20-1196-cv
Ziparo v. CSX Transp., Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2020
Argued: May 27, 2021 Decided: September 24, 2021
Docket No. 20-1196-cv
CODY ZIPARO,
Plaintiff-Appellant,
— v. —
CSX TRANSPORTATION, INC.,
Defendant-Appellee.
B e f o r e:
SACK, LYNCH, and PARK, Circuit Judges.
Plaintiff-Appellant Cody Ziparo sued his former employer, Defendant-
Appellee CSX Transportation, Inc., for unlawful retaliation under the Federal
Railroad Safety Act (“FRSA”). Ziparo alleges that he was terminated because he
engaged in protected activity by “reporting, in good faith, a hazardous safety or
security condition.” 49 U.S.C. § 20109(b)(1)(A). The United States District Court
for the Northern District of New York (Suddaby, C.J.) granted summary
judgment for CSX on the grounds that Ziparo’s belief that the subject of his
report – pressure from supervisors to make false entries in work reports causing
employees undue stress and distraction from their duties – concerned a
“hazardous safety or security condition” was objectively unreasonable, and that
in any event only physical conditions subject to the railroad’s control could
constitute such a condition. We conclude that the district court erred in both
respects, because the FRSA’s protection of reports made “in good faith” requires
only that the reporting employee subjectively believe that the matter being
reported constitutes a hazardous safety or security condition, regardless of
whether that belief is objectively reasonable, and because the statutory text
suggests no reason to confine the meaning of “hazardous safety or security
condition” to encompass only physical conditions.
Accordingly, we VACATE the judgment of the district court and
REMAND to the district court for further proceedings.
P. MATTHEW DARBY, Berman, Sobin, Gross, Feldman & Darby,
LLP, Lutherville, MD (H. David Leibensperger,
Berman, Sobin, Gross, Feldman & Darby, LLP,
Lutherville, MD; Lawrence M. Mann, Alper & Mann,
Bethesda, MD, on the brief), for Plaintiff-Appellant.
JOSEPH C. DEVINE, Baker & Hostetler, LLP, Columbus, OH
(Ryan A. Cates, Baker & Hostetler, LLP, Columbus, OH;
Susan Roney, Benjamin Dwyer, Nixon Peabody, LLP,
Buffalo, NY, on the brief), for Defendant-Appellee.
2
GERARD E. LYNCH, Circuit Judge:
This case presents a question of first impression: Does the Federal Railroad
Safety Act’s (“FRSA”) prohibition of retaliation against employees who “report[],
in good faith, a hazardous safety or security condition,” 49 U.S.C.
§ 20109(b)(1)(A), protect only those employees who report conditions that a
similarly situated employee would reasonably understand as constituting a
hazardous safety or security condition? The United States District Court for the
Northern District of New York (Glenn T. Suddaby, C.J.) concluded that it does
and, accordingly, granted summary judgment for Defendant-Appellee CSX
Transportation, Inc. on Plaintiff-Appellant Cody Ziparo’s FRSA retaliation claim.
On review, we hold that the FRSA’s text and purpose do not support the district
court’s interpretation, and that “good faith” as used in the FRSA requires only
that the reporting employee honestly believe that what she reports constitutes a
hazardous safety or security condition. We further conclude that the district court
erred in defining the term “hazardous safety or security condition” to embrace
only physical conditions, a limitation without foundation in the statutory
language.
3
Applying our interpretation of the statutory language to the summary
judgment record, we conclude that a reasonable jury could find that Ziparo
subjectively believed that what he was reporting was a hazardous safety or
security condition within the meaning of the FRSA. We therefore VACATE the
judgment of the district court and REMAND this case for further proceedings. In
doing so, we take no position as to whether a reasonable jury could find that
Ziparo was fired at least in part for his reports, rather than, as CSX contends,
solely because he was negligent in resetting a switch, with potentially
catastrophic consequences – an issue that the district court did not address.
BACKGROUND
We draw the following statement of facts from the evidence in the
summary judgment record, which we construe in the light most favorable to
Ziparo. See, e.g., Cortez v. Foster & Garbus, LLP, 999 F.3d 151, 153-54 (2d Cir. 2021).
To the extent that this opinion references facts contained in the sealed record,
those portions of the record are unsealed.
Cody Ziparo worked for CSX as a train conductor from 2006 until 2016,
when he was fired. As of October 2015, Ziparo was working in CSX’s train yard
in Watertown, New York, where he was supervised by trainmasters Ryan Van
4
Blarcom and Jim Lacy. As a conductor, Ziparo’s primary duties involved moving
railcars onto their designated trains. This process often involves moving cars
across parallel tracks, which are connected by manually operated track switches.
For most of his career at CSX, including during 2015-2016, Ziparo worked with
CSX engineer Christopher Pigula.
CSX conductors carry a tablet computer connected to CSX’s “On-Board
Work Order” system (the “OBWO”). Conductors use the OBWO to record tasks,
such as the placement of cars, as they are completed; information from the
OBWO is relayed to an internal customer service center and is ultimately made
available to CSX’s customers, who use it to track their orders, much as a typical
consumer might use the tracking services offered by the Postal Service and
similar private couriers to monitor the status of a shipment. The OBWO is not
mandated by federal law, and CSX does not use the OBWO on all of its trains.
Further, while Ziparo and others testified that CSX employees use the OBWO to
locate train cars, there is no evidence that its use for that purpose is anything
other than a convenience. There is also no evidence that CSX itself uses the
OBWO as a primary means of monitoring the location of train cars or for any
5
other safety-related purpose. See, e.g., J. App’x at 669-70 (describing use of the
OBWO only for logistical and tracking purposes).1
In addition to providing information to CSX’s customers, the OBWO
provides valuable information to CSX by permitting it to track the productivity of
its employees. Trainmasters, who are ultimately responsible for overseeing the
work of employees in each trainyard, are rewarded with bonuses for meeting
certain performance goals as reflected in OBWO data. Such bonuses are not paid
to conductors or other lower-level employees.
1
Lacy stated in his affidavit that “[f]irst responders, such as police and fire
departments, CSX, and CSX’s customers rely on the information in the OBWO for
the location of train cars in any train emergency, including an emergency
involving hazardous materials.” J. App’x at 847 (emphasis added). More
specifically, Lacy suggested in his deposition testimony that the OBWO is one
medium through which an employee might obtain documentation helpful to first
responders:
[W]hen you depart on the [OBWO], it gives you a printed hard copy of
your work order. And that printed hard copy you can use in the case of
any derailments or anything like that. It has your hazmat information and
things like that on it so you can present that to an emergency responder if
there was an accident.
J. App’x at 226; see also id. at 893-94 (testimony of Ziparo’s expert Patrick Reilly to
the same effect). There is no evidence, however, that the OBWO itself generates
information that first responders need, or that CSX uses the OBWO actively to
monitor train locations in real time in order to prevent collisions or derailments.
6
In or around January 2016, Lacy and Van Blarcom began pressuring Ziparo
and one of his fellow conductors, William Miner, to mark tasks as complete in the
OBWO even though those tasks had not actually been completed. It is
undisputed that Lacy’s and Van Blarcom’s purpose in doing so was to inflate
their performance metrics so that they could earn larger bonuses.
Ziparo was not comfortable with these requests, and his refusals to
implement them were met with threats of discipline. Both the requests and
threats of discipline caused Ziparo stress to the point that he was unable to focus
on his work. Pigula testified that communication between him and Ziparo
deteriorated significantly, and that Ziparo, unable to focus on his work, “would
just absent-mindedly walk past things or fail to complete a routine task.” J. App’x
at 635. Between January and early May, Ziparo and Pigula repeatedly
complained to Lacy and Van Blarcom directly,“t[elling] both of them multiple
times that the environment that they’re creating is unsafe.” Id. at 567; see also id. at
637 (“We both told Mr. Lacy that it’s going to be a safety issue.”). In early May,
Ziparo met with Lacy in Lacy’s office, where he complained again about Lacy’s
demands that he enter false information into the OBWO and explained that these
demands were causing him undue stress. Lacy became frustrated, began yelling
7
at Ziparo, and threatened to charge him with insubordination, although that
charge did not materialize.
Unsatisfied by the response to his informal complaints, on May 3, 2016,
Ziparo lodged a formal complaint against Lacy and Van Blarcom on CSX’s ethics
hotline. In his complaint, Ziparo stated that he viewed the ongoing pressure
campaign “as a safety issue because employees are not focused on their work and
are preoccupied with the harassment coming from Jim [Lacy] and Ryan [Van
Blarcom].” Id. at 898. CSX interviewed Ziparo in connection with his complaint
on June 6.
A few days after that interview, on June 9, a southbound train caused
serious damage to a misaligned track switch; had the train been heading north, it
likely would have been diverted onto side tracks where train cars were parked
and caused a catastrophic collision. Though Ziparo disputes their reliability,
CSX’s reports show that Ziparo was the last person to operate the switch before
the incident and that he failed to return the switch to the proper position after
doing so. There is no evidence in the record that anyone else operated the switch
at any point between when Ziparo did so and when the accident occurred, nor is
there any evidence of tampering.
8
On June 16, CSX held an investigative hearing, where Ziparo was
represented by his union representative. Ziparo was permitted to cross-examine
CSX’s witnesses and call witnesses to testify on his behalf. On July 15, the hearing
officer found Ziparo responsible for failing to return the switch. CSX then
terminated Ziparo. CSX subsequently concluded its investigation into Ziparo’s
complaint and, having found his allegations substantiated, reprimanded Lacy
and Van Blarcom.
On June 29, 2017, Ziparo sued CSX for unlawful retaliation under
§ 20109(b)(1)(A) of the FRSA. On March 9, 2020, the district court granted
summary judgment for CSX. See Ziparo v. CSX Transp., Inc., 443 F. Supp. 3d 276,
302 (N.D.N.Y. 2020). The district court concluded that “good faith” as used in
§ 20109(b)(1)(A) contains both subjective and objective components and that no
reasonable jury could find it objectively reasonable for Ziparo to believe that his
own stress and distraction resulting from Lacy’s and Van Blarcom’s improper
demands amounted to a “hazardous safety or security condition.” Id. at 296-300.
Further, having defined “hazardous safety or security condition” as a “physical
condition[] that [is] within the control of the rail carrier employer,” the district
court also held that no reasonable jury could find that Ziparo subjectively
9
understood what he was reporting to be a “hazardous safety or security
condition,” since it was not such a “physical condition.” Id. at 297-98. This appeal
followed.
DISCUSSION
“We review the district court’s decision to grant summary judgment de
novo, resolving all ambiguities and drawing all permissible factual inferences in
favor of the party against whom summary judgment is sought.” Booker v. Graham,
974 F.3d 101, 106 (2d Cir. 2020), quoting Ya-Chen Chen v. City Univ. of N.Y., 805
F.3d 59, 69 (2d Cir. 2015). Further, “[o]ur review of a district court’s interpretation
of a statute, a pure question of law, is also de novo.” Nielsen v. AECOM Tech. Corp.,
762 F.3d 214, 218 (2d Cir. 2014).
Section 20109(b)(1)(A) of the FRSA 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.” 49 U.S.C. § 20109(b)(1)(A). To make out a prima
facie case of retaliation under the FRSA, a plaintiff must establish by a
preponderance of the evidence that “(1) the plaintiff engaged in protected
activity; (2) the employer knew that the plaintiff engaged in the protected
10
activity; (3) the plaintiff suffered an unfavorable personnel action; and (4) the
protected activity was a contributing factor in the unfavorable action.” Tompkins
v. Metro-North Commuter R.R. Co., 983 F.3d 74, 80 (2d Cir. 2020), quoting Bechtel v.
Admin. Rev. Bd., 710 F.3d 443, 447 (2d Cir. 2013) (alterations omitted). The district
court held that Ziparo had not established the first element of his prima facie
case, i.e., that he had engaged in protected activity, because it was not objectively
reasonable for him to believe that his own reported stress was a “hazardous
safety or security condition” and because he could not have subjectively believed
that he was reporting such a condition, since his own stress and distraction did
not constitute a “hazardous safety or security condition” as the district court
construed that term.
This case, thus, turns on the meaning of two statutory terms: “in good
faith” and “a hazardous safety or security condition,” the interpretation of which
is a matter of first impression for the federal appellate courts. We address each in
turn before applying our interpretations to the facts of this case.
I. “In Good Faith”
“In interpreting any statute, we start with the plain meaning of the text,
and absent any ambiguity, we end there too.” Wilson v. United States, 6 F.4th 432,
11
435 (2d Cir. 2021).
Section 20109(b)(1)(A) protects employees who make reports “in good
faith.” In general, an act done “in good faith” is one performed “with honesty or
sincerity of intention.” In Good Faith, Oxford English Dictionary (3d ed. 2014); see
also Good Faith, Black’s Law Dictionary (11th ed. 2019) (“A state of mind
consisting in (1) honesty in belief or purpose . . . .”). That standard is on its face a
subjective one, embracing only the actor’s state of mind; it is unconcerned with
whether the actor’s belief or purpose meets an objective standard of
reasonableness.2
In contrast, an act or belief is “reasonable” when it is “[f]air, proper, or
moderate under the circumstances.” Reasonable, Black’s Law Dictionary (11th ed.
2019); see also Reasonable, Oxford English Dictionary (3d ed. 2014) (“Within the
2
There are, of course, exceptions in specific contexts. See, e.g., In re Bernard L.
Madoff Inv. Sec. LLC, ___ F.4th ___, 2021 WL 3854761, at *7-15 (2d Cir. Aug. 30,
2021), in which we held, in the context of avoidance of fraudulent transfers under
the Bankruptcy Code, that a transferee does not act “in good faith” when on
“inquiry notice” that the transferor is engaged in fraudulent activity. That context
is far removed from those in which “good faith” behavior is contrasted with
objectively “reasonable” behavior; the concept of “inquiry notice” has no bearing
on Ziparo’s actions. Even in the bankruptcy context, we carefully distinguish
good faith from a “purely objective” standard, such as “negligence” (a standard
that assesses the reasonableness of a defendant’s behavior), by emphasizing that
the standard applied is in significant respects a subjective one. Id. at *11.
12
limits of what would it be rational or sensible to expect . . . not irrational, absurd,
or ridiculous.”). That is an objective standard, unconcerned with the actor’s
motivations or the sincerity of her beliefs. Accordingly, one may hold a belief or
undertake an act in good faith, even if that belief or act is objectively
unreasonable. That distinction is not a novel one; courts and legislatures
routinely distinguish between good faith and reasonableness in a broad array of
contexts.3
3
See, e.g., Cheek v. United States, 498 U.S. 192, 203 (1991) (holding, in tax
prosecution, that “a claimed good-faith belief [need not] be objectively reasonable
[for it] to be considered as possibly negating the Government’s evidence”);
Simmons v. Sec’y of Health & Hum. Servs., 875 F.3d 632, 635 (Fed. Cir. 2017) (noting,
in case under National Childhood Vaccine Injury Act, that “good faith and
reasonable basis are two distinct facets. And only good faith is subjective;
reasonable basis is objective.”) (internal citations and quotation marks omitted);
Ray v. Ropes & Gray LLP, 799 F.3d 99, 111 (1st Cir. 2015) (observing, in Title VII
retaliation claim, that “[u]nlike the reasonableness requirement, when assessing a
plaintiff’s good faith a factfinder need only ask whether a plaintiff had a
subjective, honestly held belief”); Dixon v. The Hallmark Cos., Inc., 627 F.3d 849,
857 (11th Cir. 2010) (“A plaintiff must not only show that he subjectively (that is,
in good faith) believed that his employer was engaged in unlawful employment
practices, but also that his belief was objectively reasonable in light of the facts and
record presented.”) (emphases in original); People v. Hernandez, 61 Cal. 2d 529, 530
(1964) (holding it reversible error to preclude defendant in statutory rape case
from introducing evidence “that he had in good faith a reasonable belief that the
[victim] was 18 years or more of age”); 720 Ill. Comp. Stat. 5/9-2(a)(2) (defining
second-degree murder as first-degree murder committed under circumstances in
which actor subjectively “believes the circumstances to be such that, if they
existed, would justify or exonerate the killing under the principles stated in
13
The ordinary meaning of the plain text of § 20109(b)(1)(A), then, would
entail that there is no requirement that, in order to be protected, a report must be
reasonably believed to concern a safety condition, so long as it is made in the
good-faith belief that it does. The district court, however, ruled that Ziparo could
not show that he engaged in protected activity “unless it was both subjectively
and objectively reasonable for [him] to have believed that [the subject of his
report] constituted a ‘hazardous safety or security condition.’” Ziparo, 443 F.
Supp. 3d at 297. That was error.
To be sure, the district court was not the first court to interpret
§ 20109(b)(1)(A) to contain an objective reasonableness element. Indeed, as CSX
notes, every district court in this circuit to examine that provision of the FRSA
has reached the same conclusion, see, e.g., Caria v. Metro-North Commuter R.R., 457
F. Supp. 3d 301, 309-10 (S.D.N.Y. 2020); March v. Metro-North R.R. Co., 369 F.
Supp. 3d 525, 532-33 (S.D.N.Y. 2019), as have some district courts in other
circuits, see, e.g., Head v. Norfolk S. Ry. Co., No. 15-cv-2118, 2017 WL 4030580, at
*14 (N.D. Ala. Sept. 13, 2017); Koziara v. BNSF Ry. Co., No. 13-cv-834, 2015 WL
137272, at *6 (W.D. Wisc. Jan. 9, 2015).
Article 7 of this Code, but his or her belief is unreasonable”).
14
But those decisions all share a common analytical flaw. Specifically, in
concluding that “good faith” as used in § 20109(b)(1)(A) contains an objective
reasonableness element, the district courts have relied on various appellate
decisions interpreting other whistleblower statutes that include specific language,
absent from § 20109(b)(1)(A), that requires objective reasonableness.
In Nielsen v. AECOM Technology Corporation, for example, on which the
court in March v. Metro-North expressly relied, we held that a plaintiff pleading
retaliation under the whistleblower protection provision of the Sarbanes-Oxley
Act, codified at 18 U.S.C. § 1514A, “must show not only that he believed that the
conduct [complained of] constituted a violation, but also that a reasonable person
in his position would have believed that the conduct constituted a violation.”
Nielsen, 762 F.3d at 221 (internal quotation marks and citation omitted). That
conclusion, however, was firmly grounded in the text of § 1514A, which protects
employees who report conduct that “the employee reasonably believes constitutes
a violation” of certain federal laws or regulations. 18 U.S.C. § 1514A(a)(1)
(emphasis added). Similarly, the district court here relied in part on our decision
in Lenzi v. Systemax, Inc., 944 F.3d 97 (2d Cir. 2019), in which we held that the
framework governing § 1514A claims, including the objective reasonableness
15
requirement explained in Nielsen, applied to claims under the Consumer Product
Safety Improvement Act’s whistleblower provision, codified at 15 U.S.C. § 2087.
We did so, however, because “[c]rucially . . . both statutes contain the
requirement that the whistleblower ‘reasonably believes’ there is a violation.”
Lenzi, 944 F.3d at 114.
As already discussed, however, § 20109(b)(1)(A) does not contain any such
language of reasonable belief. And while CSX points to the various district court
decisions construing the statute nonetheless to contain such a requirement in
urging us to impose one, it offers no compelling reason why we should interpret
the statute to contain that requirement. Nor can we identify one. To the contrary,
we discern compelling reasons to reject that interpretation.
As an initial matter, § 20109(b)(1)(A)’s omission of reasonable belief
language stands in contrast to the inclusion of such language not only in the
other federal whistleblower statutes referenced by district courts finding a
reasonableness requirement in § 20109(b)(1)(A), but also in other provisions of
the FRSA, including other provisions of § 20109 itself. For example,
§§ 20109(b)(1)(B) and (b)(1)(C) protect an employee’s refusal to work or authorize
the use of equipment based on the existence of a hazardous safety or security
16
condition, but only if “a reasonable individual in the circumstances then
confronting the employee would conclude that . . . the hazardous condition
presents an imminent danger of death or serious injury” and that the urgency of
the situation requires such a refusal. 49 U.S.C. § 20109(b)(2)(B) (emphasis added).4
Similarly, § 20109(a)(1), enacted at the same time as § 20109(b)(1)(A),5 protects an
employee who “lawful[ly] [and] [in] good faith” reports “any conduct which the
employee reasonably believes constitutes a violation of any Federal law, rule, or
regulation relating to railroad safety or security.” 49 U.S.C. § 20109(a)(1)
(emphasis added). Had Congress intended to include an objective reasonableness
requirement in § 20109(b)(1)(A), it knew how to do so. But it did not include that
requirement.
It is well established that “[w]here Congress includes particular language
in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally.” Russello v. United States,
4
We recently interpreted that provision of the FRSA and concluded, consistent
with its text, that it required an employee’s refusal to be based on objectively
reasonable grounds. See Tompkins, 983 F. 3d at 78-79.
5
Compare Pub. L. No. 103-272, § 1(e), 108 Stat. 745, 867 (1994), with Pub. L. No.
110-53, Title XV, § 1521, 121 Stat. 266, 444 (2007).
17
464 U.S. 16, 23 (1983) (citation omitted). To hold that § 20109(b)(1)(A) requires
that an employee’s report be objectively reasonable in order to be protected
would violate that principle by declining to give any effect to the conspicuous
omission of reasonable belief language from that provision. Further,
§§ 20109(a)(1), 20109(b)(1)(B), and 20109(b)(1)(C) explicitly require both good faith
and objective reasonableness, and “[i]t would be unwarranted to construe ‘good
faith’ in [§ 20109(b)(1)(A)] to have a meaning different from the same phrase in
[§§ 20109(a)(1), 20109(b)(1)(B), and 20109(b)(1)(C)].” Addison v. Huron Stevedoring
Corp., 204 F.2d 88, 93 (2d Cir. 1953) (rejecting argument that “good faith” as used
in 29 U.S.C. § 258 should be interpreted to include an objective reasonableness
element).
Moreover, interpreting § 20109(b)(1)(A) to require only subjective good
faith is consistent with the FRSA’s stated purpose: “to promote safety in every
area of railroad operations and reduce railroad-related accidents and incidents.”
49 U.S.C. § 20101. In enacting § 20109(b)(1)(A), Congress sought “to ensure that
employees can report their concerns without the fear of possible retaliation or
discrimination from employers.” H.R. Conf. Rep. No. 110-259, at 348 (2007).
According protection to reports made in good faith, without regard to objective
18
reasonableness, would be consistent with that statutory purpose.6
Finally, interpreting “good faith” to require only subjective belief is
consistent with the overall structure of § 20109(b), the full text of which is set
forth in the margin for ease of reference.7 Section 20109(b)(1) creates three
6
Notably, the broad protection for good-faith reports is extended only where the
employee reports a hazardous safety or security condition; the protection
extended in § 20109(a)(1) to whistleblowers who provide information about
broader categories of purported regulatory violations not creating such hazards
applies only where the employee reasonably believes that the violation exists.
7
Section 20109(b) provides as follows:
(b) Hazardous safety or security conditions.--
(1) A railroad carrier engaged in interstate or foreign commerce, or an
officer or employee of such a railroad carrier, shall not discharge, demote,
suspend, reprimand, or in any other way discriminate against an employee
for--
(A) reporting, in good faith, a hazardous safety or security condition;
(B) refusing to work when confronted by a hazardous safety or
security condition related to the performance of the employee's
duties, if the conditions described in paragraph (2) exist; or
(C) refusing to authorize the use of any safety-related equipment,
track, or structures, if the employee is responsible for the inspection
or repair of the equipment, track, or structures, when the employee
believes that the equipment, track, or structures are in a hazardous
safety or security condition, if the conditions described in paragraph
(2) exist.
(2) A refusal is protected under paragraph (1)(B) and (C) if--
(A) the refusal is made in good faith and no reasonable alternative to
the refusal is available to the employee;
(B) a reasonable individual in the circumstances then confronting the
19
different types of protected activities: § 20109(b)(1)(A) protects employees who
report hazardous safety or security conditions; § 20109(b)(1)(B) protects
employees who refuse to work when confronted by such a hazardous condition;
and § 20109(b)(1)(C) protects employees responsible for inspecting or repairing
certain railroad equipment who refuse to authorize the use of such equipment when
they believe that the equipment is in a hazardous condition.
The conditions under which those categories of employees are protected,
however, are different, and are made more restrictive as the burden imposed on
the railroad by their actions escalates. Employees who simply report a hazardous
condition are protected against retaliation by § 20109(b)(1)(A) on the sole
employee would conclude that--
(i) the hazardous condition presents an imminent danger of
death or serious injury; and
(ii) the urgency of the situation does not allow sufficient time
to eliminate the danger without such refusal; and
(C) the employee, where possible, has notified the railroad carrier of
the existence of the hazardous condition and the intention not to
perform further work, or not to authorize the use of the hazardous
equipment, track, or structures, unless the condition is corrected
immediately or the equipment, track, or structures are repaired
properly or replaced.
(3) In this subsection, only paragraph (1)(A) shall apply to security
personnel employed by a railroad carrier to protect individuals and
property transported by railroad.
20
condition that they make their report “in good faith.” Employees who take the
more dramatic and burdensome steps of refusing to work or refusing to
authorize the use of equipment when they believe that doing so would create a
hazardous condition are subject to additional requirements, which are spelled
out in § 20109(b)(2). Those employees too must act “in good faith,” 49 U.S.C.
§ 20109(b)(2)(A), but their belief must also be one that would be held by “a
reasonable individual in the circumstances then confronting the employee,” id.
§ 20109(b)(2)(B).8
This broader context helps to explain why Congress would subject some
actions by employees, but not others, to an objective reasonableness requirement
in order to be protected. A refusal to work or to authorize the use of equipment
imposes a substantial burden on a railroad. In contrast, a mere report of a
8
That is not the only additional requirement: Employees refusing to work or
inspectors refusing to authorize the use of equipment are protected only if there
is no reasonable alternative to their refusal, § 20109(b)(2)(A); see also
§ 20109(b)(2)(B)(ii) (requiring sufficient urgency that refusal is necessary); if the
condition in question is not merely a “hazardous safety or security condition” but
is one that “presents an immediate danger of death or serious injury,”
§ 20109(b)(2)(B)(i); and if the employee has, where possible, given advance notice
to the railroad of her refusal unless the condition is promptly corrected,
§ 20109(b)(2)(C). None of these conditions are imposed on employees who
merely report the existence of what they believe in good faith to be a hazardous
safety or security condition.
21
putative safety violation to the railroad itself, even if mistaken, imposes no
meaningful costs on the railroad. Nor does the protection extended to an
employee making such a report impose unreasonable burdens or costs: The FRSA
does not require the railroad to take remedial action on the basis of the
employee’s report, or even to investigate the reported condition. If the railroad
concludes that the report does not really create a safety or security concern, it
remains free to dismiss the report entirely. To avoid liability, it need only refrain
from punishing the employee making the report.
Nor are we persuaded that reading the statute as Congress wrote it creates
absurd or intolerable results. The FRSA does not permit incompetent workers to
hide behind a report that they later seek to characterize as involving safety. The
statute does not protect from discipline every worker who has previously made,
even in good faith, a report of a purported safety violation, or preclude any
consideration of the reasonableness of the report. Rather, it prohibits the railroad
from disciplining a worker “for” reporting such a condition. 49 U.S.C. § 20109(b).
In other words, the statute requires a disciplined employee to prove “more than a
temporal connection between the protected conduct and the adverse employment
action.” Kuduk v. BNSF Ry. Co., 768 F.3d 786, 792 (8th Cir. 2014) (internal
22
quotation marks and citation omitted). “[D]iscriminatory animus, which . . .
necessarily includes some proof of retaliatory motive,”must be at least a
contributing factor motivating the disciplinary action. Tompkins, 983 F.3d at 82.
The less rational the plaintiff’s belief that a given condition presents a safety
hazard, the more difficult it will be to make out that element unless the employee
specifically expresses her concern in terms of safety.9
Moreover, “good faith” requires that the employee actually believe that the
facts she is reporting are true and do indeed constitute a hazardous safety or
security condition, and that the employee did not make the report for an
improper purpose. Cf. Good Faith, Black’s Law Dictionary (11th ed. 2019) (“A state
of mind consisting in (1) honesty in belief or purpose . . . .”). Since factfinders
have no direct access to the subjective motivations of parties, good faith, like
other states of mind, must often be determined through circumstantial evidence,
and the unreasonableness of a purported belief can support an inference by a
factfinder that the employee did not in fact hold that belief in good faith. Such
matters, however, raise questions of fact; we hold not that the unreasonableness
9
And, of course, it remains open to the employer to argue that the discipline was
administered not for the prohibited reason, but for some other, legitimate reason.
As noted below, CSX has proffered such a reason in this case.
23
of a belief is irrelevant, but only that a plaintiff is not required by § 20109(b)(1)(A)
to plead or prove reasonableness as an independent element of her claim.
Accordingly, we hold that a railroad employee engages in protected
activity under § 20109(b)(1)(A) when she reports what she subjectively believes to
be a hazardous safety or security condition irrespective of whether that
understanding is objectively reasonable.
II. “A Hazardous Safety or Security Condition”
We next turn to the question of what an employee must report in good
faith to be protected under § 20109(b)(1)(A). The words “hazardous safety or
security condition” are undefined in the statute, and we therefore accord them
their ordinary meaning. See, e.g., Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560,
566 (2012). Because those words are words of common usage, we are confident
that judges and juries can determine whether a condition meets that standard
based on the particular facts of the cases before them while taking the FRSA’s
remedial purpose into account. We thus have no need to define the term further
or address comprehensively the kinds of situations that do and do not qualify.
We cannot, however, endorse the district court’s particular formulation in
this case, which imposes a non-textual, categorical restriction on the kinds of
24
conditions that come within the protection of the statute. After surveying the case
law, the district court concluded that “[h]azardous safety or security conditions
have generally been found to be physical conditions that are within the control of
the rail carrier” and, applying that definition, held that Ziparo’s reports did not
fall within the statute’s scope. Ziparo, 443 F. Supp. 3d at 297 (emphasis added)
(internal quotation marks omitted). But the word “physical” appears nowhere in
§ 20109(b)(1)(A), nor does the overall structure of the statute imply that it was
meant to cover only reports of physical conditions.
Without question, limiting the FRSA’s protection to reports of physical
conditions would unduly limit its scope and beget results that Congress surely
did not intend. It is plain that various practices that do not involve physical
conditions can create safety hazards. For example, under the district court’s
formulation, an employee who reports that her supervisor fails to perform
required safety checks, or performs them under the influence of drugs or alcohol,
would be left unprotected even though she is clearly reporting a safety hazard
and exposing herself to the possibility (or even likelihood) of retaliation by her
supervisor. Likewise, the district court’s rule would not protect an employee who
reports that a colleague is operating heavy machinery without appropriate
25
training, as was the case in Worcester v. Springfield Terminal Railway Company,
despite the fact that, as the Worcester court sensibly observed, “[a]n employee
taking on a task he cannot safely complete could constitute a ‘hazardous safety
. . . condition.’” No. 12-cv-328, 2014 WL 1321114, at *4 (D. Me. Mar. 31, 2014)
(omission in original). Similarly, a critical employee’s stress or fatigue can create
dangers; that is why safety regulations limit the numbers of hours or lengths of
shifts that can be worked by such workers as airline pilots, truck drivers, or,
indeed, railroad engineers. See 14 C.F.R. § 135.265 (airline pilots); 49 C.F.R. § 395.3
(commercial truck drivers); 49 U.S.C. § 21103 (railroad employees).
Of course, this does not mean that the term “hazardous safety or security
condition” has no limitations whatsoever. For example, although the text of
§ 20109(b)(1)(A) does not expressly limit its reach to hazardous safety or security
conditions involving the operation of the railroad, we agree with the Third
Circuit that such a limitation is implied from the FRSA’s purpose and structure.
See Port Auth. Trans-Hudson Corp. v. Sec’y, U.S. Dep’t of Labor, 776 F.3d 157, 166 (3d
Cir. 2015) (“[W]e think that subsection (b)(1)(A) must be read as having at least
some work-related limitation, even though no such limitation appears on the face
of the statute.”). It likewise accords with the FRSA’s purpose to interpret
26
§ 20109(b)(1)(A) as embracing only conditions that are within the control of the
railroad to remedy; on that basis, a district court has concluded that an employee
could not claim its protections after reporting that his “non-work-related sleep
apnea . . . made him too tired to safely perform his work.” Jones v. BNSF Ry. Co.,
No. 18-cv-146, 2020 WL 2062180, at *6-7 (D. Mont. Apr. 29, 2020). Such
limitations, however, are not at issue here.
In sum, § 20109(b)(1)(A) protects an employee reporting what she sincerely
believes constitutes a hazardous safety or security condition, regardless of
whether the railroad or a similarly situated employee would reach the same
conclusion or whether the report relates to physical conditions or to employment
practices that create safety or security hazards.
III. Ziparo’s Complaints
Having clarified § 20109(b)(1)(A)’s scope, we must next determine whether
a reasonable jury could find that Ziparo engaged in protected activity. Drawing
all inferences in Ziparo’s favor, we hold that a reasonable jury could so find.
At the outset, we observe that Ziparo’s brief makes a lengthy argument
that falsifying OBWO records could have catastrophic consequences, analogizing
the situation to an air traffic controller being asked to falsify the location of
27
planes in the sky. That contention, however, has no basis in the record; no other
employee testified that the OBWO itself has any safety-related purpose or that
CSX uses the OBWO to monitor the physical location of train cars.10 Nor, for that
matter, could a reasonable jury conclude from the record evidence that Ziparo
subjectively understood at the time that he made his reports that the falsification
of OBWO information itself has safety implications of that nature; Ziparo did not
voice such concerns at the time he made his reports, nor did he testify that such
concerns motivated his complaints.11
10
As explained above, there is some evidence that railroad employees can use the
OBWO as a means of obtaining documentation useful to first responders. See J.
App’x at 226, 893-94. But there is no evidence that employees enter information
on the OBWO itself to track train locations in a manner analogous to air traffic
control.
11
Ziparo argues that the district court erred in granting summary judgment on
the question of whether he subjectively considered the falsified OBWO entries
themselves to create a safety hazard at the time of his reports because “summary
judgment is generally inappropriate where questions of intent and state of mind
are implicated.” Gelb v. Bd. of Elections of City of New York, 224 F.3d 149, 157 (2d
Cir. 2000). But Ziparo cannot point to a single piece of evidence in the record
indicating that he saw the falsified entries – rather than the environment that Van
Blarcom’s and Lacy’s demands created – as a safety hazard at that time. “The
summary judgment rule would be rendered sterile . . . if the mere incantation of
intent or state of mind would operate as a talisman to defeat an otherwise valid
motion,” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), and we cannot say on
the record before us that the district court erred in rejecting this particular theory
of subjective belief at the summary judgment stage.
28
However, it is likewise clear from the record that a reasonable jury could
conclude that Ziparo believed that Lacy’s and Van Blarcom’s demands were
creating an unsafe environment by causing Ziparo (and at least one other
employee, Pigula) to be stressed and distracted and therefore unable to focus
properly on their work. Ziparo testified that his superiors’ constant demands left
him unable to focus on his work and that communication between him and
Pigula deteriorated significantly as a result, a characterization with which Pigula
agreed. Ziparo and Pigula both testified that they repeatedly told Lacy and Van
Blarcom that their demands were creating an unsafe environment and that, as
Ziparo put it, “[s]omething [was] going to happen.” J. App’x at 567. Moreover,
Ziparo repeated that precise concern to CSX’s ethics hotline when he lodged a
formal complaint against Lacy and Van Blarcom, explaining that their demands
created “a safety issue because employees are not focused on their work.” J.
App’x at 898.
Contrary to the district court, we hold that complaints of stressful and
distracting work conditions like Ziparo’s may well fall within the scope of
“hazardous safety or security condition[s]” under § 20109(b)(1)(A). That is not to
say that any railroad employee who tells her employer that she feels unable to
29
perform her work safely due to stress and distraction is protected under the
statute; for example, an employee whose stress or distraction results from a
turbulent personal life enjoys no protection from termination. But a jury, taking
the facts in the light most favorable to the plaintiff, could find that is not what
happened here. Ziparo complained about what he believed to be an unsafe
environment caused by the improper conduct of CSX’s employees, which was
well within CSX’s power to control. Indeed, there is evidence in the record that,
after investigating Ziparo’s report, CSX put an end to the practices of which he
complained. It is clearly for the factfinder at trial to determine whether Ziparo
believed in good faith, as he has consistently asserted, that those practices were
creating a genuine safety hazard. Section 20109(b)(1)(A) requires no more.
Finally, we decline CSX’s invitation to affirm the district court’s judgment
on the alternate basis that no reasonable jury could find that Ziparo was fired in
part for his reports about Lacy and Van Blarcom rather than solely because of his
negligence in failing to properly reset a switch. See Tompkins, 983 F.3d at 82-83
(discussing factors relevant to assessing whether a plaintiff has sufficiently
established a causal relationship between the protected activity and a disciplinary
action). Although CSX advanced that argument below, the district court did not
30
reach it, and we decline to do so for the first time on appeal. The district court, of
course, remains free to consider that issue on remand.
CONCLUSION
For the reasons stated above, the judgment of the district court is
VACATED and the case is REMANDED for further proceedings.
31