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Lemon v. Norfolk Southern Railway Co.

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

August 28, 2019

Daniel Lemon, Plaintiff
Norfolk Southern Railway Company, Defendant.


          James G. Carr, Sr. U.S. District Judge

         This is 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).

         On 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.

         Jurisdiction is proper under 28 U.S.C. § 1331.

         Pending 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).[1]

         For the 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.


         Lemon 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).

         A. The Injury

         On 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).

         Lemon 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).

         In a 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 3).[2]
• 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; Doc. 19-11).
• 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).

         B. The Investigation

         After 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).

         On 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).

         Four 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).

         NSR held a hearing on January 13, 2016. (Doc. 19-12 at PageID #: 925, 928, 935).[3] One week later, on January 20, 2016, NSR terminated Lemon. (Doc. 19-7 at PageID #: 732).

         C. Procedural History

         On 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 #: 1087).

         Standard of Review

         Under 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 citations omitted).

         A 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 ...

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