NOT RECOMMENDED FOR PUBLICATION File Name: 25a0358n.06
No. 24-3275
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 22, 2025 JOHN A. JAMES; AARON TIFFANY; ) KELLY L. STEPHENS, Clerk ) CHRISTOPHER KOPF, ) Plaintiffs-Appellants, ) ON APPEAL FROM THE UNITED ) v. STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF )) NORFOLK SOUTHERN RAILWAY OHIO ) COMPANY, aka Norfolk Southern ) Corporation, et al., OPINION ) Defendants-Appellees. ) )
Before: GILMAN, STRANCH, and LARSEN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Plaintiffs John James, Aaron Tiffany, and
Christopher Kopf are former employees of Norfolk Southern Railway (NSR) whose terminations
were upheld in arbitrations under the Railway Labor Act (RLA). They bring fraud claims
regarding the arbitrator selected to adjudicate their terminations, naming as defendants: NSR; the
Brotherhood of Locomotive Engineers and Trainmen (BLET), a national railway labor union; and
a BLET subpart, Norfolk Southern Northern Lines/CF&E General Committee of Adjustment
(GCA) (together with BLET, the “Union Defendants”). They also bring claims that the Union
Defendants breached the duty of fair representation. Plaintiffs James and Tiffany additionally
bring a whistleblower claim against NSR under the Federal Railroad Safety Act (FRSA), alleging
that it discharged them in retaliation for not falsifying their time records. The district court
dismissed the fraud and duty of fair representation claims entirely and granted summary judgment No. 24-3275, James v. Norfolk S. Ry. Co.
to NSR on the FRSA claim. The Plaintiffs appeal those decisions. BLET and GCA moved to
dismiss this appeal and for sanctions against the Plaintiffs.
We GRANT in part and DENY in part the motion to dismiss and DENY the motion for
sanctions. Because the fraud and duty of fair representation claims are insufficiently pled, we
AFFIRM the district court’s dismissal of those claims. Because the Plaintiffs do not present
evidence giving rise to a genuine dispute of material fact on their retaliation claim, we AFFIRM
the district court’s grant of summary judgment.
I. BACKGROUND
This appeal concerns the district court’s grant of a motion to dismiss, a motion for judgment
on the pleadings, and a motion for summary judgment. We relay the facts as alleged in the
Plaintiffs’ Complaint and as presented in the summary judgment record.1 We construe the
Complaint in the light most favorable to the Plaintiffs and construe all evidence in the summary
judgment record in the Plaintiffs’ favor, in accordance with the applicable standards of review.
See Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A. Facts
In 2017, NSR terminated two of the Plaintiffs: James, a train conductor, and Tiffany, a
train engineer. Both had been employed by the railway for almost 20 years. In the summer of
2017, they worked together at the South Bend yard office on the “B55 job,” which required them
to service industry train cars and then deliver the cars to industry warehouses. James and Tiffany
worked on the B55 job five days per week, and each day involved different tasks, leading to
1 The allegations of the Complaint are considered in analyzing the motions to dismiss and for judgment on the pleadings. The facts adduced during discovery are addressed in the summary judgment analysis.
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variances in their daily shift durations. Their immediate supervisor on the B55 job was
Trainmaster Thomas Moon. Moon instructed James and Tiffany to stay on their shift for at least
six hours per day throughout the B55 job. If they finished their tasks in less than six hours, they
were to remain on site until six hours had passed.
James and Tiffany were represented by a local division of the national union, BLET.
BLET’s national branch had negotiated and entered into a collective bargaining agreement (CBA)
with NSR on behalf of its members. Pursuant to the CBA, NSR would pay its organized employees
for a minimum of eight hours of work per shift, even if they worked only six hours.
NSR used a computer timekeeping system that required employees to individually clock
in at the beginning of each shift and clock out, or “tie up,” at the end of each shift. Employees
would log on using their credentials, follow computer prompts, manually enter the tie up time, and
then submit a form to tie up. James and Tiffany claimed that NSR’s timekeeping system
automatically subtracted two minutes from the tie up time. Tiffany testified at his deposition that,
“When you’re on the initial tie up screen, there’s a computer time in the upper left-hand corner,
which is the real time. And when you put it in, when you submit it, it’ll back it up two minutes
from that original computer time up in the corner.” R. 92-3, Tiffany Dep., PageID 1118.
On July 26, James and Tiffany clocked into work on time at 12:01 p.m. for their B55 job
shifts. The two assessed and completed their B55 job tasks for the day sometime before 3:40 p.m.
In order to provide and report their minimum of six hours, they went to a crew room on site and
waited approximately two and a half hours before leaving. Tiffany testified that he tied up at
6:01 p.m., and James testified that he tied up at 6:02 p.m., both completing a six-hour shift. But
NSR’s timekeeping records indicate that Tiffany and James tied up at 5:59 p.m. and 6:00 p.m.,
respectively.
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That night, Moon and James had the following text exchange about James’s and Tiffany’s
shift duration:
Moon: You’re not protecting your job. Check the clock James: I put off at 603 I thought. Thomas I wouldn’t screw u like that Arron [Tiffany] has his at 600pm…. And I told him no to wait another minute so it would be 601pm for him Moon: Ok well [the timekeeping system] is showing 559p and 600p respectively James: S--t…. I give you my word it won’t happen again. I could have sworn I changed my time to 603p because of the 2 minutes delay. I got distracted by a phone call from my mom I know… The 2 minute delay. What can I do to make it right with u Tom? Moon: I cannot stop automated reports from generating. I have been questioned in the past from people in corporate.. I think the baby has already been born, we will see how it goes. James: I know. We got back to the office at 340pm and set at the office until time to put off. I hope u know I would never disrespect you like that on purpose. Usually I put off first and I got distracted. No excuses.
On the same day, NSR put James and Tiffany off duty. On July 31, NSR informed James and
Tiffany that it was investigating them for “failure to follow verbal instructions of Trainmaster T.
Moon when [they] marked off after being on duty for less than 6 hours[.]” R. 92-4, Dep. Exs.,
PageID 1234. Pursuant to the CBA, the two were afforded an investigative hearing with NSR.
The hearing occurred on August 3, 2017, where an NSR trainmaster, Matthew Myers, acted
as the hearing officer. James, Tiffany, and Moon attended the hearing and testified, and James
and Tiffany brought a BLET representative. In support of NSR’s discipline of James and Tiffany,
Myers introduced the text messages between Moon and James from the evening of July 26. Two
weeks later, on August 17, Myers notified James and Tiffany that he found them responsible for
“failure to follow verbal instructions” and tying up after being on duty for less than six hours on
July 26 and dismissed them. Id. at PageID 1235, 1331.
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Under the RLA, 45 U.S.C. § 157, controversies between railroad carriers and organized
employees that cannot be resolved in mediation can, by agreement of the parties, be submitted to
arbitration overseen by the National Mediation Board (NMB), an independent federal agency. The
RLA provides that the arbitration will go before a three-member panel, referred to as a Public Law
Board (PLB). Id. Each party chooses one arbitrator for the panel, and both parties agree to a third,
neutral arbitrator, who acts as the chair of the PLB. Id.
In this case, in accordance with the provisions of the RLA and the CBA, BLET applied for
arbitration before a PLB to adjudicate the discharges of James and Tiffany. See id. Under the Act
and the Agreement, the three-member PLB was to include a “neutral” arbitrator of the parties’
choice; either the railway or BLET could reject any proposed neutral arbitrator. See id. The
disputes proceeded to arbitration, and the neutral arbitrator agreed to by the Union and NSR for
both arbitrations was David N. Ray, whose career included service as Vice President of Labor
Relations at NSR. The Complaint alleges “on information and belief” that Ray had an
“undisclosed conflict of interest” because he presumably had a pension, retirement benefits, and
stock holdings with NSR. R. 1, Compl., PageID 6-7. Plaintiffs allege that BLET and GCA knew
about Ray’s conflict of interest but accepted him because BLET received political benefits,
specifically that Ray would “look the other way in ‘quietly’ agreeing to the denials of appeals from
divisions [] whose local chairmen” did not vote for BLET General Chairman Dewayne Dehart. Id.
at PageID 7. The three-member PLB ultimately upheld NSR’s termination of James and Tiffany
for failure to follow verbal instructions and stay on shift for six hours. This suit followed.
-5- No. 24-3275, James v. Norfolk S. Ry. Co.
The other plaintiff in this case, Kopf, was terminated from NSR for events unrelated to
James’s and Tiffany’s timekeeping.2 Kopf requested an investigative hearing and then applied for
arbitration before a PLB. His hearing was held on December 18, 2017, and soon after, NSR
notified Kopf that he was being discharged. BLET filed a grievance, requesting arbitration on
Kopf’s behalf, and Ray was selected as the neutral arbitrator on the PLB. Kopf notified BLET
that he did not want to have his arbitration before Ray, so his case was transferred, which he alleged
caused a minimum of 17-months’ delay in arbitration. Kopf alleges that “the collusion, fraudulent,
corrupt and planned use of David Ray caus[ed] [him] great emotional distress[] [and] lost income.”
Id. at PageID 20.
B. Procedural History
On June 28, 2019, Tiffany, James, and Kopf filed a Complaint against GCA, BLET, NSR,
and Ray, alleging four counts relevant to this appeal.3 Count I alleged that all Defendants
committed fraud by acting in concert and agreeing to Ray’s position on the PLB to hear these
disputes. Count II alleged a breach of the duty of fair representation (DFR) against BLET and
GCA for selecting Ray as an arbitrator in these disputes. Count III alleged retaliation under FRSA
against NSR for terminating Tiffany and James for their timekeeping practices. Count IV alleged
fraud and breach of the RLA’s duty of fair representation against all Defendants for terminating
Kopf and selecting Ray as an arbitrator on his PLB.4
2 Kopf, a locomotive engineer at NSR, delivered trains to Detroit Edison and was required to give Detroit Edison his driver’s license for up to 20 minutes at a time when he was on site. Kopf refused to show Detroit Edison his driver’s license, purportedly because he was concerned about identity theft; he was charged by NSR with failure to follow instructions. 3 The Complaint contained a fifth count, alleging retaliation and breach regarding a Department of Labor settlement agreement against NSR. The Plaintiffs voluntarily dismissed that claim, and it is not at issue on appeal. The Plaintiffs also voluntarily dismissed Ray from the action in the district court, and he is not a party to this appeal. 4 Kopf alone brings a claim of tortious interference against the Union Defendants, relying on the factual allegations regarding Ray’s bias. Though Kopf’s claim is styled as tortious interference, throughout this litigation, the Plaintiffs
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On August 29, NSR moved to dismiss the fraud claim against it. On March 3, 2020, the
district court granted NSR’s motion to dismiss, finding that the Plaintiffs did not meet the
heightened pleading standards for fraud. On May 1, the Union Defendants moved for judgment
on the pleadings on all counts against them. The Plaintiffs, in their opposition brief to the motion
for judgment on the pleadings, requested that the court “permit them to amend their complaint as
proposed in the attached Proposed Amended Complaint,” and attached an amended complaint.
R. 50, Opp. to Mot., PageID 420. The Plaintiffs did not file a motion to amend their Complaint at
that time.
On November 16, the court granted the Union Defendants’ motion for judgment on the
pleadings. The court dismissed the fraud claim against them with prejudice, explaining that its
Order granting NSR’s motion to dismiss “already [] held the complaint’s fraud allegations []
inadequate” and that “[t]hose same conclusory allegations are no more sufficient to state fraud
claims against the Union Defendants than they were to support a fraud claim against [NSR].” R.
56, Order, PageID 673. The court dismissed the DFR claim without prejudice, explaining that the
Plaintiffs might have “a case to be pled” in a complaint “as yet undrafted” and inviting them to
move for leave to file an amended complaint. Id. at PageID 673, 676. Regarding the Plaintiffs’
request in their brief to amend, the court explained that it would decline to “grant leave now to file
an amended complaint pending filing of a further motion with the proposed complaint attached.”
Id. at PageID 673.
On January 6, 2021, the Plaintiffs filed a motion for leave to amend their Complaint,
attaching a proposed amended complaint that added allegations about BLET’s involvement in
have argued and the district court has considered only whether BLET committed fraud and breached the duty of fair representation as to Kopf. Any separate claim of tortious interference is thus abandoned. See United States v. Russell, 26 F.4th 371, 374 (6th Cir. 2022).
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selecting Ray as an arbitrator. In their opposition briefing, the Union Defendants noted that
“[c]onspicuously absent” from the amended complaint was “any mention of the GCA.” R. 59,
Opp. to Mot., PageID 705. The Plaintiffs conceded that “the GCA is correct. Plaintiffs did not
name it in any count of the complaint. Plaintiffs did not intend on including the GCA in the
Amended Complaint and its inclusion in the caption is a clerical error.” R. 60, Reply in Supp.,
PageID 713. The court entered an Order on March 8, 2021 denying the Plaintiffs’ motion for leave
to amend, noting that the parties concurred in the denial of leave to amend.
On May 18, 2021, a status conference was held, the first since the court had granted the
Union Defendants’ motion for judgment on the pleadings and denied the Plaintiffs’ motion to
amend. The Union Defendants asked the court to dismiss the claims against them with prejudice
because the court had denied the Plaintiffs leave to amend their Complaint. Plaintiffs’ counsel
agreed that the claims against GCA were “moot because [the parties] dismissed them.” R. 78, Off.
Tr., PageID 795. The court dismissed GCA with prejudice, noting, “I’m just going to dismiss
[BLET] as well with prejudice; therefore, it’s tidy; it’s neat; it’s put together; it’s preserved for
appeal.” Id. at PageID 810. Plaintiffs’ counsel requested the court “go back and look at its notes,”
because he thought the court had intended to dismiss BLET without prejudice, and he requested
the opportunity to have “unilateral discovery” on the claims against BLET. Id. The Court refused.
Counsel stated that he still intended to amend the Complaint regarding the claims against BLET.
After the status conference, the court entered a minute Order that stated, “Upon agreement of
parties, the [Union Defendants] dismissed [sic] with prejudice.” Minute Order, May 18, 2021.
The only claim that remained was James and Tiffany’s FRSA claim asserting that NSR
retaliated against them for their timekeeping practices. NSR and the Plaintiffs engaged in
discovery. In October 2023, NSR moved for summary judgment on the FRSA claim. The court
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granted NSR’s motion, finding that James and Tiffany had not raised a genuine dispute of material
fact in support of a FRSA retaliation claim.
This appeal timely followed. Plaintiffs challenge the district court’s dismissal of Counts I,
II, and IV against NSR; the grant of judgment on the pleadings on Counts I, II, and IV to the Union
Defendants; the denial of the Plaintiffs’ leave to amend their Complaint; and the grant of summary
judgment on Count III to NSR. The Union Defendants moved to dismiss the appeal of any claims
against them for lack of jurisdiction and waiver and filed a complementing motion for sanctions.
II. ANALYSIS
A. Fraud and Duty of Fair Representation Claims (Counts I, II, and IV)
The Plaintiffs appealed the judgment on the fraud and DFR claims. The Union Defendants
moved to dismiss the appeal for lack of jurisdiction and waiver, and they moved for sanctions.
1. Motion to Dismiss
The Union Defendants argue that the Plaintiffs waived all claims against them. “[A] party
waives an argument only if it ‘expressly abandon[s]’ an issue.” United States v. Russell, 26
F.4th 371, 374 (6th Cir. 2022) (quoting United States v. Denkins, 367 F.3d 537, 542 (6th Cir.
2004)). A party must take some action to waive an argument, either by making an express
statement or failing to raise the argument in its first brief on appeal. Id. at 375. Waiver is not
jurisdictional, but instead a rule of procedure, and we have discretion to address issues “presented
with sufficient clarity and completeness.” Pinney Dock & Transp. Co. v. Penn. Cent., 838
F.2d 1445, 1461 (6th Cir. 1999). We address GCA’s and BLET’s waiver arguments separately.
GCA argues that the Plaintiffs waived their claims against it in a series of statements in the
district court. When the Plaintiffs moved for leave to file an amended complaint on January 6,
2021, they attached a new proposed amended complaint that did not include any allegations against
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GCA. Plaintiffs’ briefing below conceded that “Plaintiffs did not intend on including the GCA in
the Amended Complaint.” R. 60, PageID 713. At the May 18 status conference, Plaintiffs’
counsel conceded that the parties “dismissed the [GCA]”; that “the [GCA] is moot because we
dismissed them”; and that they agreed verbally to “dismiss the GCA.” R. 78, PageID 794, 795,
796. Before this court, Plaintiffs’ counsel stated that Plaintiffs did not “ma[ke] any real allegations
against [GCA],” “may have accidentally named them,” and had “no briefing against them.” Oral
Arg. at 28:00.
The Plaintiffs’ statements in briefing and their arguments before the court below and this
court on appeal establish express relinquishment of GCA as a party to this action. See Russell, 26
F.4th at 374. GCA is therefore not a proper party to this appeal, and we grant GCA’s motion to
dismiss.
BLET moves to dismiss this appeal on the basis of waiver and for lack of jurisdiction.
BLET first argues that the Plaintiffs’ failure to list the May 18, 2021 Minute Order dismissing
Counts II and IV with prejudice in their notice of appeal deprives this court of jurisdiction to
consider the claims. The Plaintiffs’ notice of appeal designated specific parts of the district court’s
judgment below for appeal, including “[o]rders 37, 38, 56 and related Judgements,”5 but not the
May 18 Order. R. 106, PageID 1682. This omission, BLET contends, is fatal because the law
requires a plaintiff to designate the order challenged on appeal in the notice of appeal.
Federal Rule of Appellate Procedure 3(c)(1) requires a notice of appeal to “designate the
judgment—or the appealable order—from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B).
This rule is jurisdictional. Smith v. Barry, 502 U.S. 244, 248 (1992). Before 2021, the doctrine of
5 These orders are the grant of NSR’s motion to dismiss and grant of judgment on the pleadings to the Union Defendants.
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expressio unius—the inclusion of one thing is the exclusion of another—might have instructed this
court to consider only the enumerated orders in the notice of appeal. But a new provision,
Rule 3(c)(6), was added to Rule 3 in 2021 to clarify that an appellant may “expressly stat[e]” that
the notice of appeal is limited to a designated “part of a judgment or appealable order,” but
“[w]ithout such an express statement, specific designations do not limit the scope of the notice of
appeal.” Fed. R. App. P. 3(c)(6). The notes to the amendment address the basis of this revision,
explaining that
some notices of appeal designate both the judgment and some particular order that the appellant wishes to challenge on appeal. A number of courts, using an expressio unius rationale, have held that such a designation of a particular order limits the scope of the notice of appeal to the particular order, and prevents the appellant from challenging other orders that would otherwise be reviewable, under the merger principle, on appeal from the final judgment. These decisions inadvertently create a trap for the unwary.
Fed. R. App. P. 3, Notes.
BLET is relying on an interpretation of Rule 3(c)(1) that has since been addressed by the
addition of Rule 3(c)(6). Rule 3(c)(6) instructs that, absent an express statement, the specific
designations of orders 37, 38, and 56 should not limit the scope of the notice of appeal. See Fed.
R. App. P. 3(c)(6). And the Plaintiffs’ notice of appeal contains no express limiting statement, so
the notice of appeal is not defective.
BLET also argues that it has “been out of this case for more than three years,” and, instead
of appealing, the Plaintiffs should have “request[ed] clarification from the District Court when the
[minute] order was entered.” D.E. 37, p. 8; D.E. 45, p. 7. That would have been a more appropriate
procedure, but the Federal Rules of Appellate Procedure do not require a party to seek clarification
or re-review from the district court on a judgment before appealing it. See Fed. R. App. P. 3. And
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one effect of the final judgment rule is that a challenged, merged order might be many years old—
this effect does not strip our court of jurisdiction. See 28 U.S.C. § 1291.
BLET next argues that the Plaintiffs waived their claims against it because the May 18,
2021 Order entered following the status conference concludes that the remaining claims against
BLET and GCA were dismissed with prejudice “upon agreement of the parties.” BLET asserts
that this statement shows that the Plaintiffs abandoned their claims against it. The Plaintiffs agree
that if they voluntarily dismissed the claims, the claims are waived, but assert that the status
conference transcript “makes it very clear that [they] did not agree with dismissing the BLET at
all, and certainly not with prejudice.” D.E. 42, p. 6.
The May 18 Order and the status conference transcript are ambiguous as to whether the
Plaintiffs expressly waived their claims against BLET, and Plaintiffs consistently argue their
claims against BLET on appeal. Waiver is not a jurisdictional bar, and this court has discretion to
address issues clearly presented on appeal. Pinney Dock & Transp. Co., 838 F.2d at 1462. We
therefore analyze the Plaintiffs’ legal assertions below.6
2. Fraud
The district court disposed of the fraud claim in orders granting both a Federal Rule of
Civil Procedure 12(b)(6) motion to dismiss and a Rule 12(c) motion for judgment on the pleadings.
The standard of review for a Rule 12(c) judgment on the pleadings and for a Rule 12(b)(6)
judgment as a matter of law are the same. Fritz v. Charter Township of Comstock, 592 F.3d 718,
722 (6th Cir. 2010). These dismissals are reviewed de novo, taking all well-pleaded material
6 The Union Defendants accompany their motion to dismiss with a motion for sanctions, including fees and costs pursuant to Federal Rule of Appellate Procedure 38, which allows sanctions for a frivolous appeal. See 28 U.S.C. § 1927 (allowing courts to require an attorney to pay attorney’s fees when he “so multiplies the proceedings in any case unreasonably and vexatiously”). Because BLET’s presence in this appeal is arguable, we deny the motion for sanctions.
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allegations as true, and upholding them only if the moving party is clearly entitled to judgment as
a matter of law. Id. We consider only facts in the pleadings and any exhibits in the record if those
exhibits are referenced or described in the pleadings and are central to the claims therein. Bassett,
528 F.3d at 430.
The fraud claim pled is ambiguous and could be a common law fraud claim under Ohio
law or a fraud claim authorized by the RLA’s judicial review provision. See 45 U.S.C. § 153,
First (q). Under the RLA, a PLB’s findings and order “shall be conclusive on the parties.” Id.
§ 153, First (p). A PLB’s order may be challenged in federal district court, but the court’s “judicial
review of the arbitral decision is limited.” Consol. Rail Corp. v. Ry. Lab. Execs.’ Ass’n, 491 U.S.
299, 304 (1989). The district court may set aside a PLB’s decision only for “failure of the [PLB]
to comply with the requirements of [the RLA], for failure of the order to conform, or confine itself,
to matters within the scope of the [PLB’s] jurisdiction, or for fraud or corruption by a member of
the [PLB] making the order.” 45 U.S.C. § 153, First (q).
The district court construed the fraud claim as asserting both RLA and common law fraud
and dismissed it. The Plaintiffs have since specified that they intended to raise only a common
law fraud claim and conceded that: “[t]he District Court did rule that Plaintiff-Appellants’ claims
do not meet the standard for review of an RLA claim, but Plaintiff-Appellants did not and do not
argue otherwise.” Reply Br. at 8 n.2. We therefore construe the claim as solely a common law
fraud claim.7
In Ohio, common law fraud requires the following six elements:
(1) a representation or, where there is a duty to disclose, a concealment of fact; (2) which is material to the transaction at hand; (3) made falsely, with knowledge
7 In some cases, parties have disputed whether the RLA preempts common law fraud claims. Franke v. Norfolk S. Ry. Co., No. 21-3848, 2023 WL 3413919, at *6 (6th Cir. May 12, 2023). The Defendants did not raise the preemption issue in their briefing on appeal, so we do not address it here.
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of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (4) with the intent of misleading another into relying upon it; (5) justifiable reliance upon the representation or concealment; and (6) an injury proximately caused by the reliance.
Watson v. City of Cleveland, 202 F. App’x 844, 857 (6th Cir. 2006) (citing Russ v. TRW, Inc., 570
N.E.2d 1076, 1083 (Ohio 1991)). Federal Rule of Civil Procedure 9(b) imposes heightened
pleading requirements for complaints alleging fraud. To allege fraud under Rule 9(b), a plaintiff
must allege “(1) ‘the time, place, and content of the [fraudulent conduct],’ (2) ‘the fraudulent
scheme,’ (3) the defendant’s fraudulent intent, and (4) the resulting injury.” Smith v. Gen. Motors
LLC, 988 F.3d 873, 883 (6th Cir. 2021) (quoting Wall v. Mich. Rental, 852 F.3d 492, 496 (6th Cir.
2017)). Plaintiffs pleading fraud must identify “the who, what, when, where, and how” of their
fraud claim. Republic Bank & Tr. Co. v. Bear Stearns & Co., 683 F.3d 239, 256 (6th Cir. 2012)
(quoting Carroll v. Fort James Corp., 470 F.3d 1171, 1174 (5th Cir. 2006)). The parties dispute
whether Rule 9’s heightened requirements apply in this case, but under any pleading standard, the
Plaintiffs’ fraud claim fails.
The Plaintiffs’ fraud claim rests on their assertion that NSR and BLET colluded to select
Ray as an arbitrator because he was biased in favor of NSR. They allege that, in return, BLET
received political benefits for its local chairman. The Plaintiffs do not seek to set aside the PLB’s
judgment, our review of which would be limited under the RLA. See 45 U.S.C. § 153, First (p).
Instead, they seek lost wages, benefits, and reinstatement; those requested damages result from
their terminations, challenged before the PLB. Under Ohio law, Plaintiffs must also plausibly
allege that the fraud they have pled proximately caused their terminations. See Graham v. Am.
Cyanamid Co., 350 F.3d 496, 507 (6th Cir. 2003). To plead the proximate cause element of fraud
under Ohio law, the Plaintiffs must state that “the fact allegedly misrepresented . . . caused their
harm.” Id.
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The Complaint contained no allegations of a causal connection between Ray’s bias and
Plaintiffs’ terminations, nor did it allege why Plaintiffs would have been successful at arbitration
in the absence of Ray’s claimed bias. The two other arbitrators on James and Tiffany’s PLB,
including the other arbitrator chosen by the Union, found their terminations justified. While Kopf
did not proceed to arbitration before Ray, the Complaint does not allege that a neutral PLB would
have found his termination unjustified and reinstated him. The Complaint failed to plausibly plead
the proximate cause element necessary to show common law fraud.
Because the Plaintiffs’ Complaint does not set forth a plausible allegation of fraud by NSR
and BLET that proximately caused their terminations, we affirm the district court’s dismissal of
the fraud claim.
3. Duty of Fair Representation
The Plaintiffs argue that the district court erred when it dismissed their claim that BLET
breached the duty of fair representation implicit in the RLA. We review this dismissal de novo,
taking all well-pleaded material allegations as true, and upholding it only if BLET is clearly
entitled to judgment as a matter of law. See Fritz, 592 F.3d at 722. The RLA states that
[w]henever a controversy shall arise between a carrier or carriers and its or their employees which is not settled either in conference between representatives of the parties or by the appropriate adjustment board or through mediation . . . such controversy may, by agreement of the parties to such controversy, be submitted to the arbitration of a board of three (or, if the parties to the controversy so stipulate, of six) persons[.]
45 U.S.C. § 157, First. Since 1944, courts have held that the RLA implies a union’s DFR. Steele
v. Louisville & Nashville R.R. Co., 323 U.S. 192, 207 (1944); Merritt v. Int’l Ass’n of Machinists
& Aerospace Workers, 613 F.3d 609, 619 (6th Cir. 2010). This duty requires a union “to serve the
interests of all members without hostility or discrimination toward any, to exercise its discretion
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with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S.
171, 177 (1967).
To succeed on a DFR claim, plaintiffs must show that the duty applies; that the union
breached the duty; and that the breach caused the plaintiffs’ injury. Merritt, 613 F.3d at 619;
Brown v. UAW, 689 F.2d 69, 71 (6th Cir. 1982). The DFR “applies in all contexts of union activity,
including contract negotiation, administration, enforcement, and grievance processing.” Merritt,
613 F.3d at 619. The duty does not require unions to arbitrate every grievance in the first instance,
but when a union is involved in an arbitration, the duty applies. Vaca, 386 U.S. at 190. When the
duty applies, “simple negligence or mere errors in judgment” will not constitute a breach. Walk v.
P.I.E. Nationwide, Inc., 958 F.2d 1323, 1326 (6th Cir. 1992). “Only those important or tactical
decisions made by a union official at arbitration that exhibit arbitrary or discriminatory conduct,
or actions taken in bad faith, constitute breach of a duty of fair representation.” Id. at 1326-27.
In addition to showing the duty’s applicability and a breach, plaintiffs asserting a DFR
claim must “demonstrate a causal connection between the union’s wrongful conduct and their
injuries.” Vaughn v. Air Line Pilots Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (quoting
Spellacy v. Airline Pilots Ass’n-Int’l, 156 F.3d 120, 126 (2d Cir. 1998); Brown, 689 F.2d at 71; see
also Int’l Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 48-49 (1979) (“The fundamental purpose
of unfair representation suits is to compensate for injuries caused by violations of
employees’ rights.” (emphasis added)). For example, in Brown v. UAW, we explained that
plaintiffs must show a causal connection between a union’s actions or inactions and their injuries
to state a DFR claim under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185.
689 F.2d at 71. In Brown, the plaintiffs asserted that their union failed to monitor their employer’s
payments into a pension fund, and as a result, the pension fund had insufficient money. Id. at 70.
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But the record indicated that even if the union had fulfilled the alleged duty to monitor the
payments, the union could not have forced the failing employer to make larger contribution
payments. Id. at 71. Thus, the plaintiffs’ DFR claim failed for lack of causation. Id. Brown
teaches that plaintiffs cannot succeed on a claim that their union breached the duty of fair
representation unless they plead and show causation. See id.; see also Vaughn, 604 F.3d at 709.
The Rule 8 pleading requirements apply to DFR claims. See Swanigan v. FCA U.S. LLC,
938 F.3d 779, 783, 785 (6th Cir. 2019). To plead a DFR claim, therefore, plaintiffs must allege
that the duty applies in the first instance. Merritt, 613 F.3d at 619. They must then allege facts
from which a plausible inference of the breach of the duty flows. See Fed. R. Civ. P. 8; Swanigan,
938 F.3d at 783, 786. They must also plausibly allege that, absent the union’s actions or inactions,
they would not have been injured. See Vaughn, 604 F.3d at 709.
In this case, the Plaintiffs alleged that BLET breached the DFR by agreeing to Ray as one
of the arbitrators for their three member PLB because BLET knew that Ray’s background included
employment with NSR. The parties agree that the arbitrations before Ray arose pursuant to the
RLA, so BLET owed the duty to the Plaintiffs in this case. The district court, in granting BLET
judgment on the pleadings, concluded that the DFR claim did not satisfy Rule 8 as pled because
the Union’s alleged actions in selecting Ray as an arbitrator did not support a plausible inference
of a breach of the duty.
We first address the DFR’s causation requirement. Plaintiffs had to plead a plausible causal
connection between BLET’s wrongful conduct and their injuries—their terminations. See Vaughn,
604 F.3d at 709. The Plaintiffs made no mention of a causal connection in their Complaint, nor
did they allege why they would have been successful at arbitration in the absence of BLET’s
alleged breach of the duty. James and Tiffany do not address the fact that two other arbitrators on
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the PLB, including the other arbitrator chosen by the Union, found their terminations justified.
Kopf does not allege that, absent Ray’s bias, he would have been reinstated and entitled to backpay
for the months that he was awaiting arbitration.
On appeal, moreover, the Plaintiffs challenge only the district court’s conclusion that they
did not allege which roles BLET played in selecting Ray as an arbitrator, a fact that Plaintiffs claim
could establish BLET’s breach. But this ignores that a breach of duty cause of action requires
allegations of causation. Because the Plaintiffs failed to plead the requisite causal connection
between the breach of the DFR and their terminations, we affirm the order granting BLET
judgment on the pleadings on the Plaintiffs’ DFR claim.
B. Denial of Leave to Amend
The Plaintiffs argue that the district court’s denial of their motion for leave to amend their
Complaint was error. Federal Rule of Civil Procedure 15(a) requires that leave to amend a
complaint “be freely given.” A request for a court order granting leave to amend a complaint must
be made through a motion. Id. “Courts tend to regard informal requests for court orders contained
within other documents such as letters, opposition papers, or pleadings as insufficient to satisfy
the motion requirement, although some courts may overlook such defects if the error is harmless.”
Wright & Miller, 5 Fed. Prac. & Proc. Civ. § 1191 (4th ed.); see C & L Ward Bros., Co. v.
Outsource Sols., Inc., 547 F. App’x 741, 744 (6th Cir. 2013) (holding that the district court did not
abuse its discretion in denying leave to amend when the plaintiff “never presented the motion to
amend in a manner that required its disposition”). We review denials of leave to file an amended
complaint under the abuse of discretion standard. LRL Props. v. Portage Metro Hous. Auth., 55
F.3d 1097, 1104 (6th Cir. 1995).
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The Plaintiffs first requested leave to amend their Complaint by statements made in a brief
on June 15, 2020. In their brief opposing judgment on the pleadings, the Plaintiffs asked the court
“to permit them to amend their complaint as proposed in the attached Proposed Amended
Complaint,” and attached a proposed amended complaint. R. 50, PageID 420. In its November
16, 2020 decision granting judgment on the pleadings, the court stated that it “decline[d] to grant
leave now to file an amended complaint pending filing of a further motion with the proposed
complaint attached.” R. 56, PageID 673. On January 6, 2021, the Plaintiffs moved for leave to
amend their Complaint and attached an amended complaint alleging the same new facts about
Ray’s past arbitrations as the amended complaint attached to their June 15, 2020 brief. On March
8, 2021, the court entered a non-document Order stating: “On review, the parties concurring
thereto, it is hereby ORDERED THAT the Plaintiffs’ motion for leave to amend their complaint
(Doc. 58) be, and the same hereby is denied.” Mar. 8, 2021 Order (emphasis added). Two months
later, at a May 18 status conference, the court explained that it had denied the Plaintiffs’ request
to file an amended complaint in the March 8 Order because the proposed amended complaint was
“wanting.” R. 78, PageID 811. The Plaintiffs now argue that this Order was error because “the
order failed to articulate any justification for the [d]istrict [c]ourt’s denial.” Appellant Br. at 49.
We turn to the court’s explanation of its ruling.
First, following Plaintiffs’ request in their June 15, 2020 brief, the district court instructed
the Plaintiffs to make a formal motion for leave to amend. The district court was not required to
consider a request made in briefing. See C & L Ward Bros., Co., 547 F. App’x at 744. The court,
therefore, did not abuse its discretion in requiring the Plaintiffs to file a formal motion to request
leave to file an amended complaint.
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Second, the court, in its March 8, 2021 Order, found that the parties concurred in the denial
of the motion to amend the complaint and further explained in the May 18, 2021 status conference
that it found the proposed amended complaint “wanting.” On appeal, the Plaintiffs do not
challenge the district court’s conclusions in the March 8 Order that the parties had concurred in
the denial of the Plaintiffs’ motion to amend or in the May 18 status conference that the court
found the proposed amended complaint “wanting.” The Plaintiffs do not state that they disagreed
with the denial of the motion to amend, nor do they provide an argument that the district court
abused its discretion in finding the proposed amended complaint “wanting.” Instead, they argue
only that the district court provided no justification for its denial of the motion. But the district
court did provide reasons for the denial. Absent a challenge to the district court’s reasoning, we
affirm the Order denying the Plaintiffs’ motion for leave to amend.
C. FRSA Retaliation (Count III)
James and Tiffany argue that the district court erred in granting NSR summary judgment
on their FRSA retaliation claim. FRSA is a whistleblower protection law. 49 U.S.C. § 20109(a);
see Norfolk S. Ry. Co. v. U.S. Dep’t of Lab., No. 21-3369, 2022 WL 17369438, at *1 (6th Cir. Dec.
2, 2022). It provides protection against retaliation for railroad carrier employees:
A railroad carrier engaged in interstate or foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier, may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done, or perceived by the employer to have been done or about to be done . . . (2) to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security; . . . or (7) to accurately report hours on duty pursuant to chapter 211.
49 U.S.C. § 20109(a). Courts employ a burden-shifting framework for FRSA claims at the
summary judgment stage. Consol. Rail Corp. v. U.S. Dep’t of Lab., 567 F. App’x 334, 337 (6th
Cir. 2014). To make a prima facie showing of retaliation under FRSA, an employee of a railroad
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carrier must show that (1) he engaged in a protected activity; (2) the employer knew of the
protected activity; (3) the employee suffered unfavorable personnel action; and (4) the protected
activity was a contributing factor. Id. The employee bears the initial burden of showing this prima
facie case by a preponderance of the evidence, after which the burden shifts to the employer to
show by clear and convincing evidence that it would have taken the same adverse action absent
protected behavior. Id.
In their FRSA claim, James and Tiffany argued that they engaged in protected activity
when they refused to adjust their time entries to account for the alleged two-minute system
backdating. They contended that NSR knew of their protected activity and terminated their
employment because of it. In granting summary judgment to NSR on the FRSA claim, the district
court found that James and Tiffany had not introduced evidence sufficient to raise a genuine
dispute of material fact that they engaged in protected activity about which NSR knew and that led
to their termination. The court concluded that, in any event, NSR had shown by clear and
convincing evidence that it would have terminated James and Tiffany regardless of the purported
protected activity. We review that grant of summary judgment de novo, asking whether James
and Tiffany introduced sufficient material facts such that a jury could reasonably find in their
favor. See Lemon v. Norfolk S. Ry. Co., 958 F.3d 417, 418 (6th Cir. 2020).
James and Tiffany assert that they engaged in two distinct protected activities under FRSA:
they refused to assist NSR’s violation of the law, rules, and regulations governing railroad carriers
under § 20109(a)(2); and they engaged in accurately reporting their hours pursuant to Chapter 211
under § 20109(a)(7). James and Tiffany state that they “could have easily avoided discipline by
entering a falsely inflated [tie up] time by two minutes, so that when the crew management system
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‘backdated’ the time, it still showed they worked six hours. They refused to falsely report their
time.” Appellant Br. at 30.
For purposes of addressing this claim, we simply assume that protected activity occurred,
then ask whether NSR knew of the protected activity and whether such activity was a contributing
factor to the unfavorable action—the investigation and termination. See Consol. Rail Corp., 567
F. App’x at 338. “A ‘plaintiff is not required to have direct evidence [of knowledge and] may
[produce] circumstantial evidence to establish this element of her claim.’” Id. at 338 (quoting
Brown v. VHS of Mich., Inc., 545 F. App’x 368, 374 (6th Cir.2013)). For example, in Consolidated
Rail Corp., a plaintiff was terminated after filing 35 written safety complaints and brought a FRSA
claim. Id. at 335-36. The knowledge prong was supported by evidence that the officer who made
the discharge decision shared an office with the plaintiff’s supervisor and referenced the safety
complaints in his testimony. Id. at 338. These facts, taken together, could support a knowledge
finding. Id.
The only knowledge argument that James and Tiffany have advanced throughout this
litigation is that NSR knew of their protected activity because it “was aware of the two-minute
adjustment.” Appellant Br. at 25. They argue that the text messages between James and Moon
and deposition testimony of James and Tiffany support a reasonable conclusion that NSR knew
about the two-minute backdating. The district court explained that this argument fails because it
conflates knowledge of a protected activity “with the[] belief that Defendants had knowledge of
an alleged computer system flaw.” R. 104, PageID 1672. For the FRSA retaliation analysis, the
question is whether NSR knew of James and Tiffany’s claimed protected activity—their refusal to
inflate their tie up times to account for the purported system backdating. Even were NSR’s
knowledge of the computer backdating supported by the text messages and deposition testimony,
-22- No. 24-3275, James v. Norfolk S. Ry. Co.
that evidence does not lead to the conclusion that NSR knew that James and Tiffany engaged in
protected activity, a refusal to inflate their tie up times. James and Tiffany dedicate none of their
briefing to arguing that NSR knew that they took the position of refusing to falsely report their
time or that they engaged in protected timekeeping by entering their time pursuant to Chapter 211.
Because James and Tiffany failed to provide any evidence to show a genuine dispute of material
fact regarding NSR’s knowledge of their claimed protected activity, they did not demonstrate a
prima facie FRSA case. We therefore affirm the district court’s grant of summary judgment.
III. CONCLUSION
For the foregoing reasons, we GRANT in part and DENY in part the motion to dismiss
and DENY the motion for sanctions. We AFFIRM the district court’s judgments granting NSR’s
motions to dismiss and for summary judgment and BLET’s motion for judgment on the pleadings.
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