Wheeler v. Norfolk S. Ry. Co.

• Decision Date: 29 July 2021
• Docket Number: No. 20-30693,20-30693
• Citation: 6 F.4th 626
• Parties: James WHEELER, Plaintiff–Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY; Unidentified Parties, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

6 F.4th 626

James WHEELER, Plaintiff–Appellant,

v.NORFOLK SOUTHERN RAILWAY COMPANY; Unidentified Parties, Defendants–Appellees.

No. 20-30693

United States Court of Appeals, Fifth Circuit.

FILED July 29, 2021

Stephen J. Johnson, Esq., Houma, LA, Joseph Rodney Franks, Esq., Franks Law Firm, P.L.L.C., Jackson, MS, for Plaintiff-Appellant

Romney Hastings Entrekin, Esq., Benjamin Blue Morgan, Esq., Attorney, Burson Entrekin Orr Mitchell & Lacey, P.A., Laurel, MS, Renee Faye Smith Auld, Esq., Travis Louis Bourgeois, Sidney W. Degan, III, Esq., Attorney, Degan, Blanchard & Nash, New Orleans, LA, for Defendant-Appellee.

Before Smith and Ho, Circuit Judges, and Barker, District Judge.^*

J. Campbell Barker, District Judge.

James Wheeler was employed by Hulcher Services, Inc. while working at a New Orleans railyard. After he lost several fingers in an accident at the railyard, he sued the railyard's owner, Norfolk Southern Railway Company, under a federal law that allows suit by railroad employees injured on the job. See Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. That claim presented the question whether Wheeler was an employee of Norfolk. On summary judgment, the district court held that he was not, so he could not recover under FELA. Wheeler now appeals. Because he does not show that Norfolk controlled the performance of his work or retained the right to do so, we affirm the district court's judgment.

I.

At the time, Wheeler had worked for Hulcher for about three months, serving over a dozen Hulcher customers. He had never before worked at Norfolk's railyard.

The Hulcher crew serviced the derailment site and was packing up its heavy equipment when a novice Hulcher employee made a dangerous error. The employee failed to reverse a cable line that Wheeler was holding while rigging down a boom. The slack in the line evaporated in an instant, trapping Wheeler's right hand between a heavy steel cable and a load line. His middle, ring, and pinky fingers were severed.

Wheeler brought and settled a workers-compensation claim against Hulcher. He then brought this FELA suit, alleging that he was Norfolk's employee and was injured by its negligence. To show his employee status, Wheeler relied on (1) the agreement between Hulcher and Norfolk and (2) the testimony of two Norfolk supervisors on duty during his accident. Those materials are described in further detail below.

1. Hulcher performed work for Norfolk under a Master Agreement for Derailment Cleanup and Repair Services. It provided for Hulcher to work on derailments on an "as-needed, as-requested basis," with Norfolk not required to use Hulcher for any given derailment.

If requested to work on a derailment, Hulcher was required to provide trained personnel, equipment, and services to clean up the derailment site. Its work would include "(a) clearing, removing and/or rerailing locomotives, railcars and other rolling stock; (b) repair, reconstruction and replacement of damaged or destroyed trackage or track components ... ; and (c) such other services as [Norfolk] may request to complete repair and cleanup of a derailment site." Norfolk determined the scope of those services and the equipment to be used on a case-by-case basis.

The agreement obligated Hulcher to "respond[ ] to derailments as promptly as possible ... twenty-four (24) hours per day, seven (7) days per week." Regarding personnel, the agreement required Hulcher to follow federal law and mandated that Hulcher perform certain background checks on any employee assigned to the Norfolk railyard. The agreement provides that "[n]othing in this background investigation requirement [prevents Hulcher] from hiring any particular individual or requiring [Hulcher] to terminate such individual if already hired[.]" The agreement also imposes some of Norfolk's internal rules on Hulcher and its employees. For example, it requires Hulcher employees to comply with Norfolk's safety rules, attend job briefings conducted by Norfolk, stay up to date on environmental and hazardous-materials trainings, and wear safety gear at derailment sites.

The paragraph titled "Independent Contractor" states that Hulcher would "remain an original and independent party[.]" Hulcher's services were to be "its own separate business, under its management, supervision and direction." The agreement provides that Hulcher was to "employ, pay[,] ... and discharge all persons engaged in the performance of" its services, and those persons were to "remain the sole employees of [Hulcher]." Nothing in the agreement "is intended to create a joint venture or to constitute either party as agent ... of the other."

The agreement gives Norfolk employees the right to inspect Hulcher's work and demand that Hulcher remedy any deficiencies. It also provides that Norfolk may assign its personnel to work alongside or in the vicinity of Hulcher employees, and it clarifies that the employees of each party "shall remain under the direction and control of [their] supervisors, there being no intention to render the employees of either as ‘loaned’ employees of the other[.]"

2. Wheeler submitted a declaration alleging that Norfolk employees "had the right to direct [his] work if they desired" and that, if they had directed him to do something, he "would have done it." He claims that he understood that he was supposed to follow Norfolk's safety rules, that he should stop if ordered to do so by a Norfolk employee, and that his failure to do either could lead to his removal from Norfolk's railyard. Wheeler supports his claims with the testimony of two Norfolk employees.

First, Wheeler relies on the testimony of Stacey Brown, Norfolk's Senior General Foreman at the railyard. Although Brown was on duty the day that Wheeler was injured, Brown was unaware the accident had occurred. Brown was Norfolk's point person for Hulcher's services at the railyard. In the event of a derailment, Brown would call Hulcher and tell them the scope of the project and what equipment he believed was needed. Hulcher would then determine the number of its employees needed to clean up the site.

Brown stated that he did not make a habit of policing how Hulcher employees entered the yard, but he agreed that he had the authority to do so. He also agreed that he could order a Hulcher employee to stop working "for any reason." He represented that he did not have authority to order Hulcher employees to do something in a particular way, however, and that "I just tell [the Hulcher employee] to stop, and then his supervisor would determine how they're going to do it." Brown knew that he could remove a contractor from the railyard, but he had never heard of someone's being removed in his 22 years at Norfolk.

Second, Wheeler relies on the testimony of Preston Hunter, the Norfolk yardmaster on duty during the accident. Hunter too was unaware of Wheeler's accident until this lawsuit was filed. As the yardmaster, Hunter controlled the railyard, but he never interacted with Hulcher or directly supervised its work or crews. He explained that, when a derailment occurs, Norfolk's mechanical department asks for permission to clear the affected tracks, after which the mechanical department contacts Hulcher. Hunter acknowledged that he could order the mechanical department to stop Hulcher from working in an emergency or if he saw something unsafe. But he stated, "that's just something I would never ... do[,]" because from where Hunter was located in the tower, he "really wouldn't know what Hulcher is doing[.]"

II.

Employment by a railroad is required for a plaintiff to recover under FELA. 45 U.S.C. § 51. Whether an injured worker was acting as an employee of a railroad at the time of an injury is a question of fact. Lindsey v. Louisville & Nashville R.R. Co. , 775 F.2d 1322, 1324 (5th Cir. 1985). The district court entered summary judgment for Norfolk, holding that no genuine dispute of material fact existed on that point and that the record would not support a finding that Wheeler was Norfolk's employee at the time of his accident. On appeal, we review that summary judgment de novo.

In FELA, the words "employee" and "employed" are used in their natural sense, so principles of common law govern the issue of employment. Kelley v. S. Pac. Co. , 419 U.S. 318, 323, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974). At common law, a person may establish his employee status, despite his nominal classification as an independent contractor, under three recognized doctrines. As applied to a railroad, the person could (1) be the railroad's borrowed servant, (2) serve two employers simultaneously, or (3) be a subservant of a company that in turn serves the railroad. Id. at 324, 95 S.Ct. 472. Under each of those doctrines, a worker's employment status turns on "whether the railroad has control of the employee or the right to control the employee." Lindsey , 775 F.2d at 1324.

The railroad need not have full supervisory control, but its supervisory role must be significant. Id. The mere reservation of authority to ensure performance as contemplated by a contract is not sufficient control to turn a nominal contractor into an employee. See Sullivan v. Gen. Elec. Co. , 226 F.2d 290, 291 (6th Cir. 1955). The control necessary to establish an employment relationship is also more than just the power of "mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking." Kelley , 419 U.S. at 329, 95 S.Ct. 472 (cleaned up). Likewise, "the passing of information and the accommodation ... obviously required in a large and necessarily coordinated operation" do not prove sufficient supervisory control. Id. at 330, 95 S.Ct. 472 (citation omitted). Rather, to establish an employment relationship, the communications between the railroad and the contractor "must assume a supervisory character." Id.

Under those standards and on the summary-judgment record here, Wheeler's argument that he was Norfolk's employee fails as a...