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Wright v. National Railroad Passenger Corp.

United States District Court, District of Columbia

September 17, 2018

WANDA J. WRIGHT, Plaintiff,


          RUDOLPH CONTRERAS, United States District Judge.


         On September 18, 2015, Plaintiff Wanda J. Wright, appearing pro se, filed suit in the Superior Court of the District of Columbia against her former employer, the National Railroad Passenger Corporation (“Amtrak”), and her union, Amtrak Police Fraternal Order of Police New Jersey Lodge 189 (“FOP”). Plaintiff claimed that she was wrongfully terminated after sustaining work-related injuries and that FOP breached its duty of fair representation. Defendants properly removed the case to this Court, see Aug. 15, 2016 Order, ECF No. 19, and separately moved to dismiss. On March 27, 2017, the Court granted leave for Plaintiff to file an Amended Complaint invoking the Railway Labor Act (“RLA”), ECF No. 42, which was considered together with the original complaint. See generally Mar. 27, 2017 Mem. Op. (“Mem. Op. I”), ECF No. 41. The Court could not resolve on the sparse record (1) whether, as FOP argued, Plaintiff's breach-of-duty claim is time-barred, and (2) whether, as Amtrak argued, Plaintiff's admitted failure to exhaust her administrative remedies should be excused. Therefore, it denied both motions. See id. at 7-10.

         Pending before the Court, following a period of discovery, are Amtrak's Motion for Summary Judgment, ECF No. 57, and FOP's Motion for Summary Judgment, ECF No. 58. Plaintiff has filed an opposition that addresses both motions, ECF Nos. 64, 65 (exhibits), and FOP and Amtrak have each filed a reply, ECF Nos. 67 and 68, respectively. The Court finds from the evidence in the record that Plaintiff's claim is timely but that no reasonable jury could find that FOP breached its duty of fair representation, which Plaintiff also must prove to succeed against Amtrak. Therefore, Defendants' motions will be granted for the reasons explained more fully below.


         A. Plaintiff's Work-Related Injuries

         Plaintiff began her employment as an officer of the Amtrak Police Department (“APD”) on August 14, 2008, in the District of Columbia. FOP's Stmt. of Undisputed Material Facts (“FOP's Facts”) ¶ 1, ECF No. 58-3. She sustained multiple back injuries while on duty. See FOP Facts ¶¶ 6-8; Amtrak Mem. at 10-11.[1] Amtrak documents that on February 22, 2011, plaintiff injured her back a third time while attempting to subdue a mentally ill patient and was granted Injury on Duty (“IOD”) leave in accordance with Rule 27 of the Collective Bargaining Agreement (“CBA”).[2] Amtrak Mem. at 10 (citing Ex. 6, Feb. 22, 2011 Employee Injury/Illness Report); Ex. 8, Nov. 13, 2014 e-mail from Lisa Shahade).[3] “While on IOD, [Plaintiff] did not work as a full duty or as a restricted duty police officer” but, consistent with the CBA, “did . . . receive full pay for a total of three months and 80% pay for a total of 15 months.” Amtrak Mem. at 10-11 (citing Ex. 16, Resps. to Reqs. for Admis. Nos. 10-13). Plaintiff remained on IOD leave through May 15, 2011. Id. at 11 (citing Shahade's Nov. 13, 2014 e-mail). She returned to work on May 16, 2011, “in a restricted duty capacity.”[4] Mem. at 11.

         While working on restricted duty, Plaintiff participated in a physical therapy program, which “revealed ‘significant deficits' in several areas[.]” Id. (quoting Ex. 11 at 137, July 11, 2011 Functional Capacity Evaluation). “Per her physical therapist, [Plaintiff] complained of increasing back pain and tightness during testing [and] attempted ‘to perform each task to a point where her pain had increased and was intolerable.' ” Id. Plaintiff “failed” the program and was “returned to IOD” from July 18, 2011 until January 31, 2012. Amtrak Mem. at 12; FOP Facts ¶ 13. Upon returning to work in February 2012, Plaintiff was placed on restricted duty at a loading dock in Union Station. FOP Facts ¶¶ 12-14; Amtrak Mem. at 12. Plaintiff “attempted a second [rehabilitation] program” in July 2013. In the end, the physical therapist concluded that Plaintiff was “ ‘not capable of performing her pre-injury job in a full duty capacity.' ” Mem. at 12 (quoting Ex. 12 at 152, July 16, 2013 Functional Capacity Evaluation). Plaintiff “was diagnosed with a permanent hip injury” in August 2013. FOP Facts ¶ 15. On October 2, 2013, during Plaintiff's restricted duty assignment, Amtrak's Dr. Paul McCausland determined from his review of Plaintiff's medical file that she was no longer capable of performing the duties of an Amtrak police officer and “characterized her status as ‘unlikely to change given her recent symptoms during work hardening and her continued restricted duty since 2011.' ” Amtrak Mem. at 12 (quoting Ex. 14 at 169, Oct. 2, 2013 e-mail from Paul J. McCausland).

         B. Amtrak's Denial of Extended Restricted Duty

         On December 5, 2013, Amtrak denied Plaintiff's request to extend her restricted duty assignment by 60 days “pursuant to Amtrak Police Department (APO) Operations Guide section 310.7.” FOP Facts ¶ 16; Amtrak Mem. at 4-5. The denial letter noted that Plaintiff had been “in restricted duty capacity for an extended period of time and the Department has authorized restricted duty service for several years.” FOP Ex. 22 at 404[5]; Amtrak Ex. 15; Pl.'s Exs., ECF No. 65-1 at 2. The letter informed Plaintiff about seeking a reasonable accommodation if needed in order “to perform the essential functions of your position as a police officer, ” and listed Friday, December 13, 2013, as Plaintiff's “last day of approved restricted duty.” Id. The letter further informed that “[e]ffective Monday, December 16, 2013, ” Plaintiff would be “returned to your prior status of Injured on Duty.” Id. On the effective day, Plaintiff “stopped working and obtained IOD status” at 80% pay. FOP's Facts ¶ 18; Amtrak's Mem. at 13 (citing Ex. 8).

         C. Plaintiff's Request for FOP Assistance

         Meanwhile, on December 13, 2013, Plaintiff requested assistance from FOP President Valerie Sousa with appealing Amtrak's “denial of restricted duty.” FOP Ex. 23 at 406. In a response dated December 30, 2013, Sousa, citing prior correspondence with Plaintiff, stressed that “the only appeal we can work on is the ADA denial if you were denied.” Id.; see also FOP Facts ¶¶ 20-21 (recounting Sousa's request to Plaintiff to provide any application “to the ADA panel as well as the denial”). Sousa added: “As far as other complaint and grievance appeals - yes the Labor Committee prepares appeals. That is a big part of what we do.” FOP Ex. 23 at 406. Plaintiff replied on Friday, January 3, 2014, that she had “called human resources several times to request a Request for Reasonable Accommodations form, but no one has returned my call.” Id., FOP Ex. 24 at 408. Sousa responded on Monday, January 6, 2014, that she would provide Plaintiff the form later that day. Id.

         Plaintiff submitted an Americans with Disabilities Act (“ADA”) Request for Reasonable Accommodation on February 20, 2014, which sought “same as previous. Restricted duty/administrative.” FOP Ex. 25 at 414. By e-mail dated September 16, 2014, Amtrak's ADA Panel denied Plaintiff's request upon determining “that indefinite ‘light/restricted duty' as a Police Officer would pose an undue burden.”[6] FOP Ex. 28 at 425. Amtrak offered to “consider any reasonable accommodation(s) you may need to enable you to meet the essential functions of the Police Officer job, or to assist you with job reassignment within Amtrak.” Id. On September 25, 2014, Plaintiff forwarded Amtrak's denial to Sousa, who replied thirty minutes later that “Amtrak will never agree to indefinite as a time period.” Id. Sousa questioned “[h]ow the request [was] worded” and informed Plaintiff that “there does seem to be an opportunity to be successful with an appeal request, ” considering “whether or not you want to remain at APD or if there is another position within the corporation that could work to your benefit.” Id. Both Amtrak and Sousa invited Plaintiff to “advise” of her preferences.

         On September 29, 2014, Sousa resigned her position and “did not communicate with the new Union leadership about Wright's issues.” FOP Facts ¶¶ 33-34. In an update to union members dated October 6, 2014, First Vice President Sharon Patterson informed that Sousa's resignation was unexpected, the Executive Board had called an emergency meeting to convene three days later, and “any member [who] was talking directly with President Sousa regarding a union issue that she was handling on your behalf” should contact her Regional Vice President by e-mail. FOP Ex. 34 at 509.

         D. Expiration of Plaintiff's IOD Status and Medical Disqualification

         On October 3, 2014, Amtrak notified Plaintiff that her IOD status (since December 16, 2013) would expire on October 10, 2014, and provided an ADA Accommodation Request form “should you wish to request some other accommodation.” FOP Ex. 31 at 500. Amtrak followed up with a letter to Plaintiff dated October 14, 2014, confirming that her IOD leave had expired on October 10th “in accordance with Rule 27 of the collective bargaining agreement” and that her “final pay for this covered time period will be issued on October 24, 2014.” FOP Ex. 37 at 515. The letter further conveyed that “Amtrak Medical Services has been notified of the expiration of your IOD time [and] will provide further information on your employment status.” Id. In a letter to Plaintiff dated October 16, 2014, Medical Services referenced the Medical Director's determination “that you are medically disqualified from your job as a Police Officer” and set out “several options” for Plaintiff, which included applying for permanent disability through the Railroad Retirement Board; seeking other positions within Amtrak for which Plaintiff may be medically qualified to perform; applying for an accommodation through the ADA Panel; or submitting medical documentation that “your medical condition has sufficiently improved to allow you to perform this job safely.” FOP Ex. 38 at 517.

         E. FOP's Assistance

         In “early November 2014, ” Plaintiff contacted FOP Vice President Patterson “about the October 14 letter from Amtrak, ” FOP Facts ¶ 38 (citing Ex. 16), and an investigation ensued.[7]Patterson emailed Deputy Chief Lisa Ann Shahade on November 6, 2014, contesting the expiration date of Plaintiff's IOD status.[8] Shahade responded with an e-mail on November 13, 2014, listing the time periods that Plaintiff “was on paid IOD leave for a reported injury” and concluding that “the APD fulfilled its obligation to this officer under Rule 27.” FOP Ex. 17 at 201. Shahade added: “As information, during the interim period of 1/31/12 to 12/16/13, the officer was assigned to a paid restrictive duty assignment (roughly 23 months).” Id. In an e-mail to Plaintiff also dated November 13, 2014, Patterson wrote: “We will definitely have to file a grievance on your behalf. Injury On Duty and Restricted Duty (Light Duty) are two different things.” FOP Ex. 17 at 201. Noting that Plaintiff was “out on two [ ] injuries, ” Patterson asked Plaintiff “to meticulously outline for both injuries dates that you were out (not working) and dates you were working Light Duty” and to provide “supporting documentation[, ] . . . a must to dispute management.” Id.

         In response to Plaintiff's inquiry on November 20, 2014, about her appeal and employment status, Patterson replied the next day: “We as the union don't start out with appeals. We are still looking into your case. The only recourse for the Union on your behalf is to file a grievance and request that you receive the remaining Line of Duty pay.” FOP Ex. 40 at 519-20. Patterson summarized the discussion she and Pearlson had with Labor Relations, including that Plaintiff was “medically disqualified as a Police Officer in October 2014.” Id. at 519. Patterson asked if Plaintiff had received the disqualification letter and concluded: “We need to speak to you face to face, ” id., which occurred on December 1, 2014, FOP Facts ¶ 47. The next day, on December 2, 2014, Plaintiff provided the union representatives “a more recent” report from her treating physician concluding that Plaintiff “could perform her duties with restrictions, ‘no running, no [heavy] lifting.'” Id. ¶ 48 (quoting Ex. 44 at 534, Oct. 22, 2014 Treating Physician Medical Status Report, Statement of Disability).

         On December 8, 2014, Pearlson sent Plaintiff a detailed “outline of a proposed grievance and evaluation of [the] merits of her case[, ]” FOP's Facts ¶ 49, stating his intent to present his conclusions “to our labor attorney so I can file a grievance on your behalf[, ]” Ex. 43 at 529. The gravamen of the proposal challenged Amtrak's removal of Plaintiff from approved restricted duty on December 13, 2013, its termination of Plaintiff's pay under CBA Rule 27 on October 24, 2014, and its calculation of Plaintiff's IOD time as running continuously from 2011.[9] Pearlson posited that each time Plaintiff “returned to work on a restricted duty capacity . . . caus[ed] a break in [her] IOD time” and thus “should have reset the clock [to] a full 18 months.” Id. As a result, Plaintiff “should have 18 months of IOD from 12/16/13 when [she] was forced to return to IOD.” Pearlson proposed to seek as a remedy Plaintiff's return to “IOD pay effective immediately” and “back pay from 10/14/14 until present.” Id. Pearlson offered also that Plaintiff's reasonable accommodation request “was misplaced, as you were seeking a temporary accommodation, not a permanent one.” Id. Therefore, he advised Plaintiff, among other things, to “recall” the accommodation request by writing to Amtrak Medical Services and asserting the error. Id.

         Following Plaintiff's comments about the proposal on December 9, 2014, FOP Ex. 45, but before replying to her, see Ex. 47, FOP submitted Plaintiff's grievance on December 12, 2014, asserting violations of Rule 27 of the CBA. Ex. 46 at 540-49. The next day, Pearlson forwarded the grievance to Plaintiff and explained that the “initial grievance” was submitted to “ensure our argument is not time barred, ” since the “time limit expires tomorrow.” FOP Facts ¶ 52 (quoting Ex. 47). Pearlson had ...

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