Stapleton v. CSX Transportation, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DEVON M. STAPLETON,

Plaintiff,

Case No. 3:19-cv-413-MMH-PDB

v.

CSX TRANSPORTATION, INC.,

Defendant.

/

ORDER

THIS CAUSE is before the Court on Defendant’s Motion for Partial

Summary Judgment and Incorporated Memorandum of Law (Doc. 20; Motion)

filed on July 17, 2020. In the Motion, Defendant CSX Transportation, Inc.

(CSXT) requests that the Court enter summary judgment in its favor as to

Count II of Plaintiff’s Complaint pursuant to Rule 56, Federal Rules of Civil

Procedure (Rule(s)). See Motion at 1. Plaintiff Devon M. Stapleton filed a

Brief in Opposition to Defendant’s Motion for Partial Summary Judgment (Doc.

25; Response), on August 12, 2020. With leave of the Court, CSXT filed a Reply

Brief in Support of its Motion for Partial Summary Judgment (Doc. 28; Reply),

on September 1, 2020. Accordingly, this matter is ripe for review.

I. Standard of Review

Rule 56 instructs that “[t]he court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Rule 56(a). The record to

be considered on a motion for summary judgment may include “depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials.” Rule 56(c)(1)(A).1 An issue is

genuine when the evidence is such that a reasonable jury could return a verdict

in favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739,

742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913,

919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-

moving party’s position is insufficient to defeat a motion for summary

1 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.

The standard for granting summary judgment remains unchanged. The

language of subdivision (a) continues to require that there be no genuine dispute

as to any material fact and that the movant be entitled to judgment as a matter

of law. The amendments will not affect continuing development of the

decisional law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[‘s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).

Thus, case law construing the former Rule 56 standard of review remains viable and applies

here.

In citing to Campbell, the Court notes that “[a]lthough an unpublished opinion is not

binding . . . , it is persuasive authority.” United States v. Futrell, 209 F.3d 1286, 1289 (11th

Cir. 2000) (per curiam); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished

opinions are not considered binding precedent, but they may be cited as persuasive

authority.”).

judgment.” Kesinger ex rel. Est. of Kesinger v. Herrington, 381 F.3d 1243,

1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial. See Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When the non-moving party bears

the burden of proof on an issue at trial, the moving party need not ‘support its

motion with affidavits or other similar material negating the opponent’s claim,’

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d

265 (1986), in order to discharge this initial responsibility.” Gonzalez v. Lee

Cnty. Hous. Auth., 161 F.3d 1290, 1294 (11th Cir. 1998). Instead, the moving

party simply may demonstrate “that there is an absence of evidence to support

the nonmoving party’s case.” Id.

“When a moving party has discharged its burden, the non-moving party

must then go beyond the pleadings, and by its own affidavits, or by depositions,

answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations and quotation

marks omitted). Substantive law determines the materiality of facts, and

“[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.”

Anderson, 477 U.S. at 248. In determining whether summary judgment is

appropriate, a court “must view all evidence and make all reasonable inferences

in favor of the party opposing summary judgment.” Haves v. City of Miami, 52

F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale

Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

II. Background

A. Procedural History

On June 30, 2017, Stapleton filed an administrative complaint with the

Occupational Safety and Health Administration (OSHA) Regional Director

alleging CSXT engaged in retaliatory employment practices in violation of the

Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109 et seq. See Plaintiff’s

Original Complaint and Demand for Trial by Jury (Doc. 1; Complaint) at ¶ 17.

The Secretary of Labor dismissed Stapleton’s claims on February 14, 2019. Id.

at ¶ 18. Stapleton appealed the Secretary of Labor’s decision and requested

that the appeal be heard by an Administrative Law Judge. Id. at ¶ 19. On

April 11, 2019, before the Secretary of Labor had issued a final decision,

Stapleton filed his Complaint in this Court. Id. at ¶ 20.

In the Complaint, Stapleton alleges that CSXT owes him damages under

the Federal Employers Liability Act (FELA), 45 U.S.C. § 51, et seq. for an injury

he suffered on the job (Count I), and that CSXT retaliated against him for

reporting a workplace injury in violation of the FRSA, 49 U.S.C. § 20109(a)

(Count II). See Complaint at 3, 4. In the instant Motion, CSXT seeks entry

of summary judgment in its favor as to Count II of the Complaint. See Motion

at 1. CSXT argues that Stapleton cannot show that: (1) he suffered an adverse

action, (2) any alleged adverse action was retaliatory, or (3) CSXT interfered

with Stapleton’s medical treatment in violation of 49 U.S.C. § 20109(c)(1). See

Motion at 13, 16, 22. In his Response, Stapleton argues that a reasonable jury

could find that Stapleton suffered an adverse employment action. See

Response at 9. Stapleton also argues that an adverse action does not require

retaliatory motive under the FRSA but even if it does, a reasonable jury could

find CSXT had the requisite motive. See id. at 13, 16-17. Finally, Stapleton

argues that CSXT interfered with his medical treatment in violation of 49

U.S.C. § 20109(c)(1) when it provided his health insurer with information that

led to the temporary cancellation of his health insurance coverage. See id. at

18. In the Reply, CSXT elaborates on some of the arguments made in the

Motion. See generally Reply. Both parties submitted record evidence in

support of their respective positions.2

2 In support of its Motion, CSXT attached a variety of documents. Those documents

include Doc. 20-2 (Stapleton Deposition); Doc. 20-3 (Smith Deposition); Doc. 20-4 (Dr.

Heligman Deposition); Doc. 20-5 (Gennette Deposition); Doc 20-6 (Sweatt Deposition). In

support of his Response, Stapleton attached Doc. 25-2 (Stapleton Declaration); Doc. 25-3 (FRA

Reporting Guide); Doc. 25-4 (May 9, 2017 and June 6, 2017 Bayside Orthopaedic Records);

Doc. 25-5 (Railroad Enrollment Services Letter); Doc 25-6 (June 19, 2020 Bayside Orthopaedic

Records).

B. Facts3

i. Stapleton’s Injury Classification

On April 28, 2017, Stapleton was working as a signalman for CSXT.

Stapleton Deposition at 40. That day, he was demonstrating how to “make an

eye” for two junior employees. Smith Deposition at 55, 100. As he grasped a

wire with Knipex pliers and rolled it back towards him, he felt a burning pain

in his right elbow. Stapleton Deposition at 69, 73. According to Stapleton,

the pain lasted around forty-five seconds to one minute. Id. at 72.

Immediately following the incident, Stapleton expressed to his foreman, Brad

Houck, “that kind of hurt.” Id. at 73, 141. When Houck asked if Stapleton

was alright, Stapleton replied that he thought so. Id. at 74. Houck further

inquired whether Stapleton needed medical attention and Stapleton denied any

such need. Id. at 74, 77. Houck was the only supervisor that Stapleton spoke

to about the incident that day. Id. at 74. During the remaining hours of his

shift, Stapleton performed his normal signalman duties. Id. at 74-75. Once

he left the worksite, Stapleton and his team traveled to a pharmacy so he could

purchase Ibuprofen and muscle cream to help with his symptoms. Id. at 76.

3 The facts recited in this section are either undisputed, or any disagreement has been

indicated. Because this case is before the Court on CSXT’s Motion, the facts recited, and all

reasonable inferences therefrom, have been viewed by the Court in a light most favorable to

Stapleton. See T-Mobile S. LLC v. City of Jacksonville, Fla., 564 F.Supp.2d 1337, 1340 (M.D.

Fla. 2008).

The following day, while getting ready for work, Stapleton experienced

the burning pain in his elbow again. Id. at 81. This time, he decided to report

the injury to CSXT supervisor, Darryl Ball. Id. at 81, 83. Ball directed

another manager, Todd Alton, to contact Stapleton regarding the injury. Id. at

84. Stapleton described to Alton what happened, and Alton informed him that

a report would need to be completed. Id. Ball advised Stapleton to take it

easy that day, so Stapleton drove his team around the worksite. Id. at 84-85.

Ball also asked Stapleton if he needed medical attention or treatment and

Stapleton once more, declined. Id. at 85.

The next day, April 30, 2017, Stapleton reported to work in the morning

as usual and continued to drive around with his team. Id. at 86. At some

point during the workday, Tim Smith, the Regional Director of Signal

Construction, contacted Stapleton about the incident. Smith and Stapleton

discussed the incident, traveled to the site where it occurred, and filled out a

PI-1A form together. Id. at 86-87. A PI-1A form is an “Employee’s Injury

and/or Illness Report” that is completed by CSXT employees in the presence of

a manager as soon as practicable after an injury occurs. Id., Ex. 6. Stapleton

provided the following information on the form

Describe fully how the injury/illness occurred.

“After installing stepup transformers at BD635 I was asked for

eyemakers and kleins. Jarrod and Justin had never seen the

Knipex eyemakers so I demonstrated how to make an eye on the

groundwire for the transformer. As I was making the eye I felt

pain and burning in my right elbow.”

Did defective tools or equipment cause the incident?

“No.”

Did working conditions cause or contribute to the cause of the

accident/injury?

“No.”

Is anyone at fault? If yes, to what extent?

“No.”

Id. at 93, Ex. 6. Stapleton’s PI-1A form did not reflect whether Stapleton had

sought any medical attention or prescriptions for his injury as of April 30, 2017.

Id. at 98. Like the other CSXT Supervisors, Smith asked Stapleton if he

needed medical treatment and Stapleton declined once again. Id. at 88.

Stapleton recalled thinking that his elbow just needed a little bit of time so he

continued to report to work until May 2, 2017, when his job at the current

worksite was complete. Id. at 88-89.

Stapleton first sought medical treatment for his elbow on May 4, 2017,

about a week after the incident at the South Baldwin Regional Emergency

Department. Id. at 110. Stapleton testified that Smith authorized South

Baldwin to treat Stapleton that day. Stapleton Declaration at ¶ 4. In his

deposition, Smith did not recall authorizing Stapleton’s treatment but testified

that he would have intervened to make sure Stapleton received medical care.

Smith Deposition at 137. Medical professionals at South Baldwin performed a

physical examination and obtained x-rays but the x-rays did not reveal any

injury to Stapleton’s elbow. Stapleton Deposition at 110-11. The examining

physician prescribed medications and suggested that Stapleton follow up with

Dr. Determann at Bayside Orthopaedic. Id.

At the conclusion of his visit at South Baldwin, the examining physician

instructed Stapleton that he could return to work with no restrictions. Id. at

111-112. Stapleton’s discharge instructions reflected that he suffered a

“[t]endon injury.” Id. at 208. A nurse practitioner at South Baldwin signed a

completed CJ-24 form for Stapleton to provide to CSXT. Id. at 124. When an

employee requests medical treatment, the CJ-24 form is used to document the

treating physician’s initial report of the employee’s injury or illness. Id., Ex. 9.

In the box described as “History (Including Specific Location and Description of

the Incident That Caused Injury, Onset of Illness)” the form stated, “right elbow

pain - denies injury.” Id. at 207, Ex. 9 (emphasis added). The box designated for

“Diagnosis” stated, “[i]njury of muscle facia tendons of the forearm.” Id. at 124,

207, Ex. 9 (emphasis added). Later that evening, Stapleton faxed the CJ-24

form, discharge instructions, and two documents reflecting his prescriptions to

Smith. Id. at 18-20, 208; Stapleton Declaration at ¶ 6-7. By this point in time

Stapleton contends that he had communicated to CSXT that he was hurt on the

job and CSXT had statements from Stapleton’s team members regarding the

incident. Id. at 208.

As required by the FRSA, the Federal Railroad Association (FRA)

maintains a railroad accident reporting system that applies to rail carriers like

CSXT. Sweatt Deposition at 16. The FRA’s regulations on reporting

incidents under 49 C.F.R. § 225, ensure that the FRA receives “accurate

information concerning the hazards and risks that exist on the Nation’s

railroads.” FRA Reporting Guide, Preface. Although not legally required to

do so, CSXT has implemented a voluntary policy to pay for the out of pocket

expenses of employees who suffer an injury deemed to be a reportable injury

under the FRA (an “FRA reportable” injury). Dr. Heligman Deposition at 30-

31. As such, pursuant to CSXT policy, if a CSXT employee suffers an FRA

reportable injury, the employee’s medical providers can submit the invoices for

the employee’s copays and deductibles incurred from the subsequent medical

treatment to CSXT and CSXT will pay those bills. Id. at 31, 57. The railroad

carrier’s Reporting Officer makes the ultimate decision on whether a specific

incident is FRA reportable. FRA Reporting Guide at 12. However, in

determining whether an employee has suffered an FRA reportable or non-FRA

reportable injury, CSXT uses an internal committee that reviews relevant

records and comes to an agreement on difficult reporting decisions. See Sweatt

Deposition at 21.

On the morning following Stapleton’s hospital visit, May 5, 2017, Tuesdi

Sweatt, a manager from CSXT’s Compliance and Reporting Department,

emailed CSXT’s FRA Reporting Officer, Geoff Aughenbaugh, and Chief Medical

Officer, Dr. Craig Heligman, inquiring whether Stapleton suffered an FRA

reportable injury based on the PI-1A and the CJ-24 forms. See Dr. Heligman

Deposition at 10; Sweatt Deposition at 92. Dr. Heligman is also on CSXT’s

committee for injury review for FRA reportability. Dr. Heligman Deposition

at 10. Sweatt asked

Can you advise your thoughts on this one? EE on CJ-24 states

“right elbow pain-denies injury”, diagnosis is “injury of muscle facia

tendons forearm.” The PI-1A is also attached for your review.

Sweatt Deposition at 197, Ex. 8.

In response, Aughenbaugh and Dr. Heligman agreed that Stapleton’s

incident should remain classified as non-FRA reportable subject to committee

review. Sweatt Deposition, Ex. 8. Sweatt replied that she hoped to rely on

the comment, “denies injury” in the CJ-24 form as a basis for keeping the

incident non-FRA reportable without the need for committee review. Sweat

Deposition at 92, Ex. 8. Aughenbaugh agreed. Id. Thus, as of May 5, 2017,

CSXT’s initial classification of Stapleton’s incident was non-regulatory, on-

duty, non-FRA reportable. See Dr. Heligman Deposition at 25. This meant

that Stapleton’s injury did not meet the FRA reportability requirements even

though it did occur on-duty. Id.

Regarding reportability, there is a distinction between whether the injury

is on-duty or off-duty, and whether it is FRA reportable or non-FRA reportable.

Id. In his deposition, Dr. Heligman provided an example to illustrate the

difference between an on-duty injury that would be FRA reportable and one

that would be non-FRA reportable:

If an individual is in the course of doing regular work, and they

report an injury, then the injury needs to meet certain

requirements in order for it to be reportable. It’s not just when you

experience pain on the job.

So, we would have to look at what treatment was provided and

temporal factors and timing of the events as they occurred.

If someone were to, say, have a chronic pain problem to begin with,

and they brought that condition to work, and experiences pain at

work, the question is, was there a new incident that led to an

exacerbation and/or aggravation of something preexisting, or is this

the normal pattern of pain experienced. That’s one example.

If they receive treatment or lose time as a result of the injury, that

can make it an FRA reportable incident.

If the individual reports an event, does not receive treatment or

only first aid, and that first said [sic] is defined in the regulatory

guidance, they do not lose time, then it would be considered non-

reportable.

Id. at 27-28. Sweatt further explained that in determining reportability, CSXT

must evaluate whether a work-related event is a discernible cause of the injury,

not something the employee brought to the work environment. Sweatt

Deposition at 34. Notably, Section 1.3.3 of the FRA’s Guide for Reporting

Decisions states, “if there is an uncertainty as to whether to report an

accident/incident, it is recommended that a report be made.” FRA Reporting

Guide at 12.

On May 7, 2017, Stapleton, via text, informed Smith that he was not doing

better and asked for Smith’s opinion on Stapleton seeing an orthopedist.

Stapleton Declaration at ¶ 8. Smith expressed that he was sorry about

Stapleton’s condition and encouraged Stapleton to do what he needed to get

better. Id. On May 8, 2017, Stapleton attempted to schedule an appointment

at Bayside Orthopaedic, but was told that the office could not see him without

an authorization from CSXT. Id. This prompted Stapleton to seek assistance

from CSXT’s medical department. Id. Ultimately, Johnny Delk who

Stapleton identifies as the “nurse medical manager for the western region”

discussed the process of getting an appointment to be seen by an orthopedic

physician with Stapleton. Id.; Stapleton Deposition, Ex. 10; Stapleton

Declaration at ¶ 9. Delk prepared a case progress note documenting his

conversation with Stapleton

Event is listed as non-regulatory, on-duty, non-FRA. Explained to

[employee] that Safety will need to review the ER medical info.

Provided fax number and encouraged [employee] to fax all available

medical info to this office. [Employee] reports that he has UHC as

primary insurance carrier. Explained to [employee] that he should

provide his UHC insurance card to all med providers. Explained

to [employee] that he will be contacted by this office if his case is

updated to an on-duty, FRA reportable event. Encouraged

[employee] to follow up with his supervisor. [Employee] verbalized

understanding and agrees with plan.

Id.

After his conversation with Delk, Stapleton spoke to Smith on the phone

and was seen at Bayside Orthopaedic the following day. Stapleton Declaration

at ¶ 10. After Stapleton’s May 9, 2017 appointment, Delk communicated to

him that Kelly Caudill, with the CSXT Medical Department, would be

“handling [his] case until it was upgraded to reportable.” Id. at ¶ 11.

Stapleton forwarded the following documents to Caudill: a return to work light

duty letter from Dr. Determann at Bayside Orthopaedic, the CJ-24 form,

discharge instructions from South Baldwin, and a prescription from Dr.

Determann. Stapleton Deposition, Ex. 11. The substantive medical records

from South Baldwin were not included in the faxed documents. Id. at 125-26.

Other than these medical documents and a COII form, Stapleton does not recall

if he personally sent any other medical records to CSXT before July 25, 2017.

Id. at 126. When Stapleton reached out to Caudill to discuss his situation, she

referred him to Sweatt. Stapleton Declaration at ¶ 12.

Stapleton called and emailed Sweatt on May 15, 2017, and she returned

his call two days later. Id. at ¶ 13. When Stapleton inquired about the

reportability of his injury, Sweatt advised him that his incident would be up for

review with the Safety and Medical Department. Stapleton Deposition at 127;

Stapleton Declaration at ¶ 13. That same day, Sweatt emailed Aughenbaugh

explaining that she spoke with Stapleton and was going to prepare his incident

for committee review. Sweatt Deposition at 89. On May 23, 2017, Sweatt

again asked Dr. Heligman for his opinion regarding the FRA reportability of

Stapleton’s incident. Dr. Heligman Deposition at 118. The next day, Dr.

Heligman responded that it was “hard to say” and suggested that Sweatt

request further records before a committee review. Id. at 118-119. A day

later, on May 25, 2017, Sweatt sent a medical records request to South Baldwin

Regional Medical Center and Bayside Orthopaedic. Sweatt Deposition at 55,

Exs. 11,12. Sweatt received the complete South Baldwin Emergency

Department records on June 29, 2017, but noted in Stapleton’s file that she was

still awaiting “ortho records.” Sweatt Deposition at 62-63, 72.

On July 3, 2017, Robert Crawford from the FRA first contacted CSXT to

obtain additional documentation pertaining to Stapleton’s incident. Sweatt

Deposition, Ex. 6(a). Sweatt provided Crawford with a F6180.98 form on July

10, 2017. Id. An F6180.98 is a non-reportable injury form that CSXT had

signed on April 29, 2017, and kept in Stapleton’s file. Sweatt Deposition at 26-

27. Sweatt informed Crawford that CSXT had not made a final decision about

Stapleton and was still awaiting medical records. Sweatt Deposition, Ex. 6(a).

Crawford expressed that he understood. Id.

On July 25, 2017, Sweatt apprised Dr. Heligman of the FRA’s request and

emailed Dr. Heligman Stapleton’s hospital records. Dr. Heligman Deposition,

Ex. 14. She also forwarded Dr. Heligman Stapleton’s orthopedic records that

CSXT had since received. Id. at 72, 88-89 Sweatt recommended that the

committee conduct a review of Stapleton’s case as long as Dr. Heligman thought

that they finally had the requisite information to make a decision. Id., Ex. 14.

Stapleton’s incident, along with four others, went to the committee for review.

Sweatt Deposition, Ex. 5. On July 26, 2017, the committee, on Dr. Heligman’s

recommendation, updated the classification of Stapleton’s incident to FRA

reportable. Id. at 36. Sweatt notified Crawford of the change and explained,

“[w]e only had a CJ-24 that had no lost time, and that stated the ‘employee

denied’ injury, so therefore we felt we needed further medical records to make

an informed decision.” Id., Ex. 6.

As a result of CSXT initially classifying Stapleton’s injury as non-FRA

reportable in the beginning of May, Stapleton incurred out of pocket copays and

deductibles amounting to a total of $1,200. Stapleton Deposition at 149.

CSXT informed Stapleton that CSXT’s Medical Department would reimburse

these out-of-pocket expenses if he followed the applicable procedures. Id. at

150. Despite this offer from CSXT, Stapleton did not seek reimbursement

because he felt the procedure was excessive and “doesn’t seem right.” Id. at

150-51. Stapleton’s understanding of the procedure was that all of his doctors

and health care providers would have to submit their bills to CSXT, CSXT

would pay the providers, and Stapleton could then seek reimbursement from

his providers of the amounts he previously paid. Id. at 151. CSXT can only

reimburse Stapleton if his medical providers submit invoices directly so that

CSXT has “the proper documentation to submit to the insurance company.”

See Dr. Heligman Deposition at 115. Had Stapleton’s injury been classified as

FRA reportable at the outset, his medical providers still would have been

required to submit invoices to CSXT before CSXT would have undertaken

paying for Stapleton’s copays and deductibles. Id. at 31. Dr. Heligman

maintains that without this process, “any employee at any moment in time

could send an invoice for whatever amount they want, here, CSX[T], pay his

bill; [CSXT] won't know that it was for an on-duty injury or not.” See id. at

113.

ii. Temporary Cancellation of UHC Insurance Coverage

On or around May 9, 2017, Stapleton began taking medical leave from

CSXT as a result of the April 28, 2017 incident. Stapleton Deposition at 113.

He did not notify CSXT’s payroll department that he was taking medical leave

because according to Stapleton, CSXT did not communicate to him that it was

his responsibility to do so. Id. at 115-116. In a letter dated June 15, 2017,

UHC’s Railroad Enrollment services advised Stapleton that his health

insurance coverage had been cancelled. Id. at 136-37; Gennette Deposition,

Ex. 5; Response at 6. According to the letter, Stapleton’s health insurance

coverage with UHC ended on May 31, 2017. Gennette Deposition at 38-39.

CSXT’s Senior Manager of payroll, Paula Gennette, described the

circumstances surrounding the cancellation of Stapleton’s health insurance

coverage in her deposition

In terms of UHC coverage, if you are listed as an HR status as active

in our system and the employee does not make the company aware

that they are on a leave of absence and your status isn’t changed, if

you have no pay within the month and are still listed in an active

status, UHC denotes you as not being eligible for coverage. In Mr.

Stapleton’s case, UHC said there was no break in benefits.

Id. at 6. CSXT sends a file to UHC listing which employees are eligible for

coverage. Id. at 27-28. Because Stapleton was an active employee without

pay in the payroll system, instead of on leave, Stapleton was listed as ineligible.

Id.

On June 20, 2017, Dr. Determann suggested that Stapleton undergo

surgery on his right elbow. Stapleton Deposition at 163-64, 230. The surgery

would be an outpatient procedure and was to be “set up at [Stapleton’s]

convenience.” Id. at 163. On June 30, 2017, Stapleton reached out to several

CSXT employees to notify them that his health insurance coverage was

cancelled. See Gennette Deposition at 28; Stapleton Deposition at 137-38.

Stapleton delayed his surgery because he did not have the means to pay for it

without his health benefits from CSXT. Stapleton Deposition at 136.

According to Genette, CSXT immediately took steps to reinstate

Stapleton’s health insurance coverage with UHC. Gennette Deposition at 27-

28; Smith Deposition at 41. Indeed, once Stapleton had notified CSXT of the

issue, it was resolved in about a day. See Smith Deposition at 140. A union

representative contacted Stapleton to tell him that his insurance coverage had

been restored. Stapleton Deposition at 139. According to UHC, Stapleton’s

coverage was retroactively reinstated resulting in no break in coverage.

Gennette Deposition at 21. Nevertheless, because his health insurance was

temporarily cancelled, Stapleton had to delay his surgery by a week to ten days.

Stapleton Deposition at 139. The surgery ultimately occurred on July 5, 2017,

15 days after Dr. Determann first recommended Stapleton undergo the surgical

procedure. Id. at 135, 230.

III. Discussion

A. Interference with Medical Treatment under 49 U.S.C. §

20109(c)(1)

Before addressing the merits of Stapleton’s claims, the undersigned first

identifies which claims under the FRSA are properly before the Court. In the

Motion for Summary Judgment, CSXT notes that Stapleton makes a conclusory

statement that CSXT “interfered with [his] medical treatment.” Motion at 22

(quoting Complaint at ¶ 33). Then, in what appears to be an abundance of

caution, CSXT proceeds to argue that it is entitled to summary judgment as to

this claim. In doing so, when identifying the relief it seeks, CSXT requests

“this Court [] grant summary judgment as to any claim by Plaintiff that CSXT

denied, delayed, or interfered with Plaintiff’s medical treatment,” as opposed to

affirmatively acknowledging that a claim for interference with medical

treatment is pled in the Complaint. See id. at 24 (emphasis added).

Upon careful review of the Complaint, the Court determines that

Stapleton failed to present the Court with a claim that CSXT interfered with

his medical treatment in violation of 49 U.S.C. § 20109(c)(1). In his Complaint,

Stapleton sets forth two “Causes of Action.” See generally Complaint. He

entitles the first as “Count One: FELA Injury Claims (45 U.S.C. § 51, et seq.)”

and the second as “Count Two: Retaliation Claims (49 U.S.C. § 20109(a)).” Id.

at 3, 4. In Count Two, Stapleton asserts that he engaged in a protected activity

that contributed to “the following adverse actions taken by CSX[T] . . .”

(a) determining that Plaintiff’s April 28, 2017, on-the- job injury

was not work related;

(b) forcing Plaintiff to use his personal health insurance

thereby requiring him to pay certain copays and deductibles

that would have otherwise been paid by CSXT had they

determined his on-the-job injury to be work-related.

Id. at ¶ 35. He asserts that he suffered damages as a result of those actions.

Id. at ¶ 36. While in identifying the damages he seeks for the retaliation claim

in Count Two, Stapleton asserts that he “seeks damages for retaliation,

embarrassment and interference with medical treatment and intimidation

pursuant to the FRSA” nowhere does he suggest that he is asserting a separate

claim for interference with his medical treatment under 49 U.S.C. § 20109(c).

See id. at ¶ 33.

Notably, 49 U.S.C. § 20109 provides three distinct protections for railroad

employees. In subsection (a), the provision cited by Stapleton, the statute

generally prohibits a railroad employer from discriminating against an

employee who engages in protected activity. See 49 U.S.C. § 20109(a). In

subsection (b), the statute protects employees against discrimination or

retaliation in connection with concerns regarding “Hazardous Safety or

Security Conditions.” See 49 U.S.C. § 20109(b). And in subsection (c), the

statute prohibits a railroad carrier from delaying or interfering with medical

treatment of an employee injured in the course of employment and prohibits the

railroad from disciplining an employee for seeking medical treatment. See 49

U.S.C. § 20109(c). Each of these subsections addresses specific distinct

conduct by both the employee and the railroad employer.

Notably, Stapleton did not cite or otherwise mention 49 U.S.C. §

20109(c)(1), the relevant provision prohibiting interference with medical

treatment under the FRSA, anywhere in his Complaint. See generally

Complaint. Indeed, in Count Two, he specifically cites only to § 20109(a),

asserts that he engaged in protected activity, and identifies the ways in which

CSXT retaliated against him for doing so in violation of § 20109(a). Id. at 4-5.

Nothing in this count suggests a violation of subsection(c)(1). Moreover,

because subsection (c)(1) of § 20109 governs conduct different than that

prohibited in subsection (a), if Stapleton meant to plead these two different

causes of action he would have needed to plead them in different counts. See

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1322-23 n. 13 (11th

Cir. 2015) (collecting cases). Indeed, Rule 10(b), requires that: “[i]f doing so

would promote clarity, each claim founded on a separate transaction or

occurrence...must be stated in a separate count or defense.” See Rule 10(b); see

also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366

(11th Cir. 1996) (explaining that a properly drawn complaint “will present each

claim for relief in a separate count, as required by Rule 10(b), and with such

clarity and precision that the defendant will be able to discern what the plaintiff

is claiming and to frame a responsive pleading” (internal footnote omitted)).

More importantly, the facts which Stapleton contends support his

interference with medical treatment claim are entirely absent from the

Complaint. See generally Complaint. In opposing CSXT’s Motion, Stapleton

argues that CSXT interfered with and delayed his medical treatment when it

provided UHC with information that led to the temporary cancellation of his

health insurance coverage and delayed his surgery. See Response at 19.

However, nowhere in the Complaint does Stapleton allege that CSXT reported

him as ineligible for health care benefits, nor does he allege that his health

insurance benefits were terminated at any time. See generally Complaint.

To the contrary, Stapleton unequivocally states that he and his family had

health insurance coverage. See id. at ¶ 13 (“Plaintiff, as part of his employee

benefits, had health coverage for his wife and himself.”). Stapleton also alleges

that CSXT acted improperly by forcing him to use his health insurance

coverage, not that CSXT caused his health insurance benefits to be terminated.4

Also, Stapleton never alleges that he had to have surgery much less that his

surgery had to be delayed as a result of the temporary cancellation of his

insurance benefits. In sum, none of the facts on which Stapleton relies to argue

that he has presented a claim that CSXT interfered with his medical treatment

in violation of § 20109(c)(1) are actually set forth in the Complaint.

Eleventh Circuit precedent precludes a plaintiff from amending its

complaint through argument at the summary judgment phase of the

proceedings. See Flintlock Constr. Servs., LLC v. Well-Come Holdings, LLC,

710 F.3d 1221, 1228 (11th Cir. 2013); see also Miccosukee Tribe of Indians of

Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013) (explaining that the

district court improperly disregarded the allegations of the complaint and, in

effect, treated the complaint as though it had been amended to conform to

statements in the plaintiff’s response to the summary judgment motion). For

example, in Flintlock, the Eleventh Circuit criticized a district court for

addressing a plaintiff’s argument for insurance coverage based on estoppel,

4 “Forcing Plaintiff to use his health insurance coverage and pay said out-of-pocket costs,

was an illegal, improper adverse act within the meaning of the FRSA and was threatening,

retaliatory and done to intimidate Plaintiff and others so that Plaintiff and others would not

report accidents and injuries in the future.” Complaint at ¶ 14.

even where the defendant did not object, because the claim was first raised at

summary judgment and not included in the complaint. 710 F.3d at 1226-28

(“This Court’s precedent foreclosed [plaintiff’s] attempt to amend its complaint

at the summary judgment stage without seeking leave of court pursuant to Rule

15(a)(2).”). Here, Stapleton’s argument that CSXT interfered with his medical

treatment under 49 U.S.C. § 20109(c)(1) is an improper attempt to amend the

Complaint at summary judgment. Id. at 1228; see also Merle Wood & Assocs.,

Inc. v. Trinity Yachts, LLC, 714 F.3d 1234, 1238 (11th Cir. 2013);

GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1258-59 (11th Cir. 2012);

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004) (“A

plaintiff may not amend [its] complaint through argument in a brief opposing

summary judgment.”); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286, 1296 (11th Cir. 2006).

The Eleventh Circuit Court of Appeals’ recent decision in Monaghan v.

Worldpay US, Inc., is particularly instructive here. See 955 F.3d 855, 859

(11th Cir. 2020). In Monaghan, the Eleventh Circuit prohibited the plaintiff

from adding retaliation claims at summary judgment when she only pled claims

under the anti-discrimination provisions of the applicable statutes in her

complaint. Id. In the defendant’s motion for summary judgment, the

defendant proceeded as if the plaintiff had plead retaliation claims under 42

U.S.C. § 1981 (§ 1981) and the Age Discrimination in Employment Act (ADEA),

29 U.S.C. § 623 et seq., in addition to Title VII of the Civil Rights Act of 1964

(Title VII), 42 U.S.C. § 2000e et seq. and sought summary judgment as to those

claims. See Defendant’s Memorandum of Law in Support of its Motion for

Summary Judgment at 1, 23, Monaghan v. Worldpay US, Inc., No. 1:16-CV-

0760-CC (N.D. Ga. 2017) (Doc. 54) (“Plaintiff alleges . . . that she was subjected

to retaliation for allegedly reporting age and race discrimination.”). In

response, the plaintiff similarly proceeded as if she had asserted these

retaliation claims in the operative pleading. See Monaghan, 955 F.3d at 859.

On appeal, the Eleventh Circuit observed

Count II of Ms. Monaghan’s complaint asserted a Title VII

retaliation claim against Worldpay. Count III, a claim under 42

U.S.C. § 1981 for unlawful racial discrimination, mentioned

retaliation in passing but only in a concluding paragraph alleging

that Worldpay was liable for damages. Count V, a claim for

unlawful age discrimination under the Age Discrimination in

Employment Act, 29 U.S.C. § 623 et seq., did not mention retaliation

at all and did not cite to the Act’s anti-retaliation provision, § 623(d)

(internal citations omitted).

Id. Despite both parties having treated the Complaint as if it contained

retaliation claims under § 1981 and the ADEA at summary judgment, the

Eleventh Circuit found that any such claims were not pled in the complaint and

declined to address them on appeal. Id. (citing Miccosukee, 716 F.3d at 559).

Similar to the parties in Monaghan, at the summary judgment stage both

CSXT and Stapleton proceed as if Stapleton’s Complaint potentially includes a

claim for interference with medical treatment under 49 U.S.C. § 20109(c)(1).

See Motion at 22-34; see also Response at 18-19; see also Reply at 9-10.

However, upon review of the Complaint, the Court has determined that he

actually asserted no such claim. Stapleton only mentions the terms

“interference with medical treatment” in a conclusory sentence in a paragraph

seeking damages under the heading, “Count Two: Retaliation Claims (49 U.S.C.

§ 20109(a)).” Complaint at 4. He does not cite the interference with medical

treatment provision under the FRSA and does not allege the factual predicate

of the supposed claim. See generally id. As such, Stapleton did not plead a

claim under 49 U.S.C. § 20109(c)(1) for interference with medical treatment in

the Complaint and the Court will not permit Stapleton to amend his complaint

to include such a claim at summary judgment. Thus, to the extent CSXT seeks

summary judgment on this claim, the Motion is due to be granted.

B. Retaliation under 49 U.S.C. § 20109(a)

In Count II of his Complaint, Stapleton generally alleges that in response

to his reporting of a workplace injury, CSXT retaliated against him in violation

of 49 U.S.C. § 20109(a)(4) by embarrassing and intimidating him, interfering

with his medical treatment, and misclassifying his injury. See Complaint at ¶

33-36. Specifically, he argues that CSXT retaliated against him when its

employees accused him of dishonesty and the payroll department temporarily

cancelled his health insurance benefits causing him to delay his surgery by a

week to ten days. See Response at 13. In addition, he contends CSXT

retaliated against him when it initially classified his injury as non-FRA

reportable deferring payment of his copays and deductibles for a period of less

than three months until CSXT updated the classification and offered

reimbursement. See id.

The FRSA was enacted to promote railroad safety and reduce accidents

and incidents. 49 U.S.C. § 20101. Congress subsequently added the anti-

retaliation provisions of the act to protect railroad employees who notify

authorities about violations of federal safety regulations pertaining to railroad

operations. Guerra v. Consol. Rail Corp., 936 F.3d 124, 127 (3d Cir. 2019)

(citations omitted). The relevant portion of the FRSA’s anti-retaliation

provision provides that a railroad carrier

may not discharge, 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 . .

. to notify, or attempt to notify, the railroad carrier or the Secretary

of Transportation of a work-related personal injury or work-related

illness of an employer.

49 U.S.C. § 20109(a), (a)(4). A prima face case of retaliation under the FRSA

requires a showing that (1) the employee engaged in a protected activity; (2) the

railroad carrier knew or suspected that the employee engaged in the protected

activity; (3) the employee suffered an adverse action; and (4) the circumstances

permit an inference that the protected activity was a contributing factor in the

adverse action. 29 C.F.R. § 1982.104(e)(2); see also 49 U.S.C. § 20109(d)(2)(A)

(incorporating by reference the rules and procedures set forth in 49 U.S.C. §

42121(b)). If the employee establishes a prima facie case of retaliation, then

the railroad carrier can avoid liability if it can show, by clear and convincing

evidence, that it would have taken the same adverse action in the absence of

plaintiff’s protected activity. 29 C.F.R. § 1982.104(e)(4); Armstrong v. BNSF,

880 F.3d 377, 381 (7th Cir. 2018).

Stapleton generally asserts that CSXT retaliated against him by

embarrassing him, intimidating him, and humiliating him. Complaint at ¶ 33,

36. While it is not entirely clear from the allegations in the Complaint, it

appears from his deposition testimony that Stapleton is asserting that CSXT

embarrassed, intimidated, and humiliated him by accusing him of dishonesty.

Stapleton Deposition at 152. Assuming, without deciding, that merely being

accused of dishonesty can amount to an adverse employment action under the

FRSA, the evidentiary record before the Court presents no factual basis to

support this claim. The evidentiary record does show that Stapleton felt he

was being called dishonest when CSXT initially classified his incident as non-

FRA reportable. Id. at 145. He also testified that the misclassification “made

it seem like he was a liar.” Id. at 144. Stapleton more specifically claims that

he was made to feel dishonest by Delk. Id. at 152. He described that

conversation as follows

In one of my conversations with Delk, when I was trying to

understand why my injury was not being seen as FRA reportable,

he explained it to me as if I had gone to lunch and while on lunch I

was reading a newspaper. When my lunch ended, I was done with

the newspaper, so I decided to burn the newspaper. And in

burning the newspaper, caught myself on fire. He’s like you were

hurt at work, but you weren’t hurt while working.

Id. at 152-53. However, Stapleton has not provided the Court with any

evidentiary support for the allegation that any CSXT employee ever accused

him of dishonesty. Viewing the facts in a light most favorable to Stapleton, no

reasonable juror could infer from this conversation that Delk was accusing

Stapleton of dishonesty. While Delk is giving an example of how an incident

can occur at work yet still not constitute an FRA reportable injury, he suggests

no dishonesty. Although Stapleton may well have felt that he was being

accused of dishonesty when CSXT did not immediately classify his injury as

FRA reportable, the record reflects that this sentiment is a result of a

misunderstanding on his part – but not on any statement or action by CSXT.

As Dr. Heligman explained, there is a difference between whether an injury

occurred “on-duty” or “at work” and whether that injury is FRA reportable. Dr.

Heligman Deposition at 25. Stapleton does not suggest that anyone at CSXT

ever accused him of misrepresenting how or when the injury occurred, only that

its classification of the injury as non-FRA reportable made him feel he was

being accused of dishonesty. Stapleton’s feelings notwithstanding, they are

not sufficient to support a claim that CSXT engaged in any retaliatory conduct.

Stapleton also fails to present any factual basis to support a claim that

CSXT retaliated against him by causing his health insurance coverage to be

temporarily cancelled. The undisputed record establishes that pursuant to

CSXT policy, employees are responsible for notifying the payroll department

when they are on leave. See Sweatt Deposition at 10. While Stapleton

asserts that he was not aware he was supposed to notify the payroll department

that he was on medical leave, Response at 6, he does not dispute that CSXT

company policy required him to do so. Stapleton also does not dispute that it

was his failure to notify CSXT that he was on leave that caused the temporary

discontinuation of his health insurance benefits. In fact, at his deposition,

Stapleton conceded that he does not know why his health insurance was

cancelled and that he lacks any evidence that CSXT had UHC cancel his

insurance as a way to retaliate against him. Stapleton Deposition at 140-41.

At this, the summary judgment stage, Stapleton may not rest upon the

mere allegations of his pleadings. See Rice-Lamar v. City of Ft. Lauderdale,

232 F.3d 836, 840 (11th Cir. 2000). Rather, Stapleton must “go beyond the

pleadings, and by [his] own affidavits, or by depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that

there is a genuine issue for trial.” Jeffery, 64 F.3d at 593-94 (internal citations

and quotation marks omitted). Stapleton has failed to do so here. Therefore,

summary judgment is to be entered in favor of CSXT with respect to any claim

that CSXT accused Stapleton of dishonesty or caused Stapleton’s health

insurance coverage to be temporarily cancelled in retaliation against him for

reporting his workplace injury.

Last, Stapleton alleges that CSXT retaliated against him by delaying his

receipt of a voluntary benefit that CSXT provides employees that suffer FRA

reportable injuries. Complaint at ¶ 35. Specifically, Stapleton alleges that

CSXT’s provisional determination that his workplace injury was non-FRA

reportable prevented him from having his copays and deductibles covered by

CSXT for just under three months until CSXT updated the injury classification

to FRA reportable and offered to reimburse him. See id. CSXT contends that

the initial classification of Stapleton’s injury, which ultimately resolved in his

favor, does not amount to an adverse employment action. Motion at 13.

CSXT argues that in determining whether Stapleton suffered an adverse action,

the Court should apply the definition of adverse action from Burlington, in

reference to the United States Supreme Court decision interpreting the term

adverse action in the context of a retaliation claim under Title VII. Id. (quoting

Burlington N. & Santa Fe Ry. Co., 548 U.S. 53, 59 (2006)). CSXT cites to

several federal district courts that have applied the Burlington standard to

FRSA retaliation claims such as Sirois v. Long Island R.R. Co., 2018 WL

8963528, at *1 (E.D. N.Y. Aug. 24, 2018) aff'd on other grounds, 797 F. App'x 56

(2d Cir. 2020), Short v. Springfield Terminal Ry. Co., Civ. No. 2:16-CV-74-DBH,

2017 WL 3203391, at *1 (D. Me. July 26, 2017), Brisbois v. Soo Line R.R. Co.,

124 F. Supp. 3d 891, 902 (D. Minn. 2015), and Renzi v. Union Pacific R.R. Co.,

Case No. 16 C 2641, 2018 WL 3970149, at *4 (N.D. Ill. Aug. 20, 2018)). See id.

Under Burlington, to rise to the level of an adverse action the retaliatory

act must be a “materially adverse” action, meaning an action that “well might

have dissuaded a reasonable worker from [engaging in the protected activity].”

Burlington, 548 U.S. at 68; Juback v. Michaels Stores, Inc., 143 F.Supp.3d 1195,

1206 (M.D. Fla. 2015). CSXT argues that no reasonable juror could find that

temporarily classifying Stapleton’s injury as non-FRA reportable such that he

had to pay for his copays and deductibles for less than three months and

subsequently amending the classification to reportable and offering to

reimburse Stapleton for any out-of-pocket costs he had incurred, would

dissuade a reasonable worker from reporting an injury. See Motion at 13-15.

In his Response, Stapleton argues that the Court should instead apply

the Williams definition of an adverse action. See Response at 9 (citing

Williams v. Am. Airlines, Inc., ARB Case No. 09-018, ALJ Case No. 2007-AIR-

004, 2010 WL 5535815 (DOL Adm. Rev. Bd.) (Dec. 29, 2010)). In Williams, the

Administrative Review Board (ARB) defined adverse actions as “unfavorable

employment actions that are more than trivial, either as a single event or in

combination with other deliberate employer actions alleged.” See Williams v.

Am. Airlines, Inc., ARB Case No. 09-018, ALJ Case No. 2007-AIR-004, 2010 WL

5535815, at *7. Stapleton contends that the Court should apply the Williams

definition in evaluating the sufficiency of his retaliation claim under the FRSA

because it was expressly adopted by the ARB as applied to FRSA claims in

Fricka v. Nat’l R.R. Passenger Corp., ARB Case No. 14-047, ALJ Case No. 2013-

FRS-035, 2015 WL 7904894 (DOL Adm. Rev. Bd.), at *4-5 (Nov. 24, 2015). See

Response at 9-10. In support of applying the “more than trivial” standard

established in Williams, the ARB in Fricka examined the language preceding

the term “discriminate against” in the FRSA provision prohibiting retaliation.

See Fricka, ARB Case No. 14-047, ALJ Case No. 2013-FRS-035, 2015 WL

7904894, at *4. The ARB emphasized that under the FRSA, “[a] railroad

carrier may not discharge, demote, suspend, reprimand, or in any other way

discriminate against an employee if such discrimination is due” to the

employee’s engagement in protected conduct, including reporting a workplace

injury. See 49 U.S.C. § 20109(a) (emphasis added). The ARB found that the

inclusion of in any other way before discriminate against, suggested a clear

congressional intent to prohibit a broader spectrum of adverse actions under

the FRSA than under Title VII. See Fricka, ARB Case No. 14-047, ALJ Case

No. 2013-FRS-035, 2015 WL 7904894, at *4. The ARB explained:

Evaluating the respective statutory language of SOX5, AIR 216, and

FRSA, we conclude that the Williams definition of adverse

personnel action also applies to FRSA claims. FRSA, which

prohibits “discharge[ing], demote[ing], suspend[ing],

reprimand[ing], or in any other way discriminat[ing] is virtually

identical to the relevant broad statutory language in SOX (in any

manner discriminat[ing]”) and even broader than that of AIR 21.

Id. Because the ARB applies the “more than trivial” standard to statutes like

SOX and AIR 21, and the FRSA contains even broader statutory language than

AIR 21, the ARB in Fricka reasoned that the lenient, “more than trivial”

standard should apply to the FRSA. See id. Applying the Williams definition

of the term “adverse employment action,” Stapleton asserts that the temporary

classification of his injury as non-FRA reportable resulting in his having to pay

for his copays and deductibles out of pocket for over two months before being

offered reimbursement through an “excessive” procedure is “more than trivial.”

See Stapleton Deposition at 151; see also Response at 9-13. Alternatively, even

if the Court applies the Burlington standard, Stapleton maintains that

“material adversity is a question of fact for the jury so long as a reasonable jury

could answer it either way.” Response at 12.

5 SOX refers to the whistleblower provisions of the Sarbanes Oxley Act in which

companies cannot “discharge, demote, suspend, threaten, harass, or in any other manner

discriminate against” employees who engage in protected activity. 18 U.S.C. § 1514A

(emphasis added).

6 AIR 21 refers to the Wendell H. Ford Aviation Investment and Reform Act which

prohibits retaliation against air carrier industry employees. The language in AIR 21 states,

otherwise discriminat[ing]. 49 U.S.C. § 42121(a).

The Court recognizes the existence of some authority supporting the

application of either the Burlington definition or the Williams definition to

retaliation claims under the FRSA. Because the Eleventh Circuit has not

addressed the specific question of what the definition of an adverse action is in

the context of the FRSA, the Court's decision is informed by persuasive

authority from district courts that have considered the issue, as well as an

analysis of the relevant statutes.

Since the ARB’s decision in Fricka, some federal district courts have

adopted its holding and applied the “more than trivial standard” to retaliation

claims brought pursuant to the FRSA. See Perez v. BNSF Ry. Co., No. 18-

00239-CV-W-BP, 2019 WL 4888627, at *3 (W.D. Mo. July 10, 2019); see also

Thomas v. Union Pac. R.R. Co., 203 F. Supp. 3d 1111, 1120 (D. Or. 2016). In

Perez, the Western District of Missouri noted that while the United States

Supreme Court had interpreted “adverse action” under Title VII, neither the

Eighth Circuit Court of Appeals nor the United States Supreme Court had the

opportunity to interpret adverse action under the FRSA. Perez, No. 18-00239-

CV-W-BP, 2019 WL 4888627, at *3. Without any significant analysis of the

issue, and acknowledging a comparable amount of conflicting authority, the

court concluded that the “weight of authority follows the Williams standard and

interprets the ‘adverse action’ broadly under the FRSA.” Id.

In addition to citing to Fricka, the court cited Thomas from the District of

Oregon in which the court expressly rejected Burlington as applied to the FRSA

and concluded that the ARB’s holding in Fricka establishes the definition of an

adverse action. 203 F. Supp. 3d at 1120. The Perez court also cited two

federal district court decisions published prior to the ARB’s decision in Fricka

that did not cite to the Williams “more than trivial” standard directly, but

acknowledged that the FRSA is intended to offer broader protection. See

Blackorby v. BNSF Ry. Co., No. 13-CV-00908-FJG, 2015 WL 58601, at *3 (W.D.

Mo. Jan. 5, 2015); see also Heim v. BNSF R. Co., No. 8:13-CV-369, 2015 WL

5775599, at *3 (D. Neb. Sept. 30, 2015), aff'd sub nom. Heim v. BNSF Ry. Co.,

849 F.3d 723 (8th Cir. 2017).

Despite the existence of this authority supporting the application of the

Williams standard to retaliation claims brought under the FRSA, the Court

finds that the weight of the authority as well as the language of the relevant

anti-retaliation statutes support a conclusion that that the Burlington

definition of adverse action under Title VII should be applied to retaliation

claims under the FRSA. The anti-retaliation provisions under both Title VII

and the FRSA prohibit an employer from discriminating against an employee

who engages in a protected activity. Specifically, Title VII’s anti-retaliation

provision states, “[i]t shall be unlawful employment practice for an employer to

discriminate against any of his employees or applicants for employment . . . ”

for opposing any unlawful employment practice or participating in an

investigation. See 42 U.S.C. § 2000e-3(a). The FRSA’s provision states, “[a]

railroad carrier “may not discharge, demote, suspend, reprimand, or in any

other way discriminate against an employee if such discrimination is due” to

the employee’s engagement in protected conduct, including reporting a

workplace injury. See 49 U.S.C. § 20109(a) (emphasis added).

While the Eleventh Circuit has not had cause to consider whether to apply

the Burlington definition of adverse action to the FRSA, it has applied the

Burlington standard to other similarly worded anti-retaliation statutes. See

Smith v. Haynes & Haynes P.C., 940 F.3d 635, 648 (11th Cir. 2019) (applying

the Burlington standard in a retaliation claim under the Fair Labor Standards

Act of 1938 § 15 (FLSA), 29 U.S.C. § 215(a)(3)); see Barnett v. Athens Reg’l Med.

Ctr. Inc., 550 F. App’x 711, 713-14 (11th Cir. 2013) (applying Burlington in

retaliation claims under Title VII, the ADEA, and § 1981); see Burgos v.

Napolitano, 330 F. App’x. 187, 189-90 (11th Cir. 2009) (applying Burlington in

evaluating a retaliation claim under the Rehabilitation Act, 29 U.S.C. § 791 et

seq., which incorporates the anti-retaliation provisions of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12203(a)) (citations omitted). Notably, the

FLSA anti-retaliation provision states, “No employer shall discharge or in any

manner discriminate . . . ” 29 U.S.C. § 218c. This language, “in any manner

discriminate” is substantively indistinguishable from the FRSA’s, “in any other

way discriminate” language. See 49 U.S.C. § 20109(a). Because the Eleventh

Circuit did not find that the inclusion of the phrase, in any manner in the FLSA,

required it to depart from the Burlington standard in Smith, the Court is not

convinced that the inclusion of the phrase, in any other way in the FRSA,

requires it to depart from the Burlington standard here.

Moreover, most federal courts that have considered a retaliation claim

under the FRSA have found that the definition of the term adverse action from

Burlington in the context of Title VII should apply to the FRSA. See Shearrer

v. Norfolk S. Ry. Co., No. 2:19-CV-01062-JHE, 2021 WL 871356, at *5 (N.D. Ala.

Mar. 9, 2021); see also McCarty v. Norfolk S. Ry. Co., No. 2:18CV21, 2019 WL

8888163, at *1 (E.D. Va. Feb. 7, 2019); see also Short, No. 2:16-CV-74-DBH,

2017 WL 3203391, at *2; see also Jones v. BNSF Ry. Co., No. 14-2616-JAR-

KGG, 2016 WL 183514, at *6, n. 36 (D. Kan. Jan. 14, 2016); see also Petronio v.

Nat'l R.R. Passenger Corp., No. 19-CV-144 (JSR), 2019 WL 4857579, at *6

(S.D.N.Y. Oct. 2, 2019), aff'd, 836 F. App'x 39 (2d Cir. 2020) (applying

Burlington under the FRSA and finding “this approach is consistent with how

various other district courts addressed the issue in the FRSA context) (quoting

Renzi, 2018 WL 3970149, at *4-5 and Brisbois, 124 F. Supp. 3d at 903).

Many of the courts that applied Burlington to define an adverse action in

the context of an FRSA retaliation claim have reasoned that Title VII contains

substantially similar language to the FRSA. See McCarty, 2019 WL 8888163,

at *1; see also Short, No. 2:16-CV-74-DBH, 2017 WL 3203391, at *2; see also

Renzi, No. 16 C 2641, 2018 WL 3970149, at *4; see also Sirois, 2018 WL

8963528, at *3. For example in McCarty, the plaintiff alleged that he was

disciplined by his railway employer for reporting excessive alcohol use by other

employees and that his employer permitted other employees to engage in

retaliatory harassment against him in violation of the FRSA. McCarty, 2019

WL 8888163, at *1. The defendant moved for summary judgment as to the

plaintiff’s retaliatory harassment claim, arguing that the plaintiff did not suffer

an adverse employment action. Id. at *15. In determining whether the

plaintiff alleged harassment sufficient to support a claim for retaliation under

the FRSA, the court held that the Burlington standard of material adversity

applied. Id. The court found that “the anti-retaliation provision at issue

in Burlington contains similar language to the FRSA, in that it prohibits an

employer from “discriminat[ing] against” an employee for engaging in a

protected activity.” Id. (Comparing 42 U.S.C. § 2000e—3(a) with 49 U.S.C.A.

§ 20109). In Short, the court similarly reasoned that the anti-retaliation

language in Title VII, particularly the terms “discriminate against,” parallel the

language in the FRSA and thus the Burlington definition of an adverse action

should apply. See No. 2:16-CV-74-DBH, 2017 WL 3203391, at *2. And in

Renzi the court relied on Burlington in the context of an FRSA retaliation claim

for the same reason. See No. 16 C 2641, 2018 WL 3970149, at *4 (finding

persuasive that the language in the FRSA is “quite similar” to Title VII in

applying the Burlington definition of adverse action). Id.

In Sirois,7 the court expressly rejected the ARB’s interpretation in Fricka.

No. 18-CV-3346 (BMC), 2018 WL 8963528, at *3. The court found that it did

not need to defer to the ARB’s interpretation of “the term ‘discriminate against’

[because it] is not ambiguous when examined within the broader context of

similar anti-retaliation statutes.” Id. at *4. Similar to the Eleventh Circuit’s

application of Burlington to other statutes, the court emphasized that the

Second Circuit applies the Burlington standard to define adverse actions under

other anti-retaliation provisions such as those found in the ADEA, FMLA, and

the ADA. Id. at *2-3. The court found no distinctions between the

“discriminate against” language in each of the statutes to warrant the

application of a different definition than the one identified in Burlington. Id.

at *3.

In consideration of the foregoing authority, the Court is persuaded that

where Title VII and the FRSA share a common purpose of protecting employees

from retaliation for exercising their rights provided by statute, and where the

language in these statutes is substantially similar, the United States Supreme

Court’s standard for defining an adverse action under Title VII should also

7 The Court recognizes that the Second Circuit ultimately affirmed the Eastern District

of New York on grounds other than the adverse action prong, as pointed out by Stapleton in

his Response, and that the Second Circuit’s analysis regarding Burlington as applied to the

FRSA is merely dicta. Notwithstanding, the Court finds its examination of comparable

statutes that apply Burlington helpful to its present analysis.

apply to the FRSA. Thus, in the instant action brought under the FRSA, the

Court must determine whether a reasonable jury could find that CSXT’s actions

“well might have dissuaded a reasonable employee from reporting their injury.”

See Burlington, 548 U.S. at 68. Specifically, as to the classification of

Stapleton’s injury, the question is whether a reasonable jury could find that

CSXT’s initial classification of Stapleton’s injury as non-FRA reportable for

approximately two and a half months, causing him to pay his own copays and

deductibles out of pocket during that time, and then ultimately updating the

classification to FRA reportable and offering to reimburse his expenses, would

dissuade a reasonable employee from reporting a workplace injury. Here, the

uncontested facts in the record dispel any possible inference that CSXT’s initial

classification of Stapleton’s injury as non-FRA reportable would dissuade a

reasonable worker from reporting his workplace injury.

The record establishes that CSXT has a voluntary policy to cover an

employee’s copays and deductibles incurred in connection with an injury

suffered at work if CSXT determines the injury to be FRA reportable. Dr.

Heligman Deposition at 31. In order for employees to avail themselves of this

benefit, CSXT must learn of their work-related injury. If CSXT does not know

of the injury, the employee has no opportunity to have his copays and

deductibles covered by CSXT and is responsible for paying them on his own.

Employees are thus incentivized to report their injuries and are in fact required

to report their injuries pursuant to CSXT’s PI-1A form. Stapleton Deposition,

Ex. 6.

If CSXT initially classifies the injury as non-FRA reportable, even in

error, the employee can have the decision reviewed by a committee and possibly

changed in his favor. Even if the non-FRA reportable determination remains

unchanged, the employee has not lost anything from reporting the injury

because an employee can only benefit from engaging in the protected activity in

this context. Stated another way, an employee is not worse off from having

reported an injury that is then classified as non-FRA reportable than he would

otherwise be from not reporting it at all. As such, no reasonable jury could find

that CSXT’s non-FRA reportable determination, subject to review8, would

dissuade a reasonable employee from reporting their injury.

Notably, if an employee suffered an adverse action under the anti-

retaliation provisions of the FRSA anytime a railroad employer initially

determined the employee’s injury to be non-FRA reportable while awaiting

additional medical information, no railroad could ever classify an injury to be

non-FRA reportable without subjecting itself to liability for retaliation under

8 To the extent Stapleton suggests that CSXT only initiated a review in this case because

it was “caught” by the FRA, there is no evidence in the record to support such a claim. See

Response at 17. Sweatt first mentioned reviewing Stapleton’s injury more than two weeks

before CSXT was first contacted by the FRA. Sweatt Deposition at 89, Ex. 6(a).

Additionally, Delk suggested to Stapleton that the reportability of his injury might be changed

just three days after the initial reporting decision was made. Stapleton Deposition, Ex. 10.

the FRSA.9 No reasonable interpretation of the language of the FRSA or its

purpose would support a conclusion that anytime an injury is initially classified

as non-FRA reportable, the railroad employer is engaging in unlawful

retaliation against that employee.

Here, the undisputed facts establish that when Stapleton reported his

injury in early May of 2017, CSXT initially determined that it was non-FRA

reportable based on the medical records available to them at the time including

Stapleton’s denial that he suffered an injury. Dr. Heligman explained that it

is common to initially classify an event as non-FRA reportable if CSXT needs

further medical records to determine otherwise. Dr. Heligman Deposition at

124. Within days of the initial classification, CSXT informed Stapleton that

the decision would be subject to review. Over the course of the next two and a

half months, Stapleton paid for his copays and deductibles out of pocket,

totaling $1,200, while CSXT sought further medical records and prepared to

9 Indeed, the burden shifting framework which applies to FRSA retaliation claims would

be unworkable if this Court held that the initial and later corrected misclassification of an

injury as non-reportable amounted to an adverse action. If a plaintiff meets his burden of

making out a prima facie case of retaliation under the FRSA, a defendant can avoid liability

by proving by clear and convincing evidence that it would have taken the same adverse action

in the absence of plaintiff engaging in the protected activity. 29 C.F.R. § 1982.104(e)(4);

Armstrong, 880 F.3d at 381. Applying that framework to the classification of an injury, no

railroad could ever show it would have “taken the same adverse action” if the employee had

not reported the injury at all. Here, if Stapleton had not engaged in the protected activity –

reported his injury – then CSXT would not have had occasion to classify his injury one way or

the other. The Court thus concludes that the FRSA’s anti-retaliation provision does not reach

an action such as this, where the alleged adverse action is the natural and necessary decision-

making process the inevitably follows the protected activity.

send his case to its committee to reevaluate the reportability determination.

Dr. Heligman testified that based on the initial information provided to him, “it

was not clear that you could do a medical causation analysis, because there was

no examination, there was no detailed medical history in the information we

had, so it was important to have those medical records.” Id. at 63. As such,

CSXT’s reporting department requested additional medical records “to make an

informed decision of FRA reportability” on several other occasions. See Sweatt

Deposition at 123-24.

Upon receipt of additional information including the emergency room

records and the orthopedic records, Dr. Heligman provided an advisory opinion

to the committee in late July of 2017. Dr. Heligman Deposition at 123. CSXT

updated Stapleton’s injury to FRA reportable and offered to reimburse any

expenses that Stapleton incurred while CSXT was resolving the FRA

reportability question. According to Dr. Heligman, he could not have opined

that Stapleton’s injury could have been FRA reportable as an aggravation of a

preexisting condition, without the medical records he received in late July. Id.

at 98. Stapleton points to no evidence disputing this testimony. Once CSXT

had the adequate information to determine that Stapleton’s injury was not a

“personal condition” and that he “aggravated something,” CSXT classified the

injury as FRA reportable. See Sweatt Deposition at 132. Given these facts

which are not in dispute, no reasonable juror could find that CSXT’s actions

would dissuade a reasonable employee from reporting their injury because by

reporting his injury Stapleton is now able to have his out of pocket medical costs

that he would otherwise be responsible for on his own reimbursed by his

employer.

Upon review of all the evidence and making all reasonable inferences in

Stapleton’s favor, Haves 52 F.3d at 921, the Court concludes no reasonable jury

could find that Stapleton suffered an adverse action. As such, the Court

determines that summary judgment is appropriate because Stapleton is unable

to establish a prima facie case of retaliation under 49 U.S.C. § 20109(a). See

Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 483 F.3d 1265, 1268

(11th Cir. 2007) (If “‘the non-moving party fails to make a sufficient showing on

an essential element of [his] case with respect to which [he] has the burden of

proof, then the court must enter summary judgment for the moving party.’”

(quoting Gonzalez, 161 F.3d at 1294 (alteration in original, additional citations

omitted)). In addition, any argument raised at summary judgment under 49

U.S.C. § 20109(c)(1) is not properly before this Court. Thus, the Court has

determined that CSXT’s motion is due to be granted in its entirety and will

enter summary judgment in favor of CSXT on Count II of the Complaint.

Accordingly, it is hereby

ORDERED:

1. Defendant’s Motion for Partial Summary Judgment as to Count II

of the Complaint (Doc. 20) is GRANTED.

2. The Court will defer entry of judgment as described above pending

resolution of all remaining issues.

DONE AND ORDERED in Jacksonville, Florida on March 30, 2021.

MARCIA MORALES HOWARD

United States District Judge

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