Henry Lockhart v. MTA Long Island Railroad 1

17-2725-cv
Henry Lockhart v. MTA Long Island Railroad
1
2UNITED STATES COURT OF APPEALS
3FOR THE SECOND CIRCUIT
4August Term, 2017
5 Docket No. 17-2725-cv
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7HENRY LOCKHART,
8
9Plaintiff – Appellant,
10
11v.
12
13MTA LONG ISLAND RAILROAD,
14
15Defendant – Appellee.
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18
19 ARGUED: June 21, 2018
20 DECIDED: February 4, 2020
21
22B e f o r e:WINTER, CALABRESI, and LIVINGSTON, Circuit Judges.
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1

1Appeal from a judgment of the United States District Court for the
2Southern District of New York (Jesse M. Furman, Judge), granting appellee’s
3motion for summary judgment and dismissing appellant’s claims for failure to
4establish a prima facie case of retaliation under the Federal Rail Safety Act, 49
5U.S.C. § 20109 et seq. Appellant, a locomotive engineer for the Long Island Rail
6Road, sought to hold the railroad liable for disciplinary action against him when
7he failed to report to work while under the influence of prescribed narcotic
8drugs. The district court found that, to the extent that appellant was disciplined,
9it was because of his failure to present verifying documentation required by the
10railroad’s sick-leave policy. Because the statute does not prevent employers from
11requesting reasonable documentation to assure themselves that employees’
12absences are legitimate, we affirm.
13CHARLES C. GOETSCH (Charles Goetsch Law
14Offices, LLC, New Haven, Connecticut, on the
15brief), for Plaintiff – Appellant.
16
17BRIAN K. SALTZ (Mark D. Hoffer, The Long
18Island Rail Road Company Law Department,
19Jamaica, New York, on the brief), for Defendant –
20Appellee.
21
2

1Jacqueline M. Holmes (Jones Day, Washington,
2D.C.), for Amicus Curiae Counsel for the
3Association of American Railroads.
4
5Lawrence M. Mann (Alper & Mann, PC,
6Bethesda, Maryland), for Amicus Curiae
Academy of Rail Labor Attorneys.7
8
9
10WINTER, Circuit Judge:
11
Henry Lockhart, a locomotive engineer for the Long Island Rail Road12
13(“LIRR” or “the railroad”), appeals from Judge Furman’s grant of summary
14judgment dismissing his retaliation claims brought under the Federal Rail Safety
Act (“FRSA”), 49 U.S.C. § 20109 et seq. To sustain such claims, appellant must15
16demonstrate that the disciplinary action was in retaliation for his having engaged
17in activity protected under the FRSA. Appellant contends that the protected
18activity here was his refusing to violate the Federal Railroad Administration’s
19(“FRA”) safety regulation that prohibits locomotive engineers from reporting to
20work while under the influence of a prescribed narcotic drug. However,
21appellant failed to submit a Sick Leave Administration Application Form (“SLA-
2228”) following each absence as required by a LIRR policy directive. Because the
3

1statute does not prohibit employers from requesting reasonable documentation
2that employees’ absences are justified, we affirm.
3BACKGROUND
4Appellant began working for the LIRR on May 23, 2001, and has been a
5locomotive engineer for more than twelve years. Appellant argues that the LIRR
violated the FRSA by subjecting him to disciplinary proceedings when he refused6
7to violate the FRA’s safety regulation that prohibits locomotive engineers from
8reporting to work while under the influence of a prescribed narcotic drug.
9At issue in this case is the interplay between the FRSA
1
and the LIRR’s sick
10leave policy directive which states:
No Absence Control points will be assigned nor will LIRR be taking11
12corrective or disciplinary action related to any sick leave occurrences
13where the employee has submitted medical certification on a properly
1
It is undisputed that operating a locomotive under the influence of narcotics
creates a hazardous condition under the FRA. Appellant argues that the record
“flatly contradict[s]” the district court’s holding “that a locomotive engineer who
is under the influence of a prescribed narcotic medication is not a ‘work-related
safety hazard.’” Appellant Br. 22. The district court made no such holding, and
the LIRR did not so agree. Indeed, we expressly observe that Kathleen Meilick,
the LIRR’s Senior Vice President in charge of the LIRR’s Medical Department
and Labor Relations, testified at her deposition that “for a locomotive engineer
to be under the influence of a prescribed narcotic medication would be a
hazardous condition,” “unsafe,” and “in violation of the railroad rules.” App’x
397.
4

1completed form (SLA-28) within 3 days of returning to work, and the
2employee is following the orders or treatment plan by a treating
3physician.
4
5App’x 28.
6The SLA-28 form requests, inter alia, the following information: (i) the
7date of the employee’s illness and/or inability to work; (ii) the nature of the
8illness; (iii) the employee’s certification that he was ill and not able to work; and
9(iv) a “physician’s statement,” signed by the employee’s physician, stating the
10physician’s diagnosis, treatment plan, and opinion as to whether the illness is the
11result of an injury arising out of and in the course of the employee’s employment.
12App’x 283-84. It is undisputed that appellant failed to submit SLA-28 forms
13concerning each of his four absences. Each absence will be discussed in turn.
14On September 13, 2013, appellant telephoned the LIRR Medical
15Department to report that he was taking Vicodin, which was prescribed to him
16after undergoing oral surgery from a non-work-related toothache. The Medical
17Department instructed appellant not to work for 24 to 48 hours from the time he
18took the narcotic. Appellant complied and did not report to work on September
1914, 2013, but failed to submit a SLA-28 form following this absence. On
20September 20, 2013, LIRR manager Eric Lomot sent appellant a “Letter of
5

1Caution,” noting his September 14th absence. Although the letter stated that it
2did “not constitute formal discipline,” it is undisputed that issuing a Letter of
3Caution constitutes the first step in the railroad’s five-step disciplinary process
4ending in termination of employment.
2

5The LIRR’s medical records reflect that, in August 2011, appellant suffered
6an on-the-job injury to his right shoulder. In April 2012, appellant underwent an
7operation on his right shoulder and was prescribed Oxycodone on a per-needed
8(“PRN”) basis. A doctor’s note from July 2014 states that “Mr. Lockhart
9occasionally takes oxycodone on a PRN basis to this date.”
10On three dates occurring more than several months after the surgery --
11December 18, 2013, June 19, 2014, and August 22, 2014 –- appellant telephoned
12the LIRR Medical Department to report that he was taking Oxycodone for right
13shoulder pain. On each occasion, the Medical Department advised appellant not
to work for 24 to 48 hours from the time he took the narcotic. It is undisputed14
15that appellant failed to submit SLA-28 forms following these absences.
2
The LIRR’s Absence Control Policy provides a point system whereby every
absence is assigned a certain number of points. A schedule for the number of
points within certain time periods triggers a five-step disciplinary process
beginning with a Letter of Caution and progressing to a Notice of Investigation,
suspension, and eventual termination.
6

1On July 7, 2014, appellant received a second Letter of Caution with respect
2to six absences post-dating the September 20, 2013 Letter of Caution. Appellant
3claims that some of those absences were due to his right shoulder pain and that
4the LIRR Medical Department instructed him not to work after taking the
5prescribed drugs. On October 6, 2014, the LIRR issued appellant a Notice of
6Investigation
3
in connection with four of these absences. Appellant claims that
7on one of those dates, August 24, 2014, he did not report to work because he was
8taking Oxycodone and instructed by the LIRR Medical Department to stay home.
9 DISCUSSION
10Summary judgment is appropriate only when “there is no genuine dispute
11as to any material fact and the movant is entitled to judgment as a matter of law.”
12Fed. R. Civ. P. 56(a). We review a grant of summary judgment de novo,
13“view[ing] the evidence in the light most favorable to the [plaintiff] and drawing
14all reasonable inferences and resolving all ambiguities in [his] favor.” CILP
15Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 118 (2d Cir. 2013)
16(citation omitted) (internal quotation marks omitted).
3
A Notice of Investigation is the second step in the disciplinary process and
requires the employee to attend a disciplinary trial after which he may be
suspended for five days if found guilty.
7

1The purpose of the FRSA is “to promote safety in every area of railroad
2operations and reduce railroad-related accidents and incidents.” 49 U.S.C. §
320101. To that end, the FRSA prohibits railroad carriers from retaliating against
4employees who engage in various safety-related protected activities. See id. at §
520109.
4

6To establish a prima facie case of retaliation under the FRSA, an employee
7must show by a preponderance of the evidence that: (i) the employee engaged in
8protected activity as defined in the FRSA; (ii) the employer knew that the
4
Four subsections of the FRSA are relevant:
First, subsection 20109(a)(2) provides that a railroad carrier
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 employee’s lawful, good faith act done, or
perceived by the employer to have been done . . . to refuse to violate or
assist in the violation of any Federal law, rule, or regulation relating to
railroad safety or security.
Second, subsection 20109(b)(1)(A) 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.”Third, subsection 20109(c)(2) provides that a railroad carrier “may
not discipline, or threaten discipline to, an employee for requesting medical or
first aid treatment, or for following orders or a treatment plan of a treating
physician.”Finally, subsection 20109(h) provides that “[n]othing in this section
shall be deemed to diminish the rights, privileges, or remedies of any employee
under any Federal or State law or under any collective bargaining agreement.
The rights and remedies in this section may not be waived by any agreement,
policy, form, or condition of employment.”
8

1employee had engaged in protected activity; (iii) the employee suffered an
2unfavorable personnel action; and (iv) the protected activity was a contributing
3factor in the unfavorable action. See, e.g., Conrad v. CSX Transp., Inc., 824 F.3d
4103, 107 (4th Cir. 2016); Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,
5157 (3d Cir. 2013); Bechtel v. Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013).
6If the employee satisfies these requirements, “then the burden shifts to the
7employer to demonstrate by clear and convincing evidence that the employer
8would have taken the same personnel action in the absence of the protected
9activity.” Conrad, 824 F.3d at 107 (internal quotation marks omitted). Failure to
10satisfy any one of the prima facie requirements is fatal to the employee’s claim.
11See id.
12Appellant satisfies element (iii) of a prima facie case because, as a result of
13his absences, the LIRR issued two Letters of Caution and one Notice of
14Investigation. These are the first and second steps of the railroad’s five-step
15disciplinary process. The parties spill much ink arguing whether the FRSA
16protects absences due to work-related maladies only, or whether it also covers
17off-duty injuries such as appellant’s toothache. However, we need not reach that
18issue because even assuming arguendo that off-duty maladies are covered,
9

1appellant has failed to demonstrate that his absences, when unaccompanied by
2SLA-28 forms, were protected activity, as directly required by element (i), and
3indirectly by (ii) and (iv). See Conrad, 824 F.3d at 107.
4The dispositive omission here is appellant’s failure to submit SLA-28 forms
5within three days of returning to work, in violation of the LIRR’s sick leave policy
6directive. See App’x 28. Subsection 20109(h) states that “[n]othing in this section
7shall be deemed to diminish the rights, privileges, or remedies of any employee
8under any Federal or State law or under any collective bargaining agreement.
9The rights and remedies in this section may not be waived by any agreement,
10policy, form, or condition of employment.” “By its plain terms,” appellant
11argues, “subsection (h) voids the use of any railroad form or policy to waive or
12otherwise negate an employee’s Section 20109 statutory right to be protected
13from adverse actions.” Appellant Br. 25-26.
However, nowhere in the statute are employers prevented from using the14
15common practice of requiring reasonable documentation to assure that an
16employee’s claimed medical absences are legitimate. Nor has appellant
17demonstrated that prohibiting such a practice only in cases involving railroad
safety was a policy intended by the Congress. Because nothing in the text,18
10

1structure, and purpose of the FRSA directs otherwise, the railroad was within its
2rights to seek verification of illnesses before excusing appellant’s absences as
3activity protected under the FRSA. Indeed, it would be rather adventurous to
4infer an FRSA requirement that a railroad take employees at their word that the
5reason for a failure to report to work was an easily verifiable doctor-prescribed
6mind-altering drug. The SLA-28 form, which requires a physician’s diagnosis,
7treatment plan, and signature, authenticates that information and does not
8overstep.
9There is also ample case law in other statutory contexts holding that
10employers have the right to request medical certification documenting an
11employee’s need for protected leave. For example, courts have held that
12employers may require employees to fill out standardized reasonable
13accommodation request forms in order to be entitled to accommodations
14(including sick leave) under the Americans with Disabilities Act. See, e.g.,
15Pauling v. District of Columbia, 286 F. Supp. 3d 179, 211-12 (D.D.C. 2017);
16Lundquist v. Univ. of S.D. Sanford Sch. of Med., No. 09-CV-4147, 2011 WL
175326074, at *8 (D.S.D. Nov. 4, 2011); Kunamneni v. Locke, Nos. 1:09-CV-005
18(JCC), 1:09-CV-450 (JCC), 2009 WL 5216858, at *11 (E.D. Va. Dec. 29, 2009).
11

1Similarly, the Family and Medical Leave Act specifies that employers may
require employees to submit health care provider certifications connected to their2
3leave. See 29 U.S.C. § 2613. Appellant has articulated no basis upon which to
4adopt a view that the FRSA affirmatively prohibits employers from imposing a
5similar requirement.
6Moreover, the SLA-28 form does not constitute a waiver
5
of an employee’s
7rights prohibited by the FRSA and the form does not have to expressly reference
8the statute. Section 20109(c)(2) states that an employee may not be disciplined
9“for following orders or a treatment plan of a treating physician.” It is perfectly
10reasonable for a carrier to assure itself that an employee is indeed following a
11treating physician’s orders in missing work by verifying those orders through the
12submission of standardized health care provider certifications such as form SLA-
1328.
14
5
“[W]e note that the issue is more properly considered one of forfeiture than of
waiver. The term ‘waiver’ is best reserved for a litigant’s intentional
relinquishment of a known right. Where a litigant’s action or inaction is deemed
to incur the consequence of loss of a right, or . . . a defense, the term ‘forfeiture’ is
more appropriate.” Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999)
(citing cases).
12

1CONCLUSION
2There is no reason to conclude that the FRSA precludes employers from
3implementing standard policies reasonably designed to verify employees’
4appropriate use of medical leave. We therefore affirm.
5
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