defendant needs to show that no rational factfinder could find that
any of the subsections apply. Because the Court determines that the Plaintiff has
established a prima facie case under Subsection (b)(1)(A), it does not go on to
address whether the Plaintiff can establish protected conduct under the other
subsections.9
Subsection (b)(1)(A) protects an employee for “reporting, in good faith, a
hazardous safety or security condition.” 49 U.S.C. § 20109(b)(1)(A). By its own
terms, Subsection (b)(1)(A), protects only “good faith” reporting. Id. Unlike several
of Section 20109’s other subsections, it contains no explicit requirement that the
employee’s actions be objectively “reasonabl[e].” Compare 49 U.S.C. § 20109(b)(1)(A)
with 49 U.S.C. § 20109(a)(1). Given the inherent ambiguity of the term “good
(1) to provide information, directly cause information to be provided, or otherwise
directly assist in any investigation regarding any conduct which the employee
reasonably believes constitutes a violation of any Federal law, rule or regulation
relating to railroad safety . . . if the information or assistance is provided to . . .
(A) a Federal, State, or local regulatory or law enforcement agency . . . . ; [or]
.
.
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(C) a person with supervisory authority over the employee or such other
person who has the authority to investigate, discover, or terminate the
misconduct . . . . [or]
(2) to refuse to violate or assist in the violation of any Federal law, rule, or
regulation relating to railroad safety or security.
49 U.S.C. § 20109(a)(1) & (2).
Subsection (b)(1)(A) protects an employee for “reporting, in good faith, a hazardous safety or
security condition . . . .” 49 U.S.C. § 20109(b)(1)(A).
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The Court will entertain pretrial motions on the other subsections at the appropriate time.
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faith,”10 it is unclear whether a plaintiff can satisfy Subsection (b)(1)(A) merely by
establishing that he held an honest, subjective belief that there was a hazardous
safety or security condition, or whether the plaintiff must also establish that this
belief was objectively reasonable. Because the Court finds below that the Plaintiff
states a plausible claim under Subsection (b)(1)(A) even if its “good faith” standard
does have an objective element, the Court does not need to resolve this question.
II.
Application of Subsection (b)(1)(A) to the Facts of the Case
A.
Subjective Honesty-in-Fact
On the facts presented, a rational fact finder could reach the conclusion that
Worcester “report[ed]” to his employer what he subjectively believed was a
“hazardous safety . . . condition.” 49 U.S.C. 20109(b)(1)(A). Worcester expressed
reservations to Gessman about using the signal department’s excavator to assist in
the clean-up effort. See DSMF ¶ 19; PSMF ¶¶ 85, 87. It is undisputed that
Worcester subjectively believed signalmen have insufficient training to clean up oil.
PSMF ¶¶ 85. Worcester spoke with Pelletier and raised safety concerns about
having Butland involved. PSMF ¶ 120. It is undisputed that Butland had little
experience in operating an excavator, and even Pelletier testified that Worcester’s
concerns about Butland were not disingenuous. PSMF ¶¶ 97, 136. An employee
In some instances, the term “good faith” is used to refer to a belief that is subjectively honest,
whether the belief is reasonable or not. Cheek v. United States, 498 U.S. 192, 203 (1991) (holding
that defendant’s “good-faith belief” that he did not violate tax laws immunized him from criminal
liability even though belief was not “objectively reasonable”). In other instances, the term “good
faith” is used to refer only to beliefs that are both subjectively honest and objectively reasonable.
Reid v. Key Bank of S. Me., Inc., 821 F.2d 9, 15 n.2 (1st Cir. 1987) (noting that some courts interpret
“good faith” requirements in the Uniform Commercial Code to impose both a subjective honesty-infact standard and an objective reasonableness standard). Neither party has cited any cases which
conclusively clear up the ambiguity or directly interpret the language of Subsection (b)(1)(A).
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taking on a task he cannot safely complete could constitute a “hazardous safety . . .
condition.” 49 U.S.C. 20109(b)(1)(A). Warning a supervisor about such a condition
could constitute “reporting.” Id. Accordingly, taken in the light most favorable to the
Plaintiff, the record evidence supports a conclusion that Worcester reported what he
subjectively believed was a hazardous safety condition to both Gessman and
Pelletier.
B.
Objective Reasonableness
As of October 7, 2011, Butland had been working for Springfield Terminal for
less than three months and had only operated the signal department’s excavator for
the first time weeks earlier. PSMF ¶¶ 71, 97. He himself told Pelletier and Gessman
that he was nervous about operating the excavator. PSMF ¶ 103. Furthermore,
hydraulic oil qualifies as a “hazardous material” under Springfield Terminal’s own
internal safety policies. PSMF ¶ 132. Given that questions of “reasonableness” are
generally for the jury, see Bratt, 785 F.2d at 359, these facts are sufficient to create
a genuine issue as to whether Worcester reasonably believed that the conditions on
the ground and Butland’s lack of experience combined to create a hazardous safety
condition at the Elm Street site on October 7, 2011.
CONCLUSION
Because evidence in the record could support a conclusion that Worcester
reported what he subjectively and reasonably believed was a hazardous safety
condition, there is a genuine issue as to whether Worcester engaged in activity
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protected by Subsection (b)(1)(A). Accordingly, the Defendant’s motion for summary
judgment is DENIED.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 31st day of March, 2014.
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