Filed: May 25, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1035 WILLIAM M. CONRAD, Plaintiff - Appellant, v. CSX TRANSPORTATION, INC., Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, Senior District Judge. (1:13-cv-03730-WMN) Argued: January 27, 2016 Decided: May 25, 2016 Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by published opinion. Senior Judge Davis wrot
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1035 WILLIAM M. CONRAD, Plaintiff - Appellant, v. CSX TRANSPORTATION, INC., Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. William M. Nickerson, Senior District Judge. (1:13-cv-03730-WMN) Argued: January 27, 2016 Decided: May 25, 2016 Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge. Affirmed by published opinion. Senior Judge Davis wrote..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1035
WILLIAM M. CONRAD,
Plaintiff - Appellant,
v.
CSX TRANSPORTATION, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:13−cv−03730−WMN)
Argued: January 27, 2016 Decided: May 25, 2016
Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Senior Judge Davis wrote the
opinion, in which Judge Niemeyer and Judge Floyd joined.
ARGUED: Lawrence A. Katz, COFFEY KAYE MYERS & OLLEY, Bala
Cynwyd, Pennsylvania, for Appellant. Jacqueline Marie Holmes,
JONES DAY, Washington, D.C., for Appellee. ON BRIEF: Thomas R.
Chiavetta, Emily J. Kennedy, JONES DAY, Washington, D.C., for
Appellee.
DAVIS, Senior Circuit Judge:
Appellee CSX Transportation, Inc. charged one of its
employees, Appellant William M. Conrad, with “serious”
violations of the company’s safety policy. Alleging he was
disciplined in retaliation for his activities as local chairman
of the transportation union, Conrad sued in federal district
court under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C.
§ 20109. The district court granted summary judgment in favor
of CSX, concluding that Conrad had failed to show that any CSX
employee involved in the disciplinary process had also known
about his union activities. Conrad v. CSX Transp., Inc., No.
WMN-13-3730, 2014 WL 7184747, at *5 (D. Md. Dec. 15, 2014).
On appeal, Conrad argues that knowledge of an employee’s
protected activities may be imputed to the decision-makers if
any supervisory employee at the company knew of the subordinate
employee’s protected activity when the decision-maker took the
unfavorable personnel action, regardless of whether the person
with knowledge played a role in the disciplinary process. We
disagree and therefore affirm the judgment.
I.
Conrad has worked at CSX, an international transportation
company, as a freight train conductor out of Cumberland,
Maryland, since 2003. From 2009 to 2012, he served as local
chairman of the United Transportation Union Local 340, during
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which time he defended his union members against disciplinary
actions and ensured that CSX complied with all safety policies.
Conrad’s tenure in that role gave rise to the two events at
issue here, referred to by the parties as the “Deineen Incident”
and the “Demmler Yard Incident.”
The Deineen Incident involved local union member James
Deineen and preceded Conrad’s first disciplinary charge. In
January 2011, Deineen, a conductor, was injured while applying a
handbrake at Cumberland Yard. Deineen reported his accident and
left work for the day. CSX supervisors, however, instructed
Deineen to return to the yard to recreate the accident.
Deineen, having suffered an injury and having worked 13 hours
already, contacted Conrad to discuss CSX’s request. Believing
Deineen was due a rest period under the Hours of Service Act, 49
U.S.C. § 21101 et seq., Conrad advised Deineen that he did not
need to return to work. Conrad informed Trainmaster Ron Baer of
his intent to report the alleged Hours of Service Act violation,
and indeed made the report to Michel Bull, a Federal Railroad
Administration representative.
Less than a month later, on February 9, 2011, Cumberland
Terminal Superintendent Ray Morriss, Assistant Terminal
Superintendent Keith Stafford, and Trainmaster Eric Koelker
accompanied a new trainmaster, Mike Drummond, to an area west of
Cumberland for training. While there, they observed Conrad stop
3
his train at a bow-handled switch and, before checking the
switch, operate the switch with one hand—a violation of CSX’s
safety policy. Later that day, CSX charged Conrad with a
“serious offense” for the rule violation. J.A. 216. Following
the disciplinary charge, Conrad opted to take a “time out,” id.,
avoiding formal disciplinary procedures by submitting to a
meeting with a CSX manager and a union representative.
Some six months later, the Demmler Yard Incident occurred.
In August 2011, CSX Conductors Scott Sechler and Christopher
Hose were operating a train that had run out of fuel near
Demmler Yard, a railroad yard in western Pennsylvania. Their
train blocked the primary artery in and out of the yard, known
as the “main line,” obstructing the passage of other trains. A
CSX supervisor ordered Sechler and Hose to switch their
locomotive with one from Demmler Yard to move the disabled
train, but Sechler refused to switch locomotives.
The conditions at Demmler Yard made it difficult to operate
trains in the area, so CSX and the United Transportation Union
had settled a union safety complaint by mandating that
conductors be qualified before working there. Sechler knew that
he and Hose were not qualified to enter Demmler Yard. Although
CSX offered to send a qualified employee to help navigate the
locomotive switch, Sechler persisted and, being a local union
member, called Conrad for advice. Conrad told Sechler that he
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could not enter the yard. And in a subsequent phone call,
Conrad conveyed to Trainmaster Danielle Renner that he had
advised Sechler not to enter Demmler Yard.
Later that month, on August 26, 2011, CSX Senior Road
Foreman of Engines Bill Diamond and Trainmaster Ron Baer saw
Conrad violate a number of safety procedures in Cumberland Yard.
Diamond and Baer were in Cumberland Yard for operational
testing, and, while there, they observed Conrad operate a train
without his radio on, fail to use proper identification in
conducting a radio check, and fail to use both hands when
operating a switch. CSX charged Conrad with “serious offense”
rules violations for that conduct. J.A. 196.
After exhausting his administrative remedies, Conrad filed
suit against CSX in federal district court, alleging two counts
of retaliation in violation of the FRSA. CSX moved for summary
judgment, arguing in part that none of the CSX employees who
witnessed Conrad’s rule violations and initiated disciplinary
actions knew about his safety complaints. The district court
agreed and held that “at least one person involved in the
adverse employment decision must have knowledge of the protected
activity.” See Conrad, 2014 WL 7184747, at *4. Concluding that
“Conrad ha[d] not provided sufficient admissible evidence from
which a jury could conclude that there was any knowledge of his
alleged protected activity among any of the individuals involved
5
in the decision-making process to discipline him,” the district
court granted summary judgment in favor of CSX. See id. at *4,
*6. Conrad timely appealed.
II.
A.
We review the district court’s grant of summary judgment de
novo. Groves v. Commc’n Workers of Am., 815 F.3d 177, 180 (4th
Cir. 2016) (citation omitted). “Summary judgment is appropriate
when, viewing the facts in the light most favorable to the
nonmoving party, there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Id. at 181 (citations and internal quotation marks omitted).
B.
For context, we begin with an overview of the relevant
statutory framework and the applicable liability standards.
Congress enacted the FRSA “to promote safety in every area of
railroad operations and reduce railroad-related accidents and
incidents.” 49 U.S.C. § 20101. To that end, the FRSA prohibits
railroads from discriminating against employees who engage in
certain safety-related activities. See id. § 20109(a).
Relevant here, the FRSA protects employees from disciplinary
action for “provid[ing] information . . . regarding any conduct
which the employee reasonably believes constitutes a violation
of any Federal law, rule, or regulation relating to railroad
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safety.” Id. § 20109(a)(1). The FRSA likewise protects
employees who “report[], in good faith, a hazardous safety or
security condition.”
Id. § 20109(b)(1)(A).
Like other federal whistleblower statutes, the FRSA is
governed by the burden-shifting framework set forth in the
Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century (“AIR-21”). See id. § 20109(d)(2)(A)(i); see also,
e.g., 18 U.S.C. § 1514A(b)(2)(C) (Sarbanes-Oxley Act)
(incorporating the rules and procedures of AIR-21); 42 U.S.C.
§ 5851(b)(3) (Energy Reorganization Act) (same). Thus, to
maintain an FRSA retaliation claim past the summary judgment
stage, a plaintiff must project sufficient admissible evidence
to establish that: “(1) [the employee] engaged in [a] protected
activity; (2) the employer knew that [the employee] engaged in
the protected activity; (3) [the employee] suffered an
unfavorable personnel action; and (4) the protected activity was
a contributing factor in the unfavorable action.” Feldman v.
Law Enf’t Assocs. Corp.,
752 F.3d 339, 344 (4th Cir. 2014)
(citation and internal quotation marks omitted). The absence of
probative evidence as to any single element necessary to
establish a prima facie claim terminates the action. See Litt
v. Republic Servs. of S. Nev., ARB Case No. 08-130,
2010 WL
3448544, at *3 (Dep’t of Labor Aug. 31, 2010). If the employee
establishes a prima facie claim, then the burden shifts to the
7
employer to demonstrate “by clear and convincing evidence that
the employer would have taken the same personnel action in the
absence of the protected activity.” Feldman, 752 F.3d at 345
(citation omitted).
C.
The district court granted summary judgment in favor of CSX
based on the evidentiary insufficiency as to the second prong of
the AIR-21 prima facie standard. In other words, the district
court concluded that Conrad could not show that CSX “knew that
[he had] engaged in the protected activity.” Feldman, 752 F.3d
at 344 (citation and internal quotation marks omitted); Cf.
Conrad,
2014 WL 7184747, at *4. On appeal, as they did below,
the parties offer two opposing theories of what constitutes
knowledge under the FRSA. Conrad argues that he can meet the
knowledge requirement if any supervisory employee at the company
knew of his protected activities at the time of the unfavorable
personnel action. CSX responds that, to the contrary, knowledge
must be tied to a decision-maker involved in the unfavorable
action.
Although this Circuit has not previously had occasion to
address the knowledge sufficient to sustain an FRSA retaliation
claim, the Administrative Review Board of the U.S. Department of
Labor (“ARB”) has explained that an employee “must establish
that the decision-makers who subjected him to the alleged
8
adverse action were aware of the protected activity.” Rudolph
v. Nat’l R.R. Passenger Corp., ARB Case No. 11-037, 2013 WL
1385560, at *9 (Dep’t of Labor Mar. 29, 2013); see also Litt,
2010 WL 3448544, at *3, *5 (concluding, under the Surface
Transportation Assistance Act, which required a showing by a
preponderance of the evidence that the employer “was aware of
the protected activity,” that the employee did not establish a
prima facie case of retaliation because he failed to show that
“any of the decision-makers involved in his termination knew
that he engaged in any protected activity”). Moreover, the ARB
has added that it is “insufficient” to “demonstrat[e] that an
employer, as an entity, was aware of the protected activity.”
Rudolph,
2013 WL 1385560, at *9; see also Kuduk v. BNSF Ry. Co.,
768 F.3d 786, 790-91 (8th Cir. 2014) (a lower-level supervisor’s
knowledge was not sufficient where the “decision-makers had no
knowledge—actual or constructive—of [the employee’s] protected
activity”).
We conclude that the above cited authorities are sound and
persuasive, and we therefore adopt the same interpretation: The
“knowledge” relevant for a retaliation claim under the FRSA must
be tied to the decision-maker involved in the unfavorable
personnel action. As the district court concluded, Conrad has
failed to show that such knowledge existed here.
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Conrad claims that CSX brought his February 2011
disciplinary charges in retaliation for his decision to report
an Hours of Service Act violation in connection with the Deineen
Incident. He has not marshaled evidence, however, that any of
the four CSX employees who observed his conduct that month and
charged him with a violation were aware of his January Hours of
Service Act complaint. Instead, CSX has produced declarations
from the four employees, all of whom attest that they did not
know of the complaint or any other safety concerns that Conrad
may have previously raised. Conrad has produced no evidence to
dispute their assertions.
Conrad also argues that, because he notified Trainmaster
Baer that he intended to file an Hours of Service Act complaint,
CSX had knowledge of his protected activity before it charged
him with the February 2011 safety violation. This argument
fails because Conrad has not demonstrated that Baer had any role
in the February 2011 disciplinary charges. Although Conrad
argues on appeal that a jury may assume that Baer informed
Stafford of Conrad’s complaint, Stafford (who did observe
Conrad’s February 2011 safety violation) attested that he had no
knowledge of the Hours of Service Act complaint. Conrad has not
produced any evidence to call into question Stafford’s sworn
statements. To the extent Conrad means to suggest that summary
judgment should be denied to a moving party on mere speculation
10
that a jury might arbitrarily disbelieve a fellow employee’s
testimony, we reject such a suggestion. Accordingly, Conrad has
failed to generate a genuine dispute of material fact as to the
knowledge element of his claim arising from the Deineen
Incident.
Conrad’s retaliation claim related to the Demmler Yard
Incident fails for the same reason. Diamond and Baer reported
Conrad’s safety violations in August 2011. But Conrad has not
marshaled any evidence that Diamond or Baer knew that he had
instructed Sechler not to enter the Demmler Yard. As we have
explained, Conrad had the burden to produce such evidence. See
Feldman, 752 F.3d at 344. And Diamond has denied knowing about
“any specific safety complaints” that “Conrad [had] made during
his employment with [CSX].” * J.A. 196.
At bottom, Conrad urges us to rely on a series of inference
upon inference, based on the chain of command, to conjure a
* Baer had also stated that he “d[id] not recall any
specific safety complaints” that “Conrad [had] made during his
employment with [CSX].” J.A. 81. This statement by Baer
arguably conflicts with Conrad’s testimony that he told Baer
about his intention to file the Hours of Service Act complaint
related to the Deineen Incident. See J.A. 378. Nevertheless,
because Conrad does not argue that his August 2011 disciplinary
charges arose out of the February Deineen Incident, we regard as
immaterial, for purposes of CSX’s motion for summary judgment,
the ostensible conflict in the recollections of Conrad and Baer
with respect to Baer’s alleged knowledge of the Hours of Service
Act complaint related to the Deineen Incident.
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scheme among higher-level CSX supervisors who were aware of his
protected activity and sought to silence his FRSA complaints
because he was “a thorn in [their] side.” Appellant’s Br. 6.
But Conrad offers no evidence that his protected activity, or
any animus derived from such activity, was communicated through
a chain of CSX employees. Such unsupported inferential leaps
are no adequate substitute for actual evidence. See Litt, 2010
WL 3448544, at *4 (“Litt’s mere assertions that it can be
inferred that [the decision-makers] did know he filed the
complaint are not sufficient to constitute circumstantial
evidence to establish that Republic was aware of Litt’s . . .
alleged protected activity by a preponderance of the
evidence.”).
In sum, because Conrad does not present sufficient evidence
that the relevant CSX decision-makers knew of his protected
activities, his claims fail as a matter of law at the prima
facie stage.
III.
For the reasons set forth, the judgment of the district
court is
AFFIRMED.
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