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Cash v. Norfolk Southern Railway Co.

United States District Court, W.D. Virginia, Lynchburg Division

January 14, 2015

SAMUEL D. CASH, Plaintiff,


NORMAN K. MOON, District Judge.

Samuel D. Cash ("Plaintiff, " or "Cash") alleges that Norfolk Southern Railway Company ("Defendant, " or "NSR"), violated the Federal Rail Safety Act, 49 U.S.C. § 20109 et seq . ("FRSA") and the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq . ("FELA"). Plaintiff claims that Defendant violated the FRSA by retaliating against him for reporting a workplace injury, [1] and he alleges that it violated the FELA by negligently failing to provide a reasonably safe work environment.

The matter is before me now on consideration of the parties' cross-motions for summary judgment, which have been fully briefed, argued, and supplemented. Plaintiff seeks partial summary judgment regarding his FRSA claim, and Defendant seeks summary judgment regarding both of Plaintiff's claims.

The record shows that Plaintiff knew, or should have known, that he suffered a workplace injury more than three years prior to filing suit, and thus his FELA claim is barred by the statute of limitations.[2] Regarding the FRSA claim, however, my review of the record discloses genuine issues of material fact that should be turned over to a jury. Accordingly, I will grant, in part, Defendant's motion to the extent that it seeks summary judgment regarding Plaintiff's FELA claim; otherwise, I will deny, in remaining part, Defendant's motion for summary judgment regarding Plaintiff's FRSA claim, and I will likewise deny Plaintiff's motion for partial summary judgment on the FRSA claim.


Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment (or partial summary judgment) "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." "As to materiality... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In order to preclude summary judgment, the dispute about a material fact must be "genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. ; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine issue of material fact "is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

When faced with cross-motions for summary judgment, the standard is the same. The court must consider "each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quotations omitted). If the court finds that there is a genuine issue of material fact, both motions must be denied, "[b]ut if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment." Trigo v. Travelers Commercial Ins. Co., 755 F.Supp.2d 749, 752 (W.D. Va. 2010). The mere existence of " some " factual disputes will not defeat summary judgment; the dispute must be "genuine" and concern "material" facts. Anderson, 477 U.S. at 247-248; see also Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Only legitimate disputes over facts that might affect the outcome of the suit under the governing law fall within that category. Id .; see also Fields v. Verizon Servs. Corp., 493 Fed.App'x 371, 374 (4th Cir. 2012).


My review of the record discloses the following.

NSR hired Plaintiff as a conductor in its Transportation Department on December 8, 1980. Plaintiff transferred to Maintenance of Way in January 1999, and eventually became a thermite welder.[3] Pursuant to NSR's Safety and General Conduct Rule N ("Rule N"), NSR requires its employees to report all workplace injuries no later than the end of the day on which they suffer the injury. Rule N also requires NSR employees to notify their supervisors when they obtain medical attention off-duty and to report any injury they suffer off-duty that may adversely affect their ability to perform their work duties. Id . Plaintiff has suffered several on-the-job injuries at NSR. Aside from the injuries at issue in this case, Plaintiff immediately notified his supervisor, in accordance with Rule N, of every injury he previously suffered.

On February 22, 2010, Plaintiff was seen by Dr. Barnard, an orthopedist, regarding left shoulder pain. Dr. Barnard's office recorded that Mr. Cash is a "gentleman who does thermite welding for the railroad." Plaintiff did not notify NSR in February 2010 that he had suffered an injury at work, that he had suffered an off-duty injury that might have an adverse affect on his ability to perform his work duties, or that he had obtained medical attention off-duty for any injury.

In March 2010, Plaintiff again saw Dr. Barnard, who ordered magnetic resonance imaging ("MRI") of Plaintiff's left shoulder. The MRI showed a partial rotator cuff tear. After the March 2010 diagnosis, Plaintiff attended physical therapy sessions to rehabilitate and strengthen his shoulder.

NSR requires its employees to obtain periodic physical examinations. In connection with those examinations, an employee must complete a Medical Examination form and inform NSR whether the employee has suffered any injury or ailment that could affect work performance. In July 2011, Plaintiff stated that he had not suffered any injury and was not experiencing any pain. Plaintiff continued to work full-time at NSR and never reported any problems with his shoulder or that he had suffered an injury, work-related or otherwise.

From 2010 through 2013, Plaintiff also worked at his brother's roofing company, and experienced pain performing his roofing duties. Plaintiff experienced dull pain in his shoulder more than a year before December 17, 2012. The pain became progressively worse over time. Between November and December 2012, Plaintiff experienced sharp pain and weakness in his left shoulder. He felt sharp pain when lifting; otherwise he felt chronic dull pain in his left shoulder. He was unable to lift as much as he should have been able to lift; he could not "swing [his] arm around the way" he formerly could; he could not lift his elbow above his shoulders; and he had difficulty holding a hair dryer to dry his hair.

On November 15, 2012, Plaintiff again sought treatment from Dr. Barnard for his left shoulder. He presented with 3 months of increasing left shoulder pain and, on November 26, 2012, he underwent MRI, the results of which showed a fully torn left rotator cuff. On December 13, 2012, Dr. Barnard reviewed the MRI results with Plaintiff and prescribed surgery to repair the torn left rotator cuff.

On December 17, 2012, Plaintiff spoke with his supervisor, Joe Abbatello, and informed Abbatello of the need to have surgery on his left shoulder. Plaintiff had not previously notified his supervisor of the medical visits on November 15, 2012, November 26, 2012, or December 13, 2012, nor had he notified NSR of a workplace injury in February 2010. Abbatello discussed Plaintiff's injury with Abbatello's supervisor, Lucious Bobbitt, who directed Abbatello to notify NSR's Medical Department. The Medical Department placed Plaintiff on medical hold until it could review his medical records regarding the shoulder injury and determine his fitness-for-duty as a thermite welder.

Abbatello met with Plaintiff in Lynchburg on December 17, 2012, to advise Plaintiff that he had been placed on medical hold. Plaintiff claims that, at the meeting in Lynchburg, he told Abbatello that the injury was work-related. However, Abbatello states that, when Plaintiff telephoned Abbatello on December 17, 2012, and first informed him of the injury, Abbatello inquired whether the injury was work-related. According to Abbatello, Plaintiff stated that it was a prior condition. Because Plaintiff allegedly stated that he had not suffered the injury on-the-job, Abbatello claims that he did not ask Plaintiff to file a "Form 22" injury report. Thereafter, on January 2, 2013, while Plaintiff was out on medical leave, Plaintiff spoke with Abbatello and, according to Abbatello, informed Abbatello for the first time that the injury had occurred at work. Upon learning of Plaintiff's claim that the injury occurred at work, Abbatello discussed Plaintiff's conflicting statements with Bobbitt.

Thus, Plaintiff and NSR dispute when he informed the railroad that his left shoulder condition was work-related. However, regardless of the specific date - December 17, 2012, or January 2, 2013 - Plaintiff first reported the injury nearly three years after he first suffered left shoulder problems. At the earliest, Plaintiff reported the February 2010 injury on December 17, 2012, after learning that his left rotator cuff was fully torn. In any event, it is undisputed that, on January 2, 2013, Abbatello and Bobbitt jointly called Plaintiff to discuss his injury and, during this conversation, Plaintiff told both of them that he had injured his shoulder on-the-job in February 2010. While Plaintiff could not specify where, when, or how his left shoulder injury occurred, he insisted that it happened in February 2010.

On January 14, 2013, pursuant to the collective bargaining agreement ("CBA") between NSR and Plaintiff's labor union, the Brotherhood of Maintenance-of-Way Employees ("BMWE"), NSR notified Plaintiff that he was to appear at a formal investigation hearing, scheduled for January 25, 2013, to establish whether Plaintiff had violated Rule N by (i) failing to timely report an injury; (ii) failing to notify NSR that he had received medical treatment; and (iii) making false and/or conflicting statements. The parties agreed to reschedule the CBA-mandated formal investigation hearing for February 21, 2013, and Plaintiff underwent surgery on January 22, 2013, to repair his torn left rotator cuff.

After an investigatory hearing on February 21, 2013, in compliance with the BMWE CBA, NSR issued Plaintiff a 30-day suspension ending on February 13, 2013, for violating Rule N by failing to report a workplace injury in a timely manner and failing to notify his supervisor about seeking medical attention between February 2010 and January 2013. Plaintiff served his entire 30-day suspension while he was on medical leave, recovering from shoulder surgery.

Dr. Barnard did not clear Plaintiff to return to work until May 1, 2013; however, NSR did not learn that Plaintiff's physician had cleared him to return-to-work until May 9, 2013. To commence Plaintiff's return-to-work process, NSR faxed a Verified Job Task Listing for Thermite Welders to Dr. Barnard on Friday, May 10, 2013. Dr. Barnard returned the Verified Job Task Listing for Thermite Welders to NSR on Tuesday, May 14, 2013, indicating that Mr. Cash could return to thermite welding with no restrictions, specifying that there were no lifting restrictions.

NSR then required Plaintiff to complete a fitness-for-duty evaluation, including a Functional Capacity Evaluation ("FCE"). NSR scheduled the FCE with Lucas Therapies on Thursday, May 23, 2013. Lucas Therapies faxed NSR the results of Plaintiff's evaluation on Monday, June 10, 2013. Plaintiff stopped the waist-to-shoulder lift at 40 pounds, and therefore did not pass the FCE because he did not satisfy the job requirements. To be sure, Plaintiff claims that he stopped at 40 pounds only because the physical therapist, Mr. Gibson, instructed him to stop; however, Plaintiff does not dispute that he did not complete the required waist-to-shoulder lift of 50 pounds.

The NSR Medical Department reviewed the results of the FCE and, on Friday, June 13, 2014, contacted Mr. Gibson, the physical therapist, on Friday, June 14, 2013, and explained that NSR needed Mr. Gibson to schedule another FCE for Plaintiff. Lucas Therapies telephoned Plaintiff on Monday, June 17, 2013;, and scheduled him to undertake the waist-to-shoulder lift on Tuesday, June 18, 2013.

When Plaintiff completed the waist-to-shoulder 50 pound lift, NSR reinstated him for duty that very same day, Tuesday June 18, 2013, and he "marked up" for service and ...

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