United States District Court, S.D. New York
Decided January 1, 2015.
For Joseph Hernandez, Plaintiff: Marc Twyman Wietzke, Flynn & Wietzke, P.C., Garden City, NY.
For Metro-North Commuter Railroad, Defendant: Joshua Robert Fay, LEAD ATTORNEY, Metro-North Railroad, NEW YORK, NY.
OPINION AND ORDER
John G. Koeltl, United States District Judge.
The Plaintiff, Joseph Hernandez, brings this action against defendant Metro-North Commuter Railroad (" Metro-North" ) alleging a violation of the whistleblower provision of the Federal Railroad Safety Act (" FRSA" ), 49 U.S.C. § 20109. This Court has subject matter jurisdiction in this case without regard to the amount in controversy pursuant to 49 U.S.C. § 20109(d)(3). The defendant now moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the defendant's motion is granted.
The following facts are undisputed unless otherwise indicated.
The plaintiff Joseph Hernandez is an employee of the defendant Metro-North. Def.'s Rule 56.1 Stmt. ¶ 1; Pl.'s Rule 56.1 Resp. ¶ 1. The defendant is a railroad corporation engaged in interstate commerce. Def.'s Rule 56.1 Stmt. ¶ 2; Pl.'s Rule 56.1 Resp. ¶ 2; Compl. ¶ 5. The plaintiff began his employment with the defendant in July 2006. In March 2009, the plaintiff became a Carman at the defendant's freight shop in North White Plains where he was a member of the " Wreck Crew" which was responsible for responding to train derailments. Def.'s Rule 56.1 Stmt. ¶ ¶ 3-5; Pl.'s Rule 56.1 Resp. ¶ ¶ 3-5. Members of the Wreck Crew worked in the North White Plains rail yard Monday through Friday from 9:00am to 5:00pm and were on call 24 hours a day, seven days a week in case of any derailment. Def.'s Rule 56.1 Stmt. ¶ 5; Pl.'s Rule 56.1 Resp. ¶ 5. Members of the Wreck Crew also had the opportunity to work overtime during the fall months when they operated a rail washer to clear tracks of leaves and other debris. Def.'s Rule 56.1 Stmt. ¶ 6; Pl.'s Rule 56.1 Resp. ¶ 6. Members of the Wreck Crew were expected to obtain a commercial driver's license after joining the crew. Def.'s Rule 56.1 Stmt. ¶ 7; Pl.'s Rule 56.1 Resp. ¶ 7. Foreman Mike Talt assigned work to the Wreck Crew according to the directions of General Foreman Robert Schiffer who in turn reported to Superintendent Robert Castellano. Def.'s Rule 56.1 Stmt. ¶ 8; Pl.'s Rule 56.1 Resp. ¶ 8.
On or about October 20, 2011, the plaintiff noticed a car in the paint shop at the North White Plains rail yard that he would later learn belonged to a secretary who worked at the facility. Def.'s Rule 56.1 Stmt. ¶ ¶ 9-10; Pl.'s Rule 56.1 Resp. ¶ ¶ 9-10. The plaintiff made a report to the Inspector General (" IG" ) of the Metropolitan Transportation Authority (" MTA" ) citing unlawful use of company time to repair a non-company, personal vehicle. Id. Plaintiff later told his union representative and General Foreman Schiffer about the report. Def.'s Rule 56.1 Stmt. ¶ 11; Pl.'s Rule 56.1 Resp. ¶ 11.
The IG's investigation found that employees at the North White Plains facility spent 25-45 minutes repairing scratched paint on another employee's personal car. Pl.'s Rule 56.1 Resp. ¶ 13. Everyone involved in the incident received a verbal reprimand from Superintendent Castellano who considered it to be a minor incident. Def.'s Rule 56.1 Stmt. ¶ 14; Pl.'s Rule 56.1 Resp. ¶ 14. However, after the investigation, General Foreman Schiffer told the plaintiff " you're going to be labeled squealer," and " you shouldn't have done it. The bottom line is, you f****d up, not nobody else, and for ...