CLARENCE COOPER, Senior District Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. No. 62] and Plaintiff's Motion to Exclude Undisclosed Evidence and Witness or for Discovery [Doc. No. 64]. For the reasons stated herein, the Court denies Defendant's Motion for Summary Judgment and grants Plaintiff's Motion to Exclude Undisclosed Evidence and Witness.
Unless otherwise indicated, the following facts are material and undisputed in this action.
Plaintiff Shaun Thompson ("Plaintiff" or "Thompson") worked for Defendant Norfolk Southern Railway Company ("Defendant" or "Norfolk Southern") for several years and most recently as a locomotive engineer trainee. Plaintiff is represented by the United Transportation Union ("UTU"). Norfolk Southern and its unions, such as the UTU, are parties to collective bargaining agreements that establish the rates of pay, rules, and working conditions of represented employees, such as Plaintiff.
Plaintiff alleges in this case that while working a regular assignment in East Point Yard on the night of March 31-April 1, 2012, he felt pain in his leg while attempting to adjust a drawbar. Plaintiff was able to finish his shift, but before leaving work on the morning of April 1, 2012, he notified a supervisor that he was in pain. In response to Plaintiff's report of an injury, the on-site supervisor, Michael Chambliss, asked Plaintiff to stay while two other supervisors were summoned.
Chambliss alerted his superior, Sheldon Crowley, of Plaintiff's alleged injury. Crowley and another supervisor, Dominik Browne, traveled to the yard where Plaintiff was working and met with Plaintiff. Browne asked Plaintiff if he needed medical attention, and Plaintiff said he did not. Plaintiff told his supervisors that he wanted to go home, elevate his leg, and put some ice on it.
Upon questioning by Crowley and Browne about the incident, Plaintiff informed them that he felt a pain while adjusting a drawbar. Crowley and Brown testified that Plaintiff demonstrated that he backed up to the drawbar and lifted the bar with his hands behind his back, which is an approved technique. Two other Norfolk Southern supervisors, Justin Turner and Michael Chambliss, were also working in the building at the time and testified that they saw Plaintiff demonstrate how he had been adjusting the drawbars. Plaintiff does not dispute that these individuals testified to Plaintiff having done such a demonstration, but Plaintiff disputes that he actually did a demonstration.
In an effort to identify the equipment involved in the incident,
Plaintiff and his co-worker, Josh Newmon, were doing various railroad tasks on the night in question, including both adjusting drawbars and opening knuckles. At some point, Plaintiff told Newmon that he injured his leg while attempting to adjust a drawbar. After Plaintiff was injured, the supervisors investigating the injury asked Newmon to come talk to them. Newmon initially told the investigating officers that Plaintiff had not violated any rules and had done everything correctly. Later, after Browne showed Newmon the surveillance video and asked him "how did he explain the drawbar being improperly operated," Newmon changed his story and stated in the interview and in hand-written statements that Plaintiff used an improper method to align the drawbars.
Browne felt that Newmon, by initially saying that Plaintiff had worked correctly, told a lie and made false and conflicting statements. As a new hire, Newmon was still in a probationary period. Norfolk Southern, as a practice, rejects dishonest and untrustworthy applicants and takes dishonesty seriously among all employees. Newmon was not disciplined at all, but Norfolk Southern contends this was so because Newmon supplemented his initial statements after observing the surveillance video.
Browne, Crowley, and two other supervisors also walked the yard to investigate. They found Plaintiff's work gloves on top of a fence, which struck them as odd. Browne testified that he thought Plaintiff might have actually injured himself climbing or jumping off a gate.
After investigating the incident, the supervisors wrote a report about the injury Plaintiff allegedly sustained. The initial injury report made no mention of an improper drawbar adjustment. The write-up said that the surveillance footage showed Plaintiff kicking a gate.
On April 3, 2012, Plaintiff notified the supervisors that he had seen a doctor, making the injury reportable. The next day, Norfolk Southern sent Plaintiff a letter notifying him that Norfolk Southern would convene an investigatory hearing at which Browne would present evidence concerning Plaintiff improperly adjusting drawbar(s) between 6:16 p.m. and 11:59 p.m. on March 31, 2012, and making false and/or conflicting statements about how he broke his leg on the night of the incident.
Newmon was told he would be held out of work until Plaintiff's disciplinary hearing. Browne testified that he was not entirely certain what he said to Newmon prior to the hearing, but what Browne stated in his deposition was the following: "If I remember correctly, we told him you've — you've lied to us once, you corrected yourself, we don't expect you to lie to us again, you need to tell the truth, you're off pending the investigation." (Dep. of Browne at 48.)
Norfolk Southern management had the burden of proving at the investigatory hearing whether Plaintiff was responsible for the charged violations. At the hearing, one railroad supervisor acts as the "charging officer," in a role similar to that of a prosecutor. Another railroad supervisor presides over the hearing and is called the "hearing officer." The hearing officer makes rulings, asks questions, decides whether to find the accused guilty, and decides on punishment.
Plaintiff was represented at the hearing by two UTU union officials, UTU Vice General Chairman J.C. Roy and Local Chairman Michael White. The UTU trained Roy on how to represent someone at an investigatory hearing, including presenting seminars during which arbitrators spoke on what they considered when deciding cases. Roy has represented employees at over 100 hearings. However, Roy is not an attorney.
Gaylon Bancroft, the railroad company official serving as the hearing officer, had ex parte discussions with Browne prior to the hearing. During these ex parte communications, Browne told Bancroft that he had a video that showed Plaintiff "jerking on a drawbar." Roy did not get to meet with Bancroft ex parte.
At Plaintiff's hearing, the charging officer showed an hour of video. Only eleven seconds of the video were offered as substantive evidence. Neither the charging officer nor any of the other officers contemporaneously observed Plaintiff adjust a drawbar on the night in question, but they have testified to having observed Plaintiff adjusting the drawbar through surveillance footage. Three Norfolk Southern witnesses testified that they heard Plaintiff claim that he had used correct technique to adjust a drawbar and that Plaintiff had demonstrated to them the correct technique that he used. Plaintiff denied that he had demonstrated drawbar technique to anyone.
Plaintiff and his representatives were given the opportunity to present his side of the story and to cross examine Norfolk Southern's witnesses and object to Norfolk Southern's evidence. The hearing was adjourned each time Norfolk Southern introduced an exhibit to allow Plaintiff and his representatives to examine and consider each document. Plaintiff, however, had no notice of the specifics of the evidence that would be used against him at the hearing. Moreover, Plaintiff's representative at the hearing was not allowed to meet with witnesses in advance. Roy later testified to a conflict of interest in not wanting to question Newmon too strongly and cost Newmon his job. Roy was not shown the surveillance video before the hearing, and Roy had never seen the write-up until he was deposed in this case.
Bancroft, the hearing officer, decided to terminate Plaintiff. When weighing credibility of witnesses, Bancroft did not take into account that Newmon had changed his story and did not think about it. Bancroft says he found Newmon credible because he was "offered the opportunity and came clean," because the officers talked to him. Plaintiff is the only Georgia Division employee disciplined for improperly adjusting a drawbar in the prior three years.
Under the RLA, after exhaustion of the on-property appeals process, a party may elect to challenge the discipline before arbitration, including the Public Law Board ("PLB").
One of the members of the PLB who decided Plaintiff's appeal was a union representative, Mr. Piserchia, who is employed by the Defendant as Director of Labor Relations. Another arbitrator was a company representative. The third arbitrator was Mr. Ray, who worked for the Defendant railroad and its predecessor railroads from 1976 until he retired in 2000 as its Assistant Vice President of Labor Relations. Mr. Ray was designated as the neutral chairperson.
The PLB considers only the written transcript and exhibits from below.
Plaintiff has filed suit under the Federal Rail Safety Act's ("FRSA") anti-retaliation provision, 29 U.S.C. § 20109. Plaintiff alleges that Defendant illegally retaliated against him after he reported his on-the-job injury. Plaintiff specifically argues that he was disciplined on baseless charges that he improperly adjusted a drawbar and that he made false and conflicting statements to his supervisors.
Norfolk Southern has moved for summary judgment, arguing that the instant case is barred because factual issues essential to Plaintiff's claim have already been fairly resolved against him through the Railway Labor Act dispute resolution process and because Plaintiff has no admissible evidence beyond his own speculation that his termination was the result of any impermissible motivation. This summary judgment motion has been fully briefed by the parties and is ripe for review.
Shortly after Norfolk Southern moved for summary judgment, Plaintiff filed a Motion to Exclude Undisclosed Evidence and Witness or for Discovery (the "Motion to Exclude") [Doc. No. 64]. The Court will address the Motion to Exclude before resolving the summary judgment motion.
Plaintiff moves the Court to exclude a witness and evidence that Plaintiff contends were disclosed for the first time in Defendant's Motion for Summary Judgment. The evidence at issue consists of the declaration of Philip Piserchia, the Director of Labor Relations for Norfolk Southern. Attached to Defendant's Motion for Summary Judgment, this declaration includes Mr. Piserchia's testimony that he examined the railroad's employment records and that "many employees have been terminated for dishonesty." (Declaration of Philip Piserchia "Piserchia Decl." at ¶ 2.) Piserchia then lists by name "[s]ome of those in the Georgia Division" who have been terminated for dishonesty. (
Defendant argues in response that Plaintiff did not ask for the information at issue during discovery and that Mr. Piserchia merely summarizes and authenticates company records. Defendant further states that it has offered to make Mr. Piserchia available for a deposition, as well as produce records in connection with his statement. Defendant consents to Plaintiff's supplementing his opposition to the summary judgment motion to discuss the Piserchia evidence if NSRC can likewise reply to any such supplement.
Pursuant to Federal Rule of Civil Procedure 26, without awaiting a discovery request, a party must set forth in its initial disclosures "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 26(a)(1)(A)(i). Additionally, Rule 26(a)(1)(A)(ii) requires the disclosure of documents "a party may use to support its claims or defenses." A party who "fails to provide information or identify a witness as required by Rule 26 . . . is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1).
Here, in violation of Rule 26's disclosure requirement, Defendant failed to put Plaintiff on notice that Mr. Piserchia might have discoverable information on which Defendant intended to rely to support its defenses. While Defendant claims that Mr. Piserchia does not assert any facts from personal knowledge, Mr. Piserchia expressly states in his declaration that he is "giv[ing]the statement based upon [his] personal knowledge." (Piserchia Decl., Preliminary Statement.) Further, contrary to Defendant's argument that Mr. Piserchia summarizes business records and authenticates others, Mr. Piserchia does not describe or identify any specific documents at all in the declaration related to the dishonesty of former Norfolk Southern employees. Rather, he states that he has reviewed various employment records and then testifies concerning his conclusions.
Defendant now belatedly offers to allow Plaintiff to depose Mr. Piserchia and to produce records in connection with his statement, but Defendant has made no effort to argue that its failure to disclose Mr. Piserchia initially was either substantially justified or harmless in the first place. Therefore, the exclusion of Mr. Piserchia's testimony from consideration on summary judgment and at trial is the appropriate sanction.
Further, because the Court agrees with Plaintiff that Defendant has needlessly caused this dispute, the Court will award Plaintiff its reasonable expenses, including attorney's fees, caused by Defendant's failure to comply with Rule 26 and otherwise resolve this dispute before Plaintiff was forced to file the instant motion.
Summary judgment is proper when no genuine issue as to any material fact is present and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In seeking summary judgment, the moving party bears the initial responsibility to demonstrate there is no genuine issue as to any material fact.
In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party and resolve all facts in its favor.
A fact is material when the controlling substantive law identifies it as an essential element of the non-moving party's case.
The FRSA prohibits a railroad from retaliating against an employee for, among other things, reporting an on-the-job injury. In pertinent part, the Act states the following:
49 U.S.C. § 20109(a)(4).
The FRSA provides a framework, which was borrowed from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR-21"), for employees to establish a retaliation claim, 49 U.S.C. § 20109(d)(2)(A); 49 U.S.C. § 42121(b)(2)(B)(i)-(ii). To establish a retaliation claim under the FRSA, a plaintiff must show by a preponderance of the evidence that: (1) that he engaged in protected activity; (2) that he suffered discharge or discrimination in the terms or conditions of his employment; and (3) that the protected activity was a contributing factor in the adverse employment action.
Norfolk Southern first argues that certain factual issues in this case, which are necessary to Plaintiff's claim, have already been resolved against Plaintiff by the decision of the PLB and that Plaintiff is precluded from relitigating those issues before this Court. Specifically, Defendant maintains that Plaintiff is precluded from relitigating the PLB's factual findings that Plaintiff was dishonest when he reported his injury and that Plaintiff's dishonesty caused his termination. Defendant contends that this prevents Plaintiff from being able to meet the first element of his prima facie case because his injury report was not made in good faith.
The Court finds that Norfolk Southern's argument is foreclosed by the persuasive decision issued by the Fifth Circuit in
Collateral estoppel precludes a party from relitigating an arbitral finding if the arbitration "afforded litigants the `basic elements of adjudicatory procedure.'"
Here, there is no dispute that the first three elements necessary for the PLB's findings to have preclusive effect are met. The issue of whether Plaintiff honestly reported the circumstances of his injury is the same issue adjudicated by the PLB. Second, the issue was actually litigated in the earlier proceeding, and PLB expressly found that Plaintiff was dishonest. Third, this finding by the PLB was necessary to its finding that substantial evidence proved Norfolk Southern's charge of dishonesty against Plaintiff.
As the Fifth Circuit concluded in the factually similar
In reaching this decision, the Fifth Circuit looked first to the factors that were present in the Eleventh Circuit's
The
As in
For all of the above reasons, the Court concludes that Defendant cannot meet its burden of demonstrating that the collateral estoppel doctrine compels this Court to give the PLB's findings preclusive effect. This FRSA action is not barred.
Defendant next argues that Plaintiff cannot make a prima facie showing of prohibited retaliatory motive. The Court disagrees and finds that there are least genuinely disputed issues of material fact as to whether Plaintiff can make such a showing.
As an initial matter, there is no dispute that Defendant knew about Plaintiff's injury report and that Plaintiff suffered an unfavorable personnel action. The elements of Plaintiff's prima facie case that are in dispute are whether Plaintiff reported an injury in "good faith" and thus engaged in protected activity and whether the protected activity was a contributing factor in the adverse employment action.
There are several genuinely disputed issues of material fact concerning these two disputed elements of Plaintiff's prima facie case. These disputed facts include the following: (1) whether Plaintiff demonstrated to his supervisors how he had been adjusting drawbars; (2) whether the video shows Plaintiff lifting a drawbar while facing the drawbar or opening a knuckle; (3) whether Plaintiff was warned not to see a doctor, notwithstanding evidence that at least one of Plaintiff's supervisors asked Plaintiff whether he needed medical attention; and (4) whether Plaintiff was warned by his supervisors that if his injury became reportable, things would not go well for him.
While Plaintiff has not presented direct evidence of retaliatory motive, Plaintiff has presented sufficient circumstantial evidence for this case to go to trial. First, although Defendant characterizes Plaintiff's declaration as self-serving, Plaintiff's declaration testimony is evidence raising the question of whether Plaintiff was threatened retaliation if his injury became reportable.
For the foregoing reasons, the Court
SO ORDERED.
The Court additionally is of the opinion that the hearsay statements in Plaintiff's declaration may be reduced to admissible form at trial. As such, the Court has considered the statements in the declaration for purposes of ruling on the summary judgment motion.
