Hernandez v. Metro-North Commuter Railroad

Filing 31

OPINION AND ORDER #105123 re: 18 MOTION for Summary Judgment . filed by Metro-North Commuter Railroad. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the defendants' motion for summary judgment is granted. The Clerk is directed to enter summary judgment dismissing the Complaint. The Clerk is also directed to close all pending motions and to close the case. (Signed by Judge John G. Koeltl on 1/1/2015) (lmb) Modified on 1/9/2015 (soh).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
Joseph Hernandez,
Plaintiff,

13 Civ. 2077 (JGK)

- v.-

OPINION AND ORDER

Metro-North Commuter Railroad,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
The Plaintiff, Joseph Hernandez, brings this action against
defendant Metro-North Commuter Railroad (“Metro-North”) alleging
a violation of the whistleblower provision of the Federal
Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109.

This Court has

subject matter jurisdiction in this case without regard to the
amount in controversy pursuant to 49 U.S.C. § 20109(d)(3).

The

defendant now moves for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure.

For the reasons set forth

below, the defendant’s motion is granted.

I.
The following facts are undisputed unless otherwise
indicated.
A.
The plaintiff Joseph Hernandez is an employee of the
defendant Metro-North.

Def.’s Rule 56.1 Stmt. ¶ 1; Pl.’s Rule

56.1 Resp. ¶ 1.

The defendant is a railroad corporation engaged

in interstate commerce.

Def.’s Rule 56.1 Stmt. ¶ 2; Pl.’s Rule

56.1 Resp. ¶ 2; Compl. ¶ 5.

The plaintiff began his employment

with the defendant in July 2006.

In March 2009, the plaintiff

became a Carman at the defendant’s freight shop in North White
Plains where he was a member of the “Wreck Crew” which was
responsible for responding to train derailments.

Def.’s Rule

56.1 Stmt. ¶¶ 3-5; Pl.’s Rule 56.1 Resp. ¶¶ 3-5.

Members of the

Wreck Crew worked in the North White Plains rail yard Monday
through Friday from 9:00am to 5:00pm and were on call 24 hours a
day, seven days a week in case of any derailment.
56.1 Stmt. ¶ 5; Pl.’s Rule 56.1 Resp. ¶ 5.

Def.’s Rule

Members of the Wreck

Crew also had the opportunity to work overtime during the fall
months when they operated a rail washer to clear tracks of
leaves and other debris.
56.1 Resp. ¶ 6.

Def.’s Rule 56.1 Stmt. ¶ 6; Pl.’s Rule

Members of the Wreck Crew were expected to

obtain a commercial driver’s license after joining the crew.
Def.’s Rule 56.1 Stmt. ¶ 7; Pl.’s Rule 56.1 Resp. ¶ 7.

Foreman

Mike Talt assigned work to the Wreck Crew according to the
directions of General Foreman Robert Schiffer who in turn
reported to Superintendent Robert Castellano.
Stmt. ¶ 8; Pl.’s Rule 56.1 Resp. ¶ 8.

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Def.’s Rule 56.1

B.
On or about October 20, 2011, the plaintiff noticed a car
in the paint shop at the North White Plains rail yard that he
would later learn belonged to a secretary who worked at the
facility.
¶¶ 9-10.

Def.’s Rule 56.1 Stmt. ¶¶ 9-10; Pl.’s Rule 56.1 Resp.
The plaintiff made a report to the Inspector General

(“IG”) of the Metropolitan Transportation Authority (“MTA”)
citing unlawful use of company time to repair a non-company,
personal vehicle.

Id.

Plaintiff later told his union

representative and General Foreman Schiffer about the report.
Def.’s Rule 56.1 Stmt. ¶ 11; Pl.’s Rule 56.1 Resp. ¶ 11.
The IG’s investigation found that employees at the North
White Plains facility spent 25-45 minutes repairing scratched
paint on another employee’s personal car.
¶ 13.

Pl.’s Rule 56.1 Resp.

Everyone involved in the incident received a verbal

reprimand from Superintendent Castellano who considered it to be
a minor incident.
Resp. ¶ 14.

Def.’s Rule 56.1 Stmt. ¶ 14; Pl.’s Rule 56.1

However, after the investigation, General Foreman

Schiffer told the plaintiff “you’re going to be labeled
squealer,” and “you shouldn’t have done it. The bottom line is,
you f****d up, not nobody else, and for what you did, you
deserve to have everybody run their mouth.”

Pl.’s Rule 56.1

Resp. ¶¶ 78-81; Aff. of Marc T. Wietzke, Ex. 4.

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C.
Following the report to the IG, the plaintiff was subjected
to various actions that he believes were meant as retaliation
for the report.
Resp. ¶ 15.

Def.’s Rule 56.1 Stmt. ¶ 15; Pl.’s Rule 56.1

The plaintiff testified that some coworkers made

lewd and threatening remarks.

Def.’s Rule 56.1 Stmt. ¶¶ 15-18,

Ex. A, p. 103; see Pl.’s Rule 56.1 Resp. ¶¶ 15-18.

The

plaintiff also testified that he was given undesirable work
assignments in retaliation for the report.

Def.’s Rule 56.1

Stmt. ¶¶ 19, 23, 27, Ex. A, pp. 130-144; Pl.’s Rule 56.1 Resp.
¶¶ 19, 23, 27.

Additionally, the plaintiff alleges that in

retaliation for his report, he was denied the opportunity to
work overtime.

Def.’s Rule 56.1 Stmt. ¶¶ 28-31, 35-37; Pl.’s

Rule 56.1 Resp. ¶¶ 28-31, 35-37.
In November 2012, the plaintiff bid for a new position at
Metro-North’s Highbridge facility in the Bronx and received the
position based on his seniority.
Pl.’s Rule 56.1 Resp. ¶ 34.

Def.’s Rule 56.1 Stmt. ¶ 34;

The plaintiff testified that after

he began working at Highbridge, the alleged retaliation
continued.

See Def.’s Rule 56.1 Stmt. ¶¶ 44-45; Pl.’s Rule 56.1

Resp. ¶¶ 44-45.
On May 31, 2012, the plaintiff filed an FRSA complaint with
the Secretary of Labor.

Compl. ¶ 13.

The Regional OSHA

Whistleblower Office commenced an investigation into the
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plaintiff’s allegations.

Compl. at ¶ 14.

After 210 days passed

without a decision, the plaintiff filed an Intent to File
Original Action with the U.S. Department of Labor pursuant to 49
U.S.C. § 20109(d)(3).

Compl. at ¶ 15.

action in this court on March 28, 2013.

The plaintiff filed such
The defendant now moves

for summary judgment.

II.
The standard for granting summary judgment is well
established.

“The [C]ourt shall grant summary judgment if the

movant shows 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); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs.
L.P., 22 F.3d 1219, 1223 (2d Cir. 1994).

“[T]he trial court’s

task at the summary judgment motion stage of the litigation is
carefully limited to discerning whether there are genuine issues
of material fact to be tried, not to deciding them.

Its duty,

in short, is confined at this point to issue-finding; it does
not extend to issue-resolution.”

Gallo, 22 F.3d at 1224.

The moving party bears the initial burden of “informing the
district court of the basis for its motion” and identifying the
matter that “it believes demonstrate[s] the absence of a genuine
issue of material fact.”

Celotex, 477 U.S. at 323.
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The

substantive law governing the case will identify those facts
that are material and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a
court must resolve all ambiguities and draw all reasonable
inferences against the moving party.

See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986);
see also Gallo, 22 F.3d at 1223.

Summary judgment is improper

if there is any evidence in the record from any source from
which a reasonable inference could be drawn in favor of the
nonmoving party.

See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d

29, 37 (2d Cir. 1994).

If the moving party meets its burden,

the nonmoving party must produce evidence in the record and “may
not rely simply on conclusory statements or on contentions that
the affidavits supporting the motion are not credible . . . .”
Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.
1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir.
1998).

III.
The plaintiff in this case asserts a claim under the
employee protections section of the FRSA, 49 U.S.C. § 20109.
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The purpose of the FRSA “is to promote safety in every area of
railroad operations and reduce railroad-related accidents and
incidents.”

49 U.S.C. § 20101.

The employee protections

section was first added to the Act in 1980 to ensure that
railroad companies did not retaliate against employees who,
among other things, “reported violations of federal railroad
safety laws or refused to work under hazardous conditions.”
Norfolk Southern Ry. Co. v. Solis, 915 F. Supp. 2d 32, 37 (D.D.C
2013) (citing Federal Railroad Safety Authorization Act of 1980,
Pub. L. No. 96-423, § 10, 94 Stat. 1811, 1815 (1980)).
The Secretary of Labor oversees the investigation of
complaints of retaliation under the FRSA.
49 U.S.C. § 20109(d)(1).

Id. at 38; see also

A district court may review such a

complaint de novo, if, as here, “the Secretary of Labor has not
issued a final decision within 210 days after the filing of the
complaint and if the delay is not due to the bad faith of the
employee.”

49 U.S.C. § 20109(d)(3).

Any FRSA complaint filed with the Secretary of Labor is
governed by the Wendel H. Ford Aviation Investment Reform Act
for the 21st Century (“AIR21”), 49 U.S.C. § 42121(b), including
its burdens of proof.

49 U.S.C. § 20109(d)(2).

The parties

agree that the AIR21 standards should be applied to the

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plaintiff’s complaint in this Court. 1

To prevail on an AIR21

retaliation claim, a plaintiff “must prove 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.”

Bechtel v.

Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013) (quoting
Harp v. Charter Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir.
2009) (alterations omitted); Allen v. Admin. Review Bd., 514
F.3d 468, 475-76 (5th Cir. 2008); 49 U.S.C. §
42121(b)(2)(B)(iv)).

Accordingly, summary judgment in this case

is appropriate if, after drawing all reasonable inferences in
favor of the plaintiff, no reasonable jury could find that the
plaintiff has proved all of these elements.

IV.
The plaintiff claims that he engaged in a protected
activity as described in 49 U.S.C. § 20109(a)(1), which
provides:

1

The statute only requires that all complaints filed with the
Secretary of Labor under § 20109(d)(1) shall be governed by
AIR21 rules and procedures, id. at § 20109(d)(2)(A), but each
court that has considered a claim under the whistleblower
provisions of the FRSA has likewise applied cases interpreting
AIR21.
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To provide information . . . or otherwise directly
assist in any investigation regarding any conduct
which the employee reasonably believes constitutes a
violation of any Federal law, rule, or regulation
relating to railroad safety or security, or gross
fraud, waste, or abuse of Federal grants or other
public funds intended to be used for railroad safety
or security, if the information or assistance is
provided to . . .
(A) a Federal, State, or local regulatory or law
enforcement agency . . .
or . . .
(C) a person with supervisory authority over the
employee or such other person who has the
authority to investigate, discover, or terminate
the misconduct

It is undisputed that the plaintiff provided information to
the MTA IG as well as his union representative and General
Foreman Schiffer.

This information was used in furtherance of

an investigation into conduct at the North White Plains
facility.

The IG is an office of the MTA established by New

York Public Authorities Law § 1279 with the authority to, among
other things, “investigate complaints from any source or upon
his own initiative concerning alleged abuses, frauds and service
deficiencies.”

N.Y. Pub. Auth. Law § 1279.

A plain reading of

this statute shows that the IG is “a person with supervisory
authority over the employee or such other person who has the
authority to investigate, discover, or terminate the
misconduct.”

49 U.S.C. § 20109(a)(1)(C) (emphasis added).

Accordingly, a report to the IG may give rise to protected
activity under the FRSA.
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However, in addition to showing that the IG was an
appropriate individual to whom misconduct could be reported, the
plaintiff must show that the information he provided concerned
conduct that he “reasonably believe[d] constitute[d] a violation
of any Federal law, rule, or regulation relating to railroad
safety or security, or gross fraud, waste, or abuse of Federal
grants or other public funds intended to be used for railroad
safety or security.”

49 U.S.C. § 20109(a)(1).

In whistleblower

claims brought pursuant to other statutes, the Second Circuit
Court of Appeals has determined that a “reasonable belief
contains both subjective and objective components.”

Nielsen v.

AECOM Tech. Corp., 762 F.3d 214, 221 (2d Cir. 2014) (citation
omitted).

A plaintiff must “show not only that he believed that

the conduct constituted a violation, but also that a reasonable
person in his position would have believed that the conduct
constituted a violation.”

Id. (quoting Livingston v. Wyeth,

Inc., 520 F.3d 344, 352 (4th Cir. 2008)).

Other courts have

required a similar showing for FRSA whistleblower claims.

See,

e.g. Gutierrez v. Norfolk & S. Ry. Co., No. 12c2396, 2014 WL
551684, at *4 (N.D. Ill. Feb. 12, 2014) (“reasonableness must be
scrutinized under both a subjective and objective standard”).
Objective 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
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aggrieved employee.”

Nielsen, 762 F.3d at 221 (internal

citation and quotation marks omitted).
Drawing all reasonable inferences in the plaintiff’s favor,
the court cannot question that he honestly believed the conduct
reported was an “unlawful use of company time.”

However, the

FRSA requires a reasonable belief that the unlawfulness be
related to railroad safety or security or that the conduct
constitutes “gross fraud, waste, or abuse of Federal grants or
other public funds intended to be used for railroad safety or
security.”

49 U.S.C. § 20109(a)(1).

There is no indication in

the record that the plaintiff considered that working on a
personal car on company time might be a safety concern when he
made the report to the IG.

Accordingly, the plaintiff has

failed to establish even a subjectively reasonable belief that
would satisfy this prong of the statute.
Moreover, no objectively reasonable person in the same
factual circumstances as the plaintiff could possibly believe
that any railroad safety laws were violated by spending less
than an hour of company time repairing a personal vehicle in the
company paint shop.

Additionally, no such objectively

reasonable person could possibly believe that wasting under an
hour of company time on a personal project in the paint shop
could possibly amount to gross fraud, waste, or abuse of any
funds, much less funds intended to be used for safety or
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security.

Therefore, the plaintiff has failed to satisfy the

reasonable belief factor required to establish a protected
activity under the FRSA, and the defendant’s motion for summary
judgment should be granted.
The plaintiff argues that the time spent repairing the
paint job could have been spent on other jobs related to safety
and security.

For example, General Foreman Schiffer could have

been available to supervise safety work if he had not directed
the work on the personal vehicle.

The plaintiff also argues

that the time and money used to pay the employees who worked on
the car could have been spent on new rolling stock, maintenance,
or placing emergency placards in the cars.
arguments are sheer speculation.

All of these

The plaintiff offers nothing

to suggest that the time and money used on this repair would
have been used for safety or security measures, or that the
plaintiff reasonably believed this to be the case at any time.
Touching up the paint job on a personal vehicle simply has
nothing to do with railroad safety or security.
Furthermore, the “unlawful use of company time” amounted to
between 25 and 45 minutes.

The cost associated with such a

small amount of wasted time is de minimis, and to suggest that
the whistleblower protections of the FRSA would apply to a
report on such a de minimis violation would ignore the
requirement that the report concern “gross fraud, waste, or
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abuse” of public funds.

Including the plaintiff’s report within

the statute would trivialize a statute whose purpose “is to
promote safety in every area of railroad operations and reduce
railroad-related accidents and incidents.”

49 U.S.C. § 20101.

Accordingly, the plaintiff has failed to demonstrate that
he performed any protected activity.

Therefore, it is

unnecessary to consider the second through fourth AIR21 factors.
The plaintiff has failed to present a prima facie case of
retaliation under the FRSA, and the motion for summary judgment
should be granted.

CONCLUSION
The Court has considered all of the arguments raised by the
parties.

To the extent not specifically addressed, the

arguments are either moot or without merit.

For the foregoing

reasons, the defendants’ motion for summary judgment is granted.
The Clerk is directed to enter summary judgment dismissing the
Complaint.

The Clerk is also directed to close all pending

motions and to close the case.
SO ORDERED.
Dated:

New York, New York
January 1, 2015

____________/s/______________
John G. Koeltl
United States District Judge

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