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Gibbs v. Norfolk Southern Railway Co.

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

March 28, 2018

JEFFREY GIBBS, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          David J. Hale, Judge

         Plaintiff Jeffrey Gibbs worked for Defendant Norfolk Southern Railway Company in Louisville, Kentucky. (Docket No. 34) In 2012, Norfolk suspended and then terminated Gibbs's employment. Gibbs challenges these actions, alleging that Norfolk punished him in retaliation for expressing safety concerns to his supervisor, in violation of the anti-retaliation provisions of the Federal Railroad Safety Act, 49 U.S.C. § 20109. (Id.) Norfolk now moves for summary judgment. (D.N. 41) Because Gibbs has failed to demonstrate knowledge on the part of the individuals involved in the decisions to suspend and terminate him, and alternatively because Gibbs fails to show that expressing safety concerns was a contributing factor in their decisions, Gibbs's claim fails as a matter of law. Additionally, because there are no material questions of fact as to either issue, the Court will grant Norfolk's motion for summary judgment.

         I. Background

         At the outset, the Court finds it helpful to outline the Norfolk employees at issue in this matter. Gibbs is a former employee of Norfolk's mechanical department. (D.N. 44-1, PageID # 684-85) While employed with Norfolk, Gibbs worked as a “utility carman, ” tasked with making expedited repairs on train cars located at the Youngstown Yard in Louisville, Kentucky. (Id., PageID # 703) His immediate supervisors at the time of the incident in question were Mechanical Supervisor Charles Crittenden and General Foreman Chris Anderson, the latter of whom made the decision to suspend Gibbs. (D.N. 41-3, PageID # 263) Both men reported to Senior General Foreman Sherrill Jones. (D.N. 41-2, PageID # 250) In turn, Jones's supervisor was Divisional Manager of Mechanical Operations Kevin Krull, based in Knoxville, Tennessee. (Id.) Also employed by Norfolk were Mechanical Superintendent Ryan McLain, based in Birmingham, Alabama and who made the decision to terminate Gibbs (Id., PageID # 252), Transportation Department Terminal Superintendent Kraig Barner, and Assistant Trainmaster Scott St. Clair. The latter two men were based in Louisville, Kentucky. (D.N. 44-6, PageID # 884)

         On the morning of April 24, 2012, Norfolk Senior General Foreman Sherrill Jones addressed Gibbs and his fellow carmen. Jones informed them that in anticipation of the upcoming Kentucky Derby, Norfolk's “private management entertainment train, ” which typically arrived at the railyard a week before the Derby, would interfere with employee parking. (Id., PageID # 692) As a consequence of the Derby Train's presence and the fact that their usual entrance was blocked at the time due to municipal utility work, the employees were instructed to park in a separate lot or the surrounding neighborhood. (Id., PageID # 693) Gibbs immediately objected to this instruction because he believed that it would be unsafe to walk from the separate lot to the railyard; he also expressed his concern with parking in the surrounding neighborhood given his concern that it was a high-crime area. (Id., PageID # 693, 720-21) Jones responded that there was nothing he could do about the matter. (Id., PageID # 693) Gibbs then stated his intention to walk to the Derby Train when it arrived to relate his safety concerns to Wick Moorman, Norfolk's Chief Executive Officer. (Id.) Jones informed Gibbs that if he did so, he would be arrested for trespassing. (Id., PageID # 695)

         Thereafter, Gibbs sent an e-mail to Moorman using Norfolk's intranet page “Ask Wick.” The e-mail stated, in its entirety:

Dear Wick, I am a carman in Louisville, KY. The main entrance that we all use has a water main break and the entrance is blocked off. We are now entering from the other entrance by the control tower and driving through the D-yard area. As you know, this area is blocked off when the Derby train is here. They are telling us that we will have to park away from work and walk in. I said I would walk over to talk to you about it when you got here and show you why we [cannot] enter from the regular entrance and I was told I would be arrested. This came from the senior general foreman here in Louisville. Could you please give me your thought[s] on this issue. It is an inconvenience.

(Id., PageID # 749) In response, Norfolk sent Tennessee-based Division Manager Kevin Krull to Louisville to investigate Gibbs's claim that Jones threatened him. (D.N. 44-3, PageID # 824)

         Krull interviewed a number of witnesses to the incident, one of whom allegedly told him about the employees' safety concerns. (D.N. 44-4, PageID # 854) At the conclusion of the investigation, Krull asked Gibbs if he wanted Norfolk to initiate disciplinary action against Jones. (Id.) In light of Jones's apology and explanation for his initial reaction to Gibbs's demeanor during the meeting, Gibbs declined. (D.N. 41-2, PageID # 258) In the e-mail to his supervisor following the investigation, Krull stated that he had “made it clear to Carman Gibbs that he is welcome to respectfully approach or speak to any [Norfolk] Officer about any concern without apprehension.” (Id.) Thereafter, Norfolk contacted the city of Louisville regarding the utility repairs. (D.N. 44-3, PageID # 844-45) As a result, the secondary road was opened prior to the Derby Train's arrival, mitigating the parking dilemma. (Id.)

         On July 26, 2012, three months after the Derby Train incident, Gibbs and his co-worker Chad Quinlin reported to work at the railyard. (D.N. 44-1, PageID # 703) After finishing their morning repairs and with no additional work to complete, Gibbs and Quinlin drove a company truck to a Chick-fil-A restaurant eight miles from the railyard. (Id.) There is considerable dispute over what precipitated this decision. Under the collective-bargaining agreement between Norfolk and its employees, carmen are allowed twenty minutes for lunch. (D.N. 41-3, PageID # 276-77) Additionally, Norfolk's General Regulation 6 states, “Employees must report for duty . . . at the designated time and place . . . [and] must not absent themselves from duty . . . without proper authority.” (D.N. 41-9, PageID # 584) Norfolk's “General Rule 1” states, “Vehicles are furnished for handling Company business only. Non-business trips are prohibited.” (Id., PageID # 594) And Item No. 29 of Norfolk's Senior General Foreman Bulletin 2012-01 states, “Norfolk Southern employees on duty are not to leave the property on business. This includes purchasing or eating meals. When persons are on a road trip, they are certainly permitted to stop and get something to eat.” (Id., PageID # 593) Notably, the Bulletin lists Senior Foreman Jones as a signatory and Norfolk Mechanical Supervisor-and Gibbs's immediate supervisor-Charles Crittenden among those receiving a courtesy copy. (Id.)

         Nevertheless, despite these rules, Gibbs maintains that it was “common practice” that once a carman finished his work, he should leave the property and await further orders, pursuant to a quasi “on-call” arrangement. (D.N. 44-1, PageID # 723) Gibbs testified that various Norfolk supervisors had instructed Gibbs on this practice as a way to maintain employee morale, so that workers in the yard did not observe idle co-workers. (Id.) Indeed, Gibbs states that he had left the railyard for lunch prior to the day at issue and that his supervisors were aware that he did so. (Id., PageID # 725) Quinlin and one additional Norfolk carman testified similarly. (D.N. 44-4, PageID # 860; D.N. 44-8, PageID # 937) Most notably, Gibbs claims that on the day in question, Crittenden told him not to “hang[] around . . . with nothing going on, [and to] go find some place to hide.” (D.N. 44-1, PageID # 724)

         After spending forty minutes at Chick-fil-A eating lunch, Gibbs and Quinlin drove the Norfolk truck to a secluded area behind a local shopping center, which was the location of Tucker's restaurant. (D.N. 44-1, PageID # 704) Meanwhile, two Norfolk managers, Transportation Department Terminal Superintendent Kraig Barner and Assistant Trainmaster Scott St. Clair, arrived at Tucker's to eat lunch. (D.N. 41-10, PageID # 606) Barner and St. Clair noticed the Norfolk truck idling in the back parking lot. (Id.) After spending forty-five minutes eating lunch, Barner and St. Clair, seeing that the Norfolk truck was still idling, decided to investigate. (Id., PageID # 610) Barner and St. Clair maintain that prior to approaching the truck, they observed it for fifteen minutes and saw no movement from its occupants. (Id., PageID # 611) This led both men to believe that the truck's occupants were sleeping. (D.N. 41-8, PageID # 418) According to Gibbs, however, he and Quinlin simply sat in the truck waiting for their next assignment, as Gibbs had on previous occasions. (D.N. 44-1, PageID # 705)

         Barner and St. Clair then approached the vehicle and asked Gibbs and Quinlin to identify themselves. (D.N. 41-10, PageID # 616-17) After learning that both men worked at the Youngstown Yard, Barner told Gibbs that he planned to inform their supervisor of the incident and that they should head back to the railyard. (Id., PageID # 619) Because Senior Foreman Jones was on vacation, Barner called Division Manager Krull and reported what he had seen. (Id., PageID # 620-21) Krull in turn called General Foreman Chris Anderson, who in the chain of command was above both Crittenden and Gibbs, and discussed what Barner had reported. (D.N. 41-2, PageID # 252)

         Meanwhile, Gibbs and Quinlin returned to the railyard, where they spoke with Crittenden and Anderson. (D.N. 44-1, PageID # 708) After interviewing Gibbs and Quinlin, Anderson spoke to Barner and St. Clair concerning the incident. (D.N. 45-2, PageID # 975) Ultimately, Anderson recommended that Gibbs and Quinlin be held out of service (i.e., suspended) pending a formal investigation. (D.N. 41-2, PageID # 252) Anderson relayed his recommendation to Krull, who agreed with the decision. (Id.) Thereafter, Krull appointed Norfolk Mechanical Superintendent Roger McLain, based in Alabama, as the hearing officer for Gibbs's disciplinary proceeding. (Id.)

         At the proceeding, three union officials represented Gibbs and Quinlin. (D.N. 41-8, PageID # 331) Based on the information presented, McLain concluded that Gibbs and Quinlin had violated three Norfolk rules and that termination of their employment was warranted. (Id., PageID # 332) The three violations related to their (1) absenting themselves from duty without authority; (2) unauthorized use of a company vehicle; and (3) sleeping on duty. Gibbs maintains that the proceeding was unfair. (D.N. 44, PageID # 660-61) At the hearing, however, Gibbs admitted to violating the first two rules. (D.N. 41-8, PageID # 435-38) Following his decision, McLain forwarded a copy of the investigation transcript to Norfolk's Labor Relations Department, which agreed with McLain's recommendation. (D.N. 41-11, PageID # 625)

         Gibbs and Quinlin then filed appeals through their union to challenge their terminations. The arbitration panel assigned to the appeals affirmed McLain's decision. (See D.N. 41-14; D.N. 41-15) Next, Gibbs and Quinlin filed a complaint with the Occupational Safety and Health Administration (OSHA)-a pre-filing requirement under the Federal Railroad Safety Act. (D.N. 34, PageID # 201). Gibbs and Quinlin then filed this action on August 22, 2014, alleging violation of the FRSA's anti-retaliation provision. (D.N. 1) Thereafter, Norfolk moved to dismiss Quinlin's claim against it. (D.N. 10) Meanwhile, Gibbs and Quinlin moved to amend their complaint. (D.N. 18) In a Memorandum Opinion and Order entered on July 14, 2015, the Court dismissed Quinlin's claims under Federal Rule of Civil Procedure 12(b)(6). (D.N. 33)

         The Court granted Gibbs leave to amend his complaint, however. (Id.; see also D.N. 34) Norfolk now moves for summary judgment under Federal Rule of Civil Procedure 56. (D.N. 41)

         II. Standard

         Summary judgment is proper “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). On a motion for summary judgment, the movant “bears the initial responsibility of informing the district court of the basis for its motion[] and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may do so by merely showing that the nonmoving party lacks evidence to support an essential element of its case for which it has the burden of proof. See id.

         If the moving party satisfies this burden, the nonmoving party must point to specific facts in the record demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). To survive a motion for summary judgment, the nonmoving party must establish a genuine issue of material fact with respect to each element of each of its claims. Celotex Corp., 477 U.S. at 323 (1986) (noting that “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial”). The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient; instead, the nonmoving party must present evidence upon which the jury could reasonably find for it. Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing Anderson, 477 U.S. at 252). This “requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file, ' designate specific facts showing that there is a genuine issue for ...


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