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Wagner v. Grand Trunk Western Railroad

United States District Court, E.D. Michigan, Southern Division

February 24, 2017

JACOB WAGNER, Plaintiff,




         This is a workplace retaliation case. Plaintiff Jacob Wagner alleges that Defendant Grand Trunk Western Railroad retaliated against him in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20101 et. seq., (“FRSA”) by suspending him for 15 days because he reported an on-the-job injury. Defendant argues that it disciplined Plaintiff for not wearing the proper safety equipment, and that the evidence in this case is so clear that the Court must enter summary judgment in Defendant's favor. For the reasons outlined below, Defendant's motion is DENIED.


         In December of 2011, Plaintiff cut his finger on sheared metal siding because he handled the siding without wearing gloves. Dkt. 45, Pg. ID 1160. Plaintiff and his co-workers were repairing a garage door using barn-seam siding. Dkt. 45, Pg. ID 1159. When the day began, Plaintiff was working outside in the cold rain and was wearing gloves, but took off the gloves after moving inside because his hands were going numb. Dkt. 47, Pg. ID 1602. Once inside he noticed a piece of barn-seam siding sitting in a walkway and went to move it to prevent an accident. Dkt. 45-2, Pg. ID 1223. What he did not notice was that the siding had been sheared, making its edges sharper than normal. Dkt. 47-2, Pg. ID 1703. He picked up the siding with his bare hands, his grip slipped, and a sharp edge cut his finger. Dkt. 47-2, Pg. ID 1800.

         Plaintiff reported his injury to his foreman and went to the hospital to get stitched up. Dkt. 47-2, Pg. ID 1802. He returned to work the same day, and detailed what had happened in a “Report of Personal Injury or Occupational Illness.” Dkt. 47-2, Pg. ID 1845; Dkt. 1-4. The Report triggered an investigation, where Defendant inquired whether Plaintiff had violated any workplace safety rules. Dkt. 45, Pg. ID 1161. Under the collective bargaining agreement in place, if after the investigation Defendant concluded that Plaintiff had violated one or more rules, a hearing was required before Defendant could impose any discipline. Dkt. 45, Pg. ID 1161. Defendant believed that Plaintiff had violated the company's safety rules and sought to discipline him, and so a hearing took place in January of 2012. Dkt. 45, Pg. ID 1162. Lawrence Wizauer, an Operations Supervisor for Defendant who presided over the hearing, concluded that Plaintiff had violated multiple rules, and as a result Defendant suspended Plaintiff from work for 20 days, but called him back to work after he had served 15 days of the suspension. Dkt. 45, Pg. IDs 1162-1164.

         Plaintiff challenged the penalty by filing a complaint with the Secretary of Labor, by way of the Occupational Safety and Health Administration (“OSHA”), pursuant to § 20109(d)(1) of the FRSA. Dkt. 45, Pg. ID 1167. OSHA found reasonable cause to believe that Defendant violated the FRSA, and awarded damages to Plaintiff. Dkt. 47, Pg. ID 1601. Defendant objected to OSHA's ruling and requested a hearing before an Administrative Law Judge. Dkt. 45-2, Pg. ID 1485. A hearing was scheduled, and in preparation the parties took discovery. Dkt. 45, Pg. ID 1167. The parties presented evidence at the hearing, and the ALJ ultimately found for Defendant. Dkt. 45, Pg. ID 1167. Plaintiff appealed to the Appeals Review Board (ARB), Dkt. 12-2 Pg. ID 640, but then filed a notice of intent to file suit in federal court and did so in February of 2015. Dkt. 1. After receiving a copy of Plaintiff's federal complaint, the ARB dismissed Plaintiff's appeal. Dkt. 12-2 Pg. ID 676.

         Plaintiff raises a single count of retaliation for engaging in protected activities under the FRSA, 49 U.S.C. § 20109(d)(1). Dkt. 1. Plaintiff alleges that he participated in protected activity in three ways (1) by reporting his injury to his foreman; (2) by submitting an injury report to Defendant; and (3) by refusing to waive his right to a hearing. Dkt. 1, Pg. ID 13. He also alleges that Defendant retaliated against him in three ways: (1) by suspending him; (2) by increasing the severity of his discipline after he refused to waive his right to a hearing; and (3) by deeming him a “needs improvement” employee. Dkt. 1, Pg. ID 13. Defendant has moved for summary judgment, Dkt. 45, which Plaintiff opposes. Dkt. 47. Following full briefing, the Court held oral argument on November 14, 2016.

         III. ANALYSIS

         A. Standard of Review

         “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact such that the movant is entitled to a judgment as a matter of law.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013); see also Fed. R. Civ. P. 56(a). A fact is material only if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). On a motion for summary judgment, the Court must view the evidence, and any reasonable inferences drawn from the evidence, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted); Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001).

         “As the moving parties, the defendants have the initial burden to show that there is an absence of evidence to support [plaintiff's] case.” Selhv v. Caruso, 734 F.3d 554 (6th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met its burden, the non-moving party “‘may not rest upon its mere allegations or denials of the adverse party's pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial.'” Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012) (citing Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009)).

         B. Discussion

         In 1970, Congress enacted the FRSA, a statutory scheme intended to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347 (2000) (quoting 49 U.S.C. § 20101). The original version did not prohibit railroad carriers from retaliating against employees, but Congress amended the Act in 1980 to include an anti-retaliation provision. See Federal Railroad Safety Authorization Act of 1980, Pub. L. 96-423, § 10, 94 Stat. 1811 (1980); Norfolk S. Ry. Co. v. Perez, 778 F.3d 507, 509-10 (6th Cir. 2015). After a series of additional amendments, the FRSA now prohibits a railroad carrier from discharging, demoting, suspending, reprimanding, or in any other way discriminating against an employee because the employee reports a workplace injury. See Ortiz v. Grand Trunk W. R.R. Co., 2014 U.S. Dist. LEXIS 132666, at *14 (E.D. Mich. 2014) (citing 49 U.S.C. § 20109(a) and Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 156 (3d Cir. 2013)).

         The FRSA incorporates the burden-shifting approach applicable to whistleblower claims arising under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”). 49 U.S.C. §42121(b)(2)(B)(i)-(ii). Thus, to prevail on a FRSA retaliation claim, an employee must show 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 personnel action.” See Ortiz, 2014 U.S. Dist. LEXIS 132666, at *15-16. “The employee bears the initial burden, and must show ‘by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint.'” Id. Once Plaintiff establishes a prima facie case of retaliation, 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 that behavior.” Id.

         Here, Defendant argues that it is entitled to summary judgment for two reasons. First, Defendant submits that there is no genuine issue of material fact concerning whether Plaintiff's injury report was a contributing factor in Defendant's decision to suspend Plaintiff, and that no reasonable jury could find that Plaintiff has made a prima facie case that the report was a contributing factor. Dkt. 45, Pg. IDs 1168-1173. Second, Defendant submits that the evidence also would require a jury to find that Defendant would have suspended Plaintiff even if he had not reported his injury report. Dkt. 45, Pg. IDs 1173-1176. The Court considers each argument in turn.

         1. Plaintiff's prima facie showing

         In challenging Plaintiff's ability to make his prima facie case of retaliation, Defendant argues only that Plaintiff's injury report was not a contributing factor to Defendant's decision to suspend him. Dkt. 45, P. IDs 1168-1173. Thus the first three prongs of Plaintiff's prima facie case are uncontested: Plaintiff filed an injury report, Defendant knew that he filed it, and Defendant suspended him. The contributing-factor prong is all that remains. How the Court should analyze that prong, however, is uncertain; the Sixth Circuit has yet to confront the contributing-factor analysis head on, and the other circuits are split on the issue.

         The Third Circuit was the first to address the contributing-factor analysis as applied under the FRSA. In Araujo v. New Jersey Trans. Rail Operations, Inc., the Third Circuit adopted the definition of a “contributing factor” from the Federal Circuit's opinion in a Whistleblower Protection Act case (which uses the same burden-shifting framework as the FRSA): “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” 708 F.3d 152 (3d Cir. 2013) (quoting Marano v. Dep't of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993)).

         The Sixth Circuit adopted Araujo's definition in Consolidated Rail Corp. v. United States Dep't of Labor, but then concluded that in its case there was “substantial evidence that animus was a contributing factor” in the plaintiff's termination. 567 F.App'x 334, 338 (6th Cir. 2014). Importantly, in Consolidated Rail the Sixth Circuit was not asked to clarify the scope of the term “contributing factor, ” so it did not hold that showing some form of retaliatory animus was the only way to meet the factor.

         The Eighth Circuit referenced Consolidated Rail when noting that “the contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity, ” but did so in its discussion of whether the employer had knowledge of the employee's protected activity. Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014).

         Finally, the Seventh Circuit recently departed from Araujo completely, and instead adopted a proximate cause standard. Koziara v. BNSF Railway ...

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