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Roop v. Kansas City Southern Railway Co.

United States District Court, E.D. Oklahoma

October 26, 2017

DEON ROOP, Plaintiff,


          Steven P. Shreder United States Magistrate Judge Eastern District of Oklahoma

         The Plaintiff Deon Roop brought this action against Kansas City Southern Railway (“KCSR”) under 49 U.S.C. § 20109, part of the Federal Railroad Safety Act (“FRSA”). The Plaintiff alleges that he engaged in activities protect under the FRSA, for which he was retaliated against and ultimately terminated from his employment with KCSR. Defendant KCSR now seeks summary judgment against the Plaintiff, pursuant to Fed.R.Civ.P. 56, asserting that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. For the reasons set forth below, the Court finds that the Defendant The Kansas City Southern Railway Company's Motion for Summary Judgment [Docket No. 45] should be DENIED.

         Summary judgment is appropriate if the record shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), with the evidence taken in the light most favorable to the non-moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not establish the absence or presence of a genuine dispute[.]” Fed.R.Civ.P. 56(c).

         The Plaintiff alleged in his Complaint that he engaged in protected activity by testifying against the railroad and on behalf of another employee in a FELA case against KCSR filed by that other employee, Mark Dunaway. He further alleges that, as a result, KCSR violated the FRSA by intimidating, harassing, and eventually terminating him, and that his protected activity on behalf of Mr. Dunaway was a contributing factor to his termination. KCSR asserts that the Plaintiff's claims are time-barred; that he did not engage in FRSA-protected activity; that even if he did engage in FRSA-protected activity, the relevant decisionmaker, Chad Devenney, was not aware of it; that he cannot show any protected activity was a contributing factor to the decision to terminate his employment; and that KCSR would have taken the same action absent any alleged protected activity.

         Defendant KCSR first argues that the Plaintiff's claims are time-barred. “The FRSA requires that a party bringing a retaliation action file a charge within 180 days of the alleged violation. The statute ‘precludes recovery for discrete acts of . . . retaliation that occur outside the statutory time period.' ‘A party, therefore, must file a charge within [the specified number of days] of the date of the [alleged retaliatory act] or lose the ability to recover for it.' Although recovery for any action outside the 180-day period is barred, an employee may still use ‘the prior acts as background evidence in support of a timely claim.'” Dunn v. BNSF Ry. Co., 2017 WL 3670559, at *8 (W.D. Wash. Aug. 25, 2017), quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 110, 113 (2002).

         In this case, the claimant was terminated on September 21, 2015, and filed his claim with the United States Department of Labor's Occupational Safety and Health Administration on January 26, 2016, approximately 127 days later. This falls within the requisite 180-day period. The Court notes, however, that any retaliatory action allegedly taken prior to July 30, 2015, is not actionable, even though it is related to acts that are timely alleged.

         Additionally, KCSR asserts that the Plaintiff did not engage in protected activity under the FRSA because he was not an employee at the time of his deposition, because his testimony was not a report of a violation of the law under the statute, and that it was not a report to someone with authority to take action. Roop contends that he did engage in protected activity, and the Court agrees.

         “The FRSA incorporates by reference the rules and procedures applicable to [the] Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”) whistle blower cases, ' which includes a burden shifting test. Under AIR-21's burden shifting test, a FRSA plaintiff must establish by a preponderance of the evidence that: (1) plaintiff engaged in protected activity; (2) the employer knew that plaintiff engaged in the protected activity; (3) plaintiff suffered an adverse action; and (4) the protected activity was a contributing factor to the adverse action.” Lincoln v. BNSF Railway Co., 2017 WL 1437302, at *29 (D. Kan. April 24, 2017), quoting Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013). “Protected activity under the act includes (1) lawfully and in good faith reporting a violation of federal law, rule, or regulation pertaining to railroad safety or security, (2) reporting hazardous safety conditions, and (3) seeking medical treatment for an on-duty injury.” Lincoln, 2017 WL 1437302, at *29, citing 49 U.S.C. § 20109(a)-(b)(1)(A), and (c)(1)-(2). See also Dunn v. BNSF Railway Co., 2017 WL 3670559, at *6 (W.D. Wash. Aug. 25, 2017) (“The FRSA specifies what constitutes a protected activity, grouping them generally into three categories: (1) providing information pertaining to the investigation of or proceeding about a violation of safety regulations, see 49 U.S.C. § 20109(a); (2) reporting or refusing to work around a hazardous safety condition, see Id. § 20109(b); and (3) requesting medical treatment for a work-related injury, see Id. § 20109(c).)

         The Plaintiff's Complaint alleges violations of 49 U.S.C. §§ 20109(a)(1)(C), a(4), and (b)(1)(A) under the FRSA:

(a) In general.--A railroad carrier engaged in interstate or foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier, may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done--
(1) to provide information, directly cause information to be provided, or otherwise directly assist in any investigation regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security, if the information or assistance is provided to or an investigation stemming from the provided information is conducted by--
(C) a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct;
(4) to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related ...

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