     17-2725-cv
     Henry Lockhart v. MTA Long Island Railroad
 1

 2                          UNITED STATES COURT OF APPEALS

 3                                FOR THE SECOND CIRCUIT

 4                                     August Term, 2017

 5                                    Docket No. 17-2725-cv

 6                        ---------------------------------

 7   HENRY LOCKHART,
 8
 9                  Plaintiff – Appellant,
10
11                        v.
12
13   MTA LONG ISLAND RAILROAD,
14
15                  Defendant – Appellee.
16
17                         ---------------------------------
18
19                                ARGUED: June 21, 2018
20                                DECIDED: February 4, 2020
21
22   B e f o r e:   WINTER, CALABRESI, and LIVINGSTON, Circuit Judges.
23
24
25
26
27


                                               1
 1         Appeal from a judgment of the United States District Court for the

 2   Southern District of New York (Jesse M. Furman, Judge), granting appellee’s

 3   motion for summary judgment and dismissing appellant’s claims for failure to

 4   establish a prima facie case of retaliation under the Federal Rail Safety Act, 49

 5   U.S.C. § 20109 et seq. Appellant, a locomotive engineer for the Long Island Rail

 6   Road, sought to hold the railroad liable for disciplinary action against him when

 7   he failed to report to work while under the influence of prescribed narcotic

 8   drugs. The district court found that, to the extent that appellant was disciplined,

 9   it was because of his failure to present verifying documentation required by the

10   railroad’s sick-leave policy. Because the statute does not prevent employers from

11   requesting reasonable documentation to assure themselves that employees’

12   absences are legitimate, we affirm.

13                                   CHARLES C. GOETSCH (Charles Goetsch Law
14                                   Offices, LLC, New Haven, Connecticut, on the
15                                   brief), for Plaintiff – Appellant.
16
17                                   BRIAN K. SALTZ (Mark D. Hoffer, The Long
18                                   Island Rail Road Company Law Department,
19                                   Jamaica, New York, on the brief), for Defendant –
20                                   Appellee.
21




                                               2
 1                                  Jacqueline M. Holmes (Jones Day, Washington,
 2                                  D.C.), for Amicus Curiae Counsel for the
 3                                  Association of American Railroads.
 4
 5                                  Lawrence M. Mann (Alper & Mann, PC,
 6                                  Bethesda, Maryland), for Amicus Curiae
 7                                  Academy of Rail Labor Attorneys.
 8
 9
10   WINTER, Circuit Judge:
11
12         Henry Lockhart, a locomotive engineer for the Long Island Rail Road

13   (“LIRR” or “the railroad”), appeals from Judge Furman’s grant of summary

14   judgment dismissing his retaliation claims brought under the Federal Rail Safety

15   Act (“FRSA”), 49 U.S.C. § 20109 et seq. To sustain such claims, appellant must

16   demonstrate that the disciplinary action was in retaliation for his having engaged

17   in activity protected under the FRSA. Appellant contends that the protected

18   activity here was his refusing to violate the Federal Railroad Administration’s

19   (“FRA”) safety regulation that prohibits locomotive engineers from reporting to

20   work while under the influence of a prescribed narcotic drug. However,

21   appellant failed to submit a Sick Leave Administration Application Form (“SLA-

22   28”) following each absence as required by a LIRR policy directive. Because the




                                              3
 1   statute does not prohibit employers from requesting reasonable documentation

 2   that employees’ absences are justified, we affirm.

 3                                    BACKGROUND

 4         Appellant began working for the LIRR on May 23, 2001, and has been a

 5   locomotive engineer for more than twelve years. Appellant argues that the LIRR

 6   violated the FRSA by subjecting him to disciplinary proceedings when he refused

 7   to violate the FRA’s safety regulation that prohibits locomotive engineers from

 8   reporting to work while under the influence of a prescribed narcotic drug.

 9         At issue in this case is the interplay between the FRSA1 and the LIRR’s sick

10   leave policy directive which states:

11         No Absence Control points will be assigned nor will LIRR be taking
12         corrective or disciplinary action related to any sick leave occurrences
13         where the employee has submitted medical certification on a properly


     1
       It is undisputed that operating a locomotive under the influence of narcotics
     creates a hazardous condition under the FRA. Appellant argues that the record
     “flatly contradict[s]” the district court’s holding “that a locomotive engineer who
     is under the influence of a prescribed narcotic medication is not a ‘work-related
     safety hazard.’” Appellant Br. 22. The district court made no such holding, and
     the LIRR did not so agree. Indeed, we expressly observe that Kathleen Meilick,
     the LIRR’s Senior Vice President in charge of the LIRR’s Medical Department
     and Labor Relations, testified at her deposition that “for a locomotive engineer
     to be under the influence of a prescribed narcotic medication would be a
     hazardous condition,” “unsafe,” and “in violation of the railroad rules.” App’x
     397.

                                              4
 1         completed form (SLA-28) within 3 days of returning to work, and the
 2         employee is following the orders or treatment plan by a treating
 3         physician.
 4
 5   App’x 28.

 6         The SLA-28 form requests, inter alia, the following information: (i) the

 7   date of the employee’s illness and/or inability to work; (ii) the nature of the

 8   illness; (iii) the employee’s certification that he was ill and not able to work; and

 9   (iv) a “physician’s statement,” signed by the employee’s physician, stating the

10   physician’s diagnosis, treatment plan, and opinion as to whether the illness is the

11   result of an injury arising out of and in the course of the employee’s employment.

12   App’x 283-84. It is undisputed that appellant failed to submit SLA-28 forms

13   concerning each of his four absences. Each absence will be discussed in turn.

14         On September 13, 2013, appellant telephoned the LIRR Medical

15   Department to report that he was taking Vicodin, which was prescribed to him

16   after undergoing oral surgery from a non-work-related toothache. The Medical

17   Department instructed appellant not to work for 24 to 48 hours from the time he

18   took the narcotic. Appellant complied and did not report to work on September

19   14, 2013, but failed to submit a SLA-28 form following this absence. On

20   September 20, 2013, LIRR manager Eric Lomot sent appellant a “Letter of


                                                5
 1   Caution,” noting his September 14th absence. Although the letter stated that it

 2   did “not constitute formal discipline,” it is undisputed that issuing a Letter of

 3   Caution constitutes the first step in the railroad’s five-step disciplinary process

 4   ending in termination of employment.2

 5         The LIRR’s medical records reflect that, in August 2011, appellant suffered

 6   an on-the-job injury to his right shoulder. In April 2012, appellant underwent an

 7   operation on his right shoulder and was prescribed Oxycodone on a per-needed

 8   (“PRN”) basis. A doctor’s note from July 2014 states that “Mr. Lockhart

 9   occasionally takes oxycodone on a PRN basis to this date.”

10         On three dates occurring more than several months after the surgery --

11   December 18, 2013, June 19, 2014, and August 22, 2014 –- appellant telephoned

12   the LIRR Medical Department to report that he was taking Oxycodone for right

13   shoulder pain. On each occasion, the Medical Department advised appellant not

14   to work for 24 to 48 hours from the time he took the narcotic. It is undisputed

15   that appellant failed to submit SLA-28 forms following these absences.


     2
        The LIRR’s Absence Control Policy provides a point system whereby every
     absence is assigned a certain number of points. A schedule for the number of
     points within certain time periods triggers a five-step disciplinary process
     beginning with a Letter of Caution and progressing to a Notice of Investigation,
     suspension, and eventual termination.

                                               6
 1         On July 7, 2014, appellant received a second Letter of Caution with respect

 2   to six absences post-dating the September 20, 2013 Letter of Caution. Appellant

 3   claims that some of those absences were due to his right shoulder pain and that

 4   the LIRR Medical Department instructed him not to work after taking the

 5   prescribed drugs. On October 6, 2014, the LIRR issued appellant a Notice of

 6   Investigation3 in connection with four of these absences. Appellant claims that

 7   on one of those dates, August 24, 2014, he did not report to work because he was

 8   taking Oxycodone and instructed by the LIRR Medical Department to stay home.

 9                                   DISCUSSION

10         Summary judgment is appropriate only when “there is no genuine dispute

11   as to any material fact and the movant is entitled to judgment as a matter of law.”

12   Fed. R. Civ. P. 56(a). We review a grant of summary judgment de novo,

13   “view[ing] the evidence in the light most favorable to the [plaintiff] and drawing

14   all reasonable inferences and resolving all ambiguities in [his] favor.” CILP

15   Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 118 (2d Cir. 2013)

16   (citation omitted) (internal quotation marks omitted).


     3
       A Notice of Investigation is the second step in the disciplinary process and
     requires the employee to attend a disciplinary trial after which he may be
     suspended for five days if found guilty.

                                              7
1         The purpose of the FRSA is “to promote safety in every area of railroad

2   operations and reduce railroad-related accidents and incidents.” 49 U.S.C. §

3   20101. To that end, the FRSA prohibits railroad carriers from retaliating against

4   employees who engage in various safety-related protected activities. See id. at §

5   20109.4

6         To establish a prima facie case of retaliation under the FRSA, an employee

7   must show by a preponderance of the evidence that: (i) the employee engaged in

8   protected activity as defined in the FRSA; (ii) the employer knew that the


    4
      Four subsections of the FRSA are relevant:
            First, subsection 20109(a)(2) provides that a railroad carrier
            may not discharge, demote, suspend, reprimand, or in any other way
            discriminate against an employee if such discrimination is due, in
            whole or in part, to the employee’s lawful, good faith act done, or
            perceived by the employer to have been done . . . to refuse to violate or
            assist in the violation of any Federal law, rule, or regulation relating to
            railroad safety or security.
            Second, subsection 20109(b)(1)(A) provides that a railroad carrier “shall not
    discharge, demote, suspend, reprimand, or in any other way discriminate against
    an employee for . . . reporting, in good faith, a hazardous safety or security
    condition.” Third, subsection 20109(c)(2) provides that a railroad carrier “may
    not discipline, or threaten discipline to, an employee for requesting medical or
    first aid treatment, or for following orders or a treatment plan of a treating
    physician.” Finally, subsection 20109(h) provides that “[n]othing in this section
    shall be deemed to diminish the rights, privileges, or remedies of any employee
    under any Federal or State law or under any collective bargaining agreement.
    The rights and remedies in this section may not be waived by any agreement,
    policy, form, or condition of employment.”

                                             8
 1   employee had engaged in protected activity; (iii) the employee suffered an

 2   unfavorable personnel action; and (iv) the protected activity was a contributing

 3   factor in the unfavorable action. See, e.g., Conrad v. CSX Transp., Inc., 824 F.3d

 4   103, 107 (4th Cir. 2016); Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152,

 5   157 (3d Cir. 2013); Bechtel v. Admin. Review Bd., 710 F.3d 443, 447 (2d Cir. 2013).

 6   If the employee satisfies these requirements, “then the burden shifts to the

 7   employer to demonstrate by clear and convincing evidence that the employer

 8   would have taken the same personnel action in the absence of the protected

 9   activity.” Conrad, 824 F.3d at 107 (internal quotation marks omitted). Failure to

10   satisfy any one of the prima facie requirements is fatal to the employee’s claim.

11   See id.

12         Appellant satisfies element (iii) of a prima facie case because, as a result of

13   his absences, the LIRR issued two Letters of Caution and one Notice of

14   Investigation. These are the first and second steps of the railroad’s five-step

15   disciplinary process. The parties spill much ink arguing whether the FRSA

16   protects absences due to work-related maladies only, or whether it also covers

17   off-duty injuries such as appellant’s toothache. However, we need not reach that

18   issue because even assuming arguendo that off-duty maladies are covered,


                                               9
 1   appellant has failed to demonstrate that his absences, when unaccompanied by

 2   SLA-28 forms, were protected activity, as directly required by element (i), and

 3   indirectly by (ii) and (iv). See Conrad, 824 F.3d at 107.

 4         The dispositive omission here is appellant’s failure to submit SLA-28 forms

 5   within three days of returning to work, in violation of the LIRR’s sick leave policy

 6   directive. See App’x 28. Subsection 20109(h) states that “[n]othing in this section

 7   shall be deemed to diminish the rights, privileges, or remedies of any employee

 8   under any Federal or State law or under any collective bargaining agreement.

 9   The rights and remedies in this section may not be waived by any agreement,

10   policy, form, or condition of employment.” “By its plain terms,” appellant

11   argues, “subsection (h) voids the use of any railroad form or policy to waive or

12   otherwise negate an employee’s Section 20109 statutory right to be protected

13   from adverse actions.” Appellant Br. 25-26.

14         However, nowhere in the statute are employers prevented from using the

15   common practice of requiring reasonable documentation to assure that an

16   employee’s claimed medical absences are legitimate. Nor has appellant

17   demonstrated that prohibiting such a practice only in cases involving railroad

18   safety was a policy intended by the Congress. Because nothing in the text,


                                              10
 1   structure, and purpose of the FRSA directs otherwise, the railroad was within its

 2   rights to seek verification of illnesses before excusing appellant’s absences as

 3   activity protected under the FRSA. Indeed, it would be rather adventurous to

 4   infer an FRSA requirement that a railroad take employees at their word that the

 5   reason for a failure to report to work was an easily verifiable doctor-prescribed

 6   mind-altering drug. The SLA-28 form, which requires a physician’s diagnosis,

 7   treatment plan, and signature, authenticates that information and does not

 8   overstep.

 9         There is also ample case law in other statutory contexts holding that

10   employers have the right to request medical certification documenting an

11   employee’s need for protected leave. For example, courts have held that

12   employers may require employees to fill out standardized reasonable

13   accommodation request forms in order to be entitled to accommodations

14   (including sick leave) under the Americans with Disabilities Act. See, e.g.,

15   Pauling v. District of Columbia, 286 F. Supp. 3d 179, 211-12 (D.D.C. 2017);

16   Lundquist v. Univ. of S.D. Sanford Sch. of Med., No. 09-CV-4147, 2011 WL

17   5326074, at *8 (D.S.D. Nov. 4, 2011); Kunamneni v. Locke, Nos. 1:09-CV-005

18   (JCC), 1:09-CV-450 (JCC), 2009 WL 5216858, at *11 (E.D. Va. Dec. 29, 2009).


                                              11
 1   Similarly, the Family and Medical Leave Act specifies that employers may

 2   require employees to submit health care provider certifications connected to their

 3   leave. See 29 U.S.C. § 2613. Appellant has articulated no basis upon which to

 4   adopt a view that the FRSA affirmatively prohibits employers from imposing a

 5   similar requirement.

 6         Moreover, the SLA-28 form does not constitute a waiver5 of an employee’s

 7   rights prohibited by the FRSA and the form does not have to expressly reference

 8   the statute. Section 20109(c)(2) states that an employee may not be disciplined

 9   “for following orders or a treatment plan of a treating physician.” It is perfectly

10   reasonable for a carrier to assure itself that an employee is indeed following a

11   treating physician’s orders in missing work by verifying those orders through the

12   submission of standardized health care provider certifications such as form SLA-

13   28.

14




     5
       “[W]e note that the issue is more properly considered one of forfeiture than of
     waiver. The term ‘waiver’ is best reserved for a litigant’s intentional
     relinquishment of a known right. Where a litigant’s action or inaction is deemed
     to incur the consequence of loss of a right, or . . . a defense, the term ‘forfeiture’ is
     more appropriate.” Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir. 1999)
     (citing cases).

                                                12
1                                   CONCLUSION

2         There is no reason to conclude that the FRSA precludes employers from

3   implementing standard policies reasonably designed to verify employees’

4   appropriate use of medical leave. We therefore affirm.


5




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