United States District Court, N.D. Ohio, Western Division
Jeffrey J. Helmick United States District Judge
me is Defendant Norfolk Southern Railway Company's motion
for summary judgment. (Doc. No. 38). Plaintiff Karen Bostek
filed a memorandum in opposition, (Doc. No. 41), and
Defendant replied, (Doc. No. 42).
Karen Bostek was employed by Defendant Norfolk Southern
Railway Company (“NSR”) for approximately
seventeen years. In August 2014, Bostek failed a
“fitness for duty” drug test and was required to
participate in a drug-education program in order to maintain
her employment. As a condition of the program, Bostek was
subject to random drug tests for the next five years.
first of these random drug tests was conducted on February 4,
2015, by Rebecca Smith, who is federally certified to perform
drug and alcohol tests. (Doc. No. 41-1 at 18; Doc. No. 41-5
at 4, 8). Pursuant to Smith's general practice, she asked
Bostek for photographic identification during the test.
few weeks after this first test, on February 26, 2015, Smith
returned to perform a follow-up test. When Smith appeared in
Bostek's office to perform the test with NSR management
personnel Stephen Grankowski, Bostek informed Smith she would
have to go out to her car to retrieve her license. Because
Smith was required to keep Bostek in her sight for the
duration of the test, Smith followed Bostek out of
Bostek's second floor office and onto an outdoor, grated,
metal staircase to the parking lot. It was snowing at the
time, and snow had accumulated on both the single handrail
and the stairs themselves.
took three steps down the staircase before she slipped and
fell on the third step. Smith immediately asked Bostek
whether she was alright and pounded on the door to summon
Grankowski. Bostek then made her way back up the stairs and
into her office where Smith gave her an ice pack in response
to her complaints of shoulder pain. Grankowski then took
Bostek to the hospital to be treated for her injuries. Smith
remained at the site until Superintendent Stephen Myrick
arrived at the scene. Myrick then took Smith's written
statement and drove her back to her car.
Smith was going to go home after this incident, she was
instructed to go to the hospital to complete the test. Smith
did as instructed.
time Smith attempted to conduct the drug test in the
hospital, Bostek was wearing a neck brace, “moaning and
groaning” while lying in a hospital bed in a curtained
off area of the emergency room. (Doc. No. 41-5 at 25, 34).
The first sample Bostek produced did not fulfill the volume
requirement for urinalysis. After the first sample, Bostek
was given an injection of morphine for her pain. She was also
given a forty-ounce cup of water to help her produce a
sufficient urine sample. Though Bostek took a couple sips of
the water and produced some urine, neither of the samples
taken over the next two hours satisfied the volume
requirement for urinalysis. Since Bostek was unable to
produce a sample of the requisite volume in any of the three
samples given over three hours, the test resulted in a
“shy bladder refusal.” (Doc. No. 41-5 at 22).
than the drug test itself, the details of the hospital visit
are not clear. But it is known that after x-rays and CT scans
were performed, Bostek was discharged with a diagnosis of
who was investigating the incident, was present for much of
the time Bostek was in the hospital. But, due to the
circumstances, he was unable to question Bostek at the
hospital. Instead, he questioned Bostek in an unrecorded
phone call the following day.
medical department also attempted to communicate with Bostek
in the days following the incident to notify her of a Shy
Bladder Exam, which was required to assess whether there was
a medical reason for Bostek's inability to produce the
requisite volume of urine in any one sample over the
three-hour period. Though the medical department made
numerous attempts to notify Bostek of the Shy Bladder Exam
scheduled for March 2, 2015, it was unable to reach her until
March 1, 2015. During the call, Bostek notified NSR that she
had a doctor's appointment scheduled for the same day,
which could conflict with the scheduled exam. Despite being
notified of the conflict, NSR did not offer to reschedule the
test. And on March 2, 2015, Bostek chose to attend her
doctor's appointment rather than the Shy Bladder Exam.
days after she failed to appear for the Shy Bladder Exam, on
March 6, 2015, NSR sent Bostek two letters notifying her of
the following charges:
(1) “violation of NS Operating Rule 4(a), violation of
the NS Policy on Alcohol and Drugs and conduct unbecoming an
employee in that you failed to follow the instructions of NS
Medical Director Dr. P. J. Lina, in her letter to you dated
February 27, 2015, to report for a medical assessment on
March 2, 2015, after failing to provide a sample for a
February 26, 2015, follow-up test as instructed in her
November 29, 2014 letter.”
(2) “conduct unbecoming an employee in that you made
false and/or conflicting statements to a Carrier Officer,
while on duty as an Operator at River Route Bridge, at
approximately 3:48 P.M. on February 26, 2015.”
(Doc. No. 41-21 at 2 -3). For both charge investigations,
Myrick was the charging officer and Jason Charbonneau the
hearing officer. As charging officer, it was Myrick's
responsibility to present the case on behalf of the company,
including documents and testimony to support the case. The
hearing officer is charged with conducting a fair and
impartial hearing. Ultimately, Charbonneau found Bostek
guilty on both charges and dismissed her from service for
judgment is appropriate if the movant demonstrates there is
no genuine dispute of material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
All evidence must be viewed in the light most favorable to
the nonmovant, White v. Baxter Healthcare Corp., 533
F.3d 381, 390 (6th Cir. 2008), and all reasonable inferences
are drawn in the nonmovant's favor. Rose v. State
Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir.
2014). A factual dispute is genuine if a reasonable jury
could resolve the dispute and return a verdict in the
nonmovant's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A disputed fact is
material only if its resolution might affect the outcome of
the case under the governing substantive law. Rogers v.
O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).
Federal Railroad Safety Act (“FRSA”) prohibits a
railroad carrier from retaliating against an employee who
has, in good faith, engaged in a protected activity. 49
U.S.C. § 20109(a). Claims under the FRSA are analyzed
under the same burden-shifting framework as those asserted
under the Wendell H. Ford Aviation Investment and Reform Act
for the 21st Century. 49 U.S.C. § 20109(d)(2)(A)(i).
That is, the employee must first make a prima facie
(1) [she] engaged in protected activity; (2) [NRS] knew that
[she] engaged in protected activity; (3) [she] suffered an
unfavorable personnel action; and (4) the protected activity
was a contributing factor in the unfavorable personnel
Consol. Rail Corp. v. U.S. Dep't of Labor, 567
Fed.Appx. 334, 337 (6th Cir. 2014) (citing Araujo v. New
Jersey Transit Rail Operations, Inc., 708 F.3d 152, 157
(3d Cir. 2013)); see also 49 U.S.C. §
42121(b)(2)(B)(i). Once the employee satisfies the initial
burden, the employer must “demonstrate[ ], by clear and
convincing evidence, that the employer would have taken the
same unfavorable personnel action in the absence of that
behavior.” 49 U.S.C. § 42121(B)(2)(B)(ii); see
also Consol. Rail Corp., 567 Fed.Appx. at 337.
Prima Facie Showing
there is no dispute that notifying a railroad carrier of a
work-related injury is a protected activity, 49 U.S.C. §
20109(a)(4), NSR alleges the injury report was not made with
the requisite “good faith.” Additionally, NSR
claims Bostek cannot establish her engagement in a protected
activity was a “contributing factor” in NSR's
decision to terminate her employment.
‘good faith' requirement of the statute
incorporates both a good faith belief that an injury was
work-related, and good faith in making the injury
report.” Miller v. CSX Transp., Inc., No.
1:13-cv-734, 2015 WL 5016507, at *6 (S.D. Ohio Aug. 25, 2015)
(citing Murphy v. Norfolk S. Ry. Co., No.
1:13-CV-863, 2015 WL 914922, at *5 n. 3 (S.D. Ohio Mar. 3,
2015)). It is undisputed that Bostek's reported injury
occurred at work. As such, the remaining question is whether
Bostek “submitted the report with good faith
intent.” Miller, 2015 WL 5016507, at *6.
asserts the report was made not in good faith but with the
“ulterior motive” of avoiding the random drug
test. (Doc. No. 38-1 at 18-19). In support, NSR cites
statements Bostek made which conflict with the accounts of
others who were present during or after the incident.
(Id.). Specifically, NSR alleges Bostek falsely
claimed: (1) the stairs were icy and snow-packed; (2) she
slipped halfway down the staircase; and (3) she was covered
in snow after the fall. (Id.). Bostek acknowledges
the inconsistencies between her own account and that of
others but contends these “minor facts” do not
equate with a lack of good faith. (Doc. No. 41 at 19).
stage in the litigation, it is not my function “to
weigh the evidence and determine the truth of the
matter.” Anderson, 477 U.S. at 249. Rather, I
must view the evidence in the light most favorable to Bostek
and determine only whether there is sufficient
“evidence on which the jury could reasonably find for
the plaintiff.” Id. at 252.
Smith testified that there was snow on the steps that had not
fallen through the grates at the time of the accident. (Doc.
No. 41-17 at 3-4). While she said “[i]t didn't seem
dangerous to [her, ]” she “was cautious.”
(Id. at 4). Additionally, though Smith asserted
“[t]here was no snow buildup, no ice buildup, nothing[,
]” two questions later, she stated, “[t]here was
just a little bit of snow buildup on the sides and
stuff.” (Id. at 9). Grankowski also testified
to the accumulation of snow on the steps and the handrail.
(Doc. No. 41-4 at 12). And, even Myrick admitted there was
snow on the lip of the steps, which is corroborated by the
photo he took an hour after the incident. (Doc. No. 41-3 at
16; Doc. No. 41-25).
such, without considering Bostek's “self-serving
testimony, ” as described by NSR, (Doc. No. 38-1 at
19), the jury could reasonably conclude the stairs had
accumulated snow, snow which would have covered Bostek's
clothes when she fell. Further, although Bostek's
statement that the stairs were icy is not corroborated, there
is sufficient evidence of accumulation to conclude the
statement was made not in bad faith but merely confusion.
the details of the fall itself, Bostek and Smith both
recalled Bostek slipping on the third step down. (Doc. No.
38-12 at 35; Doc. No. 41-17 at 5). But their accounts diverge
as to whether Bostek continued to fall down the steps. Bostek
claimed she went down an additional five stairs. (Doc. No.
38-12 at 33, 35). Smith recalls Bostek landing on the third
step with her legs extended to the steps below, which could
arguably be characterized as Bostek's body having
extended below the third step. (Doc. No. 41-17 at 5-6).
Considering Bostek's likely surprise during and following
the fall, a genuine dispute of fact exists as to whether this
inconsistency was a product of bad faith.
Smith's eyewitness testimony and Bostek's account and
hospital records, (Doc. No. 41-11), support a conclusion that
Bostek fell and was injured, a jury could reasonably conclude
Bostek reported her injury in good faith.
“contributing factor” prong of the analysis is a
matter of much debate among courts. Most circuits who have
encountered this issue have determined the employee must show
“retaliation was a motivating factor” to
satisfy this prong. Armstrong v. BNSF Ry. Co., 880
F.3d 377, 382 (7th Cir. 2018) (emphasis in original); see
also Heim v. BNSF Ry. Co., 849 F.3d 723, 727 (8th Cir
2017) (“[T]to establish a prima facie case, [the FRSA
plaintiff] must demonstrate that [the railroad carrier]'s
discipline was, at least in part, intentional retaliation
prompted by his injury report.”); Lowery v. CSX
Transp., Inc., 690 Fed.Appx. 98, 101 (4th Cir. 2017)
(holding the “contributory factor” prong was
satisfied by proof of “retaliatory animus”). But
some courts have followed the Third Circuit's holding
that a FRSA plaintiff “need not demonstrate
the existence of a retaliatory motive on the part of the
employee taking the alleged prohibited personnel action in
order to establish that his disclosure was a contributing
factor to the personnel action.” Araujo, 708
F.3d at 158 (emphasis in original) (further citation
Sixth Circuit has yet to address whether proof of retaliatory
animus is required to establish the “contributory
factor” prong. In Consolidated Rail Corp., the
court quoted the Third Circuit, stating, “the
contributing factor standard has been understood to mean
‘any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of the
decision.'” 567 Fed.Appx. at 338 (quoting
Araujo, 708 F.3d at 158). But, in concluding the
employee had established this prong, the court stated there
was “substantial evidence that animus was a
contributing factor.” Id. Thereafter, the
Eighth Circuit cited this conclusion in support of the
statement that “the contributing factor that an
employee must prove is intentional retaliation prompted by
the employee engaging in protected activity.”
Kuduk, 768 F.3d at 791.
a definitive ruling, many trial courts within the Sixth
Circuit have considered the following factors when faced with
the “contributing factor” analysis proven by
(i) temporal proximity; (ii) indications of pretext; (iii)
inconsistent application of an employer's policies; (iv)
shifting explanations for an employer's actions; (v)
antagonism or hostility toward a complainant's protected
activity; (vi) falsity of an employer's explanation for
the adverse action taken; and (v[ii]) change in the
employer's attitude toward the complainant after he
engages in protected activity.
Gibbs v. Norfolk S. Ry. Co., No. No. 3:14-cv-587,
2018 WL 1542141, at *8 (W.D. Ky. Mar. 29, 2018) (quoting
Wagner v. Grand Trunk W. R.R., No. 15-10635, 2017 WL
733279, at *4 (E.D. Mich. Feb. 24, 2017)) (further citation
omitted); see also, Ma v. American Elec. Power,
Inc., 123 F.Supp.3d 955, 963 (W.D. Mich. 2015)
(considering temporal proximity, change in attitude, and
hostility toward protected activity); Ortiz v. Grand
Trunk W. R.R. Co., No. 13-13192, 2014 WL 4658762, at *7
(E.D. Mich. Sept. 17, 2014) (enumerating G ...