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Groom v. Bombardier Transportation Services USA Corp.

United States District Court, D. Maryland

November 1, 2017

CHRISTOPHER D. GROOM, et al. Plaintiffs
v.
BOMBARDIER TRANSPORTATION SERVICES USA CORP., et al. Defendants

          MEMORANDUM AND ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION TO AMEND THE COMPLAINT

          Marvin J. Garbis United States District Judge

         The Court has before it Defendant's Motion for Judgment on the Pleadings [ECF No. 40], Plaintiffs' (Second) Motion to Amend the Complaint [ECF No. 50], and the materials submitted relating thereto. The Court has held a hearing and has had the benefit of the arguments of counsel.

         I. BACKGROUND

         A. Asserted Claims

         Christopher D. Groom and Adam J. Quigley (together, “Plaintiffs”), are former employees of Bombardier Transportation Services (“Bombardier”). Plaintiffs assert claims for retaliation against Defendants Bombardier and Ronald Russell (together, “Defendants”), under the Federal Rail Safety Act (“FRSA”), 49 U.S.C. § 20109, as well as Maryland state law tort claims: defamation, conspiracy, battery, intentional infliction of emotional distress, negligent hiring and training, and tortious interference.

         B. Alleged Facts

         The “facts” set forth herein are stated as alleged by Plaintiffs in the Second Amended Complaint (“SAC”) [ECF No. 50-2].[1] Defendants do not agree with many of Plaintiffs' factual allegations.

         Since 2013, Bombardier has operated the State of Maryland's MARC commuter train service. SAC ¶ 15.

         At times relevant to the instant case, Plaintiff Christopher Groom (“Groom”) was a certified locomotive engineer. Groom worked as Road Foreman of Engines for Bombardier from May 2013 until December 2013, and was officially terminated a month later on January 9, 2014. Id. ¶ 12. Plaintiff Adam Quigley (“Quigley”) worked as Transportation Coordinator for Bombardier from May 2013 until August 2015. Id. ¶ 13, ¶ 16.

         During the course of their employment, Plaintiffs were supervised by Defendant Ronald Russell (“Russell”), the Rail Operations Superintendent, a senior position at the railroad company. Id. ¶ 18.

         Pursuant to 49 C.F.R. § 240, locomotive engineers must be certified and recertified every three years. When seeking certification or recertification for an employee, a railroad is required to follow its approved certification program under 49 C.F.R. § 240.101, which includes procedures for evaluating the employee's prior safety conduct, visual and hearing acuity, and knowledge and skills testing, among other criteria.

         One of Groom's responsibilities was to recertify Bombardier engineers. Id. ¶ 24. In the fall of 2013 and mid-November 2013, Groom informed Russell that although some of the engineers would need to be recertified soon, their certification files were incomplete and did not contain some of the information required by 49 C.F.R. Part 240. Id. ¶ 22-23. Russell told Groom to not worry about the lack of documentation and instructed him to recertify those engineers anyhow.

         Groom refused to recertify the engineers, even though Russell, on at least four occasions, put pressure on Groom to recertify the engineers between mid-November and mid-December 2013. Id. ¶ 25-26.

         On December 26, 2013, Groom was requested to attend a lunch meeting with Joshua Basore (“Basore”) and Christopher Difatta (“Difatta”), Bombardier Trainmasters who reported to Russell. Id. ¶ 29-30. During the lunch, Difatta asked Groom to step away for a private conversation and Groom did so. While Groom was absent from the table, his drink was allegedly adulterated by Basore with Adderall, an amphetamine.[2] Id. ¶ 30. Groom was subjected to a drug test after the lunch and was notified four days later that he had tested positive for amphetamines. Id. ¶ 32-33. Groom had never used amphetamines at any time in his life prior to the lunch. Id. ¶ 40. As a consequence of the drug test result, Groom's engineer and conductor certifications were suspended and revoked, and he was removed from service. Id. ¶ 34-37. Groom challenged the revocation at an administrative hearing, but Bombardier upheld the suspension and revocation of his certifications. Id. ¶ 37-38. The decision was affirmed in part by the Federal Railroad Administration. Id. ¶ 39.

         In April or May of 2015, Quigley was requested by Russell to obtain an engineer certification. Id. ¶ 54. Russell allegedly pressured him to obtain the certification even when he had not satisfied all the elements of the certification program. Quigley refused to do so. Id. On July 9, 2015, Quigley was subjected to a random drug test. Id. at ¶ 60. He tested positive for Adderall, despite having never taken Adderall in his life. Id. ¶ 60-64. Quigley immediately suspected that he had been drugged before the test, although he was not sure by whom. Id. at 72. On August 11, 2015, Quigley's Student Engineer Certification was revoked. Id. at 73. He also challenged this revocation at an administrative hearing, but was informed by Bombardier that the evidence produced was sufficient to uphold the revocation. Id. at 74.

         On August 3, 2015, Quigley met Groom and informed him about the December 2013 plan to drug Groom and terminate his employment. Id. at 80-81. On August 26, 2015, Groom and Quigley filed a FRSA whistleblower complaint with the Occupational Safety and Health Administration (“OSHA”). Id. ¶ 7. When OSHA did not issue a final decision within the allotted 210 days, Plaintiffs filed an action in this Court. See 49 U.S.C. § 20109(d)(3).

         II. MOTION FOR JUDGMENT ON THE PLEADINGS A. LEGAL STANDARD

         The legal standard for a motion for judgment on the pleadings is the same as the standard for a motion to dismiss. Drager v. PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014) (“The standard of review for Rule 12(c) motions is the same as that under Rule 12(b)(6).”).

         Therefore, a motion for judgment on the pleadings only tests the legal sufficiency of a complaint and does not resolve the merits of the plaintiff's claims or any disputes of fact. Id. A motion for judgment on the pleadings “should only be granted if, after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Id.

         A complaint need only contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). However, conclusory statements or “a formulaic recitation of the elements of a cause of action will not [suffice].” Id. A complaint must allege sufficient facts “to cross ‘the line between possibility and plausibility of entitlement to relief.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).

         Inquiry into whether a complaint states a plausible claim is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” Id. (quoting Twombly, 550 U.S. at 557). Thus, if “the well-pleaded facts [contained within a complaint] do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)).

         B. DISCUSSION

         i. FRSA Retaliation

         “Congress enacted the FRSA ‘to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.'” Conrad v. CSX Transportation, Inc., 824 F.3d 103, 107 (4th Cir. 2016). The FRSA protects railroad employees from disciplinary action for “provid[ding] information . . . regarding conduct that which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security, ” 49 U.S.C. § 20109(a)(1), and for “reporting, in good faith, a hazardous safety or security condition, ” id. § 20109(b)(1)(A).

         To establish a prima facie case of retaliation, a plaintiff must “establish that: ‘(1) [the employee] engaged in [a] protected activity; (2) the employer knew that [the employee] engaged in the protected activity; (3) [the employee] suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action.'” Conrad, 824 F.3d at 107. If the employee establishes the prima facie case, the burden then shifts to the employer to demonstrate “by clear and convincing evidence” that it would have taken the same action in the absence of the protected activity. Id.

         The FRSA employee protections are subject to a statute of limitations. An employee who believes he has been retaliated against must file a complaint with OSHA no more than 180 days after the date on which the alleged violation occurs. 49 U.S.C. § 20109(d)(2)(A)(ii). The Fourth Circuit does not apply the discovery rule (i.e., starting the clock only when plaintiff discovers the claim), [3] but this 180 day period may be subject to equitable modification or equitable tolling. See, e.g., In the Matter of Michael S. Jenkins, ARB CASE NO. 13-029, 2014 WL 2536887, at *4 (Dep't of Labor May 15, 2014) (remanding the decision to the ALJ to consider, among other issues, whether equitable modification should be applied in an FRSA retaliation case).

         Equitable tolling is based primarily on the view that “a defendant should not be permitted to escape liability by engaging in misconduct that prevents the plaintiff from filing his or her claim on time.” English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987). “To invoke equitable tolling, the plaintiff must therefore show that the defendant attempted to mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a timely charge.” Id. In an analogous employment discrimination context, the Fourth Circuit stated that the limitations period “may be subject to equitable modification when warranted by the conduct of the employer, ” including equitable tolling, which “focuses on the plaintiff's excusable ignorance of the employer's discriminatory act.” Felty v. Graves-Humphreys Co., 785 F.2d 516, 519 (4th Cir. 1986).

         Here, Defendants argue that Groom did not timely exhaust his administrative remedies under the FRSA and is therefore time-barred from bringing the action.[4] Groom was notified on March 19, 2014 that his engineer and conductor services were revoked indefinitely. SAC ¶ 38. He did not file his OSHA complaint until August 26, 2015, which is more than 180 days after the notification. Id. ¶ 38. Defendants argue that because Groom asserts that he did not knowingly ingest amphetamines, he had a duty to inquire how he could have tested positive for amphetamines as soon as the drug test came back positive. Defs.' Reply at 8, ECF No. 49. They imply that Groom should have, “by the exercise of reasonable diligence, ” discovered the plot to drug him by speaking to Quigley who allegedly knew of it. Id. at 8-9. Groom, on the other hand, argues that he is entitled to equitable tolling because “Defendants Bombardier and Russell conspired amongst themselves and others to keep their illegal drugging of Mr. Groom a secret.” Pl.'s Opp. at 28, ECF No. 45-1.

         To accept Defendants' characterization of the facts in the present context would not be proper. This is not an ordinary retaliation case in which an employee is terminated after refusing to take a certain action. In the ordinary case, the employee would immediately understand that his termination was caused by the refusal and the limitations period would rightfully begin to run. Here, Groom was terminated for having failed a drug test, which to him would have appeared to be unrelated to his refusal to re-certify the engineers. So, the employer's allegedly discriminatory act was not simply to terminate Groom for having refused to re-certify the engineers, but to secretly adulterate his drink to cause him to fail a drug test that led to his termination. Defendants “should not be permitted to escape liability by engaging in misconduct that prevents the plaintiff from filing his or her claim on time.” Pabst Brewing Co., 828 F.2d at 1049. In this situation, Groom's ignorance of the employer's retaliatory act (i.e., putting amphetamines into his drink in order to terminate his employment) should be excused. See Felty, 785 F.2d at 519. Defendants' argument that Groom should have a duty to investigate the cause of his positive drug test is also unconvincing. It would have been reasonable for Groom to assume something was amiss about the test itself. Indeed, Groom testified at his administrative hearing that he may have taken Claritin-D for his allergies, which could result in a false positive test for amphetamines. Def.'s Mot. J. Pleadings at 8, ECF No. 40-1. Even if Groom suspected that something was unusual about the test result, he should not be required to have made the inferential leap from that known fact to the possibility that his work colleagues obeyed orders from his boss to secretly drug him in order to terminate him for his refusal to recertify the engineers. Moreover, the facts do not suggest that Groom received information about this plot from Quigley earlier than he did. The Defendants should not be able to avoid a claim simply because the method of termination (i.e., causing an employee to fail a drug test) was unusual enough to avoid immediate suspicion.

         As to the merits of the FRSA retaliation claim, Defendants assume, for the purposes of this motion, that Plaintiffs meet the first three prongs of the Conrad test: that they engaged in a protected activity, that Bombardier was aware of the activities, and that they suffered an adverse action. Def.'s Mot. J. Pleadings at 14, ECF No. 40-1. They only challenge whether Plaintiffs have pled sufficient facts to allege that their protected activity was a “contributing factor” in their termination. Id.

         “A contributing factor is ‘any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.'” Feldman v. Law Enf't Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014).[5] This element is “broad and forgiving, ” and is “specifically intended to overrule existing case law.” Id.

         Here, Defendants argue that because Plaintiffs were terminated due to positive drug tests, they have not shown that the protected activities (i.e., Groom's refusing to recertify the engineers, and Quigley's refusing to be certified without meeting all the requirements) were contributing factors in their terminations. Def.'s Mot. J. Pleadings at 15, ECF No. 40-1.

         Again, Defendants' version of the facts cannot now be accepted. While it is true that the immediate cause of the termination was the positive drug test, Plaintiffs have alleged that they were drugged and terminated as a direct result of their respective protected activities. SAC ¶ 47, ¶ 69-71. This certainly meets the broad and forgiving standard for a “contributing factor” of termination under Feldman. The Defendants' challenge of the factual accuracy of the drugging allegations is not resolved at the current stage of the litigation. Def.'s Mot. J. Pleadings at 15, ECF No. 40-1.

         Plaintiffs have stated a plausible claim for FRSA retaliation under Counts 1, 2, 3, and 4. Accordingly, Defendant's Motion for Judgment on the Pleadings [ECF No. 40] for the retaliation claim is DENIED.

         ii. Defamation

         To establish a prima facie case of defamation, the plaintiff must show: “(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm.” Indep. Newspapers, Inc. v. Brodie, 407 Md. 415, 441 (2009). A defamatory statement is one that “tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person.” Samuels v. Tschechtelin, 135 Md.App. 483, 543 (2000). A false statement is “not substantially correct” and the plaintiff carries the burden to prove falsity. Piscatelli v. Van Smith, 424 Md. 294, 306 (2012). The element of “fault” is established by showing either negligence (“a preponderance of the evidence”) or malice (“clear and convincing evidence ... that the defendant published the statement in issue either with reckless disregard for its truth or with actual knowledge of its falsity”). See Redmonds Enter., Inc. v. CSX Transportation, Inc., No. CV CCB-16-3943, 2017 WL 2335598, at *3 (D. Md. May 30, 2017).

         Maryland courts recognize a difference between defamation per se and defamation per quod:

In the case of words or conduct actionable per se, their injurious character is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved. In the case of words or conduct actionable only per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage.

Samuels, 135 Md.App. at 549. Whether an alleged defamatory statement is per se or per quod is a question of law for the court.[6] Id. If the statement is per quod, the jury must decide whether it carries defamatory meaning. Id. “But if the statement is defamatory per se, and the defendant was merely negligent in making the false statement, the plaintiff must still prove actual damages, ” unless a plaintiff can demonstrate malice by clear and convincing evidence. Id.

         Maryland does not appear to have a separate claim for “defamation by innuendo” that is different than defamation per quod. Rather, it appears that when a court does not find defamation per se, defamation per quod could be established by using innuendo or implication. See, e.g., Metromedia, Inc. v. Hillman, 285 Md. 161, 164 (1979) (“while, if the words used are not defamatory Per se, they must be explained by innuendo and colloquium”); Walker v. D'Alesandro, 212 Md. 163, 180 (1957) (“If the words are not considered libelous per se-in which case no innuendo is necessary-they may be actionable if coupled with allegations of special damage as being libelous per quod.”); Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 647 (1970) (explaining that because the utterance was “slanderous per se, ” “there is no need here for construction or use of innuendo to see if the words can bear the defamatory meaning alleged”).

         Innuendo or implication cannot be used to “add to or enlarge the sense of the words used, ” and must be “fairly warranted by the language declared on, when that language is read, either by itself, or in connection with the inducement and colloquium.” Bowie v. Evening News, 148 Md. 569 (1925). See also Batson v. Shiflett, 325 Md. 684, 724 n. 14 (1992) (“A mere inference, implication, or insinuation is as actionable as a positive assertion if the meaning is plain. The test is whether the words, taken in their common and ordinary meaning, in the sense in which they are generally used, are capable of defamatory construction.”).

         This court has required plaintiffs to show the following to survive the initial pleadings stage: “(1) the identity of the maker of the defamatory statement; (2) the exact content of the defamatory statement; (3) the date on which the defamatory statement was made; (4) the persons to whom the defamatory statement was communicated; [and] (5) the date on which [Defendant] was advised by the Plaintiffs of the falsity of the defamatory statement.” S. Volkswagen, Inc. v. Centrix Fin., LLC, 357 F.Supp.2d 837, 844 (D. Md. 2005). However, subsequent decisions have noted that Southern Volkswagen “is not fairly read to establish a heightened pleading standard for defamation claims or minimum pleading requirements in order to state a claim for defamation.” Lora v. Ledo Pizza Sys., Inc., No. CV DKC 16-4002, 2017 WL 3189406, at *8 (D. Md. July 27, 2017).

         Maryland does not appear to adopt the theory of defamation by self-publication. See De Leon v. Saint Joseph Hosp., Inc., 871 F.2d 1229, 1237 (4th Cir. 1989) (“The district court concluded that the Maryland Court of Appeals, at least on the facts presented here, would not adopt self-publication. We do also, bearing in mind that, otherwise, the theory of self-publication might visit liability for defamation on every Maryland employer each time a job applicant is rejected.”). See also Byington v. NBRS ...


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