Lockhart v. Long Island Railroad Company

Filing 29

MEMORANDUM OPINION AND ORDER re: 21 MOTION to Preclude filed by Long Island Railroad Company, 16 MOTION for Summary Judgment (Notice of Motion) filed by Long Island Railroad Company. For the foregoing reasons, the LIR R's motion for summary judgment is GRANTED, and Lockhart's claims are dismissed in their entirety. The Court need not, and does not, reach either the LIRR's other grounds for dismissal or its motion to preclude Lockhart's proposed expert witness, George A. Gavalla. (Docket No. 21). The Clerk of Court is directed to terminate Docket Nos. 16 and 21 and to close this case. (Signed by Judge Jesse M. Furman on 8/2/2017) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
HENRY LOCKHART,
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Plaintiff,
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-v:
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LONG ISLAND RAILROAD COMPANY,
:
:
Defendant.
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08/2/2017

16-CV-1035 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Henry Lockhart, a locomotive engineer, sues his employer, the Long Island Railroad
Company (“LIRR”), alleging a violation of the Federal Railroad Safety Act (“FRSA”), 49 U.S.C.
§ 20109 et seq. Specifically, Lockhart alleges that the LIRR violated the FRSA’s anti-retaliation
provisions by disciplining him for (1) refusing to violate a Federal Railroad Administration
(“FRA”) safety regulation; (2) reporting a hazardous safety condition; and (3) following the
treatment instructions of his treating physicians. The LIRR now moves, pursuant to Rule 56 of
the Federal Rules of Civil Procedure, for summary judgment. (Docket No. 16). For the reasons
that follow, the motion for summary judgment is granted.
BACKGROUND
The relevant facts, taken from the Complaint and admissible materials submitted in
connection with the pending motions, are largely, if not entirely, undisputed. See, e.g., Costello
v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).
Lockhart began working for the LIRR on May 23, 2001, and has been a locomotive
engineer at the railroad for more than twelve years. (Docket No. 17 (“Def.’s SOF”) ¶ 1). On

September 7, 2013, Lockhart visited his dentist for a toothache and was prescribed Vicodin. (Id.
¶¶ 2, 4). He called the LIRR Medical Department to report that he had been prescribed the
medication and missed work that day. (Docket No. 25-1 (“Pl.’s SOF”) ¶ 3). Thereafter, on
September 13, 2013, Lockhart underwent oral surgery. (Def.’s SOF ¶ 5). Once again, Lockhart
called the LIRR Medical Department, which instructed him not to work for twenty four to forty
eight hours after taking the Vicodin. (Pl.’s SOF ¶ 6). Lockhart missed work that day and the
next. (Def.’s SOF ¶ 6). On September 20, 2013, LIRR manager Eric Lomot sent Lockhart a
“Letter of Caution,” noting his absences on September 7th and 14th (as well as three other days).
(Id. ¶ 7). The letter stated that it did not “constitute formal discipline,” but it is undisputed that
such a “Letter of Caution” is the first step in a five-step disciplinary process ending in
termination of employment. (Pl.’s SOF ¶ 7). Lockhart eventually submitted documentation
from his physicians regarding his absences on September 7th and 14th and, on July 7, 2014, the
LIRR withdrew the September 20, 2013 Letter of Caution. (Def.’s SOF ¶¶ 11-18).
On October 11, 2013 (before the LIRR had withdrawn the Letter of Caution), Lockhart
submitted a complaint to the United States Department of Labor’s Occupational Safety and
Health Administration (“OSHA”) claiming that he had been disciplined as a result of the
absences relating to his toothache in violation of the FRSA. (Def.’s SOF ¶ 33). Thereafter, on
October 24, 2013, the LIRR issued a policy directive, advising Lockhart’s union that, if an
employee missed work for medical reasons, he or she would not be assigned absences or subject
to discipline if he or she submitted a medical certification form within three days of returning to
work and had been following the orders or treatment plan of a treating physician. (Def.’s SOF ¶
29). The relevant form, the SLA-28, was never submitted by Lockhart; Lockhart claims that he
was unaware of the requirement. (Pl.’s SOF ¶ 31).

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On July 7, 2014, Lockhart received another Letter of Caution with respect to six absences
post-dating the September 20, 2013 Letter of Caution. (Def.’s SOF ¶ 21). Lockhart claims that
some of those absences were due to a work-related shoulder injury that he sustained in August
2011. (Pl.’s SOF ¶ 23). In particular, Lockhart claims that he took Oxycodone for the injury on
November 13, 2013, December 18, 2013, June 19, 2014, and August 22, 2014, and that he was
instructed by the LIRR Medical Department not to work for twenty four to forty eight hours after
taking the medication. (Id.). On July 14, 2014, Lockhart submitted a letter from his physician
noting that he had a prescription for Oxycodone and that he occasionally took the drug on a per
needed basis. (Id. ¶ 25). On October 6, 2014, however, the LIRR issued Lockhart a Notice of
Investigation — the second step in the Railroad’s five-step disciplinary process — in connection
with his absence on four dates, including August 24, 2014, one of the dates on which Lockhart
claims that he missed work due to his taking Oxycodone and being instructed by the LIRR
Medical Department to stay home. (Id. ¶¶ 26-28).
On June 11, 2015, OSHA dismissed Lockhart’s complaint (which had been amended to
include allegations relating to his shoulder injury and treatment). (See id. ¶¶ 33-36). OSHA did
so on the ground that “the evidence gathered in the investigation” had shown that Lockhart “was
absent in accordance with his physician’s orders related to a treatment plan for a non-workrelated illness” and that the “FRSA does not protect employees who are absent pursuant to a
physician’s order for a non-work-related illness or injury from discipline under a railroad's
attendance policy.” (Id. ¶ 36). On July 8, 2015, Lockhart requested a hearing before a
Department of Labor Administrative Law Judge but thereafter withdrew his request for a hearing
based on his decision to file this action. (Id. ¶¶ 38-39).

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APPLICABLE LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate where the admissible evidence and pleadings
demonstrate “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 Johnson v. Killian, 680 F.3d 234, 236 (2d Cir.
2012) (per curiam). A dispute over an issue of material fact qualifies as genuine “if the evidence
is such that a reasonable jury could return a judgment for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35
(2d Cir. 2008). The moving party bears the initial burden of demonstrating the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In
moving for summary judgment against a party who will bear the ultimate burden of proof at trial,
the movant’s burden will be satisfied if he can point to an absence of evidence to support an
essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23); accord PepsiCo, Inc.
v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam). In ruling on a motion for
summary judgment, all evidence must be viewed “in the light most favorable to the non-moving
party,” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004),
and the Court must “resolve all ambiguities and draw all permissible factual inferences in favor
of the party against whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
B. The FRSA
The purpose of the FRSA is “to promote safety in every area of railroad operations.” 49
U.S.C. § 20101. To that end, the FRSA prohibits railroad carriers from retaliating against

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employees who engage in various safety-related protected activities. See id. § 20109. Three
specific statutory prohibitions are at issue here. First, Section 20109(a)(2) provides, in relevant
part, that a railroad carrier
may not discharge, demote, suspend, reprimand, or in any other way discriminate
against an employee if such discrimination is due, in whole or in part, to the
employee’s lawful, good faith act done, or perceived by the employer to have
been done . . . to refuse to violate or assist in the violation of any Federal law,
rule, or regulation relating to railroad safety or security.
Second, Section 20109(b)(1)(A) provides, in relevant part, that a railroad carrier “shall not
discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for
. . . reporting, in good faith, a hazardous safety or security condition.” And third, Section
20109(c)(2) provides, in relevant part, that a railroad carrier “may not discipline, or threaten
discipline to, an employee for requesting medical or first aid treatment, or for following orders or
a treatment plan of a treating physician.”
To establish a prima facie claim of retaliation under the FRSA, an employee must show
by a preponderance of the evidence that he (1) engaged in protected activity as defined in the
statute; (2) his employer knew that he had engaged in protected activity; (3) he suffered an
unfavorable personnel action; and (4) the protected activity was a contributing factor in the
unfavorable action. See, e.g., Bechtel v. Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013);
Conrad v. CSX Transp., Inc., 824 F.3d 103, 107 (4th Cir. 2016); Araujo v. N.J. Transit Rail
Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013). If the plaintiff satisfies all of the
requirements, “then 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.” Conrad, 824 F.3d at 107 (internal quotation marks omitted). Failure to
satisfy any one of the prima facie requirements is fatal to a claim. See id. Notably, under the
statute’s “contributing factor” causation standard, a prima facie case does not generally require
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proof of the employer’s retaliatory motive. See, e.g., Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791
(8th Cir. 2014); Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010). “But the
contributing factor that an employee must prove is intentional retaliation prompted by the
employee engaging in protected activity.” Kuduk, 768 F.3d at 791. At bottom, the essence of a
retaliation claim under the FRSA is “discriminatory animus.” Id.; see also Consol. Rail Corp. v.
U.S. Dep’t of Labor, 567 F. App’x 334, 338 (6th Cir. 2014) (finding sufficient evidence “that
animus was a contributing factor in [an employee’s] termination”).
DISCUSSION
Applying the foregoing standards here, Lockhart’s claims fail as a matter of law. As an
initial matter, to the extent that he brings claims related to his toothache-related absences in
2013, those claims are easily rejected for at least two reasons. First, and most straightforwardly,
Lockhart cannot show that he suffered an unfavorable personnel action. After all, the LIRR
withdrew the September 20, 2013 Letter of Caution that it had sent in connection with
Lockhart’s absences (see Def.’s SOF ¶ 18), and there is no suggestion, let alone proof, that he
suffered any sort of negative consequence as a result of those absences. Second, and in any
event, to the extent that Lockhart’s toothache and toothache-related treatment were not workrelated, he cannot show that he engaged in protected activity as defined in the FRSA. Indeed,
courts have uniformly held that subsections (b)(1)(A) and (c)(2) of the statute are limited to
“work-related” conditions and injuries. See Stokes v. Se. Pa. Transp. Auth., 657 F. App’x 79, 82
(3d Cir. 2016) (subsection (b)(1)(A)); Port Auth. Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of
Labor, 776 F.3d 157, 163-68 (3d Cir. 2015) (“PATH”) (both); Murdock v. CSX Transp., Inc., No.
3:15-CV-1242 (JJH), 2017 WL 1165995, at *4 (N.D. Ohio Mar. 29, 2017) (both); Miller v.
BNSF Ry. Co., No. 14-CV-2596 (JAR) (TJJ), 2016 WL 2866152, at *14-15 (D. Kan. May, 17,

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2016) (subsection (c)(2)); Goad v. BNSF Ry. Co., No. 15-CV-0650 (HFS), 2016 WL 7131597, at
*2-4 (W.D. Mo. March 2, 2016) (both).
Although no court appears to have addressed whether subsection (a)(2) is also limited to
work-related conditions, the logic of the foregoing decisions — particularly the Third Circuit’s
leading decision in PATH — suggests that it is. See 776 F.3d at 166 (citing “[t]he purpose of the
entirety of the FRSA” as a reason that “subsection (b)(1)(A) must be read as having at least some
work-related limitation, even though no such limitation appears on the face of the statute”). At a
minimum, there is no authority, or basis, to conclude that the statute extends to the situation
presented here: an employee’s inability to report to work due to his self-reported use of narcotics
for non-work-related reasons. For one thing, every case analyzing subsection (a)(2) has
concerned an employee’s refusal to violate laws related to the condition of the railroad or its
equipment, not to the personal health of the employee. See Lee v. Norfolk S. Ry. Co., 802 F.3d
626, 628 (4th Cir. 2015) (identification cap for defective rail cars); Rookaird v. BNSF Ry. Co.,
No. 14-CV-176 (RSL), 2015 WL 6626069, at *3 (W.D. Wash. Oct. 29, 2015) (rule or regulation
related to air testing cars); Morgan v. Norfolk S. Ry. Co., No. 13-CV-0257 (WMA), 2014 WL
3891984, at *1 (N.D. Ala. Aug. 8, 2014) (fabrication of safety violations); Worcester v.
Springfield Terminal Ry. Co., No. 12-CV-00328 (NT), 2014 WL 1321114, at *1 (D. Me. Mar.
31, 2014) (leaked hydraulic oil on a railroad bed). For another, if the Court were to conclude
that the statute applies in such situations, it would prevent a railroad carrier from disciplining an
employee who declined to report to work because he or she was drunk or high on drugs (insofar
as doing so would violate a railroad safety regulation). The statute must be “interpreted in a way
that avoids” such “absurd results.” S.E.C. v. Rosenthal, 650 F.3d 156, 162 (2d Cir. 2011)
(internal quotation marks omitted).

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To the extent that Lockhart brings claims relating to his shoulder injury, they fall short as
well. First, assuming arguendo that the Letter of Investigation (which has apparently not been
withdrawn) qualifies as an unfavorable personnel action, he cannot show that he engaged in
protected activity within the meaning of either subsection (a)(2) or (b)(1)(A). As discussed
above, the FRSA is a whistleblowing statute concerned with railway safety, and Lockhart cites
no authority for the proposition that subsection (a)(2) covers non-railroad equipment-related
conditions such as an employee’s inability to report to work due to his use of prescribed
narcotics. Similarly, nothing in subsection (b)(1)(A) “indicates that the ‘hazardous condition’
extends beyond work-related safety conditions under the rail carrier’s control and covers
personal, non-work illnesses.” Stokes, 657 F. App’x at 82 (internal quotation marks omitted).
Lockhart’s alleged need for Oxycodone to alleviate shoulder pain arising from an injury three
years earlier was certainly not a condition under the LIRR’s control, and thus subsection
(b)(1)(A) is inapplicable here.
Lockhart’s shoulder-related claim under subsection (c)(2) is arguably stronger, if only
because the injury that allegedly triggered his need for Oxycodone was work-related. But
Lockhart’s claim under that provision — indeed, all of his claims — fail for a different reason:
He presents no evidence of intentional retaliatory animus on the part of the LIRR and, thus,
cannot satisfy the “contributing factor” prong of the prima facie test. In fact, the undisputed
evidence makes clear that the reason for Lockhart’s absence from work had nothing to do with
the Letter of Caution or the Letter of Investigation; instead, Lockhart received the Letters
because he failed to comply with the LIRR’s SLA-28 policy, which required him to submit
certain documentation to verify that his absences were due to the orders or treatment of his a
treating physician. Indeed, Lockhart himself conceded that he did not submit the required forms

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and that, had he done so, he would not have received the Letters. (Docket No. 18-2, at 38). To
the extent that Lockhart was disciplined, therefore, it was not for a reason prohibited by the
FRSA; it was because of his failure to adhere to the LIRR’s policies and his unauthorized
absenteeism. Cf. Heim v. BNSF Ry. Co., No. 13-CV-0369, 2015 WL 5775599 (JMG), at *4 (D.
Neb. Sept. 30, 2015) (holding that an employee cannot use the FRSA to avoid punishment for
refusing to follow railroad procedures by “completing an injury report confessing his behavior”).
Lockhart’s sole argument to the contrary is that the LIRR’s SLA-28 policy violates
Section 20109(h), which provides that “[t]he rights and remedies in this section may not be
waived by any agreement, policy, form, or condition of employment.” 49 U.S.C. § 20109(h).
(Pl.’s SOF ¶ 30). But Lockhart cites no authority in support of that argument — a vacuum that is
particularly noteworthy because requiring documentation to verify medical absences seems to be
a common practice among railroad carriers. See, e.g., Stokes, 657 F. App’x at 80; Grimes v.
BNSF Ry. Co., 746 F.3d 184, 190 (5th Cir. 2014); Kulavic v. Chi. & Ill. Midland Ry. Co., 1 F.3d
507, 509-11 (7th Cir. 1993); Green v. Grand Trunk W., R.R., Inc., No. 16-CV-11587, 2016 WL
7634484 (GER) (MKM), at *1 (E.D. Mich. Nov. 22, 2016), report and recommendation adopted
2017 WL 24864, at *1 (E.D. Mich. Jan. 3, 2017); Loos v. BNSF Ry. Co., No. 13-CV-3373
(PAM) (FLN), 2015 WL 3970169, at *1 (D. Minn. June 30, 2015). More significantly, nothing
in the text, structure, or purpose of the FRSA suggests that Congress intended Section 20109(h)
to preempt the ability of railroad carriers to take reasonable steps to verify that employees taking
sick leave are actually sick. In fact, far from undermining Congress’s intent, policies like the
LIRR’s advance the purposes of the FRSA by helping to ensure that railroad carriers do not take
unfavorable personnel actions against employees who are absent because of the orders or
treatment plans of physicians. (See Docket No. 18-10 (explaining the policy)). Such policies

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also serve to limit unauthorized absenteeism, which can itself be the cause of potential safety
issues. See PATH, 776 F.3d at 169 (dismissing the Department of Labor’s assumption that
Congress would have wanted Section 20109(c)(2) to apply beyond work-related injuries by
noting that Congress may well “have been more concerned about potential safety issues caused
by absenteeism”). In short, in the absence of a clear statement to the contrary, the Court will not
presume that Congress intended Section 20109(h) to be construed to prohibit railroad carriers
from enforcing reasonable policies like the LIRR’s SLA-28 policy. Cf. FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 160 (2000) (observing that Congress is “highly
unlikely” to make decisions of “economic and political significance” through “subtle device[s]”
or in a “cryptic . . . fashion”) (internal quotation marks omitted)); PATH, 776 F.3d at 168 (“We
are not prepared to assume that Congress decided to enact such a significant change by inserting
an eleven-word sentence fragment between much more limited protections, from which such a
change could be deduced.”).
CONCLUSION
For the foregoing reasons, the LIRR’s motion for summary judgment is GRANTED, and
Lockhart’s claims are dismissed in their entirety. The Court need not, and does not, reach either
the LIRR’s other grounds for dismissal or its motion to preclude Lockhart’s proposed expert
witness, George A. Gavalla. (Docket No. 21). The Clerk of Court is directed to terminate
Docket Nos. 16 and 21 and to close this case.

SO ORDERED.
Date: August 2, 2017
New York, New York

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