Douglas Holloway v. Soo Line Railroad Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2431
DOUGLAS HOLLOWAY,
Plaintiff-Appellant,
v.
SOO LINE RAILROAD COMPANY,
d/b/a as Canadian Pacific,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-09191 — Jorge L. Alonso, Judge.
____________________
ARGUED FEBRUARY 8, 2019 — DECIDED FEBRUARY 20, 2019
____________________
Before FLAUM, BARRETT, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Douglas Hollway’s year-and-a-
half long employment with Canadian Pacific ended after he
received multiple suspensions for violating safety standards
and other work rules. The final chapter came when Holloway
sustained an injury in a vehicle collision while not wearing a
seatbelt. When combined with Holloway’s prior record of
infractions, this new safety-standard violation was enough for
2 No. 18-2431
the company to terminate Holloway. In his ensuing lawsuit,
Holloway alleged he was fired not for violating Canadian
Pacific’s rules, but instead for reporting a workplace injury.
We agree with the district court that the record evidence does
not support his contention and therefore affirm.
I
Canadian Pacific hired Douglas Holloway as a conductor
in July 2014. In short order he found himself the subject of
several disciplinary actions. In November 2014, for example,
Canadian Pacific advised Holloway that his attendance record
was lacking and that he needed to be available to work when
the company needed him. By way of another example,
Holloway received a 10-day suspension in May 2015 for not
providing his engineer with important safety information
while working on a railcar. In time a pattern emerged, as
Holloway received suspensions for violating Canadian
Pacific’s safety and work rules again in August 2015 and
September 2015.
The final straw came on October 18, 2015. It was then that
Holloway and another employee, J.S., were doing a “switch
job”—railroad lingo for moving railcars as part of building a
train. The work required J.S. and Holloway to use an all-pur-
pose vehicle to move around Canadian Pacific’s Bensenville
Yard. J.S. drove while Holloway rode in the passenger seat,
but neither fastened a seatbelt. Holloway also never inspected
the vehicle for safety defects, later saying he assumed J.S. had
done so. A subsequent inspection revealed that the vehicle
needed repairs—for example, zip ties were being used to hold
a makeshift windshield covered with dirt and scratches to the
vehicle’s frame.
No. 18-2431 3
At one point during the assembly work, J.S. crashed the
vehicle into a pole. Both J.S. and Holloway sustained injuries
that required medical care at a hospital. The particular treat-
ment Holloway received triggered an obligation under the
Federal Railway Act for Canadian Pacific to report his injury
to the Federal Railroad Administration. J.S.’s injury was mi-
nor and did not require such reporting.
After the accident, Canadian Pacific notified J.S. and
Holloway that a formal investigation and hearing would
follow. In the months leading to the hearing, however, J.S.
was furloughed and therefore did not attend. Holloway
attended the hearing along with a representative from the
United Transportation Union. The hearing officer determined
that Holloway had violated Canadian Pacific’s seatbelt
requirement and a separate rule requiring him to inspect for
and report safety defects with the company’s vehicles. The
hearing officer’s final report canvassed Holloway’s lengthy
discipline history and led to a recommendation of
termination. Canadian Pacific accepted the recommendation
and fired Holloway in December 2015. At no point did the
company discipline J.S. for her role in the accident.
Holloway unsuccessfully appealed his dismissal through
the procedures in the collective bargaining agreement
between his union and Canadian Pacific. After receiving
permission to sue from the Equal Employment Opportunity
Commission, he brought several claims against Canadian
Pacific in district court.
The district court denied Holloway relief on each of his
claims. Now on appeal, he challenges only the district court’s
award of summary judgment to Canadian Pacific on his claim
4 No. 18-2431
for unlawful retaliation in violation of the Federal Railway
Safety Act.
II
We review the district court’s grant of summary judgment
in favor of Canadian Pacific de novo. See Rahn v. Board of
Trustees of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir. 2015).
The Federal Railway Safety Act prohibits a railroad from
discharging or otherwise discriminating against an employee
“if such discrimination is due, in whole or in part, to the
employee’s lawful, good faith act done … to notify, or attempt
to notify, the railroad carrier or the Secretary of
Transportation of a work-related personal injury or work-
related illness of an employee.” 49 U.S.C. § 20109(a)(4). To
prevail on such a claim, Holloway needed to show, among
other things, that his reporting of his workplace injury from
the October 2015 incident contributed to Canadian Pacific’s
decision to fire him. See Armstrong v. BNSF Ry. Co., 880 F.3d
377, 381 (7th Cir. 2018) (citing 49 U.S.C. § 20109(d)(2)(A) and
29 C.F.R. § 1982.104(e)(2)); see also Araujo v. New Jersey Transit
Rail Operations, Inc., 708 F.3d 152, 156–57 (3d Cir. 2013)
(applying the same statutory standards).
Holloway argues, as he did in the district court, that “[i]t
is obvious that the protected activity was a contributing factor
in the adverse action.” He sees the point as obvious because
he was fired only after he came forward and reported his
workplace injury. Holloway also contends that Canadian
Pacific’s decision not to fire J.S. for her involvement in the
accident supports his allegation of retaliation. These
contentions fall short on the law and the facts.
No. 18-2431 5
Our caselaw is clear that a plaintiff alleging retaliation in
violation of § 20109(a)(4) cannot point only to the sequence of
events—an injury report followed by a later dismissal—to
show that the complaint was a contributing factor in the ad-
verse employment action. See Koziara v. BNSF Ry. Co., 840
F.3d 873, 877–78 (7th Cir. 2016) (rejecting the district court’s
conclusion that the plaintiff’s injury report was a contributing
factor to the adverse action simply because it “initiated the
events that led to his discipline”); see also Armstrong, 880 F.3d
at 382 (explaining that the phrase “contributing factor” is a
standard of causation that does not eliminate the requirement
for a plaintiff to present evidence of an improper motive).
Something more than the mere sequence of events is re-
quired, and Holloway has failed to provide that something
more. At summary judgment he came forward with no evi-
dence, direct or circumstantial, that his termination reflected
Canadian Pacific’s retaliation for reporting his injury. He
pointed to nothing showing that anyone within the company
faulted or was frustrated with him for reporting the October
2015 accident. Nor did he identify any evidence suggesting
animus toward him—for example, that his supervisor had
been looking for a reason to fire him and used his report of
the accident as the reason to let him go.
The record evidence is altogether different. What it shows
is that, in fewer than two years with Canadian Pacific,
Holloway repeatedly violated the company’s work and safety
rules and was eventually fired for accumulating so many
violations. That he happened during the same time period to
be involved in a workplace accident and to have reported an
injury does not—without more—create an inference that
6 No. 18-2431
reporting his injury contributed to Canadian Pacific’s decision
to terminate him.
Holloway is right to observe that J.S. was not disciplined
for the October 2015 accident. But the observation does not go
very far, as J.S.’s disciplinary history paled in comparison to
Holloway’s record. J.S. had received a reprimand and coun-
seling on one prior occasion but otherwise had a clean record
with Canadian Pacific. Nothing in the Federal Railway Safety
Act precluded the company from taking stock of Holloway’s
employment history, beset as it was with disciplinary prob-
lems, and proceeding to dismiss him.
Holloway’s comparison of his circumstances to those of
J.S. misfires on another front. He altogether overlooks that he
and J.S. engaged in the same protected activity—reporting an
injury to Canadian Pacific. See 49 U.S.C. § 20109(a)(4). But
even though J.S. engaged in the same protected activity, she
was not disciplined. So Holloway’s comparison of the treat-
ment he and J.S. received from Canadian Pacific only rein-
forces that the company did not retaliate against him for his
engaging in protected activity, but rather fired him because of
his long record of disciplinary problems.
We owe a final word to Holloway’s assertion that the dis-
trict court impermissibly weighed evidence and made credi-
bility determinations when granting summary judgment to
Canadian Pacific. We have reviewed the record and find no
support for this contention. The district court provided a thor-
ough and detailed recounting of the evidence brought forth
by both parties and in no way strayed from the standards gov-
erning summary judgment.
For these reasons, we AFFIRM.