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    William Conrad v. CSX Transportation, Inc., 4th Cir. (2016)

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    This document summarizes a published decision from the United States Court of Appeals for the Fourth Circuit regarding a case between William Conrad and CSX Transportation, Inc. The court affirmed the district court's granting of summary judgment in favor of CSX. The court concluded that Conrad failed to provide sufficient evidence that any CSX employee involved in disciplining him knew about his protected activities as local chairman of the transportation union, as is required to establish a prima facie case of retaliation under the Federal Railroad Safety Act.

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    William Conrad v. CSX Transportation, Inc., 4th Cir. (2016)

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    This document summarizes a published decision from the United States Court of Appeals for the Fourth Circuit regarding a case between William Conrad and CSX Transportation, Inc. The court affirmed the district court's granting of summary judgment in favor of CSX. The court concluded that Conrad failed to provide sufficient evidence that any CSX employee involved in disciplining him knew about his protected activities as local chairman of the transportation union, as is required to establish a prima facie case of retaliation under the Federal Railroad Safety Act.

    Original Description:

    Filed: 2016-05-25 Precedential Status: Precedential Docket: 15-1035

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    This document summarizes a published decision from the United States Court of Appeals for the Fourth Circuit regarding a case between William Conrad and CSX Transportation, Inc. The court affirmed the district court's granting of summary judgment in favor of CSX. The court concluded that Conrad failed to provide sufficient evidence that any CSX employee involved in disciplining him knew about his protected activities as local chairman of the transportation union, as is required to establish a prima facie case of retaliation under the Federal Railroad Safety Act.

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    William Conrad v. CSX Transportation, Inc., 4th Cir. (2016)

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    This document summarizes a published decision from the United States Court of Appeals for the Fourth Circuit regarding a case between William Conrad and CSX Transportation, Inc. The court affirmed the district court's granting of summary judgment in favor of CSX. The court concluded that Conrad failed to provide sufficient evidence that any CSX employee involved in disciplining him knew about his protected activities as local chairman of the transportation union, as is required to establish a prima facie case of retaliation under the Federal Railroad Safety Act.

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    of 12

    PUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 15-1035

    WILLIAM M. CONRAD,
    Plaintiff - Appellant,
    v.
    CSX TRANSPORTATION, INC.,
    Defendant - Appellee.

    Appeal from the United States District Court for the District of
    Maryland, at Baltimore.
    William M. Nickerson, Senior District
    Judge. (1:13cv03730WMN)

    Argued:

    January 27, 2016

    Decided:

    May 25, 2016

    Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior


    Circuit Judge.

    Affirmed by published opinion.


    Senior Judge Davis wrote the
    opinion, in which Judge Niemeyer and Judge Floyd joined.

    ARGUED: Lawrence A. Katz, COFFEY KAYE MYERS & OLLEY, Bala


    Cynwyd, Pennsylvania, for Appellant.
    Jacqueline Marie Holmes,
    JONES DAY, Washington, D.C., for Appellee. ON BRIEF: Thomas R.
    Chiavetta, Emily J. Kennedy, JONES DAY, Washington, D.C., for
    Appellee.

    DAVIS, Senior Circuit Judge:


    Appellee
    employees,
    violations

    CSX

    Transportation,

    Appellant
    of

    the

    William

    companys

    M.

    safety

    Inc.

    charged

    Conrad,
    policy.

    one

    with

    of

    its

    serious

    Alleging

    he

    was

    disciplined in retaliation for his activities as local chairman


    of the transportation union, Conrad sued in federal district
    court under the Federal Railroad Safety Act (FRSA), 49 U.S.C.
    20109.

    The district court granted summary judgment in favor

    of CSX, concluding that Conrad had failed to show that any CSX
    employee involved in the disciplinary process had also known
    about his union activities.

    Conrad v. CSX Transp., Inc., No.

    WMN-13-3730, 2014 WL 7184747, at *5 (D. Md. Dec. 15, 2014).


    On appeal, Conrad argues that knowledge of an employees
    protected activities may be imputed to the decision-makers if
    any supervisory employee at the company knew of the subordinate
    employees protected activity when the decision-maker took the
    unfavorable personnel action, regardless of whether the person
    with knowledge played a role in the disciplinary process.

    We

    disagree and therefore affirm the judgment.


    I.
    Conrad has worked at CSX, an international transportation
    company,

    as

    freight

    Maryland, since 2003.

    train

    conductor

    out

    of

    Cumberland,

    From 2009 to 2012, he served as local

    chairman of the United Transportation Union Local 340, during

    which time he defended his union members against disciplinary


    actions and ensured that CSX complied with all safety policies.
    Conrads tenure in that role gave rise to the two events at
    issue here, referred to by the parties as the Deineen Incident
    and the Demmler Yard Incident.
    The

    Deineen

    Incident

    involved

    local

    union

    member

    Deineen and preceded Conrads first disciplinary charge.

    James
    In

    January 2011, Deineen, a conductor, was injured while applying a


    handbrake at Cumberland Yard.
    left work for the day.
    Deineen

    to

    return

    to

    Deineen reported his accident and

    CSX supervisors, however, instructed


    the

    yard

    to

    recreate

    the

    accident.

    Deineen, having suffered an injury and having worked 13 hours


    already, contacted Conrad to discuss CSXs request.

    Believing

    Deineen was due a rest period under the Hours of Service Act, 49
    U.S.C. 21101 et seq., Conrad advised Deineen that he did not
    need to return to work.

    Conrad informed Trainmaster Ron Baer of

    his intent to report the alleged Hours of Service Act violation,


    and indeed made the report to Michel Bull, a Federal Railroad
    Administration representative.
    Less than a month later, on February 9, 2011, Cumberland
    Terminal

    Superintendent

    Superintendent

    Keith

    Ray

    Morriss,

    Stafford,

    and

    Assistant

    Trainmaster

    Eric

    Terminal
    Koelker

    accompanied a new trainmaster, Mike Drummond, to an area west of


    Cumberland for training.

    While there, they observed Conrad stop

    his

    train

    at

    bow-handled

    switch

    and,

    before

    checking

    the

    switch, operate the switch with one handa violation of CSXs


    safety

    policy.

    Later

    that

    day,

    CSX

    charged

    serious offense for the rule violation.

    Conrad

    J.A. 216.

    with

    Following

    the disciplinary charge, Conrad opted to take a time out, id.,


    avoiding

    formal

    disciplinary

    procedures

    by

    submitting

    to

    meeting with a CSX manager and a union representative.


    Some six months later, the Demmler Yard Incident occurred.
    In August 2011, CSX Conductors Scott Sechler and Christopher
    Hose

    were

    operating

    train

    that

    had

    run

    out

    of

    fuel

    Demmler Yard, a railroad yard in western Pennsylvania.

    near
    Their

    train blocked the primary artery in and out of the yard, known
    as the main line, obstructing the passage of other trains.
    CSX

    supervisor

    locomotive

    with

    ordered
    one

    Sechler

    from

    and

    Demmler

    Yard

    Hose

    to

    switch

    to

    move

    the

    their

    disabled

    train, but Sechler refused to switch locomotives.


    The conditions at Demmler Yard made it difficult to operate
    trains in the area, so CSX and the United Transportation Union
    had

    settled

    union

    safety

    complaint

    by

    conductors be qualified before working there.

    mandating

    that

    Sechler knew that

    he and Hose were not qualified to enter Demmler Yard.

    Although

    CSX offered to send a qualified employee to help navigate the


    locomotive switch, Sechler persisted and, being a local union
    member, called Conrad for advice.

    Conrad told Sechler that he

    could not enter the yard.


    Conrad

    conveyed

    to

    And in a subsequent phone call,

    Trainmaster

    Danielle

    Renner

    that

    he

    had

    advised Sechler not to enter Demmler Yard.


    Later

    that

    month,

    on

    August

    26,

    2011,

    CSX

    Senior

    Road

    Foreman of Engines Bill Diamond and Trainmaster Ron Baer saw


    Conrad violate a number of safety procedures in Cumberland Yard.
    Diamond

    and

    Baer

    were

    in

    Cumberland

    Yard

    for

    operational

    testing, and, while there, they observed Conrad operate a train


    without

    his

    conducting

    radio
    a

    radio

    operating a switch.

    on,

    fail

    check,

    to
    and

    use

    proper

    fail

    to

    identification

    use

    both

    hands

    in

    when

    CSX charged Conrad with serious offense

    rules violations for that conduct.

    J.A. 196.

    After exhausting his administrative remedies, Conrad filed


    suit against CSX in federal district court, alleging two counts
    of retaliation in violation of the FRSA.

    CSX moved for summary

    judgment, arguing in part that none of the CSX employees who


    witnessed

    Conrads

    rule

    violations

    and

    initiated

    actions knew about his safety complaints.


    agreed

    and

    held

    that

    at

    least

    one

    disciplinary

    The district court

    person

    involved

    in

    the

    adverse employment decision must have knowledge of the protected


    activity.

    See Conrad, 2014 WL 7184747, at *4.

    Concluding that

    Conrad ha[d] not provided sufficient admissible evidence from


    which a jury could conclude that there was any knowledge of his
    alleged protected activity among any of the individuals involved

    in the decision-making process to discipline him, the district


    court granted summary judgment in favor of CSX.
    *6.

    See id. at *4,

    Conrad timely appealed.


    II.
    A.
    We review the district courts grant of summary judgment de

    novo.

    Groves v. Commcn Workers of Am., 815 F.3d 177, 180 (4th

    Cir. 2016) (citation omitted).


    when,

    viewing

    the

    facts

    in

    Summary judgment is appropriate


    the

    light

    most

    favorable

    to

    the

    nonmoving party, there is no genuine dispute as to any material


    fact and the movant is entitled to judgment as a matter of law.
    Id. at 181 (citations and internal quotation marks omitted).
    B.
    For

    context,

    statutory

    we

    framework

    begin
    and

    with

    the

    an

    overview

    applicable

    of

    the

    liability

    relevant

    standards.

    Congress enacted the FRSA to promote safety in every area of


    railroad

    operations

    incidents.

    and

    reduce

    railroad-related

    49 U.S.C. 20101.

    accidents

    and

    To that end, the FRSA prohibits

    railroads from discriminating against employees who engage in


    certain

    safety-related

    Relevant

    here,

    the

    FRSA

    activities.
    protects

    See

    id.

    20109(a).

    employees

    from

    disciplinary

    action for provid[ing] information . . . regarding any conduct


    which the employee reasonably believes constitutes a violation
    of any Federal law, rule, or regulation relating to railroad

    safety.

    Id.

    20109(a)(1).

    The

    FRSA

    likewise

    protects

    employees who report[], in good faith, a hazardous safety or


    security condition.
    Like
    governed

    other
    by

    Id. 20109(b)(1)(A).

    federal

    the

    whistleblower

    burden-shifting

    statutes,

    framework

    set

    the

    FRSA

    forth

    in

    is
    the

    Wendell H. Ford Aviation Investment and Reform Act for the 21st
    Century

    (AIR-21).

    See

    e.g.,

    18

    1514A(b)(2)(C)

    U.S.C.

    id.

    20109(d)(2)(A)(i);

    see

    also,

    (Sarbanes-Oxley

    Act)

    (incorporating the rules and procedures of AIR-21); 42 U.S.C.


    5851(b)(3)

    (Energy

    Reorganization

    Act)

    (same).

    Thus,

    to

    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.

    Feldman v.

    Law

    Cir.

    Enft

    Assocs.

    Corp.,

    752

    F.3d

    339,

    344

    (4th

    (citation and internal quotation marks omitted).


    probative

    evidence

    as

    to

    any

    single

    2014)

    The absence of

    element

    necessary

    establish a prima facie claim terminates the action.

    to

    See Litt

    v. Republic Servs. of S. Nev., ARB Case No. 08-130, 2010 WL


    3448544, at *3 (Dept of Labor Aug. 31, 2010).

    If the employee

    establishes a prima facie 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.

    Feldman, 752 F.3d at 345

    (citation omitted).
    C.
    The district court granted summary judgment in favor of CSX
    based on the evidentiary insufficiency as to the second prong of
    the AIR-21 prima facie standard.

    In other words, the district

    court concluded that Conrad could not show that CSX knew that
    [he had] engaged in the protected activity.
    at

    344

    (citation

    and

    internal

    quotation

    Feldman, 752 F.3d

    marks

    omitted);

    Cf.

    Conrad, 2014 WL 7184747, at *4.

    On appeal, as they did below,

    the

    theories

    parties

    offer

    two

    opposing

    knowledge under the FRSA.

    of

    what

    constitutes

    Conrad argues that he can meet the

    knowledge requirement if any supervisory employee at the company


    knew of his protected activities at the time of the unfavorable
    personnel action.

    CSX responds that, to the contrary, knowledge

    must be tied to a decision-maker involved in the unfavorable


    action.
    Although this Circuit has not previously had occasion to
    address the knowledge sufficient to sustain an FRSA retaliation
    claim, the Administrative Review Board of the U.S. Department of
    Labor (ARB) has explained that an employee must establish
    that

    the

    decision-makers

    who

    subjected

    him

    to

    the

    alleged

    adverse action were aware of the protected activity.

    Rudolph

    v. Natl R.R. Passenger Corp., ARB Case No. 11-037, 2013 WL


    1385560, at *9 (Dept of Labor Mar. 29, 2013); see also Litt,
    2010

    WL

    3448544,

    at

    *3,

    *5

    (concluding,

    under

    the

    Surface

    Transportation Assistance Act, which required a showing by a


    preponderance of the evidence that the employer was aware of
    the protected activity, that the employee did not establish a
    prima facie case of retaliation because he failed to show that
    any of the decision-makers involved in his termination knew
    that he engaged in any protected activity).

    Moreover, the ARB

    has added that it is insufficient to demonstrat[e] that an


    employer, as an entity, was aware of the protected activity.
    Rudolph, 2013 WL 1385560, at *9; see also Kuduk v. BNSF Ry. Co.,
    768 F.3d 786, 790-91 (8th Cir. 2014) (a lower-level supervisors
    knowledge was not sufficient where the decision-makers had no
    knowledgeactual or constructiveof [the employees] protected
    activity).
    We conclude that the above cited authorities are sound and
    persuasive, and we therefore adopt the same interpretation:

    The

    knowledge relevant for a retaliation claim under the FRSA must


    be

    tied

    to

    the

    personnel action.

    decision-maker

    involved

    in

    the

    unfavorable

    As the district court concluded, Conrad has

    failed to show that such knowledge existed here.

    Conrad

    claims

    that

    CSX

    brought

    his

    February

    2011

    disciplinary charges in retaliation for his decision to report


    an Hours of Service Act violation in connection with the Deineen
    Incident.

    He has not marshaled evidence, however, that any of

    the four CSX employees who observed his conduct that month and
    charged him with a violation were aware of his January Hours of
    Service Act complaint.

    Instead, CSX has produced declarations

    from the four employees, all of whom attest that they did not
    know of the complaint or any other safety concerns that Conrad
    may have previously raised.

    Conrad has produced no evidence to

    dispute their assertions.


    Conrad also argues that, because he notified Trainmaster
    Baer that he intended to file an Hours of Service Act complaint,
    CSX had knowledge of his protected activity before it charged
    him

    with

    the

    February

    2011

    safety

    violation.

    This

    argument

    fails because Conrad has not demonstrated that Baer had any role
    in

    the

    argues

    February
    on

    Stafford

    appeal
    of

    2011
    that

    Conrads

    disciplinary
    a

    jury

    may

    complaint,

    charges.
    assume
    Stafford

    Although

    that
    (who

    Baer
    did

    Conrad

    informed
    observe

    Conrads February 2011 safety violation) attested that he had no


    knowledge of the Hours of Service Act complaint.

    Conrad has not

    produced any evidence to call into question Staffords sworn


    statements.

    To the extent Conrad means to suggest that summary

    judgment should be denied to a moving party on mere speculation

    10

    that a jury might arbitrarily disbelieve a fellow employees


    testimony, we reject such a suggestion.

    Accordingly, Conrad has

    failed to generate a genuine dispute of material fact as to the


    knowledge

    element

    of

    his

    claim

    arising

    from

    the

    Deineen

    Incident.
    Conrads

    retaliation

    claim

    related

    Incident fails for the same reason.

    to

    the

    Demmler

    Yard

    Diamond and Baer reported

    Conrads safety violations in August 2011.

    But Conrad has not

    marshaled any evidence that Diamond or Baer knew that he had


    instructed Sechler not to enter the Demmler Yard.

    As we have

    explained, Conrad had the burden to produce such evidence.


    Feldman, 752 F.3d at 344.

    See

    And Diamond has denied knowing about

    any specific safety complaints that Conrad [had] made during


    his employment with [CSX]. *

    J.A. 196.

    At bottom, Conrad urges us to rely on a series of inference


    upon inference, based on the chain of command, to conjure a

    Baer had also stated that he d[id] not recall any


    specific safety complaints that Conrad [had] made during his
    employment with [CSX].
    J.A. 81.
    This statement by Baer
    arguably conflicts with Conrads testimony that he told Baer
    about his intention to file the Hours of Service Act complaint
    related to the Deineen Incident.
    See J.A. 378.
    Nevertheless,
    because Conrad does not argue that his August 2011 disciplinary
    charges arose out of the February Deineen Incident, we regard as
    immaterial, for purposes of CSXs motion for summary judgment,
    the ostensible conflict in the recollections of Conrad and Baer
    with respect to Baers alleged knowledge of the Hours of Service
    Act complaint related to the Deineen Incident.

    11

    scheme among higher-level CSX supervisors who were aware of his


    protected activity and sought to silence his FRSA complaints
    because he was a thorn in [their] side.

    Appellants Br. 6.

    But Conrad offers no evidence that his protected activity, or


    any animus derived from such activity, was communicated through
    a chain of CSX employees.

    Such unsupported inferential leaps

    are no adequate substitute for actual evidence.


    WL

    3448544,

    inferred
    complaint

    at

    *4

    that

    [the

    are

    not

    (Litts

    mere

    assertions

    decision-makers]
    sufficient

    to

    did

    See Litt, 2010


    that

    know

    constitute

    he

    it

    can

    filed

    be
    the

    circumstantial

    evidence to establish that Republic was aware of Litts . . .


    alleged

    protected

    activity

    by

    preponderance

    of

    the

    evidence.).
    In sum, because Conrad does not present sufficient evidence
    that

    the

    relevant

    CSX

    decision-makers

    knew

    of

    his

    protected

    activities, his claims fail as a matter of law at the prima


    facie stage.
    III.
    For the reasons set forth, the judgment of the district
    court is
    AFFIRMED.

    12

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