Baker v. CSX Transportation, Inc.

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

JUSTIN ADKINS, et al.,

Plaintiffs,

v. CIVIL ACTION NO. 3:18-0321

CSX TRANSPORTATION, INC., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants’ Motion for Summary Judgment, ECF No. 360.

Defendants filed a “Memorandum of Law in Support of Defendants’ Motion for Summary

Judgment Regarding Invasion of Privacy” (“Defs.’ Mem.”). ECF No. 366. Plaintiffs filed a

response in opposition (“Pls.’ Resp.”), ECF No. 400, and Defendants filed a reply memorandum

(“Defs.’ Reply”), ECF No. 411. This issue is now ripe for consideration, and for the reasoning

provided herein, Defendants’ Motion is GRANTED, in part, Plaintiffs’ invasion of privacy claim

is DISMISSED.1

I. BACKGROUND

Each of the 56 Plaintiffs in this case were employees of CSX Transportation (“CSXT”).

Between May and July of 2017, all of the Plaintiffs visited one of two chiropractors—Shannon M.

Johnson, D.C. (“Dr. Johnson”) or Daniel J. Carey, II, D.C. (“Dr. Carey”). COII, ECF No. 378 at

2–78. The chiropractors placed all of the Plaintiffs on medical restrictions and signed a Certificate

1 Because of the unusually large size of the Plaintiff class in this case, Defendants have filed one “master” motion for

summary judgment and multiple individual memoranda as to each of the counts they seek a ruling upon. The Court

finds that a single order addressing all of the arguments would be unwieldy and unpractical. Accordingly, the Court

will issue separate orders on the individual counts.

of Illness and Injury (“COII”)2 for each of them. Id. All of the COII listed soft-tissue injuries to

the back, neck, or shoulder, and all but one of the injuries complained of occurred when the

Plaintiffs were off duty. Id. Each of the COII indicated that the Plaintiffs should remain off work

for eight or more weeks. Id.

Dr. Craig Heligman, MD is the Chief Medical Officer for CSXT. Defendants assert that he

became suspicious of the Plaintiffs and their chiropractors after he “noticed the number of COIIs

submitted within weeks of each other from the same two providers, and their close similarity.”

Defs.’ Mem. 2. Dr. Heligman penned a letter to the Railroad Retirement Board (“RRB”)

encouraging it to start an investigation into potentially “fraudulent practices on the part of both

employees and these two providers.” July 14, 2017 Letter, ECF No. 370-2. That letter was

forwarded to Aetna, Inc; Highmark Blue Cross Blue Shield; United Health Care; the Ohio State

Chiropractic Board; and the Kentucky Board of Chiropractic Examiners. Id. Attached to the letter

was a list of CSXT employees who had submitted COII from Drs. Johnson and Carey, their

employee identification numbers, dates of treatment, and the conditions for which they sought

treatment. Id.

Shortly after this letter was sent, pursuant to the Plaintiffs’ Collective Bargaining

Agreements, Plaintiffs were notified in writing of the charges against them. See CBA Agreement,

ECF No. 360-56, at 48; Charge Letters, ECF No. 360-1. The “charge letters” notified the Plaintiffs

that a formal investigation was to be held, and informed them that

[t]he purpose of this investigation was to develop facts and place your

responsibility, if any, in connection with information received on July 14, 2017

2 A COII is the form CSXT requires an employee’s medical provider to complete before an employee can be taken

off work for an illness or injury. Defs.’ Mem. 2. The form includes basic identifying information about the employee

and has places for the medical professional to document his or her findings, diagnoses, treatment plan, the employee’s

duration of care with the provider, and the time frame in which the employee is unable to work.

from the CSXT Chief Medical Officer that you were dishonest and attempted to

defraud the Company and/or benefits providers when you, as well as more than 50

other craft employees, submitted potentially fraudulent documentation, and all

circumstances relating thereto.

Charge Letters.

Investigative hearings were held for each of the Plaintiffs where they had the benefit of a

union representative and were given an opportunity to introduce evidence on their own behalf. See

Hearing Trs., ECF No 356-62–117.

At those hearings, Defendants introduced both the letter written by Dr. Heligman and the

COII forms that were submitted by the Plaintiffs. Defs.’ Mem. 11. By Defendants’ own admission,

at least one hearing, some of the introduced COII contained unredacted information including

dates of birth and social security numbers. Id.; see, e.g., Christian Hearing Tr. 19–22, ECF No.

270-74.

On August 23, 2017, the Vice President of Labor Relations Zachery Jones sent a letter to

at least 14 Plaintiffs recognizing that “[d]uring the hearing, there were a few documents introduced

into evidence that may have contained the social security numbers of a few employees.”

Confidentiality Letters, ECF No. 360-8. The letters stated that “[t]his is a reminder that any

documents or exhibits introduced during these hearings are company property. While you may

have received copies of these documents in the normal course of business and as part of your

employment with the company, you remain obligated to keep this information confidential.” Id.

The letters do not identify whose personal information was disclosed.

On February 2, 2018, Plaintiffs filed a lawsuit alleging that the Defendants were liable for

violating federal and state laws and for committing multiple torts. See ECF No. 1. The now

operative Third Amended Complaint includes the following counts: (1) the Employment

Retirement Income Security Act of 1974, (2) the Rehabilitation Act, (3) the West Virginia Human

Relations Act, (4) the Family and Medical Leave Act of 1993, (5) defamation, (6) invasion of

privacy (public disclosure of private facts), (7) tortious interference, (8) intentional infliction of

emotional distress, (9) wrongful discharge, and (10) the Federal Railroad Safety Act. This Order

specifically addresses Plaintiffs’ invasion of privacy claim.

II. LEGAL STANDARD

To obtain summary judgment, the moving party must show that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the

evidence and determine the truth of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). Instead, the Court will draw any permissible inference from the underlying facts in

the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587–88 (1986).

The nonmoving party nonetheless must offer some “concrete evidence from which a

reasonable juror could return a verdict in his [or her] favor.” Anderson, 477 U.S. at 256. Summary

judgment is appropriate when the nonmoving party has the burden of proof on an essential element

of his or her case and does not make, after adequate time for discovery, a showing sufficient to

establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving

party must satisfy this burden of proof by offering more than a mere “scintilla of evidence” in

support of his or her position. Anderson, 477 U.S. at 252.

III. ANALYSIS

The tort invasion of privacy can take one of four forms under West Virginia law: “(1)

unreasonable intrusion upon the seclusion of another; (2) appropriation of another's name or

likeness; (3) unreasonable publicity given to another's private life; and (4) publicity that

unreasonably places another in a false light before the public.” Crump v. Beckley Newspapers,

Inc., 320 S.E.2d 70, 83 (W. Va. 1983) (adopting the Restatement (Second) of Torts analysis for

invasion of privacy).

In order to establish a cause of action for public disclosure of private facts, a

plaintiff would need to prove the following elements: (1) that there was a public

disclosure by the Defendant of facts regarding the Plaintiff; (2) that the facts

disclosed were private facts; (3) that the disclosure of such facts is highly offensive

and objectionable to a reasonable person of reasonable sensibilities; and (4) that the

public has no legitimate interest in the facts disclosed.

Davis v. Monsanto Co., 627 F. Supp. 418, 421 (S.D.W. Va. 1986).

Plaintiffs’ Third Amended Complaint alleges that Defendants invaded their privacy by

publicly disclosing private facts. Third Am. Compl. ¶¶ 2313–21. Specifically, Plaintiffs allege that

“Defendants’ public disclosure of Plaintiffs’ social security numbers, private medical information,

and other personal information constitute private, personal, and sensitive information, the

disclosure of which was highly offensive and objectionable to reasonable persons of reasonable

sensibilities.” Id. at ¶ 2315.

Plaintiffs argue that the letters sent by Dr. Heligman to the RRB, Plaintiffs’ benefit

providers, and the chiropractic boards contained Plaintiffs’ names, employee ID numbers, and

medical conditions. Pls.’ Resp. 4. Additionally, Plaintiffs submit that at each of the investigative

hearings, Defendants submitted a copy of the all the Plaintiffs’ COII forms. Id. At least some of

the disclosed records contained unredacted personal information of some Plaintiffs (such as their

social security numbers and dates of birth). Id. at 4–5; see Confidentiality Letters; see, e.g., Adkins

Hearing Tr. 10, ECF No. 370-62 (showing admission of COII forms at hearing); Christian Hearing

Tr. 19–22 (Representative Sandburg objecting to distribution of COII forms and prior disclosure

of social security numbers and dates of birth).

In this case, the Court finds that Plaintiffs have failed to raise a material question of fact

regarding the first element of the tort, public disclosure. The kind of publication required to

establish public disclosure of private facts is not “mere communication to a third party,” but rather

“widespread publicity.” Davis, 627 F. Supp. at 421; see Mays v. Marshall Univ. Bd. of Governors,

No. 14-788, 2015 WL 6181508, at *6 (W. Va. Oct. 20, 2015) (“‘Publicity,’ in the context of

invasion of privacy, entails that disclosure be widespread and not limited to a single person or a

small group of people.”); Restatement (Second) of Torts § 625D, cmt. a (1977) (“‘Publicity’ . . .

means that the matter is made public, by communicating it to the public at large, or to so many

persons that the matter must be regarded as substantially certain to become one of public

knowledge.”). Typical examples of public disclosure include newspaper publications, radio

broadcasts, and statements to large audiences. Restatement (Second) of Torts § 625D, cmt. a.

While some of the Defendants’ alleged disclosures may be considered objectionable, the

Court has no basis to find that any of the disclosures were sufficiently widespread to be actionable.

Plaintiffs have not even attempted to quantify the number of people who viewed the Plaintiffs’

information. Based on the parties’ exhibits, the Court can surmise that Dr. Heligman’s letter was

sent to five individuals. July 14, 2017 Letter. Moreover, based on the Defendants’ “Confidentiality

Letters” the Court can concluded that some unredacted COIIs were disseminated to approximately

14 Plaintiffs. 3 See Confidentiality Letters. These estimations are not sufficient to raise a material

question of fact about widespread publication.

3 Significantly, neither party makes any attempt to name which Plaintiffs’ information was left unredacted. As such,

there is no way for the Court to conclude whose information was disseminated. While one transcript, which was not

identified by the Plaintiffs, suggests that the dates of birth and social security numbers of Plaintiff Donald Ste[phens],

Plaintiff Jonathan Jeffers, Plaintiff James Blai[n], and five other unnamed individuals’ information were disseminated

at Plaintiff Matthew Woods’s Hearing, see Woods Hearing 9–10, ECF No. 370-116, this is plainly insufficient to find

that the Plaintiffs as a whole had their information publicized, let alone publicly.

Moreover, to the extent the Plaintiffs base their claim on the introduction of the redacted

COII at the Plaintiffs investigatory hearings, even if there were enough individuals present at the

hearings to consider the publication widespread, the Court finds that Defendants are entitled to

qualified privilege. In Crump v. Beckley Newspapers, Inc., the West Virginia Supreme Court held

that “[a] qualified privilege exists when a person publishes a statement in good faith about a subject

in which he has an interest or duty and limits the publication of the statement to those persons who

have a legitimate interest in the subject matter.” 320 S.E.2d at 78 (quoting Swearingen v.

Parkersburg Sentinel Co., 26 S.E.2d 209, 215 (W. Va. 1943)). This privilege is available as a bar

to liability in an invasion of privacy claim. Id. at 83; Taylor v. W. Va. Dep’t of Health & Hum.

Res., 788 S.E.2d 295, 315 (W. Va. 2016).

Here, Plaintiffs have offered no compelling argument to rebut Defendants’ claim that the

redacted COII were disclosed only to individuals who had a legitimate interest in the information

therein. While Plaintiffs argue that “there is no reason one employee needs to know about the

conditions and treatment plan of another employee in the context of a disciplinary hearing for

alleged fraud,” Pls.’ Resp. 6, the information contained in the redacted COII was clearly relevant

to each individual investigation because the very basis of the Defendants’ suspicions was the

curiously similar nature of the more than 56 COII submitted by Drs. Carey and Johnson. Plaintiffs

undoubtedly had an interest in understanding the allegations of fraud that had been levied against

them, as did the CSXT employees who were charged with conducting the investigations and

making determinations about the Plaintiffs’ conduct. Because there is no evidence that those

disclosures were made in bad faith, qualified privilege attaches, and Defendants may not be held

liable for publication of the COII at the investigative hearings.

IV. CONCLUSION

Accordingly, the Court GRANTS, in part, Defendants’ Motion for Summary Judgment.

Plaintiffs’ invasion of privacy claim is DISMISSED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented parties.

ENTER: August 2, 2021

UWL

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ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

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