                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1035


WILLIAM M. CONRAD,

                Plaintiff - Appellant,

           v.

CSX TRANSPORTATION, INC.,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.   William M. Nickerson, Senior District
Judge. (1:13−cv−03730−WMN)


Argued:   January 27, 2016                 Decided:   May 25, 2016


Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by published opinion.     Senior Judge Davis wrote the
opinion, in which Judge Niemeyer and Judge Floyd joined.


ARGUED: Lawrence A. Katz, COFFEY KAYE MYERS & OLLEY, Bala
Cynwyd, Pennsylvania, for Appellant.   Jacqueline Marie Holmes,
JONES DAY, Washington, D.C., for Appellee. ON BRIEF: Thomas R.
Chiavetta, Emily J. Kennedy, JONES DAY, Washington, D.C., for
Appellee.
DAVIS, Senior Circuit Judge:

     Appellee       CSX      Transportation,          Inc.   charged      one    of    its

employees,        Appellant        William       M.    Conrad,      with        “serious”

violations    of       the   company’s   safety       policy.       Alleging      he   was

disciplined in retaliation for his activities as local chairman

of the transportation union, Conrad sued in federal district

court under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C.

§ 20109.     The district court granted summary judgment in favor

of CSX, concluding that Conrad had failed to show that any CSX

employee involved in the disciplinary process had also known

about his union activities.              Conrad v. CSX Transp., Inc., No.

WMN-13-3730, 2014 WL 7184747, at *5 (D. Md. Dec. 15, 2014).

     On appeal, Conrad argues that knowledge of an employee’s

protected activities may be imputed to the decision-makers if

any supervisory employee at the company knew of the subordinate

employee’s protected activity when the decision-maker took the

unfavorable personnel action, regardless of whether the person

with knowledge played a role in the disciplinary process.                               We

disagree and therefore affirm the judgment.

                                            I.

     Conrad has worked at CSX, an international transportation

company,     as    a     freight    train        conductor    out    of    Cumberland,

Maryland, since 2003.              From 2009 to 2012, he served as local

chairman of the United Transportation Union Local 340, during


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which time he defended his union members against disciplinary

actions and ensured that CSX complied with all safety policies.

Conrad’s tenure in that role gave rise to the two events at

issue here, referred to by the parties as the “Deineen Incident”

and the “Demmler Yard Incident.”

     The   Deineen   Incident        involved     local    union    member    James

Deineen and preceded Conrad’s first disciplinary charge.                         In

January 2011, Deineen, a conductor, was injured while applying a

handbrake at Cumberland Yard.           Deineen reported his accident and

left work for the day.          CSX supervisors, however, instructed

Deineen    to   return    to   the     yard     to    recreate     the     accident.

Deineen, having suffered an injury and having worked 13 hours

already, contacted Conrad to discuss CSX’s request.                      Believing

Deineen was due a rest period under the Hours of Service Act, 49

U.S.C. § 21101 et seq., Conrad advised Deineen that he did not

need to return to work.        Conrad informed Trainmaster Ron Baer of

his intent to report the alleged Hours of Service Act violation,

and indeed made the report to Michel Bull, a Federal Railroad

Administration representative.

     Less than a month later, on February 9, 2011, Cumberland

Terminal    Superintendent       Ray        Morriss,       Assistant        Terminal

Superintendent    Keith    Stafford,        and      Trainmaster    Eric    Koelker

accompanied a new trainmaster, Mike Drummond, to an area west of

Cumberland for training.       While there, they observed Conrad stop


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his    train    at   a   bow-handled       switch    and,     before         checking          the

switch, operate the switch with one hand—a violation of CSX’s

safety    policy.        Later     that    day,    CSX     charged         Conrad     with      a

“serious offense” for the rule violation.                     J.A. 216.            Following

the disciplinary charge, Conrad opted to take a “time out,” id.,

avoiding       formal    disciplinary       procedures       by       submitting          to    a

meeting with a CSX manager and a union representative.

       Some six months later, the Demmler Yard Incident occurred.

In August 2011, CSX Conductors Scott Sechler and Christopher

Hose   were     operating      a   train    that    had    run    out       of     fuel    near

Demmler Yard, a railroad yard in western Pennsylvania.                                    Their

train blocked the primary artery in and out of the yard, known

as the “main line,” obstructing the passage of other trains.                                     A

CSX    supervisor        ordered      Sechler      and     Hose       to     switch       their

locomotive      with     one   from    Demmler      Yard    to    move       the    disabled

train, but Sechler refused to switch locomotives.

       The conditions at Demmler Yard made it difficult to operate

trains in the area, so CSX and the United Transportation Union

had    settled       a   union     safety       complaint        by        mandating      that

conductors be qualified before working there.                         Sechler knew that

he and Hose were not qualified to enter Demmler Yard.                               Although

CSX offered to send a qualified employee to help navigate the

locomotive switch, Sechler persisted and, being a local union

member, called Conrad for advice.                  Conrad told Sechler that he


                                            4
could not enter the yard.                    And in a subsequent phone call,

Conrad    conveyed       to    Trainmaster         Danielle       Renner      that   he   had

advised Sechler not to enter Demmler Yard.

     Later      that     month,      on     August    26,      2011,    CSX    Senior     Road

Foreman of Engines Bill Diamond and Trainmaster Ron Baer saw

Conrad violate a number of safety procedures in Cumberland Yard.

Diamond     and     Baer      were    in     Cumberland         Yard    for    operational

testing, and, while there, they observed Conrad operate a train

without   his       radio     on,    fail    to    use     proper      identification      in

conducting      a    radio     check,       and   fail     to    use    both    hands     when

operating a switch.             CSX charged Conrad with “serious offense”

rules violations for that conduct.                   J.A. 196.

     After exhausting his administrative remedies, Conrad filed

suit against CSX in federal district court, alleging two counts

of retaliation in violation of the FRSA.                         CSX moved for summary

judgment, arguing in part that none of the CSX employees who

witnessed    Conrad’s         rule   violations          and    initiated      disciplinary

actions knew about his safety complaints.                           The district court

agreed    and     held     that     “at    least     one    person      involved     in    the

adverse employment decision must have knowledge of the protected

activity.”        See Conrad, 2014 WL 7184747, at *4.                    Concluding that

“Conrad ha[d] not provided sufficient admissible evidence from

which a jury could conclude that there was any knowledge of his

alleged protected activity among any of the individuals involved


                                              5
in the decision-making process to discipline him,” the district

court granted summary judgment in favor of CSX.                       See id. at *4,

*6.   Conrad timely appealed.

                                            II.

                                             A.

      We review the district court’s grant of summary judgment de

novo.     Groves v. Commc’n Workers of Am., 815 F.3d 177, 180 (4th

Cir. 2016) (citation omitted).                “Summary judgment is appropriate

when,   viewing     the    facts     in     the    light   most    favorable      to   the

nonmoving party, there is no genuine dispute as to any material

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

Id. at 181 (citations and internal quotation marks omitted).

                                             B.

      For   context,      we    begin     with     an   overview    of     the   relevant

statutory     framework        and    the     applicable     liability       standards.

Congress enacted the FRSA “to promote safety in every area of

railroad    operations         and   reduce       railroad-related        accidents    and

incidents.”     49 U.S.C. § 20101.                To that end, the FRSA prohibits

railroads from discriminating against employees who engage in

certain     safety-related           activities.           See      id.     § 20109(a).

Relevant    here,    the    FRSA     protects        employees     from    disciplinary

action for “provid[ing] information . . . regarding any conduct

which the employee reasonably believes constitutes a violation

of any Federal law, rule, or regulation relating to railroad


                                              6
safety.”           Id.    § 20109(a)(1).             The     FRSA    likewise        protects

employees who “report[], in good faith, a hazardous safety or

security condition.”          Id. § 20109(b)(1)(A).

      Like      other     federal     whistleblower          statutes,        the    FRSA    is

governed      by    the    burden-shifting           framework       set    forth     in    the

Wendell H. Ford Aviation Investment and Reform Act for the 21st

Century    (“AIR-21”).             See   id.       § 20109(d)(2)(A)(i);         see     also,

e.g.,      18       U.S.C.      § 1514A(b)(2)(C)              (Sarbanes-Oxley               Act)

(incorporating the rules and procedures of AIR-21); 42 U.S.C.

§ 5851(b)(3)        (Energy    Reorganization              Act)     (same).         Thus,    to

maintain an FRSA retaliation claim past the summary judgment

stage, a plaintiff must project sufficient admissible evidence

to establish that: “(1) [the employee] engaged in [a] protected

activity; (2) the employer knew that [the employee] engaged in

the     protected         activity;      (3)       [the      employee]        suffered        an

unfavorable personnel action; and (4) the protected activity was

a contributing factor in the unfavorable action.”                               Feldman v.

Law   Enf’t     Assocs.      Corp.,      752    F.3d   339,       344   (4th    Cir.    2014)

(citation and internal quotation marks omitted).                            The absence of

probative       evidence      as    to    any       single     element       necessary       to

establish a prima facie claim terminates the action.                                See Litt

v. Republic Servs. of S. Nev., ARB Case No. 08-130, 2010 WL

3448544, at *3 (Dep’t of Labor Aug. 31, 2010).                             If the employee

establishes a prima facie claim, then the burden shifts to the


                                               7
employer to demonstrate “by clear and convincing evidence that

the employer would have taken the same personnel action in the

absence of the protected activity.”                 Feldman, 752 F.3d at 345

(citation omitted).

                                          C.

       The district court granted summary judgment in favor of CSX

based on the evidentiary insufficiency as to the second prong of

the AIR-21 prima facie standard.                 In other words, the district

court concluded that Conrad could not show that CSX “knew that

[he had] engaged in the protected activity.”                     Feldman, 752 F.3d

at    344   (citation    and    internal       quotation   marks       omitted);   Cf.

Conrad, 2014 WL 7184747, at *4.                On appeal, as they did below,

the    parties   offer    two    opposing       theories   of    what    constitutes

knowledge under the FRSA.           Conrad argues that he can meet the

knowledge requirement if any supervisory employee at the company

knew of his protected activities at the time of the unfavorable

personnel action.        CSX responds that, to the contrary, knowledge

must be tied to a decision-maker involved in the unfavorable

action.

       Although this Circuit has not previously had occasion to

address the knowledge sufficient to sustain an FRSA retaliation

claim, the Administrative Review Board of the U.S. Department of

Labor (“ARB”) has explained that an employee “must establish

that    the   decision-makers       who    subjected       him    to    the   alleged


                                           8
adverse action were aware of the protected activity.”                   Rudolph

v. Nat’l R.R. Passenger Corp., ARB Case No. 11-037, 2013 WL

1385560, at *9 (Dep’t of Labor Mar. 29, 2013); see also Litt,

2010   WL   3448544,   at   *3,   *5   (concluding,    under      the   Surface

Transportation Assistance Act, which required a showing by a

preponderance of the evidence that the employer “was aware of

the protected activity,” that the employee did not establish a

prima facie case of retaliation because he failed to show that

“any of the decision-makers involved in his termination knew

that he engaged in any protected activity”).               Moreover, the ARB

has added that it is “insufficient” to “demonstrat[e] that an

employer, as an entity, was aware of the protected activity.”

Rudolph, 2013 WL 1385560, at *9; see also Kuduk v. BNSF Ry. Co.,

768 F.3d 786, 790-91 (8th Cir. 2014) (a lower-level supervisor’s

knowledge was not sufficient where the “decision-makers had no

knowledge—actual or constructive—of [the employee’s] protected

activity”).

       We conclude that the above cited authorities are sound and

persuasive, and we therefore adopt the same interpretation:                 The

“knowledge” relevant for a retaliation claim under the FRSA must

be   tied   to   the   decision-maker      involved   in    the   unfavorable

personnel action.      As the district court concluded, Conrad has

failed to show that such knowledge existed here.




                                       9
       Conrad          claims     that     CSX       brought      his     February     2011

disciplinary charges in retaliation for his decision to report

an Hours of Service Act violation in connection with the Deineen

Incident.         He has not marshaled evidence, however, that any of

the four CSX employees who observed his conduct that month and

charged him with a violation were aware of his January Hours of

Service Act complaint.               Instead, CSX has produced declarations

from the four employees, all of whom attest that they did not

know of the complaint or any other safety concerns that Conrad

may have previously raised.                Conrad has produced no evidence to

dispute their assertions.

       Conrad also argues that, because he notified Trainmaster

Baer that he intended to file an Hours of Service Act complaint,

CSX had knowledge of his protected activity before it charged

him   with       the    February    2011    safety      violation.         This    argument

fails because Conrad has not demonstrated that Baer had any role

in    the   February       2011    disciplinary         charges.        Although     Conrad

argues      on    appeal    that    a    jury    may    assume     that    Baer    informed

Stafford         of    Conrad’s    complaint,          Stafford     (who     did    observe

Conrad’s February 2011 safety violation) attested that he had no

knowledge of the Hours of Service Act complaint.                           Conrad has not

produced any evidence to call into question Stafford’s sworn

statements.            To the extent Conrad means to suggest that summary

judgment should be denied to a moving party on mere speculation


                                                10
that a jury might arbitrarily disbelieve a fellow employee’s

testimony, we reject such a suggestion.            Accordingly, Conrad has

failed to generate a genuine dispute of material fact as to the

knowledge   element   of   his    claim    arising       from   the   Deineen

Incident.

     Conrad’s   retaliation   claim      related    to    the   Demmler   Yard

Incident fails for the same reason.           Diamond and Baer reported

Conrad’s safety violations in August 2011.               But Conrad has not

marshaled any evidence that Diamond or Baer knew that he had

instructed Sechler not to enter the Demmler Yard.                 As we have

explained, Conrad had the burden to produce such evidence.                 See

Feldman, 752 F.3d at 344.        And Diamond has denied knowing about

“any specific safety complaints” that “Conrad [had] made during

his employment with [CSX].” *     J.A. 196.

     At bottom, Conrad urges us to rely on a series of inference

upon inference, based on the chain of command, to conjure a



     * Baer had also stated that he “d[id] not recall any
specific safety complaints” that “Conrad [had] made during his
employment with [CSX].”     J.A. 81.     This statement by Baer
arguably conflicts with Conrad’s testimony that he told Baer
about his intention to file the Hours of Service Act complaint
related to the Deineen Incident.    See J.A. 378.   Nevertheless,
because Conrad does not argue that his August 2011 disciplinary
charges arose out of the February Deineen Incident, we regard as
immaterial, for purposes of CSX’s motion for summary judgment,
the ostensible conflict in the recollections of Conrad and Baer
with respect to Baer’s alleged knowledge of the Hours of Service
Act complaint related to the Deineen Incident.




                                    11
scheme among higher-level CSX supervisors who were aware of his

protected activity and sought to silence his FRSA complaints

because he was “a thorn in [their] side.”                        Appellant’s Br. 6.

But Conrad offers no evidence that his protected activity, or

any animus derived from such activity, was communicated through

a chain of CSX employees.              Such unsupported inferential leaps

are no adequate substitute for actual evidence.                        See Litt, 2010

WL   3448544,   at    *4    (“Litt’s    mere       assertions      that      it    can   be

inferred     that    [the    decision-makers]           did   know     he    filed       the

complaint     are    not     sufficient       to       constitute      circumstantial

evidence to establish that Republic was aware of Litt’s . . .

alleged      protected       activity     by       a     preponderance            of     the

evidence.”).

       In sum, because Conrad does not present sufficient evidence

that   the   relevant       CSX   decision-makers         knew    of   his    protected

activities, his claims fail as a matter of law at the prima

facie stage.

                                        III.

       For the reasons set forth, the judgment of the district

court is

                                                                              AFFIRMED.




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