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Gibbs v. Norfolk Southern Railway Co.

United States District Court, W.D. Kentucky, Louisville Division

July 14, 2015



DAVID J. HALE, District Judge.

This action was brought under the whistleblower provision of the Federal Railroad Safety Act (FRSA). Defendant Norfolk Southern Railway Company answered the complaint as to Plaintiff Jeffrey Gibbs (Docket No. 9) but has moved to dismiss the claims of Plaintiff Chad Quinlin, arguing that Quinlin cannot prevail on his claim of retaliation because he did not engage in an activity protected under the Act. (D.N. 10) Also before the Court is the plaintiffs' objection to Magistrate Judge Dave Whalin's order denying their motion for leave to amend the complaint. (D.N. 32; see D.N. 31) Because the complaint fails to state a plausible claim for relief by Quinlin and his attempted amendment was futile, the motion to dismiss will be granted and the objection will be overruled as to Quinlin. The objection will be sustained with respect to Gibbs, as Norfolk Southern did not oppose Gibbs's amendment of the complaint.


Gibbs and Quinlin are former employees of Norfolk Southern. As set forth in the complaint, they and their coworkers were informed by Norfolk Southern Senior General Foreman Sherrill Jones that Norfolk Southern's "private management entertainment train" (the "Derby Train") would interfere with employee parking around the time of the 2012 Kentucky Derby. (D.N. 1 at PageID # 2 ¶¶ 8-10) The only other access to the rail yard was blocked by municipal utility work at the time, and thus "[a]ll of the workers, including Plaintiffs, were alarmed" when they learned of the parking change "because it would require them to park in a dangerous neighborhood and walk up the N[orfolk] S[outhern] mainline to get to the yard to work." ( Id. at PageID # 3 ¶ 12) The complaint further alleges that "Gibbs and others voiced all of the workers' safety concerns to local management, including Jones, " who informed them that "nothing could be done about it." ( Id. ¶¶ 13-14) Gibbs replied that when the Derby Train arrived, he would tell Norfolk Southern Chief Operating Officer Wick Moorman about the workers' concerns. ( Id. ¶ 15) Jones warned Gibbs not to approach Moorman, stating that Gibbs "would be arrested and the only person he would be able [to] tell his story to would be the judge.'" ( Id. ¶ 16) Gibbs then sent an e-mail to Moorman "on behalf of all of the workers, complaining about th[e] situation and the dangers it created." ( Id. ¶ 17) Ultimately, following "an uproar" among Norfolk Southern management ( id. ¶ 18), "local management was ordered to provide safe access to the yard, " and the employees were able to use an alternate route while the Derby Train was in town. ( Id. at PageID # 4 ¶ 20)

Approximately two months later, Gibbs and Quinlin were away from company property in a company truck after completing their assigned tasks. ( Id. at PageID # 4 ¶¶ 21-24) They were discovered by Norfolk Southern management and subsequently suspended from work based on accusations of sleeping on the job and being off company property. ( Id. ¶¶ 24-27) On October 1, 2012, after a hearing, their employment was terminated. ( Id. at PageID # 5 ¶¶ 28-29) They pursued administrative remedies before filing this lawsuit on August 22, 2014. ( See id. at PageID # 6 ¶¶ 34-38)

Gibbs and Quinlin asserted one count of retaliation under FRSA, alleging that they were suspended and fired in retaliation for reporting a safety concern. ( See id. at PageID # 6-7 ¶¶ 40-45) Norfolk Southern sought dismissal of Quinlin's claim on the ground that Quinlin had failed to allege that he engaged in any activity protected by FRSA. (D.N. 10) With their response to the motion to dismiss, the plaintiffs filed a motion for leave to amend their complaint to address the deficiencies identified by Norfolk Southern. (D.N. 18, 19) That motion was denied by Magistrate Judge Whalin, who concluded that the proposed amended complaint could not survive a motion to dismiss Quinlin's claim and that amendment was therefore futile.[1] (D.N. 31) The plaintiffs timely objected to Judge Whalin's ruling pursuant to Rule 72 of the Federal Rules of Civil Procedure. (D.N. 32) They assert that a magistrate judge lacks authority to deny leave to amend for futility, and they urge the Court to undertake de novo review of the proposed amended complaint. ( See id. at PageID # 179-80, 182-83)

Although the plaintiffs cite no case law on this point, the Court notes that there is a split of opinion as to whether denial of amendment on futility grounds is a dispositive matter (thus subjecting a magistrate judge's decision to de novo review) or nondispositive (reviewed only for clear error). See Fed.R.Civ.P. 72. Compare Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006) ("The district judge correctly held that the magistrate judge's denial of Hall's motion to amend his complaint was nondispositive, subject only to review for clear error."), with Nomura Sec. Int'l, Inc. v. E*Trade Sec., Inc., 280 F.Supp.2d 184, 198 (S.D.N.Y. 2003) ("A ruling denying a motion for leave to amend for failure to state a claim under Fed.R.Civ.P. 12(b)(6)... is deemed dispositive and reviewed de novo under Rule 72(b)."). The Sixth Circuit does not appear to have spoken directly on the matter.[2] The Court finds no need to resolve this standard-of-review issue here, because the outcome would be the same under either standard: the proposed amended complaint, like the original complaint, clearly fails to state a claim upon which relief may be granted.


In deciding a motion to dismiss under Rule 12(b)(6), the Court must determine whether the complaint "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this plausibility standard, a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. It is factual allegations that are essential; "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " and the Court need not accept such statements as true. Id. A complaint whose "well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct" does not satisfy the pleading requirements of Rule 8 and will not withstand a motion to dismiss. Id. at 679. And where a proposed amended complaint could not survive a motion to dismiss, amendment is futile and need not be allowed. SFS Check, LLC v. First Bank of Del., 774 F.3d 351, 355 (6th Cir. 2014) (citing Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010)).

With these principles in mind, the Court turns to the complaints. Quinlin contends that he has stated a plausible claim for relief under either of two theories: direct retaliation or associational retaliation.

A. Direct Retaliation

Quinlin's claim is based on 49 U.S.C. § 20109(b)(1)(A), which provides that "[a] railroad carrier... shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for... reporting, in good faith, a hazardous safety or security condition." Protected activity-i.e., reporting a safety or security condition-is an essential element of this claim. See Kuduk v. BNSF Ry. Co., 768 F.3d 786, 788-89 (8th Cir. 2014) (citing 49 U.S.C. § 42121(b)(2)(B)(i); 29 C.F.R. § 1982.104(e)(2)). Norfolk Southern contends that Quinlin's claim fails because he has not adequately alleged that he engaged in protected activity.

Quinlin concedes that he did not personally report any safety concern. (D.N. 19 at PageID # 100) Nonetheless, he maintains that his retaliation claim is viable because Gibbs's complaints were made on behalf of all the employees, including Quinlin. According to Quinlin, the term "reporting" in § 20109(b)(1)(A) encompasses reports made by another person on an employee's behalf. ( See D.N. 19 at PageID # 101-104)

The Court need not decide whether FRSA's protection extends to indirect reports, however, because Quinlin has not alleged facts to support his assertion that he indirectly reported a safety condition. The complaint does not explain how Gibbs became the authorized spokesperson for Quinlin and the rest of the workers. Nowhere does it suggest that Quinlin discussed the alleged safety condition ...

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