Necci v. Long Island Railroad Company
Filing
28
MEMORANDUM & ORDER granting 25 Motion for Summary Judgment; For the foregoing reasons, LIRR's summary judgment motion (D.E. 25) is GRANTED. The Clerk of the Court is directed to enter judgment accordingly and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/21/2019. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JANINE NECCI,
Plaintiff,
MEMORANDUM & ORDER
16-CV-3250(JS)(ARL)
-against–
LONG ISLAND RAILROAD COMPANY,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Marc Wietzke, Esq.
Flynn & Wietzke
1205 Franklin Avenue, Suite 370
Garden City, New York 11530
For Defendant:
Brian Kenneth Saltz, Esq.
Samuel Veytsman, Esq.
The Long Island Rail Road Company
Jamaica Station, Mail Code 1143
Jamaica, New York 11435
SEYBERT, District Judge:
Plaintiff Janine Necci (“Plaintiff”) filed this action
alleging that defendant Long Island Railroad Company (“LIRR”)
violated the employee-protection provision of the Federal Railroad
Safety Act (“FRSA”), 49 U.S.C. § 20109.
Presently pending before
the Court is LIRR’s motion for summary judgment.
D.E. 25.)
(LIRR’s Mot.,
For the following reasons, LIRR’s motion is GRANTED.
BACKGROUND
I.
Factual Background1
The following facts are drawn from LIRR’s Local Civil Rule 56.1
Statement, (LIRR’s 56.1 Stmt., D.E. 25-2); Plaintiff’s 56.1
Response (Pl.’s 56.1 Resp., D.E. 26-1, ¶¶ 1-59); and Plaintiff’s
1
A.
Plaintiff’s Disciplinary History
In
August
2005,
LIRR
Appearance Maintainer (“SAM”).
hired
Plaintiff
as
a
(LIRR’s 56.1 Stmt. ¶ 1.)
Station
In 2007,
she became a locomotive engineer, “responsible for the safe and
proper operation of LIRR trains.”
(LIRR’s 56.1 Stmt. ¶ 2.)
Between 2010 and 2012, LIRR disciplined Plaintiff for
five separate instances of misconduct in her duties as a locomotive
56.1 Counterstatement, (Pl.’s 56.1 Counterstmt., D.E. 26-1,
¶¶ 60-143). At points in Plaintiff’s 56.1 Response, she states
that she “does not have information to either deny or admit
[LIRR’s] statement” of fact or “does not have personal knowledge
of” facts. (E.g., Pl.’s 56.1 Resp. ¶¶ 18-19.) In these
instances, the Court deems the correspondingly numbered
paragraphs from LIRR’s 56.1 Statement to be admitted. See Local
Civ. R. 56.1(c)-(d).
Additionally, Plaintiff provides that “[i]n the interest of
efficiency,” she did not include a statement of facts in her
Opposition. (Pl.’s Opp., D.E. 26, at 3.) Instead, she purports
to “incorporate[ ] by reference the entirety of” her 56.1
Response and Counterstatement as well as “the underlying
affidavits and their exhibits.” (Pl.’s Opp. at 3.) While the
Court will consider the facts in her 56.1 Response and
Counterstatement, as well as additional facts in her Opposition
that are supported by citations to evidence, the Court will not
consider any facts located exclusively in exhibits and
affidavits, which exceed 1,100 pages of material. See Local
Civil Rule 56.1.
Moreover, Plaintiff states that “to make particular arguments,”
she incorporated into her Opposition some “specific points” that
are “not intended to be exclusionary.” (Pl.’s Opp. at 3.) The
Court notes that Plaintiff filed a fourteen-page brief, and
under the undersigned’s individual rules, she was entitled to an
additional eleven pages of briefing. To the extent Plaintiff
provided only examples of the facts and arguments in her favor,
the Court will not make Plaintiff’s unbriefed arguments for her.
2
engineer.2
(LIRR’s 56.1 Stmt. ¶¶ 3-7.)
For example, LIRR charged
her with violating train operating rules and operating her train
at improper speeds on July 27, 2011, resulting in unnecessary train
delay.
(LIRR’s 56.1 Stmt. ¶ 4.)
At her deposition, Plaintiff
testified that she disagreed with several of the charges.
(E.g.,
Pl.’s Dep., Veytsman Decl. Ex. D, D.E. 25-7, 30:12-16.) Each time,
however, she pled guilty to the disciplinary charge, waived her
trial and appeal rights, and accepted a penalty of suspension.
(LIRR’s 56.1 Stmt. ¶¶ 3-7.)
Her four sets of charges yielded
progressively longer suspensions of twenty days, then thirty-five
days, then fifty days, then sixty days.
(LIRR’s 56.1 Stmt. ¶ 8.)
Plaintiff’s Complaint relates to two separate charges:
one issued in 2013 for Plaintiff’s work as a locomotive engineer,
and the other issued in 2016 for Plaintiff’s work as a SAM.
B.
The 2013 Incident
On June 5, 2013, Plaintiff operated LIRR Train 2716 on
a trip from Jamaica Station to Montauk, and the train arrived in
Montauk
more
than
fifty
minutes
late
(the
“2013
Incident”).
(LIRR’s 56.1 Stmt. ¶¶ 10-11; Pl.’s 56.1 Resp. ¶ 11.)
On June 14,
2013, LIRR served Plaintiff with charges for improper performance
of
duty,
alleging
that
during
the
June 5,
2013
trip,
she
Two of the incidents were addressed in a single charge, so
there were four sets of charges for the five incidents. (LIRR’s
56.1 Stmt. ¶¶ 4-5.)
2
3
(1) “unnecessarily inspected the entire consist, delaying the
departure of Train 2716 from Jamaica,” (2) “failed to comply with
approach and medium clear signals as [she] approached Babylon,”
(3) “operated
at
an
unnecessary
protracted
speed”
while
approaching Bay Shore Station and Islip Station, and (4) “failed
to operate Train 2716 in accordance with the speed displayed on
the Cab Signal Indicator” while approaching Patchogue, all of which
“resulted
in
unnecessary
running
lags
which
contributed to the delay of [T]rain 2716.”
significantly
(LIRR’s 56.1 Stmt.
¶ 12; Notice of Investigation, Becker Decl. Ex. F, D.E. 25-19.)
1.
Facts
On June 5, 2013, Plaintiff was the locomotive engineer
on Train 2716.
(Pl.’s 56.1 Counterstmt. ¶¶ 77-78.)
She and her
crew took control of the train from another crew at a secondary
track
in
a
train
Counterstmt. ¶ 78.)
yard
near
Jamaica
Station.
(Pl.’s
56.1
Upon taking the train, Plaintiff inspected
the “entire consist,” or the entire train.
(Pl.’s Dep. 54:11-19.)
For example, Plaintiff inspected both the lead, east end and tail,
west end of the eastbound train, including the “markers”--red,
illuminated lights near the back of the train.
16, 60:18-23.)
(Pl.’s Dep. 58:12-
Additionally, according to LIRR’s Superintendent
of Engine Service Bret Becker, Plaintiff inspected all the train’s
jumper cables and “went down the entire consist to make sure that
everything was secured properly from one end to the other.”
4
(LIRR’s 56.1 Stmt. ¶ 19; Becker Dep., Wietzke Aff. Ex. 2, D.E. 264, 83:3-19; Becker Decl., D.E. 25-13, ¶ 2.)
Becker testified that there was no reason for Plaintiff
to have inspected the entire consist of Train 2716.
(Becker Dep.
86:9-15.)
Similarly, according to Thomas McCaffrey, Road Foreman
of
Engines
at
LIRR,
Plaintiff’s
inspection
was
unnecessary.
(McCaffrey Dep., Wietzke Aff. Ex. 4, D.E. 26-6, 5:10-15, 60:1024.)
He testified that Plaintiff was required to inspect the
exterior
of
the
lead
locomotive.
(McCaffrey
Dep.
62:2-7.)
However, while an exterior inspection of the rear car, or “cab
car,” was required, “it shouldn’t have been done by the locomotive
engineer,” Plaintiff.
(McCaffrey Dep. 62:8-63:11.)
Further, he
believed her “unnecessar[y] inspect[ion] included the following:
“she got up on the cab car, she got into the cab car, she looked
at the blue sheet, she looked at the certification, she looked at
handle
positions,
unnecessary.”
she
looked
at
seals,
and
that
was
all
(McCaffrey Dep. 60:25-61:8.)
The testimony of LIRR’s Lead Road Foreman of Engines,
Robert Kerr, accords with Becker’s and McCaffrey’s.
Wietzke Aff. Ex. 5, D.E. 26-7, 5:2-3.)
the
circumstances,
Plaintiff
was
(Kerr Dep.,
According to Kerr, under
“responsible
to
check
the
headlights on the leading end of the equipment, the east end. . . .
The headlight would be the only thing that we would be checking on
5
the
exterior
of
the
secondary track.”
equipment
taking
over
the
(Kerr Dep. 35:12-36:7.)
train
on
the
He provided that
Plaintiff, however, “began a locomotive inspection at the west end
of the train.”
(Kerr Dep. 32:13-21.)
Kerr attributed four to
five minutes of delay to Plaintiff’s inspection. (Kerr Dep. 44:1216.)
Plaintiff
denies
that
locomotive
engineers
responsible for inspecting the backs of trains.
¶ 9.)
are
not
(Pl.’s 56.1 Resp.
She cites McCaffrey’s testimony that upon taking a train
from another crew, the new crew must perform brake and departure
tests, inspect the locomotive, and check components that need to
be sealed.
21.)
the
(Pl.’s 56.1 Resp. ¶ 9; McCaffrey Dep. 37:16-25, 38:10-
Additionally, the train crew is required to “make sure of
proper
position
[a]
blue
(McCaffrey Dep. 98:15-21.)
plug”
on
the
train’s
cab
car.
Plaintiff also cites the testimony of
Train 2716’s Conductor, Adam Papadoulias, that “marker lights” on
both ends of the train--including the rear--must be inspected
before the train departs. (Pl.’s 56.1 Resp. ¶ 9; Papadoulias Dep.,
Wietzke
Aff.
Ex.
3,
D.E.
26-5,
5:16-18,
12:3-13.)
In
her
Counterstatement, Plaintiff also discusses two pages from LIRR’s
Train Handling Equipment Manual, or “THEM,” which provide that
engineers must “inspect, test and/or observe . . . [that] marker
lights [are] functioning properly.”
6
(Pl.’s 56.1 Counterstmt.
¶¶ 83-84; McCaffrey Dep. 92:23-25; THEM Diesel Passenger App’x
Pages 8 and 9, Wietzke Aff. Ex. 10, D.E. 26-12, at 8.)
Apart from the “unwarranted inspection of the entire
consist,” LIRR charged Plaintiff with failing “to comply with
approach and medium clear signals as [she] approached Babylon,”
“operat[ing] at an unnecessary protracted speed” while approaching
Bay Shore Station and Islip Station, and failing “to operate Train
2716 in accordance with the speed displayed on the Cab Signal
Indicator”
while
Investigation.)
approaching
Patchogue.
(See
Notice
of
According to McCaffrey, her failure to comply
with the “medium clear signal” approaching Babylon caused a twominute delay.
(McCaffrey Dep. 66:20-67:4.)
He also testified
that the train should have approached Bay Shore and Islip Stations
at thirty to forty miles per hour before stopping, but that
Plaintiff was operating the train at a speed of less than ten miles
per hour, resulting in delays of less than a minute at each
approach.
(McCaffrey Dep. 53:4-54:19, 67:16-70:6.)
He found that
the delay was “an indication of improper train handling because
the stop was so slow.”
(McCaffrey Dep. 71:14-20.)
Finally, he
believed that her failure to operate the train in accordance with
the speed displayed on the Cab Signal Indicator delayed the trip
by less than a minute.
(McCaffrey Dep. 46:13-48:5, 71:24-72:11,
73:4-11.)
7
Plaintiff highlights several other factors that delayed
Train 2716.
For instance, Plaintiff testified that the previous
crew turned the train over to her crew behind schedule.
Dep.
116:15-117:2.)
Additionally,
Plaintiff
inspected
(Pl.’s
Train
2716’s brake slip, which was not completed as required by federal
regulations.
(Pl.’s 56.1 Counterstmt. ¶¶ 86-90, 100-02, 104.)
Because the brake slip was incomplete, the train could not depart
until LIRR’s Movement Bureau cleared the crew to leave the station.
(Pl.’s 56.1 Counterstmt. ¶ 90; Pl.’s Dep. 21:17-18, 165:3-23.)
Plaintiff testified to several other issues delaying the train,
including incorrect train orders, equipment problems, the issuance
of a restricted speed, and children playing at a bridge near the
track.
(Pl.’s 56.1 Counterstmt. ¶¶ 91, 105-07, 109.)
Kerr agreed that Plaintiff was not responsible for all
of Train 2716’s delays.
(Kerr Dep. 38:17-21.)
At LIRR’s internal
hearing on these charges, discussed below, McCaffrey stated that
Plaintiff was responsible for approximately eighteen minutes of
the fifty-one-minute delay.
(June 2013 Charge Hr’g Tr., Wietzke
Aff. Ex. 8, D.E. 26-10, at 218.)
James Rod Brooks, LIRR’s Chief
Transportation Officer, testified that Plaintiff delayed the train
by five minutes or less.
(LIRR’s 56.1 Stmt. ¶ 27; Brooks Dep.,
Wietzke Aff. Ex. 6, D.E. 26-8, 41:21-42:6.)
2.
Proceedings
a.
General Procedures
8
According to Brooks and Rose Koven of LIRR’s Trial
Offices in the Labor Relations Department, after LIRR issues
disciplinary charges, an LIRR hearing officer takes a “statement
of facts”--a preliminary interview with a potential witness or
party where the hearing officer asks questions and tries to gather
facts about the incident.
(Koven Dep., Wietzke Aff. Ex. 7, D.E.
26-9, 22:10-24; see Brooks Dep. 20:4-17.)
A union representative
usually attends these interviews “to protect the interest of the
organization and employee.”
20:8-10.)
(Koven Dep. 24:13-18; see Brooks Dep.
LIRR records and transcribes the statement of facts.3
(Koven Dep. 26:7-11.)
The charging official then decides whether
there is a basis to issue a Notice of Investigation.
20:15-25, 21:6-23.)
(Brooks Dep.
After issuing a Notice of Investigation, LIRR
schedules a trial or investigation.
(Brooks Dep. 21:6-20.)
Before trial begins, the hearing officer investigates
the incident and gathers information for use at trial, such as
“[a]pplicable
rules,
regulations,
(Koven Dep. 15:15-16:13.)
surveillance,
[and]
maps.”
He or she collects information from
different parties, including the employee, the union, LIRR and
union witnesses, the charging officer, the charging department,
and LIRR departments with material information. (Koven Dep. 16:1917:2, 18:9-19:21.)
The hearing officer provides that information
Koven testified that she believes the audio recordings are
discarded after being transcribed. (Koven Dep. 26:12-16.)
3
9
to the union during trial, but not before trial begins.
(Koven
Dep. 17:3-17.)
At trial, LIRR and the union have the right to call
witnesses, but the hearing officer decides what evidence will be
admitted.
(Brooks Dep. 21:18-23.)
Both the hearing officer and
the accused’s union representative question witnesses.
(See,
e.g., June 2013 Charge Hr’g Tr. at 2, 18.)
After the trial, an LIRR reviewing officer reviews the
transcript and exhibits to determine whether LIRR proved the
charges.
(Becker Dep. 76:5-20; see Brooks Dep. 22:3-23:14; Koven
Dep. 47:19-48:5.)
The accused may appeal a finding of guilt to an
LIRR appeal officer.
b.
(See Brooks Dep. 27:13-17.)
LIRR Hearing and Decision
Over the course of eight days in July and August 2013,
Koven, then a Manager of LIRR’s Trial Offices, conducted a hearing
on
Plaintiff’s
June 2013
June 2013
Charge
Hr’g
charges.
Tr.
at
1.)
(LIRR’s
56.1
Plaintiff
Stmt.
and
her
¶ 14;
union
representative were present for all hearing dates, and they called
witnesses, took testimony, presented documentary evidence, and
made closing arguments.
(LIRR’s 56.1 Stmt. ¶ 16.)
According to
Koven, she conducted the hearing in the same way she conducts all
disciplinary hearings, and she afforded Plaintiff as much or more
leeway to introduce witnesses and other evidence as she has for
other accused employees.
(Koven Decl., D.E. 25-10, ¶¶ 7-8, 10.)
10
Plaintiff disputes this, testifying that Koven denied her request
to call and question Becker and a “block operator” who handed her
train orders during the June 5, 2013 trip.
(Pl.’s Dep. 90:18-
92:14.)
After the hearing, LIRR presented the full record-including
a
390-page,
single-spaced
transcript
and
exhibits--to Becker for review and adjudication.
Stmt. ¶ 19.)
fifty-two
(LIRR’s 56.1
Becker found that Plaintiff was guilty of all
charges.
(LIRR’s 56.1 Stmt. ¶ 21.)
nineteen
years
employees
to
of
experience
operate
Becker, who had approximately
operating
locomotives,
and
locomotives,
supervising
training
locomotive
engineers, concluded that Plaintiff’s pattern of improper train
performance
made
her
an
unfit
(LIRR’s 56.1 Stmt. ¶¶ 20, 22.)
and
dangerous
train
operator.
Based on the 2013 Incident and her
prior disciplinary record, Becker found that it would be unsafe
and irresponsible to allow her to continue to operate trains.
(LIRR’s 56.1 Stmt. ¶ 22; Pl.’s 56.1 Resp. ¶ 22; Becker Dep. 137:1225.)
Becker chose to disqualify her from the locomotive engineer
position, though he could have terminated her employment with LIRR.
(LIRR’s
56.1
Stmt.
¶ 23.)
On
August 28,
2013,
LIRR
issued
Plaintiff a Notice of Discipline reflecting Becker’s decision, and
she
was
disqualified
from
(LIRR’s 56.1 Stmt. ¶ 24.)
a SAM.
the
locomotive
engineer
position.
She then continued working for LIRR as
(LIRR’s 56.1 Stmt. ¶ 26.)
11
Plaintiff
process.
118.)
raises
several
issues
with
her
hearing
(See Pl.’s Opp. at 9-10; Pl.’s 56.1 Counterstmt. ¶¶ 115,
First, testimony at the hearing is not provided under oath.
Second, Becker, the reviewing officer who found Plaintiff guilty,
testified that he relies on evidence in the record from trial, as
well
as
information
from
pretrial
investigations
such
as
statements of fact, in deciding whether LIRR has proven charges.
(Becker Dep. 81:23-82:20.)
Third, Becker testified that before
LIRR issued the Notice of Investigation against Plaintiff, he spoke
about the charges with McCaffrey, a lead investigator on the case.
(Becker Dep. 134:2-7.)
He asked McCaffrey to prepare an “event
recorder download analysis” on Train 2716.
18.)
(Becker Dep. 134:8-
Fourth, before LIRR issued the Notice of Investigation,
Becker spoke to Kerr about the overall operation of Train 2716 on
June 5, 2013, and he reviewed relevant statements of fact with
him. (Becker Dep. 134:23-135:14.) Fifth, before the trial, Becker
spoke
to
Koven
about
the
witnesses
and
evidence
LIRR
would
introduce at trial and discussed the proposed discipline level
with Koven and, possibly, Kerr.
c.
In
(Becker Dep. 135:15-136:18.)
LIRR Appeal
September 2013,
Plaintiff
appealed
her
disqualification to LIRR Chief Transportation Officer Brooks.
(LIRR’s 56.1 Stmt. ¶ 27.)
At that time, Brooks had approximately
twenty-three years of experience operating locomotives, training
12
others
to
operate
engineers.
locomotives,
and
(LIRR’s 56.1 Stmt. ¶ 29.)
supervising
locomotive
He reviewed Plaintiff’s
hearing record and her prior disciplinary record and concluded
that she was guilty of all charges stemming from the 2013 Incident.
(LIRR’s 56.1 Stmt. ¶¶ 28, 30.)
He found that her pattern of
improper train performance made her an unfit and dangerous train
operator,
and
he
concluded
that
it
would
be
unsafe
and
irresponsible for LIRR to allow her to continue to operate trains.
(LIRR’s 56.1 Stmt. ¶ 31.) Accordingly, he upheld Becker’s ruling.4
(LIRR’s 56.1 Stmt. ¶ 31.)
On October 3, 2013, Brooks issued a
letter to Plaintiff’s union explaining his decision.
(LIRR’s 56.1
Stmt. ¶ 32.)
d.
On
initiated
a
Appeal to National Railroad Adjustment Board
February 6,
second-level
2014,
Plaintiff,
appeal
with
the
through
her
National
union,
Railroad
Adjustment Board of the National Mediation Board (“NRAB”), First
Division.5
(LIRR’s 56.1 Stmt. ¶ 33.)
She submitted the record of
the hearing before Koven, as well as extensive briefing, to the
Plaintiff cites Brooks’ testimony that while he could not
remember whether this was true of Plaintiff’s appeal, reviewing
officer Becker generally “sit[s] in on the review” and the two
discuss the case before Brooks issues his findings. (Pl.’s 56.1
Counterstmt. ¶ 118.l.i; Brooks Dep. 49:13-50:11.)
4
The NRAB is “[a] grievance arbitration tribunal authorized
under the Railway Labor Act [ ] to arbitrate any minor dispute
in the railroad industry.” National Railroad Adjustment Board
(NRAB), Practical Law Glossary Item 9-517-3034.
5
13
NRAB.
(LIRR’s 56.1 Stmt. ¶ 34.)
On September 18, 2017, her union
argued the appeal before the NRAB in Chicago.
¶ 34.)
(LIRR’s 56.1 Stmt.
On February 20, 2018, the NRAB found that LIRR carried its
burden in establishing Plaintiff’s misconduct, and it upheld her
disqualification.
(LIRR’s
56.1
Stmt.
Veytsman Decl. Ex. A, D.E. 25-4, at 6.)
¶ 35;
NRAB
Decision,
The NRAB also found that
there were no fatal procedural errors in the disciplinary process
and that sufficient evidence supported each of the charges.
(NRAB
Decision at 6.)
C.
The February 11, 2016 Incident
The
other
disciplinary
action
at
issue
stems
from
Plaintiff’s work as a SAM, after she had been disqualified from
the locomotive engineer position.
LIRR accused Plaintiff of
disobeying and refusing to follow direct orders to vacuum and roll
up floormats in Jamaica Terminal Station on February 11, 2016 (the
“2016 Incident”).
(LIRR’s 56.1 Stmt. ¶¶ 39, 44.)
On February 19,
2016, LIRR served Plaintiff with disciplinary charges for conduct
unbecoming an employee, defiance to an LIRR manager, and fail[ure]
to comply with an LIRR manager’s instruction.
(LIRR’s 56.1 Stmt.
¶ 44.)
1.
Facts
On February 11, 2016, Plaintiff’s supervisors directed
her to vacuum mats in the lobby area at Jamaica Terminal Station.
(LIRR’s 56.1 Stmt. ¶ 39.)
According to Timothy Hughes, LIRR’s
14
Director of Ticket Selling and Technology, LIRR SAMs routinely use
electrical sockets at LIRR stations to vacuum both wet and dry
floor mats.
(Hughes Decl., D.E. 25-23, ¶¶ 4, 9.)
However, citing
perceived legal and safety issues with her use of outlets in the
public lobby, Plaintiff refused to vacuum the mats.
(LIRR’s 56.1
Stmt. ¶ 40; Pl.’s 56.1 Resp. ¶ 40.)
Regarding legality, Plaintiff testified that she had
only ever vacuumed using outlets in private areas, she believed it
was illegal to use outlets in public areas, and she had never seen
another cleaner use outlets in Jamaica Terminal Station’s public
lobby.
(Pl.’s
Dep.
152:11-153:11,
156:2-157:1.)
Concerning
safety, she testified that she did not know whether the outlets
“functioned very well,” and she did not know whether using such an
outlet would “possibly cause a fire or possibly [ ] cause the
electric to shut down in the station.”
(Pl.’s Dep. 152:22-153:7.)
Additionally, she testified that after the date of the incident,
she discovered that the vacuum she was given was “not rated for
vacuuming wet rugs,” so she “could have been electrocuted.”6
(Pl.’s Dep. 153:8-15.)
Plaintiff avers that the floormats were wet, but the testimony
she cites does not contain that proposition. (See Pl.’s 56.1
Resp. ¶ 43; Pl.’s Dep. 153:3-11.) However, granting Plaintiff
every favorable factual inference, the Court assumes that the
floormats were wet during the 2016 Incident.
6
15
After she refused to vacuum the floormats, Plaintiff’s
supervisors instructed her to roll them up and put them away-according to Hughes, a task that SAMs routinely perform.
56.1
Stmt.
¶ 41;
Pl.’s
Dep.
158:8-19;
Initially, Plaintiff did not comply.
Hughes
(LIRR’s
Decl.
¶ 9.)
(LIRR’s 56.1 Stmt. ¶ 42;
Pl.’s Dep. 159:9-13.) She testified that she asked her supervisors
how heavy the mats were, told them that she had never performed
the task, and said that she did not know where the mats were stored
or the procedure for transporting them to the storage site. (Pl.’s
Dep. 159:13-17.)
she
was
not
Plaintiff also testified that she believed that
required
to
do
the
work
responsibility of a “heavy duty” SAM crew.
150:23.)
She
acknowledged,
however,
incorrect.
because
it
was
the
(Pl.’s Dep. 149:15-
that
this
belief
was
(Pl.’s Dep. 150:15-151:1.)
According to Plaintiff, one of her supervisors then
asked foreman Anthony Cabrera to show her how to roll the mats.
(Pl.’s Dep. 154:9, 159:23-160:6.)
She did not perform the task,
however, because his instruction did not address her concerns that
the mats were heavy and that she did not know where or how to move
them.
(See Pl.’s Dep. 159:23-160:13.)
Plaintiff testified that
Cabrera then called another SAM, Jay Kessler, to assist her.
(Pl.’s Dep. 160:10-13.) At that point, Plaintiff “stated she would
no longer take part in the conversation and walked away” because
she was waiting for her union representative to arrive.
16
(Pl.’s
Dep. 160:22-161:5.)
However, she testified that while she was
waiting, she noticed that Kessler “had already put a lot of the
rugs into the barrel.”
(Pl.’s Dep. 161:5-7.)
She walked to where
he was working, put one rug into the barrel, then accompanied him
downstairs where he showed her the mats’ storage location.
(Pl.’s
Dep. 161:7-11.)
Plaintiff testified that next, one of the supervisors-Assistant Terminal Manager John Persico--asked her to speak with
him and Cabrera.
(Pl.’s Dep. 148:7-8; Pl.’s Dep. 161:11-15.)
According to Plaintiff, she refused because she was still waiting
for her union representative.
(Pl.’s Dep. 161:11-15.)
Persico
followed her to the lobby exit and again asked her to come to his
office, but she walked away and resumed cleaning.
(Pl.’s Dep.
161:16-24.)
2.
Proceedings
a. LIRR Hearing and Decision
On April 11 and May 18, 2016, Koven, then the Senior
Manager of LIRR’s Trial Offices, conducted a hearing on Plaintiff’s
February 2016 charges.
(LIRR’s 56.1 Stmt. ¶ 45; Feb. 2016 Charge
Hr’g Tr., Koven Decl. Ex. B, D.E. 25-12, at 1.)
Plaintiff and her
union representative were present for both hearing dates, and they
called witnesses, took testimony, presented documentary evidence,
and made closing arguments.
(LIRR’s 56.1 Stmt. ¶ 47.)
In her
declaration, Koven provides that she conducted the hearing in the
17
same way she conducts all disciplinary hearings and that she
allowed Plaintiff as much or more leeway to introduce witnesses
and evidence as she has for any other accused employee.
Decl. ¶ 16.)
(Koven
However, Plaintiff points out that Koven did not
allow Plaintiff to ask certain questions, including forbidding her
from asking Persico the question “do you think that vacuums can
cause fires?”
(Pl.’s 56.1 Resp. ¶ 46; Feb. 2016 Charge Hr’g Tr.
at 52.)
LIRR presented the full record of the hearing, including
a 128-page, single-spaced transcript and thirty-one exhibits, to
Hughes for review and adjudication.
(LIRR’s 56.1 Stmt. ¶ 49.)
At
the time, Hughes had approximately twenty-six years of experience
working in LIRR’s Stations Department, including as a SAM. (LIRR’s
56.1 Stmt. ¶ 50.)
He had never met Plaintiff and had no knowledge
of the circumstances surrounding her disqualification from the
locomotive engineer position.
(LIRR’s 56.1 Stmt. ¶ 50.)
He found
her guilty of all charges, concluding that she willfully disobeyed
and refused to follow multiple direct orders to perform her job.
(LIRR’s 56.1 Stmt. ¶ 51.).
of
Discipline
terminating
On June 1, 2016, LIRR issued a Notice
Plaintiff’s
employment
with
(LIRR’s 56.1 Stmt. ¶ 52.)
b.
Appeal to National Mediation Board
18
LIRR.
In October 2016, Plaintiff, through her union, appealed
her termination to the National Mediation Board (“NMB”).7
56.1
Stmt.
¶ 53.)
Plaintiff’s
union
selected
neutral
Arbitrator Michael Capone to hear and decide the appeal.
56.1 Stmt. ¶ 54.)
(LIRR’s
NMB
(LIRR’s
In addition to submitting extensive briefing
and the record of the hearing before Koven, Plaintiff’s union
presented oral argument in support of the appeal.
Stmt. ¶ 55.)
(LIRR’s 56.1
On November 29, 2017, Capone issued the NMB’s
decision upholding LIRR’s finding that Plaintiff was guilty of all
charges.
(LIRR’s 56.1 Stmt. ¶ 56.)
Specifically, Capone found
that Plaintiff “engaged in conduct unbecoming an employee” and
that her affirmative defenses concerning legality, safety, and
whether heavy duty SAMs were supposed to perform the work were not
supported by sufficient evidence.
Ex. B, D.E. 25-5, at 6-9.)
(NMB Decision, Veytsman Decl.
However, he found that the penalty of
termination was excessive and that Plaintiff “should be afforded
a last chance to keep her job,” so he “restored [her] to service
without back pay for all time out of service.”
(LIRR’s 56.1 Stmt.
¶ 57.)
The NMB is “[a]n independent federal agency charged with
administering the Railway Labor Act (RLA). The NMB’s primary
duties [include, among other things] . . . [m]ediating
collective bargaining disputes, also known under the RLA as
minor disputes.” National Mediation Board (NMB), Practical Law
Glossary Item 6-517-3021.
7
19
Effective December 29, 2017, LIRR reinstated Plaintiff
to the SAM position.
(LIRR’s 56.1 Stmt. ¶ 58.)
Within a week of
being reinstated, Plaintiff bid for and received the position of
Ticket
Clerk-Customer
Service,
which
provided
a
percent pay increase over her earnings as a SAM.
twenty-four
(LIRR’s 56.1
Stmt. ¶ 59.)
II.
Procedural History
Plaintiff
commenced
this
action
on
June 17,
2016,
alleging that she engaged in the following protected activities
under the FRSA: (1) performing a safety inspection on June 5, 2013
and reporting “safety inspection certifications that were not in
compliance
with
FRA
[(Federal
Railroad
Administration)]
requirements”; (2) reporting that “train orders were not properly
prepared, presenting a separate safety issue”; and (3) slowing
“her train in response to a safety hazard reported to her and
report[ing] back that [LIRR] had improperly characterized where
the safety hazard was.”
(Compl., D.E. 1, ¶ 10.)
She claims that
LIRR “took adverse or unfavorable actions against [her] in whole
or
in
part
due
to
her
protected
activities
when
it
charged
[P]laintiff with company rule violations in connection therewith
and denied her promotion opportunities as a result of the protected
activity, as well as demoting and ultimately terminating her.”
(Compl. ¶ 12.)
20
Plaintiff purports to assert two separate causes of
action, but her Complaint primarily discusses the 2013 Incident
(and associated charges) and discusses the 2016 Incident only
insofar
as
it
resulted
terminat[ed].”
in
her
employment
(See generally Compl.)
being
“ultimately
Accordingly, the Court
construes the Complaint to allege that LIRR retaliated against her
by decertifying her as a locomotive engineer after the 2013
Incident and firing her after the 2016 Incident.
For relief,
Plaintiff seeks “expungement of all references to disciplinary
action related to the incident of March 24, 2010”8; lost benefits
and
wages,
with
interest;
compensatory
damages
for
economic
losses; compensatory damages for mental anguish and emotional
distress;
punitive
damages;
and
“special
damages
for
all
litigation costs including expert witness fees and attorney fees.”
(Compl. at 4.)
She also demands judgment against LIRR of $450,000
on the first cause of action and $450,000 on the second cause of
action.
(Compl. at 4.)
LIRR answered the Complaint on July 15, 2016.
D.E. 6.)
(Answer,
On October 3, 2017, this case was stayed pending the
resolution of the NRAB and NMB arbitrations, discussed above, and
The Court assumes that Plaintiff meant “the incident of June 5,
2013,” since the parties do not discuss any incidents that
occurred on March 24, 2010.
8
21
it was reopened on February 26, 2018.
(See Oct. 3, 2017 Elec.
Order; Feb. 26, 2018 Elec. Order.)
On June 28, 2018, LIRR filed a fully briefed motion for
summary judgment.
(LIRR Br., D.E. 25-1; Pl.’s Opp.; LIRR Reply,
D.E. 27.)
DISCUSSION
I.
Legal Standard
Summary
judgment
will
be
granted
where
the
movant
demonstrates that there is “no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
A genuine factual issue exists where “the
evidence is such that a reasonable jury could return a verdict for
the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed 2d 202 (1986).
In
determining whether an award of summary judgment is appropriate,
the Court considers the “pleadings, deposition testimony, answers
to interrogatories and admissions on file, together with any other
firsthand information including but not limited to affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011).
The movant bears the burden of establishing that there
are no genuine issues of material fact.
Gallo v. Prudential
Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).
Once
the movant makes such a showing, the non-movant must proffer
specific facts demonstrating “a genuine issue for trial.”
22
Giglio
v. Buonnadonna Shoprite LLC, No. 06-CV-5191, 2009 WL 3150431, at
*4 (E.D.N.Y. Sept. 25, 2009) (internal quotation marks and citation
omitted).
Conclusory allegations or denials will not defeat
summary judgment.
Id.
However, in reviewing the summary judgment
record, “‘the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.’”
Sheet Metal Workers’
Nat’l Pension Fund v. Vadaris Tech. Inc., No. 13-CV-5286, 2015 WL
6449420, at *2 (E.D.N.Y. Oct. 23, 2015) (quoting McLee v. Chrysler
Corp., 109 F.3d 130, 134 (2d Cir. 1997)).
II.
FRSA Retaliation
The FRSA’s purpose is “to promote safety in every area
of railroad operations and reduce railroad-related accidents and
incidents.”
FRSA
49 U.S.C. § 20101.
prohibits
employees
who
railroad
engage
in
To facilitate that purpose, the
carriers
certain
from
retaliating
safety-related
against
protected
activities. See id. § 20109. As recently summarized by the Second
Circuit,
the
employee-protections
section
of
the
49 U.S.C. § 20109,
prohibits covered employers from discharging,
demoting, or in any other way discriminating
against employees who engage in certain
protected
activities.
Broadly,
the
substantive provisions of § 20109(a)[ ] [and]
23
FRSA,
(b)9 . . . bar
who:
retaliation
against
workers
• report wrongdoing, §§ 20109(a)(1),
(a)(3)–(7), (b)(1)(A);
• refuse to violate federal law,
§ 20109(a)(2); [or]
• decline to work in unsafe conditions,
§§ 20109(b)(1)(B)–(C) . . . .
Metro-N. Commuter R.R. Co. v. U.S. States Dep’t of Labor, 886
F.3d 97, 106 (2d Cir. 2018); see also 49 U.S.C. § 20109(d)(3)
(creating private right of action).
FRSA retaliation claims are evaluated under the burdenshifting test of the Wendell H. Ford Aviation Investment and Reform
Act
for
the
21st
Century,
49 U.S.C. § 42121(b)(2)(B).
49 U.S.C. § 20109(d)(2)(A)(i); see Tompkins v. Metro-N. Commuter
R.R., No. 16-CV-9920, 2018 WL 4573008, at *5 (S.D.N.Y. Sept. 24,
2018), appeal filed, 2d Cir. Case No. 18-3174.
the
“plaintiff
must
first
make
a
prima
Under this test,
facie
showing
by
a
preponderance of the evidence ‘that (1) [the plaintiff] engaged in
protected activity; (2) the employer knew that [the plaintiff]
engaged in the protected activity; (3) [the plaintiff] suffered an
unfavorable personnel action; and (4) the protected activity was
a contributing factor in the unfavorable action.’”
Tompkins, 2018
WL 4573008, at *5 (alterations in original) (quoting Hernandez v.
Plaintiff’s Complaint does not specify which subsections of the
FRSA LIRR allegedly violated, but in her Opposition, she
clarifies that she believes subsections (a)(1), (a)(2), and (b)
apply. (Pl.’s Opp. at 3-4.)
9
24
Metro-North Commuter R.R., 74 F. Supp. 3d 576, 579 (S.D.N.Y.
2015)).
If the plaintiff makes the required showing, “‘the burden
shifts to the employer to demonstrate by clear and convincing
evidence that the employer would have taken the same personnel
action in the absence of the protected activity.’”
Id. (quoting
Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659, 663
(S.D.N.Y. 2017), appeal filed, 2d Cir. Case No. 17-2725).
A.
The 2013 Incident
As discussed, Plaintiff alleges in her Complaint that
she engaged in three protected activities on June 5, 2013.
Compl. ¶ 10.)
slips,
she
inspecting
(See
First, referring to her report of defective brake
avers
Train
that
she
2716
engaged
and
in
protected
reporting
“safety
activity
by
inspection
certifications that were not in compliance with FRA requirements.”
(Compl.
¶ 10;
see
Pl.’s
56.1
Counterstmt.
¶¶ 86-90,
100-04.)
Second, referring to her receipt of incorrect “Form L train
orders,” she claims that “[s]he further engaged in protected
activity when she reported that the train orders were not properly
prepared.”
(Compl. ¶ 10; see Pl.’s 56.1 Counterstmt. ¶ 91.a;
Papadoulias Dep. 24:14-26:6.)
Third, referring to an ambiguity in
the reported location of a “bridge strike” and restricted-speed
zone, Plaintiff alleges that “she engaged in protected activity
when she slowed her train in response to a safety hazard reported
to her and reported back that [LIRR] had improperly characterized
25
where the safety hazard was.”
(Compl. ¶ 10; see Pl.’s 56.1
Counterstmt. ¶¶ 106-07, 109; Papadoulias Dep. 30:13-32:12.)
LIRR
does not dispute that these activities are protected under the
FRSA.10
(See LIRR Br. at 11-12.)
Thus, there is no dispute that
Plaintiff has established the first element of her prima facie
case.
Additionally, LIRR does not dispute that it knew she
engaged in those activities and that she suffered an unfavorable
personnel action when she was decertified as a locomotive engineer-the second and third elements of her prima facie case.
(LIRR Br.
at 8-9.)
LIRR argues that her case fails on the fourth element,
because her protected activities were not contributing factors in
her decertification.
(LIRR Br. at 9-12.)
The Court agrees.
“[A] contributing factor is ‘any factor which, alone or
in connection with other factors, tends to affect in any way the
outcome of the decision.’”
Kuduk v. BNSF Ry. Co., 768 F.3d 786,
LIRR clarifies that the charges it issued did not include any
reference to these protected activities. (LIRR Br. at 11-12
n.5.) The Court concurs. LIRR did not charge Plaintiff with
performing a safety inspection, as Plaintiff maintains in her
Opposition. (Pl.’s Opp. at 5 (“The charges themselves cite
plaintiff’s train inspection as the basis for demoting her.”).)
Rather, the only reasonable reading of the notice of
investigation is that LIRR charged her with performing an
inspection incorrectly. (Notice of Investigation (charging
Plaintiff with “unnecessarily inspect[ing] the entire consist”
of Train 2716”) (emphasis added).)
10
26
791 (8th Cir. 2014) (quoting Procedures for the Handling of
Retaliation Compls. under the Fed. R.R. Safety Act, 75 Fed. Reg.
at 53,524).
While “under the statute’s ‘contributing factor’
causation standard, ‘[a] prima facie case does not require that
the employee conclusively demonstrate the employer’s retaliatory
motive,’” “the contributing factor that an employee must prove is
intentional
retaliation
protected activity.”
prompted
by
the
employee
engaging
in
Id. (quoting Coppinger–Martin v. Solis, 627
F.3d 745, 750 (9th Cir. 2010)) (alteration in original) (additional
citations omitted).
“[C]ourts considering FRSA claims have held
that ‘more than a temporal connection between the protected conduct
and the adverse employment action is required to present a genuine
factual issue on retaliation.’”
Tompkins, 2018 WL 4573008, at *6
(quoting Kuduk, 768 F.3d at 792). The Court must evaluate evidence
of
the
employer’s
nonretaliatory
reasons
for
employment action when considering this element.
the
adverse
Id. (quoting
Gunderson v. BNSF Ry. Co., 850 F.3d 962 (8th Cir. 2017)).
Using the framework recently employed by the Southern
District of New York in the FRSA retaliation case Tompkins v.
Metro-North Commuter Railroad, the Court will analyze whether
Plaintiff
has
established
that
her
protected
contributed to LIRR’s disciplinary action against her.
2018 WL 4573008.
activities
Tompkins,
In Tompkins, Judge Oetken weighed five factors
relevant to whether the plaintiff’s protected activity was a
27
contributing factor in the unfavorable personnel action.
Id. at
*7 (citing Gunderson, 850 F.3d at 969). Specifically, the Tompkins
Court discussed an Eighth Circuit decision that upheld the summary
judgment dismissal of a plaintiff’s FRSA claim because “‘five
highly relevant facts’” demonstrated that the required causal
connection was missing:
First, the disciplinary investigations that
led to [plaintiff’s] discharge were completely
unrelated to his protected activity. Second,
[plaintiff’s] prior safety-related activities
were remote in time and disconnected from the
disciplinary proceedings by an intervening
event that independently justified adverse
disciplinary action. . . . Third, [plaintiff]
was discharged after disciplinary hearings at
which he was represented by union counsel, and
the decisions to discharge were upheld by [the
railroad]
internally
and
by
a[n] . . . arbitration panel. Fourth, the
merits of the discharge were again reviewed in
a six-day hearing before a [Department of
Labor administrative law judge]. . . . Fifth,
the decision to discharge was made by [a
railroad division manager] after consulting
with his supervisors and with [railroad] human
relations officers, not by . . . the lowerlevel supervisors [plaintiff] accuses of
safety-related bias.
Id. (quoting Gunderson, 850 F.3d at 969) (alterations in original).
The Tompkins Court found that the first two factors
weighed
in
the
plaintiff’s
favor,
the
fourth
factor
was
inapplicable because the Department of Labor had not completed its
investigation into the plaintiff’s petition, and the third and
fifth factors weighed in the railroad’s favor.
28
Id.
It noted that
“‘[a]n intervening event between the protected activity and the
adverse employment action may defeat the inference of causation
where temporal proximity might otherwise suffice to raise the
inference.’” Id. (alteration in original) (quoting Nolley v. Swiss
Reinsurance Am. Corp., 857 F. Supp. 2d 441, 461 (S.D.N.Y. 2012)).
The court granted the railroad summary judgment because even though
the first two factors favored the plaintiff’s case, there was “no
evidence showing that it was not the [unprotected behavior] which
formed the sole basis of [ ] disciplinary proceedings against”
him.
Id.
1.
Gunderson’s Contributing Factor Considerations
One, Two, Four, and Five
Here, the factors fall in the same directions they did
in Tompkins.
Like in Tompkins, “Gunderson factors one and two--
which concern the temporal and substantive connection between an
FRSA
plaintiff’s
protected
conduct
employment action”--favor Plaintiff.
and
subsequent
See id.
adverse
LIRR charged and
disciplined Plaintiff for misconduct resulting in delays on the
June 5, 2013 trip to Montauk, and Plaintiff contends that her
protected activities caused further delays on that trip.
Thus,
the protected activities were “close in time and similar in subject
matter
to
the
disciplinary
charges”
and
her
decertification from the locomotive engineer position.
29
resulting
See id.
The Court notes, however, that Plaintiff’s protected activities
were not part of the charges lodged against her.11
Additionally, as in Tompkins, the fifth Gunderson factor
weighs in LIRR’s favor.12
Plaintiff points to no evidence that
“any of the lower-level supervisors accountable for addressing
[Plaintiff’s]
safety
complaints
[on
June 5,
2013]
played
a
decision-making role in the adjudication of the charges against
[her].”
See id.
Before reaching the third factor, the Court also notes
that LIRR decertified Plaintiff as a locomotive engineer and
reinstalled her as a SAM, rather than firing her.
This further
erodes the inference of a causal connection between Plaintiff’s
protected activities and the unfavorable action.
2.
The NRAB’s Decision and Gunderson’s Contributing
Factor Consideration Three
Plaintiff does not address this point in her Opposition, but
in her 56.1 Counterstatement, she claims that McCaffrey
testified “that he had taken issue with [ ] [P]laintiff
reporting the brake test slip and inherently with the delay it
caused.” (Pl.’s 56.1 Counterstmt. ¶ 101 (citing June 2013
Charge Hr’g Tr. at 32).) While the page of the hearing
transcript she cites does not contain that testimony, the
Court’s review of the surrounding pages shows that McCaffrey
testified that he felt it was “unnecessary [for her] to check
the air brake card” in the first place, not that he took issue
with her reporting its deficiencies. (June 2013 Charge Hr’g Tr.
at 33-34.) Accordingly, this is not evidence that the charges
included (or were motivated by) Plaintiff’s protected activity.
11
Also like in Tompkins, the fourth factor is inapposite since
the Department of Labor never completed its investigation into
Plaintiff’s complaint to the Occupational Safety and Health
Administration (“OSHA”). (Compl. ¶¶ 13-14.)
12
30
The parties dispute whether the LIRR hearing yielded a
fully developed and untainted record and whether the Court should
give weight to the NRAB’s decision, which is based on that record.
Specifically, Plaintiff relies on Grimes v. BNSF Railway Co., 746
F.3d 184 (5th Cir. 2014), to argue that procedural issues at LIRR’s
hearing, decision, and appeal stages tainted the record before the
NRAB, and by extension, the NRAB’s decision.
8-11.)
(See Pl.’s Opp. at
In Grimes, the district court gave collateral estoppel
effect to an arbitrator’s finding of fact that was relevant to the
plaintiff’s FRSA claim, and it granted summary judgment to the
defendant railroad on that basis.
Grimes, 746 F.3d at 186.
The
Fifth Circuit held that “because it was the railroad that conducted
the investigation and hearing and terminated [the plaintiff], and
because the [arbitration board] only reviewed a closed record, the
procedures were not adequate for collateral estoppel to apply.”
Id. at 190.
Accordingly, it vacated the order granting summary
judgment and directed the district court, on remand, to “decide
for itself whether there is a genuine issue of material fact for
trial, granting only as much deference to the arbitral finding of
fact as is consistent with [ ] principles” discussed in the
opinion.13
Id. at 190-91.
Plaintiff misstates this holding, asserting that the Grimes
Court found “the arbitration decision [to be] inadmissible as
unreliable.” (Pl.’s Opp. at 8.)
13
31
Citing Collins v. New York City Transit Authority, 305
F.3d 113 (2d Cir. 2002), LIRR contends that the Court should give
weight to the NRAB’s decision and decide that Plaintiff’s protected
activities
were
not
a
contributing
unfavorable personnel action.14
factor
in
Plaintiff’s
(LIRR Br. at 9-12.)
In Collins,
the Second Circuit held that “[w]here an employee’s ultimate
termination depends upon, and is allowed by, a decision of an
independent and unbiased arbitrator based on substantial evidence
after a fair hearing, the arbitration decision has probative weight
regarding
the
requisite
causal
link
between
termination and the employer’s illegal motive.”
an
employee’s
Collins, 305 F.3d
at 115.
Plaintiff argues that Collins is inapposite for two reasons.
First, Plaintiff notes that Collins is a Title VII case and
maintains that the FRSA’s “retaliation standard” “is much more
lenient and employee friendly.” (Pl.’s Opp. at 8.) However,
Plaintiff supports this proposition by citing to Kuduk, 768 F.3d
at 790, which does not aid her argument. In Kuduk, the Eighth
Circuit affirmed the grant of summary judgment to the defendant
railroad, noting that while a plaintiff need not “conclusively
demonstrate the employer’s retaliatory motive” to establish
causation, he or she must still prove “intentional retaliation
prompted by the employee engaging in protected activity.”
Kuduk, 768 F. 3d at 791-92 (internal quotation marks and
citations omitted). In any event, the Court is not persuaded
that a more lenient causation standard takes this case outside
Collins’ ambit. Second, Plaintiff contends that “[t]he FRSA
standard for retaliatory adverse action is much broader even
than the expansive . . . Title VII standard.” (Pl.’s Opp. at 89.) However, this argument relates to the scope of the FRSA’s
unfavorable personnel action requirement, an element not in
dispute. Thus, Plaintiff’s arguments are unavailing.
14
32
In light of the parties’ arguments, the Court must
analyze Plaintiff’s disciplinary process to resolve the third
Gunderson
factor--whether
Plaintiff
“‘was
discharged
after
disciplinary hearings at which [s]he was represented by union
counsel, and the decisions to discharge were upheld by [the
railroad] internally and by a[n] . . . arbitration panel’”--and to
determine what weight to give the NRAB’s decision.
See Tompkins,
2018 WL 4573008, at * 7 (quoting Gunderson, 850 F.3d at 969)
(second, third, and fourth alteration in original).
Here, as detailed above, Plaintiff was represented by
her union at an LIRR hearing that lasted eight days and yielded a
390-page, single-spaced transcript with fifty-two exhibits.
generally June 2013 Charge Hr’g Tr.)
(See
Koven allowed Plaintiff “to
admit into evidence each and every document she proffered at her
2013 disciplinary hearing.”
6.)
(Koven Reply Decl., D.E. 27-1, ¶¶ 5-
Plaintiff’s union representative questioned witnesses at the
hearing before Koven, and he and Plaintiff gave closing arguments.
(LIRR’s 56.1 Stmt. ¶ 16; see generally June 2013 Charge Hr’g Tr.)
A
different
LIRR
officer,
(LIRR’s 56.1 Stmt. ¶ 19.)
Becker,
then
reviewed
the
record.
He found that Plaintiff was responsible
for the charged conduct and decertified her from the locomotive
engineer position.
(LIRR’s 56.1 Stmt. ¶¶ 21-23.)
Plaintiff
appealed Becker’s decision to a third LIRR officer, Brooks, who
upheld Becker’s findings and discipline. (LIRR’s 56.1 Stmt. ¶¶ 2733
31.)
Plaintiff then presented the record, extensive briefing, and
oral argument to the NRAB on a second-level appeal.
Stmt. ¶¶ 33-34.)
(LIRR’s 56.1
The NRAB found sufficient evidence to support
the charges against Plaintiff.
(NRAB Decision at 6.)
It also
found that Plaintiff’s “misconduct consisted of more than just the
unnecessary delay of the train” and that “[d]isqualification from
the position of Locomotive Engineer . . . [wa]s consistent with
the
nature
of
[Plaintiff’s]
disciplinary record.”
misconduct
and
her
previous
(NRAB Decision at 6.)
While Plaintiff does not argue that the NRAB was anything
but impartial, she stresses that her employer, and not a neutral
arbitration panel, conducted her evidentiary hearing.
Opp. at 7-10).
(See Pl.’s
She complains that the LIRR hearing process placed
her at an “insurmountable disadvantage” before the NRAB because
Koven impeded her attempt to show that the charged misconduct was
not the only source of Train 2716’s delays.
(Pl.’s Opp. at 7-10;
Pl.’s 56.1 Counterstmt. ¶ 96.)
Plaintiff’s grievance is factually unfounded.
First,
the hearing transcript contains Plaintiff’s questions and lengthy
arguments about additional delays during the June 5, 2013 trip.
(E.g., June 2013 Charge Hr’g Tr. at 107, 128, 144-45, 382-89.)
Second, Koven herself asked McCaffrey how much of the delay was
caused by the conduct with which Plaintiff was charged, and
McCaffrey
estimated
“[a]pproximately
34
18
minutes.”
(June 2013
Charge Hr’g Tr. at 210.)
Third, the NRAB’s decision discusses the
delays that Plaintiff claims the panel was not able to review.
(NRAB Decision at 3.)
Fourth, the argument that Koven was biased
against Plaintiff was raised before and rejected by the NRAB.
(NRAB Decision at 2, 6.)
Thus, the record before the NRAB
contained evidence and argument that events other than the charged
misconduct contributed to Train 2716’s delays.
Plaintiff
raises
other
perceived
flaws
in
the
disciplinary process, but she fails to show that they resulted in
prejudice to her or an incomplete or tainted record before the
NRAB.
First, citing no evidence to support her position, she
argues that she was prejudiced by her inability to question Becker,
who “turned out to be the impetus for the charges in the first
place, to have coordinated with [the] hearing officer and witnesses
and then ultimately to be the person who reviewed the transcript
for guilt or innocence.”
(Pl.’s Opp. at 9.)
and rejected this exact argument.
The NRAB considered
(NRAB Decision at 2, 6.)
Moreover, Koven’s refusal to allow Plaintiff to call Becker as a
witness caused her no prejudice, as there is no indication that he
was involved in or had firsthand knowledge of the events of June 5,
2013.
Second, Plaintiff takes issue with Koven’s practice of
meeting with company witnesses and reviewing evidence before the
hearing.
(Pl.’s Opp. at 9.)
However, even if Koven did so here,
Plaintiff does not contend that it prevented her and her union
35
representative
questioning
from
of
exploring
witnesses,
development of the record.
a
range
of
introduction
issues
of
in
their
evidence,
and
A review of the hearing transcript
shows that Koven provided Plaintiff great latitude in questioning
witnesses, even when she believed the questions to be irrelevant.
(E.g., June 2013 Charge Hr’g Tr. at 171.)
Third, Plaintiff avers
that Koven “testified not having the expertise to determine if a
delay of a locomotive was reasonable or not.”
(Pl.’s Opp. at 9.)
This is immaterial because Koven conducted Plaintiff’s hearing;
she did not decide whether LIRR proved the charges.
miscellaneous
complaints
in
Plaintiff’s
56.1
Fourth,
Counterstatement
(which she does not raise in her Opposition) concern issues with
Becker’s conduct.
(See supra § I.B.2.b.)
However, Becker was the
reviewing officer, not the officer responsible for conducting the
hearing. Thus, Becker’s actions did not affect Plaintiff’s ability
to develop the record.
Finally, the NRAB considered Plaintiff’s
many procedural objections and found that “there were no fatal
procedural errors.
In reaching this conclusion, the [NRAB] has
taken into account all procedural claims raised by [Plaintiff’s
union].
None of them, either alone or taken together, point to
any prejudice that was caused [ ] [Plaintiff].”
2, 6.)
36
(NRAB Decision at
The NRAB’s decision is also supported by the evidence.15
McCaffrey, Becker, and Kerr testified that Plaintiff inspected the
entire consist of Train 2716 when she was not supposed to do so.
(McCaffrey Dep. 60:25-61:8, 62:2-63:11; Becker Dep. 86:9-15; Kerr
Dep. 32:13-21, 44:12-16.)
In her 56.1 Response (but not her
Opposition), Plaintiff points to McCaffrey’s and Papadoulias’
testimony
that
inspections
the
of
crew
the
is
locomotive,
inspection was necessary.
testimony
conflict
about
with
the
the
responsible
for
implying
certain
that
Plaintiff’s
(Pl.’s 56.1 Resp. ¶ 9.)
entire
testimony
crew’s
that
responsibilities
the
exterior
locomotive
However,
does
not
engineer--
Plaintiff--should not have been the member of the crew performing
the inspection.
(McCaffrey Dep. 62:8-63:11.)
Moreover, without
context or argument that it applied to this situation, Plaintiff
submits two isolated pages of the THEM for the proposition that
Plaintiff was required to inspect the “marker lights” on the rear
car of Train 2716.
(Pl.’s 56.1 Counterstmt. ¶¶ 83-84.)
But even
if Plaintiff were required to do so, she does not underline
The evidence before the Court on summary judgment is
substantially the same as that before the NRAB. And notably, in
her Opposition, Plaintiff does not highlight evidence showing
that she was innocent of the charged misconduct. (See generally
Pl.’s Opp.) In fact, she acknowledges that she delayed Train
2716, even though she notes that different witnesses disagreed
about how substantially she delayed it. (Pl.’s Opp. at 5.)
15
37
evidence contradicting the testimony that other aspects of her
inspection were unnecessary.
Additionally,
undermining
the
(E.g., McCaffrey Dep. 60:25-61:8.)
Plaintiff
remaining
does
not
charges--failing
highlight
“to
evidence
comply
with
approach and medium clear signals,” operating “at an unnecessary
protracted
speed,”
and
failing
“to
operate
Train 2716
in
accordance with the speed displayed on the Cab Signal Indicator.”
(Notice of Investigation.)
Even though there was “no correct
speed” at which Plaintiff should have approached train stations,
McCaffrey testified that Plaintiff was operating the train too
slowly, which was an “indication of improper train handling.”
(Pl.’s 56.1 Counterstmt. ¶ 111; McCaffrey Dep. 69:8-71:22.)
NRAB
agreed,
noting
that
the
evidence
showed
that
The
Plaintiff
proceeded at a “crawl” and that her “misconduct consisted of more
than just the unnecessary delay of the train.”
6.)
(NRAB Decision at
And regarding her failure to operate at the speed displayed
on the Cab Signal Indicator, McCaffrey testified that while safety
equipment was malfunctioning at the time of the incident, that
would “[n]ot necessarily” require Plaintiff to slow the train.16
(Pl.’s 56.1 Counterstmt. ¶ 112; McCaffrey Dep. 96:21-98:7.)
In any event, the Court does “‘not sit as a super-personnel
department that re-examines an employer’s disciplinary
decisions.’” Gunderson, 850 F.3d at 969 (quoting Kuduk, 768
F.3d at 792). That is, in evaluating whether Plaintiff’s
protected activities were a contributing factor in the
unfavorable employment action, the “critical inquiry” “‘is not
16
38
Considering the above, Gunderson factor three favors
LIRR.
Additionally, for the same reasons, the NRAB’s decision
“attenuate[s]
[ ]
[P]laintiff’s
proof”
that
her
protected
activities and LIRR’s decision to discipline her were causally
linked.
See Collins, 305 F.3d at 119.
In Collins, the Second
Circuit held that:
a decision by an independent tribunal that is
not itself subject to a claim of bias will
attenuate a plaintiff’s proof of the requisite
causal link.
Where . . . that decision
follows an evidentiary hearing and is based on
substantial evidence, the . . . plaintiff, to
survive a motion for summary judgment, must
present strong evidence that the decision was
wrong as a matter of fact--e.g. new evidence
not
before
the
tribunal--or
that
the
impartiality of the proceeding was somehow
compromised.
Id.
Here, in a decision supported by substantial evidence, the
NRAB found that Plaintiff was guilty of misconduct and that she
should be disqualified as a locomotive engineer.
LIRR conducted
whether the employee actually engaged in the conduct for which
he was terminated, but whether the employer in good faith
believed that the employee was guilty of the conduct justifying
discharge.’” Id. (quoting McCullough v. Univ. of Ark. for Med.
Scis., 559 F.3d 855, 861-62 (8th Cir. 2009)). The NRAB’s
findings and the evidence discussed in this Memorandum and Order
establish a good-faith basis for LIRR’s belief that she was
guilty of the charged misconduct. See id. at 969-70 (citing
Richey v. City of Independence, 540 F.3d 779, 784 (8th Cir.
2008)). Therefore, even assuming LIRR mistakenly (but in good
faith) believed that Plaintiff violated train operating rules,
liability would not attach unless Plaintiff could demonstrate
that her protected activities influenced LIRR’s decision.
39
Plaintiff’s evidentiary hearing, and the Court--like the NRAB-finds that Plaintiff suffered no prejudice as a result.
Plaintiff
has not raised any persuasive evidence that the NRAB’s decision
was “wrong as a matter of fact . . . or that the impartiality of
the proceeding was somehow compromised.”
119.
See Collins, 305 F.3d at
Therefore, while the NRAB’s decision does not preclude
Plaintiff’s FRSA claim, it has probative weight in establishing
that
the
charged
misconduct--and
not
Plaintiff’s
activities--motivated LIRR’s disciplinary action.
protected
See Rommage v.
MTA Long Island R.R., No. 08-CV-0836, 2010 WL 4038754, at *11-13,
*15-16 (E.D.N.Y. Sept. 30, 2010) (applying Collins to an LIRR
disciplinary proceeding where the plaintiff appealed to a neutral
arbitrator and granting LIRR’s motion for summary judgment on the
plaintiff’s race and gender discrimination claims and retaliation
claim), aff’d, 452 F. App’x 70 (2d Cir. 2012); see also Grimes,
746 F.3d at 190-91; Morel v. Am. Bldg. Maint. Co., 124 F. App’x
671, 672 (2d Cir. 2005).
3.
To
Balancing the Gunderson Factors
summarize,
LIRR
disciplined
Plaintiff
after
she
engaged in misconduct, as well as protected activities, during the
2013 Incident.17
There is no direct evidence that LIRR retaliated
As discussed above, even if Plaintiff did not engage in
misconduct, LIRR had a good-faith basis for believing that she
did. See supra note 16.
17
40
against her, but the temporal and substantive proximity between
the protected activities and the disciplinary action (Gunderson
factors one and two) may create a weak inference of causation.
However, any such inference is erased by (1) the NRAB’s finding,
after a thorough hearing and appeal process, that Plaintiff was
responsible for the charged misconduct (Gunderson factor three),
since the misconduct is “‘[a]n intervening event between the
protected activity and the adverse employment action [that] may
defeat the inference of causation,’” Tompkins, 2018 WL 4573008, at
*7 (quoting Nolley, 857 F. Supp. 2d at 461); (2) there has been no
showing that the lower-level supervisors responsible for resolving
the safety issues Plaintiff reported were decisionmakers in her
disciplinary process (Gunderson factor five); and (3) the fact
that
LIRR
did
not
fire
Plaintiff,
but
decertified
her
as
a
locomotive engineer and reinstalled her as a SAM, after her sixth
incident of misconduct as a locomotive engineer.
Thus, the Court
concludes that Plaintiff has failed to adduce sufficient evidence
to support a jury finding that any of her protected activities-and not solely her charged misconduct--were a contributing factor
in the unfavorable personnel action.18
See Tompkins, 2018 WL
For the reasons discussed in this section, even assuming
Plaintiff has established a prima facie case of retaliation,
LIRR has shown by clear and convincing evidence that it would
have taken the same action in the absence of Plaintiff’s
protected activities.
18
41
4573008, at *7 (granting summary judgment to railroad where first
and second Gunderson factors favored plaintiff, third and fifth
factors favored railroad, and plaintiff “produce[d] no evidence
showing that it was not the [unprotected misconduct] which formed
the sole basis of th[e] disciplinary proceedings against him”);
cf. Dendy v. Nat’l R.R. Passenger Corp., No. 14-CV-8381, 2016 WL
3198304,
at
*1
(S.D.N.Y.
June
8,
2016)
(denying
defendant
railroad’s motion for summary judgment on FRSA retaliation claim
where
there
was
testimony
that
plaintiffs
suffered
adverse
employment action after being threatened with demotion unless they
agreed to report fewer safety defects).
Accordingly, with respect
to Plaintiff’s claims arising out of the 2013 Incident, LIRR’s
motion for summary judgment is GRANTED.
B.
The February 2016 Incident
Plaintiff satisfies the third element of her prima facie
case
with
respect
to
the
2016
Incident:
She
suffered
an
unfavorable personnel action when LIRR fired her for refusing to
vacuum or roll up floormats while working as a SAM (though she was
reinstated after her NMB hearing). However, the remaining elements
of whether Plaintiff engaged in a protected activity, whether LIRR
knew
she
did
contributing
so,
factor
and
in
whether
the
the
adverse
further discussion.
1.
Protected Activities
42
protected
activity
employment
action
was
a
require
As discussed above, there is no dispute that Plaintiff’s
reports of safety issues on June 5, 2013--which are the only
protected activities alleged in her Complaint--are protected under
the FRSA.
However, LIRR argues that Plaintiff improperly attempts
to amend her Complaint by alleging in her Opposition that the
following activities during the 2016 Incident are also protected:
(1) “question[ing] whether a vacuum not rated to handle wet floor
mats was safe to use”; (2) refusing to vacuum “using a covered
outlet
which
she
believed
to
be
illegal”;
and
(3) initially
refusing the request to move “heavy wet mats” because of safety
concerns.
(Pl.’s Opp. at 5-6, 11-12; LIRR’s Reply at 5-6.)
To the extent Plaintiff makes such an attempt, it fails.
Initially,
“[a]
party
may
not
use . . . her
opposition
to
a
dispositive motion as a means to amend the complaint,” and the
Court will not allow Plaintiff to do so here.
Hosp., 252 F. App’x 364, 366 (2d Cir. 2007).
Shah v. Helen Hayes
Additionally, on the
merits, the activities are not protected under the FRSA.
First, Plaintiff’s questioning of “whether a vacuum not
rated to handle wet floor mats was safe to use” is not protected.
(See Pl.’s Opp. at 5.)
Significantly, it is based on a faulty
factual premise, as Plaintiff testified that she discovered the
vacuums were not rated for wet floor mats only after the incident.
(Pl.’s Dep. 153:8-15.)
Capone noted the same deficiency to this
theory when Plaintiff raised it with the NMB, remarking that
43
Plaintiff’s “credibility is less than trustworthy” because she
raised her safety concerns for the first time at her hearing before
Koven and “did not reference ‘wet mats’ when she refused to
vacuum.”
(NMB Decision at 7-8.)
Thus, Plaintiff’s refusal to
vacuum could not have been driven by her concern over the vacuum’s
alleged unsuitability for wet floor mats.
Even overlooking the chronological flaw in Plaintiff’s
argument,
her
refusal
to
49 U.S.C. § 20109(b)(1)(B).
vacuum
is
not
protected
under
To establish that a refusal to work
is protected under this provision, a plaintiff must demonstrate
that
“a
reasonable
individual
in
the
circumstances
then
confronting [her] would conclude that [ ] the hazardous condition
present[ed]
an
imminent
danger
49 U.S.C. § 20109(b)(2)(B)(i).
subjective
and
objective
of
death
or
serious
injury.”
This requirement “‘contains both
components,’”
and
“[o]bjective
reasonableness in such a case is ‘based on the knowledge available
to a reasonable person in the same factual circumstances with the
same
training
and
experience
as
the
aggrieved
employee.’”
Hernandez, 74 F. Supp. 3d at 580 (quoting Nielsen v. AECOM Tech.
Corp., 762 F.3d 214, 221 (2d Cir. 2014)).
Plaintiff has not shown
the objective reasonableness of her fear that using electrical
outlets would have resulted in a fire, an electrical failure, or
the electrocution of herself or others.
153:15.)
(Pl.’s Dep. 152:22-
To the contrary, Hughes testified that SAMs routinely
44
vacuum both wet and dry floormats at LIRR stations and regularly
use electrical sockets at stations to power the vacuums.
Decl. ¶ 9.)
(Hughes
Thus, her refusal based on her alleged concern that
using an unfamiliar outlet would cause a catastrophe was not
reasonable
or
protected.
See
49 U.S.C. §§ 20109(b)(1)(B),
(b)(2)(B)(i); Tompkins, 2018 WL 4573008, at *5-6 (granting summary
judgment in favor of railroad where FRSA plaintiff’s refusal to
perform job was not objectively reasonable).
Second, Plaintiff’s belief that using the outlets would
have been illegal does protect her refusal to vacuum.
49 U.S.C. § 20109(a)(2)
protects
against
refusals
Initially,
to
violate
“Federal laws, rules, and regulations” regarding railroad safety
and security.
A review of the record reveals that Plaintiff
believed the outlets violated the New York Codes, Rules and
Regulations (“NYCRR”), not any federal provision.
at 8.)
(NMB Decision
Additionally, Plaintiff offers no evidence or argument
that her use of the outlets would actually have violated the NYCRR.
In the NMB’s decision, Capone also noted this issue, providing
that “[t]here is a lack of sufficient evidence that supports [ ]
[Plaintiff’s] misguided conclusions that it was illegal to use the
outlets
in
assertion
the
of
Jamaica
illegality
Station
does
lobby . . . .
not
suffice.
[Plaintiff’s]
Her
personal
interpretation of rules and regulations cannot be a reason for the
45
[LIRR] to accept her refusal to perform her job.”
(NMB Decision
at 7-8.)
Third, Plaintiff’s initial refusal to move floormats
because she did not know how heavy they were is not protected under
49 U.S.C. § 20109(b)(1)(B).
As discussed above, an employee’s
refusal to work under this provision is protected only if it was
objectively reasonable for her to believe that “the hazardous
condition present[ed] an imminent danger of death or serious
injury.”
49 U.S.C. § 20109(b)(2)(B)(i).
Hughes testified that
SAMs, like Plaintiff, routinely put away floormats.
¶ 9.)
(Hughes Decl.
Plaintiff also testified that another employee lifted and
loaded the mats into a barrel, and that she eventually lifted one
mat
and
put
it
into
the
barrel.
(Pl.’s
Dep.
161:5-11.)
Additionally, Plaintiff presented this argument to the NMB, and
Capone found Plaintiff’s safety concerns to be unsupported by the
record.
(NMB Decision at 9.)
Plaintiff points to no evidence
suggesting that her concern about the floormats’ weight (and her
implied concern that she might be seriously injured if she lifted
the
mats)
unprotected.
was
objectively
reasonable,
and
her
refusal
is
49 U.S.C. §§ 20109(b)(1)(B), (b)(2)(B)(i).
Because Plaintiff did not engage in protected activities
during the 2016 Incident, the Court will analyze whether LIRR’s
decision to discipline her was in retaliation for her protected
activities during the 2013 Incident.
46
2. Contributing Factor
Even
knowledge
assuming
requirement
Plaintiff
by
showing
can
satisfy
employer-
general
LIRR’s
the
corporate
knowledge of her protected activities in 2013, see Gordon v. N.Y.C.
Bd. of Educ., 232 F.3d 111, 116-17 (2d Cir. 2000)), Plaintiff
cannot establish that her protected activities were a contributing
factor in LIRR’s decision to discipline her.
The Court will again
turn to the Gunderson framework to analyze this element.
Under Gunderson factor one, the disciplinary action
arising out of Plaintiff’s duties as a SAM during the 2016 Incident
were
“completely
activit[ies]”
June 2013.
in
unrelated
her
to
capacity
as
[Plaintiff’s]
a
locomotive
protected
engineer
in
See Gunderson, 850 F.3d at 969 (internal quotation
marks and citation omitted).
Under factor two, the disciplinary
proceedings were “remote in time” from the protected activities,
commencing nearly three years after Plaintiff reported safety
issues in June 2013.
citation
omitted).
See id. (internal quotation marks and
Further,
the
protected
activities
were
“disconnected from the disciplinary proceedings by an intervening
event that independently justified adverse disciplinary action”-Plaintiff’s charged misconduct on February 11, 2016.
Under
Gunderson
factor
five,
Hughes
made
the
See id.
disciplinary
decision, not “the lower-level supervisors [Plaintiff] accused of
safety-related bias” during the 2013 Incident.
47
See id.
At the
time Hughes reviewed the hearing record and found her guilty of
the charges, he had never met Plaintiff and had no knowledge of
the
circumstances
locomotive
surrounding
engineer
her
position.
disqualification
(LIRR
56.1
from
Stmt.
the
¶ 50.)
Additionally, as with the 2013 Incident, Gunderson factor four is
inapplicable,
and
the
third
Gunderson
factor
(regarding
Plaintiff’s hearing and appeal process) requires further analysis.
Here, Koven conducted a two-day evidentiary hearing on
the charges, at which Plaintiff and her union representative called
and questioned witnesses, presented evidence, and made closing
arguments.
(LIRR’s 56.1 Stmt. ¶¶ 45, 47.)
The hearing generated
a 128-page, single-spaced transcript and thirty-one exhibits.
(LIRR’s 56.1 Stmt. ¶ 49.)
Hughes reviewed the record and found
Plaintiff guilty of conduct unbecoming an employee, defiance to an
LIRR
manager,
instructions,
and
failing
and
he
to
comply
terminated
her
with
an
LIRR
employment
manager’s
with
LIRR.
(June 2016 Notice of Discipline, Hughes Decl. Ex. B, D.E. 25-25.)
On appeal to the NMB, Plaintiff and her union submitted
the entire hearing record, extensive briefing, and oral argument
to Arbitrator Capone.
(LIRR’s 56.1 Stmt. ¶¶ 53-55.)
Plaintiff
argued that she did not vacuum or roll up the floormats because
she was concerned about the safety and legality of those actions,
and Capone found the concerns to be unfounded.
5-9.)
(NMB Decision at
Capone ruled that Plaintiff “failed to perform her duties
48
as instructed” and that Plaintiff “engaged in conduct unbecoming
an employee when she first refused to vacuum the mats in the
Jamaica Station lobby and again later when directed to roll them
up.”
(NMB Decision at 6-7, 9.)
However, he found that “the
penalty of dismissal [ ] is excessive and [ ] [Plaintiff] should
be afforded a last chance to keep her job.
[ ] [Plaintiff] is
restored to service without back pay for all time out of service.”
(NMB Decision at 9-10.)
Plaintiff does not argue that Capone was biased, but
citing no evidence in support, avers that she “was precluded from
introducing evidence [at the hearing before Koven], such as the
section of the New York Code that prohibited the use of public
outlet [sic] in the manner that she was being asked to use it.”
(Pl.’s Opp. at 9.)
This statement is factually incorrect.
First,
Koven allowed Plaintiff to introduce into evidence “each and every
document
she
proffered
at
her
2016
disciplinary
hearing,”
including printouts of NYCRR provisions that she claimed forbade
her use of the outlets in Jamaica Station.
(Koven Reply Decl.
¶ 3; 2016 Hr’g Ex. List, D.E. 27-2; NYCRR Printouts, D.E. 27-3
(listing “Westlaw [NYCRR]” provisions as exhibits).)
Second, a
review of the hearing transcript shows that Plaintiff introduced
those exhibits, explained her belief that her use of public outlets
would have violated the NYCRR, and questioned witnesses about the
documents.
(Feb. 2016 Charge Hr’g Tr. at 43-49, 51-52.)
49
Third,
Capone considered and rejected Plaintiff’s contentions.
(NMB
Decision at 3, 8 (noting that while Plaintiff misidentified the
NYCRR as the “MTA Penal Code” in arguing that it prohibited her
from using outlets in Jamaica Station, “Plaintiff does not provide
any verifiable support for how the outlets violated the NYCRR.”).)
Thus,
Plaintiff’s
complaint
about
her
inability
to
introduce
evidence is unsupported by the record.
Moreover, the NMB’s decision upholding the charges is
supported by substantial evidence.
See Collins, 305 F.3d at 115.
In her Opposition, Plaintiff does not argue that the charges were
unsubstantiated, but contends that:
There is [a] dispute as to whether she refused
to roll up and store the floor mats. Plaintiff
states that she asked for instruction on how
to do the task, and once she received it, she
went ahead and completed it.
Defendant
alleges that the plaintiff flat out refused to
do the work.
This is a pure issue on
credibility, one only proper for a jury to
decide upon.
(Pl.’s Opp. at 6.)
Plaintiff’s argument is unavailing.
As
detailed in Section I.C.1, Plaintiff testified that she initially
refused
to
including
roll
that
up
the
moving
floormats
the
mats
for
was
a
variety
not
part
of
reasons,
of
her
job
responsibilities, she did not know how heavy they were, and she
did not know how to perform the task.
While she also testified
that she assisted with one mat when her coworker had nearly
50
completed the task, that action does not erase her initial,
unprotected refusal.
(Pl.’s Dep. 161:5-11.)
Considering the above, Gunderson factor three weighs in
LIRR’s favor.
Plaintiff’s
Because all applicable Gunderson factors undermine
argument
that
her
protected
activities
were
a
contributing factor in LIRR’s decision to discipline her, the Court
finds that Plaintiff cannot establish the causation element of her
prima
facie
case:
There
is
no
evidence
that
her
protected
activities, rather than solely the charged misconduct, contributed
to LIRR’s decision.
See Tompkins, 2018 WL 4573008, at *8.
Additionally,
under
Collins,
the
NMB’s
decision
upholding the charges attenuates any inference that Plaintiff’s
protected
activities
on
June 5,
2013
contributed
to
decision to discipline her for the 2016 Incident.19
evaluated
the
arguments
Plaintiff
makes
here,
and
LIRR’s
The NMB
Plaintiff
submits no persuasive evidence that the decision was “wrong as a
matter of fact . . . or that the impartiality of the proceeding
was somehow compromised.”
See Collins, 305 F.3d at 119.
Even if any of the three claimed bases for Plaintiff’s
refusals to work on February 11, 2016 were protected under the
FRSA, for the reasons discussed in this section, the Court would
still find that (1) the other unprotected activities
independently justified the disciplinary action, (2) the NMB’s
decision attenuates any inference that the protected activities
were a contributing factor in the discipline, and (3) LIRR has
shown by clear and convincing evidence that it would have taken
the same employment action if Plaintiff had not engaged in the
protected activities.
19
51
Accordingly, with respect to Plaintiff’s claims arising
out of the 2016 Incident, LIRR’s motion for summary judgment is
GRANTED.
CONCLUSION
For
the
foregoing
motion (D.E. 25) is GRANTED.
reasons,
LIRR’s
summary
judgment
The Clerk of the Court is directed
to enter judgment accordingly and mark this case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:
March
_21_ , 2019
Central Islip, New York
52
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