STOKES v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

Filing 10

MEMORANDUM ORDER THAT DEFENDANTS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOC. 5 ) IS GRANTED. THE COMPLAINT IS DISMISSED WITHOUT PREJUDICE. PLAINTIFF MAY FILE AN AMENDED COMPLAINT CURING THE DEFICIENCIES OUTLINED HEREIN WITHIN 21 DAYS OF ENTRY OF THIS ORDER. SIGNED BY HONORABLE LEGROME D. DAVIS ON 8/28/2015. 8/28/2015 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JUNEISA SLOWE STOKES,
Plaintiff,
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY,
Defendant.

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CIVIL ACTION

NO. 15-2719

MEMORANDUM ORDER
AND NOW, this 28th day of August 2015, upon consideration of defendant’s Motion to
Dismiss for Failure to State a Claim (Doc. No. 5), plaintiff’s response in opposition thereto (Doc.
No. 6), and defendant’s reply (Doc. No. 9), it is hereby ORDERED that the motion is GRANTED.
The complaint (Doc. No. 1) is DISMISSED without prejudice. Plaintiff may file an amended
complaint curing the deficiencies outlined herein within 21 days of entry of this Order.
Plaintiff Juneisa Slowe Stokes brings this action for retaliatory discharge pursuant to the
Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109. (Compl. ¶ 5, Doc. No. 1). Plaintiff
alleges that she was a former employee of defendant Southeastern Pennsylvania Transportation
Authority (SEPTA) and was fired in retaliation for her refusal to attend a mandatory medical
evaluation, though she notified SEPTA prior to the evaluation that she was unable to attend due to
postpartum medical restrictions documented by her physician. (Compl. ¶¶ 8–11.) Defendant
SEPTA moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that
(1) plaintiff’s claims were barred by a release she signed in early 2015; (2) plaintiff may not bring
a FRSA claim based on retaliation for following a doctor’s orders where the underlying injury is
not work-related; (3) plaintiff’s postpartum restrictions and consequent refusal to report to a

medical evaluation do not fall within FRSA’s prohibition on retaliation against an employee for
refusal to perform work in unsafe conditions; and (4) plaintiff’s alternative theory that SEPTA’s
actions were in retaliation for a 2012 on-the-job wrist injury is inadequately pled. (Def.’s Mem.
Supp. Mot. to Dismiss, Doc. No. 5.) Plaintiff filed a response to the motion (Doc. No. 6) and
defendant filed a reply brief (Doc. No. 8). We conclude that plaintiff has failed to plead sufficient
facts to show that her refusal to attend the mandatory evaluation was precipitated by the kind of
risk encompassed by 49 U.S.C. § 20109(b) and that her pleading in the alternative based on the
wrist injury is inadequate to survive a motion to dismiss.
I. Background
On October 21, 2012, plaintiff injured her right hand while performing her job duties for
SEPTA. (Compl. ¶ 11a.) While out of work recovering from her injury, she became pregnant.
(Compl. ¶ 11b.) Plaintiff informed SEPTA of her pregnancy in May and June of 2013. (Compl. ¶
11c.) On August 13, 2013, plaintiff received a restriction note from her treating physician for the
pregnancy indicating that plaintiff would be able to return to full duty on December 4, 2013.
(Compl. ¶ 11d.) On August 22, 2013, plaintiff was cleared by her orthopedic hand doctor to return
to work. (Compl. ¶ 11e.) Plaintiff received another work restriction letter from her treating
OB/GYN on September 17, 2013, imposing restrictions until her anticipated delivery date in
October. (Compl. ¶ 11f.) Given the restrictions imposed by her pregnancy physician, SEPTA
determined that plaintiff was unable to return to duty in any capacity. (Compl. ¶ 11g.) Plaintiff
gave birth on October 9, 2013 by Caesarean section. (Compl. ¶ 11h.) While plaintiff was
recovering at home, on October 15, 2013, plaintiff’s home nurse noticed swelling in her left leg
and indicated concern over the potential presence of deep vein thrombosis. (Compl. ¶ 11i.) Both
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immediately following the birth and on October 15, 2013, plaintiff was “informed to significantly
limit her activity for eight weeks post delivery.” (Compl. ¶ 11j.)
On October 17, 2013, SEPTA notified plaintiff that she was required to report to SEPTA’s
medical department on October 31, 2013 for an evaluation. (Compl. ¶ 11k.) In response, plaintiff
“notified SEPTA’s staff and supervisors of her current medical restrictions, including the need for
limited activity” and “again” provided documentation of her medical restrictions to SEPTA.
(Compl. ¶ 11l.) SEPTA did not reschedule the October 31, 2013 evaluation. (Compl. ¶ 13.) On
October 28, 2013, a representative of SEPTA informed plaintiff that she would be discharged if
she failed to attend the evaluation as scheduled. (Compl. ¶ 17d.) Plaintiff ultimately did not attend
the October 31, 2013 evaluation “due to her concerns of traveling and having to undergo extensive
medical and administrative evaluation.” (Compl. ¶ 11m.) Plaintiff alleges that “[h]er decision was
based not only on her medical restrictions previously provided but also her physical condition that
date and her concern that travel and her time at the SEPTA facility would cause her significant
bodily harm.” (Id.) Also on October 31, 2013, a representative of SEPTA sought records from
plaintiff’s treating OB/GYN related to her prior 2012 hand injury. (Compl. ¶ 17e.) On November
1, 2013, plaintiff was discharged for failing to attend the medical evaluation. (Compl. ¶ 17a.)
II. Legal standard
When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), the
court conducts a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
“First, the factual and legal elements of a claim should be separated.” Id. The court should
disregard any legal conclusions but accept all well-pleaded factual allegations as true for purposes
of the motion. Id. at 210–11 (citing Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009)). Importantly,
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“legal conclusions draped in the guise of factual allegations may not benefit from the presumption
of truthfulness.” Bryant v. Vessell, No. 09-5337, 2009 WL 4510129, at *1 (D.N.J. Nov. 30, 2009)
(citing Nice Sys., Ltd. Sec. Litig., 135 F.Supp.2d 551, 565 (D.N.J.2001)). Next, the court
determines whether the factual matter in the complaint “state[s] a claim to relief that is plausible on
its face.” Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. “[A] complaint may not be dismissed merely because it appears unlikely that the plaintiff can
prove those facts or will ultimately prevail on the merits.” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008). Rather, a plaintiff need only allege “enough facts to raise a reasonable
expectation that discovery will reveal evidence of the necessary element” of their claim. Id. at 234
(citing Twombly, 550 U.S. at 556).
III. Discussion
The FRSA is intended “to promote safety in every area of railroad operations.” 49 U.S.C. §
20101. To that end, in 2007 Congress substantially amended the law to provide railroad employees
significant protections from retaliation due to whistleblowing or other acts furthering railroad
safety. See Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 156–57 (3d Cir.
2013); 49 U.S.C. § 20109. The statute provides a number of specific protected activities for which
a railroad employee may not be disciplined. Id. at 157. As is relevant here, the FRSA protects from
discipline an employee who notifies an employer of a work-related injury, § 20109(a)(4), who
refuses to work when confronted with a hazardous safety condition, § 20109(b), or who follows
the orders or treatment plan of a physician, § 20109(c)(2).
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1. Plaintiff’s claims based on her pregnancy and postpartum recovery
Because plaintiff’s complaint is not completely clear as to which statutory subsection it
relies upon in seeking relief, we will consider each of the relevant provisions. Section 20109(a)(4)
by its terms applies only to a “work-related personal injury or work-related illness,” which
plaintiff’s pregnancy clearly is not. Section 20109(c)(2) has similarly been recently interpreted by
the Third Circuit to apply only to the orders or treatment plan of a physician resulting from a
work-related injury. Port Auth. Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor, 776 F.3d 157
(3d Cir. 2015). Therefore, plaintiff’s retaliation claim based on her pregnancy could only arise
under § 20109(b), which provides:
(1) A railroad carrier engaged in interstate or foreign commerce, or
an officer or employee of such 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 injury; and
(ii) the urgency of the situation does not allow
sufficient time to eliminate the danger without such
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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.
(emphasis added). We conclude based on the plain language of the statute that plaintiff has failed
to allege sufficient facts to establish that “a reasonable individual in the circumstances confronting
the employee would conclude that the hazardous condition presents an imminent danger of death
or serious injury,” 49 U.S.C. § 20109(b)(2)(B)(i).
Though plaintiff’s complaint contains allegations mirroring the language of the statute, “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. In
terms of actual facts, plaintiff has failed to allege that she would have experienced an imminent
danger of death or serious injury had she attended the medical evaluation. The only facts in the
complaint describing the risk are that plaintiff was “informed” (by an unnamed person) “to
significantly limit her activity for eight weeks post delivery.” (Compl. ¶ 11j.) She alleges that her
leg swelled and that a nurse may have suspected deep vein thrombosis, but does not allege a
confirmed diagnosis or any specific risk presented by the condition that would prevent her from
attending a medical evaluation. (Compl. ¶ 11i.) Finally, she alleges that her decision not to attend
the medical evaluation was based on not only her medical restrictions but also “her physical
condition that date and her concern that travel and her time at the SEPTA facility would cause her
significant bodily harm.” (Compl. ¶ 11m.) These allegations do not rise to the level of an imminent
danger of death or serious injury. Plaintiff fails to allege what potential injury she could have
sustained by attending the medical evaluation. Plaintiff states only that she was instructed by
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someone, two weeks prior to the appointment, to limit her physical activity, and that she felt
subjectively that there was a risk of some unnamed harm if she attended the evaluation. The
complaint does not even reveal whether the person who instructed plaintiff to limit her physical
activity was a doctor or other medical professional. The statute requires that the situation be
evaluated from the perspective of a “reasonable individual in the circumstances,” §
20109(b)(2)(B), and a reasonable individual in plaintiff’s circumstances, based on the facts
alleged, would not conclude that attending a medical evaluation would place them in imminent
danger of death or serious injury. Therefore, plaintiff has failed to state a claim for retaliation
based on her failure to attend the medical evaluation on October 31, 2013.
2. Plaintiff’s alternative pleading based on the hand injury
Plaintiff’s complaint contains the conclusory statement that “[i]f SEPTA advocates that the
Plaintiffs termination was related to Plaintiffs October 2012 [hand injury], Plaintiff reserves the
right to argue such termination also violates the Federal Railroad Safety Act.” (Compl. ¶ 20.) To
the extent that such a conclusory pleading even qualifies as a claim, it is woefully inadequate to
survive a motion to dismiss. Plaintiff speculates in her opposition that SEPTA’s actions in seeking
records from her OB/GYN for a period prior to her pregnancy suggest retaliatory motive (Pl.’s
Mem. Opp. 14–15). The Court does not see why this would be the case, and in any event plaintiff
fails to provide any factual allegations in support of her broadly-construed claim regarding her
hand injury. Therefore, to the extent that this argument constitutes a claim, it is dismissed.
IV. Conclusion
For the above-stated reasons, the Court concludes that plaintiff has failed to state a claim
for retaliation under the FRSA. Because it is unclear at this stage whether plaintiff may be able to
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state a claim, and leave to amend pleadings “should be liberally granted,” Long v. Wilson, 393
F.3d 390, 400 (3d Cir. 2004), plaintiff may file an amended complaint within 21 days of entry of
this Order.

BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.

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