ROLLINS v. NATIONAL RAILROAD PASSENGER CORPORATION

Filing 42

MEMORANDUM and ORDER denying 36 Motion for Summary Judgment. Signed by Judge Peter G. Sheridan on 9/18/2018. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

)

DAVID ROLLINS,

)
)

Plaintiff

)
)

Civil Action No:
I 6-cv-04542 (PGS)(TJB)

)
NATIONAL RAILROAD PASSENGER CORP. )
d/b/a AMTRAK,

MEMORANDUM
AND
ORDER

Defendant.
)
SHERIDAN, U.S.D.J.
This matter comes before the Court on a motion for summary judgment [ECF No. 36] filed
by Defendant the National Railroad Passenger Corporation d/b/a Amtrak.
I.
Plaintiff, David Rollins, a former employee of Amtrak, argues that he was unlawfully
terminated from his employment. Plaintiff was employed with Amtrak for nearly 23 years, until
August 4, 2015. (Second Amend Compl., ECF No. 25, ¶8). He was a supervisor for at least 10
years and his last position was the “night shift supervisor at the Adams Maintenance of Way Base
located in North Brunswick, NJ,” (track supervisor)’ (Id.; Rollins Depo. T. 29:21). In that position,
Plaintiff was responsible for overseeing approximately twenty employees performing track
maintenance. (Rollins Depo. T. 44:14-25). The position required coordination with the track

This is a union position covered by a collective bargaining agreement between Amtrak and the American
Railway and Airway Supervisors Association (ARASA).
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maintenance team and supervisor who worked on the day shift to ensure continuity of work.
(Rollins Depo T45:l-47:25).
In March 2015, Josh Newbold, an assistant day supervisor, was temporarily assigned to act
as the day supervisor while the usual supervisor was on vacation. The transition did not proceed
smoothly as there was tension between Plaintiff and Newbold in coordinating the management of
the railway. (Second Amend. Comp., ¶10).
Sometime after the switch from the day to the night shift, Plaintiff reported to his
supervisor, John Semliatschenko, Assistant Division Engineer, that there was a problem with
Newbold due to insufficient coordination, and that he was concerned about the safety during his
shift. Plaintiff requested that a meeting be arranged to address his concerns. (Id., ¶11). A meeting
was arranged on March 12, 2015, between Plaintiff, Newbold, and Semliatschenko, who was to
function as a mediator. (Id., ¶ 12). At the meeting, a very vocal argument erupted between Plaintiff
and Newbold. Semliatschenko left the room for a few minutes, and upon his return he terminated
the meeting. (Id., ¶13).

While Semliatschenko was not present, Plaintiff allegedly threatened

Newbold. Newbold did not immediately report the threat, because he concluded that Plaintiff was
not serious about hurting him. (Newbold Depo., Adams Cert. Ex. I, T. 14:2-4).
On April 23, 2015, Plaintiff placed a call to “Operation RedBlock,”

—

an Employee

Assistance Program (EAP) helpline to speak with a counselor or mental healthcare professional.
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(Second Amend. Compl., ¶14; Rollins Depo. T. 56:612)2. At the time, Plaintiff, was dealing with

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As explained in Defendant’s brief, Operation RedBlock is a “labor-developed, Amtrak adopted, drug and
alcohol prevention and intervention program. Employees who are experiencing issues related to drug and/or alcohol
abuse are able to reach out to Operation RedBlock personnel confidentially to seek assistance and, if needed, to be
excused from work.”(Def. Br. pg. 6 Fn 4).

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work related stress, marital issues, and his son was undergoing cancer treatment. (Rollins Depo.
T. 60-61).
Later that night, while Plaintiff was at his duty station, Plaintiff was approached by Amtrak
Police and paramedics from the local hospital and asked whether he was contemplating suicide.
Rollins denied same, and explained that he was having work and marital problems, but not
contemplating suicide. Notwithstanding his response, he was taken to a local hospital for
evaluation. Plaintiff was later released and determined not to have had suicidal thoughts and that
he was not a danger to the railroad. (Amend. Compi. ¶15). Nevertheless, he was placed on medical
leave, pending clearance to return to work. (Rollins Depo. T. 138:15-139:24).
The next day, when Newbold arrived at work, he learned from co-workers about the
intervention between Amtrak Police and Plaintiff the previous evening, and he became concerned
about Plaintiff’s emotional stability and fearful of the threats Plaintiff had made to him on March
12, 2015, and he reported the incident. (See Adams Cert. Ex. L, Incident/Investigation Report).
Consequently, Semliatschenko decided to contact Amtrak Police pursuant to Amtrak rules related
to workplace violence especially in light of Newbold’s concerns. (Semliatschenko Depo., Adams
Cert Ex. L, T34:13-17, 35:8-2 1). Amtrak Police conducted an investigation and asked Newbold to
submit a statement of what occurred. It stated that on March 12, 2015, Plaintiff had threatened
him with bodily harm when he stated that “he would come down to Levittown

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and slide one in

me.”3 There were no witnesses present when the incident occurred. (Newbold Statement, Adams’s
Cert. Ex K; Second Amend. Compl. ¶16).
Amtrak Police generated a report of the complaint. (Adams Cert., Ex. L). Plaintiff denied
making such a threat. (Amend. Compi., ¶17).

“Slide one in” a slang term that Newbold believes to mean to stab a person with a knife or some sharpened
instrument.
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Plaintiff, who had been placed on a medical leave and was seeing a counselor after the
EAP/heip line incident, was cleared to return to work in July 2015, so long as he provided
documentation of continued care with a counselor to include at least 2 visits every 30 days until
decreased or released by the counselor. (ECF No. 37-8 Plaintiffs medical record, pg. 3). In his
evaluation e-mail, on June 30, 2015, Dr. Robert L. Tanenbaum, who spoke to Plaintiffs counselor,
agreed that Plaintiff “appear[ed] to be emotionally stable. When he reached out for telephone
assistance, he may have unintentionally created a higher level of concern about his wellbeing than
he anticipated. That said I find him fit for his duties.” (Id., pg. 5).
After a brief period (length unclear) of returning to work, Plaintiff was again removed from
work pending investigation on the Newbold incident. (Rollins Depo. T138:15-139:24).
On August 10, 2015, an investigatory hearing was held before a neutral hearing officer,
Christopher Stephens. (Adams Cert. Ex. J). At the hearing, Newbold testified that he had delayed
reporting his complaint because “at the time,
verbal altercation many that we had

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[he] didn’t think much about it. It was just a

and didn’t put much thought into it until some of the events

that took place.” This included the encounter between Amtrak Police and Plaintiff over his
emotional state wherein Newbold noted “[Plaintiff] was going to try to somehow some way
commit suicide.” (Ex. J T. 40-4 1).
On August 20, 2015, Stephens sent Plaintiff a copy of the decision which terminated him
from his employment. (Adams Cert. Ex.

Q).

The decision identified the following charges:
(1) Violation of Amtrak’s “Standard of Excellence” specifically in the context of the
sections entitled Attending to Duties, and Professional and Personal Conduct.
(2) Violation of Amtrak’s “Workplace Violence Policy,” specifically in connection with
the March 12, 2015 incident.
The Amtrak’s “Standard of Excellence,” “Attending to Duties” section states,
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As an Amtrak employee and, therefore, the company’s most important resource,
you have an obligation to perform your duties properly and in accordance with the
standard set for your particular job. This requires that you remain alert to your
duties at all times. Any activity or behavior that distracts or prevents you or others
from attending to duties is unacceptable.
•

.

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The Professional and Personal Conduct section states:
Teamwork: “Being polite to each other is one of the basis of teamwork, so it is
important that we all are considerate and respectful of each other. Part of teamwork
is properly performing your duties. Another part is following instructions.
Therefore, you must comply with all company and department policies, procedures
and rules as well as all instructions directions and orders from supervisors and
managers.”
Conduct: “On the Amtrak team, there is no place for activities or behaviors that
compromise the safety, satisfaction and well-being of our customers, the public or
our fellow employees. Therefore, boisterous conduct such h as fighting, rudeness,
assault, intimidation, horseplay, and using profane or vulgar language is
unacceptable.”
The Amtrak’s Workplace Anti-Violence Policy states:
Amtrak has zero tolerance for threats and violence. Amtrak is committed to
providing its employees a workplace free from acts or threats of violence and to
effectively respond in the event that a workplace violence does occur.
The policy defines workplace violence as “any intentional verbal or physical conduct affecting the
workplace that causes any individual to reasonably fear for his or her personal safety, the safety of
his or her family, friends, co-workers, and/or property.” Among examples of workplace violence,
the policy lists: physically or verbally threatening another individual, Threatening physical harm
or similar intimidation either directly or indirectly, threatening or attempting to commit suicide.
Under the “Discipline” heading of the same section, the policy states,
Any person who exhibits threatening behavior, threatens to commit and/or actually
commits a violent act on Company property may be removed from the worksite as
quickly as safety permits, and may be asked to remain away from the worksite
pending the outcome of an investigation into the incident conducted by the
employee’s supervisor or manager and/or the Amtrak Police Department.
(Certification of Stacey D. Adams (Adam’s Cert.) ECF No. 36-3, pg. 6-7, Ex. A).
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Plaintiff appealed his termination to Amtrak’s Labor Relations Department on September 8, 2015.
(Adams Cert. Ex. S). On October 22, 2015, the Labor Relations Department upheld the findings
of the Hearing Officer and the decision to terminate Plaintiff. The Union then appealed the Labor
Relations Department’s decision to the Public Law Board. (Adams Cert., Ex. R). On October 26,
2016, the Public Law Board denied the appeal and upheld the termination, finding that “the Carrier
(Amtrak) has proven with sufficient probative evidence that the Claimant is guilty.” (Id.)
Plaintiff filed his initial complaint on July 27, 2016, alleging violations of the Family
Medical Leave Act of 1993 (FMLA), the American with Disabilities Act of 1990 (ADA), and the
New Jersey Law against Discrimination (NJLAD). [ECF No. 1]. Overall, Plaintiff alleges that his
termination was a pretext for unlawful discrimination because he was perceived as having a mental
disability that would impair his ability to work, and for the exercising of his right to family medical
leave under FMLA. (Id. ¶2 0). In the Second Amended Complaint, Plaintiff includes the following
Counts:
Count I:
Count II:
Count III:
Count IV:

Unlawful discrimination under FMLA
Unlawful discrimination under New Jersey Family Leave Act
(NJFLA)
Unlawful discrimination under the Rehabilitation Act, 29 U.S.C.
701 et seq. (RA)
Unlawful discrimination under NJLAD

§

On September 5, 2017, this Court dismissed Count I and II upon Plaintiff’s request. [ECF
No. 32). Defendant now moves for summary judgment on the remaining counts, Count III and
Count IV, for Plaintiff’s failure to establish a prima facie case, or prove that Defendant’s reason
for terminating him was a pretext. [ECF No. 36].
II.

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Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non
movant, and it is material if, under the substantive law, it would affect the outcome of the suit.
Anderson v. Liberly Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary
judgment, a district court may not make credibility determinations or engage in any weighing of
the evidence; instead, the non-moving party’s evidence “is to be believed and all justifiable
inferences are to be drawn in his favor.”

Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d

Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations.

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and pleadings

are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654,
657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to set forth specific
facts showing that there is a genuine issue for trial”). Moreover, only disputes over facts that might
affect the outcome of the lawsuit under governing law will preclude the entry of summary
judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in
favor of [the non-moving party], and making all credibility determinations in his favor “that no

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reasonable jury could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226
Fed. App’x. 222, 227 (3d Cir. 2007).

III.
Defendant argues that Plaintiff failed to establish a prima facie claim of disability and
discrimination under either NJLAD or the Rehabilitation Act4. (Def. Br, pg. 12). See Lopez v.
Lopez, 997 F. Supp.2d 256, 272 (D.N.J. 2014),
Both the ADA and RA bar an entity that receives federal funding.
.from
discriminating against an individual on account of that individual’s disability. See
McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d Cir. 1995). Similarly, the NJLAD
prohibits “any place of public accommodation” from refusing to any individual, on
account of inter alia, that individual’s disability, the right “to obtain all the
accommodations, advantages, facilities and privileges” of that public entity.
N.J.S.A. § 10:5-4.
.

.

Chin v. Rutgers, 2016 U.S. Dist. LEXIS 61438, *1516 (May 9, 2016). Discrimination claims
under NJLAD and the Rehabilitation Act follow the same analysis. See Lopez, 997 F. Supp.2d at
272 (“Discrimination claims pursuant to the LAD

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.

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follow the McDonnell Douglas burden-

shifting paradigm”); Berry v. Lombardi, 2005 U.S. Dist. LEXIS 24535, *28 (D.N.J. Oct. 13, 2005)
(“The rights and remedies under the Rehabilitation Act are the same as with the ADA.. Identical
.

standards [are] to be applied to both Acts.”); Chisoim

V.

McManimon, 275 F.3d 315, 324 n.9 (3d

Cir. 2001) (supporting that the standards for determining a violation of the RA and NJLAD are the
same as those under the ADA.)
The applicable framework is the McDonnell-Douglas burden shifting framework set forth
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later
clarified in Texas Dep’t of Cmly. Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary Honor

Defendant did not move to dismiss one count because only the other applied.
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Ctr. v. Hicks, 509 U.S. 502 (1993); see also Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486, 498

(3d Cir. 1999). The framework consists of three steps. First, a plaintiff must present sufficient
evidence to support a prima facie case of discrimination. Hicks, 509 U.S. at 506. Once the plaintiff
establishes a prima facie case, the burden of production then shifts to the defendant, who must
articulate a legitimate, nondiscriminatory reason for its actions. Id. at 507; Burdine, 450 U.S. at
254; McDonnell Douglas, 411 U.S. at 802.

If the defendant satisfies this burden, the reviewing court must proceed to the third step.
At this stage, the burden of production shifts back to the plaintiff who must come forward with
admissible evidence showing that the defendants” articulated, nondiscriminatory reasons were not
the true reasons for the adverse action, but merely a “pretext for discrimination.” Hicks, 509 U.S.
at 507-08; Burdine, 450 U.S. at 253.
Although the evidentiary burden shifts between the plaintiff and the defendants, the
“ultimate burden of persuading the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at 253. Here,
defendant argues Newbold (a co-employee) may have had discriminatory animus against Plaintiff,
but Amtrak did not
To establish a prima facie case, the plaintiff must show that (1) he is a member of a
protected class; (2) he is qualified for the position in question; (3) he suffered from an adverse
employment decision; and (4) the employer sought to or did fill the position with a similarly
qualified person who was not a member of the protected class.
Plaintiff, as part of the prima facie case, must show that he is “qualified as an individual
with a disability, or is perceived as having a disability, as defined by the statute.” Lopez, 997 F.

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Supp. 2d at 272. See also, McDonnell Douglas, 411 U.S. at 802.
Defendant argues that in this case, Plaintiff cannot demonstrate that he was either disabled or
“perceived as having a disability” by Amtrak. (Def. Br. pg. 13). To establish a perceived disability
claim under the NJLAD, “the plaintiff must show that the employer entertained misperceptions
about the plaintiff,.

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believing that the individual has a substantially limiting impairment that he

or she does not have.” Myers v. Ati. Health Sys., 2017 U.S. Dist. LEXIS 7884, *17 (Jan.20, 2017)
(citation omitted).
Plaintiff argues that he meets the criteria for disability because Amtrak perceived him as
suffering from a mental disability by way of his call to Operation RedBlock and his discussion
with a counsellor who alerted Amtrak Police (the alleged attempt to commit suicide) and then
terminated Plaintiffs employment under a pretext that he engaged in an act of violence at his
workplace. (P1. Opp. pg. 7). In support of this claim, Plaintiff alleges temporal proximity of the
dismissal process and his mental disability. That is, Newbold reported the threat to the Amtrak
Police (six weeks after the event) and disclosed Plaintiffs possible suicidal tendencies at the
workplace violence hearing.

(Id.) Considering Newbold’s delay in reporting, Amtrak’s actions

dramatically and quickly occurred after disclosure of Plaintiffs suicidal tendencies. (Newbold
Depo 13:22-14:7). At Plaintiffs deposition, he identified Amtrak generally, and more specifically
upper management and Semliatschenko as persons who discriminated against him. (Rollins Depo.
Ti 50:7-151:10.)

The Defendant’s argument that only a co-employee (Newbold) had

discriminatory animus and not Amtrak management is a fact question since Amtrak management

When applying the McDonnell-Douglas framework, the precise elements of the prima facie case vary based
on the context of the case and were not intended as rigid or unbendrng. Lynch v. Robertson, 2007 U.S. Dist. LEXIS
60835. at *2828 (W.D. Pa. Aug. 20, 2007) (citations omitted). The Third Circuit has indicated that the elements
of
the prima facie case are not universal and can be tailored to fit the specific context of the case. Id. at *28 (citations
omitted).
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instituted the dismissal process on workplace violence soon after management learned of
Plaintiffs psychological disability, and discussions with a counselor that Amtrak retained. Based
on the facts provided by the parties, one can plausibly argue that Newbold and Amtrak
management were motivated by discriminatory animus. Defendant received Newbold’s complaint
for an alleged threat that occurred weeks prior thereto, the morning after Plaintiff’s call to
Operation RedBlock. A jury may determine that the request for psychological services was the
motivation to seek Rollins’ dismissal. The question to be resolved at this juncture is whether
Defendant discriminated against Plaintiff “in permitting the discriminatory animus of one or more
of Plaintiffs co-workers to influence [management’s] decision to terminate Plaintiff.” Burlington,
55 F. Supp. 3d at 741. This is a triable issue of fact.
Thus, motion for summary judgment is denied.
ORDER
This matter, having been brought before the Court on Defendants’ motion for summary
judgment [ECF No. 36], and the Court having considered the briefs and submissions of the parties,
and having heard oral argument;
IT IS on this 8t1I day of September, 2018;
ORDERED that Defendant’s motion for summary judgment (ECF No. 36) is DENIED.

PETER G. SHERIDAN, U.S.D.J.

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