United States District Court, Western District of New York
February 3, 1999
RICHARD P. CHAPMAN, PLAINTIFF,
SOUTH BUFFALO RAILWAY COMPANY, DEFENDANT.
The opinion of the court was delivered by: Arcara, District Judge.
The above-referenced case was referred to Magistrate Judge
Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1)(B), on
November 3, 1998. On January 11, 1999, Magistrate Judge Heckman
filed a Report and Recommendation, recommending that plaintiff's
motion for a preliminary injunction should be denied and removing
plaintiff's motion for an expedited hearing from the docket.
The Court has carefully reviewed the Report and Recommendation,
the record in this case, and the pleadings and materials
submitted by the parties. No objections having been timely filed,
it is hereby
ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the
reasons set forth in Magistrate Judge Heckman's Report and
Recommendation, plaintiff's motion for a preliminary injunction
is denied and plaintiff's motion for an expedited hearing is
removed from the docket as moot. The case is referred back to
Magistrate Judge Heckman for further proceedings.
IT IS SO ORDERED.
REPORT & RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), this matter has
been referred to the undersigned by order of the Honorable
Richard J. Arcara, U.S.D.J., for all pretrial
matters, including hearing and reporting on any dispositive
motions (Item 6). Plaintiff filed this action pursuant to the
Federal Employers Liability Act, 45 U.S.C. § 151-60, and the
Federal Safety Appliance Acts, 45 U.S.C. § 1-26 (Item 1).*fn1
On November 4, 1998, plaintiff moved for a preliminary injunction
pursuant to Rule 65 of the Federal Rules of Civil Procedure (Item
7). In addition, plaintiff moved for an expedited hearing on the
motion (item 9). Oral argument was heard on December 14, 1998.
For the reasons set forth below, plaintiff's motion should be
At the time of the events giving rise to this complaint,
plaintiff was an employee of the South Buffalo Railway Company.
Plaintiff alleges that at approximately 10:00 A.M. on July 9,
1998, he was working near or with the coupler of a railroad car
when he was caught between a draft of railroad cars and the car
on which he was working (Item 1, ¶ 10). As a result of the
accident, plaintiff alleges he sustained multiple injuries
including an extensive crushing injury to his pelvis, a torn anus
with permanent damage, permanent urethra damage, removal of his
gall bladder, extensive vascular damage within his left leg,
extensive nerve damage to his lower torso and lower extremities,
injury to his lumbar spine, and emotional distress (Item 1, ¶
Some time after the accident, defendant apparently contacted
plaintiff in an attempt to investigate the accident. Plaintiff's
attorney notified defendant on August 18, 1998, that a lawsuit
was filed and that defendant was "in violation of the Rules of
court by attempting to contact [plaintiff]" (Item 7, at Pl.Ex.
B). Defendant was asked to "cease and desist from all contact
with [plaintiff]. Any information concerning this matter that you
desire will be obtained from [plaintiff's counsel]" (Item 7, at
Pl.Ex. B). On August 25, 1998, defendant's counsel replied to the
August 18 letter by advising plaintiff's counsel that
"[plaintiff] is required to provide a statement concerning his
accident" (Item 7, at Pl.Ex. C). The letter continued, indicating
that "the requirement is contained within his term of employment.
His failure to provide a statement may result in disciplinary
proceedings including his possible discharge from employment. . .
." (Item 1, at Pl.Ex. C). Plaintiff's counsel replied to this
letter by requesting copies of any accident reports plaintiff is
required to complete (Item 1, at Pl.Ex. D).
On September 15, 1998, defendant sent a letter to plaintiff
notifying him of his obligations under the employer's Policy and
Conduct rules to participate in the accident investigation (Item
7, Pl.Ex. E; Item 12, Def.Ex. D). In addition, the letter stated
that if plaintiff was "being advised that [he] should not, or
that you are not required to answer questions concerning the
incident from any counsel, be assured such counsel or advice is
wrong. Your refusal to answer questions for whatever reason
places your employment relationship in jeopardy" (Item 7, Pl.Ex.
E; Item 12, Def.Ex. D). The letter also warned that "refusal to
comply with this directive will result in the termination of your
wage continuance" (Item 7, Pl.Ex. E; Item 12, Def.Ex. D).
On October 5, 1998, a letter was sent to plaintiff from
defendant's Equipment and Facilities Manager notifying plaintiff
that a disciplinary hearing was scheduled for October 15, 1998
(Item 7, Pl.Ex. F; Item 12, Def.Ex. E). Plaintiff was charged
with violating Policy and Conduct Rules number 27, 28, and 29,
gross insubordination for failing to comply with the letter of
September 15, 1998, and insubordination for failing to comply
with the letter of September 15, 1998 (Item 7, Pl.Ex. F;
Item 12, Def.Ex. E).*fn2 The presiding officer of the
disciplinary hearing found plaintiff guilty of the charges (Item
12, Def.Ex. F). The hearing officer recommended that the
employment relationship between plaintiff and defendant be
terminated due to the seriousness of the charges and plaintiff's
"indifference and total lack of cooperation after being placed on
notice of his responsibility to cooperate" (Item 12, Def.Ex. F).
On November 23, 1998, plaintiff was mailed a letter from the
Equipment and Facilities Manager notifying him that his
employment with defendant was terminated (Item 12, Def.Ex. G).
On November 4, 1998, plaintiff filed a motion for a preliminary
injunction (Item 7). Plaintiff seeks an order prohibiting
a. Holding any hearing, inquiry, investigation, etc.
concerning [plaintiff's] failure to comply with its
requests and/or orders to present himself to
railroad officials to make statements concerning
b. Contacting [plaintiff] directly concerning any
subject related to his accident;
c. Making any attempt to obtain [plaintiff's]
statement, or otherwise obtain information from him
about his accident, unless those attempts fully
comply with the Federal Rules of Civil Procedure,
including but not limited to, making certain that
all communications to [plaintiff] be directed to
and through his counsel. . . .
d. Taking any action that can or will result in
[plaintiff's] dismissal from the railroad, loss of
any pension benefits, or loss of any other
(Item 7). Defendant argues that this relief should be denied
because plaintiff did not request this type of relief in his
complaint, because the court does not have jurisdiction to
restrain defendant from enforcing the terms of its collective
bargaining agreement, and because the issues are moot (Item 13).
I. The Court Lacks Jurisdiction Over Minor Disputes Involving
Pursuant to FED.R.CIV.P. 65, plaintiff has moved to enjoin
defendants from conducting any hearings regarding plaintiff's
failure to comply with the investigation of plaintiff's accident,
contacting plaintiff about the accident, making any attempts to
contact plaintiff except through his attorney, and terminating
plaintiff's employment. Defendant argues that the relief
plaintiff requests is unavailable, because courts do not have
jurisdiction over "minor disputes" under the Railway Labor Act,
45 U.S.C. § 151-60. (Item 13, at 3). The action plaintiff seeks
to enjoin arises out of the collective bargaining agreement and
thus cannot be raised in this forum. See Gust v. Soo Line R.
Co., 942 F. Supp. 408, 410-11 (E.D.Wis. 1996).
The Railway Labor Act ("RLA") distinguishes between major
disputes and minor disputes. See 45 U.S.C. § 153a. Major
disputes relate to the creation of collective bargaining
agreements, and minor disputes involve controversies over the
meaning of an existing collective bargaining agreement. Hawaiian
v. Norris, 512 U.S. 246, 252-53, 114 S.Ct. 2239, 129 L.Ed.2d
203 (1994); Atchison, T. & S.F.R. Co. v. Buell, 480 U.S. 557,
562-63, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987). Minor disputes
that arise under the collective bargaining agreement are to be
resolved by the National Railroad Adjustment Board and not the
courts. Atchison, Topeka and Santa Fe Railway Co, 480 U.S. at
562, 107 S.Ct. 1410; see Gust, 942 F. Supp. at 410.
According to the Policy and Conduct Rule Book and Safety Rules,
which are incorporated into the collective bargaining agreement,
defendant's employees who are injured on the job can be required
to assist in the investigation of an accident (Item 12, Def.Ex.
B, ¶¶ 27-29). Furthermore, the collective bargaining agreement
allows dismissal of employees, following an investigation, who
commit "a major offense" (Item 12, Def.Ex. A. Rule 34). Major
offenses include reckless operation, reporting for or at work
under the influence of alcohol or drugs, theft, willful
destruction of property, insubordination and fighting on the job
(Item 12, Def.Ex. A, Rule 34(a)).
Plaintiff was terminated for failing to assist in the
investigation of his accident, and for insubordination (See Item
12, Def. Exs. E - G). These issues are clearly matters which fall
under the collective bargaining agreement, not the Federal
Employers Liability Act. Because this is a minor dispute under
the RLA, this court does not have the authority to grant
plaintiff injunctive relief. See Gust, 942 F. Supp. at 410-11.
Accordingly, plaintiff's motion should be denied.
II. Investigation of the Accident Does not Violate Plaintiff's
Right to Counsel.
Plaintiff further contends that defendant's attempt to
investigate the accident without the assistance of his counsel
violates the discovery rules of the Federal Rules of Civil
Procedure, as well as FELA's prohibition against preventing
employees of common carriers from furnishing information relating
to an injury or death (Item 7, ¶¶ 18-24). See FED.R.CIV.P.
26-30; 45 U.S.C. § 60. Plaintiff is not entitled to counsel
during a disciplinary proceeding. Holmes v. Elgin, Joliet &
Eastern Ry. Co., 815 F. Supp. 279, 284 (N.D.Ind. 1992) (quoting
Clark v. Seaboard Coast Line R.R. Co., 332 F. Supp. 380 (N.D.Ga.
1970)). The findings of any investigation and the results of a
disciplinary proceeding can only be used for impeachment purposes
if the plaintiff gives inconsistent statements. Id. Even if
this occurs, plaintiff will be given the opportunity to explain
the circumstances giving rise to the inconsistent statement.
III. Plaintiff Fails to Show Irreparable Harm.
Assuming, arguendo, that the court had jurisdiction to enjoin
defendant's from terminating plaintiff, I would still recommend
that plaintiff's motion be denied. The purpose of a preliminary
injunction is to preserve the status quo between the parties
pending a final determination of the merits. Alliance Bond Fund
v. Grupo Mexicano de Desarrollo, 143 F.3d 688, 692 (2d Cir.
1998), cert. granted, ___ U.S. ___, 119 S.Ct. 537, 142 L.Ed.2d
447 (1998); Bank of New York Co., v. Northeast Bancorp,
9 F.3d 1065, 1067 (2d Cir. 1993). A plaintiff must show two things in
order to obtain a preliminary injunction. The plaintiff must (1)
demonstrate that he will suffer irreparable harm without
injunctive relief, and (2) he must show "`either (a) a likelihood
of success on the merits of its case or (b) sufficiently serious
questions going to the merits to make them a fair ground for
litigation and the balance of hardships tipping decidedly in its
favor.'" Alliance Bond Fund, 143 F.3d at 696; Polymer Tech.
Corp. v. Mimran, 37 F.3d 74, 77-78 (2d Cir. 1994); Blum v.
Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994). Unless plaintiff
meets both prongs of this test, a preliminary injunction cannot
be granted. Plaintiff's claim
fails to meet the irreparable harm requirement.
The irreparable harm requirement is the most important factor
in determining whether a preliminary injunction should issue.
Alliance Bond Fund, 143 F.3d at 696; Citibank, N.A. v.
Citytrust, 756 F.2d 273, 275 (2d Cir. 1985). Irreparable harm is
an injury in which a money judgment cannot compensate for the
harm which was caused. Alliance Bond Fund, 143 F.3d at 697.
Plaintiff fails to show that he will suffer irreparable harm if
the preliminary injunction is not granted. The only harm
plaintiff alleges is that he will be terminated from his position
with the South Buffalo Railway Company, and he may lose pension
and other benefits (Item 7). Termination from employment is not
an irreparable injury. Adamsons v. Wharton, 771 F.2d 41, 43 (2d
Cir. 1985); Shady v. Tyson, 5 F. Supp.2d 102, 109 (E.D.N Y
1998). In order for an employment discharge to rise to the level
of an irreparable harm the plaintiff must demonstrate the
(1) [That he] has little chance of securing future
employment; (2) has no personal or family resources;
(3) has no private unemployment insurance; (4) is
unable to finance a loan privately; (5) is ineligible
for public assistance; and (6) there are no other
compelling circumstances weighing heavily in favor of
Shady, 5 F. Supp.2d at 109. "`In essence, the plaintiff must
quite literally find himself being forced into the streets or
facing the spectre of bankruptcy before a court can enter a
finding of irreparable harm.'" Id. (quoting Williams v. State
Univ. of N.Y., 635 F. Supp. 1243, 1248 (E.D.N.Y. 1986)).
Plaintiff fails to make this showing.
Absence a showing of irreparable harm, it is not necessary to
examine the second prong of the preliminary injunction
requirements. See Shady, 5 F. Supp.2d at 109; Meadows v. State
Univ. of N.Y. at Oswego, 832 F. Supp. 537, 542 (N.D.N.Y. 1993).
Thus, even if the court had jurisdiction to grant the relief
requested, I would still recommend that plaintiff's motion be
In addition, defendant argues that its behavior cannot be
enjoined because the issue is moot. On November 23, 1998,
plaintiff was notified that his employment relationship with
defendant was terminated (Item 12, Def.Ex. F). An issue is mooted
where the activities the plaintiff seeks to enjoin have already
occurred and the court cannot undo what has already been done.
See Bank of New York Co., 9 F.3d at 1067 (noting that generally
an appeal from the denial of a preliminary injunction is mooted
by the occurrence of the action sought to be enjoined). Thus,
plaintiff's termination moots the issue of whether a preliminary
injunction should issue.
For the above stated reasons, plaintiff's motion for a
preliminary injunction should be denied (Item 7). Additionally,
plaintiff's motion for an expedited hearing can be removed from
the docket (Item 9).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with
the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be
filed with the Clerk of this Court within ten (10) days after
receipt of a copy of this Report and Recommendation in accordance
with the above statute and Rule 58.2(a)(3) of the Local Rules of
Criminal Procedure for the Western District of New York.
The district court will ordinarily refuse to consider on de
novo review arguments, case law and/or evidentiary material
which could have been, but was not, presented to the magistrate
judge in the first instance. See, e.g., Paterson-Leitch Co.,
Inc. v. Massachusetts
Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir.
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd.,
838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 58.2(a)(3) of
the Local Rules of Criminal Procedure for the Western District of
New York, "written objections shall specifically identify the
portions of the proposed findings and recommendations to which
objection is made and the basis for such objection and shall be
supported by legal authority." Failure to comply with the
provisions of Rule 58.2(a)(3), may result in the District Court's
refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the
Report and Recommendation to the attorneys for the plaintiff and