                                      UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-1590


EVARD DEMOTT,

             Plaintiff - Appellant,

             v.

CSX TRANSPORTATION, INC. - BALTIMORE DIVISION,

             Defendant - Appellee.



Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:14-cv-00277-JFM)


Submitted: June 26, 2017                                          Decided: August 21, 2017


Before GREGORY, Chief Judge, and THACKER and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


P. Matthew Darby, H. David Leibensperger, BERMAN, SOBIN, GROSS, FELDMAN &
DARBY, L.L.P., Lutherville, Maryland, for Appellant. Jacqueline M. Holmes,
Thomas R. Chiavetta, JONES DAY, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Evard DeMott filed this action against CSX Transportation, Inc. (“CSX”), under

the Federal Railroad Safety Act (“FRSA”), alleging that CSX retaliated against him for

engaging in protected activity.     CSX disciplined DeMott for leaving a locomotive

unattended with a control switch left in the on position, speeding, failing to report a

problem with a speed indicator, allowing another employee to calibrate that speed

indicator, and being insubordinate.      According to DeMott, however, CSX in fact

disciplined him in retaliation for reporting various unsafe workplace conditions,

publishing a safety bulletin, and filing a complaint with the Occupational Safety and

Health Administration. The district court granted summary judgment in favor of CSX.

       DeMott now appeals, arguing that the district court: (1) employed the wrong legal

standard in granting summary judgment; (2) erred in concluding that the relevant

decision-makers had no knowledge of his protected activities; and (3) impermissibly

required DeMott to submit proof of disparate treatment. He also appeals the court’s order

denying his Fed. R. Civ. P. 59(e) motion. We vacate the district court’s orders and

remand for further proceedings.

       “We review the district court’s grant of summary judgment de novo, applying the

same standard as the district court . . . [and] construing the evidence in the light most

favorable to . . . the non-movant.” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202,

207 (4th Cir. 2014). “The court shall grant summary judgment if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

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       In order to establish a retaliation claim under FRSA:

       [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.

Conrad v. CSX Transp., Inc., 824 F.3d 103, 107 (4th Cir. 2016) (internal quotation marks

and brackets omitted). “If the employee establishes a prima facie claim, then the burden

shifts to the 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.” Id.

(internal quotation marks omitted). “The ‘knowledge’ relevant for a retaliation claim

under the FRSA must be tied to the decision-maker involved in the unfavorable personnel

action.” Id. at 108.

       DeMott undoubtedly engaged in protected activities when he filed safety reports.

See 49 U.S.C. § 20109(B)(1)(A); Conrad, 824 F.3d at 107. Contrary to the district

court’s finding, we conclude that DeMott adequately demonstrated that the relevant

decision-makers were aware of his protected activities. Three decision-makers were

involved in adverse action against DeMott: Road Foreman of Engines Rick Keller, who

made the decision to charge DeMott with a rules violation related to an unsecured engine;

Road Foreman of Engines Chad Matthews, who entered assessments for speeding,

tampering, and insubordination; and Division Manager John Wright, who made the




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ultimate decision to discipline DeMott. 1 There is evidence that Wright knew of some of

DeMott’s protected activities, specifically a February 2011 complaint of a loose rail.

Matthews knew of DeMott’s complaint regarding unsafe train steps, and DeMott’s

testimony established that Keller knew of DeMott’s February 2011 complaint. Sally

Malloy, Cumberland Terminal Superintendent Ray Morriss’ assistant, testified that local

management was not happy with DeMott’s safety activities; her testimony is broad

enough to encompass both Matthews and Keller who, as Road Foremen of Engines,

qualify as local management.

       Next, it is undisputed that CSX subjected DeMott to unfavorable personnel action.

See 49 U.S.C. § 20109(a), (b); Conrad, 824 F.3d at 107-08. As to the final element of the

prima facie case, we conclude that DeMott established that his protected activities were a

contributing factor to the unfavorable personnel action.     See Feldman v. Law Enf’t

Assocs. Corp., 752 F.3d 339, 348 (4th Cir. 2014) (discussing what constitutes a

contributing factor). 2

       Viewing the facts in the light most favorable to DeMott, temporal proximity

supports a conclusion of retaliatory animus. In the summer of 2011, DeMott complained

on two separate occasions about safety issues, and, on August 21, 2011, DeMott


       1
       Although the disciplinary hearing officers imposed punishment for the charges
on which they found DeMott guilty, the officers denied any prior, direct knowledge of
DeMott’s protected activities, and DeMott did not refute their declarations.
       2
        Feldman addressed a retaliation claim under the Sarbanes-Oxley Act, which
employs the same standard as an FRSA claim. Conrad, 823 F.3d at 107.


                                            4
complained of the need for a guard rail at an underpass. Within three months of the first

two complaints, and nine days after the final safety complaint, he was charged with a

rules violation. This is strong evidence of retaliatory animus. See Foster v. Univ. of Md.-

E. Shore, 787 F.3d 243, 253 (4th Cir. 2015) (recognizing that “a two-and-a-half month

gap between protected activity and an adverse employment action [i]s sufficiently narrow

to establish the causation prong of the prima facie case solely on the basis of temporal

proximity”).

       Moreover, there is evidence that CSX managers targeted DeMott and the other

union members. DeMott’s charge for failing to properly secure his engine came after he

was instructed to do something he had never been asked to do before and was never again

asked to do. Two CSX managers warned other employees to avoid the union, and

statements of CSX’s own management indicate that the actions of Cumberland’s

managers may have been influenced by retaliatory animus. 3 We therefore conclude that

DeMott produced sufficient evidence to establish a prima facie case of retaliation.

       CSX nevertheless argues that, even if DeMott established a prima facie case of

retaliation, the district court’s judgment should be affirmed on the alternate ground that

CSX demonstrated by clear and convincing evidence that it would have disciplined

DeMott absent the protected activity.     “[C]lear and convincing has been defined as

evidence of such weight that it produces in the mind of the trier of fact a firm belief or

       3
         Although CSX points to comparator evidence for the proposition that it did not
retaliate against DeMott, we conclude that the circumstances surrounding the
insubordination charges render those instances distinguishable from DeMott’s
circumstances.

                                            5
conviction, without hesitancy, as to the truth of the allegations sought to be established.”

Jimenez v. DaimlerChrysler Corp., 269 F.3d 439, 450 (4th Cir. 2001) (ellipsis and

internal quotation marks omitted). We conclude that CSX has not produced sufficient

evidence to satisfy this burden, and we therefore decline to affirm the court’s judgment

on that alternate ground. 4

       Accordingly, we vacate the district court’s orders and remand for further

proceedings consistent with this opinion. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.



                                                            VACATED AND REMANDED




       4
        Because we vacate for the reasons outlined above, we do not address DeMott’s
remaining arguments.


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