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E-mail This PageFederal Court Whistleblower Decisions - 2013
- Windom v. Norfolk Southern Railway Co., No. 12-cv-345 (M.D.Ga. Feb. 1, 2013)
(Order)
Summary:MOTION TO DISMISS INDIVIDUAL DEFENDANT; EXHAUSTION OF ADMINISTRATIVE REMEDIES; WHETHER MANAGER WAS SUFFICIENTLY NAMED AS RESPONDENT IN ADMINISTRATIVE COMPLAINT FILED WITH OSHA
MOTION TO DISMISS INDIVIDUAL DEFENDANT; WHETHER FEDERAL COURT COMPLAINT MET FRCP 8 PLEADING REQUIREMENTS
In Windom v. Norfolk Southern Railway Co., No. 12-cv-345 (M.D.Ga. Feb. 1, 2013), the court denied a motion to dismiss filed by the defendant Norfolk’s Manager of Administrative Services (“manager”), who had been also named as a defendant by the plaintiff. The plaintiff was a welder who contended that Norfolk and the manager had acted together to violate the Federal Rail Safety Act when the plaintiff reported an injury. The manager first argued that the FRSA claim should be dismissed because the plaintiff did not name her as a respondent in the administrative complaint filed with OSHA, and therefore the plaintiff did not exhaust his administrative remedies against her and she should be dismissed from the federal district court action.
The plaintiff had named the Norfolk as the establishment and the manager as the management official in the heading of his complaint, and the court agreed with the plaintiff that is was sufficiently clear that the plaintiff intended his OSHA complaint to be directed at both Norfolk and the manager. The court noted that there was no other location on the OSHA complaint form for the plaintiff to have named the manager and that the manager had been clearly listed in the heading of the complaint. Although the manager was not specifically mentioned in the body of the complaint, the complaint statef that Norfolk, through its management official, engaged in improper conduct. Moreover, the specific acts described in the complaint form were acts of the manager, and had OSHA investigated, it would have been apparent to OSHA that the plaintiff was complaining of the manager’s actions. The court did not find dispositive OSHA’s alleged failure to send a copy of the complaint to the manager. More than 210 days had passed with no decision from OSHA before the plaintiff filed in district court, and the court found that the plaintiff had exhausted his administrative remedies against the manager.
The manager also argued that the FRSA action should be dismissed because the paragraphs in the complaint in which her name was mentioned alleged wrongdoing by Norfolk, and as such did not permit the court to infer more than a mere possibility of misconduct by her. The plaintiff pointed to several specific allegations in the complaint regarding the manager’s actions, and argued that they were not general or legal conclusions but specific factual allegations supporting his FRSA claim against the manager.
The court, noting that at this stage of the proceeding the pleadings are construed broadly and the allegations in the complaint are viewed in the light most favorable to the plaintiff, found that the plaintiff had satisfied FRCP 8’s pleading requirements. The court summarized the complaint, noting inter alia, that the plaintiff’s whistleblower claim was based on allegedly unlawful retaliation for reporting an on-the-job injury; that the plaintiff contended that that reporting his injury and seeking medical treatment are both activities protected by the FRSA; that the plaintiff contended that Norfolk knew about the injury and the report of injury; that the plaintiff contended that Norfolk planned to punish him at least partly because of his injury report; and that the plaintiff contended that the defendants acted together to violate the FRSA because he reported this injury.
- Solis v. Union Pacific Railroad Co., No. 4:12-cv-00394 (D.Idaho Jan. 11, 2013) (related to 2012-FRS-15)
(Memorandum Decision and Order)
Summary:PRELIMINARY ORDER OF REINSTATEMENT BY OSHA UNDER THE FRSA; JUDICIAL ENFORCEMENT IS NOT AVAILABLE
In Solis v. Union Pacific Railroad Co., No. 4:12-cv-00394 (D.Idaho Jan. 11, 2013) (related to 2012-FRS-15), the Secretary of Labor sought enforcement of a preliminary reinstatement order issued by OSHA under the whistleblower provision of the Federal Railroad Safety Act, 49 U.S.C. § 20109. The district court found it had jurisdiction to enforce final orders of the Secretary of Labor, but not a preliminary order of reinstatement issued by OSHA. The court noted a spilt in the few courts that had addressed the about the issue,that the Ninth Circuit had not yet addressed the issue, and that the only circuit authority on the issue was a spilt decision. Bechtel v. Competitive Technologies, Inc., 448 F.3d 469 (2d Cir. 2006). The court found that "the fact that a preliminary order can prescribe the same relief as a final order does not mean Congress intended for federal courts to review preliminary orders." The court was not persuaded by the Secretary argument that because AIR21 (which is used for FRSA whistleblower procedure) provides that objecting to a preliminary order will not stay any reinstatement remedy in that order, and therefore there must be an enforcement mechanism. The court noted that a preliminary order issued by OSHA is based only on reasonable cause to believe a complaint has merit, which the court found was too tenative for present enforcement. The court was also not persuaded by the Secretary's alternative argument that the FRSA itself provides the necessary jurisdiction because the FRSA whistleblower provision specifically incorporates the procedures of AIR21 for preliminary orders, and because the appeals paragraph of the FRSA whistleblower provision also incorporates AIR21, which limits appeals to a final order of the Secretary.
- Norfolk Southern Railway Co. v. Solis, No. 12-00306 (D.D.C. Jan. 3, 2013) (case below ARB No. 09-101, ALJ No. 2008-FRS-3)
(Memorandum Opinion [granting Secretary of Labor's motion to dismiss])
Summary:DISTRICT COURT REVIEW NOT AVAILABLE CONCERNING NON-FINAL ORDER OF ADMINISTRATIVE REVIEW BOARD RULING THAT § 20109(f) OF THE FRSA DOES NOT PRECLUDE AN EMPLOYEE WHO CHALLENGED HIS TERMINATION IN AN RLA § 3 ARBITRATION FROM FILING A FRSA WHISTLEBLOWER CLAIM
In Norfolk Southern Railway Co. v. Solis, No. 12-00306 (D.D.C. Jan. 3, 2013) (case below ARB No. 09-101, ALJ No. 2008-FRS-3), Larry L. Koger filed a FRSA employee protection complaint. The ALJ held that 49 U.S.C. § 20109(f) barred the complaint because the Complainant elected to challenge his dismissal by pursuing the grievance and arbitration procedures under RLA § 3, 45 U.S.C. § 153. Koger v. Norfolk Southern Ry., ALJ No. 2008-FRS-3 (May 29, 2009). On administrative appeal, the ARB consolidated Koger’s appeal with an appeal in another case, Mercier v. Union Pacific R.R., ALJ No. 2008-FRS-4 (June 3, 2009), where a different ALJ determined that § 20109(f) did not preclude an employee who had challenged his termination in RLA § 3 arbitration from filing a whistleblower claim under FRSA. The ARB agreed with the decision of the ALJ in Mercier, and ruled that, as a matter of law, an employee’s pursuit of RLA arbitration does not constitute an election of remedies under 49 U.S.C. § 20109(f). The ARB remanded both Mercier and Koger for further proceedings.
The Respondent in Koger’s administrative proceeding, Norfolk Southern Railway Co. (the “Plaintiff”), filed an action in federal district court claiming that the district court could review the ARB’s non-final decision under the doctrine of Leedom v. Kyne, 358 U.S. 184 (1958), arguing that the decision was in excess of the Secretary’s delegated powers, and that the Plaintiff would have no other meaningful and adequate means to vindicate its statutory right. The Secretary moved to dismiss arguing that the district court lacked subject-matter jurisdiction because 49 U.S.C. § 20109(d)(4) places review of final decisions by the ARB in the appellate court.
The district court noted that the exception under the Leedom doctrine is extremely narrow – essentially a “Hail Mary” pass. The doctrine has two predicates: (1) the party must demonstrate that the agency disobeyed a statutory provision that is “clear and mandatory”; (2) the party must show that, without the district court’s exercise of jurisdiction, it lacks any meaningful and adequate means of vindicating its statutory rights. In regard to the first predicate, the court reviewed the Plaintiff’s arguments as to why the ARB’s decision was allegedly in error, and found that the Plaintiff’s argument was flawed in several respects, whereas the ARB’s reading was supported by statutory history. The court found that it was not necessary to determine, for the purposes of the jurisdictional question, whether the ARB’s ruling was correct, but only that it was colorable under the statute and not in violation of a clear, mandatory directive within the statute. Accordingly, the court found that the Leedom doctrine did not apply. In regard to the second predicate, the district determined that it could not be said that the practical effect of making the Plaintiff go through with the FRSA investigation would somehow foreclose all access to the courts.
National Transit Systems Security Act
Nichik v. New York City Transit Authority, No. 1:10-cv-05260 (E.D.N.Y. Jan. 11, 2013)
(Memorandum of Decision [denying summary judgment])
Summary:SUMMARY JUDGMENT NOT GRANTED WERE REASONABLE JURY COULD FIND PROTECTED ACTIVITY IN REPORTING OF SAFETY CONCERNS WITH SUBWAY GATES; ADVERSE EMPLOYMENT ACTION; CAUSATION; AND LACK OF CLEAR AND CONVINCING EVIDENCE THAT DEFENDANTS WOULD HAVE TAKEN SAME ADVERSE ACTION IN ABSENCE OF PROTECTED ACTIVITY
In Nichik v. New York City Transit Authority, No. 1:10-cv-05260 (E.D.N.Y. Jan. 11, 2013), the Plaintiff, a superintendent for the New York City Transit Authority, alleged that he was retaliated against by the Defendants for reporting unsafe conditions related to gates in New York City subway stations under several laws, including the National Transit Systems Security Act ("NTSSA"), 6 U.S.C. § 1142. The Defendants filed a motion for summary judgment. The district court judge noted that there was little caselaw regarding the NTSSA, but that the parties agreed that he could look to other whistleblower statutes for guidance, including the SOX, 18 U.S.C.A. 1514A.
Protected Activity
The NTSSA protects transportation employees who make reports regarding hazardous safety or security conditions on the public transportation system. § 1142(b)(1)(A). The Defendants had not briefed the issue of protected activity and the court found that the Plaintiff's activities were sufficient to support a jury finding he engaged in protected activity under the NTSSA.
Specifically, the Plaintiff had emailed NYCTA's then president regarding unsafe subway conditions explaining that the gates are required to be secured (whether in the closed or open position), and that the failure to secure them could lead to injuries or fatalities. The Plaintiff expressed concern that this problem may be system-wide. The Plaintiff also provided the president with photographs depicting discrepancies between the reported conditions of the gates and their actual conditions.
Adverse Action; "Materially Adverse" Standard
The Defendants conceded that its "Disciplinary Action Notification" against the Plaintiff was an adverse action, but argued that various other acts were not. The court applied the "material adverse" standard of Burlington N. & Santa Fe R.R. Co., 548 U.S. 53, 68 (2006), and found that a reasonable jury could find that personnel actions taken against the Plaintiff could dissuade a reasonable NYCTA worker from reporting a hazardous safety or security condition. In the two months following his report of the safety problem with the gates, the Plaintiff had received six reinstructions (a written reminder to an employee to conform his actions to NYCTA requirements) and a citation. The reinstructions were placed in his personnel file and relied upon in making future decisions about discipline; they were used in a "marginal" performance review which in turn resulted in the Plaintiff's not receiving a raise; and there was deposition testimony stating that a reinstruction can be a form of discipline.
Causation; Contributing Factor Standard
The court stated that the NTSSA requires the Plaintiff to demonstrate a causal connection between his protected activity and the adverse actions taken by the Defendants by showing, by a preponderance of the evidence, that the protected activity was a "contributing factor in the unfavorable personnel action" taken against him. § 1142(c)(2)(B)(i).
The Defendants contended that the Plaintiff could not show causal connection because there was lack of temporal proximity between the protected activity and the unfavorable personnel action, i.e., there was a six month period between the Plaintiff's report and the Disciplinary Action Notification. The court, however, found that a reasonable jury could conclude that the reinstructions occurred beginning a month after the report, and demonstrated temporal proximity. The court also noted that there was direct and circumstance evidence of retaliatory animus supporting a causal connection. For example, the Plaintiff had "good" ratings on his yearly managerial performance reviews in the six years preceding the protected activity. In the eight months prior to the protected activity, the Plaintiff had received only two reinstructions, but beginning a month later, he began to receive numerous reinstructions and write-ups. While the Defendants provided explanations for the reinstructions and the Disciplinary Action Notification, the court found that those arguments were more appropriately addressed by a jury.
Non-retaliatory Defense; Clear and Convincing Evidence Standard; Evidence That Other Managers Would Not Have Been Disciplined for Similar Actions As Preventing Summary Judgment
The court noted that "[i]n a NTSSA action, an employer may defeat a prima facie case of retaliation at the summary judgment stage if it can show that no genuine issue of material fact exists that would preclude the conclusion, by clear and convincing evidence, that defendant ‘would have taken the same unfavorable personnel action in the absence of [the protected] behavior.' See § 1142(c)(2)(B)(iv)." Nichik, supra, slip op. at 11.
The Defendants argued that the Plaintiff had a long record of poor and marginal performance as a superintendent, including submitting monthly reports late, failing to inspect his station, and failing to report to a station where a dead person was found in a restroom, despite being instructed to do so by his supervisor. The Defendants contended that the Plaintiff's insubordination left them with no choice but to discipline and suspend him. The court, however, found that there was evidence that other employees in managerial positions would not have been disciplined for similar conduct, and that on the record before him, he could not conclude as a matter of law that the Defendants demonstrated by clear and convincing evidence that the Plaintiff's infractions would have necessarily resulted in unfavorable employment actions independent of any retaliatory motive.