Wagner v. Canadian National Railway Company et al
OPINION AND ORDER DENYING 45 Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-10635
Hon. Terrence G. Berg
GRAND TRUNK WESTERN RAILROAD,
OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (DKT 45)
This is a workplace retaliation case. Plaintiff Jacob Wagner alleges that
Defendant Grand Trunk Western Railroad retaliated against him in violation of the
Federal Railroad Safety Act, 49 U.S.C. § 20101 et. seq., (“FRSA”) by suspending him
for 15 days because he reported an on-the-job injury. Defendant argues that it
disciplined Plaintiff for not wearing the proper safety equipment, and that the
evidence in this case is so clear that the Court must enter summary judgment in
Defendant’s favor. For the reasons outlined below, Defendant’s motion is DENIED.
In December of 2011, Plaintiff cut his finger on sheared metal siding because he
handled the siding without wearing gloves. Dkt. 45, Pg. ID 1160. Plaintiff and his coworkers were repairing a garage door using barn-seam siding. Dkt. 45, Pg. ID 1159.
When the day began, Plaintiff was working outside in the cold rain and was wearing
gloves, but took off the gloves after moving inside because his hands were going numb.
Dkt. 47, Pg. ID 1602. Once inside he noticed a piece of barn-seam siding sitting in a
walkway and went to move it to prevent an accident. Dkt. 45-2, Pg. ID 1223. What he
did not notice was that the siding had been sheared, making its edges sharper than
normal. Dkt. 47-2, Pg. ID 1703. He picked up the siding with his bare hands, his grip
slipped, and a sharp edge cut his finger. Dkt. 47-2, Pg. ID 1800.
Plaintiff reported his injury to his foreman and went to the hospital to get stitched
up. Dkt. 47-2, Pg. ID 1802. He returned to work the same day, and detailed what had
happened in a “Report of Personal Injury or Occupational Illness.” Dkt. 47-2,
Pg. ID 1845; Dkt. 1-4. The Report triggered an investigation, where Defendant
inquired whether Plaintiff had violated any workplace safety rules. Dkt. 45,
Pg. ID 1161. Under the collective bargaining agreement in place, if after the
investigation Defendant concluded that Plaintiff had violated one or more rules, a
hearing was required before Defendant could impose any discipline. Dkt. 45,
Pg. ID 1161. Defendant believed that Plaintiff had violated the company’s safety rules
and sought to discipline him, and so a hearing took place in January of 2012. Dkt. 45,
Pg. ID 1162. Lawrence Wizauer, an Operations Supervisor for Defendant who
presided over the hearing, concluded that Plaintiff had violated multiple rules, and
as a result Defendant suspended Plaintiff from work for 20 days, but called him back
to work after he had served 15 days of the suspension. Dkt. 45, Pg. IDs 1162-1164.
Plaintiff challenged the penalty by filing a complaint with the Secretary of Labor,
by way of the Occupational Safety and Health Administration (“OSHA”), pursuant to
§ 20109(d)(1) of the FRSA. Dkt. 45, Pg. ID 1167. OSHA found reasonable cause to
believe that Defendant violated the FRSA, and awarded damages to Plaintiff. Dkt. 47,
Pg. ID 1601. Defendant objected to OSHA’s ruling and requested a hearing before an
Administrative Law Judge. Dkt. 45-2, Pg. ID 1485. A hearing was scheduled, and in
preparation the parties took discovery. Dkt. 45, Pg. ID 1167. The parties presented
evidence at the hearing, and the ALJ ultimately found for Defendant. Dkt. 45, Pg. ID
1167. Plaintiff appealed to the Appeals Review Board (ARB), Dkt. 12-2 Pg. ID 640,
but then filed a notice of intent to file suit in federal court and did so in February of
2015. Dkt. 1. After receiving a copy of Plaintiff’s federal complaint, the ARB dismissed
Plaintiff’s appeal. Dkt. 12-2 Pg. ID 676.
Plaintiff raises a single count of retaliation for engaging in protected activities
under the FRSA, 49 U.S.C. § 20109(d)(1). Dkt. 1. Plaintiff alleges that he participated
in protected activity in three ways (1) by reporting his injury to his foreman; (2) by
submitting an injury report to Defendant; and (3) by refusing to waive his right to a
hearing. Dkt. 1, Pg. ID 13. He also alleges that Defendant retaliated against him in
three ways: (1) by suspending him; (2) by increasing the severity of his discipline after
he refused to waive his right to a hearing; and (3) by deeming him a “needs
improvement” employee. Dkt. 1, Pg. ID 13. Defendant has moved for summary
judgment, Dkt. 45, which Plaintiff opposes. Dkt. 47. Following full briefing, the Court
held oral argument on November 14, 2016.
A. Standard of Review
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, show that there
is no genuine issue as to any material fact such that the movant is entitled to a
judgment as a matter of law.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568
(6th Cir. 2013); see also Fed. R. Civ. P. 56(a). A fact is material only if it might affect
the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). On a motion for summary judgment, the Court must view
the evidence, and any reasonable inferences drawn from the evidence, in the light
most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted); Redding v. St. Edward,
241 F.3d 530, 531 (6th Cir. 2001).
“As the moving parties, the defendants have the initial burden to show that there
is an absence of evidence to support [plaintiff’s] case.” Selhv v. Caruso, 734 F.3d 554
(6th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the
moving party has met its burden, the non-moving party “‘may not rest upon its mere
allegations or denials of the adverse party’s pleadings, but rather must set forth
specific facts showing that there is a genuine issue for trial.’” Ellington v. City of E.
Cleveland, 689 F.3d 549, 552 (6th Cir. 2012) (citing Moldowan v. City of Warren,
578 F.3d 351, 374 (6th Cir.2009)).
In 1970, Congress enacted the FRSA, a statutory scheme intended to “promote
safety in every area of railroad operations and reduce railroad-related accidents and
incidents.” Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347 (2000) (quoting 49 U.S.C.
§ 20101). The original version did not prohibit railroad carriers from retaliating
against employees, but Congress amended the Act in 1980 to include an antiretaliation provision. See Federal Railroad Safety Authorization Act of 1980, Pub. L.
96-423, § 10, 94 Stat. 1811 (1980); Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 509-10
(6th Cir. 2015). After a series of additional amendments, the FRSA now prohibits a
railroad carrier from discharging, demoting, suspending, reprimanding, or in any
other way discriminating against an employee because the employee reports a
workplace injury. See Ortiz v. Grand Trunk W. R.R. Co., 2014 U.S. Dist.
LEXIS 132666, at *14 (E.D. Mich. 2014) (citing 49 U.S.C. § 20109(a) and Araujo v.
New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 156 (3d Cir. 2013)).
The FRSA incorporates the burden-shifting approach applicable to whistleblower
claims arising under the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century (“AIR-21”). 49 U.S.C. §42121(b)(2)(B)(i)-(ii). Thus, to prevail on a
FRSA retaliation claim, an employee must show that “(1) he engaged in protected
activity; (2) the employer knew that he engaged in protected activity; (3) he suffered
an unfavorable personnel action; and (4) the protected activity was a contributing
factor in the unfavorable personnel action.” See Ortiz, 2014 U.S. Dist. LEXIS 132666,
at *15-16. “The employee bears the initial burden, and must show ‘by a
preponderance of the evidence that protected activity was a contributing factor in the
adverse action alleged in the complaint.’” Id. Once Plaintiff establishes a prima facie
case of retaliation, the burden shifts to the employer to demonstrate “by clear and
convincing evidence that the employer would have taken the same unfavorable
personnel action in the absence of that behavior.” Id.
Here, Defendant argues that it is entitled to summary judgment for two reasons.
First, Defendant submits that there is no genuine issue of material fact concerning
whether Plaintiff’s injury report was a contributing factor in Defendant’s decision to
suspend Plaintiff, and that no reasonable jury could find that Plaintiff has made a
prima facie case that the report was a contributing factor. Dkt. 45, Pg. IDs 1168-1173.
Second, Defendant submits that the evidence also would require a jury to find that
Defendant would have suspended Plaintiff even if he had not reported his injury
report. Dkt. 45, Pg. IDs 1173-1176. The Court considers each argument in turn.
1. Plaintiff’s prima facie showing
In challenging Plaintiff’s ability to make his prima facie case of retaliation,
Defendant argues only that Plaintiff’s injury report was not a contributing factor to
Defendant’s decision to suspend him. Dkt. 45, P. IDs 1168-1173. Thus the first three
prongs of Plaintiff’s prima facie case are uncontested: Plaintiff filed an injury report,
Defendant knew that he filed it, and Defendant suspended him. The contributingfactor prong is all that remains. How the Court should analyze that prong, however,
is uncertain; the Sixth Circuit has yet to confront the contributing-factor analysis
head on, and the other circuits are split on the issue.
The Third Circuit was the first to address the contributing-factor analysis as
applied under the FRSA. In Araujo v. New Jersey Trans. Rail Operations, Inc., the
Third Circuit adopted the definition of a “contributing factor” from the Federal
Circuit’s opinion in a Whistleblower Protection Act case (which uses the same burdenshifting framework as the FRSA): “any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of the decision.” 708 F.3d 152
(3d Cir. 2013) (quoting Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993)).
The Sixth Circuit adopted Araujo’s definition in Consolidated Rail Corp. v. United
States Dep't of Labor, but then concluded that in its case there was “substantial
evidence that animus was a contributing factor” in the plaintiff’s termination.
567 F. App'x 334, 338 (6th Cir. 2014). Importantly, in Consolidated Rail the Sixth
Circuit was not asked to clarify the scope of the term “contributing factor,” so it did
not hold that showing some form of retaliatory animus was the only way to meet the
The Eighth Circuit referenced Consolidated Rail when noting that “the
contributing factor that an employee must prove is intentional retaliation prompted
by the employee engaging in protected activity,” but did so in its discussion of whether
the employer had knowledge of the employee’s protected activity. Kuduk v. BNSF Ry.
Co., 768 F.3d 786, 791 (8th Cir. 2014).
Finally, the Seventh Circuit recently departed from Araujo completely, and
instead adopted a proximate cause standard. Koziara v. BNSF Railway Co.,
2016 WL 6407246 at *4 (7th Cir. 2016).
Defendant relies on Araujo, Consolidated Rail, and Kuduk as authority for the
proposition that that Plaintiff “must demonstrate retaliatory animus.” Dkt. 45,
Pg. ID. 1170. Plaintiff disagrees, and responds that the test is the same under both
Araujo and Consolidated Rail and does not change based on Kuduk’s reference to
Consolidated Rail. Dkt. 47, Pg. ID. 1608-1611.
Plaintiff is correct. In Consolidated Rail the Sixth Circuit did not define the
contributing-factor test’s contours: it did not definitively say what kind of proof an
employee must present to establish that a protected activity was a contributing factor
to an allegedly retaliatory employment action. And Kuduk’s use of the term
“intentional retaliation” came in its discussion of whether the plaintiff could even
show that the defendant had knowledge of the plaintiff’s protected activity. In other
words, the point that the Kuduk court was making was that an employee’s protected
activity must be known to the employer for the activity to contribute to the employer’s
decision. The state of the law in this Circuit is not sufficiently clear to conclude that
Plaintiff must provide evidence of discriminatory animus to meet the contributing
factor prong of his prima facie showing. But even if Plaintiff had to make that
showing, the genuine issues of fact in this case are sufficient to permit a jury to find
discriminatory animus and then conclude that Plaintiff has made his prima facie
showing on the contributing-factor prong.
An employee can demonstrate that his protected activity was a contributing factor
in his employer’s adverse employment decision through either direct or
circumstantial evidence. Neither party argues that there is direct evidence in the
record, so the Court must look for circumstantial evidence.
Courts have referenced the following categories of proof as examples of
circumstantial evidence that a protected activity was a contributing factor to a
negative employment action:
Indications of pretext;
Inconsistent application of an employer’s policies;
Shifting explanations for an employer’s actions;
Antagonism or hostility toward a complainant’s protected activity;
Falsity of an employer’s explanation for the adverse action taken;
Change in the employer’s attitude toward the complainant after he
engages in protected activity
Kuduk v. BNSF Ry. Co., 980 F. Supp. 2d 1092, 1101 (D. Minn. 2013). Here, Plaintiff
has shown indications of pretext sufficient to permit a reasonable jury to find that he
has made a prima facie showing that his injury report contributed to Defendant’s
decision to suspend him.
a. Indications of Pretext
“A plaintiff can demonstrate pretext by showing that the employer's proffered
reason for the adverse action (1) has no basis in fact, (2) did not actually motivate the
defendant's challenged conduct, or (3) was insufficient to warrant the challenged
conduct.” Braun v. Ultimate Jetcharters, LLC, 828 F.3d 501, 513 (6th Cir. 2016)
Defendant argues that Plaintiff can make no showing of pretext, and provides two
reasons for support. First, Defendant submits that it has consistently explained and
demonstrated that it was Plaintiff’s failure to wear gloves that caused Defendant to
suspend him. Dkt. 45, Pg. ID 1170. Second, Defendant submits that it once disciplined
another worker for using a chainsaw without wearing chaps, even though that worker
did not report an injury. Dkt. 45, Pg. ID 1170.
In response, Plaintiff argues that the safety rules, on their face, do not prohibit
his conduct; they say that gloves “may be required” rather than making gloves
mandatory. Dkt. 47, Pg. IDs 1604, 1612. Plaintiff submits that he had discretion to
decide whether to wear gloves, and that these two reasons, alone, would permit a
reasonable jury to find pretext, and from that, to infer that his reporting an injury
was a contributing factor. Dkt. 47, Pg. ID 1612.
Defendant replies that Plaintiff’s position “strains credulity” because the rules
state that “gloves may be required when lifting and carrying certain materials” and
“provide employees some discretion,” but “common sense dictates” that he should
have been wearing them. Dkt. 45, Pg. IDs 1170-1171. Defendant submits that
“permissive language does not allow an employee to check common sense at the door
and plead ignorance of his responsibility to wear proper PPE for the task at hand.”
Dkt. 45, Pg. ID 1171. And Defendant further contends that the rules prohibited
Plaintiffs conduct because “there is no doubt gloves must be worn when working with
razor-sharp metal”—indeed, Defendant makes the bold statement that “[t]he rule is
clear: wear gloves when handling dangerous material.” Dkt. 48, Pg. ID 2271.
Defendant’s arguments are unavailing. Here is the relevant rule chart:
Dkt. 45-2, Pg. ID 1437.
As shown in the key in the upper left-hand corner, there are three options:
“R” (Required equipment); “X” (May be required based on task and materials) and
“” (Recommended additional equipment). The third row from the bottom references
the task description at issue here. For there to truly be “no doubt” that Plaintiff
needed to wear gloves when lifting and carrying the sheared metal, there should be
an “R” in the “Gloves” column. But there is an “X” there, indicating that gloves may
(or may not) be required based on the task and materials. This rule seems to leave
the worker and his foreman some discretion.
To be sure, the rules are not a model of clarity. In stating gloves “may be required,”
the rules leave open the question of how a worker should know when gloves are or
are not required in any given situation, or who makes that call. Defendant has not
identified any additional rule that tells employees how to determine whether
something that might be required actually is required. Instead, Defendant points to
“common sense.” Dkt. 45, Pg. ID 1171. But Defendant cannot, with the benefit of
hindsight, rely on a combination of an ambiguous rule (“may be required”) and an
even more ambiguous concept (“common sense”) to obtain summary judgment.
Defendant’s second argument is that in the past it disciplined another employee
for not wearing protective equipment even where that employee did not report any
injury. Defendant suggests that this shows that Plaintiff’s injury report could not
have been a contributing factor in its decision to discipline him because safety is so
important that the company disciplines failure to wear protective gear as a matter of
course—not in retaliation. But the example Defendant relies upon is quite different
from Plaintiff’s experience; operating a chainsaw without chaps is not the same as
picking up siding without gloves. The activities are different (power sawing v. lifting
metal), and so are the types of personal protective equipment that Defendant claims
must be worn (chaps v. gloves). Defendant cannot rely on a prior unrelated incident
involving a different activity and different allegedly required1 protective equipment
to overcome the uncertainty of whether, on these facts, Plaintiff’s injury report
contributed to Defendant’s decision to impose discipline. This argument is also
insufficient for Defendant to win summary judgment.
In short, whether the safety rules required Plaintiff to wear gloves when picking
up the barn-seam siding is an issue of material fact. Taking the evidence in the light
most favorable to Plaintiff, a reasonable jury could find that the rule, given its less
than clear language, did not require Plaintiff to wear gloves. Further, the jury could
determine that Plaintiff had discretion to wear gloves depending on his assessment
of the safety risk in view of the task and materials. Therefore, the jury could conclude
that Plaintiff did not violate any safety rules,2 meaning Defendant’s proffered reason
The same rules chart depicted above (on its second page not here reproduced)
includes the task description for operating a chainsaw and the same protective gear
options. Out of those options, the closest thing to “chaps” is “shin guards.” Defendant
has not stated that the two are equivalent, but, regardless, the rule chart nowhere
requires chaps or shin guards when operating a chain saw. Gloves, hearing
protection, and a face shield are required; the chart indicates an “R” for each option.
But under the column for “shin guards” there is nothing, not even a “” for
“recommended.” So it is not clear to the Court what rule Defendant relied upon in
disciplining the employee who used a chainsaw without wearing chaps. In any event,
what is clear is that the two events Defendant seeks to compare are materially
2 The other rules Defendant accuses Plaintiff of having violated (besides not wearing
gloves) all trigger only if Plaintiff was required to wear gloves. For example, one rule
requires Plaintiff to “Know, wear, and maintain approved personal protective
equipment (PPE) and clothing as required by job task and/or work environment,
including off-site industries as required.” The chart above is what would determine
whether gloves were required by the task and environment.
for suspending Plaintiff (violating the rules) had no basis in fact and was insufficient
to warrant suspension (because Plaintiff didn’t violate them). If the jury reached such
a conclusion, it could also conclude that Plaintiff made out a prima facie showing that
his injury report contributed to Defendant’s decision to suspend him.
2. Defendant’s burden to show by clear and convincing
evidence that it would have imposed the same discipline on
Plaintiff even if he had not reported his injury
As noted above, if Plaintiff establishes a prima facie case of retaliation, the burden
shifts to the employer to demonstrate “by clear and convincing evidence that the
employer would have taken the same unfavorable personnel action in the absence of
that behavior.” See Ortiz, 2014 U.S. Dist. LEXIS 132666, at *15-16. Defendant argues
that there is no genuine issue of fact as to whether it has established by clear and
convincing evidence that it would have suspended Plaintiff absent his report, and
offers as support 16 reasons:
1. Defendant disciplined Plaintiff twice before for rule violations
2. Defendant disciplined another employee for failing to wear chaps
while using a chainsaw, and this employee had not reported an injury
3. Twelve of the 14 reported injuries in the department where Plaintiff
worked resulted in no discipline
4. A third employee who violated a rule by using accelerants in a fire
and caused an explosion admitted responsibility for the violation and
5. That third employee later reported an injury from a separate
incident and received no discipline
6. The two other employees who Defendant disciplined received the
discipline because of clear rule violations
7. Plaintiff is the only employee in the his department to receive
discipline for two rule violations in a two-month period, and for three
rule violations in a three-year period
8. All of Plaintiff’s discipline stemmed from the same type of rule
violation: rushing the activity
9. Defendant’s policies prohibit a supervisor from disciplining an
employee for getting injured
10. It is important to have safety rules
11. Defendant wants accurate injury reporting so it can improve its
safety plans to better protect its employees
12. Had Plaintiff’s foreman seen Plaintiff’s violation, he would have
disciplined Plaintiff regardless of injury
13. Plaintiff has faced no animosity or ill treatment since the report
14. It is important for Defendant to focus on minor rule violations so
those violations don’t compound and create a major risk of harm
15. Plaintiff wore gloves the entire time he was installing the siding
16. Common sense dictates that one must wear gloves when handling
sharp metal siding
Dkt. 45, Pg. ID 1174.
Plaintiff responds by returning to the same argument, that the rule did not on its
face prohibit Plaintiff from picking up the siding without wearing gloves. Dkt. 47,
Pg. ID 1616.
Defendant’s arguments are unavailing. If the Court viewed the evidence in the
light most favorable to Defendant, summary judgment might well be appropriate. But
that is not the standard; the Court must give Plaintiff the benefit of the doubt. As
noted above, whether the safety rules required Plaintiff to wear gloves is an issue of
material fact and a reasonable jury could conclude from the evidence that Plaintiff
did not actually violate any rules. (It could also reasonably find the opposite.) If the
jury concluded that there was no rule violation, it could also conclude that the 16
reasons above do not constitute clear and convincing evidence that Defendant would
have suspended Plaintiff even if he had not reported his injury. Plaintiff’s argument
for pretext directly attacks Defendant’s proffered reason for the discipline. Thus,
unlike cases where the discipline is justifiable for a reason unrelated to any protected
activity and a plaintiff must argue that retaliatory reasons rather than the legitimate
reason motivated the employer, Plaintiff’s claim here is that there was never a
legitimate reason to begin with. To be sure, a jury could conclude that Defendant
simply misinterpreted the rule (reading it to require gloves when it did not) and
therefore reached the wrong conclusion about whether Plaintiff violated it. But the
jury would not be required to reach that conclusion; it could find that Defendant knew
Plaintiff did not violate the rule but was so miffed by his injury report that it
suspended him and then tried to hide behind the rule.
Defendant has strong evidence to support its position at trial—Plaintiff did not
forgo gloves while picking up a box of tissues or some other seemingly innocuous item,
he used bare hands to lift a long piece of the same kind of material that he had worn
gloves to handle for the entire day leading up to that point—but this evidence is not
sufficient to prevent the case from going to a jury.
Before concluding, the Court must note its disappointment that the parties have
been unwilling or unable to reach a settlement in this matter. Five years ago, Plaintiff
missed 15 days of work. Dkt. 45, Pg. ID 1164. The damages from that are not
substantial, but the attorneys’ fees amassed from continuing this dispute are: two
levels of administrative hearings; then to federal court with a motion to dismiss, a
motion for summary judgment, and now a trial; then likely an appeal to the Sixth
Circuit. The cost of this process is enormous, and far exceeds Plaintiff’s lost wages.
At oral argument, Defense counsel asserted bluntly that attorneys’ fees are what has
kept this case from settling. If Plaintiff prevails, he is entitled to recover those fees.
When fees are high and mounting, it might be understandably difficult to place the
proper emphasis on the client’s best interests. But regardless of whether Plaintiff’s
counsel have given proper weight to their client’s interests, for this case to go to trial
is troubling in light of what Plaintiff had to say in 2014:
Dkt. 47-2, Pg. ID 1863.
Perhaps Mr. Wagner no longer experiences stress from the continuing and
expensive litigation of this dispute—the Court certainly hopes that is the case—but
if he does, it is disturbing that the parties have been unable to find a fair and
appropriate resolution of this dispute.
For the forgoing reasons, Defendant’s motion is DENIED.
Dated: February 24, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on February 24,
2017, using the CM/ECF system, which will send notification to all parties.
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