# Pack

> District Court, S.D. West Virginia · March 25, 2026

URL: https://www.frixlaw.com/law-library/cases/11281929

## Case

- **Full name:** Toby Pack v. CSX Transportation, Inc.
- **Court:** District Court, S.D. West Virginia
- **Decided:** March 25, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11281929

## How later opinions describe it (automated extraction)

- holding that an employer has “no obligation to pursue additional investigation when it ha[s] more than ample reason to believe it ha[s] been lied to”

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

TOBY PACK,

Plaintiff,

v. CIVIL ACTION NO. 3:24-0688

CSX TRANSPORTATION, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant CSX Transportation, Inc.’s Motion for Reconsideration
(ECF 171, Def.’s Mot.). The Motion asks the Court to reconsider its previous order denying
Defendant’s Motion for Summary Judgment in part. See Def.’s Mot. 1. The Court DENIES the
Motion for Reconsideration. The Court stands by its decision on summary judgment. It will,
however, take this opportunity to clarify its prior holding.
BACKGROUND
A. Factual Background
In April 2017, Plaintiff Toby Pack, a CSX employee, applied for Family and Medical
Leave Act (FMLA) leave for his chronic kidney stones. See ECF 158-4. In the medical certification
accompanying Pack’s application, Pack’s physician estimated the condition required intermittent
leave up to three times per month for one day per episode. See id. CSX approved Pack’s
application. See ECF 158-9, at 14.
On August 23, 2017, Pack called CSX’s Crew Management Center (CMC) to request time
off. See id. at 21. Pack later testified he requested time off because he started to feel pain from his
condition and believed he would need to see a doctor. ECF 158-3, at 51. Pack testified that, when
he called, he was transferred several times. Id. at 60, 63. Eventually, Pack and a CMC
representative had the following exchange:
Pack: Uh yeah, can I get a personal day in for tomorrow cause uh my kids uh
starting a new school.
CMC Desk: Let me see if one’s available. It’s not available for tomorrow there Mr.
Pack.
. . .
Pack: Well: [sic] okay. well [sic] um I guess you’ll have to lay me off FMLA then.
CMC Desk: Okay, so FMLA for your kids [sic] school event; alright, understood
I’ll get you laid off, okay.
Pack: Thank you.

ECF 158-9 at 21.
Pack later “testified that he needed to be off both because his kids were starting a new
school and because his medical condition had started to flare up . . . .” ECF 160, at 6 (emphasis in
original omitted) (citing ECF 158-13, at 24). He explained he initially asked for a personal day,
rather than FMLA leave, so he would be paid for the day and could avoid “us[ing] up” the FMLA
time for which he had been approved. ECF 158-3, at 60.
In previous calls, Pack had tried to explain to the CMC representative his reason for taking
FMLA leave. See id. at 46. But the representatives in those calls had told him they did not “need
to know that.” Id.
Pack ended up taking four days of medical leave. See id. at 57.
Based on the phone exchange with the CMC representative, “CSX charged Pack with
FMLA misuse and removed him from service pending an investigatory hearing.” ECF 160, at 5.
CSX Trainmaster Michael Ward oversaw Pack’s hearing. See ECF 158-13, at 1. CSX’s
FMLA Manager, Jolanda Johnson, served as CSX’s witness. See id. Johnson said it was clear,
based on Pack’s exchange with the CMC representative, that “Pack marked off FMLA for an
unapproved reason”—so clear that “[t]here wasn’t a need” for CSX to “determine if the leave that
[Pack] requested was actually used . . . for purposes of the FMLA.” Id. at 13–14. Johnson refused
to say whether CSX prohibits employees from attending to family obligations while on FMLA
leave. Id. at 14–16.

During the hearing, Pack testified he saw a doctor for his flare up. See id. at 30. He gave
Ward a doctor’s note dated August 24, 2017 which stated Pack had been under a doctor’s care
“from 8/24/17 to 8/27/27.” ECF 158-9, at 27; see ECF 158-13, at 28.
After the hearing, Ward concluded Pack had misused FMLA leave. See ECF 158-14. CSX
then terminated Pack. See ECF 158-6.
In 2016, CSX implemented a system to automatically identify employees who might be
misusing FMLA leave. See ECF 165-2, at 40–42. The system flagged employees who, within the
past twelve weeks, had taken FMLA leave on (1) four weekend days or (2) four weekdays adjacent
to a day off. See id. at 58–61. It also flagged employees who had used FMLA leave on four of the
past ten holidays. See id. at 115–16; Parker v. CSX Transp., Inc., No. 2:18-cv-00274, 2021 WL

3022703, at *6 (N.D. Ala. July 16, 2021). If an employee was flagged three times, they faced a
disciplinary hearing and potential dismissal. See ECF 165-2, at 102–03. After the 2017 holidays,
CSX relied on this system to remove every employee who used FMLA during the holidays from
service, unless the leave was for cancer, terminal illness, or childbirth. See id. at 114–15, 126–28,
144–45.
Pack sued, alleging that CSX interfered with his right to take FMLA leave and terminated
him in retaliation for his going on leave. See ECF 147, 2d Amend. Compl. ¶¶ 44, 47. CSX moved
for summary judgment, arguing Pack cannot “prove that CSX did not honestly believe he misused
FMLA leave and did not truly discipline him on that basis.” ECF 160, at 1.
B. The Court’s Prior Ruling
The Court granted summary judgment with respect to Pack’s FMLA interference claim.
See ECF 170, at 5. It concluded, however, that Pack had offered sufficient evidence to present his
FMLA retaliation claim to a jury. See id.

The Court began its analysis by quoting the Sixth Circuit’s decision in Smith v. Chrysler
Corp.:
When [an] employee is able to produce sufficient evidence to establish that the
employer failed to make a reasonably informed and considered decision before
taking its adverse employment action, thereby making its decisional process
‘unworthy of credence,’ then any reliance placed by the employer in such a process
cannot be said to be honestly held.

Id. at 4 (quoting 155 F.3d 799, 807–08 (6th Cir. 1988)). The Court also noted that the Fourth
Circuit, in Sharif v. United Airlines, Inc., had quoted Smith. See id. (citing 841 F.3d 199, 206 (4th
Cir. 2016)).
The Court then concluded “Pack ha[d] produced ‘sufficient evidence to establish that’
CSX’s decision to terminate him was not ‘reasonably informed and considered.’” ECF 170, at 4
(quoting Smith, 155 F.3d at 807). The Court explained that, since the evidence that Pack misused
FMLA leave was so limited, a reasonable juror could find “that CSX’s purported reason for
terminating Pack was pretextual.” Id. at 5.
STANDARD OF REVIEW
“[A] district court retains the power to reconsider and modify its interlocutory judgments
. . . at any time prior to final judgment when such is warranted.” Am. Canoe Ass’n v. Murphy
Farms, Inc., 326 F.3d 505, 514–15 (4th Cir. 2003). “[A] court may revise an interlocutory order”
due to “(1) a ‘subsequent trial producing substantially different evidence’; (2) a change in
applicable law; or (3) clear error causing ‘manifest injustice.’” Carlson v. Bos. Sci. Corp., 856 F.3d
320, 325 (4th Cir. 2017) (quoting Am. Canoe, 325 F.3d at 515).
CSX argues that “clear error” justifies reconsideration here. See ECF 172, Def.’s Mem. 6.
“A prior decision does not qualify for” the clear-error exception “by being ‘just maybe or probably

wrong; it must strike [the Court] as wrong with the force of a five-week-old, unrefrigerated dead
fish.” TFWS, Inc. v. Franchot, 572 F.3d 186, 194 (quoting Bellsouth Telesensor v. Info. Sys. &
Networks Corp., 65 F.3d 166, 1995 WL 520978, at *5 n.6 (4th Cir. 2009) (unpublished table
decision)).
ANALYSIS
The FMLA provides that “[i]t shall be unlawful for any employer to discharge or in any
other manner discriminate against any individual for opposing any practice made unlawful by this
subchapter.” 29 U.S.C. § 2615(a)(2). To make out a retaliation claim, “a plaintiff must show ‘that
he engaged in protected activity, that the employer took adverse action against him, and that the
adverse action was causally connected to the plaintiff's protected activity.’” Sharif, 841 F.3d at

203 (quoting Yashenko v. Harrah’s NC Casino Co., 446 F.3d 541, 551 (4th Cir. 2006)).
When a plaintiff lacks direct evidence of retaliatory intent, the plaintiff must establish
intent through the “burden shifting framework articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 800–06 (1973).” Id. Under this framework:
[A] plaintiff must first produce sufficient evidence to establish a prima facie case
that the elements of retaliation are satisfied. The burden of production then shifts
to the employer to rebut the prima facie presumption of retaliation and provide
‘some legitimate, nondiscriminatory reason’ for the adverse employment action. If
the employer meets this burden, the presumption of retaliation is dissolved and the
plaintiff resumes the burden of persuading the factfinder that the employer's
proffered explanation is merely a pretext for discrimination.
Id. (quoting McDonnell, 411 U.S. at 802) (internal citations omitted). As CSX acknowledges,
“[t]he step at issue here is the final one: the plaintiff’s burden to prove pretext.” Def.’s Mem. 7.
CSX argues the Court clearly erred by applying “a standard that evaluates the sufficiency
of CSX’s decision-making process rather than the dispositive question required by Fourth Circuit

law: whether CSX acted in good faith for the reason it gave.” Id. at 6. First, CSX argues Fourth
Circuit precedent “forecloses any attempt to prove pretext by second-guessing the adequacy of an
employer’s investigation or decision-making process.” Id. at 9. Second, it argues the Court erred
by relying on Smith and suggesting Sharif “import[ed] Smith’s process-based standard.” Id. at 11;
see id. at 10. The Court addresses each argument in turn. It then expands on its reasons for denying
summary judgment.
A. A Thin Basis for Terminating an Employee May Establish Pretext
As CSX points out, see id. at 8, “[w]hen an employer gives a legitimate, non-discriminatory
reason for discharging [an employee], ‘it is not [the Court’s] province to decide whether the reason
was wise, fair, or even correct, . . . so long as it truly was the reason for the plaintiff’s termination,’”

Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (quoting DeJarnette v. Corning Inc.,
133 F.3d 293, 299 (4th Cir. 1998)). The court “does not sit as a kind of super-personnel department
weighing the prudence of employment decisions.” DeJarnette v. Corning Inc., 133 F.3d 293, 299
(4th Cir. 1998).
CSX concludes, based on these statements, that Fourth Circuit precedent forbids “inquiries
into the thoroughness of an employer’s decision-making process.” Def.’s Mem. 8. The Court
disagrees. Fourth Circuit precedent clearly establishes that the relevant standard—the question the
jury must answer—is whether the employer had a retaliatory motive, not whether the employer’s
decision to terminate the employee was correct. But caselaw does not preclude a jury from
answering that question by considering facts about the employer’s investigation of the alleged
misconduct, the employer’s process for deciding whether to terminate the employee, and the
employer’s purported basis for the termination. The Fourth Circuit’s decision in Laing v. Federal
Exp. Corp. helps explain this distinction:

[I]n attempting to defend the conduct that led to her termination, all Laing has
proven is the unexceptional fact that she disagrees with the outcome of FedEx's
investigation. But such disagreement does not prove that FedEx's decision to fire
her for falsifying her records was dishonest or not the real reason for her
termination, which is what is required at step three of the burden-shifting
framework. . . .

To be clear, if FedEx's disciplinary action had been based on little evidence of
wrongdoing, a genuine issue might exist as to pretext.

703 F.3d 713, 722 (4th Cir. 2013) (cleaned up) (emphasis added). While it is not the Court or the
jury’s job to decide whether a termination was “wise, fair, or correct,” a remarkably unwise, unfair,
or incorrect decision may be probative evidence of retaliatory intent. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (“Proof that the defendant's explanation is
unworthy of credence is simply one form of circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.”).
Defendant argues this is at odds with the Fourth Circuit’s decisions in Adkins v. CSX
Transportation, Inc. and Shipton v. Baltimore Gas and Electric Company. See Def.’s Mot. 8. In
Adkins, the defendant had fired dozens of employees after they submitted nearly identical FMLA
forms, all of which were signed by one of two chiropractors. See 70 F.4th 785, 790–91 (4th Cir.
2023). The plaintiffs in Adkins argued they presented sufficient evidence of pretext for two
reasons: (1) the defendant’s Chief Medical Officer, Dr. Heligman, “was the only witness who
testified on behalf of the company” at the plaintiffs’ disciplinary hearings, “and by the time he
testified, . . . he had already concluded that the Plaintiffs engaged in fraud and were guilty,” and
(2) the defendant “did not identify any conclusive evidence of fraud . . . .” Id. at 793 (cleaned up).
The Fourth Circuit rejected this argument, explaining “that while Dr. Heligman’s conclusions may
have been ‘predetermined’ as of the time of the hearings, that fact does not make the conclusions
pretextual.” Id. The court noted that the “clear pattern” in the forms the employees submitted “well

supported” Dr. Heligman’s suspicion. Id.
In Shipton, the defendant had fired an employee, purportedly because there was
“conflicting medical documentation” in his FMLA paperwork. 109 F.4th 701, 705–06 (4th Cir.
2014). The Fourth Circuit concluded there was no evidence of pretext, explaining it was
“undisputed” that the plaintiff “submitted conflicting medical paperwork” his employer “could not
reconcile . . . .” Id. at 709.
Neither Adkins nor Shipton limits the scope of evidence a jury may consider in deciding
whether an employer’s purported basis for terminating an employee was pretextual. They simply
confirm what no one disputes: to survive summary judgment, a plaintiff must adduce affirmative
evidence of pretext. The plaintiffs in Adkins and Shipton offered no such evidence.

B. Smith Is Persuasive and Consistent with Fourth Circuit Precedent
As noted above, the Court’s original order denying summary judgment quoted the Sixth
Circuit’s decision in Smith and noted that the Fourth Circuit quoted Smith in Sharif. The Court’s
original discussion of Smith and Sharif was potentially misleading. In Smith, the Sixth Circuit
stated:
When [an] employee is able to produce sufficient evidence to establish that the
employer failed to make a reasonably informed and considered decision before
taking its adverse employment action, thereby making its decisional process
‘unworthy of credence,’ then any reliance placed by the employer in such a process
cannot be said to be honestly held.
155 F.3d at 807–08. It separately said that “the key inquiry is whether the employer made a
reasonably informed and considered decision before taking an adverse employment action.” Id. at
807. This Court’s original opinion seemed to suggest that Sharif quoted the former statement from
Smith. See ECF 170, at 4. Sharif actually quoted the latter statement. See Sharif, 841 F.3d at 206.

At the time the Court issued its original decision, CSX had expressly agreed the latter
statement from Smith governed in this case:
And although “the key inquiry is whether the employer made a reasonably informed
and considered decision before taking an adverse employment action,” the
employer is under “no obligation to pursue additional investigation when it has
more than ample reason to believe it has been lied to.” Sharif, 841 F.3d at 206
(quoting Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998)).

ECF 168, at 5 (emphasis added). CSX has now changed its mind, arguing the Court erred by asking
whether “CSX failed to make a ‘reasonably informed and considered decision.’” Def.’s Mem. 1.
Defendant asserts Smith’s framework is at odds with the Fourth Circuit’s decisions in
Sharif, Shipton, and Adkins. See id. at 10–11. As the Court already explained, Shipton and Adkins
do not hold that evidence of pretext cannot come from flaws in the defendant’s decision-making
process, a limited investigation of the alleged misconduct, or a thin basis for terminating the
plaintiff. Neither does Sharif. In fact, Sharif states that the “failure to comply with established
investigatory procedures might indeed be evidence of improper motive . . . .” 841 F.3d at 206
(emphasis added).
As CSX correctly concludes, “Sharif . . . stands for the proposition that an employer need
not conduct a perfect investigation—it need only act on a genuine, reasonably grounded belief.”
Def.’s Mem. 11; see Sharif, 841 F.3d at 206 (holding that an employer has “no obligation to pursue
additional investigation when it ha[s] more than ample reason to believe it ha[s] been lied to”).
But that does not mean a flawed or unreasonably limited investigation cannot suggest pretext; it
may well demonstrate the employer did not “act on a genuine, reasonably grounded belief.”
CSX also argues the Court should not have cited “Sharif to justify importing Smith’s
process-based standard.” Def.’s Mem. 11; see id. at 10. While Sharif seems to have cited Smith
with approval,1 see Sharif, 841 F.3d at 206, the Court agrees that Sharif did not “import” the Sixth

Circuit’s framework for FMLA retaliation.
Regardless, the Court finds Smith persuasive. Its analysis aligns with both Supreme Court
and Fourth Circuit precedent. See Reeves, 530 U.S. at 147 (“Proof that the defendant's explanation
is unworthy of credence is simply one form of circumstantial evidence that is probative of
intentional discrimination, and it may be quite persuasive.”); Shipton, 109 F.4th at 709 n.5 (“Of
course, we do not hold that an employer has carte blanche authority to terminate an employee on
the basis of unsubstantiated claims of misconduct related to FMLA leave. An employer must have
a legitimate basis for believing an employee committed misconduct related to use of FMLA
leave.”); Sharif, 841 F.3d at 206 (“[F]ailure to comply with established investigatory procedures

might indeed be evidence of improper motive . . . .”); Laing, 703 F.3d at 722 (“[I]f FedEx's
disciplinary action had been based on little evidence of wrongdoing, a genuine issue might exist
as to pretext.”). Accordingly, the Court applied the correct legal standard in ruling on CSX’s
Motion for Summary Judgment.
C. Defendant Is Not Entitled to Summary Judgment
Pack has pointed to several pieces of evidence that suggest pretext. First, CSX’s decision
to terminate Pack rested solely on the transcript of Pack’s call with the CMC. Nothing in that call
could have given CSX an “ample reason to believe” Pack was misusing FMLA leave. Sharif, 841

1 The Fourth Circuit also cited Smith approvingly in EEOC v. Sears Roebuck & Co. See 243 F.3d 846, 853–54 (4th
Cir. 2001).
F.3d at 206. While Pack initially asked for a personal day and then requested FMLA leave when
he learned a personal day was not available, Pack provided a reasonable explanation for the revised
request: he needed to take off for both personal and medical reasons, and taking a personal day
would allow him to keep getting paid.

It is also true that Pack did not object when the CMC operator said “FMLA for your kid[’]s
school event; alright, understood . . . .” But given Pack’s testimony that he had been transferred
several times beforehand, it is unsurprising Pack did not want to extend the call by clarifying the
reasons for his leave request, especially since CMC operators had rebuffed his attempts to explain
his need for leave in the past.
Pack’s doctor’s note further weakens CSX’s basis for terminating him. CSX makes much
of the fact that the note was dated August 24, the day after Pack called to request medical leave.
See Def.’s Mem. 3, 12; ECF 175, at 6; ECF 160, at 6, 12; ECF 168, at 9. But even if this decreases
the probative value of the note somewhat, the note still makes CSX’s conclusion that Pack abused
leave less reasonable.

As CSX states, “the relevant question is whether the employer truly believed the reason it
gave . . . .” Def.’s Mem. 13. Here, CSX’s purported basis for terminating Pack was so thin that a
reasonable juror could conclude CSX did not “truly believe[] the reason it gave.”
Second, CSX made no attempt to investigate whether Pack had misused FMLA leave. Ms.
Johnson said “[t]here wasn’t a need” for CSX to “determine if the leave that [Pack] requested was
actually used for FMLA protection or for purposes of the FMLA.”
In EEOC v. Sears Roebuck & Co., the Fourth Circuit reversed a grant of summary judgment
where an employer had declined to hire the plaintiff, purportedly because the employer believed
the plaintiff had been investigated for sexual harassment. See 243 F.3d 846, 849–50, 857 (4th Cir.
2001). The plaintiff had not, in fact, been investigated. See id. at 853. The Fourth Circuit held that
the employer’s failure to verify whether the plaintiff had been investigated constituted evidence of
pretext. See id. (“A juror could easily find it implausible that [the employer] would reject a
qualified applicant . . . without first substantiating that he was, in fact, the individual accused of

sexual harassment.”).
Similarly, CSX’s failure to investigate whether Pack abused medical leave may
demonstrate pretext. Given the limited evidence that Pack used FMLA time for an unapproved
reason, “[a] juror could easily find it implausible” that CSX would have fired him without further
inquiry.
Third, CSX’s historical treatment of FMLA abuse cases reflects a continued pattern of
discouraging FMLA leave use. Its decision to automatically suspend employees who took FMLA
leave on holidays is especially troubling. See Parker, 2021 WL 3022703, at *16 (“The
reverberating message CSX sent to employees with its arbitrary test is clear: use FMLA leave over
the holidays, and you may be taken out of service to face charges of misuse. The chilling effect of

CSX's mass charging of employees with FMLA misuse based on an arbitrary 4-in-10 test is
unmistakable.”).
These facts distinguish this case from Sharif, Adkins, and Shipton. In Sharif, the Fourth
Circuit upheld a grant of summary judgment in a FMLA retaliation suit. See 841 F.3d at 207. The
defendant had investigated the plaintiff after the plaintiff took medical leave while he was on
vacation. See id. at 201. When later asked about his absence, the plaintiff “sat in silence” and then
gave “inconsistent answers” about the reason he took leave. Id. at 202. The plaintiff never gave
the defendant any evidence to support his explanation for taking leave. See id. at 205. Also, the
defendant had not been “historically hostile to FMLA leave in any discernable way.” Id. Based on
these facts, the court concluded the defendant had “more than ample reason to believe” the plaintiff
had misused FMLA leave. Id. at 206. Here, CSX had much less reason to believe Pack had taken
leave for an unapproved reason, and Pack provided CSX with affirmative evidence that he was
experiencing a flare-up of his condition when he went on leave. In addition, evidence suggests

CSX has been historically hostile to FMLA leave.
In Adkins, there was substantial evidence that the plaintiffs had misused FMLA leave:
dozens of employees had submitted nearly identical FMLA forms, all of which were signed by
one of two chiropractors. See 70 F.4th at 790. Also, the Fourth Circuit concluded that the plaintiffs
had “failed to put forward any evidence” of pretext. Id. at 794 (emphasis in original omitted). Here,
CSX’s basis for terminating Pack—the CMC call transcript—is far less suspicious than the
overlapping forms in Adkins, and Pack has offered several pieces of evidence to support his claim
of pretext.
Finally, in Shipton, it was undisputed that the plaintiff had submitted conflicting medical
documentation to his employer. Here, whether Pack misused FMLA leave was very much in

dispute. He provided a reasonable explanation for initially asking the CMC desk for a personal
day, and the doctor’s note supported his claim that he was experiencing a medical episode.
Based on the evidence in the record, a reasonable juror could conclude that CSX’s
purported reason for terminating Pack was pretextual.
CONCLUSION
The Court did not clearly err in denying Defendant’s Motion for Summary Judgment.
Accordingly, the Court DENIES Defendant’s Motion for Reconsideration.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.
ENTER: March 25, 2026

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11281929. Public record. Not legal advice.