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Bell v. CSX Transportation, Inc.

United States District Court, D. Maryland

May 15, 2019

DANIEL BELL etal., Plaintiffs
v.
CSX TRANSPORTATION, INC., Defendant ATTENDANCE HANDLING SCHEDULE

          MEMORANDUM

          James K. Bredar Chief Judge.

         I. Background

         Pending 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).

         The 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).

         II. CSXTs Motion

         A. Motion for Summary Judgment

         1. Standard for Summary Judgment

         "The 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. 56(c)(4).

         2. Analysis

         This 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 staffing works:

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 customers.

(Id. ¶¶5-7.)

         In 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.

         a. Inflation of FMLA Leave

         With 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 FMLA leave:

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 taken.

(Id. ¶¶6-7.)

         Plaintiffs 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 ...


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