Gasiorowski-Watts v. CSX Transportation Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DOROTHY GASIOROWSKI-WATTS, _ ) CASE NO. 1:23 CV 1043

)

Plaintiff, ) JUDGE DONALD C. NUGENT

)

□□ ) MEMORANDUM OPINION

) AND ORDER

CSX TRANSPORTATION, INC., )

)

Defendant. )

This matter is before the Court on the motion of Defendant CSX Transportation, Inc.

(“CSX”), for Summary Judgment. (ECF #27). Plaintiff asserts one claim in this action, that

Defendant disciplined her in retaliation for engaging in protected activity in violation of the

Federal Rail Safety Act (“FRSA”), 49 U.S.C. §20109 ef seq. For the reasons that follow,

Defendant’s Motion for Summary Judgment is granted.

FACTUAL AND PROCEDURAL BACKGROUND’

Plaintiff was hired by CSX in August 1998 and worked primarily as locomotive

Engineer or as a conductor in the Cleveland, Ohio area. A train crew is comprised of a

locomotive engineer and a conductor. Engineers are primarily responsible for operating the

locomotive engine, including inspection of the locomotive before operation and ensuring the

safe movement of the train. The conductor is responsible for the groundwork such as arranging

rail cars and conducting brake tests. As an engineer, the terms and conditions of Plaintiffs

Except as otherwise cited, the factual summary is based on the Complaint and the parties’

statements of fact. Those material facts which are controverted and supported by

deposition testimony, affidavit, or other evidence are stated in the light most favorable to

the non-moving party.

employment were governed by the CBA between CSX and Plaintiffs union.

CSX engineers are subject to CSX’ s disciplinary policy known as IDPAP (an acronym

for Individual Development & Personal Accountability Policy.) Under IDPAP, offenses which

may result in discipline are classified as non-major or major. A single speeding incident of less

than 1OMPH over the speed limit during a three year period was typically classified as non-

major. However, if an employee violated the same rule—including speeding—more than once in

a three year period, the second incident was classified as a major offense. An employee could

be dismissed for a single major offense but discipline for non-major violations would generally

result in a suspension, not termination.

In July 2017, Plaintiff noticed that the locomotive she was operating was speeding less

than 5 MPH over the posted speed limit for less than a minute. Plaintiff notified her direct

supervisor of the overspeed incident at the end of her shift. Under the disciplinary procedure set

forth in the CBA, when a manager believes that an employee may have violated CSX’s

Operating Rules, he enters an “assessment” into Field Administration’s electronic system

describing the circumstances of the employee’s potential violation. Field Administration, a

group of employees located at CSX Headquarters in Jacksonville, Florida, then reviews the

assessment, the relevant operating rule, and the employee’s history to determine whether a

charge should be issued, and, if so, the classification of the misconduct. Field Administration

then notifies the employee that she is being charged with a potential rule violation and

schedules an investigation hearing to determine whether the rule violation occurred. Discipline

may only be issued if an employee is found to be at fault after a fair and impartial hearing

conducted under the terms of the applicable CBA, or after the employee waives her right to a

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hearing and accepts responsibility for the charged offense. If an employee proceeds to an

investigation, she has the right to be represented by a union official, and can give testimony,

present documentary evidence, examine witnesses, and make statements on her own behalf.

The investigation hearing is presided over by an impartial CSX manager, known as a hearing

officer, who does not make discipline decisions. Field Administration then sends the hearing

transcript and exhibits to a higher level CSX manager not involved in the underlying incident

or hearing, who decides whether the employee violated CSX’s Operating Rules and, if so, the

appropriate discipline to impose.

With respect to Plaintiff's self reported July 2017 overspeed incident, Field

Administration classified the offense as non-major because Plaintiff had no previous speeding

violations within the last three years, and scheduled a formal hearing. Plaintiff elected to waive

the hearing, admitted responsibility for the speeding violation, and accepted a formal

reprimand.

On January 13, 2018, CSX’s ERAD system detected that the train that Plaintiff was

operating at the time was traveling more than 5 MPH over the posted speed limit. CSX

locomotive engines are equipped with event recorders which continually document various

aspects of a locomotive’s operation, including speed. The ERAD system communicates

electronically with receivers at various points along the tracks, and notifies CSX’s ERAD team

in Jacksonville of any potentially unsafe events such as overspeed. The ERAD team reviews

the communications and the underlying data and, when the data confirms an unsafe operating

condition, forwards the data to local managers for review and follow up. On January 16, 2018,

Plaintiffs manager, Michael Berghaus, who was a Manager of Train Operations at the CSX

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Cleveland terminal at that time, was notified of the incident by the ERAD team. The ERAD

alert email identified the train crew involved in the incident, Plaintiff as the engineer and J.E.

Dembiec as the conductor, and indicated that the locomotive was speeding for a total of 683

feet for 34 seconds, reaching a peak speed of 15.75 MPH for about 4 seconds. The speed limit

on that section of track was 10 MPH.

Once Mr. Berghaus received the ERAD alert, he was required to respond and enter an

assessment if the data showed the train was in fact speeding. Unless the field manager can

disprove the data documented in an ERAD alert, he is required to input an assessment into the

Field Administration system. Here, Mr. Berghaus analyzed the ERAD data, confirmed that it

showed Plaintiff speeding, and then analyzed Plaintiffs locomotive reports showing that

Plaintiff had not raised an issue with the locomotive’s speedometer. Berghaus also pulled the

“hard download” data directly from the locomotive, which matched the ERAD data and further

showed that the crew actively applied the “independent brakes” showing they realized that the

train had been speeding. Because Mr. Berhaus’ review of the ERAD data substantiated that the

crew exceeded the speed limit by over 5 MPH, Bergaus entered an assessment for both crew

members for a potential violation of CSX’s Operating Rule 300.2. The Field Administration in

Jacksonville reviewed the assessments and concluded that under the IDPAP, charges should be

issued. Field Administration classified the charges as: (1) a potential non-major offense against

Dembiec because he had no prior speeding violations within three years; and (2) a potential

major offense against Plaintiff because it was her second speeding violation within three years.

Charge letters were issued to both Plaintiff and Dembiec, notifying them that CSX would hold

an investigation hearing to determine whether they had operated their train over the authorized

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speed limit in violation of CSX’s Operating Rules. Consistent with the IDPAP, Plaintiff was

held out of service pending the investigation since she was charged with a major offense.

At the investigation hearing on January 24, 2018, Plaintiff was represented by a union

officer and was permitted to present testimony and evidence on her own behalf and cross

examine CSX’s witnesses. Plaintiff testified that she did not believe she was speeding and that

the download must have been inaccurate. Her union representative entered two outdated ERAD

memoranda and claimed that speeding infractions of less than a minute did not warrant

discipline. Mr. Berghaus testified for CSX and explained that the memoranda were no longer in

effect. He also explained how the ERAD data demonstrated that Plaintiff had been speeding, in

violation of CSX operating rules. Plaintiff did not raise any claim at the hearing that she was

being retaliated against for reporting safety concerns.

In accordance with CSX disciplinary procedure, the discipline decision was made by a

different higher level manager, Shaun Rosselli who reviewed the investigation hearing

transcript and exhibits and made his own analysis of the ERAD data. Mr. Rosselli determined

that the locomotive reached a speed of 15.75 MPH when the speed limit was 10 MPH and that

the duration of the overspeed did not matter. As such, Mr. Rosselli concluded that Plaintiff had

committed the major rule violation with which she was charged and that she should be

dismissed. Mr. Rosselli also determined that Mr. Dembiec was culpable for the overspeed — in

his case a minor rule violation since he had no other speeding violation within three years--and

should be suspended for 15 days.

Plaintiff arbitrated Mr. Rosselli’s decision that she was speeding and on Jan. 20, 2020,

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the Public Law Board concluded that Plaintiff had violated Operating Rule 300.2 by operating

her locomotive over the authorized speed but due to mitigating factors, including the fact that

Plaintiff brought the speed of the locomotive into compliance within 34 seconds and had 20

years of service, reinstated Plaintiff to her position with seniority unimpaired but no payment

for time lost.

Plaintiff asserts that CSX disciplined her in retaliation for her continual reporting of

safety violations. Plaintiff was elected to union office in 2009 and thereafter held the positions

of Vice President and Secretary/Treasurer. When she was vice president, Plaintiff states that

she made verbal complaints about safety issues to her direct supervisors or any other company

official at her terminal. She also notes that part of her duties as the secretary/treasure was to

write up safety reports and send them to CSX trainmasters. She states that she would turn in

reports for herself and others and it became common knowledge that she regularly reported

hazardous conditions in the workplace. In November and December 2017, Plaintiff asserts that

she faxed Unsafe Condition or Defective Equipment reports to the Collinwood Yard office and

addressed them to Mr. Berghaus. In December 2017, Plaintiff states that she called the Federal

Railway Administration to report Mr. Berhaus for violating the Hours of Service Act when he

worked as a pilot on a job. Plaintiff states that she told Mr. Berghaus on the night of the

incident that she was going to report him.

STANDARD OF REVIEW

Summary judgment is appropriate when the court is satisfied “that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(a). The burden of showing the absence of any such “genuine

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issue” rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with affidavits, if any,’ which it believes demonstrates the absence

of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citations omitted). A fact is “material”

only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires

consideration of the applicable evidentiary standards. The court will view the summary

judgment motion in the light most favorable to the party opposing the motion. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment should be granted if a party who bears the burden of proof at trial

does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d

937, 941 (6 Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence

of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57

F.3d 476, 479 (6" Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence

presented is “merely colorable” and not “significantly probative,” the court may decide the

legal issue and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In

most civil cases involving summary judgment, the court must decide “whether reasonable

jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a

verdict.” Id. at 252. However, if the non-moving party faces a heightened burden of proof,

“Is

such as clear and convincing evidence, it must show that it can produce evidence which, if

believed, will meet the higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479

(6" Cir. 1989).

Once the moving party has satisfied its burden of proof, the burden then shifts to the

non-mover. The non-moving party may not simply rely on its pleadings, but must “produce

evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky

Dep’t of Transp., 53 F.3d 146, 149 (6" Cir. 1995). Evidence may be presented by citing to

particular parts of the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials. Fed. R. Civ. P. 56(c). In

lieu of presenting evidence, Fed. R. Civ. P. 56(c) also allows that a party may show that the

opposing party’s evidence does “not establish the presence of a genuine dispute” or that the

adverse party “cannot produce admissible evidence to support the fact.”

According to Fed. R. Civ. P. 56(e),

[i]f a party fails to properly support an assertion of fact, or fails to properly

address another party’s assertion of fact as required by Rule 56(c), the court

may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials — including the

facts considered undisputed — show that the movant is entitled to it; or

(4) issue any other appropriate order

In sum, proper summary judgment analysis entails “the threshold inquiry of determining

whether there is the need for a trial--whether, in other words, there are any genuine factual

issues that properly can be resolved only by a finder of fact because they may reasonably be

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resolved in favor of either party.” Anderson, 477 U.S. at 250.

DISCUSSION

Plaintiff asserts that she was terminated by CSX in retaliation for engaging in protected

activity in violation of FRSA. Specifically, Plaintiff contends that her history of reporting

hazardous safety issues in the workplace, as well as notifying her immediate supervisor

Berghaus that she was reporting him to the Federal Railroad Administration for violating the

Hours of Service Act, were contributing factors in CSX’s adverse action against her. In order to

establish a retaliation claim under the FRSA, a plaintiff must show:

‘(1) he engaged in protected activity; (2) the employer knew that

he engaged in protected activity; (3) he suffered an unfavorable

personnel action; and (4) the protected activity was a contributing

factor in the unfavorable personnel action.’

Mangold v. Norfolk S. Ry. Co., No. 21-3059, 2021 WL 5904091, at *3 (6th Cir. Dec. 14, 2021)

quoting Consolidated Rail Corp. v. United States Dep’t of Labor, 567 F. App'x 334, 337(6th

Cir. 2014) (citing Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d

Cir. 2013)). Once a plaintiff makes a prima facie case that the protected activity was a

contributing factor to the unfavorable personnel action, the defendant must prove “by clear and

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

protected behavior.” /d. (Citations omitted.) Failure to satisfy any one of the prima facie

requirements is fatal to a claim. Lockhart v. Long Island R.R. Co., 266 F. Supp. 3d 659, 663

(S.D.N.Y. 2017), aff'd sub nom. Lockhart v. MTA Long Island R.R., 949 F.3d 75 (2d Cir. 2020)

CSX argues that Watts has failed to establish the second and fourth elements of her

prima facie case because she cannot prove that the relevant CSX decision makers knew or

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suspected that she engaged in protected activity and because she has not proven that any

alleged protected activity was a contributing factor in CSX’s decision to dismiss her.’ Even if

Plaintiff had established a prima facie case, CSX argues that it has proven its affirmative

defense that it would have disciplined Plaintiff even if she had not engaged in any conduct

protected by the FRSA.

1. Prima Facie Case

Starting with the second element of the prima facie case, plaintiff must show that the

relevant decision makers knew that she engaged in protected activity. See Mangold, 2021 WL

5904091 at *4. Here, Plaintiff has stated that her manager Mr. Berghaus was aware that she had

submitted numerous safety complaints — she frequently faxed complaints about safety

conditions to the trainmaster’s office where Mr. Berghaus worked at least a couple days per

week. Many of her complaints were directly addressed to Berghaus. Plaintiff further stated that

she followed up on her written safety complaints by asking supervisors about whether the

safety issues were addressed in daily safety briefings in which Berghaus was frequently on the

calls. Finally, in December, 2017 Plaintiff told Mr. Berghaus that she was reporting him to the

FRA for an hour of service violation.

Defendant responds that Plaintiff cannot show that her 2017 complaint forms addressed

to Berghaus were ever sent, and even if they were, she does not know whether anyone,

including Berghaus, ever received the forms. Berghaus testified that he did not receive the 2017

The parties agree that Plaintiff has satisfied the first and third elements of the prima facie

test-she has engaged in protected activity over the course of her employment with CSX

and suffered an unfavorable personnel action when she was terminated.

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forms. While one of Plaintiff's 2017 forms concerned a safety issue at the Duraline site,

Berghaus said he became generally aware of the issue through inspecting the area himself and

does not recall specifically speaking with Plaintiff about it. While Plaintiff states that she called

the FRA on December 17, 2017 regarding Berghaus’ alleged hour of service violation, the FRA

has no record of any contact from Plaintiff “in or around December 2017" and Berghaus says

that he has no knowledge regarding Plaintiffs alleged report and does not recall any such

conversation.

However, even assuming Mr. Berghaus was aware of Plaintiff's protected activity, the

overspeed incident was discovered by ERAD, not Berghaus and under the applicable CSX

rules, Berghaus, as the immediate manager, was required to input an assessment if the ERAD

data substantiated an overspeeed. At that point, Field Administration, not Berghaus, issued the

charge letter to Plaintiff and classified the charge against Plaintiff as major. There is no

evidence that Field Administration, the charging entity, was aware of any safety complaints

made by any employee, including Plaintiff. Thus, while Berghaus entered the assessment and

provided evidence at the hearing supporting the validity of the ERAD data, he is not the

relevant decision maker for the purpose of establishing the prima facie case. See Hand v. CSX

Transportation, Inc., 2021 WL 963584 at *8 (N. D. Ohio Mar. 15, 2021)(court concluded that

the decision to assess an employee is separate and apart from the relevant decision— the

decision to discipline an employee.) The relevant decision maker regarding asserting the charge

was Field Administration and the relevant decision maker of whether Plaintiff violated an

Operating Rule and the discipline to be imposed as a result was Mr. Rosselli. There is

absolutely no evidence that Mr. Roselli had any knowledge of Plaintiffs protected activity and

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he did not consult with anyone, including Mr. Berghaus, when deciding whether to discipline

Plaintiff or her conductor. Rather, Mr. Rosselli stated that he made his decision based on his

review of the hearing transcript and exhibits (which did not include any reference to □□□□□□□□□□□

protected activity) and his own analysis of the ERAD data. As such, Plaintiff has failed to

demonstrate that the relevant decision maker had knowledge of her protected activity.

Moving to the fourth element of the prima facie case, a Plaintiff must show that her

protected activity was a contributing factor in the unfavorable personnel action. Mangold, 2021

WL 5904091, at *3. The contributing factor standard “has been understood to mean any factor

which, alone or in connection with other factors, tends to affect in any way the outcome of the

decision.” Hand v. CSX Transportation, Inc., No. 1:19-CV-941, 2021 WL 963584, at *7 (S.D.

Ohio Mar. 15, 2021) quoting Consol.Rail Corp. v. U.S. Dep’t of Labor, 567 F. App’x 334, 338

(6" Cir. 2014). This factor requires a plaintiff to provide evidence of retaliatory animus against

him. A contributing factor need not be the sole factor causing the adverse action. The FRSA

prohibits adverse actions done “in whole or in part” in retaliation for protected acts. 49 U.S.C. §

20109(a). Circumstantial evidence of a contributor factor can include any of the following:

temporal proximity, indications of pretext, inconsistent application

of an employee's policies, shifting explanations for an employer's

actions, antagonism or hostility toward a complainant's protected

activity, falsity of an employer's explanation for the adverse action

taken, and change in the employer's attitude toward the

complainant after he engages in protected activity.

Id. at *7 quoting Mangold v. Norfolk S. Ry. Co., 2020 WL 7334679 at *8 (N.D. Ohio Dec. 14,

2020).

Plaintiff contends that her long history of protected activity and the push back she

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received from CSX managers earlier in her career, combined with the temporal protected

activity involving Berghaus in December 2017, Berghaus’s handling of the 2018 ERAD alert,

and the difference in the way she is treated when she does not engage in protected activity all

combine to show that Plaintiffs protected activity was a contributing factor in her 2018

dismissal.

Plaintiff states that she has had a target on her back and has been closely scrutinized

ever since she took union office and started reporting safety issues. She notes that she had little

contact or knowledge of managers before she became a union officer and notes that she has

been left alone since she was returned to service and stopped submitting safety reports in 2022..

Plaintiff reports an instance in 2012 of a manager threatening her to stop reporting safety issues

or he would fire her and her subsequent dismissal. She was returned to work and continued her

protected activity. While most of the protected activity noted by Plaintiff was not in temporal

proximity to her 2018 dismissal, she notes that she faxed Berghaus safety complaints about a

month before the 2018 incident and reported him to the FRA for the alleged hours of service

violation. She contends that this temporal proximity and Berghaus’ alleged failure to validate

the ERAD data before filing the assessment is her strongest evidence of retaliatory motive.

While Plaintiff contends that Berghaus did not validate the ERAD data before issuing

an assessment against her, the evidence does not support her contention. There is no evidence

Berghaus acted outside the requirements of CSX procedure in validating the ERAD data and

issuing an assessment. Specifically, Plaintiff claims that Berghaus failed to take any steps to

validate the speed shown in the ERAD alert. She notes that there was no measured mile on the

territory so the speedometer could not be calibrated by the crew and Berghaus did not use a

radar gun to check the speedometer on the unit or produce any evidence that he completed a

42.

calculation based on the wheel diameter to verify the speed. However, as explained by

Berghaus at the investigation hearing and the November 2022 ALJ hearing, he took several

steps to confirm that the data from the ERAD alert was accurate. Berghaus took the GPS

locations in the ERAD alert and entered the specific latitudes and longitudes on a separate

internal mapping system to verify where the locomotive was located and the speed at the

relevant time period by referencing CSX’s timetables. As part of that review, the data showed

that the crew actively applied the independent brakes, demonstrating that Plaintiff and her

conductor realized that the locomotive was speeding. In addition, Berghaus downloaded the

data directly from the locomotive from the time of the incident, measured the locomotive’s

wheel, and saw that this download matched the ERAD data. Finally, Berghaus pulled and

reviewed the locomotive work reports completed by Plaintiff the day of and the day before the

overspeed incident which contained no reported issues, including for the speedometer. As a

result, Bergaus testified that he had no doubt that the train’s speedometer was functioning

properly at the time of the overspeed.’ It is clear that Berghaus followed CSX procedure and his

actions in validating the ERAD alert were proper and do not show retaliatory motive.

Plaintiff tries to import Berghaus’ alleged retaliatory animus to Rosselli arguing that

while Rosselli may have honestly believed that Plaintiff violated a speeding rule, his “belief”

was based on the evidence supplied by Berghaus. As described above however, Rosselli, who

Plaintiff also complains that Berghaus explained at the investigation hearing that he

completed a hard download from the locomotive but did not introduce the download as

an exhibit. Berghaus did not introduce the hard download as an exhibit because the data

from the ERAD and hard download come from the same place and are the same. The hard

download was produced to Plaintiff and introduced at the ALJ hearing, although some

keystroke errors resulted in the title not matching Plaintiffs locomotive. However, the

substantive information was correct.

had no knowledge of Plaintiff, her history of protected activity or her working situation,

analyzed all of the evidence independently and determined that Plaintiff had committed a major

rule violation and issued discipline in accordance with that finding. There is no evidence in the

record to indicate that Berghaus advised Rosselli or otherwise influenced him in his decision

making. Plaintiffs attempted bootstrap argument does not show that retaliatory animus was a

contributing factor in Rosselli’s analysis and disciplinary decision. The mere fact that a

plaintiff has engaged in protected activity does not shield her from discipline if she committed

a rule violation. See Lemon v. Norfolk So. Ry. Co., 958 F.3d 417, 420-21 (6" Cir. 2020)(FRSA

protected conduct does not immunize employees from discipline for wrongdoing.)

Ultimately, Plaintiff has failed to demonstrate her prima facie case because the relevant

decision maker who determined that Plaintiff had violated a major rule and imposed discipline

had no knowledge of Plaintiff's protected activity. Moreover, Plaintiff has not demonstrated

that retaliatory animus was a contributory factor in her discipline. As such, her FRSA

retaliation claim fails as a matter of law.

2. CSX Affirmative Defense’

CSX argues that even if Plaintiff had demonstrated a prima facie case, CSX would still

be entitled to summary judgment because the evidence clearly and convincingly demonstrates

that it would have dismissed Plaintiff for her major rule violation even if she had not engaged

in protected conduct. 49 U.S.C.A. § 20109(a). In assessing whether CSX has made this clear

Because Plaintiff has failed to establish a prima facie case of retaliation, the Court is not

required to consider whether CSX would have taken the same adverse action in the

absence of any protected activity. Gibbs v. Norfolk Southern Ry Co., 2018 WL 1542141

at *10 (W.D. Ky Mar. 29, 2018): Conrail, 567 Fed. Appx. at 337. Nevertheless, the Court

will address CSX’s “same action” defense for the sake of completeness.

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and convincing showing, courts consider the following non-exclusive factors: (1) whether the

railroad has written polices addressing the alleged misconduct; (2) whether the railroad

followed the applicable investigatory and disciplinary procedures; (3) whether the dismissal

was approved by senior management; (4) the temporal proximity between the non-protected

conduct and the adverse actions and (5) whether the railroad consistently enforces the policies

and rules at issue. See Dafoe v. BNSF Railway Co., 164 F.Supp.3d 1101, 1116 (D. Minn.

2016). At bottom, “[a]n employee who engages in protected activity is not insulated from

adverse action for violating workplace rules, and an employer's belief that the employee

committed misconduct is a legitimate, non-discriminatory reason for adverse action.” Richey v.

City of Independence, 540 F.3d 779, 784 (8th Cir. 2008).

CSX has put forth evidence which demonstrates that the decision to terminate

Plaintiff's employment after her second overspeed violation within three years is consistent

with CSX’s written policies. Further, there is a close temporal proximity between CSX’s

discovery of Plaintiff's second speeding violation and its decision to terminate her. CSX acted

in compliance with the strict time limits set forth in Plaintiff's CBA. The overspeed incident at

issue occurred on January 13, 2018, and the investigation was complete and the discipline

decision was issued on February 23, 2018. CSX presented evidence that it treated Plaintiff

consistently with other CSX employees who were disciplined for operating their locomotive

between 5 and 9.99 MPH over the authorized speed limit for less than a minute during the

relevant time period (2017-2018). The employees who had violated the overspeed rule twice

within a three year period were dismissed. The employees who had not committed a speeding

offense within the past three years, were suspended, like Plaintiff's conductor, Dembiec. The

disciplinary decision maker Rosselli explained his decision and his process which were

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unrelated to any previous protected activity by Plaintiff. The discipline imposed was consistent

with CSX written disciplinary rules and was clearly unrelated to any protected activity of

Plaintiff. While Plaintiff may feel that she should have been offered some leniency, “courts do

not act as a super-personnel department’ and re-examine an employer’s disciplinary decisions.”

Mangold, 2021 WL 5904091 at *5.

In this case, under these circumstances, CSX has submitted clear and convincing

evidence that it would have discharged Plaintiff for her second overspeed violation in three

years even if she had never engaged in protected activity.

CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment (ECF #27)

is granted. IT IS SO ORDERED.

United States District Judge

DATED: dealin bY, 1) 4

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