Scott Hite v. Norfolk Southern Railway Company

File Name: 06a0343n.06
Filed: May 15, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 05-1910
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SCOTT HITE,
Plaintiff-Appellant,
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant-Appellee.
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
/
Before: MARTIN, GUY, and CLAY, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Scott Hite appeals the district court’s entry of
summary judgment in favor of defendant Norfolk Southern Railway Company and dismissal of his
claims under Michigan’s Public Officers and Employees Whistleblowers’ Protection Act, Mich.
Comp. Laws §§ 15.361 et seq. For the foregoing reasons, we affirm the entry of summary judgment.
I.
Hite worked as a Block Operator for Norfolk Southern and its predecessor Conrail beginning
on June 23, 1997 in Kalamazoo, Michigan. In March 2004, Norfolk Southern learned that Hite had
made a videotape of company property. Sometime before creating the tape, Hite had reported what
he claimed were unsafe working conditions at Norfolk Southern to the Michigan Occupational
Safety and Health Administration. After learning of the videotape, Norfolk Southern determined

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1 It is unclear from the record what these allegations specifically involved and whether or
how they were related to Hite’s dismissal.
that Hite’s actions violated several of the company’s Safety and General Conduct Rules. On May
6, 2004, Norfolk Southern sent Hite a letter to notify him that he would be suspended for eighty days
for videotaping company property without authorization, turning his undivided attention away from
his work duties, not devoting himself entirely to company service, and entering company property
while not on duty.
Subsequently, Norfolk Southern determined that Hite had allowed an unauthorized person
to view the videotape, and notified Hite in a May 18, 2004 letter that he was “dismissed in all
capacities.” Hite challenged this decision through his union, and the company denied his appeal.
The union then appealed the company’s decision to a Public Law Board, pursuant to the Railway
Labor Act and the collective bargaining agreement. The Board held a hearing on Hite’s appeal on
September 9, 2005, and is yet to issue a decision.
Despite having been dismissed in May, Hite filed a complaint with Norfolk Southern’s
Internal Audit Department in the fall of 2004 regarding actions taken by the railroad and its officials
following his discharge.1 In connection with Norfolk Southern’s investigation of these allegations,
Hite received a letter from the Internal Audit Department responding to his complaint. Apparently
Hite found the letter unsatisfactory, as he responded with a “profanity laced voice-mail message”
to the author of the letter. Norfolk Southern held another disciplinary hearing in response to Hite’s
voice-mail on January 20, 2005, and on January 27, 2005 informed Hite that he had been “found
guilty” of the voice-mail incident, but that his dismissal for that incident would be “held in

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2 Hite’s state court complaint also included a claim for retaliatory discharge under
Michigan common law, but this count was not included in his subsequent federal court filings.
abeyance” pending the appeal of his earlier dismissal.
Hite filed this lawsuit on November 15, 2004 in Michigan state court, several months after
his dismissal for the videotape incident but prior to the voice-mail incident and subsequent
investigation.
II.
Hite alleged in his initial state court complaint that he was discharged in retaliation for
reporting unsafe working conditions at Norfolk Southern in violation of Michigan’s Public Officers
and Employees Whistleblowers’ Protection Act, M ICH . COMP. LAWS § 15.363 et seq.2 On December
22, 2004, Norfolk Southern removed the case to the United States District Court for the Western
District of Michigan, which had diversity jurisdiction over the suit.
In his initial state court complaint, filed on November 15, 2004, Hite acknowledged that he
“was discharged from his position of employment by defendant NSRC.” Hite filed an amended
complaint in federal court, apparently after recognizing a potential statute of limitations issue, where
he claimed he was “relieved from service” but that “[h]is employment rights have not been
completely and finally terminated.” Hite later amended his complaint a second time, this time
identifying Norfolk Southern’s January 27, 2005 decision regarding the voice-mail incident as an
additional retaliatory, adverse employment action. On June 9, 2005, the district court granted
Norfolk Southern’s motion for summary judgment, dismissing with prejudice Hite’s claim regarding
his initial dismissal on May 18, 2004. The district court agreed with Norfolk Southern that this

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claim was time barred under the ninety-day statute of limitations provided by Michigan’s
Whistleblowers’ Protection Act. Hite’s claim regarding the January 27, 2005 conditional discharge
related to the voice-mail was dismissed without prejudice as it was not ripe for adjudication, because
the conditional discharge would not take effect until after any potential reinstatement resulting from
Hite’s appeal to the Public Law Board. As a result, only the claim regarding the May 18, 2004
dismissal based on the videotape is before this Court on appeal.
III.
We review a district court’s grant of summary judgment de novo, and must view “the facts
and any inferences that can be drawn from those facts . . . in the light most favorable to the non-
moving party.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1996)). This diversity case is governed
by Michigan state law, particularly the Michigan Whistleblowers’ Protection Act and its limitations
provision, which provides that “[a] person who alleges a violation of this act may bring a civil action
for appropriate injunctive relief, or actual damages, or both within ninety days after the occurrence
of the alleged violation of this act.” M ICH . COMP . LAWS § 15.363; see also Guaranty Trust Co. v.
York, 326 U.S. 99, 110 (1945) (holding that state law statutes of limitations apply in cases where
jurisdiction is based entirely on diversity of citizenship).
Hite challenges the district court’s entry of summary judgment on several grounds. First, Hite
claims that there is a question of material fact as to whether he was actually dismissed on May 18,
2004, pointing to several factors that he claims indicate Norfolk Southern still viewed him as an
employee. In a somewhat related argument, Hite claims that Norfolk Southern committed a

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3It is unclear how this argument would benefit Hite even if it were viable. If the May 18,
2004 discharge was somehow not an actual discharge due to his appeal, it still occurred outside
of the limitations period, and Hite identifies no other adverse employment action that occurred in
the ninety days prior to the filing of his complaint.
continuing violation of the Whistleblowers’ Protection Act through its actions after his May 18, 2004
termination, extending the wrongful conduct beyond the time he was discharged, and consequently
delaying the commencement of the limitations period. Finally, Hite claims that because Norfolk
Southern continued to treat him as a “de facto employee” after May 18, 2004, it should now be
estopped from arguing that it had dismissed him at that time and that the statute of limitations period
expired ninety days later.
A. Norfolk Southern’s Treatment of Hite’s Employment Status since May 18, 2004
Hite claims that several facts demonstrate that he has “remained a de facto employee” of
Norfolk Southern after the company unequivocally told him that he was discharged. First, Hite
argues that his right to seek review of Norfolk Southern’s decision and the pendency of his appeal
to the Public Law Board establish that he still is yet to be discharged.3 Michigan courts and federal
courts have both recognized, however, that statutes of limitations in cases involving terminations of
employment should run from the initial termination decision, and are not effected by the pendency
of administrative reviews of those decisions. See Womack-Scott v. Dept. of Corrections, 246 Mich.
App. 70, 75 (Mich. Ct. App. 2001) (holding that even where an employee was “technically reinstated
for a period as a result of administrative decisions and again discharged,” the relevant event for
statute of limitations purposes was the initial discharge); see also Del. State College v. Ricks, 449
U.S. 250, 258 (1980) (where the relevant job action for a Title VII lawsuit was the decision to deny

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tenure to the professor, the limitations period commenced when the tenure decision was made and
communicated to the professor, and not when he eventually left employment). Hite’s appeal of his
discharge does not convert it to something other than a discharge, and has no effect on the time from
which the statute of limitations began to run.
Hite also points to a Norfolk Southern seniority roster that continued to include his name after
May 18, 2004, and an employee profile document, dated June 23, 2004 that classified his status as
“active” in support of his argument that he remained a “de facto” employee of Norfolk Southern.
Even if the company’s internal personnel documents should be considered with equal weight as a
letter it sent to Hite that unequivocally informed him he was discharged, which seems unlikely, both
of these documents also indicated on their face that Hite had been terminated. The seniority roster
reads “discharged” next to Hite’s name, and the employee profile says that Hite was dismissed on
May 18, 2004 and explains the reason for the dismissal. These documents do not create an issue of
fact regarding Hite’s employment status.
Finally, Hite points to Norfolk Southern’s later attempt to discipline him on January 27, 2005
in connection with the profanity laced voice-message he left a Norfolk Southern employee. Hite
claims that this later disciplinary effort indicates that Norfolk Southern still viewed him as an
employee, as it charged him with “conduct unbecoming an employee.” The company’s letter to Hite
on January 27, 2005, however, makes clear that it was simply endeavoring to reserve its rights to hold
Hite accountable for the voice-mail message in case he were successful in his appeal of his discharge

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4The letter states:
“You were dismissed from all employment by the Company on May 18, 2004 and
have remained in a dismissed status continuously since that date...In the event you
are reinstated by a neutral arbitrator at the conclusion of [the Union’s] appeal, you
should not be permitted to avoid responsibility for your unbecoming conduct as
demonstrated in the January 20, 2005 investigation. Accordingly, this letter will
serve to notify you that while you have been found guilty of the December 23, 2004
incident, the dismissal for that incident will be held in abeyance pending the outcome
of the appeal of your May 18, 2004 dismissal. In the event you are reinstated as an
employee by a neutral arbitrator as a result of your appeal of the May 18, 2004
dismissal, this dismissal by the Company for your December 23, 2004 violation of
GCR-I shall be retroactive to the date of this letter.”
for the videotape incident.4 Norfolk Southern was not exercising what Hite terms an “employment
leash” by keeping him as a de facto employee, but rather was attempting to further distance itself
from Hite in the event that the first dismissal was overturned.
Norfolk Southern also pointed out that Hite acknowledged that he had been discharged in a
letter where he returned his ID card, as well as in his initial state court complaint. These statements
further demonstrate that Hite believed he was fired after receiving Norfolk Southern’s letters, and
only raised his more nuanced argument that he remained a “de facto” employee once he became
aware of the statute of limitations issue.
The case Hite relies on to argue that his May 18, 2004 discharge was not in fact a discharge
is unavailing. In Jacobson v. Parda Federal Credit Union, 457 Mich. 318 (1998), the Michigan
Supreme Court held that in a case involving constructive discharge, where the employee was forced
to leave her place of employment due to intolerable working conditions, the time of discharge was
the bright line date when the employee actually left. The court declined to adopt a rule where the
fact-finder would have to identify the time of termination based on when a reasonable person would

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have felt forced to resign. If it is applicable at all, the holding in Jacobson would tend to support
Norfolk Southern’s position that the limitations period begins at the time where the employee can
clearly be said to have been terminated — in this case when the unequivocal letter was sent to Hite
on May 18, 2004.
B. Norfolk Southern’s Treatment of Hite and the Pendency of his Appeal as a
“Continuing Violation”
Hite argues that “a question of fact exists as to whether the railroad is continuing to retaliate
against Hite.” In granting Norfolk Southern’s motion for summary judgment, the district court
focused in large part on the rejection of the continuing violation theory by Michigan state courts.
Under the continuing violation theory, an ongoing string of wrongful actions that begins outside the
limitations period but includes conduct that falls within it would remain actionable. The district
court relied primarily on the Michigan Supreme Court’s holding in Garg v. Macomb County Cmty.
Mental Health Servs., 472 Mich. 263 (2005), which held that a continuing violation claim cannot
be used to extend the limitations period for a cause of action arising under the Michigan Civil Rights
Act.
Hite argues that Garg is not applicable to his claim because that case involved the Michigan
Civil Rights Act rather than the Whistleblowers’ Protection Act. It is unnecessary, however, for this
Court to attempt to predict the Michigan courts’ treatment of the continuing violation doctrine in
various causes of action for a simpler reason — there is no factual support in the record for Hite’s
claim that his treatment constituted a continuing violation. Rather, Hite’s termination occurred at
a single temporal point when he was dismissed on May 18, 2004. There is no evidence that Norfolk

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5Hite’s argument on appeal that the January 2005 discipline is relevant to show Norfolk
Southern’s continuing “de facto control” over him is misplaced. As discussed above, Norfolk
Southern’s reservation of its right to discipline Hite for his profanity laced voice-mail message
should he be reinstated by the Public Law Board does not amount to an attempt to keep him
within the fold of employment.
Southern took any relevant actions adverse to Hite after it dismissed him on May 18, 2004. The
only adverse action that Norfolk Southern took toward Hite after his May 18, 2004 discharge was
the January 27, 2005 discipline related to the voice-mail incident, but this incident is not relevant
on appeal as an adverse job action given the district court’s ruling that it is unripe for judicial
review.5 Thus, even if there is room under Michigan law for a continuing violation argument in a
Whistleblowers’ Protection Act case, the absence of any relevant violation after Hite’s termination
would preclude it in this case.
C. Estoppel
The district court summarily dismissed Hite’s estoppel claim, stating in a footnote that “[y]ou
cannot reasonably rely upon a ‘representation’ when the case law tells you to file suit.” Hite
accurately points out on appeal that this reasoning is entirely at odds with the existence of the
doctrine of estoppel, which has been recognized as the law of Michigan. See Lothian v. Detroit, 414
Mich. 160, 167 (1982) (A statute of limitations “may be waived by . . . conduct which estops the
defendant from interposing it.”). Hite is correct in his legal argument that under Michigan law “the
entire premise behind estoppel is that although a known requirement may exist, the defendant is
precluded from asserting that requirement as a defense due to its conduct in inducing one to forego
compliance with the requirement.” Appellant’s Br. at 17.

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Nevertheless, Hite’s estoppel argument is still not sufficient to survive summary judgment,
as Hite did not identify any conduct by Norfolk Southern whereby it sought to induce him to refrain
from filing suit or on which he in fact relied in not filing suit. See, e.g., Pinner v. Auto Club Ins.
Ass’n.,1999 Mich. App. LEXIS 1024 (Mich. Ct. App. 1999) (holding that to maintain an estoppel
claim, a party must identify conduct of the other party that induced it to refrain from bringing suit,
as well as actual reliance in not bringing suit). Hite relies here again on his claim that Norfolk
Southern treated him as a “de facto employee” after purporting to terminate him on May 18, 2004.
Even if Hite in fact considered himself a “de facto employee” after being told in no uncertain terms
that he was fired, this does not amount to an effort by Norfolk Southern to convince Hite not to file
suit. Of course without any promise or inducement from Norfolk Southern, Hite also cannot identify
anything that he actually relied on in refraining from suing during the limitations period.
Consequently, there is no material fact that could support Hite’s estoppel argument.
While the district court’s reasoning in dismissing Hite’s estoppel argument was incorrect,
the facts do not support an argument of estoppel here, and we affirm the district court’s ruling of this
issue on different grounds. Kennedy v. Superior Printing Co., 215 F.3d 650, 655 (6th Cir. 2000)
(“[B]ecause a grant of summary judgment is reviewed de novo, this court may affirm the judgment
of the district court on any grounds supported by the record, even if they are different from those
relied upon by the district court.”)
CONCLUSION
The district court’s entry of summary judgment in favor of Norfolk Southern is affirmed.

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