Ziparo v. CSX Transp., Inc.

• Decision Date: 24 September 2021
• Docket Number: August Term, 2020,Docket No. 20-1196-cv
• Citation: 15 F.4th 153
• Parties: Cody ZIPARO, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

15 F.4th 153

Cody ZIPARO, Plaintiff-Appellant,

v.CSX TRANSPORTATION, INC., Defendant-Appellee.

Docket No. 20-1196-cv

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: May 27, 2021

Decided: September 24, 2021

P. Matthew Darby, Berman, Sobin, Gross, Feldman & Darby, LLP, Lutherville, MD (H. David Leibensperger, Berman, Sobin, Gross, Feldman & Darby, LLP, Lutherville, MD; Lawrence M. Mann, Alper & Mann, Bethesda, MD, on the brief), for Plaintiff-Appellant.

Joseph C. Devine, Baker & Hostetler, LLP, Columbus, OH (Ryan A. Cates, Baker & Hostetler, LLP, Columbus, OH; Susan Roney, Benjamin Dwyer, Nixon Peabody, LLP, Buffalo, NY, on the brief), for Defendant-Appellee.

Before: Sack, Lynch, and Park, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

This case presents a question of first impression: Does the Federal Railroad Safety Act's ("FRSA") prohibition of retaliation against employees who "report[ ], in good faith, a hazardous safety or security condition," 49 U.S.C. § 20109(b)(1)(A), protect only those employees who report conditions that a similarly situated employee would reasonably understand as constituting a hazardous safety or security condition? The United States District Court for the Northern District of New York (Glenn T. Suddaby, C.J. ) concluded that it does and, accordingly, granted summary judgment for Defendant-Appellee CSX Transportation, Inc. on Plaintiff-Appellant Cody Ziparo's FRSA retaliation claim. On review, we hold that the FRSA's text and purpose do not support the district court's interpretation, and that "good faith" as used in the FRSA requires only that the reporting employee honestly believe that what she reports constitutes a hazardous safety or security condition. We further conclude that the district court erred in defining the term "hazardous safety or security condition" to embrace only physical conditions, a limitation without foundation in the statutory language.

Applying our interpretation of the statutory language to the summary judgment record, we conclude that a reasonable jury could find that Ziparo subjectively believed that what he was reporting was a hazardous safety or security condition within the meaning of the FRSA. We therefore VACATE the judgment of the district court and REMAND this case for further proceedings.

In doing so, we take no position as to whether a reasonable jury could find that Ziparo was fired at least in part for his reports, rather than, as CSX contends, solely because he was negligent in resetting a switch, with potentially catastrophic consequences – an issue that the district court did not address.

BACKGROUND

We draw the following statement of facts from the evidence in the summary judgment record, which we construe in the light most favorable to Ziparo. See, e.g. , Cortez v. Forster & Garbus, LLP , 999 F.3d 151, 153-54 (2d Cir. 2021). To the extent that this opinion references facts contained in the sealed record, those portions of the record are unsealed.

Cody Ziparo worked for CSX as a train conductor from 2006 until 2016, when he was fired. As of October 2015, Ziparo was working in CSX's train yard in Watertown, New York, where he was supervised by trainmasters Ryan Van Blarcom and Jim Lacy. As a conductor, Ziparo's primary duties involved moving railcars onto their designated trains. This process often involves moving cars across parallel tracks, which are connected by manually operated track switches. For most of his career at CSX, including during 2015-2016, Ziparo worked with CSX engineer Christopher Pigula.

CSX conductors carry a tablet computer connected to CSX's "On-Board Work Order" system (the "OBWO"). Conductors use the OBWO to record tasks, such as the placement of cars, as they are completed; information from the OBWO is relayed to an internal customer service center and is ultimately made available to CSX's customers, who use it to track their orders, much as a typical consumer might use the tracking services offered by the Postal Service and similar private couriers to monitor the status of a shipment. The OBWO is not mandated by federal law, and CSX does not use the OBWO on all of its trains. Further, while Ziparo and others testified that CSX employees use the OBWO to locate train cars, there is no evidence that its use for that purpose is anything other than a convenience. There is also no evidence that CSX itself uses the OBWO as a primary means of monitoring the location of train cars or for any other safety-related purpose. See, e.g. , J. App'x at 669-70 (describing use of the OBWO only for logistical and tracking purposes).¹

In addition to providing information to CSX's customers, the OBWO provides valuable information to CSX by permitting it to track the productivity of its employees. Trainmasters, who are ultimately responsible for overseeing the work of employees in each trainyard, are rewarded with bonuses for meeting certain performance goals as reflected in OBWO data. Such bonuses are not paid to conductors or other lower-level employees.

In or around January 2016, Lacy and Van Blarcom began pressuring Ziparo and one of his fellow conductors, William Miner, to mark tasks as complete in the OBWO even though those tasks had not actually been completed. It is undisputed that Lacy's and Van Blarcom's purpose in doing so was to inflate their performance metrics so that they could earn larger bonuses.

Ziparo was not comfortable with these requests, and his refusals to implement them were met with threats of discipline. Both the requests and threats of discipline caused Ziparo stress to the point that he was unable to focus on his work. Pigula testified that communication between him and Ziparo deteriorated significantly, and that Ziparo, unable to focus on his work, "would just absent-mindedly walk past things or fail to complete a routine task." J. App'x at 635. Between January and early May, Ziparo and Pigula repeatedly complained to Lacy and Van Blarcom directly, "t[elling] both of them multiple times that the environment that they're creating is unsafe." Id. at 567; see also id. at 637 ("We both told Mr. Lacy that it's going to be a safety issue."). In early May, Ziparo met with Lacy in Lacy's office, where he complained again about Lacy's demands that he enter false information into the OBWO and explained that these demands were causing him undue stress. Lacy became frustrated, began yelling at Ziparo, and threatened to charge him with insubordination, although that charge did not materialize.

Unsatisfied by the response to his informal complaints, on May 3, 2016, Ziparo lodged a formal complaint against Lacy and Van Blarcom on CSX's ethics hotline. In his complaint, Ziparo stated that he viewed the ongoing pressure campaign "as a safety issue because employees are not focused on their work and are preoccupied with the harassment coming from Jim [Lacy] and Ryan [Van Blarcom]." Id. at 898. CSX interviewed Ziparo in connection with his complaint on June 6.

A few days after that interview, on June 9, a southbound train caused serious damage to a misaligned track switch; had the train been heading north, it likely would have been diverted onto side tracks where train cars were parked and caused a catastrophic collision. Though Ziparo disputes their reliability, CSX's reports show that Ziparo was the last person to operate the switch before the incident and that he failed to return the switch to the proper position after doing so. There is no evidence in the record that anyone else operated the switch at any point between when Ziparo did so and when the accident occurred, nor is there any evidence of tampering.

On June 16, CSX held an investigative hearing, where Ziparo was represented by his union representative. Ziparo was permitted to cross-examine CSX's witnesses and call witnesses to testify on his behalf. On July 15, the hearing officer found Ziparo responsible for failing to return the switch. CSX then terminated Ziparo. CSX subsequently concluded its investigation into Ziparo's complaint and, having found his allegations substantiated, reprimanded Lacy and Van Blarcom.

On June 29, 2017, Ziparo sued CSX for unlawful retaliation under § 20109(b)(1)(A) of the FRSA. On March 9, 2020, the district court granted summary judgment for CSX. See Ziparo v. CSX Transp., Inc. , 443 F. Supp. 3d 276, 302 (N.D.N.Y. 2020). The district court concluded that "good faith" as used in § 20109(b)(1)(A) contains both subjective and objective components and that no reasonable jury could find it objectively reasonable for Ziparo to believe that his own stress and distraction resulting from Lacy's and Van Blarcom's improper demands amounted to a "hazardous safety or security condition." Id. at 296-300. Further, having defined "hazardous safety or security condition" as a "physical condition[ ] that [is] within the control of the rail carrier employer," the district court also held that no reasonable jury could find that Ziparo subjectively understood what he was reporting to be a "hazardous safety or security condition," since it was not such a "physical condition." Id. at 297-98. This appeal followed.

DISCUSSION

"We review the district court's decision to grant summary judgment de novo , resolving all ambiguities and drawing all permissible factual inferences in favor of the party against whom summary judgment is sought." Booker v. Graham , 974 F.3d 101, 106 (2d Cir. 2020), quoting Ya-Chen Chen v. City Univ. of N.Y. , 805 F.3d 59, 69 (2d Cir. 2015). Further, "[o]ur review of a district court's interpretation of a statute, a pure question of law, is also de novo ." Nielsen v. AECOM Tech. Corp. , 762 F.3d 214, 218 (2d Cir. 2014).

Section 20109(b)(1)(A) of the FRSA provides that "[a] railroad carrier ... shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for ... reporting, in good faith, a hazardous safety or security condition." 49 U.S.C. § 20109(b)(1)(A). To make out a prima...