Michael Lowery v. CSX Transportation, Inc.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1634

MICHAEL LOWERY,

Plaintiff - Appellant,

v.

CSX TRANSPORTATION, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:14-cv-00788-JFM)

Submitted: April 12, 2017 Decided: May 26, 2017

Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

P. Matthew Darby, H. David Leibensperger, BERMAN, SOBIN, GROSS, FELDMAN &
DARBY, L.L.P., Lutherville, Maryland, for Appellant. Jacqueline M. Holmes, Thomas
R. Chiavetta, JONES DAY, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michael Lowery filed this action against CSX Transportation, Inc. (“CSX”), under

the Federal Railroad Safety Act (“FRSA”), alleging that CSX retaliated against him for

engaging in protected activity. Lowery was suspended after being charged with violating

workplace jewelry guidelines and making a false statement. According to Lowery,

however, he was in fact suspended in retaliation for reporting various unsafe workplace

conditions. The district court granted summary judgment in favor of CSX. Lowery now

appeals, arguing that the district court: (1) employed the wrong legal standard in granting

summary judgment; (2) erred in concluding that the relevant decision-makers had no

knowledge of his protected activities; and (3) impermissibly required Lowery to submit

proof of disparate treatment.

“We review the district court’s grant of summary judgment de novo, applying the

same standard as the district court . . . [and] construing the evidence in the light most

favorable to . . . the non-movant.” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202,

207 (4th Cir. 2014). “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).

In order to establish a retaliation claim under the FRSA:

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.

2
Conrad v. CSX Transp., Inc., 824 F.3d 103, 107 (4th Cir. 2016) (internal quotation marks

and brackets omitted). “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.” Id.

(internal quotation marks omitted). “The ‘knowledge’ relevant for a retaliation claim

under the FRSA must be tied to the decision-maker involved in the unfavorable personnel

action.” Id. at 108.

Lowery undoubtedly engaged in protected activities, and his suspension

constituted an unfavorable personnel action. Lowery’s three safety reports in 2010

qualified as protected activities under the FRSA. Although CSX argues that Lowery’s

2011 reports regarding the Wheeling & Lake Erie Railroad (“W&LE”) and the Demmler

Yard incidents did not qualify as protected activities, the FRSA does not require only a

violation of a federal law, rule, or regulation; it also protects employees who “report[], in

good faith, a hazardous safety or security condition.” Conrad, 824 F.3d at 107 (quoting

49 U.S.C. § 20109(b)(1)(A) (2012)). We therefore conclude that both incidents related to

hazardous safety conditions.

Second, Lowery adequately demonstrated that the relevant decision-makers were

aware of his protected activities. Three decision-makers arguably were involved in

adverse action against Lowery: Terminal Trainmaster Eric Koelker made the decision to

charge Lowery with rules violations regarding the jewelry policy and making a false

statement; Trainmaster Seth Fowler conducted the disciplinary hearing; and Division

Manager John Wright made the ultimate decision finding Lowery guilty of making a

3
false statement. Regardless of whether the decision-makers possessed direct knowledge

of Lowery’s protected activities, knowledge may be tied to all three decision-makers

through Trainmaster Ron Baer under the cat’s paw theory. See Staub v. Proctor Hosp.,

562 U.S. 411, 421 (2011) (discussing theory); Conrad, 824 F.3d at 107-08 (adopting

holding in Rudolph v. Nat’l R.R. Passenger Corp., ARB Case No. 11-037, 2013 WL

1385560, at *11-12 (Dep’t of Labor Mar. 23, 2013), that knowledge is imputable to

decision-makers under cat’s paw theory). Thus, a plaintiff “need not prove that the

decision-maker responsible for the adverse action knew of the protected activity if it can

be established that those advising the decision-maker knew, regardless of their motives.”

Rudolph, 2013 WL 1385560, at *12.

Baer had contact with all three decision-makers. Viewing the facts in the light

most favorable to Lowery, he reported directly to Baer two of the 2010 safety issues,

Baer knew about the December Yard incident, having discussed the issue directly with

Lowery, and Baer advised all three decision-makers as to the issue of whether Lowery

had made a false statement, a major rules violation. Furthermore, Baer directly

participated in the decision-making process through his testimony at the disciplinary

hearing. Baer’s testimony proved to be critical to Fowler’s recommendation that Lowery

be found guilty of making a false statement and to Wright’s ultimate determination of

guilt.

Moreover, viewing the facts in the light most favorable to Lowery, some evidence

suggests that Baer’s testimony was the result of retaliatory animus, and, thus, a genuine

issue of material fact should have precluded summary judgment on this point. For

4
example, deposition testimony established that local managers, a group that included

Baer, were displeased with Lowery’s safety push and reports. Baer also expressed

exasperation at Lowery’s activities and advised employees to stay away from Lowery and

other union representatives. 1 Additionally, Baer’s testimony arguably was influenced by

Ray Morriss, the head of the Cumberland Terminal where Lowery worked and Baer’s

immediate supervisor. Morriss had direct knowledge of Lowery’s protected activities,

held clear animosity toward Lowery, and believed that Lowery was a liar. Athough Baer

acted only as a witness at the disciplinary hearing, his testimony sufficiently imputes his

knowledge to the decision-makers who relied on that testimony. See Staub, 562 U.S. at

422 (“[I]f the independent investigation relies on facts provided by the biased

supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either

directly or through the ultimate decisionmaker) will have effectively delegated the

factfinding portion of the investigation to the biased supervisor.”). 2

As to the final element of the prima facie case, we conclude that a genuine issue of

material fact exists as to whether Lowery’s protected activities were a contributing factor

to the unfavorable personnel action. See Feldman v. Law Enf’t Assocs. Corp., 752 F.3d

1
We assume for the purposes of this appeal that the disputed testimony is
admissible as nonhearsay or under various hearsay exceptions. Neither party has
submitted sufficient evidence or argument to determine definitively whether the contested
statements are in fact admissible, and we therefore leave that determination to the district
court in the first instance. Nevertheless, even if we were to exclude any contested
testimony, we still would conclude that sufficient evidence supports a prima facie case.
2
We do not believe the case on which CSX relies, Kuduk v. BNSF Railroad Co.,
768 F.3d 786 (8th Cir. 2014), is to the contrary.

5
339, 348 (4th Cir. 2014) (discussing what constitutes a contributing factor). 3 We note

that Lowery established he received greater discipline than other employees who violated

CSX’s jewelry policy. 4 See Laing v. Fed. Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013)

(“[C]omparator evidence . . . [is] a particularly probative means for discerning whether a

given adverse action was the product of a discriminatory motive.”). Furthermore,

viewing the facts in the light most favorable to Lowery, temporal proximity supports a

conclusion of retaliatory animus, as Lowery was charged with the rule violations 16 days

after the W&LE incident occurred and only 1 day after the Demmler Yard incident

occurred. Koelker’s testimony on the timing of the charges also supports an inference of

retaliatory animus. 5 We therefore conclude that Lowery has established a prima facie

case of retaliation under the FRSA.

CSX nevertheless argues that, even if Lowery established a prima facie case of

retaliation, the district court’s judgment should be affirmed on the alternate ground that

CSX demonstrated by clear and convincing evidence that it would have disciplined

Lowery absent the protected activity. “[C]lear and convincing has been defined as

3
Feldman addressed a retaliation claim under the Sarbanes-Oxley Act, which
employs the same standard as an FRSA claim. Conrad, 823 F.3d at 107.
4
Although CSX focuses on the false statement charge as the relevant conduct, the
charge for the alleged jewelry violation also qualifies as an unfavorable personnel action.
See 49 U.S.C. § 20109(a), (b) (railroad carriers “may not . . . reprimand, or in any other
way discriminate against an employee” for engaging in protected activity).
5
We recognize that the testimony on this point is in dispute. However, we must
view the evidence in the light most favorable to Lowery for the purposes of summary
judgment.

6
evidence of such weight that it produces in the mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the allegations sought to be established.”

Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001) (ellipsis and

internal quotation marks omitted). We conclude that CSX has not produced sufficient

evidence to satisfy this burden, and we therefore decline to affirm the court’s judgment

on that alternate ground. 6

Accordingly, we vacate the district court’s judgment and remand for further

proceedings consistent with this opinion. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

VACATED AND REMANDED

6
Because we vacate for the reasons outlined above, we do not address Lowery’s
remaining arguments.

7