DIMAURO v. SPRINGFIELD TERMINAL RAILWAY COMPANY

Filing 43

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT granting 33 Motion for Summary Judgment By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DONALD DIMAURO,
PLAINTIFF
V.

SPRINGFIELD TERMINAL RAILWAY
COMPANY,
DEFENDANT

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CIVIL NO. 2:16-CV-0071-DBH

DECISION AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
The defendant’s argument that its “investigation” of the plaintiff could not
amount to adverse action fails for the same reasons as in Short v. Springfield
Terminal Railway Co., 2:16-cv-00074-DBH. There are some differences in the
testimony about what the plaintiff feared, but ultimately there is a jury question
on that issue. Nevertheless, the defendant’s motion for summary judgment (ECF
No. 33) is GRANTED because the plaintiff does not have sufficient evidence to
reach a jury on causation.
FACTS
I take the facts in the light most favorable to the plaintiff. The plaintiff
Donald DiMauro reported an apparent violation of federal railway regulations on
the part of a supervisor, Jeff Dearmin, to the Federal Railway Administration

(FRA).1 The report resulted in an investigation, and an FRA inspector visited the
yard where DiMauro worked.2 The inspector interviewed DiMauro on at least
two occasions, one of which occurred in the crew room where other employees
could see.3 Dearmin expressed to other employees that he was going to find out
who “ratted him out” and personally retaliate against that person.4 Ultimately
Dearmin learned that it was DiMauro who had reported on him.5 Dearmin also
told other employees that at one point during the FRA investigation, although he
was unsure whether he would receive any discipline, the President of the
Railway, David Fink, slapped him on the back and told him, “Don’t worry Jeff, I
have got your back.”6 Fink meets with six executive vice presidents and heads
from all departments, including the head of safety, every weekday morning at 8
A.M., and they discuss the specifics of the railway’s daily operations.7

Def.’s Statement of Material Facts ¶ 13 (ECF No. 34) (Def.’s SMF); Pl.’s Response to Def.’s
Statement of Material Facts ¶ 13 (ECF No. 38) (Pl.’s RSMF). DiMauro initially contacted George
Casey, General Chairman for the labor organization that represents conductors on Springfield
Terminal Railway Company, who then reported the incident to the FRA. Def.’s SMF ¶¶ 13–16;
Pl.’s RSMF ¶¶ 13–16.
2 Def.’s SMF ¶ 16; Pl.’s RSMF ¶ 16.
3 Def.’s SMF ¶ 16; Pl.’s RSMF ¶ 16. I do note that the plaintiff admitted the defendant’s statement
that “DiMauro does not know if anyone observed his meeting with Healey, and does not believe
that anyone from management was present to observe his meeting with Healey.” Def.’s SMF
¶ 16; Pl.’s RSMF ¶ 16. Under Local Rule 56(f), however, I disregard statements of fact not
properly supported by record material, and the cited portion of DiMauro’s testimony actually
refers to his first interview with Healey, DiMauro Dep. Tr. 33:20–34:2 (ECF No. 34-5), while
DiMauro also testified that his second meeting with Healey occurred in the crew room at Rigby,
with “a bunch of people” present and “crews coming and going during that time,” id. 36:12–20.
Taking the facts in the light most favorable to the plaintiff, at least the second interview with the
FRA inspector happened in the sight of other employees. See also Pl.’s Statement of Additional
Material Facts ¶ 40 (ECF No. 38) (Pl.’s SAMF); Def.’s Response to Pl.’s Statement of Additional
Material Facts ¶ 40 (ECF No. 42) (Def.’s RSAMF).
4 Pl.’s SAMF ¶ 44; Def.’s RSAMF ¶ 44.
5 Pl.’s SAMF ¶ 48; Def.’s RSAMF ¶ 48.
6 Pl.’s SAMF ¶ 45; Def.’s RSAMF ¶ 45.
7 Pl.’s SAMF ¶ 61; Def.’s RSAMF ¶ 61.
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On September 12, 2014, the FRA inspector prepared an Operating
Practices Violation Report Form recommending a civil penalty for Dearmin’s
serving as a conductor without proper qualifications, in violation of 49 C.F.R.
§ 242.105(f).8 President Fink has stated by declaration that he did not know that
DiMauro had “spoken to an FRA inspector” or “had anything to do with any
investigation into Mr. Dearmin’s actions.”9
On October 7, 2014,10 there was a verbal interchange between DiMauro
and President Fink that six others witnessed.11 On November 9, 2014, DiMauro
was served with disciplinary charges that Fink initiated.12 Fink asserts that
DiMauro had told him on October 7 that DiMauro’s locomotive was not ready or
running, but that when Fink investigated with others, he learned there was
nothing wrong with any of the locomotives and concluded that DiMauro had lied
to him.13 DiMauro contends that this description of what he said to Fink at the
October 7 meeting was “a blatant fabrication,”14 that his locomotive was in fact
ready, and that he had told Fink that he was waiting until “Amtrak goes by.”15
Four other employees present at the Fink-DiMauro meeting testified at a

Pl.’s SAMF ¶ 52; Def.’s RSAMF ¶ 52; Pl.’s Ex. 1 at D1137–38 (ECF No. 38-1). Following the
September 12, 2014 report and after the alleged retaliation, the FRA ultimately proposed a
$5,000 civil penalty in a letter to the defendant, dated February 6, 2015. Pl.’s Ex. 1 at D1136
(ECF No. 38-1).
9 David Fink Decl. ¶ 4 (ECF No. 34-15).
10 The plaintiff posits in his briefing and statement of additional material facts that this exchange
with Fink occurred on November 7, 2014, Pl.’s SAMF ¶ 53; Pl.’s Opp’n to Def.’s Mot. Summ. J. 5
(ECF No. 37), but this appears to be a typographical error, as he has also admitted in his
statement of material facts that the exchange occurred on October 7, Def.’s SMF ¶ 22; Pl.’s RSMF
¶ 22.
11 Def.’s SMF ¶ 22; Pl.’s RSMF ¶ 22.
12 Pl.’s SAMF ¶ 56; Def.’s RSAMF ¶ 56.
13 Def.’s SMF ¶¶ 23–26.
14 Pl.’s Opp’n to Def.’s Mot. Summ. J. 8 (ECF No. 37); Pl.’s SAMF ¶ 59; see also Pl.’s RSMF ¶¶ 23–
26.
15 Pl.’s SAMF ¶¶ 53–54. Amtrak uses the Railway’s tracks.
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December 18, 2014, hearing that they had not heard DiMauro say that his
locomotive was not ready.16 On December 30, 2014, DiMauro learned that none
of the charges against him was sustained.17
ANALYSIS
In the face of Fink’s sworn denial that he had any knowledge of DiMauro’s
role in the FRA investigation of Dearmin,18 DiMauro argues that there is
nevertheless enough circumstantial evidence to go to the jury on whether Fink
initiated the adverse action because DiMauro had initiated a whistle-blowing
report with the FRA.

DiMauro does not make any argument of cat’s paw

liability,19 but only that Fink took retaliatory action against him because Fink
knew that DiMauro had reported Dearmin. While I can understand DiMauro’s
skepticism given the bizarre interchange with Fink if the facts are as DiMauro
states, a jury nevertheless would have to engage in rank speculation to determine
that Fink knew at the time he initiated disciplinary proceedings that DiMauro
had reported Dearmin’s conduct to the FRA,20 and that DiMauro’s report was
the reason for Fink accusing DiMauro of violating Carrier Safety Rules.21 Accord

Pl.’s SAMF ¶ 59; Def.’s RSAMF ¶ 59.
Def.’s SMF ¶ 32; Pl.’s RSMF ¶ 32; Def.’s Ex. T (ECF No. 34-21).
18 David Fink Decl. ¶ 4 (ECF No. 34-15).
19 “Cat’s paw” liability occurs when the plaintiff seeks “to hold his employer liable for the animus
of a supervisor who was not charged with making the ultimate employment decision.” Staub v.
Proctor Hosp., 562 U.S. 411, 415–16 & n.1 (2011); see also Lowery v. CSX Transportation, Inc.,
No. 16-1634, 2017 WL 2304229, at *1 (4th Cir. May 26, 2017).
20 To reach even this preliminary point, the plaintiff would have the jury infer that Fink somehow
learned of DiMauro’s role in reporting Dearmin from the 8 A.M. department head meetings, Pl.’s
Opp’n to Def.’s Mot. Summ. J. 7 (ECF No. 37); Pl.’s SAMF ¶¶ 61–62, despite Fink’s and Cynthia
Scarano’s declarations to the contrary, Def.’s RSAMF ¶¶ 61–62; Def.’s Ex.’s O & N.
21 The notice of hearing advised DiMauro that on October 7, “you allegedly informed Mr. David
Fink that your locomotive was not ready, in response to his Inquiry as to what you were doing”
in violation of Carrier Safety Rules, PGR-C and PGR-L. Def.’s SMF ¶ 27; Pl.’s RSMF ¶ 27; Def.’s
Ex. S (ECF No. 34-20).
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Conrad v. CSX Transportation, Inc., 824 F.3d 103, 109 (4th Cir. 2016)
(“[U]nsupported inferential leaps are no adequate substitute for actual
evidence.”). Direct evidence is not required, accord Consolidated Rail Corp. v.
U.S. Department of Labor, 567 F. App’x 334, 338 (6th Cir. 2014), but the plaintiff
needs more than he has here.
CONCLUSION
The defendant’s motion for summary judgment is GRANTED.
SO ORDERED.
DATED THIS 26TH DAY OF JULY, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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