Murphy v. Norfolk & Southern Railway Company

Filing 52

ORDER granting in part and denying in part and moot in part [40 & 43] Defendant's Motions for Partial Summary Judgment; Plaintiff's motion for partial summary judgment is denied; granting 49 plaintiff's Motion to Amend. Signed by Judge Sandra S Beckwith on 3/3/15. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Shawn Murphy,
Plaintiff,
vs.
Norfolk Southern Railway Company,
Defendant.

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) Case No. 1:13-CV-863
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ORDER

This matter is before the Court on cross-motions for partial summary judgment filed
by Defendant Norfolk Southern Railway Company (Doc. No. 40) and Plaintiff Shawn
Murphy (Doc. No. 43). For the reasons that follow, Defendant’s motion for partial summary
judgment is GRANTED IN PART, DENIED IN PART, AND MOOT IN PART. Plaintiff’s
motion for partial summary judgment is not well-taken and is DENIED.1
I. Background
Plaintiff Shawn Murphy presents claims against his employer, Defendant Norfolk
Southern Railway (“Norfolk Southern”) for alleged violations of the Federal Railway Safety
Act (“FRSA”), 49 U.S.C. § 20109, and the Federal Employers’ Liability Act (“FELA”), 45
U.S.C. § 51, et seq. Specifically, Plaintiff alleges that Norfolk Southern violated FRSA by
retaliating against him for reporting a work-related injury and that it violated FELA by failing
to provide him with a safe work environment. The cross-motions for summary judgment

1

Norfolk Southern also filed a motion to amend nunc pro tunc its motion for partial
summary judgment. Doc. No. 49. Norfolk Southern omitted to include a table of
contents and a summary of its arguments as the local rules of civil procedure require
when a motion exceeds 20 pages in length. The amended motion corrects this
deficiency and it is, therefore, granted.

pertain to Plaintiff’s claim that Norfolk Southern violated FRSA by retaliating against him
for reporting a work-related injury. Most, if not all, of the material facts of this case are not
in dispute.
Norfolk Southern is a rail carrier engaged in interstate commerce. At the relevant
time in this case, Plaintiff was a foreman in Norfolk Southern’s maintenance of way
department working out of the Reed Yard in Middletown, Ohio. The maintenance of way
department, as the name suggests, is responsible for keeping the train tracks in a safe and
operable condition.
On the early evening of July 1, 2012, Plaintiff was called out by the assistant track
supervisor, Mike Dillon, to help clear from the track some trees that had been blown down
by a recent storm. Plaintiff was working on one section of the track with a crew consisting
of himself, Joe Davis, and Steve Jarman. Dillon was working with another crew clearing
trees at different location.
At around 9:30 p.m., Plaintiff was using a chainsaw to cut up a tree. He was not
wearing protective leg chaps at the time although they were available and he actually had
worn them earlier in the evening. The chainsaw kicked back and struck Plaintiff in the right
thigh, causing a significant cut. Plaintiff was not aware that he had been injured at first, but
Davis noticed blood on his pants and decided to take Plaintiff to the hospital for medical
treatment.
Rule N of Norfolk Southern’s operating procedures requires an employee who is
injured on the job to report the injury to his immediate supervisor before he leaves work.
The employee is also required to fill out a written report, known as Form 22, about the
accident. The supervisor is then supposed to report the injury up through channels on Form
2

11-131. Norfolk Southern also uses Form 11-131 to compile accident reports for the
Federal Railroad Administration. In addition to ensuring that the employee receives prompt
medical treatment, the purpose of the reporting requirement is so that Norfolk Southern can
investigate the cause of the accident, take any necessary corrective or protective action,
and to comply with its duty to report accidents to the appropriate federal agencies. Rule
P requires that any tool or piece of equipment involved in a work-related injury be taken out
of service until it can be inspected and certified for return to use by the Casualty Claim
Department.
Davis used his personal cell phone to call Dillon and report what had happened to
Plaintiff. Plaintiff then spoke to Dillon and asked him not to make any further reports about
his accident. Plaintiff did not want Dillon to make a report because he did not want to be
ridiculed by his co-workers for being injured because he was not wearing his chaps. He
also testified that he was concerned that the company would retaliate against him for
reporting an injury and that his violation of a safety rule (not wearing chaps) could result in
discipline and hurt his chances for a promotion. Finally, Plaintiff testified that he was
concerned that reporting the accident would jeopardize incentives, such as stock bonuses
and free meals, that his crew could receive for maintaining an injury-free record. Dillon
agreed not to further report the accident. Plaintiff needed 36 stitches to close the wound
but was able to return to work the next day. Plaintiff was able to work and continue working
without any difficulty or restrictions caused by the injury.
About nine months later, in March 2013, an employee made an anonymous
complaint about Plaintiff via email to the Norfolk Southern ethics hotline in Atlanta. The
complaint alleged among other things that Plaintiff had been harassing another employee
3

and that he had failed to report a work-related injury, specifically, that he had failed to
report cutting himself with a chainsaw. Norfolk Southern dispatched Jesse Gearheart, the
Chief Engineer of Plaintiff’s district, and Terri Kwasny, an EEO officer, to the Middletown
yard to investigate the complaint.
Gearheart and Kwasny started their investigation by interviewing everyone on
Plaintiff’s gang, saving Plaintiff’s interview for last. Plaintiff’s co-workers, including Joe
Davis, all stated to Gearheart that they had heard rumors in the past year of someone
injuring himself and not reporting it, but that they had no firsthand knowledge of any such
incident. As is relevant here, during his interview, Gearheart’s first question to Plaintiff was
whether between July 2012 and September 2012 he had cut himself with a chainsaw bad
enough to need stitches and not report it. Plaintiff admitted that he had. He also admitted
that he was not wearing protective chaps at the time. Upon being re-questioned about the
incident after Plaintiff’s interview, Davis declined to answer any questions without a union
representative present. Gearheart immediately took Plaintiff and Davis out of service
pending further investigation into the incident. Plaintiff was taken out of service for failure
to report an injury and Davis was taken out of service for failing to answer questions in an
investigation.
Norfolk Southern obtained Plaintiff’s medical records and confirmed that he had
been cut and needed stitches. Davis reconsidered and agreed to cooperate in the
investigation. Norfolk Southern presented Plaintiff with a Form 22 to complete, which he
did not do until a few days later when a union representative could be present. In the Form
22, Plaintiff stated for the first time that he had notified Dillon that he had cut himself. This
was the first time that Norfolk Southern became aware that Dillon knew about the accident
4

too. Norfolk Southern then conducted an investigation into Dillon’s conduct the day of the
accident.
Norfolk Southern eventually brought Plaintiff up on two charges: 1) conduct
unbecoming a Norfolk Southern employee, specifically, encouraging Dillon and Davis to
conceal his injury; and 2) improper performance of a duty for failing to maintain situational
awareness and for failing to wear personal protective equipment while operating a chain
saw. Those charges were later sustained by a Norfolk Southern hearing officer after an
evidentiary hearing in which Plaintiff was represented by union representatives and
permitted to question witnesses and offer exhibits. Norfolk Southern suspended Plaintiff
for one year, retroactive to March 22, 2013 (the date of his removal from service), barred
him from exercising his seniority as a foreman for any position, and prohibited him from
exercising his seniority for any position in the Middletown district for a period of three years.
It should also be noted that Davis received what amounted to a time-served suspension
of about 10 days. Norfolk Southern terminated Dillon from his management position as
assistant track supervisor. Dillon was able to return to a collective bargaining position, but
had to serve a 78-day suspension and was prohibited from exercising his seniority for a
foreman position for a period of three years.
In the meantime, in April 2013, Plaintiff filed a retaliation complaint with the
Occupational Safety and Health Administration (“OSHA”) alleging that Norfolk Southern
violated FRSA by retaliating against him for reporting a workplace injury. OSHA completed
an independent investigation and in September 2013 issued a decision finding that
Plaintiff’s report of an injury was not a contributing factor in his suspension. Rather,

5

according to the Secretary of Labor, it was Plaintiff’s non-reporting of an injury that led to
his suspension. Accordingly, the Secretary dismissed Plaintiff’s complaint.
Plaintiff filed this lawsuit in November 2013. As mentioned above, the complaint
alleges that Norfolk Southern violated FRSA by retaliating against him for reporting a
workplace injury and that it violated FELA by failing to provide him with a safe work
environment. Following the close of discovery, the parties filed cross-motions for summary
judgment on Plaintiff’s FRSA claim which are now ready for disposition.
II. Summary Judgment Standard of Review
The court “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). An assertion of a undisputed fact must be
supported by citations to particular parts of the record, including depositions, affidavits,
admissions, and interrogatory answers. The party opposing a properly supported
summary judgment motion “‘may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that there is a genuine issue for
trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation
omitted).
The Court is not duty bound to search the entire record in an effort to establish a
lack of material facts. Guarino v. Brookfield Township Trs., 980 F.2d 399, 404 (6th Cir.
1992). Rather, the burden is on the non-moving party to “present affirmative evidence
to defeat a properly supported motion for summary judgment,” Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989), and to designate specific facts in dispute.
Anderson, 477 U.S. at 250. The non-moving party “must do more than simply show that
6

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Ind. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The court construes the evidence
presented in the light most favorable to the non-movant and draws all justifiable
inferences in the non-movant’s favor. United States v. Diebold, Inc., 369 U.S. 654, 655
(1962).
The court’s function is not to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S.
at 249. The court must assess “whether there is the need for trial — whether, in other
words, there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.” Id. at
250. “If the evidence is merely colorable, . . . or is not significantly probative, . . . the
court may grant judgment.” Anderson, 477 U.S. at 249-50 (citations omitted).
III. Analysis
A. Federal Railway Safety Act
1. Retaliation
FRSA prohibits a railroad from retaliating against an employee for, among other
things, reporting a work-related injury. In relevant part, the Act states:
A railroad carrier engaged in interstate or foreign commerce, a contractor or a
subcontractor of such a railroad carrier, or an officer or employee of such 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 or about to be done . . . to notify, or attempt to notify, the railroad carrier
or the Secretary of Transportation of a work-related personal injury or work-related
illness of an employee[.]
49 U.S.C. § 20109(a)(4).
7

FRSA also provides a framework, which was borrowed from the Wendell H. Ford
Aviation Investment and Reform Act for the 21st Century (“AIR-21”), for employees to
establish a retaliation claim.

49 U.S.C. § 20109(d)(2)(A)(FRSA); 49 U.S.C. §

42121(b)(2)(B)(i)-(ii) (AIR-21). Under this framework, the plaintiff must make a prima facie
showing of retaliation by demonstrating by a preponderance of the evidence that: (1) he
engaged in protected activity; (2) the employer knew that he engaged in the protected
activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was
a contributing factor in the unfavorable personnel action. Consolidated Rail Corp. v. United
States Dep’t of Labor, 567 Fed. Appx. 334, 337 (6th Cir. 2014). If the plaintiff meets this
burden, the employer must prove by clear and convincing evidence that it would have taken
the same action against the employee in the absence of the protected activity. Id.
The plaintiff’s protected activity is a “contributing factor” in the unfavorable personnel action
if, alone or in connection with other factors, it tended to affect the outcome of the decision.
Id.2
2

The parties dispute whether FRSA also requires the plaintiff to prove that the
railroad acted with retaliatory intent. Plaintiff, relying on Araujo v. New Jersey Trans.
Rail Operations, Inc., 708 F.3d 152 (3rd Cir. 2013), contends that showing retaliatory
intent is not required to prove his claim. See id. at 158 (“[A]n employee need not
demonstrate the existence of a retaliatory motive on the part of the employee taking the
alleged prohibited personnel action in order to establish that his disclosure was a
contributing factor in the personnel action.”)(quoting Marano v. Department of Justice, 2
F.3d 1137, 1141 (Fed. Cir. 1993)) (emphasis in original). Norfolk Southern, on the other
hand, argues that Plaintiff must show that it acted with retaliatory intent. Norfolk
Southern points out that in Consolidated Rail the Sixth Circuit indicated that it would
require proof of retaliatory motive in a FRSA retaliation case when it stated in the case
before it that the plaintiff had shown that “animus was a contributing factor in Bailey’s
termination.” Consolidated Rail, 567 Fed. Appx. at 338.
Also supporting Norfolk Southern’s position is Indiana Mich. Power Co. v. U.S. Dep’t of
Labor, 278 Fed. Appx. 597 (6th Cir. 2008). Indiana Michigan Power was a
8

Norfolk Southern argues that it is entitled to summary judgment because Plaintiff
failed to report his work-related injury in good faith, and, therefore, did not engage in
protected activity. In support of this argument, Norfolk Southern points out that Plaintiff
asked Dillon not to escalate the report of his injury, that he asked Davis to keep his injury
quiet, that he told the treating staff at the hospital that he injured himself at home instead
of at work, that he was not forthcoming about his injury until Gearheart confronted him
about it after the anonymous tip, and that he would not complete a Form 22 unless he was
with a union representative. According to Norfolk Southern, this is not the behavior of an
employee reporting an injury in good faith.
Plaintiff, however, contends that the “good faith” requirement only requires the
employee to have a good faith belief that his injury is work-related, a requirement he
satisfied in this case because his injury indisputably occurred at work. As to Norfolk

whistleblower case under the Energy Reorganization Act, which also employs the AIR21 burden-shifting framework. Id. at 603. In that case, the Sixth Circuit apparently
incorporated a requirement that the plaintiff demonstrate a retaliatory motive when, after
setting forth the “contributing factor” element, it stated that the plaintiff could prove a
retaliatory motive through circumstantial evidence. Id. at 604. The Ninth Circuit implied
a similar conclusion in Coppinger-Martin v. Solis, 627 F.3d 745 (9th Cir. 2010), which
was a retaliation case under the Sarbanes-Oxley Act. Id. (stating that the plaintiff need
not conclusively establish the employer’s retaliatory motive as part of her prima facie
case). In Kuduk v. BNSF Ry Co., 768 F.3d 786 (8th Cir. 2014), which was a FRSA
case, the Eighth Circuit held that the “contributing factor” a plaintiff must prove is
intentional retaliation by the employer because § 20109(a) prohibits an employer from
discharging or discriminating against an employee for engaging in protected activity. Id.
at 791; see also 49 U.S.C. § 20109(a) (“A railroad carrier engaged in interstate or
foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an
officer or employee of such 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 or about to be done. . . .”) (emphasis added). The
Court, however, need not definitively decide this issue in order to resolve the crossmotions for summary judgment.
9

Southern’s contention that his alleged attempt to cover up his injury belies his good faith,
Plaintiff argues that he did report his injury to his direct supervisor, Dillon, and that it is not
his fault that Dillon failed to do his job and progress the report through channels like he was
supposed to. Much the same is true for Joe Davis - Plaintiff argues that he had no control
over whether Davis disclosed his injury or not. In other words, according to Plaintiff, he is
not responsible for Dillon’s and Davis’s failures to report his injury, even though they did
exactly what he asked them to do. Finally, Plaintiff argues that his protected activity was
a contributing factor in his suspension because Norfolk Southern could never have
disciplined him if he had not reported his injury. Plaintiff, therefore, contends that he is
entitled to summary judgment on his FRSA claim.
The Court concludes, however, that there are substantial factual questions as to
whether Plaintiff meets the requirement that he reported his injury to Norfolk Southern in
good faith. Consequently, neither party is entitled to summary judgment on Plaintiff’s FRSA
claim.
The evidence supporting Plaintiff’s good faith is not overwhelming but is substantial
enough to withstand summary judgment. As Plaintiff argues, it is not disputed that his
injury was work-related and that he believed it to be so when he completed the Form 22.
Additionally, while it takes some chutzpah to make this argument, Plaintiff is correct that
he did initially report his injury to Dillon and that no cover-up of his injury would have
occurred if Dillon had displayed the firmness necessary to reject his request not to progress
the report through channels. Moreover, Gearheart agreed in his deposition that Plaintiff
technically complied with Rule N when he reported the injury to Dillon.

10

On the other hand, substantial evidence supports Norfolk Southern’s contention that
Plaintiff did not report his injury in good faith. As Norfolk Southern has observed, Plaintiff’s
overall course of conduct indicates that he did not act in good faith concerning the reporting
of his injury. Plaintiff asked both Davis and Dillon to keep quiet about his injury, he lied to
the hospital staff about where his injury occurred, he was not forthcoming about being
injured at work until Gearheart directly confronted him about the incident, and he arguably
only involuntarily completed the Form 22. A reasonable juror could find that Plaintiff did not
act in good faith because he successfully concealed his injury until Norfolk Southern
learned of it from another source and forced him to report it. In other words, a reasonable
juror could find that Plaintiff did not act with “honesty of purpose.” 3
It is not the Court’s function to weigh the competing inferences of the record
evidence. There is enough evidence on both sides of this necessary element for the Court
to conclude that neither party is entitled to summary judgment on Plaintiff’s FRSA claim.
3

The parties dispute whether the “good faith” requirement of FRSA means only
that the employee must have a good faith belief that his injury is work-related (Plaintiff)
or whether it means that the employee must have actually made the injury report itself in
good faith (Norfolk Southern). The Court concludes, however, that FRSA incorporates
both requirements. For instance, a plaintiff might honestly believe that his injury was
work-related and report it, even though the injury was in fact due to another cause.
Certainly FRSA would protect an employee from retaliation in that situation. On the
other hand, FRSA applies to “the employee’s lawful, good faith act done[.]” An
employee who had some ulterior motive in reporting an injury, or actually attempted to
avoid reporting an injury, as suggested by some of the evidence in this case, would not
be acting in good faith. See, e.g., BLACK’S LAW DICTIONARY 693 (6th ed. 1990) (“In
common usage, [good faith] is ordinarily used to describe that state of mind denoting
honesty of purpose, freedom from intention to defraud, and, generally speaking, means
being faithful to one’s duty or obligation.”) (emphasis added); Franklin v. Kellogg Co.,
619 F.3d 604, 614 (6th Cir. 2010) (“In all cases involving statutory construction, our
starting point must be the language employed by Congress, and we assume that the
legislative purpose is expressed by the ordinary meaning of the words used.”) (internal
brackets omitted).
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The Court, therefore, need not decide whether Plaintiff can or has marshaled enough
evidence on the remaining elements to grant judgment for or against either party as a
matter of law. Accordingly, neither motion for summary judgment on Plaintiff’s FRSA
retaliation claim is well-taken.
2. Interference With Medical Treatment
Plaintiff also claims in his complaint that Norfolk Southern violated FRSA by
interfering with his medical treatment. FRSA states that “[a] railroad carrier or person . .
. may not deny, delay, or interfere with the medical or first aid treatment of an employee
who is injured during the course of employment.” 49 U.S.C. § 20109(c)(1). FRSA also
requires the railroad to promptly arrange the transportation of an injured employee to the
nearest hospital for medical treatment if he so requests. Id. Norfolk Southern moves for
summary judgment on this claim on the grounds that there is no evidence that it interfered
with Plaintiff’s medical treatment after his chainsaw injury. Plaintiff did not respond to this
argument in his memorandum and apparently has abandoned this claim.
In any event, Norfolk Southern is entitled to summary judgment on Plaintiff’s FRSA
interference with medical treatment claim. The record shows that Joe Davis promptly took
Plaintiff to a hospital after he cut himself with the chainsaw. No one else from Norfolk
Southern went to the hospital or otherwise involved themselves in Plaintiff’s medical
treatment. Indeed, no one from Norfolk Southern could have interfered with medical
treatment since no management official except for Dillon was aware of it until the following
spring. Plaintiff returned to work the day after the accident and had no further medical
complications from his injury.

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Accordingly, Norfolk Southern’s motion for summary judgment on Plaintiff’s FRSA
interference claim is well-taken and is GRANTED.
B. Other Issues
Norfolk Southern has also moved for summary judgment on discrete components
of Plaintiff’s claims for damages under both FRSA and FELA.
First, Norfolk Southern moves for summary judgment on Plaintiff’s claim for punitive
damages pursuant to FRSA. FRSA provides that a prevailing employee may recover
“punitive damages in an amount not to exceed $250,000.” 49 U.S.C. § 20109(e)(3). An
award of punitive damages may be awarded under FRSA where there has been “reckless
or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law.”
Cain v. BNSF Rwy Co., ARB Case No. 13-006, 2014 WL 4966163, at *7 (Dep’t of Labor
Sept. 18, 2014).4 Norfolk Southern argues that even if Plaintiff proves a FRSA violation at
4

Plaintiff contends that if he proves a FRSA violation, an award of punitive
damages is within the complete discretion of the jury and that he is not required to prove
that Norfolk Southern engaged in any sort of malicious conduct to recover punitive
damages. He argues that since § 20109(3) does not include a specific intent standard,
Congress did not intend for FRSA to require plaintiffs to prove that the railroad engaged
in reckless or malicious conduct in order to recover punitive damages. The Court
doubts, however, that Congress intended to leave an award of punitive damages
completely to a jury’s unfettered discretion. The two FRSA court cases on punitive
damages that the Court was able to find both apparently required the plaintiff to prove
that the railroad’s conduct was malicious, reckless or reprehensible in order to recover
punitive damages. Barati v. Metro-North R.R. Commuter R.R. Co., 939 F. Supp.2d 143,
146-47 (D.Conn. 2013); Wallis v. BNSF Rwy Co., No. C13-40 TSZ, 2014 WL 1648472,
at *1 (W.D. Wash. Apr. 23, 2014). Additionally, the Department of Labor has
consistently interpreted FRSA to require proof of malicious or reckless conduct by the
railroad in order to recover punitive damages. See, e.g., Cain, supra at *7; Petersen v.
Union Pac. RR Co., 2011-FRS-00017, at 32-33 (Dep’t of Labor Aug. 7, 2013) (collecting
cases), available by case number, decision date, or party search at
http://www.oalj.dol.gov (visited February 20, 2015). This is at least persuasive authority
that FRSA incorporates the traditional requirement that the plaintiff must prove that the
defendant acted with malice or with reckless disregard of his rights to recover punitive
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trial, there is no evidence of egregious employer misconduct which would warrant the
imposition of punitive damages.
Plaintiff responds that whether Norfolk Southern acted with the requisite mental state
for punitive damages is peculiarly a question within the province of the jury that cannot be
decided on summary judgment. There is no bar, however, to granting summary judgment
on a punitive damages claim so long as the record warrants it. E.g., Klepper v. First
American Bank, 916 F.2d 337, 342-43 (6th Cir. 1990).
Plaintiff also relies on cases where juries awarded punitive damages to FRSA
plaintiffs whose punishment was less severe than he received from Norfolk Southern in this
case. Plaintiff apparently believes that the severity of the punishment meted out to the
employee, without regard to the nature of the railroad’s conduct in imposing the discipline,
is sufficient, without more, for him to recover punitive damages in this case. In two of the
cases cited by Plaintiff, however, the plaintiff was able to adduce evidence of the railroad’s
egregious conduct. In Barati v. Metro-North R.R. Commuter R.R. Co., 939 F. Supp.2d 143
(D.Conn. 2013), for instance, the railroad failed to train the plaintiff properly, failed to
provide adequate lighting, resulting in the injury which he otherwise promptly reported,
singled him out for discipline for a safety violation, and terminated him in violation of its
written policies and FRA regulations and to discourage employees from reporting injuries
in order to keep its injury and lost-workday statistics low. Id. at 146. In Brig v. Port Auth.

damages. In re Carter, 553 F.3d 979, 987 (6th Cir. 2009)(“[T]he views of an agency
charged with applying a statute constitute a body of experience and informed judgment
to which courts and litigants may properly resort for guidance.”); 49 U.S.C. § 20109
(d)(1)(designating the Secretary of Labor to enforce FRSA retaliation provisions).
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Trans Hudson, No. 12 Civ. 5371, 2014 WL 1318345 (S.D.N.Y. Mar. 28, 2014), the railroad
“violated the FRSA by harassing, intimidating, and penalizing the Plaintiffs for reporting an
incident in which they were almost struck by a consist.”5 Id. at *1. In Wallis v. BNSF Rwy
Co., the railroad never actually moved for summary judgment on the plaintiff’s claim for
punitive damages, so the fact that the district court withheld the issue for the jury says
nothing about whether Norfolk Southern is entitled to summary judgment on Plaintiff’s
punitive damages claim in this case. See Wallis v. BNSF Rwy Co., Case No. 2:13-CV-040
(W.D. Wash. Dec. 30, 2013), Doc. No. 41. In Almendarez v. BNSF Rwy Co., the railroad
did not file a motion for summary judgment at all. See generally Almendarez v. BNSF Rwy
Co., Case No. 2:13-CV-86 (W.D.Wash). In short, none of the cases cited by Plaintiff
indicate that Norfolk Southern is not entitled to summary judgment on his punitive damages
claim.
Plaintiff has not pointed to any material evidence showing that Norfolk Southern
disciplined him in reckless or callous disregard of his FRSA rights. He does claim that a
jury could award him punitive damages because Norfolk Southern continues to insist that
he conspired to conceal his injury when Jess Gearheart admitted that he complied with
Rule N by reporting the injury to Dillon. This argument does not save his punitive damages
claim from summary judgment, however. Yes, Plaintiff did technically comply with Rule N,
but as stated above, there is also substantial evidence, including his own admissions, that
he actively sought and obtained Dillon’s and Davis’s participation in squelching any further

5

A “consist” is a group of coupled vehicles that make up a train. See Train
Dictionary, available at http://www.vre.org/service/terminology.htm (visited Feb. 20,
2015).
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reporting of his injury through channels.

The term “conspiracy” might be a little

melodramatic, but it is not an unreasonable view of the facts on Norfolk Southern’s part,
and certainly nothing, by itself, to merit the imposition of punitive damages.
Plaintiff has failed to meet his Rule 56 burden to come forward with evidence
demonstrating a material issue of fact on his claim for punitive damages. Accordingly,
Norfolk Southern is entitled to summary judgment on this claim.
Second, Norfolk Southern argues that Plaintiff is seeking damages that are not
available under FELA. Plaintiff, on the other hand, recognizes that some damages are
available under FRSA, but not FELA, and he states that he is not seeking to recover
anything for his FELA claim that FELA does not provide. In other words, Plaintiff indicates
that he only seeking FRSA damages for his FRSA claim and FELA damages for his FELA
claim. With that clarification in mind, this aspect of Norfolk Southern’s motion for summary
judgment is moot.
Third, Norfolk Southern moves for summary judgment on Plaintiff’s FELA claim for
back pay, future medical expenses, and damages for future pain and suffering because he
conceded that he did not miss any work due to the chainsaw injury and admitted that he
does not suffer any lingering effects from the injury. Plaintiff did not specifically address
this argument in his brief but contends broadly that all damages issues should be reserved
for the jury. It was Plaintiff’s burden on summary judgment to come forward with evidence
demonstrating that he incurred these damages after Norfolk Southern showed there was
no genuine issue of fact on these claims. Roden v. Sowders, 84 Fed. Appx. 611, 613 (6th
Cir. 2003). Plaintiff did not meet his burden; therefore, Norfolk Southern is entitled to

16

summary judgment on Plaintiff’s FELA claim for back pay, future medical expenses, and
damages for future pain and suffering.
Conclusion
In conclusion, Defendant’s motion for partial summary judgment is GRANTED IN
PART, DENIED IN PART, AND MOOT IN PART. Plaintiff’s motion for partial summary
judgment is not well-taken and is DENIED. Each party’s motion for summary judgment
is denied to the extent it seeks judgment on liability under FRSA. Defendant’s motion
for summary judgment is well-taken and granted on Plaintiff’s FRSA claim for punitive
damages and on his FELA claim for back pay, future medical expenses, and damages
and future pain and suffering. To extent that Defendant contends that Plaintiff is
seeking FRSA damages under FELA, or vice versa, the motion is moot.

IT IS SO ORDERED

Date March 3, 2015

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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