Moss

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DONALD LEE MOSS,

Plaintiff,

v. Case No.: 3:25-cv-257-WWB-LLL

CSX TRANSPORTATION, INC.,

Defendant.

/

ORDER

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

(Doc. 49), Plaintiff’s Response in Opposition (Doc. 51), and Defendant’s Reply (Doc. 52).

For the reasons set forth below, Defendant’s Motion will be denied.

I. BACKGROUND

Plaintiff, Donald Lee Moss, began working for Defendant, CSX Transportation, Inc.

(“CSX”) in 1996 as a track supervisor. (Doc. 50-1 at 19:6–15). After a series of

promotions, by 2022 Plaintiff was the Chief Engineer North for CSX. (Id. at 19:14–22:12,

26:16–19). In that role, Plaintiff was responsible for ensuring the safety of the employees

in the engineering department and the safety, inspection, maintenance, and repair of the

infrastructure, such as tracks and bridges. (Id. at 23:3–18). From 2016 to shortly before

his resignation, Plaintiff reported to the head of the engineering department, Ricky

Johnson. (Id. at 24:1–9). Due to organizational changes in December 2021, Plaintiff

began reporting to Greg Mellish, who had been promoted to the Assistant Vice President

of Engineering. (Id. at 24:10–13, 24:23–25:6. 101:9–11; Doc. 50-2 at 60).

In late 2021, CSX experienced a series of derailments. (Doc. 50-1 at 58:23–60:1;

Doc. 50-4 at 41:23–42:4; see also Doc. 13, ¶¶ 13, 17). In responding to the incidents,

Plaintiff felt that Johnson and other executives were applying pressure and asking

employees to falsely report the costs of the derailments to avoid having to report the

derailments to the Federal Railroad Administration. (Doc. 50-1 at 58:4–22; Doc. 50-2 at

63–64; Doc. 50-9 at 198, 201). On January 18, 2022, Plaintiff had lunch with Carl Walker,

the chief engineer of communications and signals at all times relevant to this litigation,

and discussed a letter with him that Plaintiff intended to send to CSX executives. (Doc.

50-1 at 124:11–125:10; Doc. 50-4 at 8:14–9:7). Walker declined to sign the letter and

cautioned Plaintiff against sending it. (Doc. 50-1 at 124:14–125:15). Nevertheless, on

January 21, 2022, Plaintiff sent the letter to Jim Foote, the CEO of CSX, and several

board members by certified mail, outlining his concerns regarding the reporting of

derailments. (Doc. 50-2 at 14, 63–65). Plaintiff also sent the letter to Foote by e-mail on

the evening of January 21, 2022. (Doc. 50-1 at 119:10–14; Doc. 50-2 at 62).

The same day he sent the letter, Johnson called Plaintiff into his office to meet with

him and a member of the human resources department. (Doc. 50-1 at 79:25–80:6,

113:18–115:2; Doc. 50-9 at 83:1–9, 85:16–18). Initially, Johnson attempted to discuss

Plaintiff’s unhappiness with the decision to promote Mellish instead of Plaintiff. (Doc. 50-

1 at 115:2–9; Doc. 50-9 at 68:2–21). When Plaintiff denied that he was upset about the

promotion and was willing to work for Mellish, Johnson abruptly changed the topic to the

derailments and asked Walker to be brought into the meeting. (Doc. 50-1 at 115:6–13;

Doc. 50-4 at 55:5–9, 55:25–56:6; Doc. 50-9 at 68:25–69:3, 85:19–21). Not wishing to

discuss the issue in light of his letter to Foote, Plaintiff left the meeting. (Doc. 50-1 at

115:14–116:4, Doc. 50-4 at 56:20–57:5; Doc. 50-9 at 67:13–20, 86:2–12).

The following Monday, attorneys with Jones Day scheduled an interview with

Plaintiff to discuss his letter. (Doc. 50-1 at 51:21–52:7, 93:7–11). Plaintiff was interviewed

on January 31, 2022, and felt that the interview was adversarial in nature and that the

attorneys were attempting to discredit him and his claims. (Id. at 50:12–21, 158:7–25;

Doc. 50-2 at 7).

On February 1, 2022, at roughly 7:30 p.m., Plaintiff received an e-mail from the

executive director of compensation requesting that Plaintiff review, sign, and return a

Confidentiality, Non-Solicitation and Non-Competition Agreement on or before February

14, 2022. (Doc. 50-2 at 66). Failure to agree to the term of the contract would not have

resulted in termination but would have resulted in the loss of participation in the Long-

Term Incentive Plan (“LTIP”). (Id.; Doc. 50-8 at 35:5–14). The LTIP accounted for roughly

fifty to sixty percent of Plaintiff’s compensation in the relevant time frame. (Doc. 50-1 at

161:22; Doc. 50-7 at 21–22). The decision to include all head of department level

employees and above in operations in the pool of employees required to sign non-

compete agreements was made in roughly August 2021. (Doc. 50-7 at 26–29, 67). The

list of individuals that were required to sign was circulated on January 13, 2022. (Doc.

50-2 at 98; Doc. 50-7 at 32–33, 72). A number of employees received the e-mail after

business hours on February 1, 2022, into the early morning hours of February 2, 2022.

(Doc. 50-2 at 74–97).

Although Plaintiff received an e-mail from Johnson on January 27, 2022, setting

forth his bonus and raise for 2022, Johnson failed to schedule an in person meeting to

discuss his performance by the suggested January 28, 2022 deadline. (Doc. 50-1 at

143:14–144:24; Doc. 50-2 at 100, 104–105). Instead, Johnson sent Plaintiff an invite to

meet on February 7, 2022. (Doc. 50-2 at 106).

On February 4, 2022, Plaintiff joined a meeting by telephone, although many of

those present were unaware of his attendance. (Doc. 50-1 at 80:8–13, 175:23–176:16;

Doc. 50-9 at 142:14–19). During the meeting, the Chief Operating Officer announced that

Plaintiff should go to Albany, New York for the weekend to assist crews to prepare for a

projected snowstorm. (Doc. 50-1 at 95:14–15, 138:3–4, 175:18–21, 176:17–21; Doc. 50-

9 at 142:20–23). Plaintiff testified that although lead engineers might be dispatched

ahead of an impending hurricane, they would not send someone in his position to address

a forecasted snowstorm. (Doc. 50-1 at 95:23–96:6, 168:11–19, 170:10–12, 172:10–17,

178:23–179:8; Doc. 50-2 at 8). Although several witnesses testified that this would have

been a routine trip, no one could recall specific instances of other similar employees being

deployed to a snowstorm. (Doc. 50-1 at 177:2–11; Doc. 50-4 at 24:8–25:7, 26:12–17;

Doc. 50-5 at 30:3–32:9; Doc. 50-6 at 15:20–16:8, 19:22–25; Doc. 50-9 at 41:3–42:16,

44:16–45:17, 51:1–12, 151:14–152:9).

Plaintiff travelled to Albany, as instructed, but began to feel that he was likely to be

terminated based on the series of events that had transpired since he submitted his letter

to Foote. (Doc. 50-1 at 93:7–17). Accordingly, on February 6, 2022, at roughly 11:15

p.m., Plaintiff sent an e-mail to Mellish notifying him that he was “retiring from CSX” and

his “last day worked [wa]s 2/06/2022.” (Doc. 50-2 at 56). Plaintiff then paid for his own

return flight home from Albany. (Doc. 50-1 at 96:9–11).

Subsequent to his resignation, Plaintiff was employed first by Herzog, a railroad-

related company that acted as a vendor to CSX. (Doc. 50-1 at 181:16–19; Doc. 50-9 at

117:2–4, 159:21–22). Plaintiff testified that, sometime in the summer 2022, Johnson

called Herzog’s COO and spoke disparagingly of Plaintiff and stated that Plaintiff was not

permitted to contact anyone at CSX in the course of his duties with Herzog. (Doc. 50-1

at 76:3–12; Doc. 50-2 at 10, 35). Johnson does not believe that he made such a call and

cannot recall if he did or did not contact Herzog; however, he testified that he frequently

spoke with a higher up in Herzog on business matters and did inform him that CSX was

happy with its current representative. (Doc. 50-9 at 160:2–163:1). Johnson testified that

he did not, to the best of his knowledge, tell Herzog’s COO that Plaintiff could not contact

CSX and was not permitted on CSX property. (Id. at 163:18–164:1).

Plaintiff left Herzog for Amtrak in September 2022. (Doc. 50-2 at 43, 60–63).

Mellish found out that Plaintiff intended to work for Amtrak and contacted Larry Biess, an

Amtrak executive, to ask if Plaintiff was in fact working for Amtrak. (Doc. 50-6 at 22:17–

23:5). Mellish knew Biess because Biess had previously worked at CSX. (Id. at 23:3–5).

Plaintiff states that Mellish told Biess that Plaintiff left CSX on bad terms, that Plaintiff had

CSX “up to [their] eyeballs in attorneys investigating” the company, and that Plaintiff was

banned from the property. (Doc. 50-1 at 76:13–77:8; Doc. 50-2 at 10–11, 35). During the

call, Mellish admits that he informed Biess that Plaintiff had left CSX under conditions that

“were not good.” (Doc. 50-6 at 23:10–13). Mellish testified that he was neither trying to

help or hurt Plaintiff by contacting Biess and that he did not recall discussing the call with

anyone at CSX. (Id. at 23:24–24:14).

As a result of the above actions and conduct by CSX after Plaintiff’s letter to Foote,

Plaintiff brings a one count Complaint against CSX for retaliation in violation of the Federal

Railroad Safety Act (“FRSA”), 49 U.S.C. § 20101 et seq. (See generally Doc. 1).

II. LEGAL STANDARD

Summary judgment is appropriate when the moving party demonstrates “that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it may “affect the outcome of

the suit under the governing law.” Id. “The moving party bears the initial burden of

showing the court, by reference to materials on file, that there are no genuine issues of

material fact that should be decided at trial.” Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1313–14 (11th Cir. 2007). Stated differently, the moving party discharges its burden by

showing “that there is an absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

However, once the moving party has discharged its burden, “Rule

56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own

affidavits, or by the depositions, answers to interrogatories, and admissions on file,

designate specific facts showing that there is a genuine issue for trial.” Id. at 324

(quotation omitted). The nonmoving party may not rely solely on “conclusory allegations

without specific supporting facts.” Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th

Cir. 1985). Nevertheless, “[i]f there is a conflict between the parties’ allegations or

evidence, the [nonmoving] party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the [nonmoving] party’s favor.” Allen, 495 F.3d at 1314.

III. DISCUSSION

As an initial matter, the parties dispute what claim is at issue in this litigation.

Defendant argues that Plaintiff is limited to a claim for constructive discharge, while

Plaintiff argues that he has alleged a number of actionable adverse employment actions

and a more broad retaliation claim. Setting aside exhaustion requirements, “[i]t is well

settled that ‘[a] plaintiff may not amend [his] complaint through argument in a brief

opposing summary judgment.’” Varazo v. Keiser Corp., 754 F. App’x 918, 919 (11th Cir.

2018) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)).

Thus, the Court can decline to address claims that were not properly pleaded at the

summary judgment stage. See Optimum Techs., Inc. v. Henkel Consumer Adhesives,

Inc., 496 F.3d 1231, 1247 (11th Cir. 2007).

Having carefully reviewed the Complaint (Doc. 1), the Court does not agree that

Plaintiff is limited solely to a constructive discharge claim. Although Plaintiff does

specifically reference constructive discharge in his factual allegations and invokes similar

language in his cause of action, (see id. ¶¶ 8–9, 42), Plaintiff also references acts of

retaliation, specifically notes in his factual allegations that he felt that certain acts were

retaliatory, and alleges that Defendant “took the retaliatory actions” because of his

protected activity in his cause of action, (id. ¶¶ 21, 34, 36, 43). Additionally, Plaintiff

specifically alleges two acts of post-resignation retaliation. If Plaintiff intended to limit his

pleading to only constructive discharge, such allegations would offer little to no support

for his claim as obviously actions taken post-employment cannot contribute to a

constructive discharge. Therefore, the Court finds that Plaintiff has alleged both

constructive discharge and general retaliation under the FRSA.

Nevertheless, as Defendant notes, the FRSA also contains exhaustion

requirements. Pursuant to 49 U.S.C. § 20109(d)(1), any person alleging discrimination

in violation of § 20109 must first file a complaint with the Secretary of Labor. See also

Grantham v. CSX Transp., Inc., No. 2:19-CV-65, 2020 WL 13282047, at *3 (S.D. Ga. Feb.

5, 2020). “An employee exhausts his FRSA claim if the civil claim grows out of or is like

or reasonably related to the substance of the allegations in the administrative charge.”

Nix v. CSX Transp., Inc., No. 3:20-cv-250, 2022 WL 1746915, at *8 (M.D. Fla. Mar. 29,

2022) (quotation omitted).1 Here, Plaintiff’s Processed Online Complaint Summary

specifically identifies “Constructive discharge” and “Termination, Other” as adverse

actions, and the summary relies on the request to sign the non-compete as evidence that

Plaintiff was on the verge of being “fired or forced out” if he did not resign. (Doc. 50-2 at

14–15). However, Plaintiff’s Statement of the Case and Facts reads as a nearly verbatim

recitation of the facts alleged in the pleading in this case. (Id. at 17–23). Although the

allegations regarding the call to Amtrak were omitted, these allegations were

subsequently disclosed in Plaintiff’s interrogatory responses in the administrative

proceeding. (Id. at 35). Because Plaintiff’s OSHA complaint provided a list of specific

1 Although the text of the FRSA’s exhaustion requirement differs from the

requirements of Title VII, numerous courts have applied the same standard in FRSA

cases. Defendant does not argue that a different standard is applicable and has cited

cases applying the “generous standard applied under Title VII.” Foster v. BNSF Ry. Co.,

866 F.3d 962, 966 (8th Cir. 2017); see also Brisbois v. Soo Line R.R. Co., 124 F. Supp.

3d 891, 899–900 (D. Minn. 2015). Absent controlling authority to the contrary or argument

by Defendant that a different standard should apply in this case, the Court will apply the

Title VII standard in this case with respect to exhaustion.

instances of retaliation and, like his judicial complaint, did not explicitly limit his claim to

one for constructive discharge, the Court finds that Plaintiff’s claims for retaliation have

been administratively exhausted. See Grantham, 2020 WL 13282047, at *5–6; Head v.

Norfolk S. Ry. Co., No. 2:15-cv-2118, 2017 WL 4030580, at *13 (N.D. Ala. Sept. 13, 2017).

Plaintiff alleges a single claim for retaliation in violation of the FRSA, which

“prohibits railroad carriers from ‘discharg[ing], demot[ing], suspend[ing], reprimand[ing],

or in any other way discriminat[ing] against an employee if such discrimination is due, in

whole or in part, to’ the employee participating in a protected activity.” Hitt v. CSX Transp.,

Inc., 116 F.4th 1309, 1315 (11th Cir. 2024) (quoting 49 U.S.C. § 20109(a)). Enforcement

actions brought pursuant to the FRSA are governed by the standards set forth in the

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21”). 49

U.S.C. § 20109(d)(2)(A)(i); see also 49 U.S.C. § 42121(b). Under the AIR 21 standard,

“a plaintiff bears the burden of establishing that his protected activity was a contributing

factor to an adverse employment action.” Hitt, 116 F.4th at 1315. To do so, “an employee

must establish by a preponderance of the evidence that (1) he engaged in a protected

activity; (2) the railroad knew, actually or constructively, that he engaged in the protected

activity; (3) he suffered an adverse employment action; and (4) the protected activity was

a contributing factor in the adverse action.” Id. at 1315–16. If the plaintiff meets his

burden, an employer may avoid liability by “establish[ing] by clear and convincing

evidence that, even though protected activity contributed to its decision, it would have

taken the same adverse employment action in the absence of the protected activity.” Id.

at 1316.

Defendant does not dispute the first or second elements for purposes of summary

judgment. Instead, Defendant argues that Plaintiff failed to present evidence of an

adverse employment action. In addition to constructive discharge, Plaintiff argues the

following adverse actions: (1) an unplanned meeting with Johnson and a human

resources representative on January 21, 2022; (2) Plaintiff’s interview with Jones Day; (3)

the presentation of the non-compete agreement, which lacked a carve out for

whistleblowers; (4) his last minute assignment to travel to Albany for a forecasted

snowstorm; (5) Johnson’s failure to conduct an annual meeting within the same timeframe

as Plaintiff’s counterparts; and (6) phone calls to his new employers in an attempt to

blacklist him. The Court will first address each independent event before considering

constructive discharge.

Although the Eleventh Circuit has not directly addressed the standard to be applied

in FRSA cases to determine what constitutes an “adverse employment action,” Defendant

argues that the Burlington2 standard—used in Title VII cases—should apply. “[U]nder

Burlington Northern, in the context of a . . . retaliation claim, a materially adverse action

means it well might have dissuaded a reasonable worker from making or supporting a

charge.” Monaghan v. Worldpay US, Inc., 955 F.3d 855, 861 (11th Cir. 2020) (quotation

omitted); see also Joyner v. City of Atlanta, 170 F.4th 1320, 1338 (11th Cir. 2026).

Furthermore, “a set of actions may constitute a materially adverse action when

considered in the aggregate, even if individual actions do not rise to a materially adverse

action.” Davis v. Fla. Agency for Health Care Admin., 612 F. App’x 983, 986 (11th Cir.

2015) (citing Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002)).

2 Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Several courts in this Circuit have determined that the Burlington standard should

apply because the language used in the FRSA does not materially differ from the

language used in other retaliation statutes subject to the Burlington standard. See Hitt v.

CSX Transp., Inc., 672 F. Supp. 3d 1192, 1200–01 (N.D. Ala. 2023); Singleton v. Norfolk

S. Ry. Co., No. 1:19-CV-3133, 2023 WL 1768115, at *4 (N.D. Ga. Feb. 3, 2023); Stapleton

v. CSX Transp., Inc., 530 F. Supp. 3d 1128, 1143–47 (M.D. Fla. 2021). Additionally, the

Eleventh Circuit has applied the Burlington definition of adverse employment action in at

least one case involving the AIR 21 standard. See Jacobs v. U.S. Dep’t of Labor, 806 F.

App’x 832, 835 (11th Cir. 2020); see also Smith v, Haynes & Haynes P.C., 940 F.3d 635,

648 (11th Cir. 2019) (applying Burlington to a fair labor standards act retaliation claim,

which prohibits an employer from “in any other manner discriminating against an

employee because such employee has filed any complaint” (quoting 29 U.S.C.

§ 215(a)(3))). The Court notes, however, that other courts have adopted the standard

applied by the Administrative Review Board, which defines 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.” Fricka v. Nat’l R.R.

Passenger Corp., ARB Case No. 14-047, ALJ Case No. 2013-FRS-035, 2015 WL

7904894, at *4–5 (DOL Admin. Rev. Bd. Nov. 24, 2015) (quotation omitted); see also

Thomas v. Union Pac. R.R. Co., 203 F. Supp. 3d 1111, 1121–22 (D. Or. 2016).

The Court need not determine which standard should apply in this case. Although

Defendant argues that the meeting with Johnson, the interview, the last-minute weekend

assignment to travel to a snowstorm, the delay in his yearly review meeting, and the non-

compete agreement are not adverse actions, Defendant fails to address the post-

employment calls placed to Plaintiff’s new employers. The FRSA’s implementing

regulations specifically identify “blacklisting” an employee as an act of prohibited

retaliation. “A railroad carrier engaged in interstate or foreign commerce, or an officer or

employee of such a railroad carrier, shall not discharge, demote, suspend, reprimand, or

in any other way retaliate against, including but not limited to intimidating, threatening,

restraining, coercing, blacklisting, or disciplining, an employee for . . . [r]eporting, in good

faith, a hazardous safety or security condition.” 29 C.F.R. § 1982.102(b)(2)(i).3

After he resigned from CSX, Plaintiff was employed first by Herzog. Plaintiff

testified that sometime in the summer 2022, Johnson called Herzog’s COO and spoke

disparagingly of Plaintiff and stated that Plaintiff was not permitted to contact anyone at

CSX in the course of his duties with Herzog. Although Johnson disputes the call, he

testified that he frequently spoke with a higher up in Herzog on business matters and did

inform him that CSX was happy with its current representative.

Plaintiff also testified that on or about August 30, 2022, Mellish called an Amtrak

executive and told him that Plaintiff left CSX on bad terms, that Plaintiff had CSX “up to

[their] eyeballs in attorneys investigating” the company, and that Plaintiff was banned from

3 Furthermore, even under the more exacting Burlington standard, numerous

courts have found that post-employment blacklisting is a materially adverse employment

action. See, e.g., Hicks v. Lee Cnty. Sch. Dist., No. 2:15-cv-254-FtM, 2015 WL 6736748,

at *3 (M.D. Fla. Nov. 4, 2015) (“The post-employment retaliation alleged in plaintiff’s

Complaint, namely blacklisting, is precisely the type of conduct that the Title VII anti-

retaliation provision protects against.” (citing Robinson v. Shell Oil Co., 519 U.S. 337,

345–46 (1997))); Phillips v. M.I. Quality Lawn Maint., Inc., No. 10-20698, 2010 WL

4237619, at *5 (S.D. Fla. Oct. 21, 2010); Forsberg v. Pefanis, No. 1:07-CV-3116, 2009

WL 901015, at *15 (N.D. Ga. Jan. 26, 2009) (collecting cases), report & recommendation

adopted in part and rejected on other grounds in part, 2009 WL 901012 (N.D. Ga. Mar.

27, 2009); see also Stanley v. City of Sanford, 83 F.4th 1333, 1339 (11th Cir. 2023) (“[W]e

note that many retaliation claims are filed by former employees alleging, for example,

post-employment blacklisting.” (quotation omitted)).

the property. (Doc. 50-1 at 76:13–77:8; Doc. 50-2 at 10–11, 35). Mellish was familiar with

Biess and does not dispute that he made the call. Although Mellish does not recall

referencing attorneys, he conceded that the alleged statement was accurate, and he did

admit that he informed Biess that Plaintiff’s departure from CSX was not made under

good conditions.4

Taking the evidence in the light most favorable to Plaintiff, a reasonable jury could

find that the phone calls to Plaintiff’s subsequent employers and potential employers

constituted impermissible blacklisting. Specifically, the evidence, taken in the light most

favorable to Plaintiff, reflects that Defendant contacted both of Plaintiff’s new employers

at or near the time of his employment. While there is no indication that Herzog was made

specifically aware of Plaintiff’s protected activity, the alleged statements were clearly

intended to cast Plaintiff in a negative light and cause damage to his reputation in the

industry. With respect to Amtrak, Mellish could not recall mentioning the attorneys and

interviews, but also did not deny that it might have been discussed, directly linking his call

4 Defendant makes a conclusory argument that Plaintiff fails to “cite any admissible

evidence to defeat summary judgment” because the cited facts are “inadmissible

hearsay.” (Doc. 52 at 1). Defendant does not specifically seek the exclusion of any

evidence or further elaborate on what statements or evidence should be excluded from

consideration. W. Sur. Co. v. Steuerwald, No. 16-61815-CV, 2017 WL 5248499, at *2

(S.D. Fla. Jan. 17, 2017) (“It is axiomatic that arguments not supported and properly

developed are deemed waived.”); see also U.S. Steel Corp. v. Astrue, 495 F.3d 1272,

1287 n.13 (11th Cir. 2007) (noting that the court need not consider “perfunctory and

underdeveloped” arguments and that such arguments are waived). Nevertheless,

although “[t]he general rule is that inadmissible hearsay cannot be considered on a motion

for summary judgment, . . . a district court may consider a hearsay statement in passing

on a motion for summary judgment if the statement could be reduced to admissible

evidence at trial.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293 (11th Cir. 2012)

(quotations omitted). Because Defendant fails to establish that any hearsay statements

relied on by Plaintiff are inadmissible and cannot be reduced to admissible form by, for

example, having the declarant testify at trial, any such objections to the evidence are

overruled.

to Plaintiff’s protected conduct. Additionally, again the admitted contents of the call were

certainly disparaging of Plaintiff and called his reputation in the business into question. A

reasonable jury could infer that these calls were made with ill intent toward Plaintiff.

Rowan v. Hayes Chrysler-Dodge-Jeep, No. Civ.A.1:04CV1195, 2006 WL 825873, at *9–

10 (N.D. Ga. Mar. 27, 2006); Johnston v. Davis Sec., Inc., 217 F. Supp. 2d 1224, 1226,

1228–29 (D. Utah 2002); see also Ammons v. Brantley Cnty. Bd. of Comm’rs, No. 5:16-

CV-78, 2017 WL 498718, at *1–3 (S.D. Ga. Feb. 6, 2017); Hicks v. City of Alabaster, No.

2:11-CV-4107, 2013 WL 988874, at *8 (N.D. Ala. Mar. 12, 2013).

While there is no evidence that either Herzog or Amtrak took any action against

Plaintiff as a result of the calls, there is evidence that both were at least compelled to

address the allegations with Plaintiff. Furthermore, “a plaintiff is not required to prove that

she lost her job, or failed to obtain new employment, as a result of the alleged adverse

action in order to establish a prima facie case.” Goodgames v. Fulton Cnty. Sch. Dist.,

No. 1:09-CV-860, 2010 WL 11493519, at *17 (N.D. Ga. June 18, 2010), report &

recommendation adopted, 2010 WL 11493526 (N.D. Ga. Aug. 20, 2010); see also Equal

Opportunity Emp. Comm’n v. Ga. Council for the Hearing Impaired, Inc., No. 1:13-CV-

3144, 2015 WL 13358178, at *2 (N.D. Ga. Sept. 10, 2015) (collecting cases); Phillips,

2010 WL 4237619, at *5 (collecting cases). The Court finds, therefore, that Plaintiff has

presented a prima facie case of retaliation under the FRSA at this stage of the

proceedings. Because Defendant has failed to respond to the alleged blacklisting or offer

any evidence that it would have placed the calls in the absence of protected activity,

Defendant has not carried its burden and summary judgment will be denied.

IV. CONCLUSION

For the reasons set forth herein, it is ORDERED and ADJUDGED as follows:

1. Defendant's Motion for Summary Judgment (Doc. 49) is DENIED.

2. Defendant's Unopposed Motion to Extend Trial Brief Deadline (Doc. 61) is

GRANTED. The parties shall submit their joint final pretrial statement and

trial briefs on or before June 15, 2026.

DONE AND ORDERED in Jacksonville, Florida on June 8, 2026.

UNITED STATES T JUDG

Copies furnished to:

Counsel of Record