United States District Court, N.D. Ohio, Western Division
G. Carr, Sr. U.S. District Judge
a wrongful termination case. Plaintiff Daniel Lemon claims
that defendant Norfolk Southern Railway Company (NSR) fired
him in retaliation for reporting a workplace injury in
violation of the Federal Railroad Safety Act (FRSA), 49
U.S.C. § 20109(a). (See Doc. 1).
December 16, 2015, Lemon hurt his neck. The parties dispute
whether the injury occurred at home or at work, but, in any
case, Lemon reported his neck pain to his supervisor as a
workplace injury. The supervisor investigated the injury and
concluded that Lemon had lied and told inconsistent stories
about the injury's cause. After a disciplinary hearing,
NSR fired Lemon for dishonesty.
is proper under 28 U.S.C. § 1331.
are the parties' counter-motions for summary judgment
(Doc. 18; Doc. 19) and NSR's objections to affidavits of
Fredric Schultz and Rebecca Stevenson, which I treat as a
motion to strike (Doc. 24).
reasons that follow, I overrule NSR's objections to the
affidavit evidence, grant NSR's motion for summary
judgment in part and deny it in part as moot, and deny
Lemon's motion for summary judgment.
worked for NSR, a subsidiary of Norfolk Southern Corporation,
for fifteen years, with his latest position as a yardmaster
at NSR's Toledo Terminal. (Doc. 18 at PageID #: 74).
December 16, 2015, sometime before 9:30 a.m., Lemon injured
his neck. Lemon's pain worsened throughout the day. He
ended his shift early, and, that afternoon, a coworker drove
him to the hospital. A doctor diagnosed him with a pinched
nerve. (Doc. 18-4 at PageID #: 324-25). After his hospital
visit, Lemon reported his injury to his supervisor. (Doc.
18-6 at PageID #: 486).
claims that the injury occurred while walking up some stairs
at the Toledo Terminal. (Doc. 18 at PageID #: 75). NSR argues
that Lemon's statements to others contradict that
contention, and show that the injury happened at home. (Doc.
19-1 at PageID #: 623-624).
joint filing (Doc. 31), the parties set forth Lemon's
various December 16, 2015 statements about his injury:
• In a statement, a coworker indicated that, between
9:30 and 10:00 a.m., Lemon asked him “for an Advil
because he turned his head the wrong way . . . and tweaked
his neck looking out the window.” (Doc. 18-6 at PageID
#: 487). Lemon initially disputed the coworker's
statement but later explained that he could not recall this
discussion. (Doc. 31 at PageID #: 1768) (citing Doc. 18-6 at
PageID #: 487).
• At 1:45 p.m., Lemon told another coworker that he
“tweaked his neck at home walking down some
stairs.” (Doc. 18-2 at PageID #: 92).
• In the afternoon, during his hospital visit, Lemon
told the emergency room physician his injury happened at
home. (Doc. 18-5 at PageID #: 477-478).
• While still at the hospital (though it is unclear
exactly when), Lemon changed his story. (Doc. 18-5 at PageID
#: 477-478). Lemon's mother, a hospital compliance
officer, visited him, and, after Lemon told her that he hurt
himself at work, encouraged him to be truthful.
(Id.). Lemon then told the physician that his injury
occurred at work and explained that he was afraid to say so
because he thought NSR might fire him. (Id.). Both
Lemon's mother and the physician assured him that NSR
could not fire him for reporting a workplace injury.
(Id.). The notes from his visit indicate that he
hurt himself while walking down stairs at work. (Doc. 18-4 at
PageID #: 325) (Lemon deposition, medical records as exhibit
• At 5:07 p.m., Lemon texted a coworker saying
“I'm sitting in the ER with some serious neck
pains, tweaked it at home this morning. Pain was excruciating
by the end of the day.” (Doc. 19-1 at PageID #: 620;
• At about 6:45 p.m., Lemon reported the injury to his
supervisor, John Turpie, and told him that he “slipped
on the stairs at work today and tweaked his neck.” When
Turpie asked if he had told anyone else about the injury,
Lemon said he had not. (Doc. 18-6 at PageID #: 486).
Lemon reported his injury, Turpie began an investigation.
(Doc. 19-9 at PageID #: 850). During the investigation,
Turpie learned that Lemon had told co-workers about the
injury and that he had told at least some of them that he had
hurt himself at home. (Id. at PageID #: 850-51).
December 17, 2015, Lemon filed his official injury report.
The report stated that the injury occurred at work. (Doc.
19-10 at PageID #: 858-59). That same day, Turpie pulled
Lemon out of service. (Doc. 18-2 at PageID #: 92).
days later, on December 21, 2015, Turpie notified Lemon that
NSR was charging him with the disciplinary violation of
making false and/or conflicting statements. (Doc. 19-9 at
PageID #: 853).
held a hearing on January 13, 2016. (Doc. 19-12 at PageID #:
925, 928, 935). One week later, on January 20, 2016, NSR
terminated Lemon. (Doc. 19-7 at PageID #: 732).
April 8, 2016, Lemon filed an FRSA retaliation complaint
against NSR with the Occupational Safety and Health
Administration (OSHA). (Doc. 19-1 at PageID #: 618). OSHA
dismissed his complaint, and Lemon appealed for a hearing
before an administrative law judge (ALJ). (Doc. 19-14 at
PageID #: 972-73). Before the ALJ could rule on NSR's
motion for summary judgment, Lemon filed his complaint in
this court on May 3, 2018. (Doc. 1; Doc. 19-17 at PageID #:
Federal Rule of Civil Procedure 56(a), summary judgment is
proper if the moving party demonstrates that there is no
genuine dispute of material fact and that judgment must
follow as a matter of law. Further, I must view all evidence
in the light most favorable to the nonmoving party and draw
any justifiable inferences in that party's favor.
United States v. Diebold, Inc., 369 U.S. 654, 655,
(1962). I am not, however, bound to “search the entire
record to establish that it is bereft of a genuine issue of
material fact.” Guarino v. Brookfield Twp.
Trustees, 980 F.2d 399, 404 (6th Cir. 1992) (internal
dispute over a fact is genuine when a reasonable jury could
decide the matter and enter a verdict in the nonmovant's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A disputed fact is material if its
resolution could affect the outcome of the case. Rogers
v. O'Donnell, 737 F.3d 1026, 1030 (6th Cir. 2013).
For the non-moving party to succeed, doubts regarding the
materials facts must rise above the