Sirois v. Long Island Railroad Company

• Court: Court of Appeals for the Second Circuit
• Decided: January 14, 2020
• Docket: 18-2858-cv
• Status: Unpublished

Opinion

18‐2858‐cv Sirois v. Long Island Railroad Company

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 14th day of January, two thousand twenty.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges, BRENDA K. SANNES, District Judge.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x CARMELA SIROIS, Plaintiff‐Appellant,

v. 18‐2858‐cv

LONG ISLAND RAILROAD COMPANY, Defendant-Appellee. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: Chester H. Lauck, Lauck Law Firm, Little Rock, Arkansas.

* Judge Brenda K. Sannes, of the United States District Court for the Northern District of New York, sitting by designation FOR DEFENDANT‐APPELLEE: Brian K. Saltz, for Mark D. Hoffer, Vice President/General Counsel & Secretary, Long Island Railroad Company, Jamaica, New York.

Appeal from the United States District Court for the Eastern District of

New York (Cogan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Carmela Sirois appeals from the August 24, 2018

judgment of the district court dismissing her claims against defendant‐appellee Long

Island Railroad Company (ʺLIRRʺ). By memorandum decision and order entered

August 24, 2018, the district court granted LIRRʹs motion to dismiss the complaint

pursuant to Fed R. Civ. P. 12(b)(6). Sirois, an employee of LIRR, alleged that LIRR

violated the Federal Railroad Safety Act (the ʺFRSAʺ) by retaliating against her after she

reported a work‐related personal injury. See 49 U.S.C. § 20109 et seq. Specifically, Sirois

alleges that LIRR violated the FRSAʹs anti‐retaliation provisions by changing her injury

status from work‐related to non‐work‐related, resulting in the loss of certain benefits.

We assume the partiesʹ familiarity with the underlying facts, procedural history, and

issues on appeal.

The facts alleged in the complaint are assumed to be true. Sirois is a

member of the Transportation Communications Union, which is party to a collective

bargaining agreement with LIRR according to which LIRR is required to cover medical

‐2‐ treatment and wage continuation benefits in connection with work‐related injuries. On

July 16, 2012, Sirois injured her lower back while cleaning an office in the course of her

duties. LIRRʹs medical department classified her injury as resolved within 24 hours,

and refused to pay medical expenses or wage continuation benefits.

Then began a tug‐of‐war, during which Siroisʹs injuries were alternately

classified as work‐related or non‐work‐related a half‐dozen times. Thus on February 7,

2013, an independent medical examination panel determined that Siroisʹs injury was

work‐related. On October 30, 2013, an LIRR physician reclassified her injury as non‐

work‐related. In response, Sirois filed a claim under the FRSA with the U.S.

Department of Laborʹs Occupational Safety Health Administration (ʺOSHAʺ). On

March 20, 2014, the claim was settled and Siroisʹs injury was again classified as work‐

related. On September 18, 2014, LIRR reclassified her injury as non‐work‐related for a

second time. Sirois, through her union, challenged the status change, and on December

9, 2014, an independent medical examination again found that her injury was work‐

related. On November 16, 2016, LIRR for a third time reclassified Siroisʹs injury as non‐

work‐related.

Each time that LIRR reclassified her injury as non‐work‐related, it stopped

paying for her medical treatment and wage continuation benefits. The complaint

alleges that Sirois engaged in protected activity when she first reported her injury on

‐3‐ July 16, 2012, and that LIRRʹs reclassification of her injury on November 16, 2016,

constituted an adverse personnel action.

I. Standard of Review

ʺThis Court reviews de novo a district courtʹs grant of a motion to dismiss

under Rule 12(b)(6).ʺ Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). ʺOn

a motion to dismiss, all factual allegations in the complaint are accepted as true and all

inferences are drawn in the plaintiffʹs favor.ʺ Id. at 306‐07. The complaint must plead

ʺenough facts to state a claim to relief that is plausible on its face,ʺ Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007), and ʺallow[] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged,ʺ Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). Pleadings that ʺare no more than conclusions[] are not entitled to

the assumption of truth.ʺ Id. at 679.

II. Discussion

The purpose of the FRSA is ʺto promote safety in every area of railroad

operations.ʺ 49 U.S.C. § 20101. To that end, the FRSA prohibits railroad carriers from

retaliating against employees who engage in various safety‐related protected activities,

providing that a railroad:

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 employeeʹs lawful, good faith act done, or perceived by the employer to have been done or about to be done‐‐ . . . to notify, or

‐4‐ attempt to notify, the railroad carrier . . . of a work‐related personal injury or work‐related illness of an employee.

Id. at § 20109(a).2

FRSA retaliation claims are evaluated under the burden‐shifting test of the

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (ʺAIR 21ʺ).

See 49 U.S.C. § 42121(b); see also 49 U.S.C. § 20109(d)(2)(A)(i). Because ʺCongress

intended [this burden‐shifting framework] to be protective of plaintiff‐employees,ʺ it is

ʺmuch easier for a plaintiff to satisfy than the McDonnell Douglas standard.ʺ Arauju v.

N.J. Transit Rail Operations, Inc., 708 F.3d 152, 159‐60 (3d Cir. 2013). Accordingly, to

establish a prima facie claim of retaliation under the FRSA, an employee must show by a

preponderance of the evidence that (1) she engaged in protected activity as defined in

the statute; (2) she suffered an unfavorable personnel action; and (3) the protected

activity was a contributing factor in the unfavorable action. See Metro‐North Commuter

R.R. Co. v. Depʹt of Labor, 886 F.3d 97, 104‐06 (2d Cir. 2018). ʺOnce a prima facie case is

established, the railroad can rebut it by prov[ing] by clear and convincing evidence that

2 For the first time on appeal, Sirois alleges claims under 49 U.S.C. § 20109(c), which prohibits a railroad carrier from denying, delaying, or interfering with the medical or first aid treatment of an employee who is injured during the course of employment. Because Siroisʹs complaint and briefings below did not allege violations of § 20109(c), we consider such claims waived. See Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994) (ʺ[I]t is a well‐established general rule that an appellate court will not consider an issue raised for the first time on appeal.ʺ). ‐5‐ it would have taken the same unfavorable personnel action in the absence of the

complainantʹs protected behavior.ʺ Id. at 104 (internal quotation marks omitted).

While this Circuit has not had occasion to define what qualifies as an

adverse personnel action under the FRSAʹs prohibition on discriminating against an

employee, the FRSAʹs language parallels that of other anti‐retaliation statutes, including

Title VII. See 42 U.S.C. § 2000e‐3(a) (ʺIt shall be an unlawful employment practice for an

employee to discriminate against any of his employees or applicants for employment

. . . .ʺ). In Burlington Northern & Santa Fe Railway Co. v. White, the Supreme Court

interpreted Title VIIʹs anti‐retaliation provision as prohibiting any action that ʺcould

well dissuade a reasonable worker from making or supporting a charge of

discrimination.ʺ 548 U.S. 53, 57 (2006). Whether the Burlington Northern standard

applies to retaliation claims under the FRSA is an open question.3 We need not decide

the issue here, however, because even assuming Sirois suffered an adverse employment

3 We have held that the Burlington Northern standard applies to retaliation under other statutes. See Millea v. Metro‐North R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011) (applying the Burlington Northern standard to Family Medical Leave Act); Kessler v. Westchester Cty. Depʹt of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (applying Burlington Northern standard to Age Discrimination in Employment Act).

‐6‐ action, she failed to establish that the protected activity was a contributing factor in the

unfavorable action.4

Sirois argues that her allegation, if proven, would support the inference

that her reporting of her injury was a contributing factor in LIRRʹs adverse employment

action. We disagree.

A plaintiff can establish a prima facie case that his protected activity was a contributing factor in the adverse action by . . . circumstantial evidence . . . includ[ing] [1] temporal proximity, [2] indications of pretext, [3] inconsistent application of an employerʹs policies, [4] an employerʹs shifting explanations for its actions, [5] antagonism or hostility toward a complainantʹs protected activity, [6] the falsity of an employerʹs explanation for the adverse action taken, and [7] a change in the employerʹs attitude toward [the complainant] after he or she engages in protected activity.

Niedziejko v. Del. & Hudson Ry. Co., No. 18‐0675, 2019 WL 1386047, at *43 (N.D.N.Y. Mar.

27, 2019) (internal quotation marks and citation omitted).

Temporal proximity may support a prima facie inference that the protected

activity was a contributing factor, but only where the protected act and the retaliation

occur in quick succession. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273‐74 (2001)

(holding that, under Title VII, where temporal proximity is accepted as sufficient

evidence to establish a prima facie case, ʺthe temporal proximity must be very closeʺ)

4 Whether a retaliation claim requires a showing of intent is also an open question in this Circuit. We need not reach the issue here, however, as the complaint does not allege LIRR acted with intent, but rather with ʺreckless disregardʺ and ʺcomplete indifference.ʺ J. Appʹx at 9. ‐7‐ (internal quotation marks omitted). ʺThis court has not drawn a bright line to define

the outer limits beyond which a temporal relationship is too attenuated to establish a

causal relationship . . . .ʺ Gorman‐Bakos v. Cornell Co‐op Extension of Schenectady Cty., 252

F.3d 545, 554 (2d Cir. 2001). Rather, the Court may ʺexercise its judgment about the

permissible inferences that can be drawn from temporal proximity in the context of

particular cases.ʺ Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). Compare Natofsky v.

City of New York, 921 F.3d 337, 353 (2d Cir. 2019) (finding negative performance review

nearly one year after complaint was made to be too attenuated to infer causal

connection), and Duplan v. City of New York, 888 F.3d 612, 625‐26 (2d Cir. 2018) (two‐year

delay between filing of EEOC charge and adverse employment action does not support

inference of causation), with Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.

1998) (discharge less than two months after plaintiff filed sexual harassment complaint

was prima facie evidence of causal connection between protected activity and

retaliation).

Here, the alleged adverse employment action (reclassification of her injury

in November 2016) occurred over four years after the protected activity (reporting the

injury in July 2012).5 A temporal gap of over four years is too attenuated to support the

5 Although the complaint refers to two earlier reclassifications of her injury, one in 2013 and one in 2014, Sirois does not contend that these reclassifications were adverse employment actions. While these prior reclassifications may be relevant as background, see Mercier v. Deptʹ of Labor, 850 F.3d 382, 388‐89 (8th Cir. 2017), the complaint identifies only the November 2016 reclassification as actionable adverse action. ‐8‐ requisite inference. Sirois thus failed to plausibly allege that her protected activity was

a contributing factor in the unfavorable treatment. Accordingly, we conclude that the

district court did not err when it dismissed Siroisʹs claim.

* * *

We have considered Siroisʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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