Cleveland v. Long Island R.R.

JOSHUA CLEVELAND, Plaintiff, v. LONG ISLAND RAILROAD COMPANY, Defendant.

18-CV-2080 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 18, 2019

MEMORANDUM OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Plaintiff Joshua Cleveland sued his former employer, the Long Island Railroad Company ("LIRR"), for violations of the anti-retaliation provision of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20109. See Compl., Dkt. 1. Defendant moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56. See Notice of Mot., Dkt. 14. For the following reasons, Defendant's motion is GRANTED. This case is DISMISSED.

BACKGROUND

Plaintiff began working for Defendant in 2007 as an electrician. See Def.'s 56.1 Stmt. ¶¶ 1, 22; Pl.'s 56.1 Stmt. ¶¶ 1, 22. In April 2014, Plaintiff suffered an on-the-job injury, when a light tower boom swung down and severed the tip of his right ring finger. See Def.'s 56.1 Stmt. ¶¶ 3, 23; Pl.'s 56.1 Stmt. ¶¶ 3, 23; Pl.'s Mem. of Law at 3; Pl.'s Dep. at 11. Plaintiff reported the injury to his supervisors the same day. See Def.'s 56.1 Stmt. ¶¶ 3, 23; Pl.'s 56.1 Stmt. ¶¶ 3, 23; Pl.'s Dep. at 11. Following the injury, Plaintiff remained employed by Defendant, receiving disabled-accident ("DA") pay. See Def.'s 56.1 Stmt. ¶ 5; Pl.'s 56.1 Stmt. ¶ 5.

On March 18, 2015, Plaintiff sued Defendant pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51. See Def.'s 56.1 Stmt. ¶¶ 7, 24; Pl.'s 56.1 Stmt. ¶¶ 7, 24. The case proceeded to a jury trial, which began on May 16, 2016. See Def.'s 56.1 Stmt. ¶¶ 9, 28; Pl.'s 56.1 Stmt. ¶¶ 9, 28. Plaintiff testified during the trial. See Def.'s 56.1 Stmt. ¶ 11; Pl.'s 56.1 Stmt. ¶ 11. On May 18, 2016, the jury returned a verdict in Plaintiff's favor for $1.5 million in loss of earnings, pain and suffering, and other damages. See Def.'s 56.1 Stmt. ¶¶ 9, 13, 28; Pl.'s 56.1 Stmt. ¶¶ 9, 13, 28.¹

About a month later, Defendant terminated Plaintiff's employment. See Def.'s 56.1 Stmt. ¶¶ 15, 40; Pl.'s 56.1 Stmt. ¶¶ 15, 40. Defendant notified Plaintiff of his termination through a letter that stated, "[G]iven the jury verdict rendered in your favor on May 18, 2016, effective immediately, your relationship with the Long Island Rail Road is hereby terminated." Def.'s 56.1 Stmt. ¶ 15; Pl.'s 56.1 Stmt. ¶ 15.

On March 7, 2018, after pursuing administrative remedies, Plaintiff filed the present action. See Compl. Plaintiff alleges that Defendant terminated him in retaliation for his filing the FELA lawsuit and for his testifying at trial, in violation of the FRSA's anti-retaliation provision, 49 U.S.C. § 20109.² See id.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is nogenuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To defeat summary judgment, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(e)). Courts "construe the facts in the light most favorable to the non-moving party . . . and resolve all ambiguities and draw all reasonable inferences against the movant." Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam) (quoting Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009)).

II. The Applicable Law

The FRSA's anti-retaliation provision states, in relevant part, that a railroad carrier "may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part" to the employee's having engaged in certain forms of protected activity. 49 U.S.C. § 20109(a); see also Metro-N. Commuter R.R. Co. v. United States Dep't of Labor, 886 F.3d 97, 106 (2d Cir. 2018). The forms of protected activity are specifically enumerated in the statute; they include reporting an on-the-job injury, providing information in an investigation relating to railroad safety, testifying against a railroad carrier in an FRSA enforcement proceeding, and so forth. See 49 U.S.C. § 20109(a)(1)-(7). A plaintiff may not succeed on an FRSA retaliation claim without showing that he engaged in one of the forms of protected activity listed in the statute.

Claims brought under this statute are subject to the burden-shifting framework set forth in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR-21"), 49 U.S.C. § 42121. See 49 U.S.C. § 20109(d)(2)(A)(i) (incorporating by reference 49 U.S.C. § 42121). First, the plaintiff must establish a prima facie case of retaliation, by showing that:"(1) [he] engaged in protected activity as defined in the statute; (2) his employer knew that he had engaged in protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action." Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659, 663 (S.D.N.Y. 2017); see also Kuduk v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014); Bechtel v. Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013); Hernandez v. Metro-N. Commuter R.R., 74 F. Supp. 3d 576, 579 (S.D.N.Y. 2015). If the plaintiff establishes a prima facie case, "the burden shifts to the employer to demonstrate by clear and convincing evidence that [it] would have taken the same personnel action in the absence of the protected activity." Lockhart, 266 F. Supp. 3d at 663 (quoting Conrad v. CSX Transp., Inc., 824 F.3d 103, 107 (4th Cir. 2016)).³

III. Defendant's Motion for Summary Judgment Is Granted

Plaintiff alleges that Defendant terminated him in retaliation for his filing and testifying in the 2016 FELA lawsuit. The principal question in this case, therefore, is whether Plaintiff's FELA lawsuit is a protected activity under the FRSA. The Court finds, as a matter of law, that it is not. Defendant's motion for summary judgment is, therefore, granted.

A. Plaintiff's FELA Lawsuit Is Not a Protected Activity Under the FRSA

Plaintiff relies on three provisions of the FRSA to argue that his acts of filing and testifying in the FELA lawsuit are protected activities: 49 U.S.C. § 20109(a)(1)(C), (a)(3), and (a)(4). See Pl.'s Mem. of Law at 8-9; Pl.'s Supp. Mem. of Law at 1-3.

1. Section 20109(a)(1)(C)

Plaintiff first argues that the FELA lawsuit is a protected activity pursuant to § 20109(a)(1)(C) of the FRSA. See Pl.'s Supp. Mem. of Law at 1-2. That provision prohibits retaliation against any act:

[T]o provide information . . . in any investigation regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security . . . if the information . . . is provided to or an investigation stemming from the provided information is conducted by . . . a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct.

49 U.S.C. § 20109(a)(1)(C). Plaintiff argues that the FELA lawsuit fits within this provision because it was an "investigation" into a violation of "Federal law" (specifically, a violation of FELA). Id.; see Pl.'s Supp. Mem. of Law at 2. Plaintiff argues that he engaged in protected activity when he "provide[d] information" in that "investigation" by testifying during the trial; in Plaintiff's view, a trial jury is a body with "the authority to investigate . . . misconduct." 49 U.S.C. § 20109(a)(1)(C); see Pl.'s Supp. Mem. of Law at 2.

Plaintiff's argument lacks merit. Putting aside whether a lawsuit can plausibly be called an "investigation," a trial jury is clearly not a "person who has the authority to investigate . . . misconduct." 49 U.S.C. § 20109(a)(1)(C). A trial jury's role is to listen to and evaluate facts adduced by the parties at trial, not to investigate those facts. Indeed, at Plaintiff's FELA trial, the jury was specifically instructed to decide the case "based solely on the evidence . . . received in this trial." Trial Tr. at 29. And trial juries are routinely told not to conduct any independent research or investigation into the facts of a case. See Sand, 4 Modern Federal Jury Instructions: Civil ¶ 71.02, Instruction 71-15 (2019); United States v. Martorell, 81 F. App'x 754, 755 (2d Cir. 2003) (juror was properly removed from a trial panel for conducting outside research into acase). Plaintiff's argument, therefore, is inconsistent with the plain language of the statute. As a matter of law, neither the FELA lawsuit nor Plaintiff's testimony in the lawsuit were protected under § 20109(a)(1)(C) of the FRSA. Cf. Kuduk v. BNSF Ry. Co., 980 F. Supp. 2d 1092, 1099 (D. Minn. 2013) (a union representative was not a person with "the authority to investigate . . . misconduct" under the FRSA), aff'd on other grounds, 768 F.3d 786 (8th Cir. 2014); Tides v. The Boeing Co., 644 F.3d 809, 815 (9th Cir. 2011) (representatives of the news media were not people with "the authority to investigate . . . misconduct" under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A(a)(1)(C); that statute contains language nearly identical to § 20109(a)(1)(C) of the FRSA).⁴

2. Section 20109(a)(3)

Plaintiff also argues that the FELA lawsuit is a protected activity under § 20109(a)(3) of the FRSA. That provision prohibits retaliation for any action done "to file a complaint, or directly cause to be brought a proceeding related to the enforcement of this part or, as applicable to railroad safety or security, chapter 51 or 57 of this...