Ziparo v. CSX Transp., Inc.

443 F.Supp.3d 276

Cody ZIPARO, Plaintiff,

v.CSX TRANSPORTATION, INC., Defendant.

5:17-CV-0708 (GTS/TWD)

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

Signed March 9, 2020

OF COUNSEL: HANS D. LEIBENSPERGER, ESQ., PERRY M. DARBY, ESQ., BERMAN, SOBIN, GROSS, FELDMAN & DARBY, LLP, Counsel for Plaintiff, 1301 York Road, Suite 600, Lutherville, MD 21093.

OF COUNSEL: DANIEL R. SANTOLA, ESQ., POWERS & SANTOLA, LLP, Co-counsel for Plaintiff, 100 Great Oaks Blvd, Suite 123, Albany, NY 12203.

OF COUNSEL: SUSAN C. RONEY, ESQ., NIXON PEABODY LLP, Counsel for Defendant, 40 Fountain Plaza, Suite 500, Buffalo, NY 14202.

DECISION and ORDER

GLENN T. SUDDABY, Chief United States District Judge Currently before the Court, in this employment retaliation action pursuant to the whistleblower provision of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. §§ 20109, filed by Cody Ziparo ("Plaintiff") against CSX Transportation, Inc. ("CSX" or "Defendant"), are the following two motions: (1) Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 ; and (2) Defendant's motion to exclude the testimony of Plaintiff's expert witness at trial. (Dkt. Nos. 40, 41.) For the reasons set forth below, Defendant's motion for summary judgment is granted and Defendant's motion to exclude expert testimony at trial is denied as moot.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Generally, in his Complaint, Plaintiff asserts a claim that Defendant violated the whistleblower provision of FRSA by subjecting him to various adverse actions (including threats of discipline, greater scrutiny, and ultimately termination) in retaliation for making complaints about his supervisors' orders to falsify information. (Dkt. No. 1 [Pl.'s Compl.].) More specifically, Plaintiff alleges that his supervisors ordered him to input incorrect information regarding departure time, arrival time, and the completeness of his work into Defendant's onboard electronic system in order to improve their chances of bonuses, and that his supervisors engaged in a pattern of retaliation against him after he made an internal ethics complaint about their orders that ultimately ended in the termination of his employment. (Id. )

B. Undisputed Material Facts on Defendant's Motion for Summary Judgment

Unless otherwise stated, the following facts were asserted and supported with accurate record citations by Defendant in its Statement of Material Facts and either expressly admitted by Plaintiff in his response thereto or denied without appropriate record citations.¹ (Compare Dkt. No. 40, Attach. 37 [Def.'s Rule 7.1 Statement] with Dkt. No. 50, Attach. 28 [Pl.'s Rule 7.1 Resp.].)

Background²

1. Plaintiff was employed by Defendant as a train conductor from 2006 to 2016 and

primarily worked in the Watertown rail yard with runs between facilities in DeWitt and Massena.

2. The duties of a train conductor include building trains, switching cars at customers' facilities, and helping to ensure safe railroad operations.

3. A conductor's duties include switching railcars (i.e., moving and arranging individual railcars into trains depending on their respective destinations), a process that includes moving the individual railcars by locomotive into trains on parallel tracks and, at certain points, "cutting" (detaching) the individual railcars from the locomotive moving them.

4. Plaintiff's supervisors in 2015 and 2016 included trainmasters Ryan Van Blarcom and Jimmy Lacy.

5. A trainmaster is responsible for overseeing the work of employees and making sure customers' needs are met in his or her assigned territory, and for assuring that work is performed safely and in compliance with applicable federal and company rules.

6. Mr. Van Blarcom's territory as trainmaster included 60 to 70 freight customers.

7. On occasion, Mr. Van Blarcom traveled from Massena to Watertown and Syracuse for various purposes, including to understand and discuss the logistics of day-to-day operations, to cover his territory, to ride trains, to have face-to-face interaction with employees, and to conduct operational rules testing (i.e., watching employees performing their duties to make sure those duties were being performed in accordance with Defendant's rules and federal regulations).³

8. Over the course of his managerial career, Mr. Van Blarcom has employed the technique of asking employees to keep a log of their daily activities so he can spot patterns of issues that cause delays in rail service and know what needs to be fixed to ensure smoother operations.⁴

9. According to Plaintiff, the workload in the Watertown rail yard increased in early 2016.

10. In his deposition, Mr. Van Blarcom testified that, in April 2016, because of recurring issues affecting train service, he asked Plaintiff to keep a log of daily activities so that he could determine what needed to be fixed and how they could do things better to improve operations.⁵

11. In his deposition, Mr. Lacy testified that he thought he may have given Plaintiff his opinion that the reason for Mr. Van Blarcom's request for Plaintiff to keep a log of his daily activities was to determine how to improve service to customers.⁶

12. Mr. Miner had been asked to keep a log of his activities during the working day by a "couple" of trainmasters "throughout the years for the purpose of seeing how long it took to switch out industries and cars."⁷

Onboard Work Order Issue

13. The Onboard Work Order ("OBWO") is a computer tablet-like device that conductors such as Plaintiff carry with them for the purpose of inputting certain data over the course of a shift.

14. The data input into an employee's OBWO is relayed to Defendant's internal customer service center and is ultimately made available to customers.

15. The data input into an employee's OBWO include information such as train departure and arrival times, cars that are placed at or pulled from customers' locations, and other data.

16. The information input into an OBWO is used as a customer service measurement tool, so that customers are able to see what cars they are going to receive, when the train is departing, and when it will arrive.⁸

17. The OBWO is used as a customer-oriented device that enables customers to track their deliveries.⁹

18. In this respect, Mr. Pigula likened the OBWO to FedEx's system for tracking the status and location of shipments.

19. OBWOs are not safety equipment that is mandated by law; not all trains are equipped with OBWOs, and OBWOs are not required for the purpose of showing the location of railcars carrying hazardous materials.¹⁰

20. To verify the location of railcars containing hazardous materials, train crews carry mandated paperwork, which is updated by hand to show the current position of each hazardous material shipment, as required by federal law.¹¹

21. Plaintiff claims that Mr. Van Blarcom and Mr. Lacy told him in early 2016 to enter inaccurate information, such as departure times, delivery times, idle times, work completed and arrival times, into his OBWO to improve their customer service metrics for the purpose of enabling Mr. Van Blarcom and Mr. Lacy to receive performance-based bonuses.

22. Plaintiff did not input inaccurate information in his OBWO because he felt that it would have constituted lying, that it was not right, and that it would affect customers, and because it made him uncomfortable.

23. According to Mr. Lacy, being asked to input incorrect information into the OBWO is not something he considered distracting; it was "not something that could get you hurt or killed" and it was not a "life and death" situation.¹²

The Handbrake Charge

24. In April 2016, Defendant's Operating Rules required that handbrakes be applied and tested on railcars that were not attached to a locomotive and were "unattended."

25. "Unattended" in relation to railcars means cars that are left standing and unmanned in such a manner that a conductor cannot readily control the handbrake on the car; although "unattended" does not specify a particular distance between an employee and a railcar, a railcar is "attended" only if an employee is in a position to see or hear movement and to be able to manipulate or operate the handbrake on the car manually or to otherwise take action if the car starts to roll or move.

26. The purpose of the Operating Rules regarding securing unattended railcars and testing their handbrakes is to avoid having railcars moving inadvertently, derailing or striking equipment, or otherwise causing a catastrophic accident.

27. In his deposition, Mr. Pigula testified that he was aware of instances in which CSX employees in the Albany division (other than himself and Plaintiff) had been disciplined for violating the operating rules relating to securing and performing handbrake tests on unattended railcars.¹³

28. While at work on April 13, 2016, Mr. Van Blarcom discovered, on tracks near a highway, a set of 14 "cut away" (i.e., detached) railcars that had not been secured by handbrakes and for which no handbrake test had been performed.

29. The 14 railcars discovered by Mr. Van Blarcom on April 13, 2016, were the responsibility of Plaintiff and Mr. Pigula.¹⁴

30. At the time that Mr. Van Blarcom discovered the 14 railcars, Plaintiff and Mr. Pigula were performing a switching operation (during which both were riding a locomotive), putting them at approximately 1,000 feet away from the railcars.

31. When Mr. Van Blarcom discovered the 14 railcars, Plaintiff and Mr. Pigula were "out of [his] sight" from his vantage point beside to the railcars.¹⁵

32. As a result of the incident of April 13, 2016, Plaintiff was charged with a rule violation.

33. An on-property hearing was scheduled to provide Plaintiff with the chance to appear with union representation and contest the rule-violation charge, but Plaintiff opted not to attend the hearing and instead waived his contractual right to a formal investigation and accepted responsibility for the violation; for this admitted violation, Plaintiff agreed to receive a formal...