United States District Court, S.D. New York
DECISION AND ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
Neil Gonzalez (“Plaintiff”) 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. §
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.
following facts are drawn from evidence in the record and the
parties' Local Rule 56.1 statements. They are undisputed
except where noted.
Metro-North is a public benefit corporation and subsidiary of
the Metropolitan Transportation Authority. Metro-North
operates a commuter railroad in the States of New York and
Connecticut. (Statement of Undisputed Material Facts Pursuant
to Local Rule 56.1 in Supp. of Def.'s Mot. for Summ. J.
(“Def.'s 56.1”) at ¶ 1, Dkt. No. 34).
Neil Gonzalez has been employed by Metro-North as a third
railman since 2012. (Id. at ¶ 2). The job of a
third railman at Metro-North is to inspect, install,
maintain, and repair all portions of the third rail system to
ensure safe delivery of electrical Direct Current power for
distribution and train use. (Id. at ¶ 3).
railmen at Metro-North are represented by the International
Brotherhood of Electrical Workers ("IBEW").
Gonzalez is a member of this union. (Id. at ¶
Plaintiff's Disciplinary History
The Testing Incident
October 22, 2015, Plaintiff left an assigned work location
without permission and interrupted a test that was being
administered to a class of Metro-North trainees. He was
charged with insubordination and conduct unbecoming a
Metro-North employee,  unauthorized absence from work, and
violation of General Safety Instruction 200.1. Plaintiff had
been told by a supervisor to remain at his assigned work
location; instead, he left the premises for several hours,
went to another Metro-North location, entered a classroom
while a test was being administered to a class of trainees,
and told the trainees not to take the test. (Dkt. No. 36, Ex.
19). Despite repeated instructions to leave the room, he
signed an investigation and trial waiver admitting the
conduct, waived his right to a disciplinary hearing and
agreed to a 45-day suspension. (Id.)
The Mott Haven Power Department Incident
22, 2017, Plaintiff was scheduled to undergo a medical exam
following a medical leave of absence. After leaving the
Office of Health Service for the medical exam, Plaintiff
showed up at Metro-North's North Mott Haven Power
Department Headquarters. The Parties dispute whether
Plaintiff was medically cleared to return to work on that
day. However, it is undisputed that Plaintiff was told to
leave Metro-North property but did not comply for some time.
It is also undisputed that Supervision at North Mott Haven
subsequently called the police before Plaintiff eventually
left the property. (Dkt. No. 36, Ex. 17). He was reprimanded
for insubordination and later sent a formal warning letter.
The Lunchables Incident
10, 2017, Plaintiff was sent home for insubordination and
conduct unbecoming a Metro-North employee.
night, Plaintiff reported for work at Metro-North for an
overnight shift from 10 p.m. to 6 a.m. (Dkt. No. 36, Ex. 3,
Gonzalez Tr. At 32-33). His work gang that evening included
two other third railmen, Jonathan Morales and Javier
Saenzdeviteri, Foreman Michael Walsh, and Supervisor William
Mulligan. (Id. at 33-35). The gang was tasked with:
(1) bringing materials to the Park Avenue Tunnel at 86th
Street from the Mott Haven Headquarters, (2) moving materials
within the Park Avenue Tunnel from 72nd Street to 86th
Street, and then (3) installing brackets to upgrade the
channels, brackets, and insulators in the Park Avenue Tunnel
to mitigate the risk of electrical fires in the tunnel.
(“Def.'s 56.1” at ¶ 9).
am, Walsh told the gang that their contractually-permitted
20-minute break would begin at 3:00 am. (Dkt. No. 51,
Gonzalez Tr. 102:2-6). The group drove a Metro-North truck to
a 7/11 to get something to eat and returned. At 3:20 am,
Walsh approached the truck in which the men were sitting and
told them to get back to work. (Id.) Plaintiff told
Walsh that he "was still eating and according to the
time frame from when [the gang] left" their 20
minute-break was not over. (Id. 103:5-6). Plaintiff
told Walsh that he still had 10 minutes left on his break and
that he would not leave the truck. Id.
Walsh then advised Supervisor Mulligan of the men's
refusal. Mulligan walked to the truck and told the men to
return to work. (SOF ¶ 13). One of the other members of
the gang left the truck and started walking back to the work
area. Plaintiff continued eating his Lunchables and did not
get out of the truck. Id. Mulligan then gave
Plaintiff a direct order to return to work. Id.
Plaintiff "replied to him" but did not leave the
truck. (Dkt. No. 51, Gonzalez Tr. 105:20-25). According to
Plaintiff, Mulligan then turned his back and "grabbed
his cell phone." (Id. 106:2). At that point,
Plaintiff left the truck with another member of the gang and
began walking to the work site, whereupon Supervisor Mulligan
approached Plaintiff and sent him home for insubordination.
The Overtime Incident
17, 2017, Plaintiff reported for his overnight shift from 10
pm to 6 am. (SOF ¶ 15). Foreman Michael Walsh and
Supervisor William Mulligan were his supervisors during the
shift. That night, the members of the gang worked in
approximately 4:00 am, all members of the gang were
instructed to return to Metro-North's Mott Haven
facility. (SOF ¶ 15). At approximately 4:20 am, Mulligan
received a call from the Power Director advising him that a
circuit had gone down on a Mount Vernon track and needed
repair. (SOF ¶ 17). Malfunctioning circuits affect the
safe operation of trains on that track and, if not fixed,
interfere with train service. Because Metro-North defines an
emergency as "Anything that impedes the safe travel of
train traffic" (Walsh Tr. at 44), the downed circuit was
considered an emergency. According to the CBA between
Plaintiff's union and Metro-North, the existence of an
emergency entitles Metro-North to keep union employees past
the end of their shifts. (SOF ¶ 21).
called Walsh at 4:23 am to explain the situation and told him
to go with the gang to make the necessary repairs. Mulligan
arrived at the track first and obtained "foul time"
on the track. Foul time is time that the track is taken out
of service so workers can safely work on the track.
en route to the track, Walsh received a call from Plaintiff
saying that he could not stay past the end of his 6:00 am
shift. (SOF ¶ 19). Walsh told Plaintiff that he was
still on shift and that this was an emergency. He then told
Plaintiff that he should go to the worksite with the rest of
the gang and discuss the issue with Supervisor Mulligan.
time Plaintiff arrived, it was around 5:40 am. The rest of
the gang was already there and working on the track.
(Id.) Plaintiff again told Foreman Walsh that he
could not stay after his shift ended and called his union
representative, John Carr, on speakerphone. (SOF ¶ 20).
At Walsh's direction, Plaintiff took his complaint to
Supervisor Mulligan, who was also present and working on the
track. (Id.) Mulligan told Plaintiff that the
emergency required immediate repair. (SOF ¶ 21).
called his union representative again while standing next to
the track and held the phone to Mulligan's ear. Mulligan
gave him a direct order to put the phone away and return to
work. (Id.) Metro-North's personal electronic
device usage policy prohibits use of personal electronic
devices within four feet of the nearest running rail.
(Id.) Plaintiff told Mulligan that he was four feet
from the track and could therefore use his phone. Again,
Mulligan told Plaintiff to go back to work and Plaintiff said
he "was calling [the] union rep to try to resolve that
issue." (SOF ¶ 22). By then, Plaintiff had refused
multiple orders. Mulligan instructed him to go back to
headquarters, swipe out and go home. (Id.) The work
gang was unable to complete the repair within its scheduled
time and had to request additional foul time, taking the
tracks out of service for a second period during the morning
rush hour. (SOF ¶ 14).
brought disciplinary charges against Plaintiff for the two
July 2017 incidents of insubordination. He was taken out of
service pending the outcome of the disciplinary proceedings.
(SOF ¶ 25, 27-28).
hearings were held pursuant to the CBA between
Plaintiff's union and Metro-North, on September 8 and 11,
2017. (SOF ¶ 29-30). The hearings were run by
Metro-North Hearing Officer James Walker, who presided over
the hearings pursuant to Metro-North's usual hearing
procedures. Plaintiff was represented by Arthur Davidson, his
union's chairman, at both of his disciplinary hearings.
hearing transcripts, along with a summary and recommendation
from Walker, were then sent to James Pepitone, Director of
the Metro-North Power Department, to review and determine the
appropriate discipline. (SOF ¶ 31-32). The level of
discipline imposed by the reviewing officer depends on the
employee's disciplinary history, the CBA, and the
severity of the charges. Pepitone decided that dismissal was
the appropriate penalty, and so notified Plaintiff by mail on
September 29, 2017. (SOF ¶ 32-33). Through his union,
Plaintiff appealed the termination through the process set
out in his union's CBA. He first appealed to
Metro-North's Labor Relations department, which upheld
the termination decision. (SOF ¶ 35). He then appealed
to an independent arbitrator appointed jointly by Metro-North
and the union, who also upheld the termination.
all the above, Plaintiff claims that he was really fired
because he engaged in whistleblower activities under the
Federal Railroad Safety Act and seeks review of