Murdock v. CSX Transportation Inc.
Memorandum Opinion: For the reasons stated, I grant Defendant's motion to dismiss (Doc. No. 7). Motions terminated: 7 . Judge Jeffrey J. Helmick on 3/29/2017. (SG,D)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Michael J. Murdock,
Case No. 3:15-cv-01242
CSX Transportation, Inc.,
Before me is Defendant CSX Transportation, Inc.’s motion to dismiss (Doc. No. 7),
Plaintiff’s opposition (Doc. No. 11), and Defendant’s reply (Doc. No. 12).
dismissal is appropriate because Plaintiff’s off-duty personal illness falls outside the scope of the
anti-retaliation provisions to the Federal Railway Safety Act (“FRSA”), allegedly violated by CSX.
For the reasons that follow, I find the Defendant’s motion to dismiss well taken.
Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a lawsuit for “failure to
state a claim upon which relief can be granted.” Courts must accept as true all of the factual
allegations contained in the complaint when ruling on a motion to dismiss. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to
dismiss under Rule 12(b)(6), “even though a complaint need not contain ‘detailed’ factual allegations,
its ‘factual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true.’” Ass'n of Cleveland Fire Fighters v. City of
Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain something more than “a
formulaic recitation of the elements of a cause of action”). A complaint must state sufficient facts
to, when accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (explaining that the plausibility standard “asks for more than a sheer possibility that a
defendant has acted unlawfully” and requires the complaint to allow the court to draw the
reasonable inference that the defendant is liable for the alleged misconduct).
A. Positions of the Parties
Plaintiff was an employee of CSX at the time of his termination. He claims the Defendant
violated the Federal Railroad Safety Act, 49 U.S.C. § 20109(b) (1) and (c) (2), insofar as he was
terminated after missing work due to illness. Plaintiff alleges he was engaged in protected conduct
when he missed work due to illness, nevertheless the Defendant terminated him from employment
in violation of the FRSA.
In contrast, Defendant contends Plaintiff fails to state a claim upon which relief can be
granted as he neither reported a work-related illness nor missed work pursuant to a physician’s
orders or treatment plan. Alternatively, the Defendant argues Plaintiff failed to properly exhaust his
administrative remedies or that he pled facts sufficient to sustain a claim for relief under 49 U.S.C. §
Both sides dispute whether Plaintiff was engaged in FRSA-protected activity. The
Defendant states this activity was not protected because the Plaintiff did not suffer from a work2
related illness or injury. The Plaintiff contends § 20109(c)(2) protects an employee whether or not
his illness or injury is work-related.
B. Employee protections under § 20109(c)
The FRSA’s anti-retaliation provision addresses prompt medical attention as follows:
(c) Prompt medical attention.-(1) Prohibition.--A railroad carrier or person covered under this section may not deny,
delay, or interfere with the medical or first aid treatment of an employee who is injured during
the course of employment. If transportation to a hospital is requested by an employee who is
injured during the course of employment, the railroad shall promptly arrange to have the
injured employee transported to the nearest hospital where the employee can receive safe
and appropriate medical care.
(2) Discipline.--A railroad carrier or person covered under this section 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, except that
a railroad carrier’s refusal to permit an employee to return to work following medical
treatment shall not be considered a violation of this section if the refusal is pursuant to
Federal Railroad Administration medical standards for fitness of duty or, if there are no
pertinent Federal Railroad Administration standards, a carrier’s medical standards for
fitness for duty. For purposes of this paragraph, the term “discipline” means to bring
charges against a person in a disciplinary proceeding, suspend, terminate, place on
probation, or make note of reprimand on an employee’s record.
49 U.S.C. § 20109(c)(1)-(2) (emphasis added).
C. Statutory Construction
Congress enacted the FRSA to discourage railway employers from influencing the medical
care of employees injured on the job1 and “‘promote safety in every area of railroad operations and
reduce railroad-related accidents and incidents.’” CSX Transp., Inc. v. City of Plymouth, 283 F.3d 812,
815 (6th Cir. 2002) (quoting 49 U.S.C. § 20101)). According to Barnett,
supervisors accompan[ied] employees on their medical appointments and
attempt[ed] to influence employee medical care, sending employees to company
physicians instead of physicians of their own choosing, and light-duty work
programs, which have the injured employee report to work, but perform no work, to
Barnett, Whistleblower Protection for Railroad Workers Under the Federal Rail Safety Act, 49 U.S.C. § 20109: Disputes
about the Statute’s “Plain Meaning,” SU015 ALI-CLE 1495 (2012) (hereinafter “Whistleblower Protection”).
avoid having to report the injury as a lost work day to the Federal Railroad
Barnett, Whistleblower Protection (citing Santiago v. Metro-North Commuter Railroad Co., ARB Case
No. 10-147, 2012 WL 3255136 (July 25, 2012) and “Impact of Railroad Injury, Accident, and
Discipline Policies on the Safety of America’s Railroads,” Hearing Before the House Committee on
Transportation and Infrastructure, 110th Cong. (2007)(H. Hrg. 110-84)(Oct. 22, 2007)).
The FRSA gives the Secretary of Transportation the power to “‘prescribe regulations and
issue orders for every area of railroad safety supplementing laws and regulations in effect on
October 16, 1970.’” Id. (quoting 49 U.S.C. § 20103(a)). The FRSA was amended several times to
“‘enhance ’ employees’ ‘administrative and civil remedies,’ and ‘to ensure that employees can report
their concerns without the fear of possible retaliation or discrimination from employers.’” Norfolk S.
Ry. Co. v. Perez, 778 F.3d 507, 510 (6th Cir. 2015), reh'g denied (May 11, 2015) (quoting H.R. Rep. No.
110-259, at 348 (2007), 2007 U.S.C.C.A.N. 119, 181 (Conf.Rep.) (internal quotation marks omitted)).
Both sides agree the Sixth Circuit has not addressed whether the anti-retaliation provision of
49 U.S.C. § 20109(c)(2) applies to non-work related illness. In making a determination, I first turn to
guidance from the Sixth Circuit on statutory interpretation.
The Sixth Circuit requires I enforce the plain meaning of a statute if the language is
unambiguous. A. Philip Randolph Inst. v. Husted, 838 F.3d 699, 716 (6th Cir. 2016) (quoting United
States v. Plavcak, 411 F.3d 655, 661 (6th Cir. 2005)). “[A]mbiguity of statutory language is determined
by reference to the language itself, the specific context in which that language is used, and the
broader context of the statute as a whole.” Flores v. U.S. Citizenship & Immigration Servs., 718 F.3d
548, 551 (6th Cir. 2013) (quoting Nat’l Cotton Council of Am. v. U.S. EPA, 553 F.3d 927, 933 (6th Cir.
2009)). Merriam-Webster defines “context” as “the part or parts of a written or spoken passage
preceding… a particular word or group of words and so intimately associated with them as to throw
light upon their meaning.” Webster’s Third New International Dictionary 492 (3d. ed. 1986).
In Port Auth. Trans-Hudson Corp. v. Sec'y, U.S. Dep't of Labor, 776 F.3d 157 (3d Cir. 2015), the
Third Circuit recently decided that off-duty injuries—such as Plaintiff’s bronchitis—fall outside the
protections of the provisions of the FRSA allegedly violated by Defendant CSX.
The issue in Port Authority was whether 49 U.S.C. § 20109(c)(2) applied to off-duty injuries.
The claimant was a repairman who was suspended due to absenteeism and challenged his
suspension as a retaliatory action for taking sick leave statutorily protected under the FRSA. His
complaint, filed with the United States Secretary of Labor, was adjudicated before an administrative
law judge who determined the railroad to have violated the FRSA by disciplining the claimant
relative to his off-duty injury. The award was upheld by the Department of Labor. On appeal to
the Third Circuit, the railroad requested resolution of “whether subsection (c)(2) applies to orders of
treating physicians that stem from off-duty injuries.” Id. at 160.
The appellate court began by examining the anti-retaliation provision noting that subsection
(c)(1) referenced injuries “during the course of employment,” while subsection (c)(2) did not contain
this language. The railroad argued that the “treatment” aspect referenced in subsection (c)(2)
referenced the “treatment” in subsection (c)(1) and in so doing “incorporate[d] the ‘during the
course of employment’ limitation into subsection (c)(2).” Id. at 162.
The appellate court rejected the DOL’s argument these subsections were distinct noting if a
physician’s order directed an employee not to work, because there was no time limitation in the
language, the DOL’s interpretation “would functionally confer indefinite sick leave on all railroad
employees who c[ould] obtain a physician’s note.” Id. The Third Circuit determined that “because
subsection (c)(2) [wa]s an anti-retalitation provision obviously related to subsection (c)(1), it should
presumptively be interpreted only to further the objectives of subsection (c)(1).” Id.
The Third Circuit also noted, “[g]enerally, an ‘antiretaliation provision seeks to secure [the]
primary objective’ advanced by the substantive provision.” Id. at 163 citing Burlington N. & Santa Fe
Ry. Co., v. White, 548 U.S. at 63 (2006). Examining the statutory text, the appellate court determined
that “[i]nterpreting subsection (c)(2) to also cover off-duty injures would not further the purposes of
subsection (c)(1), which is explicitly limited to on-duty injuries.” Id.
The appellate court considered whether there was evidence that Congress intended
subsection (c)(2) to advance an independent objective looking to the Administrative Review Board’s
(ARB) decision finding (c)(2) was not limited to on-duty injuries. The court further noted that
fourteen months earlier, a different ARB panel came to the opposite conclusion on the same issue.
The Third Circuit rejected the ARB’s reliance on Russello v. United States, 464 U.S. 16, 23
(1983), for the proposition that the “absence of any express on-duty limitation in subsection (c)(2),
in contrast to the presence of such a limitation in subsection (c)(1), means that Congress did not
intend for that limitation to apply to subsection (c)(2).” Id.
The panel in Port Authority acknowledged a superficial similarity in the case before it and the
one in Russello, a RICO action. It further found the presumption in Russello “only applies when the
two provisions are sufficiently distinct that they do not—either explicitly or implicitly—incorporate
language from the other provision.” Id. at 164. The Third Circuit did not find the Russello
presumption persuasive because there was not “a hypothesis of careful draftsmanship,” evidenced in
the “inexact drafting in § 20109.” Id. at 165 citing Kapral v. United States, 16 F.3d 656, 579 (3d. Cir.
1999) and City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 435-36 (2002) (notably
not following the Russello presumption due to perceived drafting inconsistencies).
In declining to apply the Russello presumption, the appellate court also relied on the
Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 7 (2011), for
the proposition that “interpretation of [a] phrase [in an anti-retaliation provision] ‘depends upon
reading the whole statutory text, considering the purpose and context of the statute, and consulting
any precedents or authorities that inform the analysis.’”
At least two other district courts have adopted this reasoning. See Miller v. Bnsf Railway Co.,
Case No. 14-2596-JAR-TJJ, 2016 WL 2866152 (D. Kansas May, 17, 2016) (motion for summary
judgment); Goad v. BNSF Railway Co., Case No. 15-00650-CV-W-HFS, 2016 WL 7131597 (W.D.
Mo. March 2, 2016) (motion to dismiss).
I find the Third Circuit reasoning to be persuasive in interpreting subsections (c)(1) and
(c)(2) of 49 U.S.C. § 20109. In addition, “[I]dentical words or phrases within the same statute
should normally be given the same meaning.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007) (quoted in Day v. James Marine, Inc., 518 F.3d 411, 416 (6th Cir. 2008)). The phrase “of an
employee who is injured during the course of employment” is a post-modifying prepositional phrase
limiting the meaning of the noun “medical or first aid treatment.” Subsection (c)(2) uses the
“identical” noun “medical or first aid treatment.” Thus, I find “medical or first aid treatment” is
limited to injuries that occur “during the course of employment.”
Based upon the foregoing, I find the Plaintiff has failed to state a cause of action because his
non-work-related illness is not covered by the FRSA.
D. Applicability of § 20109(b)
The Defendant also seeks dismissal for alleged violations of employee protections under §
20109(b), which states in pertinent part:
(b) Hazardous safety or security conditions.--(1) A railroad carrier… shall not
discharge, demote, suspend, reprimand, or in any other way discriminate against an
employee for-(A) reporting, in good faith, a hazardous safety or security condition;
(B) refusing to work when confronted by a hazardous safety or security
condition related to the performance of the employee’s duties, if the conditions
described in paragraph (2) exist; or
(C) refusing to authorize the use of any safety-related equipment, track, or
structures, if the employee is responsible for the inspection or repair of the
equipment, track, or structures, when the employee believes that the equipment,
track, or structures are in a hazardous safety or security condition, if the
conditions described in paragraph (2) exist.
(2) A refusal is protected under paragraph (1)(B) and (C) if-(A) the refusal is made in good faith and no reasonable alternative to the refusal
is available to the employee;
(B) a reasonable individual in the circumstances then confronting the employee
would conclude that-(i) the hazardous condition presents an imminent danger of death or serious
(ii) the urgency of the situation does not allow sufficient time to eliminate
the danger without such refusal; and
(C) the employee, where possible, has notified the railroad carrier of the
existence of the hazardous condition and the intention not to perform further
work, or not to authorize the use of the hazardous equipment, track, or
structures, unless the condition is corrected immediately or the equipment, track,
or structures are repaired properly or replaced.
(3) In this subsection, only paragraph (1)(A) shall apply to security personnel
employed by a railroad carrier to protect individuals and property transported by
49 U.S.C. § 20109(b)(1)(B).
Plaintiff alleges his “dizziness,” “difficulty breathing,” and “shortness of breath” created a
“hazardous safety or security condition” because “[s]uch symptoms made it impossible for Mr.
Murdock to operate, or even stand near, heavy equipment, safely.” (Doc. No. 1 at ¶ 23, 65). A
similar argument was rejected by the district court in Goad v. BNSF Railway Co., 2016 WL 7131597
at *4. There, the plaintiff notified the railroad he was medically unfit to perform his duties due to
his medical condition, alleging he was reporting a hazardous safety condition under the FRSA and
afforded protection under § 20109(b). The district court there relied on the Port Authority TransHudson case in noting the work-related limitation in subsection (c)(2) could also apply to section (b).
The word “condition” is used throughout subsection (b). It is used relative to “equipment,
track, or structures,” in subsection (b)(2)(B). I, therefore, find Congress did not contemplate
“condition” as used in § 20109(b) to include personal illnesses. See Day, 518 F.3d at 416 (quoting
Powerex Corp., 551 U.S. at 224) (“‘[I]dentical words and phrases used within the same statute should
normally be given the same meaning’”).
Consistent with the determinations by other courts considering this issue, I find Plaintiff’s
personal illness does not qualify for protection under the statute as to subsection (b). Therefore, the
Defendant’s motion to dismiss is also granted as to this claim.
For the reasons stated above, I grant Defendant’s motion to dismiss (Doc. No. 7).
s/ Jeffrey J. Helmick
United States District Judge
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