United States District Court, M.D. Georgia, Macon Division
T. TREADWELL JUDGE
Norfolk Southern Railway Company has moved for summary
judgment, and Plaintiff Michael Smith has moved for partial
summary judgment. Docs. 13; 18. Both motions are
January 30, 2016, Smith's coworker, Phillip O'Neal,
allegedly fell and was injured when attempting to sit in a
chair in the computer room of Norfolk Southern's
Valdosta, Georgia train depot. Doc. 13-5 at 44:1-12. Smith
claims he saw O'Neal's “arm fly and hit the
ground” and saw O'Neal on the ground in the
computer room. Doc. 13-4 at 39:23-40:2. Smith then called
Trainmaster Rodrea Booze about the incident and handed the
phone to O'Neal who told Booze he had fallen out of the
chair. Id. at 52:6-19; Doc. 13-9 at 18:3-11. Later,
O'Neal called Booze to request medical attention. Doc.
13-5 at 67:10-12. Booze then travelled to Valdosta from
Macon, Georgia and took O'Neal to the South Georgia
Medical Center. Docs. 13-9 at 36:15-19; 13-11. Later that
day, through his investigation into the incident, Booze
became aware that O'Neal had attempted to call Norfolk
Southern's “Operations & Service Support”
(OSS) before he fell and that the call was recorded. Docs.
13-9 at 88:23-89:4; 17 at 3 n.4. That recording included a
conversation between O'Neal and Smith in which O'Neal
states he “caught himself.” Doc. 13-14 at 20.
Booze interpreted this recording to be inconsistent with
Smith and O'Neal's version of events and believed
that O'Neal had never actually fallen from the chair.
Doc. 13-9 at 81:13-25. Soon after, on February 8, 2016, Smith
was charged with “making false and/or conflicting
statements to a supervisor.” Id. at
90:18-91:10, Ex. 4. On March 2, 2016, Norfolk Southern
conducted an official investigation, or hearing, in which
Smith was represented by union officials; the hearing
officer, Richard Brown, determined that Smith lied about the
incident. See generally Doc. 13-14. Smith was then
fired from his employment with Norfolk Southern on March 16,
2016. Doc. 13-12.
unsuccessfully appealing his dismissal to the Public Law
Board, Smith filed a complaint alleging a retaliation claim
under the Federal Railway Safety Act (FRSA), 49 U.S.C. §
20109. Docs. 1; 17-3. The parties then filed dueling motions
for summary judgment. Norfolk Southern moved for summary
judgment on all issues while Smith moved for summary judgment
on all issues except damages. Docs. 13; 18. The Court held a
hearing on those motions on May 11, 2018. Docs. 25; 28.
SUMMARY JUDGMENT STANDARD
Fed.R.Civ.P. 56(a), a court “‘can only grant
summary judgment if everything in the record demonstrates
that no genuine issue of material fact exists'” and
that the movant is entitled to judgment as a matter of law.
Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151,
1154 (11th Cir. 2012) (quoting Tippens v. Celotex
Corp., 805 F.2d 940, 952 (11th Cir. 1986)); Gray v.
Manklow (In re Optical Techs., Inc.), 246 F.3d 1332,
1334 (11th Cir. 2001). When the movant bears the burden of
proof at trial, the movant holds the initial burden to
establish there is no genuine dispute concerning whether the
elements of the claim or defense have been met. See
United States v. Four Parcels of Real Prop., 941 F.2d
1428, 1438 (11th Cir. 1991). In response, the non-movant may
defeat summary judgment by producing “significant,
probative evidence demonstrating the existence of a triable
issue of fact.'” Id. (quoting Chanel,
Inc. v. Italian Activewear of Fla., Inc., 931 F.2d 1472,
1477 (11th Cir. 1991)) (alteration in original).
contrast, “[w]hen the nonmoving party has the
burden of proof at trial, the moving party is not required to
‘support its motion with affidavits or other similar
material negating the opponent's
claim.'” Four Parcels of Real Prop., 941
F.2d at 1437 (quoting Celotex Corp. v. Cartrett, 477
U.S. 317, 323 (1986)). The movant “simply may show . .
. that there is an absence of evidence to support the
[non-movant]'s case.” Id. at 1438
(internal quotation marks and citation omitted).
“Assuming the [movant] has met its burden, the
non-movant must then show a genuine dispute regarding any
issue for which it will bear the burden of proof at
trial.” Info. Sys. & Networks Corp., 281
F.3d at 1224-25 (citing Celotex Corp., 477 U.S. at
factual dispute is genuine so as to defeat summary judgment
“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) (quotation marks omitted). When determining if there is
a genuine dispute, “[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). And “credibility
determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts are jury functions,
not those of a judge.” Id. When both parties
have moved for summary judgment, the standard of review does
not change. See Am. Bankers Ins. Grp. v. United
States, 408 F.3d 1328, 1331 (11th Cir. 2005).
“Cross-motions for summary judgment will not, in
themselves, warrant the court in granting summary judgment
unless one of the parties is entitled to judgment as a matter
of law on facts that are not genuinely disputed.”
United States v. Oakley, 744 F.2d 1553, 1555 (11th
Cir. 1984) (internal quotation marks and citation omitted).
The Court will consider each motion on its own merits,
resolving all reasonable inferences against the party whose
motion is under consideration. See Am. Bankers Ins.
Grp., 408 F.3d at 1331.
prove retaliation under the FRSA, a plaintiff must first
prove by a preponderance of the evidence that (1) he engaged
in a protected activity; (2) the employer knew he engaged in
the protected activity; (3) he suffered an unfavorable
personnel action; and (4) the protected activity was a
contributing factor in the unfavorable personnel action; and
(4) the protected activity was a contributing factor in the
unfavorable personnel action. Kuduk v. BNSF Ry. Co.,
768 F.3d 786, 769 (8th Cir. 2014); Araujo v. N.J. Transit
Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013).
After the employee makes this showing, the burden shifts to
the employer to demonstrate by clear and convincing evidence
that the employer would have taken the same unfavorable
personnel action in the absence of the unprotected activity.
Consolidated Rail Corp. v. United States DOL, 567
Fed.Appx. 334, 337 (6th Cir. 2014).
argues there is no genuine dispute that he met his burden
under the FRSA framework and that Norfolk Southern cannot
meet its burden. Conversely, Norfolk Southern argues there is
no genuine dispute that O'Neal cannot meet his prima
facie case or, alternatively, that it has met its burden
under the FRSA framework.
it is undisputed that Smith suffered an unfavorable personnel
action. Docs. 17-4 ¶ 33, 37; 22-2 ¶ 3. But a
genuine fact dispute remains regarding other elements of his
prima facie case. First, Smith claims he engaged in protected
activity by reporting to Booze that O'Neil had fallen,
because this represented both a report of a workplace injury
and a hazardous work condition-that a chair was broken. Doc.
13-1 at 6; 49 U.S.C. § 20109(a)(4) (prohibiting
retaliation against an employee who replaces a workplace
injury), (b)(1)(A) (prohibiting retaliation against an
employee who reports a hazardous workplace condition). But
Norfolk Southern disputes whether O'Neal actually fell
from the chair, a position it bases on its interpretation of
the OSS recording, which is, at the very least, ambiguous.
Doc. 18-1 at 4-7. Simply put, there is a factual dispute as
to whether O'Neal fell from the chair and, accordingly,
whether Smith engaged in good faith protected activity by
reporting that event. Moreover, Norfolk Southern also
disputes that Smith intended to report an injury when he
called Booze, arguing that “[f]rom an objectively
reasonable standard, the evidence . . . demonstrates Smith
was merely reporting an incident, not an injury.”
Id. at 7. Smith concedes that O'Neal had not
told him he was injured when he called Booze, and thus he did
not know that he was injured at that time. Doc. 22
at 2. But Smith states that, when he asked if O'Neal was
alright, that Smith noticed O'Neal “looked out of
it, like confused . . . kind of dazed . . . like everything
was just still confusing for him at the time.”
Id.; Doc. 13-4 at 75:16-18. Further, Norfolk
Southern argues that Smith did not intend to report a
hazardous work condition when he told Booze the chair was
broken because he did not reference other chairs at the
facility. Doc. 18-1 at 7-10. Indeed, Smith only reported the
one broken chair, but, after learning of that broken chair,
Booze inspected the other chairs at the Valdosta Depot and
found several that were structurally defective. Docs. 13-9 at
20:4-11, 22:9-12; 22 at 2-3. Based on the record, the Court
cannot say as a matter of law whether Smith engaged in
protected activity. Rather, a genuine dispute of fact remains
concerning that issue.
because there is a genuine dispute as to whether Smith
engaged in protected activity, there is naturally a dispute
as to whether the protected activity was a contributing
factor in Norfolk Southern's decision to terminate
Smith's employment.Norfolk Southern rightfully argues that
it can defeat this element of Smith's prima facie case by
proving it had a reasonable basis to belief that Smith lied
to Booze. Doc. 18-1 at 14-15. What matters is not the
correctness of Norfolk Southern's decision to fire Smith
but whether Norfolk Southern had a reasonable basis to
believe Smith lied to a supervisor, which, in turn, led to
that decision. See Kuduk, 768 f.3d at 792
(“[F]ederal courts do not sit as a super-personnel
department that re-examines an employer's disciplinary
decisions.” (quotation marks and citation omitted)). As
stated, Norfolk Southern primarily hinges its assertion that
Smith lied on its interpretation of the OSS recording. But
that recording, and Norfolk Southern's other evidence, is
open to interpretation. And the Court cannot say as a matter
of law that Norfolk Southern's decision to fire Smith, or
its basis for doing so, was ...