United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (DKT 45)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
Standard of Review
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).
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
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)).
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
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.
Plaintiff's prima facie showing
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.
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)).
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.
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).
the Seventh Circuit recently departed from Araujo
completely, and instead adopted a proximate cause standard.
Koziara v. BNSF Railway ...