United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE
Norfolk Southern Railway Company has moved for summary
judgment. Doc. 20. The motion is DENIED.
Keith Weeks alleges that Norfolk Southern violated the
Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109,
by retaliating against him for reporting a work-related
injury. See generally Doc. 1. Specifically, he
alleges that, when he attempted to return to work in 2014
after being out because of an injury since 2012, Norfolk
Southern delayed his return to work by forcing him to undergo
a functional capacity evaluation (FCE) to test his readiness
for work, which he was physically unable to do, and that this
caused him to lose his health insurance. Docs. 1 at 3; 23 at
13-14. Weeks further alleges that Norfolk Southern took these
actions against him because he reported the 2012 injury as
work-related to a Norfolk Southern claims agent in 2013.
Docs. 1 at 3; 23 at 4. Norfolk Southern now moves for summary
judgment as to Weeks's FRSA claim and his claim for
punitive damages. Doc. 20.
SUMMARY JUDGMENT STANDARD
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A factual dispute is genuine only
if ‘a reasonable jury could return a verdict for the
nonmoving party.'” Info. Sys. & Networks
Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002) (quoting United States v. Four Parcels of Real
Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The movant may support its assertion that a fact is
undisputed by “citing to particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials.” Fed.R.Civ.P. 56(c)(1)(A).
movant makes this showing, “the burden shifts to the
non-moving party to rebut that showing by producing . . .
relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1315 (11th Cir. 2011) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The
non-moving party does not satisfy its burden “if the
rebuttal evidence ‘is merely colorable, or is not
significantly probative' of a disputed fact.”
Id. (quoting Anderson, 477 U.S. at 249-50).
Further, where a party fails to address another party's
assertion of fact as required by Fed.R.Civ.P. 56(c), the
Court may consider the fact undisputed for purposes of the
motion. Fed.R.Civ.P. 56(e)(2). However, “[c]redibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge . . . . The evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson, 477 U.S. at
FRSA CAUSE OF ACTION
parties agree that, for a FRSA claim, a plaintiff must
establish by a preponderance of the evidence that (1)
“he engaged in protected activity”; (2)
“the employer knew that [he] engaged in protected
activity”; (3) “he suffered an unfavorable
personnel action”; and (4) “the protected
activity was a contributing factor in the unfavorable
action.” Docs. 20-1 at 5 (quoting Consolidated Rail
Corp. v. United States Dep't of Labor, 567 F.
App'x 334, 337 (6th Cir. 2014)); 23 at 2 (quoting
Araujo v. N.J. Transit Rail Op., Inc., 708 F.3d 152,
157 (3rd Cir. 2013)); see also James v. CSX Transp.
Inc., 2017 WL 2471828, *5 (M.D. Ga.) (quoting Majali
v. U.S. Dep't of Labor, 294 F. App'x 562, 566
(11th Cir. 2008) (“The FRSA incorporates the Wendell H.
Ford Aviation Investment and Reform Act's burden-shifting
framework for retaliation claims.” (citing 49 U.S.C.
§ 42121(b)(2)(B); Araujo, 708 F.3d at 157)).
Once an employee establishes a prima facie case, the employer
then holds the burden to demonstrate “by clear and
convincing evidence, that it would have taken the same
adverse action in the absence of the protected
activity.” Consolidated Rail Corp., 567 F.
App'x at 337; see also Araujo, 708 F.3d at 159;
James, 2017 WL 2471828, *5 (quoting Majali,
294 F. App'x at 566-67). “To meet [this] burden,
the employer must show that ‘the truth of its factual
contentions are highly probable.'” Araujo,
708 F.3d at 159 (quoting Colorado v. New Mexico, 467
U.S. 310, 316 (1984)).
the evidence in the light most favorable to Weeks, it is
clear that Weeks has adduced evidence that would authorize a
jury to find that he has established a prima facie case.
Norfolk Southern does not appear to dispute that Weeks
suffered an unfavorable personnel action. And there is at
least an issue of fact as to whether Weeks engaged in
protected activity that was a contributing factor in the
unfavorable personnel action. The Court cannot accept Norfolk
Southern's argument that Weeks's protected activity
is too removed from the adverse employment action to be
considered a contributing factor as a matter of
Doc. 20-1 at 6-8. Weeks was on leave at the time of the
protected conduct without expectation, on Norfolk
Southern's part, of him returning. See Doc. 25-2
at 62:7-14. Indeed, Weeks's supervisor, David Walker,
admitted that he did not think Weeks was going to return
after he left work in 2012 until he attempted to do so in
2014. Id. Thus, as Weeks argues, a jury could find
Norfolk Southern retaliated against him at the first
opportunity after his protected conduct. Doc. 23 at 5.
Moreover, there was no intervening conduct worthy of
disciplinary action, and Weeks has presented evidence beyond
temporal proximity to establish a causal relation.
Southern also argues the protected conduct was not a
contributing factor in forcing Weeks to undergo an FCE
because asking an employee to do so was routine and that it
was “entirely normal” for Weeks's supervisor,
David Walker, to be involved in that process. Doc. 20-1 at
15. But the evidence suggests otherwise, especially when
comparing the 2014 FCE and Walker's involvement therein
to the procedure leading to Weeks undergoing an FCE in 2010.
Docs. 23-1¶ 23-25; 23-3; 23-6; 23-18. Similarly, a fact
issue remains as to the cause of, and Norfolk Southern's
involvement in, the cancellation of Weeks's insurance.
See Doc. 23-1 ¶ 32.
even if Weeks must establish discriminatory intent to prove
the protected activity was a contributing factor, as Norfolk
Southern argues, there is a fact issue as to whether there
was such intent based on the evidence of Walker's animus
towards Weeks. Finally, drawing all justifiable
inferences in Weeks's favor, he has presented sufficient
evidence, albeit circumstantial, from which a reasonable jury
could infer that Walker was in fact aware of Weeks's
protected conduct at the time he attempted to return to work
in 2014. See Anderson, 477 U.S. at 255
(“The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor.”); see also Desert Palace, Inc. v.
Costa, 539 U.S. 90 (2003) (“Circumstantial
evidence is not only sufficient, but may also be more
certain, satisfying and persuasive than direct
evidence.” (internal quotation marks and citations
omitted)); cf. Smith v. Lockheed-Martin Corp., 644
F.3d 1321, 1327 (11th Cir. 2011) (stating that, in a
discrimination case under the McDonnell-Douglas framework, a
plaintiff may defeat a summary judgment motion by
“present[ing] a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional
discrimination by the decisionmaker” (internal
quotation marks and citations omitted)).
Southern has also failed to establish an absence of a genuine
fact dispute as to whether it would have taken the same
unfavorable personnel actions towards Weeks regardless of the
protected conduct. Norfolk Southern's argument on this
point hinges on its assertion that the FCE, and Walker's
involvement, was routine, relying on a comparison between
Weeks's 2010 and 2014 return-to-work processes. Docs.
20-1 at 15 (“The critical comparator in this case is
Weeks himself.”). But, as stated, there is a fact issue
as to whether those processes were in fact the same,
particularly as to Walker's involvement. And the same can
be said regarding Weeks's insurance - a fact issue
remains as to both the cause of and process that led to it
WEEKS'S CLAIM ...