443 F.Supp.3d 276
N.D.N.Y.2020Background
- Cody Ziparo worked as a CSX conductor (2006–2016). In early 2016 supervisors allegedly instructed him to falsify onboard work order (OBWO) data (departure/arrival times, work completion); Ziparo refused.
- Ziparo filed an internal ethics-hotline complaint (May 3, 2016) reporting falsification and stating it was a safety issue because employees were "preoccupied" and distracted by harassment.
- CSX investigated; supervisors Van Blarcom and Lacy received written reprimands. In April 2016 Ziparo accepted a reprimand for a separate handbrake charge.
- On June 9, 2016 a switching operation left a switch misaligned; electronic WASP records showed the switch out of correspondence; after a formal hearing Ziparo was found to have violated operating rules and was terminated under CSX’s IDPAP.
- Ziparo sued under the FRSA whistleblower provision (49 U.S.C. § 20109(b)(1)(A)) alleging retaliation. CSX moved for summary judgment; the court granted summary judgment for CSX, concluding Ziparo did not engage in protected activity under the FRSA; defendant’s motion to exclude plaintiff’s expert was denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ziparo engaged in protected activity under 49 U.S.C. § 20109(b)(1)(A) (reported a hazardous safety or security condition) | Ziparo: orders to falsify OBWO data created a safety risk—stress/distraction and inability to locate railcars (including hazmat) made reporting protected. | CSX: OBWOs are customer service tools, not mandated safety equipment; paper hazardous-material documentation exists; stress is a personal state, not a carrier-controlled hazardous condition. | Held: No. Court found Ziparo failed to show an objectively reasonable belief that the conduct reported was a "hazardous safety or security condition." Stress/distraction alone (and the late-raised hazmat-location theory) were insufficient. |
| Whether Ziparo’s ethics complaint was a contributing factor to his termination (causation) | Ziparo: temporal proximity, increased scrutiny, and management’s hostility show the complaint contributed. | CSX: the misaligned-switch incident was an intervening, decertifiable event; discipline consistent with policy and other employees. | Held: Court concluded plaintiff failed the first element (protected activity) and therefore could not establish a prima facie retaliation claim; it did not accept plaintiff’s causation theory as sufficient to avoid summary judgment. |
| Whether earlier discipline (April handbrake charge) constituted an adverse action and/or was retaliatory | Ziparo: the handbrake charge was adverse and resulted from intimidation; waiver of rights was coerced. | CSX: it was a written reprimand accepted by Ziparo after he waived a hearing; not an adverse employment action for FRSA purposes and predated the ethics complaint. | Held: Court treated the handbrake matter as non-dispositive and agreed it did not establish a protected-activity-based adverse action sufficient to save the claim. |
| Admissibility of plaintiff’s expert (Reilly) | Ziparo: Reilly would explain technical railroad safety matters, WASP functionality, and the safety impact of falsification. | CSX: Reilly offers legal conclusions, speculation, and factual narrative; lacks necessary specialized knowledge for some opinions. | Held: Motion to exclude denied as moot because summary judgment disposed of the case. |
Key Cases Cited
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (party opposing summary judgment must produce specific facts)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (nonmoving party must show genuine issue of material fact)
- Giannullo v. City of New York, 322 F.3d 139 (district court must verify record citations supporting Rule 56 facts)
- Lenzi v. Systemax, Inc., 944 F.3d 97 (objective-prong analysis for reasonable belief in whistleblower claims)
- Rhinehimer v. U.S. Bancorp Inv'rs, Inc., 787 F.3d 797 (reasonableness of employee belief assessed under totality of circumstances)
- Hernandez v. Metro–North Commuter R.R., 74 F. Supp. 3d 576 (FRSA: reasonable belief requires relation to safety or security)
- Ashmore v. CGI Group Inc., 138 F. Supp. 3d 329 (experts cannot state legal conclusions or usurp court/jury roles)