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Gonzalez v. Metro-North Commuter Railroad

United States District Court, S.D. New York

January 15, 2020



          McMahon, CJ.

         Plaintiff 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. § 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 drawn from evidence in the record and the parties' Local Rule 56.1 statements. They are undisputed except where noted.

         I. The Parties

         Defendant 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).

         Plaintiff 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).

         Third railmen at Metro-North are represented by the International Brotherhood of Electrical Workers ("IBEW"). Gonzalez is a member of this union. (Id. at ¶ 4).

         II. Plaintiff's Disciplinary History

         1. The Testing Incident

         On 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, [1] 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 remained. (Id.)

         Plaintiff signed an investigation and trial waiver admitting the conduct, waived his right to a disciplinary hearing and agreed to a 45-day suspension. (Id.)

         2. The Mott Haven Power Department Incident

         On June 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.

         3. The Lunchables Incident

         On July 10, 2017, Plaintiff was sent home for insubordination and conduct unbecoming a Metro-North employee.

         That 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).

         At 2:55 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.

         Foreman 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. (Id. 106).

         4. The Overtime Incident

         On July 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 different locations.

         At 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).

         Mulligan 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.

         While 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.

         By the 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).

         Plaintiff 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).

         III. Disciplinary Charges

         Metro-North 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).

         Disciplinary 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. (Id.)

         The 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. (Id.)

         IV. Protected Activity

         Notwithstanding 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 Metro-North's ...

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