United States District Court, D. Maryland
CHRISTOPHER D. GROOM, et al. Plaintiffs
BOMBARDIER TRANSPORTATION SERVICES USA CORP., et al. Defendants
MEMORANDUM AND ORDER RE: MOTION FOR JUDGMENT ON THE
PLEADINGS AND MOTION TO AMEND THE COMPLAINT
J. Garbis United States District Judge
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.
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.
“facts” set forth herein are stated as alleged by
Plaintiffs in the Second Amended Complaint
(“SAC”) [ECF No. 50-2]. Defendants do not agree with
many of Plaintiffs' factual allegations.
2013, Bombardier has operated the State of Maryland's
MARC commuter train service. SAC ¶ 15.
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.
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.
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
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.
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.
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. 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.
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.
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).
MOTION FOR JUDGMENT ON THE PLEADINGS A. LEGAL
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).”).
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.
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).
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)).
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.
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.
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),  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).
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).
Defendants argue that Groom did not timely exhaust his
administrative remedies under the FRSA and is therefore
time-barred from bringing the action. 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.
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.
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.
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). This element is “broad and
forgiving, ” and is “specifically intended to
overrule existing case law.” Id.
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.
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.
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.
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).
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. 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
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
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
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).
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 ...