Carmack v. National R.R. Passenger Corp., Civil Action No. 03-12488-PBS.

• Decision Date: 22 March 2007
• Docket Number: Civil Action No. 03-12488-PBS.
• Citation: 486 F.Supp.2d 58
• Parties: Joseph T. CARMACK, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.
• Court: U.S. District Court — District of Massachusetts

486 F.Supp.2d 58

Joseph T. CARMACK, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant.

Civil Action No. 03-12488-PBS.

United States District Court, D. Massachusetts.

March 22, 2007.

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John A. Kiernan, Stephen E. Hughes, Bonner, Kiernan, Trebach & Crociata, Boston, MA, for Defendant.

ORDER

SARIS, District Judge.

"After review of the objections, I adopt the report and recommendation of the Magistrate Judge and order entry of judgment in favor of the defendant."

REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DEIN, United States Magistrate Judge.

February 5, 2007

I. INTRODUCTION

The plaintiff, Joseph T. Carmack ("Mr. Carmack"), has brought this action pro se against his former employer, National Railroad Passenger Corporation ("Amtrak"), challenging his treatment leading up to and surrounding his termination from employment as a locomotive engineer. In his Second Amended Complaint ("Complaint"), Mr. Carmack has asserted claims against Amtrak for slander, libel and defamation (Count One), invasion of privacy (Count Two), disability discrimination and retaliation (Count Three), violation of his civil rights (Count Four), violation of the Railway Labor Act, 45 U.S.C. §§ 151 et seq. (Count Five), discrimination on the basis of religion (Count Six), personal injury under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 ("FELA") and intentional infliction of emotional distress (Count Seven), and wrongful discharge in violation of public policy (Count Eight). Presently before the court are the parties' cross-motions for summary judgment on all of the plaintiff's claims. For the reasons detailed herein, this court finds that based on the undisputed facts set forth in the record, Amtrak is entitled to summary judgment on all of the Counts of the Second Amended Complaint. Therefore, this court recommends to the District Judge to whom this case is assigned that Amtrak's motion for summary judgment (Docket No. 99) be ALLOWED and that Mr. Carmack's cross-motion for summary judgment (Docket No. 110) be DENIED.

II. STATEMENT OF FACTS¹

The following material facts are undisputed unless otherwise indicated.

Mr. Carmack's Employment at Amtrak

Defendant Amtrak is a passenger railroad that was established pursuant to 45 U.S.C. § 501 (1970). (DF ¶ 1). Mr. Carmack became an employee of Amtrak in 1979, and from 1998 until his termination on May 13, 2002, Mr. Carmack worked as a locomotive engineer for Amtrak's commuter rail operations. (DF ¶¶ 2, 31; PF ¶¶ 14, 16, 111). At all relevant times, Amtrak's locomotive engineers were members of a union, the Brotherhood of Locomotive Engineers ("BLE"). (DF ¶ 16). The BLE and Amtrak were parties to a collective bargaining agreement ("CBA"), which governed "the rates of pay, rules and working conditions of employees of Amtrak employed in its engine service operations." (Def.'s Ex. 11 at 1).

The "Letters From Hell"

The events giving rise to this litigation occurred after Mr. Carmack's supervisor, Gerard DeModena, discovered a group of documents on his office desk on April 10, 2001 that were entitled "Letters from Hell."² (DF ¶ 43). The record indicates that Mr. Carmack prepared these documents in connection with a conflict that he was having with his union representative, Michael O'Bryan, regarding Mr. O'Bryan's handling of a dispute between the plaintiff and Amtrak management. (See Def.'s Exs. 14, 22). Thus, the documents contained a letter from Mr. Carmack to Mr. O'Bryan dated April 4, 2001, in which Mr. Carmack criticized Mr. O'Bryan's actions in his capacity as Mr. Carmack's union representative, as well as copies of correspondence between Mr. Carmack and Amtrak management reflecting the plaintiffs underlying dispute with the railroad. (Def.'s Ex. 22). Additionally, the second page of the materials, which Mr. Carmack describes as satire, provided, "[a]ll is not as it appears theres (sic) more to what you see and hear. Dear God: I hear a fat lady singing. Very, very truthfully yours, Lucifer Prince of Darkness." (DF ¶ 46; PF ¶ 52 (emphasis in original)).

Also included among these materials was a two-page document, based on Shakespeare's Hamlet, which Mr. Carmack refers to as his "Lucifer satire." (PF ¶ 51; Def.'s Ex. 22 at 33-34). The first page of the document provided, "Dear God, We're putting on a play down here. Wanna help us fill out all the parts?" followed by the title, "The Tragedie of HAMLET Prince of Commuter Rail." (DF ¶ 47; Def.'s Ex. 22 at 33). Beneath the title was a list of characters having the same names as the principal characters in the play Hamlet, as well as a corresponding list of players, which included the names of various Amtrak managers as well as the plaintiff and Mr. O'Bryan. (DF ¶ 47; Def.'s Ex. 22 at 33). In particular, Mr. Carmack cast himself as Hamlet and cast Mr. DeModena and Mr. O'Bryan as the characters Rosencrantz and Guildenstern. (DF ¶ 49; Def.'s Ex. 22 at 33). In Shakespeare's work, Rosencrantz and Guildenstern had been friends of Hamlet, and King Claudius had sent them, along with Hamlet, to meet the King of England. (DF ¶ 50). Claudius also had provided Rosencrantz and Guildenstern with a note asking the King of England to execute Hamlet, but Hamlet found the note and replaced it with his own note asking that Rosencrantz and Guildenstern be executed. (Id.). Later, in Shakespeare's Hamlet, it is announced that Rosencrantz and Guildenstern are dead. (Id.).

At the bottom of the page listing the characters and players, Mr. Carmack wrote:

If you were in control, perhaps we'd have the history plays. Most likely you would have ended up with Henry IV parts I and II leading into Henry the V. But since the fall of Adam, I'm in charge and this play has a messy ending more to my liking[.] Sinisterly, Lucifer, prince of darkness

(DF ¶ 54; Def.'s Ex. 22 at 33(emphasis in original)). Moreover, on the following page, Mr. Carmack included three quotes from Shakespeare's Hamlet, including one in which Hamlet expresses anger or frustration at how he has been perceived and manipulated and one in which the King declares "[h]ow dangerous is it that [Hamlet] goes loose!" (Def.'s Ex. 22; see also DF ¶ 55). At the bottom of this page, Mr. Carmack wrote, "ROSENCRANTZ AND GILDEN.STERN ARE DEAD!" (DF ¶ 55; Def.'s Ex. 22 at 33). Although Mr. Carmack had sent the Shakespeare parody to Mr. O'Bryan previously, Amtrak denies that Mr. DeModena or other Amtrak officials saw these documents prior to April 10, 2001. (See PF ¶¶ 40, 48; DOF ¶ 40).

Mr. DeModena's Complaint to Amtrak's Threat Assessment Response Team

Mr. DeModena's response to the "Letters from Hell" triggered a series of events that ultimately culminated in Mr. Carmaek's termination from employment at Amtrak. According to Mr. DeModena, he was disturbed by the "Letters from Hell," and believed that they contained a potential threat of harm against him. (DF ¶ 57; DOF ¶ 64). Consequently, he spoke with his supervisor, Mr. O'Malley, who advised Mr. DeModena to notify Amtrak's Threat Assessment Response Team ("TART"), the group that was charged with evaluating workplace violence complaints and determining what if any action should be taken. (PF ¶ 58; DF ¶¶ 23, 64; Def.'s Ex. 45 ¶ 6). Mr. DeModena also spoke with Lou DePhillips, Amtrak's Director of Labor Relations and a member of TART, and was provided with a complaint form, which Mr. DeModena completed and submitted to TART. (Def.'s Ex. 45 ¶¶ 5, 6; DF ¶ 61).

In his Workplace Violence Report Form, Mr. DeModena described the "Letters from Hell" as a "threat" and further stated that they consisted of a "compilation of letters and writings authored by Joe Carmack. In one addressed to `God,' he maintains that he is in `control' now then proceeds to recast `Hamlet' [with managers], proclaiming to change the ending to his `liking,' and kills off my character." (Def.'s Ex. 21). Mr. DeModena also noted that "[t]his episode followed a few incidents where I had to speak [with] Carmack [regarding] his conduct." (Id.).

Mr. DeModena's actions in complaining about the documents were consistent with Amtrak's workplace violence policy, which allowed zero tolerance of threats and violence. (DF ¶¶ 19, 21, 58). The policy provided, in relevant part:

Amtrak employees should notify a supervisor of any threats which they have witnessed, received, or have been told that another person has witnessed or received. Even without an actual threat, employees should report any behavior they have witnessed which they regard as threatening or violent, when that behavior may impact an Amtrak worksite, occurs on a Company-controlled site, or may result in violent behavior on a Company-controlled site.

(DF ¶ 22 (quoting Def.'s Ex. 12 at 3)). The policy also provided that when a threat is reported, representatives from certain departments within Amtrak form a TART team and evaluate the company's response. (DF ¶ 23). The members of the TART team that considered Mr. DeModena's complaint consisted of Mr. DePhillips, one of Amtrak's Directors of Human Resources, Suzanne Allan, and Inspector Robert Smith of Amtrak's Police Department. (DF ¶¶ 8, 9, 66).

Amtrak's Decision to Medically Disqualify Mr. Carmack

Mr. DePhillips found the "Letters from Hell" disturbing and he decided to seek input from Amtrak's medical staff. (DF ¶ 63). Accordingly, Mr. DePhillips sent selected portions of the documents to Amtrak's health services department. (DF ¶ 63; PF ¶ 80). Pursuant to Amtrak's workplace violence policy, Amtrak's medical director may assist in a TART investigation by consulting with senior management regarding safety sensitive employees, assaults, threats, homicides, and suicides. (DF ¶ 25). The medical director also may provide guidance on fitness...