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Finamore v. CSX Transportation

March 20, 2007


The opinion of the court was delivered by: Conti, District Judge


In this memorandum order, the court considers the motion for summary judgment (Doc. No. 28) filed by defendant CSX Transportation, Inc. ("CSX" or "defendant"). In its motion for summary judgment, defendant seeks to dispose of the sole claim of plaintiff Richard A. Finamore's ("Finamore" or "plaintiff"), that defendant violated section 10 of the Federal Employer's Liability Act ("FELA"), codified at 45 U.S.C. § 60, when it discharged plaintiff for engaging in behavior protected by section 60.

After considering the joint statement of material facts and the respective submissions of the parties, the court will grant defendant's motion for summary judgment for the reasons set forth herein.


The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").

At the time of the incidents giving rise to the current dispute, plaintiff worked as a locomotive engineer with defendant. (Joint Concise Statement of Material Facts ("J.S.") ¶ 1). He also served as a legislative representative for the Brotherhood of Locomotive Engineers and Trainmen (the "Union" or "BLET"), a labor organization that represents a number of CSX's employees. J.S. ¶¶ 2-3. In his complaint, plaintiff described his union duties as being "charged with the responsibility of representing members of" the Union. Complaint ("Compl.") ¶ 4. In his deposition, he further explained that, as a legislative representative, it was his duty to "[p]rotect the health and safety of the membership" and to conduct "investigatory processes on unsafe conditions" and "injured members." Doc. 39, Ex. A at 4.

On March 7, 2005, plaintiff arrived at defendant's New Castle, Pennsylvania facility to collect and deliver Union mail. J.S. ¶ 8. He was at the New Castle facility in his capacity as a BLET representative and was not working as a locomotive engineer for defendant on that day. J.S. ¶ 8.

While plaintiff was at the New Castle facility, Vince Skibo ("Skibo"), an engineer employed by defendant, informed him that another employee, D.L. Lumley ("Lumley"), was injured while working for defendant that day. J.S. ¶ 10. Plaintiff asked Skibo whether Lumley required medical attention. J.S. ¶ 11. Skibo told plaintiff that he did not know whether Lumley required medical attention, but offered to take plaintiff to Lumley. J.S. ¶ 12.

Skibo took plaintiff to meet Lumley in a crew room at the New Castle facility. Lumley informed plaintiff that he had injured his arm while working at defendant's Willard, Ohio facility. J.S. ¶ 18. Plaintiff claims that he then asked Lumley some details about the injury, including where and how the injury happened, whether Lumley had reported the injury, and when Lumley began experiencing pain. J.S. ¶ 19; Doc. 39, Ex. A at 11. According to plaintiff, Lumley informed him that he had reported the injury over the radio while at the Willard yard and that he did not start feeling pain in his arm until after he left the Willard yard. J.S. ¶ 20; Doc. 39, Ex. A at 11-12. During this conversation, Lumley asked plaintiff to act as his union representative when he reported the injury to defendant. J.S. ¶ 22.

Plaintiff then called the BLET's local chairman, Russ Holden, who instructed plaintiff to represent both Lumley and Skibo. J.S ¶¶ 24-25. Plaintiff then took Lumley and Skibo to Building B at the New Castle facility, where they encountered the trainmaster, Tony Lepore ("Lepore"). J.S. ¶¶ 26, 31; Doc. 39, Ex. A. at 23. Plaintiff informed Lepore that Lumley was injured and required medical treatment. J.S. ¶¶ 31; Doc. 39, Ex. A at 24. Lepore then invited plaintiff, Lumley, and Skibo to accompany him to see the road foreman of engines, Tommy Palumbo ("Palumbo"). J.S. ¶¶ 31-32.

Inside Palumbo's office, Lepore informed Palumbo that Lumley was injured and either Palumbo or Lepore provided Lumley with an accident report to complete. J.S. ¶ 37,39. Plaintiff informed Lepore and Palumbo that he was acting as the union representative for both Lumley and Skibo, though Lepore initially disputed this allegation. J.S. ¶ 32-38. Plaintiff also complained that defendant was delaying medical treatment to Lumley, as well as attempting to deny him union representation. J.S. ¶ 40.

Plaintiff asked Lumley whether he wished to go to the hospital before completing the accident report, but Lumley told plaintiff that he was able to fill out the accident report before receiving medical attention. J.S. ¶ 41-42. As Lumley filled out the form, he asked plaintiff what building he should list for where he reported to work and where he should sign the form, but did not ask plaintiff any other questions about the report. J.S. ¶ 44-45.

While plaintiff, Lumley, Skibo, and Palumbo were in Palumbo's office, Lepore left to call Mike Benham, manager of safety and operating rules compliance for CSX's Great Lakes Division, via cellular telephone. J.S. ¶ 48-49. A few minutes after Lepore left the room, plaintiff also went out into the hall and told Lepore that they needed to get Lumley to the hospital to receive medical treatment. J.S. ¶ 50. Lepore did not respond to plaintiff and began to walk back towards Palumbo's office. J.S. ¶ 51.

When he arrived at the door of Palumbo's office, Lepore told plaintiff to wait outside. J.S. ¶ 52. Plaintiff refused, stating that, as Lumley's union representative, he was allowed to be present. J.S. ¶ 53. Lepore told plaintiff that he was not permitted to enter and, though plaintiff claims that he did not touch Lepore, Lepore told plaintiff, "get your hands off me." J.S. ¶ 54; Doc. 39, Ex. A at 39. Plaintiff then said to Lepore, "Tony, I'm not touching you, don't even go there." J.S. ¶ 54; Doc. 39, Ex. A at 39.

At the time of this disagreement, a security officer employed by defendant was walking by and stopped to ask whether anything was wrong. J.S. ¶ 55. Lepore and plaintiff both told the officer that everything was okay. J.S. ¶ 56; Doc. 39, Ex. A at 42. Apparently without any further disagreement, Lepore and plaintiff then reentered Palumbo's office. J.S. ¶ 57.

When they entered Palumbo's office, Lepore began to ask Lumley further questions. J.S. ¶ 58. Lumley told Lepore that he had already included the information Lepore was requesting on the accident report. J.S. ¶ 60. Lepore told Lumley that the information was not on the accident report and Lumley again insisted that it was. Doc. 39, Ex. A at 45. Lepore informed Lumley that if he did not make another statement, he would charge him with insubordination. J.S. ¶ 61; Doc. 39, Ex. A at 45. Plaintiff objected to the questioning and again interjected that Lumley needed to receive medical attention.

J.S. ¶ 59. Plaintiff also said to Lepore, "[T]here's no insubordination, he's not being insubordinate. What are you nuts[?]" Doc. 39, Ex. A at 46. Lumley subsequently signed a declaration that stated that he included all of the information being requested of him in the accident report. J.S. ¶ 63.

After Lumley submitted his declaration, plaintiff told Lepore and Palumbo that he was taking Lumley to Jameson Memorial Hospital. J.S. ¶ 64. Skibo, Palumbo, and LePore followed plaintiff and Lumley to the hospital. J.S. ¶ 65-66. At the hospital, plaintiff told a hospital representative that Lumley's alleged ...

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