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Thompson v. Norfolk Southern Railway Co.

United States District Court, N.D. Georgia, Atlanta Division

March 31, 2015



CLARENCE COOPER, Senior District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. No. 62] and Plaintiff's Motion to Exclude Undisclosed Evidence and Witness or for Discovery [Doc. No. 64]. For the reasons stated herein, the Court denies Defendant's Motion for Summary Judgment and grants Plaintiff's Motion to Exclude Undisclosed Evidence and Witness.


A. Statement of Facts

Unless otherwise indicated, the following facts are material and undisputed in this action.

1. Plaintiff's On-the-Job Injury

Plaintiff Shaun Thompson ("Plaintiff" or "Thompson") worked for Defendant Norfolk Southern Railway Company ("Defendant" or "Norfolk Southern") for several years and most recently as a locomotive engineer trainee. Plaintiff is represented by the United Transportation Union ("UTU"). Norfolk Southern and its unions, such as the UTU, are parties to collective bargaining agreements that establish the rates of pay, rules, and working conditions of represented employees, such as Plaintiff.

Plaintiff alleges in this case that while working a regular assignment in East Point Yard on the night of March 31-April 1, 2012, he felt pain in his leg while attempting to adjust a drawbar. Plaintiff was able to finish his shift, but before leaving work on the morning of April 1, 2012, he notified a supervisor that he was in pain. In response to Plaintiff's report of an injury, the on-site supervisor, Michael Chambliss, asked Plaintiff to stay while two other supervisors were summoned.

Chambliss alerted his superior, Sheldon Crowley, of Plaintiff's alleged injury. Crowley and another supervisor, Dominik Browne, traveled to the yard where Plaintiff was working and met with Plaintiff. Browne asked Plaintiff if he needed medical attention, and Plaintiff said he did not. Plaintiff told his supervisors that he wanted to go home, elevate his leg, and put some ice on it.

2. The Investigation of the Incident

Upon questioning by Crowley and Browne about the incident, Plaintiff informed them that he felt a pain while adjusting a drawbar. Crowley and Brown testified that Plaintiff demonstrated that he backed up to the drawbar and lifted the bar with his hands behind his back, which is an approved technique. Two other Norfolk Southern supervisors, Justin Turner and Michael Chambliss, were also working in the building at the time and testified that they saw Plaintiff demonstrate how he had been adjusting the drawbars. Plaintiff does not dispute that these individuals testified to Plaintiff having done such a demonstration, but Plaintiff disputes that he actually did a demonstration.

In an effort to identify the equipment involved in the incident, [1] Norfolk Southern secured a video that showed Plaintiff working that night. The parties dispute whether the video shows Plaintiff lifting a drawbar while facing the drawbar or opening a knuckle.[2] Norfolk Southern contends that the video shows the former, while Plaintiff maintains that the video shows the latter.

Plaintiff and his co-worker, Josh Newmon, were doing various railroad tasks on the night in question, including both adjusting drawbars and opening knuckles. At some point, Plaintiff told Newmon that he injured his leg while attempting to adjust a drawbar. After Plaintiff was injured, the supervisors investigating the injury asked Newmon to come talk to them. Newmon initially told the investigating officers that Plaintiff had not violated any rules and had done everything correctly. Later, after Browne showed Newmon the surveillance video and asked him "how did he explain the drawbar being improperly operated, " Newmon changed his story and stated in the interview and in hand-written statements that Plaintiff used an improper method to align the drawbars.[3]

Browne felt that Newmon, by initially saying that Plaintiff had worked correctly, told a lie and made false and conflicting statements. As a new hire, Newmon was still in a probationary period. Norfolk Southern, as a practice, rejects dishonest and untrustworthy applicants and takes dishonesty seriously among all employees. Newmon was not disciplined at all, but Norfolk Southern contends this was so because Newmon supplemented his initial statements after observing the surveillance video.

Browne, Crowley, and two other supervisors also walked the yard to investigate. They found Plaintiff's work gloves on top of a fence, which struck them as odd. Browne testified that he thought Plaintiff might have actually injured himself climbing or jumping off a gate.

After investigating the incident, the supervisors wrote a report about the injury Plaintiff allegedly sustained. The initial injury report made no mention of an improper drawbar adjustment. The write-up said that the surveillance footage showed Plaintiff kicking a gate.

3. The Disciplinary Hearing and Termination Decision

On April 3, 2012, Plaintiff notified the supervisors that he had seen a doctor, making the injury reportable. The next day, Norfolk Southern sent Plaintiff a letter notifying him that Norfolk Southern would convene an investigatory hearing at which Browne would present evidence concerning Plaintiff improperly adjusting drawbar(s) between 6:16 p.m. and 11:59 p.m. on March 31, 2012, and making false and/or conflicting statements about how he broke his leg on the night of the incident.

Newmon was told he would be held out of work until Plaintiff's disciplinary hearing. Browne testified that he was not entirely certain what he said to Newmon prior to the hearing, but what Browne stated in his deposition was the following: "If I remember correctly, we told him you've - you've lied to us once, you corrected yourself, we don't expect you to lie to us again, you need to tell the truth, you're off pending the investigation." (Dep. of Browne at 48.)

Norfolk Southern management had the burden of proving at the investigatory hearing whether Plaintiff was responsible for the charged violations. At the hearing, one railroad supervisor acts as the "charging officer, " in a role similar to that of a prosecutor. Another railroad supervisor presides over the hearing and is called the "hearing officer." The hearing officer ...

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