Lemon v. Norfolk Southern Railway Co., No. 19-3906 (6th Cir. 2020)
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Lemon asked a coworker for an Advil, explaining that he hurt his neck by “turn[ing] his head.” Later, he asked another coworker to cover his shift, stating that he hurt his neck at home. From the hospital, Lemon texted another coworker that he “tweaked” his neck at home. He first told the doctor that he hurt himself at home, then stated that he hurt himself at work. Later, he reported to his supervisor, claiming he slipped walking up the stairs at work and that he did not discuss the injury with any coworkers. In his formal injury report the next day, Lemon said that he stumbled on the stairs at work. Norfolk has a policy of firing workers who make false statements at work. Norfolk held a hearing and fired Lemon. Lemon claimed Norfolk violated the Federal Railroad Safety Act, 49 U.S.C. 20101, by retaliating against him for reporting a workplace injury. OSHA dismissed his complaint.
The Sixth Circuit affirmed summary judgment for Norfolk. To prevail, Lemon was required to show that his injury report was a “contributing factor” in the railroad’s decision to fire him; he could not prevail if the railroad would have fired him anyway. Lemon’s injury report was not a contributing factor in Norfolk’s decision to fire him. Even if Lemon provided admissible evidence of a policy of pretextual retaliation, Lemon did not establish retaliation against him. Lemon admits no one at Norfolk ever discouraged him from reporting his injury or threatened him with retaliation.
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