Petronio v. Nat'l R.R. Passenger Corp. ( 2020 )

19-3624-cv
Petronio v. Nat’l R.R. Passenger Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
2nd day of December, two thousand twenty.
Present: JON O. NEWMAN,
ROSEMARY S. POOLER, 1
Circuit Judges.
_____________________________________________________
STEVEN PETRONIO,
Plaintiff-Appellant,
v. 19-3624-cv
NATIONAL RAILROAD PASSENGER CORPORATION, STEVEN JOHN COLLINS,
Defendants-Appellees.
_____________________________________________________
Appearing for Appellant: Stephen J. Fitzgerald, Garrison, Levin-Epstein, Fitzgerald &
Pirrotti, P.C., New Haven, CT.
Charles C. Goetsch, New Haven, CT (on the brief).
Appearing for Appellee: William G. Ballaine, Landman Corsi Ballaine & Ford P.C. (Sophia
Ree, Edumin Corrales, on the brief), New York, N.Y.
1
Circuit Judge Peter W. Hall, originally a member of the panel, is currently unavailable, and the appeal is being
adjudicated by the two available members of the panel, who are in agreement. See 2d Cir. IOP E(b).
Appeal from the United States District Court for the Southern District of New York (Rakoff, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Steven Petronio appeals from the October 2, 2019 judgment of the United States District
Court for the Southern District of New York (Rakoff, J.) granting summary judgment to
Defendants-Appellees National Railroad Passenger Corporation (“Amtrak”) and Steven J.
Collins in Petronio’s action under the whistleblower-protection provisions of the Federal
Railroad Safety Act (“FRSA”), 49 U.S.C. §§ 20109, et seq. We assume the parties’ familiarity
with the underlying facts, procedural history, and specification of issues for review.
“We review de novo the award of summary judgment, construing the evidence in the
light most favorable to the nonmoving party and drawing all reasonable inferences and resolving
all ambiguities in its favor.” Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018) (internal quotation
marks, brackets, and citation omitted). Summary judgment is appropriate if “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).
Under the FRSA, a “railroad carrier engaged in interstate or foreign commerce . . . 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.” 49 U.S.C. §
20109(b)(A). “To establish a prima facie case of retaliation under the FRSA, an employee must
show by a preponderance of the evidence that: (i) the employee engaged in protected activity as
defined in the FRSA; (ii) the employer knew that the employee had engaged in protected
activity; (iii) the employee suffered an unfavorable personnel action; and (iv) the protected
activity was a contributing factor in the unfavorable action.” Lockhart v. MTA Long Island R.R.,
949 F.3d 75, 79 (2d Cir. 2020).
Petronio contends on appeal that the district court erred in concluding that he failed to
make out a prima facie showing that his protected activity—sending several e-mails to Amtrak
management officials requesting trainings and reporting safety concerns—was a contributing
factor in Amtrak’s termination of his employment. He argues primarily that the district court
erred by (1) ignoring circumstantial evidence that his safety reports were a contributing factor to
his termination; (2) rejecting his “cat’s paw” theory of liability that would charge Amtrak with
Assistant Division Engineer John Collins’s alleged bias against Petronio because of his safety
reports; and (3) allowing Amtrak to justify Petronio’s termination based on his violation of
Amtrak’s workplace policies that incorporated subjective criteria.
We conclude that the district court correctly granted summary judgment to Appellees.
There is no evidence that the Amtrak officers who decided to charge, convict, and terminate
Petronio for his violation of Amtrak’s workplace policies were aware of Petronio’s safety
reports. Petronio’s purported circumstantial evidence that his safety reports were a contributing
factor to his termination—such as temporal proximity between the safety reports and his
termination, or alleged hostility to his safety reports from Amtrak employees without decision-
making power—cannot overcome this fatal defect. Accordingly, no reasonable factfinder could
find that a preponderance of the evidence established that Petronio’s protected activity was a
contributing factor to his discharge.
We further agree with the district court that the cat’s paw theory is inapplicable to hold
Amtrak liable here. In a cat’s paw case, a plaintiff can succeed “even absent evidence of
illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to
have the impermissible bias played a meaningful role in the decisionmaking process.” Vasquez v.
Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016) (internal quotation marks,
brackets, citation omitted). Petronio argues that Collins played such a “meaningful role” in his
termination, citing Collins’s suspension of Petronio, his role in initiating disciplinary charges,
and his testimony at Amtrak’s disciplinary hearing. The record is clear that Susan Obey, the
charging officer, was responsible for filing the charges. After Collins received a report of
misconduct, Collins consulted with Obey, and then—acting on Obey’s advice—collected
statements from witnesses and met with Petronio on November 7 about the allegations, before
charges were filed. While Collins testified about Petronio’s conduct in this November 7 meeting
at Petronio’s disciplinary hearing, Amtrak’s decisionmakers relied also on the testimony of
multiple other witnesses in concluding that Petronio had violated workplace policies.
Assuming based on the foregoing that Collins played a meaningful role in the
decisionmaking process, we nevertheless conclude that no reasonable jury could find that the
preponderance of the evidence established that the safety reports were a contributing factor in
Collins’s actions in connection with the disciplinary proceedings. There is no evidence that
Collins took any actions adverse to Petronio until Collins received reports of Petronio’s potential
violations of Amtrak’s workplace policies—already one month after Petronio sent his final safety
report to Collins.
And though Petronio argues that the evidence demonstrates Collins’s bias against him,
this argument is unavailing. Petronio testified that he and Collins never discussed the safety
reports, let alone in a manner that demonstrates bias. Petronio makes much of Collins’s
testimony that “since [he] was fairly new at Amtrak, [he] thought it was odd that a pipefitter
would write an email to the deputy division engineer regarding a safety concern and that it
wasn’t brought up to the foreman, the assistant supervisor, the supervisor, the safety liaisons,
somebody of that magnitude . . . .” App’x at 1865. But this testimony does not show bias or that
Petronio’s reports angered Collins; at most it shows that Collins thought Petronio’s conduct was
unusual because he did not escalate safety concerns through Amtrak’s chain of command.
Petronio’s allegation that Collins was hostile during the November 7 meeting is also
insufficient to show bias. The meeting, which did not discuss the safety reports, concerned a
potential threat that Petronio made against a co-worker that was independently reported to
Collins by two other Amtrak employees. In light of these circumstances, the mere fact that
Collins knew of Petronio’s safety reports is insufficient on its own to establish that Petronio’s
protected activity contributed to Collins’s alleged hostility in the meeting, or the subsequent
actions he took in response to the meeting. In short, though Collins was aware of Petronio’s
safety reports, no reasonable jury would find that the preponderance of the evidence established
that this knowledge influenced Collins in connection with the disciplinary proceedings.
We have considered the remainder of Petronio’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk