Mangold v. Norfolk S. Ry. Co.

DAVID H. MANGOLD, PLAINTIFF, v. NORFOLK SOUTHERN RAILWAY COMPANY, DEFENDANT.

CASE NO. 5:20-cv-214

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

December 14, 2020

JUDGE SARA LIOI

MEMORANDUM OPINION AND ORDER

Plaintiff David H. Mangold ("Mangold") brought the present action challenging his termination from defendant Norfolk Southern Railway Company ("Norfolk"). Specifically, he alleges that he was disciplined and terminated in retaliation for engaging in protected activity, in violation of the anti-retaliation provisions of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20109.

Norfolk now moves for summary judgment. (Doc. No. 19 ["MSJ"].) Mangold opposes the motion (Doc. No. 33 ["Opp'n"]), and Norfolk has filed a reply. (Doc. No. 37 ["Reply"]). Because Mangold has failed to demonstrate knowledge of protected activity on the part of the individuals involved in the decisions to discipline and terminate him, and because Mangold has failed to demonstrate that his protected activity was a contributing factor in the adverse decisions, Mangold's FRSA claim fails. Additionally, Norfolk has demonstrated by clear and convincing evidence that it would have made the adverse personnel decisions regardless of Mangold's protected activity. Further, because there are no material questions of fact as to any of the claims in the complaint, Norfolk is entitled to summary judgment.¹

I. BACKGROUND

Mangold began his employment in the railroad industry with Consolidated Rail Corporation ("Conrail") in 1995, and he came to work for Norfolk when it acquired Conrail in 1999. (Doc. No. 19-2 (Service Record of David Mangold ["Mangold S.R."]) at 176.²) At the time of his dismissal, he was a federally certified railroad engineer. (Id.) His employment with Norfolk was marked by a history of reporting safety complaints and disciplinary actions. Two disciplinary events are central to Mangold's FRSA claim: a March 2017 letter of reprimand for failing to properly shut down a locomotive, and the July 2017 dismissal for exceeding the maximum allowable speed on an industrial track and for inattention to duty. (Id.)

A. Disciplinary Actions

Norfolk utilizes a system of progressive discipline known as System Teamwork and Responsibility Training ("START"). (Doc. No. 19-5 (START Policy).) Under START, formal discipline may fall into one of three categories: Minor Offenses, Serious Offenses, and Major Offenses, with Major Offenses being reserved for the most serious infractions. (Id. at 185-86.) The progression for Serious or Major Offenses occurring with a two-year rolling period is as follows: a first offense carries a maximum suspension of thirty days deferred, a second offense carries a maximum suspension of thirty days actual, and a third offense may result in the employee's dismissal. (Id. at 188.) Relevant to the present suit, on December 29, 2015, Mangoldsigned a waiver accepting responsibility for improper train handling, which was designated as a START Serious Offense. (Mangold S.R. at 176.)³ Also, on November 18, 2016, Mangold executed a waiver accepting responsibility for failing to follow the written instructions of a supervisor, which was designated as a START Major Offense. (Id.)

All START discipline received by Mangold was administered according to the terms of the collective bargaining agreement between Norfolk and Mangold's union. There is no dispute that, pursuant to the governing bargaining agreement, each disciplinary incident began with an investigation and hearing where Mangold was represented by a union official and permitted to question company witnesses, present witness testimony, and offer other evidence.

1. Delay of Train Incident

On March 5, 2017, Trainmaster Korey Peters ("Peters") was informed by a Norfolk engineer that a locomotive's batteries were "dead." (Doc. No. 19-6 (March 15, 2017 Hearing Transcript ["Hearing TR I"]) at 196.) The report led to an investigation and a hearing that was conducted on March 15, 2017, during which Peters served as the charging officer. Cleveland Terminal Assistant Superintendent Nathaniel Gaines served as the hearing officer and was the decision-maker. (Id. at 193.) Mangold was represented by a union official, permitted to cross-examine witnesses, and allowed to speak on his own behalf. (Id. at 195.) During the hearing, Peters testified that he determined that Mangold was the last engineer to run the locomotive, and that the next run was delayed by 40 minutes while a maintainer was required to come to the yard and restart the locomotive due to the fact that its batteries were drained. Mangold admitted thathe left the circuit breakers up and the locomotive running after his shift because he believed that it would permit the next run to start more quickly. He maintained that he did not hear the instructions from the Yardmaster to shut down the locomotive, but he conceded that he did not know how long it would be before the next crew came out to run the locomotive. (Id. at 206-08, 210.)

Following the conclusion of the hearing, Gaines determined that the investigation clearly proved that Mangold failed to properly shut down his locomotive. (Doc. No. 19-8 (March 28, 2017 Letter Advising of Disciplinary Action ["Gaines Disc. Letter"]) at 214.) This was in violation of Norfolk NS-1 Rule L-219(b), which provides that "when a locomotive is to be shutdown, all circuit breakers, except those protected by a hood or shield, should be turned to the 'off' position." (Doc. No. 19-7 (NS-1 Rule L-219) at 213.) Gaines elected to issue Mangold a letter of reprimand, instead of a START Serious Offense, which would have constituted his third Serious Offense in a rolling 2-year period and subjected him to possible dismissal. (Gaines Disc. Letter.)

2. Speeding/ Inattention to Duty

The second relevant incident resulting in disciplinary action took place on June 15, 2017. On that date, Mangold was operating C27C615 locomotive, and it was alleged that his locomotive was traveling beyond the speed restriction for the track in question and that he was inattentive to his duties. (Doc. No. 19-9 (July 11, 2017 Hearing Transcript ["Hearing Tr. II"]) at 217.) J.M. Marotti ("Marotti"), Division Road Foreman of Engines, served as the charging officer, and Will Washington ("Washington"), Assistant Division Superintendent, was thehearing officer and the decision-maker. (Id. at 215.) Once again, Mangold was represented by a union official, and he was permitted to question witnesses and speak on his own behalf. (Id.)

At the hearing, David Wheeler ("Wheeler"), the conductor assigned to work with Mangold on June 15, 2017, testified to the accuracy of the statement he gave immediately after the incident wherein he maintained Mangold pulled the train out without a signal from the Pittsburgh West Dispatcher. He represented that he yelled at Mangold to stop and, had he not intervened, Mangold would have run the stop light. (Id. at 229, 234.) Marotti also testified that he reviewed the data from the locomotive engine tapes and determined that the locomotive was traveling at a speed of 14 m.p.h. while within the limits of a 10 m.p.h. speed restriction. (Id. at 216-18, 228.) While Mangold testified that he believed he had cleared the 10 m.p.h speed zone and that he had stopped the train before moving past the red signal, he conceded that he advanced the train without permission or authority to do so and that his speed was 14 m.p.h. at the time. (Id. at 236-38.)

After the hearing and at the conclusion of the investigation, Washington determined that the evidence demonstrated that Mangold exceeded the maximum allowable speed on an industrial track and gave inattention to duty, in violation of Norfolk's operating rules. (Doc. No. 19-17 (July 26, 2017 Letter of Discipline ["Washington Disc. Letter"]) at 262; see Doc. No. 19-10 (Norfolk Operating Rules) at 245 [requiring "undivided attention to duty"]; Doc. No. 19-11 (Pittsburgh Div. Time Table No. 1 PB-135-1) at 247 [prohibiting excessive speeds], and PB-137-2 at 247 [limiting industrial tracks to 10 m.p.h.]; see also Doc. No. 19-11 (TT-SYS System Timetable No. 1 SP-5) at 248-49 [speed restrictions]). Mangold was dismissed from his employment with Norfolk effective immediately. (Washington Disc. Letter at 262.)

B. Protected Activity

Throughout his tenure with Norfolk, Mangold made numerous reports of locomotive mechanical defects. He also reported health and safety risks associated with the levels of silica sand dust emitted from the locomotive sanders, brake defects, locomotive toilet defects, and dirty locomotive air filters. (Doc. No. 33-2 (Complaint to U.S. Department of Labor, Occupational Safety and Health Administration ("OSHA") ["OSHA Complaint"]) at 628-32.) According to Mangold, many of these reports were directed to Norfolk's mechanical department and Trainmaster Kevin Keel. (Opp'n at 601-02; see generally OSHA Complaint.) Much of Mangold's opposition brief is committed to recounting this protected activity and sharing his suspicion that it was the impetus for his discipline and discharge. (See Opp'n at 601-07.)

Norfolk does not dispute that Mangold continuously engaged in protected activity up to his discharge. It contends, however, that some of his prior protected activities were covered by a settlement entered into by Norfolk and Mangold on January 27, 2017 and January 31, 2017, concerning an earlier FRSA claim brought by Mangold. (Doc. No. 19-19 (Confidential Settlement Agreement and Release ["Settlement Agreement"]).) By the express terms of the Settlement Agreement, Mangold represented that his only claim against Norfolk was his then pending FRSA complaint, and he agreed to waive his right to pursue his previously filed complaint. (Settlement Agreement at 297, ¶ 6.) On February 1, 2017, OSHA approved the Settlement Agreement and issued a notification advising the parties that the matter had been resolved and that the settlement "constitutes...