United States District Court, S.D. Georgia, Sabannah Division.
GODBEY WOOD, UNITED STATES DISTRICT COURT DISTRICT JUDGE
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.
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.
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 boardexisted 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.
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.
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 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.
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
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,