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Railroad Conductor Safety Charges Not Retaliatory

The 4th Circuit affirms a district court decision that plaintiff freight train con­ductor was not disciplined for violation of a safety policy because of his union activ­ities, including serving as the union local chairman; plaintiff has failed to produce any evidence to dispute the railroad’s as­sertion that employees who reported the safety violations and the disciplinary de­cision makers did not know of any pro­tected activity by plaintiff.

Plaintiff filed suit against defendant CSX Transportation Inc., alleging two counts of retaliation in violation of the Federal Railroad Safety Act, 49 U.S.C. § 20109. The district court agreed with CSX that none of the CSX employees who witnessed plaintiff’s safety rule vio­lations and initiated disciplinary actions knew about his earlier safety complaints. The court granted summary judgment in favor of CSX.

FRSA ‘knowledge’

The parties offer two opposing theo­ries of what constitutes knowledge under the FRSA. Plaintiff argues he can meet the knowledge requirement if any super­visory employee at the company knew of his protected activities at the time of the unfavorable personnel action. CSX says knowledge must be tied to a deci­sion-maker involved in the unfavorable action.

Although this circuit has not previous­ly had occasion to address the knowledge sufficient to sustain an FRSA retaliation claim, the Administrative Review Board of the U.S. Department of Labor has ex­plained that an employee must establish that the decision makers who subjected him to the alleged adverse action were aware of the protected activity. The ARB has stated it is insufficient to demon­strate that an employer, as an entity, was aware of the protected activity.

We find the cited authorities are sound and persuasive and we therefore adopt the same interpretation: the “knowl­edge” relevant for an FRSA retaliation claim must be tied to the decision mak­er involved in the unfavorable personnel action. As the district court concluded, plaintiff failed to show that such knowl­edge existed here.

CSX has produced declarations from the four employees who observed the safety violations, all of whom attest that they did not know of the complaint or any other safety concerns that plaintiff may have previously raised. Plaintiff has failed to generate a genuine dispute of material fact as to the knowledge ele­ment of his claim arising from either of the incidents plaintiff asserts gave rise to his protected activity. His claim fails at the prima facie stage.

Judgment affirmed.

Conrad v. CSX Transportation Inc. (Davis, S.J.) No. 15-1035, May 25, 2016; USDC at Baltimore, Md. (Nickerson) Lawrence A. Katz for appellant; Jacque­line M. Holmes, for appellee. VLW 016-2- 088, 12 pp.

VLW 016-2-088

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