Caria v. Metro-N. Commuter Rd.

457 F.Supp.3d 301

Joseph CARIA, Plaintiff,

v.METRO-NORTH COMMUTER RAILROAD, Defendant.

No. 16-CV-9501 (RA)

United States District Court, S.D. New York.

Signed April 29, 2020

Marc Twyman Wietzke, Flynn & Wietzke, P.C., Garden City, NY, for Plaintiff.

Jonathan Pierce Meinen, The Port Authority of New York & New Jersey, Sofia C. Hubscher, New York, NY, Beck S. Fineman, Ryan Ryan DeLuca LLP, Bridgeport, CT, for Defendant.

OPINION & ORDER

Ronnie Abrams, United States District Judge

Plaintiff Joseph Caria, an employee of Defendant Metro-North Commuter Railroad, brings this action alleging that Metro-North retaliated against him in violation of the Federal Rail Safety Act (the "FRSA"), 49 U.S.C. § 20109. Now before the Court is Defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. As explained further below, because Plaintiff has not established that he engaged in protected activity, the motion is granted.

BACKGROUND¹

In 1985, Plaintiff began to work for Defendant's Power Department, a group "responsible for installing and maintaining Metro-North's third rail power system." Def.’s Reply 56.1 Stmt. ¶ 1. Plaintiff had a number of positions over the years, but in April 2013, he was promoted to Third Rail Supervisor – a position he remained in until he retired. As a Third Rail Supervisor, Plaintiff "was responsible for several groups of employees, or ‘gangs,’ working on various projects involving installation, maintenance and repair of electrical equipment and electrical third rail." Id. ¶ 2. Because of his supervisory role, Plaintiff participated in several safety training courses, including an annual course on the Federal Railroad Administration ("FRA") "Roadway Worker Safety" rules. See id. ¶ 3; see also Dkt. 49, Ex. A (Transcript of Plaintiff's Deposition) at Tr. 16:15-18 ("We had annual courses, a book of rules ... [a]nd annual classes and tests."). This training "defined" how a supervisor should report certain issues or incidents. Dkt. 49, Ex. E (Transcript of Pepitone's Deposition) at Tr. 32:2-6.

Plaintiff's responsibilities as a supervisor were broadly outlined in Defendant's "General Safety Instructions." See Dkt. 49, Ex. C ("General Safety Instructions"); see also Dkt. 53, Ex. B (Transcript of Coughlin's Deposition) at Tr. 49:17-19 ("The general safety instructions are safety rules that govern the work performed by [Defendant's] employees."). Section 200.2, entitled "Supervisor Responsibilities," provides that "[s]upervisors are responsible for the safety of the employees under their jurisdiction[,]" including by "[e]nsur[ing] that employees work in a safe manner consistent with all company safety rules, procedures, instructions, training practices, policies, and warnings" and "routinely observ[ing], correct[ing], and instruct[ing] employees to ensure compliance with all safety standards." Dkt. 49, Ex. C. Section 200.3, entitled "Reporting Incidents and Unusual Occurrences," requires "[e]mployees [to] immediately report all incidents and unusual occurrences arising from railroad operations or affecting railroad property that involve personal injury, property damage, or any threat to personal safety or to the safe and efficient operation of the railroad." Id. This rule encompasses "report[ing] near misses," defined as "any event arising from the operation of the railroad, which under slightly different circumstances, could have resulted in injury or illness to any person[.]" Id.

I. July 2015 Incident

In July 2015, several months prior to the event at issue in this action, Plaintiff was disciplined for violating his supervisory responsibility to report safety incidents. On July 2, 2015, Plaintiff was overseeing a group of workers, when a section of the third rail was removed from an active track without the requisite track clearance, known as "foul time."² See Dkt. 49, Ex. A at Tr. 58:5-8 (explaining that the group "picked up a piece of rail and ... didn't have the proper foul time or something"). Plaintiff did not report the incident.³ After someone else reported it to the Occupational Safety and Health Administration, see id. at Tr. 58:18-20, Plaintiff was charged with seven disciplinary violations, including for violating Sections 200.2 and 200.3 of the "General Safety Instructions" and for his "[f]ailure to properly supervise employees under [Plaintiff's] direction and control" and "[c]onduct unbecoming a Metro-North Railroad employee." Dkt. 49, Ex. D (Investigation/Trial Waiver) (charging Plaintiff with "actions result[ing] in the performance of an unsafe task that threatened the personal safety of [him] and [his] subordinate employees" and for "fail[ing] to report this incident to [his] supervisors/managers as required").

On August 13, 2015, Plaintiff waived his right to challenge these charges and pled guilty to all seven violations. See id. In agreeing to waive his rights to an investigation and trial, Plaintiff also "agree[d] to the following conditions":

• "I understand that as a supervisory employee, it is my primary responsibility to ensure the safety of my work gangs. I am required to follow all of [Metro-North's] safety rules .... I understand that the safety of the employees working under my direction should be my primary focus as we prepare for and perform work."

• "I understand that it is my responsibility to inform management when a safety violation occurs despite the fact that other supervisory employees are present at an incident."

Id. Upon pleading guilty, Plaintiff received a 45-day suspension, of which he served 15 days with the remaining 30 days noted on his record. See id. ; Pl.’s Reply 56.1 Stmt. ¶ 10.

II. October 2015 Incident

On the morning of October 22, 2015, less than a month after Plaintiff returned from his suspension, one of Plaintiff's subordinates, Charles Ball, informed him that two Power Department trainees – Austen Pelkey and Jose Zuniga – had a verbal altercation when working on the tracks two days earlier, on October 20.⁴ See Dkt. 59, Supp. Ex. H (Transcript of Ball's Deposition) at Tr. 60:9-13. By approximately 9:30 a.m. that morning, Plaintiff called and left a voicemail for Robert Aguirre, an employee in the Office of Diversity and Equal Employment Opportunity Department ("EEO/Diversity"). which primarily investigates complaints of discrimination and sexual harassment.⁵ See Dkt. 49, Ex. G (Oct. 7, 2014 E-Mail); Dkt. 53, Ex. B at Tr. 67:7-11 ("EEO and diversity, they handle complaints and issues brought to their attention with regard to complaints of sexual discrimination, sexual harassment, protected categories, things of that nature."). Aguirre quickly forwarded Plaintiff's voicemail to Lorenzo Biagi, a manager in the Employee Relations Department. Biagi subsequently notified management in the Power Department about the trainees’ altercation on October 20. See Def.’s Reply 56.1 Stmt. ¶ 21; see also Dkt. 49, Ex. F (Transcript of Ortiz’ Deposition) at Tr. 9:10-13 (explaining that he "bec[a]me aware" of the October 20, 2015 incident "[t]hrough the department of ... Employee Relations"). That morning, Biagi also contacted Plaintiff to schedule an appointment for the following day to discuss this matter. See Dkt. 49, Ex. J (Oct. 22, 2015 E-Mail); Dkt. 53, Ex. A (Transcript of Biagi's Deposition) at Tr. 23:8-14. Also on October 22, Plaintiff received a call from Ranallo, who asked him "what did you do." Dkt. 53, Ex. G (Transcript of Plaintiff's Deposition) at Tr. 45:18-20; see also Dkt. 53, Ex. E (Transcript of Ranallo's Deposition) at Tr. 60:2-3, 61:14-16 (explaining that he told Plaintiff that "management was mad that [Plaintiff] went to [EEO/Diversity] instead of coming to us first").

On November 9, 2015, charges were initiated against Plaintiff for failing to properly report the October 20, 2015 altercation between Zuniga and Pelkey.⁶ See Dkt. 49, Ex. K (Nov. 9, 2015 Notice of Action). James Pepitone, the Director of the Power Department, helped determine whether charges should be issued against Plaintiff. See Dkt. 49, Ex. E at Tr. 30:9-16, 31:22-25 ("[T]he discussion [r]evolved around the fact that Mr. Caria, being a seasoned operating supervisor for many years, did not report the incident directly to management, to the operating management."). Plaintiff was specifically charged with three violations: (1) "[c]onduct unbecoming a Metro-North Railroad supervisory employee; [f]ailure to properly supervise employees under [his] direction and control" because he "failed to address the conduct of two subordinates, Austen Pelkey and Jose Zuniga, in an appropriate manner"; (2) "[v]iolation of Metro-North Railroad General Safety Instructions Section 200.2 (Supervisor Responsibilities)" because he "failed to provide appropriate corrective instruction to manage the situation directly, in dereliction of [his] supervisory responsibilities" after he was "advised of inappropriate and uncooperative behavior between two subordinates"; and (3) "[v]iolation of Metro-North Railroad General Safety Instructions Section 200.3 (Reporting Incidents and Unusual Occurrences) and prior existing waiver signed 8/13/15" because he "failed to report the[ ] conduct [of Pelkey and Zuniga] to [his] immediate supervisors." Dkt. 49, Ex. K; see also Dkt. 49, Ex. B (Transcript of Walsh's Deposition) at Tr. 14:10-13 ("[H]e should have addressed the safety concern on the track and he should have brought it to our attention, that we had employees that were not following safety rules on the tracks.").

On January 16, 2016, an investigative hearing, at which Plaintiff was represented by a union official, was held. Among those who testified were Danilo Ortiz, Plaintiff's manager, and Stephen Walsh, Ortiz’ supervisor, who both explained that the waiver, which Plaintiff signed in connection with the July 2015 incident, had obligated him to report safety incidents to his supervisors within the Power Department. See Dkt. 49, Ex. H (Transcript of Jan. 2016 Hearing) at Tr. 23:25-24:2-5, 41:18-23,...