United States District Court, D. Maryland
Catherine C. Blake United States District Judge.
plaintiff Justin Greenup filed suit against the defendant CSX
Transportation, Inc. ("CSX'), his
former employer and a freight railroad company
headquartered in Florida with operations in 23 states. CSX
has filed a motion for summary judgment,  which has been
briefed fully. No. oral argument is necessary. The court will
grant the motion for the following reasons.
Greenup alleges that CSX terminated him on December 2, 2015,
for reporting an injury he incurred more than eight months
earlier while working as a freight conductor operator, thus
violating the Federal Rail Safety Act ("FRSA"), 49
U.S.C. § 20109 et seq. Specifically, Mr.
Greenup claims that, on March 31, 2015, he injured his hand
when a hand brake he was operating snapped shut on his hand.
ECF 25-4 at pp. 12, 20, 32,  Mr. Greenup alleges that he
reported his injury to the yardmaster, who discouraged Mr.
Greenup from reporting the injury or the broken hand brake
and instead instructed Mr. Greenup to claim that the injury
occurred at home. ECF 25-4 at pp. 23-24. On Mr. Greenup's
insistence, the yardmaster called Robert Keller, a
trainmaster, to the yard, to whom Mr. Greenup reported that
he believed his hand to be broken. ECF 25-4 at pp. 27, 30.
After resisting Mr. Greenup's requests for medical
attention, ECF 25-4 at p. 25-27, Mr. Keller assisted Mr.
Greenup in completing an injury report, telling Mr. Greenup
to describe the injury as a contusion, and convinced Mr.
Greenup to delay seeking medical treatment unless his hand
still hurt the next day. ECF 25-4 at pp. 27-28.
his injury report, Mr. Greenup claimed that he was treated
unfavorably by Mr. Keller and other CSX employees, who became
less friendly to Mr. Greenup than in the past. ECF 25-4 at
pp. 30-31. On September 28, 2015, CSX scheduled an
investigative hearing for October 14 stemming from concerns
that absences Mr. Greenup recently had taken were a violation
of CSX's attendance policies. On October 13, Mr. Keller
called Mr. Greenup, and told him that the October 14 hearing
had been cancelled, ECF 25-4 at p. 34, apparently because
some of the absences had been approved and backdated pursuant
to the Family and Medical Leave Act ("FMLA"), ECF
22-18 at pp. 33-34, notwithstanding ongoing concerns
regarding Mr. Greenup's absences which had not been
excused under the FMLA. As a result, Mr. Keller, after
speaking with Mr. Greenup about his availability for the rest
of the day, instructed Mr. Greenup to mark up for work by
5:30 p.m. that day. ECF 22-18 at p. 37; ECF 25-6 at p. 36. Mr.
Greenup asserts that he said he would do his best to do so.
ECF 25-4 at p. 35.
parties agree that Mr. Greenup failed to mark up for work by
5:30 p.m., that Mr. Greenup did not attempt to mark up until
almost midnight, and that this attempt was unsuccessful. ECF
25-4 at pp. 36-37. Mr. Greenup asserted that he was confused
about using the system and mistakenly believed that he
actually had marked up. ECF 25-4 at pp. 37, 41. Mr. Greenup
admitted, however, to having used the phone system on at
least 20 different occasions in various formats, including
using its automated format as well as using the system to
talk to a crew member when the system malfunctioned. ECF 25-4
at pp. 38-39. Specifically, on September 12, 2015,
approximately one month prior to this failure, Mr. Greenup
marked up successfully using the automated phone system, and
received a system-generated notification confirming that he
had completed his mark-up. ECF 22-5 at p. 64. Due to Mr.
Greenup's failure to mark up for work, Mr. Keller
reinitiated the administrative proceedings against Mr.
Greenup on October 19, ECF 25-4 at p. 44, culminating in CSX
terminating Mr. Greenup on December 2, 2015, for
insubordination. Mr. Greenup disputes the basis for his
termination, claiming that his termination was retaliation
for his decision to report his injury, and implies that the
October 14 "phantom" hearing was set, in part, in
retaliation for his report.
Federal Rule of Civil Procedure 56(a) provides that:
[a] party may move for summary judgment, identifying each
claim or defense - or the part of each claim or defense - on
which summary judgment is sought. 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) (emphases added). The Fourth Circuit
has explained that:
[T]o maintain an FRSA retaliation claim past the summary
judgment stage, a plaintiff must project sufficient
admissible evidence to 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
Conrad v. CSX Tramp., Inc., 824 F.3d 103, 107 (4th
Cir. 2016) (internal citation, quotation marks, and
alterations omitted). Should the employee establish a prima
facie FRSA retaliation claim, then the burden shifts to the
employer to demonstrate by clear and convincing evidence that
the employer would have taken the same personnel action in
the absence of the protected activity." Id.
(internal citation and quotation marks omitted).
Mr. Greenup cannot establish a prima facie case of FRSA
retaliation. Namely, Mr. Greenup cannot establish that his
decision to submit the injury report was a contributing
factor in the decision to terminate him.
Greenup proffers no direct evidence that his injury report
was a factor in CSX's decision to terminate him, and his
purported circumstantial evidence does not establish a
genuine issue of material fact. The eight-month period
between Mr. Greenup's protected activity (filing the
injury report) and his termination does not, on its own,
constitute sufficient temporal proximity to give rise to an
inference of causation, cf. Lowery v. CSX Tramp.,
Inc., 690 Fed.Appx. 98, 101 (4th Cir. 2017) (finding
that sixteen days between the employee's protected
activity and the adverse personnel action supported a
conclusion of retaliatory animus),  and even accepting Mr.
Greenup's claim that the eight months should be shortened
due to his absences during that time would still leave at
least a five-month gap which, standing alone, is too long to
support a causal inference.
although Mr. Greenup attempts to prove that his termination
was pretext for r retaliation by
distinguishing his treatment from other CSX employees who
were subjected to discipline, he fails to provide the court
with a meaningful comparator. "The similarity between
comparators and the seriousness of their respective offenses
must be clearly established in order to be meaningful."
Lightner v. City of Wilmington, N.C., 545 F.3d 260,
265 (4th Cir. 2008). Such a showing should "include
evidence that the employees dealt with the same supervisor,
[were] subject to the same standards and .. . engaged in the
same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or the
employer's treatment of them for it." Williams
v. Silver Spring Volunteer Fire Dept., 86 F.Supp.3d 398,
420 (D. Md. 2015) (internal citation and quotation marks
omitted) (alterations in original). The record does not show
any similarly-situated employee whom Mr. Keller disciplined
for insubordination. The parties identify only one other CSX
employee whom Mr. Keller charged with insubordination
("Employee L"), whose employee records reflect
conduct separate and distinct from absenteeism and
insubordination, ECF 25-38 at pp. 3-4, and whose treatment by
CSX is inconclusive due to the employee's decision to
resign, ECF 22-15 at p. 1. Even if the court were inclined to
accept Employee L as a similarly-situated comparator, the
court would be unable to conclude that CSX treated Employee L
more leniently than Mr. Greenup given that Employee L
resigned before CSX rendered "treatment" for his
supporting evidence that disparate treatment occurred in
retaliation for Mr. Greenup's injury report,
Employee L's disciplinary history, on its own, does not
produce a different outcome for Mr. Greenup's claims
here. See Lightner, 545 F.3d at 265 (noting that
plaintiffs may use evidence of disparate treatment as
"circumstantial evidence to create an inference of
discrimination," but that not all instances of disparate
treatment are unlawful discrimination). Mr. Greenup provided
the court with no supporting evidence that any differences
between CSX's treatment of Mr. Greenup versus its
treatment of Employee L were due in part to Mr. Greenup's
injury report, as even ...