Juneisa Slowe Stokes v. SEPTA , 657 F. App'x 79 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 15-3967
______________
JUNEISA SLOWE STOKES,
Appellant
v.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY
______________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:15-cv-02719)
District Judge: Hon. Legrome D. Davis
______________
Submitted Under Third Circuit LAR 34.1(a)
July 14, 2016
______________
Before: FUENTES, SHWARTZ, and BARRY, Circuit Judges.
(Filed: August 9, 2016)
______________
OPINION*
______________
SHWARTZ, Circuit Judge.
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Juniesa Stokes appeals the dismissal of her suit against her former employer, the
Southeastern Pennsylvania Transportation Authority (“SEPTA”), alleging that she was
fired in retaliation for refusing to comply with a job requirement that she claims would
have put her health in imminent danger, in violation of the Federal Railroad Safety Act
(“FRSA”), 49 U.S.C. § 20101 et seq. For the reasons discussed below, we will affirm.
I
In October 2012, Stokes injured her hand while working for SEPTA’s Regional
Rail Division. While she was on medical leave due to the injury, she became pregnant.
Although Stokes’s orthopedist cleared her to return to work in August 2013, her
obstetrician informed SEPTA of limitations on her ability to work due to her pregnancy.
SEPTA’s medical department confirmed that she could not perform her usual duties
while pregnant, and she remained on leave. On October 9, 2013, Stokes’s baby was
delivered by Cesarean section and she was instructed to limit her activity for the next six
to eight weeks. On October 15, 2013, she was examined by a nurse who became
concerned that swelling in her legs could indicate a blood clot, a potentially dangerous
condition. The nurse instructed her to stay on bed rest and continue to limit any activity.
Even though Stokes had notified SEPTA that she could not return to work until
December 4, 2013 and that she was taking leave under the Family and Medical Leave
Act, SEPTA told her that she was required to appear for a medical examination on
2
October 31, 2013.1 Stokes attempted to reschedule or cancel the appointment, providing
her medical restriction documentation to SEPTA again and reminding them that she was
required to limit her activity. Stokes did not appear for her medical examination because
she feared traveling to it, and was fired.
Stokes filed suit alleging that SEPTA violated the FRSA by taking adverse action
against her due to her refusal to comply with a work order that contravened medical
advice and would potentially have exposed her to serious health risks, in violation of
§ 20109. The District Court granted SEPTA’s first motion to dismiss under Fed. R. Civ.
P. 12(b)(6) without prejudice, holding that Stokes could not state a claim under
§ 20109(c)(2) in light of Port Authority Trans-Hudson Corp. v. Secretary, U.S.
Department of Labor, 776 F.3d 157 (3d Cir. 2015) (“PATH”),2 and that she had failed to
sufficiently allege that traveling to the appointment would have posed the “imminent
danger of death or serious injury” required by §§ 20109(b)(1)(B) and 20109(b)(2)(B)(i).
App. 85. Stokes filed an amended complaint adding factual allegations in an attempt to
support a claim under § 20109(b)(1)(B). The District Court dismissed the amended
complaint under Rule 12(b)(6), holding that Stokes was not protected by the anti-
retaliation provisions of the FRSA because she “was not reporting a hazardous safety or
1
On October 28, 2013, SEPTA also told her that she would be terminated if she
did not return to work.
2
In PATH, we held that § 20109(c)(2) applies only to work-related injuries. 776
F.3d at 163-68. The “primary objective [of § 20109(c)] is to ensure that railroad
employees are able to obtain medical attention for injuries sustained on-duty,” as “[i]t
seems unlikely that Congress was concerned about railroads disciplining employees for
requesting medical treatment for off-duty injuries.” Id. at 163, 166.
3
security condition . . . [n]or was [she] confronted with a hazardous safety or security
condition related to the performance of her duties.” App. 8 (internal quotation marks and
citation omitted). Stokes appeals.
II3
The FRSA was enacted “to promote safety in every area of railroad operations and
reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. The FRSA also
protects employees against adverse action when they engage in protected activities
including “refusing to work when confronted by a hazardous safety or security condition
related to the performance of the[ir] [ ] duties,” § 20109(b)(1)(B), or “requesting medical
or first aid treatment, or [ ] following orders or a treatment plan of a treating physician,”
§ 20109(c)(2). The FRSA provides:
(b) Hazardous safety or security conditions.--(1) A railroad carrier engaged
in interstate . . . commerce . . . shall not discharge . . . an employee for--
(A) reporting, in good faith, a hazardous safety or security condition;
(B) refusing to work when confronted by a hazardous safety or
security condition related to the performance of the employee's duties, if the
conditions described in paragraph (2) exist; or
3
The District Court had jurisdiction under 28 U.S.C. § 1331. Stokes filed a
complaint with the Department of Labor (“DOL”). While ordinarily a case under the
FRSA would be evaluated in administrative proceedings, and then appealed to this Court,
filing in federal district court is appropriate where the DOL does not issue a decision
within 210 days. 49 U.S.C. § 20109(d). We have jurisdiction under 28 U.S.C. § 1291.
We review the District Court’s dismissal of a complaint under Rule 12(b)(6) de
novo and, in doing so, “accept all well-pled allegations in the complaint as true and draw
all reasonable inferences in favor of the non-moving party.” Brown v. Card Serv. Ctr.,
464 F.3d 450, 452 (3d Cir. 2006). To survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
4
(C) refusing to authorize the use of any safety-related equipment,
track, or structures, if the employee is responsible for the inspection or
repair of the equipment, track, or structures, when the employee believes
that the equipment, track, or structures are in a hazardous safety or security
condition, if the conditions described in paragraph (2) exist.
(2) A refusal is protected under paragraph (1)(B) and (C) if--
(A) the refusal is made in good faith and no reasonable alternative to
the refusal is available to the employee;
(B) a reasonable individual in the circumstances then confronting the
employee would conclude that--
(i) the hazardous condition presents an imminent danger of death or
serious injury; and
(ii) the urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
(C) the employee, where possible, has notified the railroad carrier of
the existence of the hazardous condition and the intention not to perform
further work, . . . unless the condition is corrected immediately . . . .
...
(c) Prompt medical attention.--
(1) Prohibition.--A railroad carrier or person covered under this
section may not deny, delay, or interfere with the medical or first aid
treatment of an employee who is injured during the course of employment.
...
(2) Discipline.--A railroad carrier or person covered under this
section 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, except that a railroad carrier's refusal
to permit an employee to return to work following medical treatment shall
not be considered a violation of this section if the refusal is pursuant to
Federal Railroad Administration medical standards for fitness of duty . . . .
49 U.S.C. § 20109(b)-(c).
Stokes casts her claim as concerning a “hazardous safety condition” created by the
combination of her non-work-related medical condition and SEPTA’s directive that she
attend a medical examination. She argues that SEPTA’s decision to mandate her
“attendance transforms the medical appointment into a work task.” Appellant’s Br. at 23.
5
She asserts that her dismissal was prohibited by § 20109(b)(1)(B) because she refused to
comply with a “work order” to appear for a medical evaluation, which she asserts would
have been “hazardous” to her personal safety. Appellant’s Br. at 16. Even if we presume
Stokes’s failure to appear for the appointment constituted a refusal to work, she
nonetheless fails to plead that any such refusal was motivated by a hazardous safety
condition relating to the performance of her duties in the sense contemplated by the
statute.
The employee protection provisions of § 20109 were intended to insulate
whistleblowers who report or refuse to work in unsafe conditions on the railroad. See 49
U.S.C. § 20101. The statute plainly envisions “hazardous safety . . . condition[s]” to refer
to conditions that are within the railroad’s control or that impact its operation. See, e.g.,
§ 20109(b)(1)(C) (extending protection to employees who “refuse[ ] to authorize the use
of [ ] safety-related equipment, track or structures”); § 20109(b)(2)(C) (contemplating
advanced notice to the railroad carrier that could allow the hazardous condition to be
“corrected” before work stoppage takes place). The supposedly hazardous condition
identified by Stokes, namely a personal risk due to a non-work-related event, had no
bearing on the safe operation of the railroad. As the DOL’s Administrative Review
Board explained, “nothing in the statute indicates that the ‘hazardous condition’ extends
beyond work-related safety conditions under the rail carrier’s control and covers
personal, non-work illnesses.” Hunter v. CSX Transp., Inc., ALJ Case Nos. 2014-FRS-
00128, 2015-FRS-00010 (ALJ Mar. 24, 2015) (holding that a non-work-related health
6
condition could not give rise to a claim under § 20109(b))4; see also PATH, 776 F.3d at
163-68 (discussing that § 20109(c) covers only work-related injuries). Although the
medical appointment was a precondition to return to duty, the hazard Stokes faced by
complying was not related or due to “the performance of [her]” ordinary duties. 49
U.S.C. § 20109(b)(1)(B). Put simply, the safety risk that Stokes identified was
unconnected to railroad safety, and thus her refusal to appear due to a non-work-related
risk to her was not covered by the FRSA.
Stokes chose to proceed under the FRSA as opposed to other statutes. The FRSA,
however, does not provide her with protections for actions she took due to her non-work-
related health condition even though she was a railroad employee. Thus, her claims
under the FRSA were correctly dismissed.
III
For the foregoing reasons, we will affirm the District Court’s order dismissing the
amended complaint.
4
The Department of Labor decision in Hunter is available at
http://www.oalj.dol.gov/Decisions/ALJ/FRS/2014/HUNTER_DESMOND_A_v_CSX_
TRANSPORTATION_I_2014FRS00128_(MAR_24_2015)_113253_CADEC_SD.PDF.
7