958 F.3d 417
6th Cir.2020Background
- On December 16, 2015, Norfolk Southern employee Daniel Lemon suffered a neck injury and gave multiple, inconsistent accounts of how it occurred (home, stairs at home, slipping on stairs at work) to coworkers, a doctor, his mother, and his supervisor.
- When reporting the injury to his supervisor, Lemon also falsely stated that he had not discussed the injury with coworkers; the supervisor’s investigation revealed the contradictory statements.
- Norfolk Southern has a policy terminating employees for making false statements; following a union-represented hearing, the railroad fired Lemon for dishonesty.
- Lemon filed an OSHA complaint alleging retaliation in violation of the Federal Railroad Safety Act (49 U.S.C. § 20109); after agency inaction, he sued in federal court under the Act’s "kick-out" provision.
- The district court granted summary judgment for Norfolk Southern; the Sixth Circuit affirmed, concluding Lemon failed to show his injury report was a contributing factor in his termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lemon’s injury report was a "contributing factor" to his firing under the FRSA | Reporting the injury led to the investigation and therefore to his firing; the report contributed to the chain of events | The railroad would have fired Lemon regardless because it disciplined him for making false statements | Held: No. The record shows the railroad would have fired him anyway for dishonesty, so the report was not a contributing factor |
| Whether evidence of a pattern of pretextual discipline creates a triable issue | Lemon offered deposition/affidavit statements alleging the railroad fabricates pretextual reasons for discipline | Railroad argued the statements are vague, inadmissible hearsay and Lemon admitted false statements are disciplinable | Held: Lemon’s hearsay and conclusory allegations are inadmissible/insufficient to show pretext |
| Whether a "chain-of-events" causation theory (report leads to lie leads to firing) suffices | Lemon contended the report prompted his later lies, which in turn caused the firing | Railroad argued that would make any antecedent event a contributing factor and would immunize misconduct occurring during protected activity | Held: Rejected. The chain-of-events test is both overbroad and would improperly immunize rule violations committed during protected activity |
| Whether impairment from pain medication (affecting credibility) creates a factual dispute | Lemon argued pain medication explains some inconsistent statements to the supervisor | Railroad noted many inconsistent statements occurred before stronger medication and that multiple contradictory accounts existed independent of medication | Held: Insufficient. Medication doesn't explain the full record of inconsistent statements, so it does not create a triable issue |
Key Cases Cited
- Gunderson v. BNSF Ry. Co., 850 F.3d 962 (8th Cir. 2017) (discusses §20109(d)(3) "kick-out" procedure and jurisdictional issues)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for summary judgment and assessing whether a reasonable jury could find for either party)
- Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) (conclusory allegations insufficient to withstand summary judgment)
- Koziara v. BNSF Ry., 840 F.3d 873 (7th Cir. 2016) (limits overly expansive causation theories that would render causation legally insignificant)
- BNSF Ry. Co. v. U.S. Dep’t of Labor, 816 F.3d 628 (10th Cir. 2016) (employee disciplined for policy violation revealed by his report; court required more than a loose chain linking report to firing)
- Rookaird v. BNSF Ry. Co., 908 F.3d 451 (9th Cir. 2018) (treatment of incorporation of §42121 procedures into FRSA claims)