United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
case is before the court on Defendant's Motion for
Summary Judgment (Doc. # 26), filed on February 10, 2017, and
Defendant's Motion to Strike Certain Evidence (Doc. #
34), filed on March 31, 2017. The parties have fully briefed
the motions, which are now under submission. (Docs. # 27, 28,
29, 32, 36). For the reasons explained below, Defendant's
Motion to Strike is due to be denied. And, Defendant's
Motion for Summary Judgment is due to be granted in part and
denied in part.
is a railroad carrier under 49 U.S.C. § 20102 and 49
U.S.C. § 20109 and Plaintiff Jason C. Head
(“Plaintiff”) was an employee within the meaning
of § 20109. (Doc. # 28-20 at 1). Plaintiff claims that
Defendant violated § 20109, also known as the Federal
Railroad Safety Act (“FRSA”), by (1) removing him
from service on September 20, 2013, (2) charging him with a
rule violation and subjecting him to a disciplinary
investigation, and (3) dismissing him on February 14, 2014.
(Doc. # 28 at 22). After careful review, the court finds
there are material issues of fact about whether
Plaintiff's safety complaints were protected activities
that contributed to Defendant's decision to terminate
Statement of Facts
facts set out in this opinion are gleaned from the
parties' submissions and the court's own examination
of the evidentiary record. All reasonable doubts about the
facts have been resolved in favor of the nonmoving party.
See Info Sys. & Networks Corp. v. City of
Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are
the “facts” for summary judgment purposes only.
They may not be the actual facts that could be established
through live testimony at trial. See Cox v. Adm'r
U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386,
1400 (11th Cir. 1994).
Plaintiff's Employment History
was employed by Defendant as a carman from 1998 until
February 14, 2014. (Doc. # 32-2 at 1). At the times relevant
to this case, Plaintiff worked as a gang leader on the third
shift at Norris Yard near Birmingham, Alabama. (Doc. # 28-1
at 102-03, 161-62, 227-28). The gang leader is part of a crew
of carmen, but is paid extra to arrive early and stay late
during shifts in order to complete daily train yard reports
of the crew's car inspections. (Docs. # 28-21 at
24; 28-26 at 4). As members of Defendant's Mechanical
Department, carmen regularly inspect railcars on outgoing
trains, perform light repairs on cars, and test the air
brakes on the trains. (Docs. # 28-1 at 137-38; 28-14 at 1;
28-26 at 2-3). If, during the course of the inspection, a
carman deems a railcar to be unsafe, the car receives a
“bad-order tag” and is sent to the repair shop.
(Doc. # 28-1 at 12).
Yard has two main yards, the East Yard and the West Yard.
(Doc. # 28-26 at 3). More trains depart from the West Yard,
and it is longer than the East Yard. (Docs. # 28-26 at 3;
28-28 at 12-13). In September 2013, the Mechanical Department
at Norris Yard had six Kubota ATVs and Chevrolet trucks at its
disposal for travelling between the diesel shop, car shop,
and inspection yards. (Doc. # 28-26 at 2). Typically, at that
time, the West Yard crew used two Chevrolet trucks, while the
East Yard crew used two Kubotas. (Doc. # 28-1 at 99). Carmen
who worked in the West Yard traveled along “the main
thoroughfare” with 18-wheelers and dump trucks.
(Id. at 82-83).
Plaintiff's tenure at Norfolk Southern, but at least
several years before a September 2013 disciplinary
action that is at issue in this case (and discussed in detail
below), Plaintiff came to believe that Norfolk Southern's
management was responding to an increase in Federal Railway
Administration (“FRA”) inspections at the Norris
Yard by discouraging carmen from taking mechanically
defective cars out of service. (Id. at 46-47).
Plaintiff has testified that several managers at the Norris
Yard, including (1) Steve Collier, a general foreman, (2) Tom
Bartley, a former superintendent at Norris Yard, (3) Tim
Spence, Bill Swanson, and G.G. Jones, mechanical supervisors,
(4) David Walker, a senior general foreman, and (5) Ed
Mickens, a division manager, discouraged employees from
bad-ordering cars. (Id. at 29-56). Plaintiff
recalled that Swanson “made it appear[ ] that [he] had
fraudulently bad[-]ordered a car” because Collier and
Swanson made him explain why he reported a car for droplets
of hydraulic fluid that were present at the time of
Plaintiff's inspection. (Id. at 37-41). Although
the hydraulic fluid had been “wiped away from the truck
side frame, ” Plaintiff found more hydraulic fluid
underneath the frame. (Id. at 38). Moreover, Collier
threatened to “abolish [Plaintiff's] job” by
changing his schedule so that he could not work as a carman
and attend school. (Id. at 63-64).
2004, Plaintiff filed a complaint with the FRA. (Id.
at 11, 13). In the FRA complaint, Plaintiff alleged that
Collier had illegally removed the bad-order tags for four
railroad cars and had sent them on to further destinations
without performing necessary repairs. (Id. at 12-16).
According to Plaintiff, Ferrell Arms, a FRA agent, told him
that the cars were in fact defective and should have been
bad-ordered. (Id. at 14). Collier was not
interviewed by the FRA or disciplined for an FRA violation
after the cars were sent on without repair. (Doc. # 28-14 at
2; see also Doc. # 28-1 at 16-17 (Plaintiff
testifying that he did not know whether Collier was
disciplined for the incident)). Following his FRA complaint,
John Manning, another carman, told Plaintiff that he heard
management state that they were “out to get” him.
(Doc. # 28-1 at 254-55). Manning informed Plaintiff that he
had been questioned about the bad-ordered railcar with
leaking hydraulic fluid because of management's feelings
towards him. (Id.). Eric Churilla, a supervisor,
told Plaintiff not to bad-order any more cars because they
were “looking for” him.(Doc. # 28-1 at 255).
2004, Norfolk Southern disciplined Plaintiff for sleeping in
a company vehicle while on duty. (Doc. # 28-11 at 2). He
received a deferred 15-day suspension for the offense.
(Id.). In November 2010, Norfolk Southern
disciplined Plaintiff for excessive speeding and careless
driving. (Id.). Plaintiff received a five-day
deferred suspension for that offense. (Id.). In
August 2011, Norfolk Southern disciplined Plaintiff for
hanging an end-of-train device on a train “without blue
flag protection.” (Id.). Plaintiff received a
deferred 30-day suspension for that violation.
(Id.). Then, in November 2011, Plaintiff disciplined
Plaintiff again for failing to display a blue flag.
(Id.). Plaintiff received a five-day suspension for
that offense, and Norfolk Southern also activated the
previously deferred 30-day suspension. (Id.). In
December 2011, Plaintiff left his position under a leave of
absence after breaking the scaphold bone in his left hand.
(Id. at 1; Doc. # 28-1 at 77). He returned to work
in June 2013. (Doc. # 28-11 at 1).
Plaintiff's Use of the “Unsafe” Kubota
September 2013, one of the trucks in the West Yard was taken
out of service due to front axle damage. (Doc. # 28-1 at
277). From September 12, 2013 until September 18, 2013, the
West Yard crew used a Kubota ATV while their truck was in the
repair shop. (Id. at 95-96, 103). Plaintiff drove
the ATV assigned to the West Yard crew during that week.
(Id. at 95). Although Plaintiff “complained
about the Kubota from the beginning, ” his complaints
were not always related to the vehicle's safety.
(Id. at 96-97). Plaintiff's first grievance to
Mike Weaver, a supervisor, concerned only the fact that that
he had to drive the Kubota. (Id.). Plaintiff has
testified that he did not complain about the Kubota's
safety during his initial complaints to Weaver because he
“was just gaining experience with the Kubota at that
point.” (Id. at 96). Weaver allowed the West
Yard crew to use his supervisor's truck until the other
truck was repaired, but Plaintiff continued to use the ATV,
while other members of the West Yard team used Weaver's
truck. (Id. at 186-187). Plaintiff did not complain
about the assignment of the ATV on the daily reports he
submitted for September 12, September 15, September 16, or
September 17. (See Doc. # 28-27 at 1, 4-6).
September 18, 2013, Plaintiff worked as the gang leader of
the five-person third shift crew in the West Yard. (Doc. #
28-1 at 103). The Third Shift started working at 11 p.m. the
night of the 18th and ended work at 7 a.m. the morning of
September 19th. (Id. at 103, 105; Doc. # 28-21 at
19). Around that time, the West Yard's truck was returned
from the repair shop. (Doc. # 28-1 at 96). Upon the
vehicle's return, Collier and Jeff Freeman, a mechanical
supervisor, decided to assign the repaired truck to the East
Yard crew instead of the West Yard crew. (Docs. # 28-21 at
13-14; 28-26 at 4; 28-28 at 22-23). Freeland has explained
that they reassigned the truck “to protect [their]
operation” because West Yard crews -- on all three
shifts -- had damaged several vehicles. (Doc. # 28-21 at
14). However, Plaintiff has testified that the East Yard crew
did not use the truck at all because one of the bridges in
the East Yard was too narrow for a truck. (Doc. # 28-1 at
271-74). Although Norfolk Southern's paperwork stated
that the truck was assigned to the West Yard, it remained
parked in the East Yard. (Id. at 273-74).
has recounted that the Kubota ATV presented several safety
issues. First, he observed that the Kubota used by the West
Yard crew had an inadequate windshield and the driver could
not see through it. (Id. at 81). Second, he believed
that the ATV was unsafe because workers had to drive it on
the same road with 18-wheelers and dump trucks. (Id.
at 82-84). Plaintiff complained about this issue at some
point before September 18, 2013. (Id. at 84). Third,
he also complained that the ATV had a governor on its engine.
(Id. at 85). Plaintiff explained that the governor
created problems because the ATV backed up traffic on the
road in the West Yard. (Id. at 85-86). Finally,
Plaintiff asserted that the ATV could not handle the rough
roads in the West Yard. (Id. at 88-89). He contends
that a driver could not reduce the effect of the rough roads
through throttle control because the power would suddenly
increase as the driver applied more throttle. (Id.
Plaintiff's Complaints About the Kubota ATV
a.m. on September 19, 2013, Plaintiff contacted Freeman and
asked him when the truck would be returned to the West Yard.
(Doc. # 28-21 at 24-26). Freeman told him “the truck
wasn't coming back out there” and refused to
discuss the issue further because a train had derailed in
Norris Yard. (Docs. # 28-1 at 208-10; 28-21 at 24-26).
Plaintiff told Freeman that he “wanted to come and see
him” because Plaintiff was “soaked” after
driving the ATV for the shift. (Doc. # 28-21 at 26).
a.m., Plaintiff complained to Mariola Green, a clerk who
worked in Norris Yard's locomotive shop, that Freeman was
an “asshole” and a “motherfucker” for
assigning the ATV to the West Yard because “riding in
the [open-air] Kubota wasn't good” for his health.
(Docs. # 28-5 at 22-23; 28-22 at 6, 9-10). Plaintiff
attempted to call Freeman again to arrange a meeting but did
not reach him. (Doc. # 28-23). Green testified that Plaintiff
appeared upset, but she did not believe Plaintiff was
dangerous. (Docs. # 28-5 at 23; 28-22 at 11). Green did not
report Plaintiff's outburst as a threat, despite the fact
that Norfolk Southern employees who perceive serious threats
are expected to report them immediately. (Docs. # 28-22 at
34; 28-25 at 77). Indeed, Green conversed with Plaintiff
about their daughters after the outburst. (Doc. # 28-23).
Green stated during her deposition that she was
“used” to that type of language. (Doc. # 28-22 at
10). And, Freeland admitted to using the word
“motherfucker” and other curse words while
working. (Doc. # 28-21 at 62-63).
his conversation with Green,  Plaintiff stated to Chris Dodson,
another carman, that Freeman had “an ass whipping
coming.” (Docs. # 28-6 at ; 28-9). Dodson went to
work with Freeman on the train derailment, but did not
mention Plaintiff's comment to Freeman while at the
derailment site. (Doc. # 28-21 at 30). After the two men
returned to the office, Dodson relayed Plaintiff's
comment to Freeland, who asked Dodson whether he was serious.
(Id. at 30-31). Although Dodson replied to the
question by saying “that's what he said, ” he
did not affirmatively answer whether or not he perceived the
threat to be a serious one. (Id. at 31-32). Freeman
reported Plaintiff's statement to Collier at
approximately 1:00 p.m., after Collier had arrived at Norris
Yard. (Id. at 33-34).
his conversation with Dodson, Plaintiff prepared the daily
safety and maintenance checklist for his shift. (See
Doc. # 28-1 at 176, 178). In the report, Plaintiff explained
that the third shift had to work on a train transferred to
them by the second shift. (Doc. # 28-3). Plaintiff also
explained other delays that the third shift encountered on
its assigned trains. (See id.). Then, he discussed
the assignment of the ATV to the West Yard crew:
Much time was lost [ ] due to Mech. Super. Jeff Freeland
giving our yard truck to the East Yard who doesn't need
it & historically hasn't used it, & giving us a
Kubota to traverse the expansive perimeter of the West Yard @
a snail's pace. Mech. Super. Freeland denies a policy of
blanket punishment but the facts speak clearly. The Kubota is
inappropriate for West Yard use. It exposes us to hazards
& dangers not encountered in a yard truck given the
extreme distances we are required to traverse in performance
of our duties. Freeland took our truck & assigned us a
Kubota due to truck damage done by a few.
(Id.). Plaintiff delivered copies of the daily
report to Ryan McLain, a division manager, and Greg Swany, a
mechanical superintendent, at approximately 11:00 a.m. on
September 19. (Doc. # 28-1 at 179-80). Plaintiff also sent
copies of the daily report to a distribution list for the
mechanical department. (Id. at 189-90). McLain and
Swany were not in their offices when Plaintiff submitted the
report to them. (Id. at 187-88).
worked on the third shift at the West Yard during September
19 and 20, 2013. (Doc. # 32-2 at 3). At the beginning of his
September 19 shift, Plaintiff contacted Ladel Miles, a
supervisor, to again voice his concerns about the safety of
the Kubota. (Doc. # 28-28 at 24-25). Specifically, Plaintiff
complained about his ability to see through the ATV's
windshield. (Doc. # 28-1 at 166). Miles met Plaintiff in the
West Yard office and inspected the Kubota. (Docs. # 28-1 at
166-67; 28-28 at 25). Miles also rode with Plaintiff in the
ATV for a distance. (Doc. # 28-1 at 168-70). Miles did not
find that the Kubota was unsafe, but he nevertheless
attempted to resolve Plaintiff's complaints by cleaning
the windshield. (See Doc. # 28-28 at 30-31).
Plaintiff asked Miles whether the truck would be returned,
but Miles replied that the allocation of vehicles “had
already been made by [his] supervisors.” (Id.
was not formally disciplined for his comments in the
September 18 train report. But, on September 20, Plaintiff
was counseled against using the daily report to raise
complaints because the report was “a record widely
circulated within [Norfolk Southern].” (Doc. # 28-26 at
8). Collier, Freeman, and Miles attended the counseling
meeting. (Doc. # 28-1 at 118). The managers told Plaintiff
that the daily report “was not a proper place to report
safety violations.” (Id.). The managers also
complained about Plaintiff's management of the third
shift and accused them of “goofing
off.” (Id. at 152-53). Plaintiff was
unfamiliar with any written grievance procedure for safety
issues. (Id. at 120-21). Plaintiff asked Collier,
Freeman, and Miles why the truck had been reassigned to the
East Yard. (Id. at 127). When Miles summoned
Plaintiff to the meeting, he told Plaintiff -- in response to
a question -- that he did not need to bring a union
representative. (Id. at 128). Nevertheless,
Plaintiff brought a union representative, Kenneth Cooper, to
the meeting. (Id. at 128-29).
The Norfolk Southern Disciplinary Process
the employee conduct rules in the Norfolk Southern
Corporation Book of Safety and General Conduct,
“[e]mployees are to conduct themselves in a
professional manner and not engage in behavior or display
material that would be considered offensive or
inappropriate.” (Doc. # 28-5 at 21). This includes the
making of disparaging remarks. (Id.). According to
Dennis Kerby, Norfolk Southern's Assistant Vice President
of Labor Relations, the level of appropriate disciplinary
action for inappropriate language depends on the
circumstances. (Doc. # 28-24 at 12-13). The Norfolk
Southern disciplinary system is intentionally flexible to
address “things that can be corrected” while also
addressing “situations where maybe someone has shown
that they are incorrigible or can't correct their
activity.” (Id. at 16). Kerby testified that
use of the words “asshole” and
“motherfucker” could subject an employee to a
range of discipline from counseling to a formal disciplinary
hearing, depending primarily on the particulars of the
employee's conduct and secondarily on the employee's
service record, history, and intent. (Id. at 15-16).
He explained that an employee could be terminated for using
those expletives to refer to another specific individual if
(1) the employee “didn't have the best
record” and (2) the employee could not correct his or
her behavior. (Id. at 16). Kerby understands a
threat is “some kind of verbal statement or action that
the other individual would perceive as intended to cause some
kind of harm or injury or put him at some type of
risk.” (Id. at 18).
The Investigation, Plaintiff's Dismissal, and
September 20, 2013, McLain asked permission of Swany by email
to remove Plaintiff from service because of “conduct
unbecoming [of] an employee.” (Doc. # 32-4 at 63-64).
McLain asked Kevin Krull, a Norfolk Southern division manager
in Knoxville, Tennessee, to conduct the removal hearing.
(Id. at 63). In his email to Krull, McLain labeled
Plaintiff as “easily the worst guy we have when it
comes to attitudes [sic].” (Id.). Despite
McLain's request, he never disciplined Plaintiff between
June 2013 and September 2013. (Doc. # 28-25 at 3). Nor was
McLain aware of any safety complaints made by Plaintiff until
September 19, 2013. (Id.).
approximately 5:00 p.m. on September 20, Collier called
Plaintiff and told him that Norfolk Southern was taking him
out of service pending a formal investigation. (Doc. # 28-1
at 191-92). Collier told Plaintiff that he did not know the
reason for the investigation. (Id. at 192). No one
at Norfolk Southern questioned Plaintiff about his comments
to Green or Dodson before he was removed from service.
(Id. at 192, 216).
September 23, 2013, McLain charged Plaintiff with conduct
unbecoming of an employee for: (1) engaging in offensive
and/or inappropriate behavior, in violation of Norfolk
Southern's General Regulation GCR-1; and (2) making a
threatening statement. (Doc. # 28-7 at 1). McLain's
charge did not specify which regulation Plaintiff violated by
making a threatening statement. (Id.). Norfolk
Southern did not give Plaintiff the option of waiving a
disciplinary investigation. (Id.).
email exchange occurring on September 24, 2013, McLain
informed Krull that Plaintiff's union had indicated that
they would produce two witnesses to rebut the charges against
Plaintiff. (Doc. # 32-4 at 65). McLain stated his belief that
Norfolk Southern could “get around” their
testimony because he doubted that both witnesses were in the
locomotive office “for the whole 30 minutes or so that
[Plaintiff] was there.” (Id.). In response,
Krull asked whether a witness who had testified in an earlier
investigation, Gulledge, would be testifying at
Plaintiff's hearing. (Id.). McLain replied,
“No, unfortunately. The charged employee thinks
he's smarter than Gulledge.” (Id.). The
email exchange ended with Krull writing, “We shall see.
I like a challenge.” (Id.). During his
deposition, Krull explained that the earlier investigation
described in the email exchange had presented a challenge to
Krull because Gulledge had provided detailed information for
the employee's case. (Doc. # 32-4 at 86). Krull recalled
asking whether Gulledge would be present because, as Krull
put it, Gulledge was “an exemplary witness in my
mind.” (Id. at 85). Despite Gulledge's
“exemplary” testimony, Krull did not find his
testimony credible. (Id.).
presided over the disciplinary hearing held on January 16,
2014. (Doc. # 28-5 at 1). Plaintiff has acknowledged that no
one directly referenced or discussed the FRA complaint
investigated by Ferrell Arms during the termination
proceedings. (Doc. # 28-1 at 253). During the hearing, McLain
introduced the September 19 daily report as an exhibit and
read Plaintiff's report about the ATV to Krull. (Doc. #
28-5 at 13-17). McLain also recounted that he directed
Collier “to counsel [Plaintiff] regarding the comments
on his train yard sheet in that that document is not the
appropriate vehicle for [Plaintiff] to voice his opinion and
that [Plaintiff] should have sent a separate email with his
concerns.” (Id. at 17). McLain explained that
Plaintiff should not have included the complaints about the
ATV in the daily report because such reports were
“official Norfolk Southern documents.”
(Id. at 27). And, he asserted that the ATV presented
no “additional hazard or danger” as compared to a
truck. (Id. at 28). He admitted that he had used
profanity while working for the railroad, but he denied
directing profanity towards a particular individual.
also testified that he heard profanity used at the work site
by supervisors and carmen (id. at 75-76), but he
similarly distinguished profanity from profanity
“directed at somebody, or about somebody.”
(Id. at 76). Green affirmed that she had heard
profanity used in the office. (Doc. # 28-6 at 40). According
to Green, supervisors had used profanities when discussing
situations, but she could not recall whether they had
directed profanities toward individuals. (Id.).
Plaintiff candidly confirmed that he used profanity during
the conversation with Green. (Id. at 70). He
affirmed that he said “something close” to the
statement reported by Dodson. (Id. at 72-73).
the hearing, Krull recommended to Norfolk Southern's
Labor Relations Department that Plaintiff be terminated and
the Department approved that recommendation. (Doc. # 1 at
¶ 73). On February 14, 2014, Krull informed
Plaintiff of his termination in a letter drafted by Labor
Relations. (Id.). (See also Doc. # 32-4 at
73) (confirming that Krull sent the letter to Plaintiff).
February 19, 2014, Plaintiff filed a complaint with the
regional director of the Occupational Safety and Health
Administration (“OSHA”). (Doc. # 28-2). In his
OSHA complaint, Plaintiff claimed that Norfolk Southern had
discriminated against him in violation of § 20109.
(Id. at 1). The complaint discussed Plaintiff's
history of “complaints about hazardous conditions and
safety issues” and noted that Plaintiff had earlier
refused to quit bad ordering cars, despite management's
removal of bad order tags. (Id.). It stated that
Plaintiff had reported “safety issues” concerning
the “inadequate and unduly hazardous Kubota
vehicle” in the September 18-19 daily report.
(Id.). In response, the OSHA complaint asserted that
management harassed Plaintiff during the September 20 meeting
to intimidate him. (Id. at 1-2). When the harassment
failed, the complaint alleged that Norris Yard management
took him out of service and terminated him. (Id. at
August 5, 2014, following its investigation, OSHA issued a
decision finding no reasonable cause to support the §
20109 complaint. (Doc. # 28-20). On August 14, 2014,
Plaintiff objected to OSHA's findings and requested a
hearing before an Administrative Law Judge
(“ALJ”). (Doc. # 1 at ¶ 87). On October 27,
2015, Plaintiff notified the ALJ of ...