United States District Court, S.D. Georgia, Sabannah Division.
GODBEY WOOD, UNITED STATES DISTRICT COURT DISTRICT JUDGE
before the Court is Plaintiff Jeffrey Wittig's
("Plaintiff") Motion for Summary Judgment (Dkt. No.
24) and Defendant CSX Transportation, Inc.'s
("Defendant") Motion for Summary Judgment (Dkt. No.
29) . The motions have been fully briefed and are now ripe
for the Court's review. For the reasons set forth below,
Defendant's Motion for Summary Judgment (Dkt. No. 29) is
DENIED and Plaintiff's Motion for Summary Judgment (Dkt.
No. 24) is DENIED.
is a railroad-carrier corporation providing services
throughout the United States. Dkt. No. 1 ¶ 2. Plaintiff
worked as an engineer for Defendant at all times relevant in
the Complaint. Id. ¶ 9. On June 10, 2014,
Plaintiff was the engineer of a train leaving Savannah,
Georgia and traveling to Cayce, South Carolina. Plaintiff was
accompanied by his conductor, Martin Hester
("Hester"), who administered the operation of the
train. Dkt. No. 25 p. 1. Plaintiff was responsible for the
actual operation of the train. Dkt. No. 29-4 p. 34-37.
Defendant's trains utilize speed-management software
called a "Trip Optimizer." Dkt. No. 29-3 ¶ 9.
The Trip Optimizer works in essentially the same fashion as a
cruise-control device and is designed to keep the train at a
set speed. Id. ¶ 10. However, like a
cruise-control device, the Trip Optimizer may be turned off
and on at the user's discretion. Ld. ¶ 9.
day in question, Hester had used the Trip Optimizer to
regulate the train's speed. Dkt. No. 29-5 pp. 15-17.
Nonetheless, Plaintiff was still required to ensure the train
did not exceed its speed limitations. Dkt. No. 29-4 p. 15. In
addition, company regulations provided that the Trip
Optimizer should not be the primary method of operating the
train, but a supplemental method. Dkt. No. 29-3 ¶ 12.
Nonetheless, Plaintiff was required to use the speed
optimizer. A speed restriction of 10 mph existed starting
just after the beginning of Savannah River Bridge. Dkt. No.
29-3 ¶ 15. Both Plaintiff and Hester were aware of this
speed restriction. Dkt. No. 29-4 p. 37; Dkt. No. 29-6 pp.
32-33. A warning board existed two miles before the low-speed
zone which reminded both Plaintiff and Hester of this
restriction. Dkt. No. 29-4 p. 12; Dkt. No. 29-6 p. 59. Hester
informed Plaintiff that the Trip Optimizer accounted for the
10-mph limit. Dkt. No. 29-4 p. 37; Dkt. No. 29-6 p. 60. The
train did begin to slow within the next two miles, but not at
the rate needed to meet the impending speed restriction. Dkt.
No. 29-6 p. 60. Indeed, the train failed to slow to the
required speed limit. Plaintiff applied the brakes prior to
reaching the speed-restricted zone, but only reduced the
speed to 23 mph. Dkt. No. 29-4 p. 38; Dkt. No. 29-6 pp.
11, 2014, Plaintiff and Hester reported to their supervisor
that the Trip Optimizer had malfunctioned, such that the
train had entered a speed-restricted zone 13 mph over the
speed limit and the brakes had been forcibly applied. Dkt.
No. 29-6 pp. 73-74. After an administrative hearing reviewing
the incident, both Plaintiff and Hester were suspended. Dkt.
No. 29-1 p. 9. Plaintiff now asserts that Defendant
retaliated against him for reporting a safety violation under
the Federal Rail Safety Act ("FRSA"). Dkt. No. 25
party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) . To satisfy this burden, the movant must show the
court that there is an absence of evidence to support the
nonmoving party's case. Id. at 325.
moving party discharges this burden, the burden shifts to the
nonmovant to go beyond the pleadings and present affirmative
evidence to show that a genuine issue of fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986) . The nonmovant may satisfy this burden in two ways:
First, the nonmovant "may show that the record in fact
contains supporting evidence, sufficient to withstand a
directed verdict motion, which was 'overlooked or
ignored' by the moving party, who has thus failed to meet
the initial burden of showing an absence of evidence."
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116
(11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at
332 (Brennan, J., dissenting)). Second, the nonmovant
"may come forward with additional evidence sufficient to
withstand a directed verdict motion at trial based on the
alleged evidentiary deficiency." Id. at 1117.
the nonmovant instead attempts to carry this burden with
nothing more "than a repetition of his conclusional
allegations, summary judgment for the defendants [is] not
only proper but required." Morris v. Ross, 663
F.2d 1032, 1033-34 (11th Cir. 1981). When, as here, the
parties have filed cross-motions for summary judgment, the
applicable Rule 56 standard is not affected. See Gerling
Glob. Reinsurance Corp. of Am. v. Gallagher, 267 F.3d
1228, 1233-34 (11th Cir. 2001). "[T]he facts are viewed
in the light most favorable to the non-moving party on each
motion." Chavez v. Mercantil Commercebank,
N.A., 701 F.3d 896, 899 (11th Cir. 2012).
parties now move for summary judgment on the issue of whether
Defendant retaliated against Plaintiff for reporting a safety
violation. Specifically, Plaintiff asserts that he was
suspended because he reported the malfunctioning Trip
Optimizer and is protected as a "whistleblower"
under the FRSA. Dkt. No. 25. p. 2. Defendant, on the other
hand, argues that Plaintiff's suspension was unrelated to
his report of the possibly faulty Trip Optimizer. Dkt. No.
41. p. 4. Instead, Defendant argues Plaintiff was suspended
for failing to prevent violations of Defendant's safety
FRSA prohibits a railroad from retaliating against an
employee for, among other things, reporting a work-safety
condition. 49 U.S.C. § 20109(b)(1)(a). To establish a
retaliation claim under the FRSA, a plaintiff must show: (1)
engagement in protected activity; (2) discharge or
discrimination in the terms or conditions of employment; and
(3) that the protected activity was a contributing factor in
the adverse employment action. Majali v. United States
Dep't of Labor., 294 F.App'x 562, 566 (11th Cir.
2008); see also Allen v. Admin. Rev. Bd., 514 F.3d
468, 475-76 (5th Cir. 2008) (stating as a separate element of
the prima facie case that the employer must be aware that the
employee engaged in protected activity). If the employee
establishes a prima facie case of retaliation, the burden
then shifts to the employer to prove by clear and convincing
evidence that it would have taken the same unfavorable
personnel action in the complete absence of the
plaintiff's protected activity. Majali, 294
F.App'x at 566-67. The plaintiff's protected activity
is a "contributing factor" in the unfavorable
personnel action if it tended to affect the outcome of the
decision. Consolidated Rail Corp-, v. U.S. Dep't of
Labor, 567 F.App'x 334, 337 (6th Cir. 2014); see
also Ameristar Airways, Inc. v. Admin. Rev. Bd., 650
F.3d 562, 567 (5th Cir. 2011).
case, there is no question that Plaintiff engaged in a
protected activity. Nor is there a question as to whether he
was subject to an adverse employment action. Instead, the
issue is whether or not that engagement in the protected
activity actually contributed to his suspension. There is no
question that reporting a hazardous safety condition is
protected by the FRSA. 49 U.S.C. § 20109(b)(1)(a). This
does not mean, however, that Plaintiff could not be suspended
for failing to prevent that condition. The Trip Optimizer was
not a device that was completely out of the control of
Plaintiff. Dkt. No. 29-3 ¶ 9. Instead, the device
functions much in the same way as a cruise-control device
works on a car. Like the driver of a car, the Plaintiff was
not absolved of his responsibilities to operate a vehicle
safely simply because the equivalent of cruise-control was
turned on. Plaintiff himself testified as much in his
deposition, stating: "When I'm on the train and [the