Araujo v. N.J. Transit Rail Operations, Inc.

• Decision Date: 19 February 2013
• Docket Number: No. 12–2148.,12–2148.
• Citation: 708 F.3d 152
• Parties: Anthony ARAUJO, Appellant v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.
• Court: U.S. Court of Appeals — Third Circuit

708 F.3d 152

Anthony ARAUJO, Appellant

v.NEW JERSEY TRANSIT RAIL OPERATIONS, INC.

No. 12–2148.

United States Court of Appeals,Third Circuit.

Argued Dec. 14, 2012.

Filed: Feb. 19, 2013.

Charles C. Goetsch, Esq., (Argued), Cahill, Goetsch & Perry, New Haven, CT, for Appellant.

Adam K. Phelps, Esq., (Argued), Office of Attorney General of New Jersey, Department of Law & Public Safety, Newark, NJ, for Appellee.

Before: GREENAWAY, JR., GREENBERG and COWEN, Circuit Judges.

OPINION

COWEN, Circuit Judge.

Anthony Araujo filed a complaint in the United States District Court for the District of New Jersey alleging that he was disciplined by New Jersey Transit Rail Operations, Inc. (“NJT”) in retaliation for his participation in an activity protected by the Federal Rail Safety Act, 49 U.S.C. § 20109 (“FRSA”). Specifically, Araujo reported an emotional injury after he witnessed a fatal accident on February 25, 2008. The District Court (Judge Stanley R. Chesler) found that the discipline was not retaliatory and granted NJT's motion for summary judgment. See Araujo v. New Jersey Transit Rail Operations, Inc., No. 10–CV–3985, 2012 WL 1044619 (D.N.J. Mar. 28, 2012). We will reverse the order of the District Court and remand.

I.

As this appeal arises from the grant of NJT's motion for summary judgment, we recount the facts contained in the record in the light most favorable to Araujo, the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

NJT employs outside contractors to conduct repairs and maintenance work on bridges that pass over railroad tracks that are electrified by NJT. They are primarily protected from overhead high voltage catenary wires by two NJT linemen, and are protected from the movement of other trains on the tracks by a conductor-flagman.Prior to the February 25, 2008 accident, it was the practice of linemen not to talk to the NJT conductor-flagman about catenary outages. Rather, linemen would brief the supervisor of the contractor crew about the extent of the electrical catenary outages. The supervisor of the contractor crew would then inform the conductor-flagman that the catenary lines were de-energized. On the date of the accident, Beaver Construction Company (“Beaver Construction”), performed work rehabilitating bridges over an electrified NJT track. The specific area of work was on Track 2, in Newark, New Jersey. NJT employed two linemen—Christopher Picton and Jeff Meisner—to de-energize the catenary and provide primary protection to the contractors. Araujo was the conductor-flagman. His primary responsibility was to protect contractors from oncoming trains.

The linemen told the Beaver Construction superintendent, Nicholas Gilman, that the Beaver Construction crew was supposed to work around Track 2, near Third Street. The linemen did not brief Araujo regarding the limits of the catenary outage, and Araujo concedes that he was not aware of the extent of the catenary outage. Rather, based on his experience as a conductor-flagman, Araujo assumed that the catenary was de-energized to the same extent as the track was put out of service for the repairs. He had received a Bulletin Order-a document used by NJT to describe track outage information—which stated that the track was out of service for electrical trains between Broad Street and Roseville Avenue, an area which included Seventh Street, where the accident occurred. Araujo, however, was mistaken in his assumption that the scope of the catenary de-energization was the same as the track outage. The catenary de-energization was not controlled by the Bulletin Order, but was controlled by another form—the E.T. 102 form—and did not extend that far.

The Beaver Construction crew, accompanied by Araujo, commenced its work at the Third Street area of Track 2. After the crew completed its work, Araujo believed that the construction crew was going to get off of the tracks at the Bathgate Avenue exit ramp, which is past Seventh Street. The two linemen, Picton and Meisner, did not remain with the construction crew, but rather moved to meet the Beaver Construction crew at Bathgate Avenue. Rather than exiting, the Beaver Construction crew foreman, Francis McNeil, asked superintendent Gilman for permission for the crew to stop at Seventh Street to perform minor repairs.

According to Araujo, who heard the conversation between McNeil and Gilman, Gilman told McNeil that he “had the catenary,” meaning that he had signed off on the catenary outage with the linemen. Araujo understood this to mean that the catenary was de-energized at Seventh Street. According to Araujo, linemen in practice communicated catenary outages to a conductor-flagman by relaying the information through a construction crew foreman. Thus, at this time, the construction crew, the foreman, and Araujo were not aware that the catenary outage did not extend to Seventh Street. Araujo was the only NJT employee that was with the construction crew. The construction crew proceeded with repairs, and a construction crew member came in contact with the catenary. He was electrocuted, dying from his injuries, which Araujo witnessed.

Following the accident, NJT Superintendent Joseph Meade, who was Araujo's manager, questioned Araujo at the site. He also interviewed others, who confirmed that Araujo had not been briefed about the catenary outage.

The accident was a Federal Rail Administration (“FRA”) reportable incident, and both FRA and NJT rules and regulations required NJT to conduct drug tests on any employee that it had “reasonable cause” to believe had committed rule violations that contributed in any way to the incident. On the evening of the incident, NJT administered drug tests to two lineman—Picton and Meisner—who were responsible for protecting the contractors from catenary wires, but did not order a drug test for Araujo.

The following day, Araujo gave a taped statement about the incident to NJT. There was no significant new information in that statement. Araujo also went to NJT's Employee Assistance Program (“EAP”) to report symptoms that he was experiencing as a result of witnessing the accident. A NJT counselor confirmed that he was medically unable to work due to a work-related injury, and informed Meade that Araujo could not work. A work-related medical condition that causes an employee to miss work had to be reported to the FRA.

Under the applicable labor relations agreement, NJT had ten days from the date of the incident to give employees notice of a hearing and investigation (“H & I”) into rule violations arising out of the incident. On March 5, 2008, Meade drafted disciplinary charges against Araujo, asserting a violation of TRO–3 rules. The TRO–3 rules require conductors to prohibit people under their protection from going near the catenary unless the conductor knows for certain that the catenary is de-energized. Meade admitted during his deposition that, as of the evening of February 25, 2008, he was in possession of all of the information on which he based the TRO–3 rule violation charges against Araujo. He testified, in part:

Q: So what was your basis for deciding to bring the charges? What information, what facts did you rely on?

A: The fact that the individual came in contact with the catenary wire showed that there was some question on whether [Araujo] followed the rules as outlined in TRO–3, 13, 14, 15 and 101.

Q: You certainly knew that fact as of the afternoon of February 25th, 2008, correct?

A: We knew that the incident happened. We weren't fully advised in-depth of it, which is why we set up a hearing and investigation to bring all the facts together.

Q: Well, my question to you is—

A: This is not a guilty—this is trying to get all the people involved together and ascertain the facts to see if indeed he did comply with those rules.

Q: Well, why did you suspect or believe that he didn't comply with the rules? What basis did you have to even believe that?

A: Because an individual was injured under his protection by coming in contact with the catenary.

Q: A fact that you knew on February 25, 2008, correct?

A: Yes, sir.

(A–789.) However, Meade also testified that “the fact that we charged Mr. Araujo had nothing to do with the fact that we didn't” drug test him, and stated that the decision to charge Araujo was made after the initial interview on February 25, 2008, and required him to read the statements given by Picton, Meisner, and other witnesses. Additionally, the record reflects that Araujo was the only conductor-flagman that was ever charged with a violation of TRO–3 rules during the five years prior to February 25, 2008. (A–672.)

On May 22, 2008, NJT ceased paying Araujo's wages on the grounds that Araujo's injury was a recoverable injury under the Federal Employers Liability Act (“FELA”). On October 2, 2008, Araujo was cleared to return to work from his injury, but he was suspended without pay while the charges were pending. A hearing was held and the adjudicating officer found that Araujo violated the TRO–3 rules. As a result, Araujo was assessed a time-served suspension without pay.

Araujo thereafter filed a complaint with the Occupational Safety & Health Administration (“OSHA”) Office of Whistleblower Protection, as required by the FRSA. OSHA issued findings in favor of Araujo, and ordered NJT to pay $569,587 in damages, to which NJT objected.¹ Pursuant to the FRSA, Araujo filed this suit in the United States District Court for the District of New Jersey. ² Following discovery, NJT filed a motion for summary judgment, which the District Court granted. This appeal followed.

II.

The District Court had jurisdiction pursuant to 49 U.S.C. § 20109(d)(3) and 28 U.S.C. § 1331. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over a district court's grant of summary judgment. See Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d 862, 867 (3d Cir.2012). This court can...