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Head v. Norfolk Southern Ry. Co.

United States District Court, N.D. Alabama, Southern Division

September 12, 2017

JASON HEAD, Plaintiff



         This 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.

         Defendant 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 Plaintiff's employment.

         I. Statement of Facts

         The 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).

         A. Plaintiff's Employment History

         Plaintiff 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).

         Norris 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[1] 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).

         During Plaintiff's tenure at Norfolk Southern, but at least several years[2] 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.[3] (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).

         In 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.[4] (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.[5] (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.[6](Doc. # 28-1 at 255).

         In 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.”[7] (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).

         B. Plaintiff's Use of the “Unsafe” Kubota ATV

         In 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).

         On 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.[8] (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).

         Plaintiff 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. at 89-91).

         C. Plaintiff's Complaints About the Kubota ATV

         At 6:44 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).

         At 7:10 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).

         Following his conversation with Green, [9] Plaintiff stated to Chris Dodson, another carman, that Freeman had “an ass whipping coming.” (Docs. # 28-6 at [158]; 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).

         After 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.).[10] 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).

         Plaintiff 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. at 31).

         Plaintiff 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.”[11] (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).

         D. The Norfolk Southern Disciplinary Process

         Under 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.[12] (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).

         E. The Investigation, Plaintiff's Dismissal, and Post-Dismissal Proceedings

         On 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.[13] (Doc. # 28-25 at 3). Nor was McLain aware of any safety complaints made by Plaintiff until September 19, 2013. (Id.).

         At 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).

         On 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.).

         In an 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.).

         Krull 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. (Id.).

         Freeman 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).

         Following 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).[14] 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).

         On 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 2).

         On 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 ...

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