SHORT v. SPRINGFIELD TERMINAL RAILWAY COMPANY

Filing 49

DECISION AND ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT re 32 Motion for Partial Summary Judgment By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DEREK SHORT,
PLAINTIFF
V.

SPRINGFIELD TERMINAL RAILWAY
COMPANY,
DEFENDANT

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CIVIL NO. 2:16-CV-74-DBH

DECISION AND ORDER ON DEFENDANT’S
MOTION FOR PARTIAL SUMMARY JUDGMENT
There is one central issue in this partial summary judgment motion on
Count I. Can employer initiation of disciplinary proceedings under a collective
bargaining agreement—where the ultimate outcome is no discipline—ever
amount to “adverse action” under the Federal Railroad Safety Act’s prohibition
of discrimination against whistle-blowers? I conclude that the question here is
for the jury and DENY IN PART the Railway’s motion for partial summary judgment
on Count I.
For purposes of the motion, the following facts are undisputed.

The

plaintiff Short, a trackman, injured his knee at work, but did not report it that
day, contrary to an Employee Safety Rule that requires immediate notification.1
Def.’s Statement of Material Fact (SMF) (ECF No. 33) ¶¶ 11-14; Pl.’s Opposing

The reason for his failure—he says he did not realize he had injured it until the next day—is
not material at this stage.
1

Statement of Material Fact (OSMF) (ECF No. 37) ¶¶ 11-14, 49-53; Def.’s Reply to
Pl.’s OSMF (ECF No. 42) ¶ 3. He reported it around 6 A.M. the next day when
he went to his doctor rather than to work. The day after that, Springfield Railway
Terminal Corporation, his employer, served on him a Notice of Hearing that said
it was being issued:
to develop the facts and place your responsibility, if any, in
connection with the incident(s) outlined below: On
Wednesday, October 29, 2014, at approximately 0605 hours,
you informed your supervisor, Jason Beaudry, that you were
involved in an accident that occurred on the property on
Tuesday, October 28, 2014, between 1500 hours and 1530
hours, while you were performing your duties as a Trackman
in crew # 2723, while dumping rocks on the mainline at or
around MP 140.

Def.’s SMF ¶ 15; Pl.’s OSMF ¶ 15. In Count I of his Complaint, (ECF No. 1) ¶ 25,
Short alleges that reporting his injury was protected activity under the Federal
Railroad Safety Act, 49 U.S.C. § 20109. The Railway has not challenged that
assertion in its summary judgment motion. Short also alleges that the Railway
took adverse or unfavorable actions against the plaintiff in
whole or in part due to plaintiff’s protected activities when it
charged plaintiff with company rule violations in connection
[sic], denied him work opportunities and denied him
promotion opportunities as a result of the protected activity.

Compl. (ECF No. 1) ¶ 27. The railroad agrees that if “the hearing process reveals
that a rule violation occurred, appropriate discipline is assessed.” Def.’s Mot. for
Partial Summ. J. (ECF No. 32) at 7. But here, the ultimate outcome was a
decision that Short had not broken the rule, and his employment record was
cleared.
In responding to the motion for summary judgment, Short has not
addressed the Railway’s assertions that no work or promotion opportunities were
2

forfeited and that late payment for his hours attending the hearing was
inadvertent, and I treat those claims of alleged retaliation as waived. The only
issue, therefore, is whether initiation of the unsuccessful discipline charge can
support the claim. Since the Railway has moved for summary judgment on that
issue alone, I assume for purposes of the motion that Short can demonstrate
that the Railway initiated the disciplinary proceedings because Short engaged in
protected activity.
The FRSA provides that a railroad carrier
may not . . . discriminate against an employee if such
discrimination is due, in whole or in part, to the employee’s
lawful, good faith act done, or perceived by the employer to
have
been
done . . . (4)
to
notify . . . the
railroad
carrier . . . of a work-related personal injury. . . .

49 U.S.C. § 20109(a).

The Supreme Court interpreted similar language in

Burlington Northern & Santa Fe Railway Co., 548 U.S. 53 (2006). There the
Court interpreted anti-retaliation language in Title VII of the Civil Rights of 1964
that makes it “an unlawful employment practice for an employer to discriminate
against any of his employees” because he has engaged in protected activity. Id.
at 62. The Court held that the language “covers those (and only those) employer
actions

that

would

have

been

materially

adverse

to

a

reasonable

employee . . . [T]he employer’s actions must be harmful to the point that they
could well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. at 57. I apply the principles of Burlington Northern given
the parallel (“discriminate against”) language in the FRSA.2

I recognize that several lower court Title VII decisions grant summary judgment in an
employer’s favor on the basis that “investigating” an employee does not amount to adverse action.
3

2

The question, then, is whether a jury may find that the proceedings here,
although they ultimately resulted in no discipline, could dissuade a reasonable
railway employee from engaging in protected activity.3 After being served, Short
attended “a pre-discipline investigation hearing” on November 20. Def.’s Mot.
(ECF No. 32) at 7; Def.’s SMF (ECF No. 33) ¶ 17; Pl.’s OSMF (ECF No. 37) ¶ 17.
Two weeks later the Railway’s then-Vice President of Engineering notified Short
that he had violated a Company rule and would receive “two days off without pay
as discipline.” Def.’s SMF (ECF No. 33) ¶ 18; Pl.’s OSMF (ECF No. 37) ¶ 18.
Short appealed the finding and discipline. Railway management and the Union
General Chairman discussed the appeal. The upshot was that the rule violation
finding was vacated, all discipline was withdrawn, and Short’s employee record
was completely expunged of any reference to the issue.

According to the

Railway’s superintendent of engineering, employees are “definitely” justified in
being nervous when they have to attend such a hearing and there is always the

See, e.g., Kuhn v. Washtenaw Cty., 709 F.3d 612, 625-26 (6th Cir. 2013). Nonetheless, “context
matters,” Siegner v. Township of Salem, 654 F. App’x 223, 232 (6th Cir. 2016) (quoting
Burlington Northern), and for the reasons stated in text I am satisfied that the actions the
Railway took in this case present a jury issue.
3 The Railway argues from the FRSA’s statutory language that the mere initiation of disciplinary
proceedings cannot, as a matter of law, constitute discrimination under subsection (a) of 49
U.S.C. § 20109. A separate provision of the same statute, subsection (c)(2), defines prohibited
“discipline” against employees seeking or complying with medical treatment to include “bring[ing]
charges against a person in a disciplinary proceeding . . . .” 49 U.S.C. § 20109(c)(2). Since that
definition of “discipline” applies only “[f]or the purposes of this paragraph,” the argument goes,
Congress cannot have meant subsection (a) also to prohibit retaliatory investigative proceedings.
I disagree. Congress added subsection (c) to the Act a decade ago in order to strengthen
promotion of railroad safety. See, e.g., Jones v. Illinois Cent. R.R. Co., CA No. 15-635, 2015 WL
5883030, at *6 (E.D. La. Oct. 8, 2015) (interpreting subsection (c)(1) but recounting legislative
history pertinent to all of subsection (c)); Santiago v. Metro-North Commuter R.R. Co., ARB Case
No. 10-147, ALJ Case No. 2009-FRS-011, 2012 WL 3164360, at *8-9 (ARB July 25, 2012).
Although subsection (a) and subsection (c)(2) are both anti-retaliatory in nature, the latter was
added to supplement the Act’s already-existing anti-retaliatory measures in the name of greater
safety, and there is no reason to think it should instead be interpreted to constrain the meaning
of “discriminate” in the former.
4

potential of being fired. Pl.’s OSMF (ECF No. 37) ¶ 68; Def.’s Reply (ECF No. 42)
¶ 3. And, said the Railway’s former Vice President of Engineering, “[u]ntil an
employee received the letter stating the outcome of the hearing, he was justified
in being concerned.” Pl.’s OSMF (ECF No. 37) ¶ 97; Def.’s Reply (ECF No. 42)
¶ 3.
The Railway characterizes all this activity as “simply conducting an
investigation” that “cannot be an adverse action,” Def.’s Mot. (ECF No. 32) at 13.
But I conclude that a jury might reasonably find that this treatment and process,
although they ultimately came to naught, “could well dissuade a reasonable
worker from” engaging in the protected activity of reporting an injury. Burlington
Northern, 548 U.S. at 57.

True, courts in Title VII cases have sometimes

concluded that investigations resulting in no discipline were under the
circumstances too trivial for any reasonable jury to find material adversity in
Burlington Northern’s sense.

See, e.g., Tepperwein v. Entergy Nuclear

Operations, Inc., 663 F.3d 556, 569-70 (2d Cir. 2011). Ultimately, though, under
Title VII and the FRSA alike, material adversity is a question of fact for the jury
so long as a reasonable jury could answer it either way; Burlington Northern
itself contemplates a jury decision.

548 U.S. at 69-70 (explaining what “a

reviewing court or jury” would need to focus on under the material adversity
standard).
I respectfully disagree with the district court’s decision in Brisbois v. Soo
Line Railroad Co., 124 F. Supp. 3d 891 (D. Minn. 2015), that even after
Burlington Northern, it can never be an adverse action when “a rail carrier
5

attempts to determine whether [an employee] has violated a rule—typically by
following an investigatory process mandated under a CBA . . . .” Brisbois, 124
F. Supp. 3d at 903. Each case is different, and each disciplinary treatment is
different. Brisbois distinguishes being accused of violating a rule and being
disciplined for violating the rule. But I conclude that if, as is the case here, a
reasonable jury may find the Railway’s motivation bad,4 and may find that a
reasonable employee would be deterred from engaging in protected activity by
the treatment that goes along with the accusation, then summary judgment is
inappropriate for the question of material adversity.5 The Department of Labor’s
Administrative Review Board has reached the same result. Vernace v. Port Auth.
Trans-Hudson Corp., ARB Case No. 12-003, ALJ Case No. 2010-FRS-018, 2012
WL 6849446, at *1 (ARB Dec. 21, 2012).6

(I do not rely on Vernace, either

The Railway says that the investigation and hearing process were required by its collective
bargaining agreement, and Brisbois v. Soo Line Railroad Co., 124 F. Supp. 3d 891, 903 (D. Minn.
2015) suggests that simply adhering to such an agreement cannot amount to an adverse action.
But the collective bargaining agreement only requires the investigation and hearing process be
adhered to in order to discipline an employee. Def.’s SMF (ECF No. 33) ¶ 4-6 & Ex. B-1; Pl.’s
OSMF (ECF No. 37) ¶ 4-6. A jury could still find a retaliatory motivation behind the decision to
initiate the disciplinary process in the first place. An investigation and hearing are necessary for
legitimately imposed discipline, but not by themselves sufficient to defeat an allegation of adverse
action.
5 Unlike the defendant, I do not find pertinent Judge Posner’s “by the way” paragraph in Koziara
v. BNSF Railway Co., 840 F.3d 873, 878 (7th Cir. 2016):
by the way there is nothing sinister, as the term “initiating event” may seem to
suggest, in deeming the submission of an injury report a proper occasion for an
employer’s conducting an investigation. An injury report is a normal trigger for
an investigation designed to uncover facts that can prompt corrective action that
will reduce the likelihood of a future injury.
In Koziara the determination was that the injury report was not the proximate cause of the
employee’s termination for theft. The case did not address the issue of what is adverse action.
Heim v. BNSF Railway Co., 849 F.3d 723 (8th Cir. 2017), cited by the defendant, also was a
causation case, not an adverse action case.
6 In interpreting the parallel Wendell H. Ford Aviation Investment and Reform Act, the
Administrative Review Board concluded that the statute was more protective than Title VII’s ban
on retaliation as interpreted in Burlington Northern. Williams v. American Airlines, Inc., ARB
Case No. 09-018, ALJ Case No. 2007-AIR-004, 2010 WL 5535815, at *8 (ARB Dec. 29, 2010).
While trivial actions with de minimis harm should be excluded, the ARB said that any act of
6
4

pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), or the First Circuit’s willingness to sometimes find the
ARB’s “interpretation[] persuasive.” Worcester v. Springfield Terminal Ry. Co.,
827 F.3d 179, 183 (1st Cir. 2016).)
Accordingly the defendant’s motion for summary judgment is DENIED
except as to the claims of denied work / promotion opportunities and delayed
payment for time spent at the hearing, as to which it is GRANTED.
SO ORDERED.
DATED THIS 26TH DAY OF JULY, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

“deliberate retaliation” should be covered “without any expressed limitation to those actions that
might dissuade the reasonable employee.” Id.
7