United States District Court, D. Maryland
K. Bredar Chief Judge.
before the Court are two motions: (1) Defendant CSX
Transportation, Inc.'s ("CSXT") Motion for
Summary Judgment, to Stay Litigation Pending Arbitration,
and/or to Dismiss (ECF No. 15), and (2) Plaintiffs'
Motion for Leave to Amend Their Complaint (ECF No. 20). The
motions are fully briefed (ECF Nos. 23, 28, 29, 30) and are
ripe for decision. No. hearing is necessary. Local Rule 105.6
(D. Md. 2018).
Court previously granted in part CSXT's motion when the
Court stayed further proceedings in the case pending
completion of Plaintiffs' arbitration claims under the
Railway Labor Act. (Order Nov. 19, 2018, ECF No. 40.) In
making that ruling, the Court noted the stay would not
prevent the Court from ruling on the two motions that had
become ripe prior to the stay. (Id. at 1 n.1;
see also Order Mar. 19, 2019, at 1 n.1 (ECF No. 49)
(denying motion for reconsideration of stay).) Now, without
contradiction to the stay as previously limited, the Court
rules on other portions of CSXT's motion and all of
Plaintiffs' motion. No. hearing is necessary. Local Rule
105.6 (D. Md. 2018).
Motion for Summary Judgment
Standard for Summary Judgment
court shall grant summary judgment if 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); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing predecessor to current Rule
56(a)). The burden is on the moving party to demonstrate the
absence of any genuine dispute of material fact. Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a
verdict in favor of the party opposing the motion, then a
genuine dispute of material fact is presented and summary
judgment should be denied. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, the "mere
existence of a scintilla of evidence in support of the
[opposing party's] position" is insufficient to
defeat a motion for summary judgment. Id. at 252.
The facts themselves, and the inferences to be drawn from the
underlying facts, must be viewed in the light most favorable
to the opposing party, Scott v. Harris, 550 U.S.
372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230
(4th Cir. 2008), who may not rest upon the mere allegations
or denials of his pleading but instead must, by affidavit or
other evidentiary showing, set out specific facts showing a
genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting
and opposing affidavits are to be made on personal knowledge,
contain such facts as would be admissible in evidence, and
show affirmatively the competence of the affiant to testify
to the matters stated in the affidavit. Fed.R.Civ.P.
case is premised upon alleged violations by CSXT of the
Family and Medical Leave Act ("FMLA"), codified at
29 U.S.C. §§ 2601-2654. It is undisputed that CSXT
operates 24 hours per day, seven days a week, 52 weeks a
year. Plaintiffs are or were working in CSXT's Train
& Engine ("T&E") service as conductors,
engineers, trainmen, and yardmen. CSXT explains how T&E
Many T&E employees are assigned to pools that are
responsible for operating trains between two or more
locations, one of which is the employee's home terminal
and another of which is the employee's away-from-home
terminal. Employees assigned to a pool are placed on a
rotating list or board based on the employee's tie-up
time-i.e., when he returned to the home terminal.
When a train is ready for departure, the employee at the top
of the board is called to work. Employees who have just
completed service are placed at the bottom of the board.
(John Johnson Decl. ¶ 3, Def.'s Mot. Summ. J. Ex. B,
ECF No. 15-11.) Federal law places restrictions on the length
of time an employee who operates a train can work; thus,
T&E employees can be on duty for no more than twelve
hours, and they must have at least ten consecutive hours of
rest between on-duty periods. (Id. ¶ 4.) As a
result, when a T&E employee arrives at the away-from-home
terminal, he often stays overnight for the federally-mandated
rest period and is then called to operate a train back to his
home terminal sometime later. (Id.) CSXT also
describes the process by which employees take off from work:
An employee might not be available for work because of
illness, vacation, jury duty, or some other reason. In that
case, the employee notifies the railroad that he is
unavailable-a process known as "marking off' or
"laying off." There are several different ways that
an employee can mark off-he can call CSXT's Crew
Management department; dial an interactive voice recording
system; or use a platform known as CrewLife that can be
accessed by computer or cell phone. Employees who mark off
must provide a reason for doing so.
When an employee marks off, it creates a temporary vacancy
that must be filled. CSXT's collective bargaining
agreements with T&E employees establish procedures for
filling temporary vacancies. The agreements generally require
CSXT to first try to fill the temporary vacancy with an
employee from an extra board. Extra boards operate similar to
pools insofar as the employees assigned to them are placed on
a rotating list based on when they last worked, and are
called to work in that order. Unlike an employee who works in
a pool, however, an extra board employee's primary
function is to remain available to fill temporary vacancies.
Some extra boards are "guaranteed," meaning that
the employees assigned to them are assured a minimum income
provided they are available to work for a certain period of
time, while other extra boards are not guaranteed.
Rather than working in pool service or on an extra board,
some T&E employees work jobs that have fixed hours and
assigned off days. These types of jobs include yard jobs, and
local or road switcher assignments. Yard jobs involve sorting
freight cars into trains through a process known as
switching. Local or road switcher assignments involve
operating trains that run on a fixed schedule and service
their complaint, Plaintiffs have made three contentions:
First, Plaintiffs have alleged CSXT "unlawfully inflates
the amount of time employees are charged for FMLA leave"
by accounting for it by the day instead of by the hour.
(Compl. ¶ 3, ECF No. 1.) Second, Plaintiffs allege CSXT,
in 2015, "implemented an attendance policy that
explicitly punishes employees for taking lawful FMLA
leave." (Id. ¶ 4.) Third, Plaintiffs
allege CSXT unlawfully suspended or terminated over 100
employees beginning in 2017 and continuing to the present
because CSXT, without factual basis, concluded they had taken
FMLA leave over the holiday times of Christmas 2017 and New
Year's Eve and Day 2017-18 when they had no legitimate
need to take it. (Id. ¶ 5.) CSXT seeks summary
judgment as to discrete portions of Plaintiffs' case,
specifically, the first and second contentions stated above.
Inflation of FMLA Leave
respect to whether CSXT accounts for FMLA leave by the day
instead of by the hour, CSXT adamantly denies, and supports
its argument with ah affidavit denying, that it follows the
alleged practice. Its company representative, Jolanda
Johnson, who is the Manager of Benefits, declares that CSXT
accounts for "FMLA leave by the hour and not by the day,
and this practice has been consistent throughout [her]
13-year tenure as Benefits Manager." (Jolanda Johnson
Decl. ¶ 5, Def.'s Mot. Summ. J. Ex. A, ECF No.
15-3.) Ms. Johnson explained how the company accounts for
T&E employees such as locomotive engineers and conductors
for the most part do not work a set schedule and instead are
called to work on an as-needed basis. T&E employees
indicate that they are available for work by "marking
up" for it, and indicate that they are not available for
work by "marking off." An employee can mark off
from work for FMLA leave. In that case, the leave period
starts when the employee marks off from work and ends when
the employee marks back up for work.
CSXT calculates the amount of FMLA leave taken by T&E
employees on a prorated basis to reflect an eight-hour
workday (even though a T&E employee's on-duty time
can run for well over eight hours in a day). In other words,
CSXT divides the total amount of time that the employee is
marked off for FMLA leave on a single calendar day by three
(the number of 8-hour increments in each day), and charges
that amount against the employee's 12-week allotment of
FMLA leave. So, for example, if a T&E employee is marked
off for all 24 hours of the day, CSXT does not charge that
employee with having used 24 hours of leave (even though he
could have been called to work at any point during that time
period, and may have worked for up to 12 hours). Instead,
CSXT charges the employee with having taken 8 hours of leave.
Similarly, if a T&E employee is marked off for three
hours in a single day, CSXT charges the employee with having
taken only one hour of leave. Thus, if anything, this method
of accounting results in CSXT charging T&E employees with
having taken less FMLA leave than they have actually
apparently concede their initial allegation regarding FMLA
leave being counted as days rather than hours is unsupported
by evidence (Pl.'s Opp'n 5, ECF No. 23) because their
opposition relies upon a recasting of the allegation.
Plaintiffs now argue, based upon CSXT's evidence, that
CSXT systematically overcharges employees for taking FMLA
leave because the leave is recorded as one third of the total
hours taken off regardless of the amount of time employees
would have actually worked during that time. (Id.
25.) Plaintiffs posit as an example "a CSX employee who
marks two days off for FMLA leave is charged with using 16
hours of leave (48 total hours divided by three)."
(Id. 5.) They claim that CSXT's FMLA leave
calculation formula "effectively assumes that its
employees work one-third of the time-day or night, seven days