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Hester v. CSX Transportation, Inc.

United States District Court, S.D. Georgia, Sabannah Division.

May 17, 2017

MARTIN HESTER, Plaintiff,
v.
CSX TRANSPORTATION, INC., Defendant.

          ORDER

          LISA GODBEY WOOD, UNITED STATES DISTRICT COURT DISTRICT JUDGE

         Pending before the Court is Plaintiff Martin Hester's ("Plaintiff") Motion for Partial Summary Judgment (Dkt. No. 23) 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 Partial Motion for Summary Judgment (Dkt. No. 23) is DENIED.

         BACKGROUND

         Defendant is a railroad-carrier corporation providing services throughout the United States. Dkt. No. 1 ¶ 2. Plaintiff worked as a train conductor for Defendant at all times relevant to the Complaint. Id. ¶ 9. On June 10, 2014, Plaintiff was the conductor of a train leaving Savannah, Georgia and traveling to Cayce, South Carolina. Plaintiff was accompanied by his engineer, Jeffrey Wittig ("Wittig"), who was responsible for the operation of the train. Dkt. No. 25 p. 1. Plaintiff was primarily responsible for the overall administration of the train. Dkt. No. 29-4 pp. 34-37. Defendant's trains utilize a speed-management software called a "Trip Optimizer." Dkt. No. 29-3 ¶ 9. The Trip Optimizer works in a similar fashion as a cruise-control device, and is designed to keep the train at a set speed. Id. ¶ 10. The Trip Optimizer may be turned off and on at the user's discretion. Id. ¶ 9.

         On the day in question, Plaintiff had used the Trip Optimizer to regulate the train's speed. Dkt. No. 29-4 p. 30. Nonetheless, Plaintiff was still required to ensure the train did not exceed its speed limitations. Dkt. No. 29-4 pp. 30-31. 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. A speed restriction of 10 mph existed starting just after the beginning of the Savannah River Bridge. Dkt. No. 2 9-3 ¶ 15. Both Plaintiff and Wittig were aware of this speed restriction. Dkt. No. 29-6 p. 37; Dkt. No. 29-4 pp. 32-33. A warning board[1]existed two miles before the low-speed zone, which reminded both Plaintiff and Wittig of this restriction. Dkt. No. 29-6 p. 12; Dkt. No. 29-4 p. 60. Plaintiff informed Wittig that, the Trip Optimizer accounted for the 10 mph limit. Dkt. No. 29-4 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. 29-4 p. 60. Indeed, the train failed to slow to the required speed limit. Wittig applied the brakes prior to reaching the speed-restricted zone, but only reduced the speed to 23 mph. Dkt. No. 29-6 p. 38; Dkt. No. 29-4 pp. 73-74.

         On June 11, 2014, Plaintiff and Wittig reported to their supervisor that the Trip Optimizer had malfunctioned, the train had entered a speed-restricted zone 13 mph over the speed limit, and the brakes had been forcibly applied. Dkt. No. 29-4 pp. 73-74. After an administrative hearing reviewing the incident, both Plaintiff and Wittig 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 p. 2.

         LEGAL STANDARD

         The 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.

         If the 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.

         Where 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).

         DISCUSSION

         Both parties have now moved 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 he was suspended for failing to prevent violations of Defendant's safety policies. Id.

         The FRSA prohibits a railroad from retaliating against an employee for, among other things, reporting a work-safety violation. 49 U.S.C. § 20109(b)(1)(a). To establish a retaliation claim under the FRSA, a plaintiff must show by a preponderance of the evidence: (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. U.S. 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. Id. 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, ...


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