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Greenup v. CSX Transportation, Inc.

United States District Court, D. Maryland

July 31, 2019



          Catherine C. Blake United States District Judge.

         The plaintiff Justin Greenup filed suit against the defendant CSX Transportation, Inc. ("CSX'), his former[1] employer and a freight railroad company headquartered in Florida with operations in 23 states. CSX has filed a motion for summary judgment, [2] which has been briefed fully. No. oral argument is necessary. The court will grant the motion for the following reasons.

         Mr. 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, [3] 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.[4] ECF 25-4 at pp. 27-28.

         Following 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.[5] 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.

         Both 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.[6]

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 unfavorable action."

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).

         Here, 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.

         Mr. 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), [7] 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.

         Additionally, 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 violations.

         Absent 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 ...

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