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Bostek v. Norfolk Southern Railway Co.

United States District Court, N.D. Ohio, Western Division

July 2, 2019

Karen Bostek, Plaintiff
v.
Norfolk Southern Railway Company, et al., Defendants

          MEMORANDUM OPINION

          Jeffrey J. Helmick United States District Judge

         I. Introduction

         Before 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).

         II. Background

         Plaintiff 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.

         The 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.

         Only a 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.

         Bostek 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.

         Although 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.

         At the 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).

         Other 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 shoulder contusions.

         Myrick, 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.

         The NSR 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.

         Four 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 each.

         III. Standard

         Summary 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).

         IV. Discussion

         The 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 showing that:

(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 action.

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.

         A. Prima Facie Showing

         While 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.

         1.Good Faith

         “[T]he ‘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.

         NSR 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).

         At this 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.

         Here, 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).

         As 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.

         Regarding 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.

         Because 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.

         2.Contributing Factor

         The “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 omitted).

         The 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.

         Without a definitive ruling, many trial courts within the Sixth Circuit have considered the following factors when faced with the “contributing factor” analysis proven by circumstantial evidence:

(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 ...


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