In the United States Court of Appeals for the Fourth Circuit

Transcription

1 CASE NO In the United States Court of Appeals for the Fourth Circuit WILLIAM M. CONRAD, Plaintiff - Appellant v. CSX TRANSPORTATION, INC., Defendant Appellee On Appeal From the United States District Court for the District of Maryland at Baltimore BRIEF FOR APPELLANT WILLIAM M. CONRAD LAWRENCE ALAN KATZ COFFEY KAYE MYERS & OLLEY Suite 718, Two Bala Plaza Bala Cynwyd, PA (610) (610) (Fax) lkatz@ckmo.com Counsel for Plaintiff-Appellant William M. Conrad Becker Gallagher Cincinnati, OH Washington, D.C

2 CORPORATE DISCLOSURE STATEMENT No William M. Conrad v. CSX Transportation, Inc. Pursuant to FRAP 26.1 and Local Rule 26.1, William Conrad who is the Appellant, makes the following disclosure: 1. Is party/amicus a publicly held corporation or other publicly held entity? NO 2. Does party/amicus have any parent corporations? NO 3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? NO 4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation (Local Rule 26.l(b))? NO 5. Is party a trade association? NO 6. Does this case arise out of a bankruptcy proceeding? NO BY: /s/ Lawrence Alan Katz LAWRENCE ALAN KATZ COFFEY KAYE MYERS & OLLEY Suite 718, Two Bala Plaza Bala Cynwyd, PA (610) (610) (Fax) lkatz@ckmo.com Counsel for Plaintiff-Appellant William M. Conrad i

3 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv JURISDICTIONAL STATEMENT... 1 I. Basis of District Court Jurisdiction... 1 II. Basis of Court of Appeals Jurisdiction... 2 STATEMENT OF ISSUES PRESENTED FOR REVIEW... 3 STATEMENT OF THE CASE SETTING OUT THE FACTS... 5 A. The James Deineen Incident... 9 B. The First Retaliatory Action Against Employee C. The Demmler Yard Incident D. The Second Retaliatory Action Against Employee E. The CSXT Supervisors Who Were Aware Of Employee s Protected Activities Were Directly And Closely Linked To The Supervisors Who Engaged In Retaliatory Discipline Against Employee F. The District Court Decision SUMMARY OF ARGUMENT ARGUMENT I. Standard of Review II. The Retaliation Provisions Of The Federal Rail Safety Act (FRSA) ii

4 III. The FRSA Anti-Retaliation Provisions Were Enacted Because Of The Railroad Industry s History Of Intimidation Of And Retaliation Against Its Employees. The FRSA Is To Be Liberally Construed In Favor Of The Employees It Is Intended To Protect IV. The FRSA s Knowledge Requirement V. The Plain Language Of The Statute And The Effectuating Regulation Relied Upon By This And Other Courts Provide That An Employee Meets Their Burden If Any Person Within The Railroad Command Structure Is Aware That The Employee Has Engaged In a Protected Activity VI. The CSXT Chain Of Command Between The Supervisor Knowing Of The Protected Activity And The Supervisor Imposing The Adverse Employment Action Is So Close And Direct That The Jury Could Have Inferred That The Person With Knowledge Of The Protected Activity Shared The Information With The Person Who Disciplined The Employee And/Or The Person With Knowledge Initiated The Discipline Through A Subordinate VII. The Railroad Industry s History Of Intimidation, Retaliation, And Discrimination Against Employees Who Report Accidents And/Or Unsafe Conditions Warrants The Conclusion That An Employee Need Not Prove That Someone Involved In His Or Her Discipline Had Knowledge Of The Protected Activity CONCLUSION STATEMENT REGARDING ORAL ARGUMENT PURSUANT TO Loc.F.R.A.P. 34(a) CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM iii

5 TABLE OF AUTHORITIES Cases Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013)... passim Bala v. Port Auth. Trans-Hudson Corp., 2010-FRS-00026, Slip Op. ( Timlin, J.) CareFirst of Maryland, Inc. v. First Care, P.C., 434 F.3d 263 (4th Cir. 2006) Feldman v. Law Enforcement Associates Corp., 752 F.3d 339 (4th Cir. 2014)... 27, 28, 29 Francis v. Booz, Allen and Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006) Freeman v. Dal-Tile Corp., 750 F.3d 413 (4th Cir. 2014) Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454 (4th Cir. 2012) Howard v. Winter, 446 F.3d 559 (4th Cir. 2006) Laber v. Harvey, 438 F.3d 404 (4th Cir. 2006) (en banc) Nationwide Mut. Ins. Co. v. Selective Ins. Co. of S. Carolina, 586 F. App x 147 (4th Cir. 2014) Santiago v. Metro-North Comm. R.R. Co., ARB Case No , Slip Op. ( )... 25, 26, 33, 35 Welch v. Chao, 536 F.3d 269 (4th Cir. 2008)... 27, 28, 29 iv

6 Whirlpool Corp. v. Marshall, 445 U.S. 1 (1980)... 26, 33 Statutes 28 U.S.C U.S.C U.S.C , U.S.C (d)(3)... 1, 2, 5 Rules Fed. R. Civ. P. 56(c) Regulations 29 C.F.R , C.F.R (b)(1) (2007) C.F.R C.F.R C.F.R Other Authorities Occupational Safety and Health Administration, Department of Labor Part 1980, Procedures for the Handling of Retaliation Complaints Under Section 806 of the Sarbanes Oxley Act of 2002, as Amended U.S. House, Implementing Recommendations of the 9/11 Commission Act of 2007 (Accompanying H.R. 1), Conference Report No ( )... 25, 33, 34 v

7 JURISDICTIONAL STATEMENT I. Basis of District Court Jurisdiction This case arises from a railroad s alleged retaliation against an employee because that employee reported unsafe conditions and engaged in other protected activities. The jurisdiction of the United States District Court for the District of Maryland was based on federal question jurisdiction, 28 U.S.C and The Federal Rail Safety Act (FRSA), 49 U.S.C (d)(3). The FRSA prohibits a railroad from retaliating against an employee who engages in certain protected activities. It is a federal whistleblowers act. On April 4, 2011, the Appellant-Employee filed a FRSA complaint with the Secretary of Labor s Region III OSHA Whistleblower Office. This was filed within 180 days from the date the Employee became aware of the Appellee- Railroad s intent to take adverse or unfavorable personnel action against him. The Region III OSHA Whistleblower Office commenced its investigation, and the Employee fully cooperated with OSHA s investigation. However, OSHA did not issue a final decision within 210 days after the filing of the FRSA complaint. On August 22, 2012, OSHA s Whistleblower Office issued a Merit Findings and Order, but that decision did not become final because on September 19, 2012, Employee filed Objections to the Order and requested a hearing before an 1

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