Case: 20-30693 Document: 00515958270 Page: 1 Date Filed: 07/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 29, 2021
No. 20-30693
Lyle W. Cayce
Clerk
James Wheeler,
Plaintiff–Appellant,
versus
Norfolk Southern Railway Company; Unidentified
Parties,
Defendants–Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-cv-1021
Before Smith and Ho, Circuit Judges, and Barker, District Judge.*
J. Campbell Barker, District Judge.
James Wheeler was employed by Hulcher Services, Inc. while working
at a New Orleans railyard. After he lost several fingers in an accident at the
railyard, he sued the railyard’s owner, Norfolk Southern Railway Company,
*
U.S. District Judge for the Eastern District of Texas, sitting by designation.
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under a federal law that allows suit by railroad employees injured on the job.
See Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. That
claim presented the question whether Wheeler was an employee of Norfolk.
On summary judgment, the district court held that he was not, so he could
not recover under FELA. Wheeler now appeals. Because he does not show
that Norfolk controlled the performance of his work or retained the right to
do so, we affirm the district court’s judgment.
I.
Norfolk asked Hulcher to clean up a derailment at Norfolk’s New Or-
leans railyard, and Hulcher assigned Wheeler and other Hulcher employees
to the project. At the time, Wheeler had worked for Hulcher for about three
months, serving over a dozen Hulcher customers. He had never before
worked at Norfolk’s railyard.
The Hulcher crew serviced the derailment site and was packing up its
heavy equipment when a novice Hulcher employee made a dangerous error.
The employee failed to reverse a cable line that Wheeler was holding while
rigging down a boom. The slack in the line evaporated in an instant, trapping
Wheeler’s right hand between a heavy steel cable and a load line. His middle,
ring, and pinky fingers were severed.
Wheeler brought and settled a workers-compensation claim against
Hulcher. He then brought this FELA suit, alleging that he was Norfolk’s em-
ployee and was injured by its negligence. To show his employee status,
Wheeler relied on (1) the agreement between Hulcher and Norfolk and
(2) the testimony of two Norfolk supervisors on duty during his accident.
Those materials are described in further detail below.
1. Hulcher performed work for Norfolk under a Master Agree-
ment for Derailment Cleanup and Repair Services. It provided for Hulcher
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to work on derailments on an “as-needed, as-requested basis,” with Norfolk
not required to use Hulcher for any given derailment.
If requested to work on a derailment, Hulcher was required to provide
trained personnel, equipment, and services to clean up the derailment site.
Its work would include “(a) clearing, removing and/or rerailing locomotives,
railcars and other rolling stock; (b) repair, reconstruction and replacement of
damaged or destroyed trackage or track components . . . ; and (c) such other
services as [Norfolk] may request to complete repair and cleanup of a derail-
ment site.” Norfolk determined the scope of those services and the equip-
ment to be used on a case-by-case basis.
The agreement obligated Hulcher to “respond[] to derailments as
promptly as possible . . . twenty-four (24) hours per day, seven (7) days per
week.” Regarding personnel, the agreement required Hulcher to follow fed-
eral law and mandated that Hulcher perform certain background checks on
any employee assigned to the Norfolk railyard. The agreement provides that
“[n]othing in this background investigation requirement [prevents Hulcher]
from hiring any particular individual or requiring [Hulcher] to terminate such
individual if already hired[.]” The agreement also imposes some of Norfolk’s
internal rules on Hulcher and its employees. For example, it requires Hulcher
employees to comply with Norfolk’s safety rules, attend job briefings con-
ducted by Norfolk, stay up to date on environmental and hazardous-materials
trainings, and wear safety gear at derailment sites.
The paragraph titled “Independent Contractor” states that Hulcher
would “remain an original and independent party[.]” Hulcher’s services
were to be “its own separate business, under its management, supervision
and direction.” The agreement provides that Hulcher was to “employ, pay[,]
. . . and discharge all persons engaged in the performance of” its services, and
those persons were to “remain the sole employees of [Hulcher].” Nothing in
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the agreement “is intended to create a joint venture or to constitute either
party as agent . . . of the other.”
The agreement gives Norfolk employees the right to inspect
Hulcher’s work and demand that Hulcher remedy any deficiencies. It also
provides that Norfolk may assign its personnel to work alongside or in the
vicinity of Hulcher employees, and it clarifies that the employees of each
party “shall remain under the direction and control of [their] supervisors,
there being no intention to render the employees of either as ‘loaned’ em-
ployees of the other[.]”
2. Wheeler submitted a declaration alleging that Norfolk employ-
ees “had the right to direct [his] work if they desired” and that, if they had
directed him to do something, he “would have done it.” He claims that he
understood that he was supposed to follow Norfolk’s safety rules, that he
should stop if ordered to do so by a Norfolk employee, and that his failure to
do either could lead to his removal from Norfolk’s railyard. Wheeler supports
his claims with the testimony of two Norfolk employees.
First, Wheeler relies on the testimony of Stacey Brown, Norfolk’s
Senior General Foreman at the railyard. Although Brown was on duty the day
that Wheeler was injured, Brown was unaware the accident had occurred.
Brown was Norfolk’s point person for Hulcher’s services at the railyard. In
the event of a derailment, Brown would call Hulcher and tell them the scope
of the project and what equipment he believed was needed. Hulcher would
then determine the number of its employees needed to clean up the site.
Brown stated that he did not make a habit of policing how Hulcher
employees entered the yard, but he agreed that he had the authority to do so.
He also agreed that he could order a Hulcher employee to stop working “for
any reason.” He represented that he did not have authority to order Hulcher
employees to do something in a particular way, however, and that “I just tell
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[the Hulcher employee] to stop, and then his supervisor would determine
how they’re going to do it.” Brown knew that he could remove a contractor
from the railyard, but he had never heard of someone’s being removed in his
22 years at Norfolk.
Second, Wheeler relies on the testimony of Preston Hunter, the Nor-
folk yardmaster on duty during the accident. Hunter too was unaware of
Wheeler’s accident until this lawsuit was filed. As the yardmaster, Hunter
controlled the railyard, but he never interacted with Hulcher or directly su-
pervised its work or crews. He explained that, when a derailment occurs,
Norfolk’s mechanical department asks for permission to clear the affected
tracks, after which the mechanical department contacts Hulcher. Hunter
acknowledged that he could order the mechanical department to stop
Hulcher from working in an emergency or if he saw something unsafe. But he
stated, “that’s just something I would never . . . do[,]” because from where
Hunter was located in the tower, he “really wouldn’t know what Hulcher is
doing[.]”
II.
Employment by a railroad is required for a plaintiff to recover under
FELA. 45 U.S.C. § 51. Whether an injured worker was acting as an employee
of a railroad at the time of an injury is a question of fact. Lindsey v. Louisville
& Nashville R.R. Co., 775 F.2d 1322, 1324 (5th Cir. 1985). The district court
entered summary judgment for Norfolk, holding that no genuine dispute of
material fact existed on that point and that the record would not support a
finding that Wheeler was Norfolk’s employee at the time of his accident. On
appeal, we review that summary judgment de novo.
In FELA, the words “employee” and “employed” are used in their
natural sense, so principles of common law govern the issue of employment.
Kelley v. S. Pac. Co., 419 U.S. 318, 323 (1974). At common law, a person may
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establish his employee status, despite his nominal classification as an inde-
pendent contractor, under three recognized doctrines. As applied to a rail-
road, the person could (1) be the railroad’s borrowed servant, (2) serve two
employers simultaneously, or (3) be a subservant of a company that in turn
serves the railroad. Id. at 324. Under each of those doctrines, a worker’s em-
ployment status turns on “whether the railroad has control of the employee
or the right to control the employee.” Lindsey, 775 F.2d at 1324.
The railroad need not have full supervisory control, but its supervisory
role must be significant. Id. The mere reservation of authority to ensure per-
formance as contemplated by a contract is not sufficient control to turn a
nominal contractor into an employee. See Sullivan v. Gen. Elec. Co., 226 F.2d
290, 291 (6th Cir. 1955). The control necessary to establish an employment
relationship is also more than just the power of “mere suggestion as to details
or the necessary cooperation, where the work furnished is part of a larger un-
dertaking.” Kelley, 419 U.S. at 329 (cleaned up). Likewise, “the passing of
information and the accommodation . . . obviously required in a large and
necessarily coordinated operation” do not prove sufficient supervisory con-
trol. Id. at 330 (citation omitted). Rather, to establish an employment rela-
tionship, the communications between the railroad and the contractor “must
assume a supervisory character.” Id.
Under those standards and on the summary-judgment record here,
Wheeler’s argument that he was Norfolk’s employee fails as a matter of law.
The undisputed evidence demonstrates that Norfolk did not control the man-
ner and details of Wheeler’s work, nor did it retain the right to do so. See id.
at 325.
First, Norfolk personnel did not, in fact, supervise Wheeler’s work.
Wheeler identifies no instance in which a Norfolk employee instructed him
to do something. The only Norfolk employees whom he identifies as being in
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the railyard at the time of his accident—Brown and Hunter—were not even
aware of the accident until this suit was filed. Cf. Lindsey, 775 F.2d at 1324
(upholding a finding of employee status based in part on testimony that work-
ers “received specific orders and instructions from [railroad] employees”).
Nor does Wheeler identify evidence that Norfolk personnel had the
right of significant supervisory control over his work. Wheeler points to
Hunter’s general authority over the railyard and Brown’s authority to tell an-
yone there to stop working. But those facts do not, alone or in conjunction
with the other evidence, support a finding of significant supervisory control
over Wheeler’s rerailment work. This is not a case like Baker v. Texas & Pa-
cific Railway Co., 359 U.S. 227 (1959). There, the evidence sufficed to raise a
question for the jury on employee status because a railroad supervisor “exer-
cised directive control over the details of the job performed by the individual
workmen, including the precise point where the mixture should be pumped,
when they should move to the next point, and the consistency of the mix-
ture.” Id. at 228–29. Here, in contrast, the evidence could show only a re-
tained authority by Brown and Hunter to order a Hulcher employee to stop
working at the railyard—a far cry from the directive control described in
Baker. It falls short of the affirmative control necessary to allow a finding of
substantial supervisory power. It also stands in contrast with the directive
control described in Collins v. Union Pacific Railroad Co., 143 Cal. Rptr. 3d
849, 857–59 (Cal. Ct. App. 2012), on which Wheeler relies. There, the rail-
road employees would tell a worker “what [they] wanted done and how to do
it.” Id. at 859 (emphasis added). Here, the record lacks such evidence.
Second, no evidence shows that Wheeler’s selection for Hulcher’s
work at the railyard was directed by Norfolk. Wheeler helped service over a
dozen other Hulcher customers before starting the Norfolk project, and no
evidence shows that anyone but Hulcher decided when and where Wheeler
would be assigned. Hulcher retained complete authority over its employees’
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schedules. The Norfolk–Hulcher agreement does not give Norfolk the power
to hire employees for Hulcher or require any specific Hulcher employee to
work at Norfolk’s railyard. Hulcher was required to provide a sufficient work-
force, not a specific workforce. And it is uncontroverted that Hulcher paid
Wheeler’s wages.
Wheeler relies on the master agreement’s requirements that Hulcher
employees pass a background check, follow Norfolk safety rules, and attend
job briefings and safety meetings. The Sixth Circuit addressed similar argu-
ments in Campbell v. BNSF Railway Co., 600 F.3d 667 (6th Cir. 2010), hold-
ing that such requirements are unsurprising in the context of an independent-
contractor relationship: “[i]t was certainly reasonable for [the railroad] . . . to
be concerned about workers performing potentially hazardous work on its
land[,]” id. at 674. That reasoning applies with equal force here.
Third, the Norfolk–Hulcher agreement disclaims authority by either
company to terminate or demand the termination of the other company’s
employees. Norfolk did not have authority to terminate Wheeler from
Hulcher’s employment. Wheeler argues that Norfolk had authority to ban
him from the railyard, but he fails to explain why that is any different than the
authority Norfolk could exercise against a trespasser, especially where
Hulcher had numerous other customers. It does not support a finding of em-
ployment by Norfolk. See Robertson v. Yazoo & Miss. Valley R.R. Co., 159 F.2d
31, 31 n.1, 35 (5th Cir. 1947) (acknowledging a railroad’s power to remove a
contractor’s employees from its railyard but nonetheless holding that a
worker failed to raise a fact issue as to his employment by the railroad).
Fourth, Hulcher was responsible for bringing the necessary equip-
ment to the railyard. The agreement does give Norfolk authority to designate
equipment for Hulcher to bring, but Wheeler fails to explain why that step
goes beyond the cooperation “obviously required in a large and necessarily
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coordinated operation.” See Kelley, 419 U.S. at 330 (citation omitted). The
ability to designate the equipment that Hulcher will bring allows Norfolk to
anticipate the cost of each engagement with Hulcher. And the fact that
Hulcher owned and provided its own specialized equipment for servicing de-
railments implies that Wheeler was an independent contractor, not Norfolk’s
employee, in performing that work. Cf. Watts v. Mont. Rail Link, Inc., 975
P.2d 283, 292–93 (Mont. 1999) (concluding that a contractor’s reliance on a
railroad for “tools, equipment, and parts[,]” among other factors, estab-
lished an employment relationship).
Fifth, although the work was performed at Norfolk’s railyard, that
seems almost unavoidable when an independent contractor’s line of work is
cleaning up derailments. As the district court recognized, the place of injury
alone is insufficient to create an issue of fact as to a worker’s employment by
a railroad. See Campbell, 600 F.3d at 674, 676 (upholding summary judgment
in favor of a railroad although a contractor was injured on railroad property).
Finally, Wheeler gains no ground in arguing that reliance on the Nor-
folk–Hulcher agreement is barred by § 55 of FELA. Section 55 reads in per-
tinent part: “Any contract, rule, regulation, or device whatsoever, the pur-
pose or intent of which shall be to enable any common carrier to exempt itself
from any liability created by this chapter, shall to that extent be void[.]” 45
U.S.C. § 55. Wheeler argues that § 55 prevents Norfolk from “escap[ing]
FELA liability by contracting out its railroad activity to third parties[.]” But
Wheeler failed to raise this argument in district court, so it is forfeited. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). In any
event, Wheeler cites no authority applying § 55 to bar a railroad’s argument
that a contract for services shows that a worker of the service provider was
not an employee of the railroad. The distinction between an employee and an
independent contractor underlies and defines the scope of FELA liability; it
is not an “exempt[ion]” from that liability under that Act. See Robinson v.
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Balt. & Ohio R.R. Co., 237 U.S. 84, 94 (1915) (remarking that Congress, aware
“that there were . . . persons engaged in various services for other masters”
on railroads, “did not use any appropriate expression . . . indicat[ing] a pur-
pose to include such persons . . . under the act”).
* * *
Summary judgment for Norfolk is proper because Wheeler cannot sat-
isfy the railroad-employee element of his FELA claim. Accordingly, the judg-
ment of the district court is affirmed.
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