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Finnegan v. CSX Transportation Inc.

United States District Court, D. Massachusetts

March 25, 2019



          Timothy S. Hillman United States District Judge.


         This is an action brought by Plaintiff, Joseph P. Finnegan (“Plaintiff” or “Finnegan”) against CSX Transportation, Inc. (“Defendant” or “CSX”) alleging claims for disability discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§12112 and 12203 (“ADA”) and the Massachusetts anti-discrimination statute, Mass.Gen.L ch. 151B, §4 (“Chapter 151B”).[1]

         This Memorandum of Decision and Order addresses the parties' cross-motions for summary judgment. Plaintiff seeks summary judgment on the issue of whether CSX violated the ADA and Chapter 151B by failing to reasonably accommodate him by refusing to engage in a meaningful interactive process. CSX seeks summary judgment on all of Plaintiff's claims on the grounds that the record evidence establishes, as a matter of law, that it did not discriminate or retaliate against Finnegan. For the reasons that follow, the Plaintiff Joseph Finnegan's Motion for Partial Summary Judgment (Docket No. 46), is denied and Defendant CSX Transportation, Inc.'s Motion For Summary Judgment (48) is granted, in part and denied, in part.

         Summary Judgment Standard

         Federal Rule of Civil Procedure 56 provides that the court shall grant summary judgment if the moving party shows, based on the materials in the record, “that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A factual dispute precludes summary judgment if it is both “genuine” and “material.” See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). An issue is “genuine” when the evidence is such that a reasonable factfinder could resolve the point in favor of the non-moving party. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994). A fact is “material” when it might affect the outcome of the suit under the applicable law. Id.

         The moving party is responsible for “identifying those portions [of the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1968). It can meet this burden either by “offering evidence to disprove an element of the plaintiff's case or by demonstrating an ‘absence of evidence to support the non-moving party's case.'” Rakes v. U.S., 352 F.Supp.2d 47, 52 (D. Mass. 2005) (citation to quoted case omitted). Once the moving party shows the absence of any disputed material fact, the burden shifts to the non-moving party to place at least one material fact into dispute. See Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir.1994) (discussing Celotex, 477 U.S. at 325). When ruling on a motion for summary judgment, “the court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor.” Scanlon v. Dep't of Army, 277 F.3d 598, 600 (1st Cir. 2002). However, the court should not “credit bald assertions, empty conclusions, rank conjecture, or vitriolic invective.” Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007).). “Cross-motions for summary judgment require the district court to ‘consider each motion separately, drawing all inferences in favor of each non-moving party in turn.'” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014)(citation to quoted case omitted).


         Finnegan's employment with CSX

         CSX is a railroad transportation company operating in the eastern United States and Canada. CSX operates various yards, including a yard in West Springfield, Massachusetts. Trains pass through the West Springfield yard every day and at all hours. Within the confines of the yard, yard crews move railcars on the track to switch and build trains, and maintenance-of-way employees move machinery on the track. For safety reasons, every track in the yard is considered live. The mainline track in the yard is used for trains to travel through the yard without stopping, and it is always considered live.

         Finnegan began working at CSX in April 2008 as a Freight Conductor in CSX's Albany Division. This was a union position with responsibilities including the inspection, switching, loading, unloading, coupling, and de-coupling of trains; train travel; operation of switches; minor repair of railcars; monitoring of train movements; and understanding of and abiding by safety requirements. Prior to working for CSX, Finnegan, had a background in law enforcement and as a small business owner. In November 2008, CSX promoted Finnegan to Yardmaster, which was also a union position, and which required him to oversee the operation of the West Springfield yard. A Yardmaster supervises the movement of trains in the yard, ensures that railcars are switched and delivered on schedule, and ensures that paperwork and shipping documentation are accurate and complete. The Yardmaster job description describes the position as “sedentary” and involving “sitting for long periods of time.” The Yardmaster works primarily in the yard office, at a desk with computer monitors, radios, and video feed that allows the Yardmaster to monitor the trains coming and going and communicate by radio with crews, and where the Yardmaster can look out a window to the yard to make observations. Yardmasters work on three, distinct, eight-hour shifts, without excessive work hours.

         The Yardmaster job summary states that one of its duties is to “[e]nsure the safe, efficient operation of yard service, ” and that it is required as a condition of employment to “work safely to prevent on the job accidents and injuries.” As part of the job, a Yardmaster is required to mount and dismount locomotives in order to monitor crews at work.” “Physical Requirements” for being a Yardmaster include the following:

- “Demonstrate auditory and visual acuity/tracking/ inspection”
- “May require climbing stairs at some locations”
- “Stoop/bend/kneel/crouch/balance/climb on occasion.”

         Additionally, the Yardmaster position is classified as “Safety Sensitive.” The “Safety Sensitive” designation refers to the access and information that the Yardmaster has regarding the safety-sensitive information about train shipments and does not refer to the physical aspects of the job. According to Michael Blake (“Blake”), a current CSX employee who previously worked as a Yardmaster at the West Springfield terminal, the Yardmaster takes direction from the Trainmaster and although primarily an office job, at times requires the ability to perform tasks outside of the office on or around the tracks, including walking along the tracks to check discrepancies in the order of cars on a train, assisting in switching lines, picking up debris found in the yard or along the track, receiving deliveries (such as boxes of paper or packs of water bottles) and attending the sites of derailments.

         In 2011, CSX promoted Finnegan to Trainmaster, which was a managerial position (Yardmasters report to Trainmasters, and Trainmasters reported to CSX's Assistant Division Manager). Finnegan worked as a Trainmaster trainee beginning in March 2011, and, by September 2011, CSX assigned Finnegan to the West Springfield terminal, along with its satellite yards in Palmer and Pittsfield, Massachusetts, and the Cedar Hill yard in North Haven, Connecticut. The Trainmaster job summary states that the position is “[r]esponsible for the development and implementation of an aggressive Safety Action Plan” and that the Trainmaster works closely with other personnel “to make decisions with the goal of safety, service reliability, and cost.” The job duties of Trainmaster include supervising train and engine employees and Yardmasters, conducting rules training, operating efficiency testing, communicating with other managers, addressing needs of customers, and various administrative and reporting duties.

         The Trainmaster job description states that the Trainmaster “[c]onducts . . . operational efficiency testing.” The Trainmaster must “coordinate activities related to derailments and other service disruptions, ” and must “[i]nvestigate and determine cause to ensure future train accident prevention.” The Trainmaster works outside in the yard and along the mainline tracks to perform operational testing and investigate derailments; visits customers; and works in the office and occasionally at home. CSX's Trainmaster job description does not require a Trainmaster to “mount and dismount locomotives, ” and does not specify any “Physical Requirements, ” which must be met, nor does it require that a Trainmaster be able to “Demonstrate auditory and visual acuity/tracking/inspection” or “Stoop/bend/kneel/ crouch/balance/climb.” However, the Trainmaster job description does state that the Trainmaster “[d]irectly supervises Train and Engine (T&E) employees . . .” and “performs safety observations, ” and “[r]eview[s] performance of T&E employees and identify areas for improvement.” To supervise train and engine employees, the Trainmaster boards trains to speak with the crew or to address safety or training issues and takes monthly train rides with the train and engine crew. On a train ride, the Trainmaster supervises and speaks with the crew about matters important to the railroad, such as specific incidents or patterns of safety issues, and submits reports of the train rides to the Assistant Division Manager. In July and August 2013, Finnegan submitted train ride reports to Jerald Lewandowski (“Lewandowski”), CSX's former Assistant Division Manager for the Northeast region. In September 2013, Lewandowski sent Trainmasters several reminders about the monthly train ride requirement.

         CSX has two sub-designations for the Trainmaster position, Terminal Trainmaster and Line of Road Trainmaster. In West Springfield, the Trainmaster position is a Terminal Trainmaster position, which means that the Trainmaster is responsible for the terminal and the terminals in sub-yards within that territory. At times, the Terminal Trainmaster and Line of Road Trainmaster share duties. The Trainmaster job description does not distinguish between a Terminal Trainmaster and a Line of Road Trainmaster.

         When Finnegan worked as a Terminal Trainmaster at the West Springfield terminal, he reported directly to Lewandowski. Lewandowksi had been a Trainmaster for 4 years and supervised Trainmasters for 9 years. As of November 2013, Nathan Lutz (“Lutz”) also worked at the West Springfield yard as a second Terminal Trainmaster, reporting directly to Finnegan, and Sean Fitzpatrick (“Fitzpatrick”) served as the Line of Road Trainmaster assigned to the region that included the West Springfield terminal and several of its satellite yards. Fitzpatrick had been hired by CSX in or around 2002. He first worked for CSX as a Trackman, later as a Yardmaster at the West Springfield terminal, and was promoted to the position of Line of Road Trainmaster by 2007.

         During the relevant periods, the West Springfield yard was typically staffed with one or two Trainmasters. A Trainmaster works, or is on-call, 24 hours a day, 7 days a week. The Trainmaster job description provides that “[w]ork hours may vary in length and schedule, ” “may include a nonstandard workweek and various shift work, ” and “include on\call 7 days a week, 24 hours per day, with extended periods of time away from home.” The West Springfield Trainmaster is responsible for the West Springfield yard, satellite yards, and mainline in the area. Fitzpatrick was primarily responsible for the line-of-road between Selkirk, New York and Boston, Massachusetts, and he occasionally assisted with operations in the West Springfield yard.

         Derailments happen at least once a month, at all times of day, and in all types of weather. The Trainmaster is responsible for investigating the area - including the train and the track - to identify the cause of the derailment. To do so, the Trainmaster walks the track to examine the train and the track, occasionally getting down on his knees to examine the track, and bending and stooping. Investigating derailments and conducting operational tests require the Trainmaster to regularly walk on uneven ballast and unpaved areas, in areas that are sloped and not graded flat, and through snow and ice along the train tracks.

         The Federal Railroad Administration (“FRA”) requires that railroads, including CSX conduct operational testing to test their employees on proper and safe operations. FRA regulations require railway operators to designate positions within the organization to conduct operational testing: CSX has designated the Trainmaster as the manager responsible for testing transportation employees. CSX has strict requirements that Trainmasters perform all operational testing, including banner testing. A Trainmaster must perform all required operational tests, not just some. If a Trainmaster did not conduct required operational tests, CSX would be out of compliance and subject to penalties by the FRA. During the relevant period, a Trainmaster was responsible for conducting 100 operational tests per month

         In a “banner” test, a Trainmaster sets up a banner or other signal on a live track as a simulated obstruction to evaluate whether the operator of the train identifies the signal and safely slows or stops the train as required. Conducting a banner test, speed test, signal calling test, observations, and reviewing emergency protocols all require the Trainmaster to work along mainline tracks or in the yard in areas that are unpaved and not graded flat. These tests sometimes require a Trainmaster to be around live train traffic, sometimes within five feet of the track. Banner tests were performed by Trainmasters in teams and independently.

         According to his annual performance evaluations, Finnegan performed his job in a satisfactory fashion. Finnegan's 2011 evaluation states, “Joe has hit the ground with enthusiasm and drive.” He received an overall performance score of 3.2 out of 4. Finnegan's 2012 evaluation states, “Joe embraces the CSX core values.” He received an overall performance of score of 3.1 out of 4. On Finnegan's 2013 evaluation, he received an overall performance score in the range of 3 out of 4.

         Finnegan goes out on Medical Leave; CSX's Vocational Program

         In or around the summer of 2013, Finnegan began to suffer hearing loss in his left ear and he began walking with an unusual gait, which prompted him to consult with his physician. Finnegan was ultimately diagnosed with a “vestibular schwannoma, ” which is a “benign tumor that arises on the vestibular nerve.” On November 5, 2013, Finnegan went out on medical leave. That same day, he was admitted to Tufts Medical Center in Boston, Massachusetts for removal of the tumor, which was performed by his neurologist, Dr. Heilman. In s note dated January 27, 2014, Dr. Heilman, explained that Finnegan was suffering impairment of his balance “when he bends down to pick things up or turns quickly” and that he “does not have hearing on the left side.” He also reported that Finnegan's fatigue had improved. Dr. Heilman stated that he believed Finnegan could return to work by February 5, 2014. In anticipation of his return to work, Finnegan provided Dr. Heilman with the CSX “Attending Physician's Return to Work Report MD-3 form, ” which Dr. Heilman completed on January 27, 2014. Dr. Heilman indicated that Finnegan's prognosis was “Excellent, ” and he cleared Finnegan to return to work as of February 5, 2014, “with no restrictions.”

         CSX maintains a Vocational Rehabilitation Program, which is part of its Medical Department and is overseen by its Chief Medical Officer (“CMO”). According to a pamphlet provided to employees that summarizes of its services, “The mission of the Vocational Rehabilitation Program at CSX Transportation is to return injured or ill employees, to full-time, gainful employment.” To achieve that end, the pamphlet states as follows: “If possible, the Vocational Rehabilitation Program will attempt to return you to your previous job. If you do not return to your previous job, the Vocational Rehabilitation Program will attempt to place you in a new job within the company.” On its employee online “gateway, ” CSX represents, “This program is a vital part of our commitment to employees.” The services that CSX represents that it will provide to its employees include the following:

- “job accommodation”
- “return to work in alternate positions within the company”
- “short term training for alternate positions with CSX”
- “training programs or on-the-job training”
- “job related training”

         Employees seeking workplace accommodations are instructed to submit an Employee Accommodation Request Form to the Medical Department, which will then “take appropriate steps to evaluate the employee's request … A member of the Medical Department (which may include a Vocational Rehabilitation Manager) will contact the employee as to the request for an accommodation as part of an interactive process with the employee to determine whether a reasonable and appropriate accommodation can be made.” One of the functions of the Medical Department and the Vocational Rehabilitation Program is to assist employees in returning to work after injury.

         Dr. Thomas Neilson (“Dr. Nielson”) served as CSX's CMO from 2003 through 2014; he had worked with employees in the coal and railroad industry for over 30 years. During his time at CSX, the Medical Department assisted thousands of employees in returning to work following an injury. Scott Marshall (“Marshall”) was the CSX vocational rehabilitation manager during the relevant time period. He had almost forty years of experience in vocational rehabilitation, including 20 years at CSX. Marshall maintained a caseload of approximately 80 employees per month whom he would assist as part of the Vocational Rehabilitation Program. He was assigned to assist Finnegan while he was on leave. He maintained “Case Progress Notes” documenting his communication with Finnegan between January 2014 and March 2016.

         Dr. Nielson reviewed the medical documentation and concluded that because of Finnegan's difficulty with balance, he should undergo vestibular therapy before attempting to return to work. Finnegan agreed with that determination. Per CSX's recommendation, on February 12, 2014, Finnegan began vestibular therapy at the Fairlawn Rehabilitation Hospital in Worcester, Massachusetts. Finnegan's supervisor, Lewandowski, was aware that Finnegan was out on leave, that he had suffered balance issues, and that he had originally been cleared to return to work in or around February 2014, but that CSX's Medical Department delayed his return pending his completion of physical therapy. At the time that Finnegan was out on medical leave, Lewandowski had not heard of the term “interactive process” in 2014 and was unaware of the possibility that CSX might have an obligation to engage an employee in dialogue following a request for an accommodation of a disability, but he knew that it was CSX's practice to do so. According to Lewandowski, CSX did engage in the interactive process with Finnegan.

         On April 22, 2014, Marshall entered into his Case Progress Notes: “Talked with the employee and he is still having problems with his balance. His therapy is extended another 8 sessions until May 9th. After that he will be discharged to continue therapy at home. Marshall further noted that when asked if he felt he could safely return to work as a Trainmaster, Finnegan said that he would like to try, but did not know how he would do especially with working long hours. That same day, Marshall forwarded Finnegan's physical therapy notes to Dr. Neilson, for his review. Finnegan's physical therapy treatment concluded on May 7, 2014. Finnegan did not make significant progress. For example, according to his physical therapist's “Vestibular & Balance Assessment Addendum, ” Finnegan continued to perform within normal range on tests with his eyes open, but outside of normal range with his eyes closed. Additionally, Finnegan noted to be deaf in his left ear, had unsteady balance, when attempting to walk, “veers off a liner path towards environmental obstacles as he is unable to maintain midline.”

         Finnegan was cleared to return to work, without restrictions, as of May 12, 2014. On May 8, 2014, Marshall recorded in his Case Progress Notes that he had contacted Finnegan about his return to work and that Finnegan shared that he thought that he might have difficulty with his return to work if he had to “work extended hours or do field testing.” On May 9, 2014, Marshall called Finnegan and told him that he and Dr. Nielson had discussed Finnegan's employment status and that they decided to put Finnegan back to work on Monday, May 12, 2014. According to Marshall's notes, Finnegan “feels that he can do it.” During that conversation, Marshall and Finnegan agreed that Finnegan would return to work on a trial basis and that he would “field test” himself. “Field testing” is also sometimes referred to as “trial return to work.” Finnegan also asked whether he could return to work on May 19, 2014, rather than on May 12th. Finnegan's impression was that Marshall agreed to that request. On May 9, 2014, Dr. Neilson, issued a return to work order, which stated that Finnegan was “medically qualified to perform railway service without restrictions, effective 05/12/14.” Dr. Neilson authorized Finnegan to return to work because he believed Finnegan could safely perform the essential functions of his job.

         Prior to Finnegan's return to work, Marshall informed Lewandowski of the fact that he would return to work on a trial basis. On May 10, 2014, Lewandowski sent Finnegan a text message informing him that his scheduled return to work date was May 12, 2014. This was Lewandowski's first communication with Finnegan since he had gone out on medical leave. Finnegan responded to Lewandowski by indicating that he and Marshall had agreed to a return to work date of May 19, 2014. Lewandowski replied to Finnegan by informing him that if he did not show up to work on May 12, 2014, he would be considered “absent from work.” Following this exchange, Finnegan emailed Marshall the following message:

Scott on Friday 5/9 at approximately 2 PM I received a call from you. The conversation established a return to work date of 5/19. I am confused with what is going on. You told me during this conversation that “I hate to spring this on you”. Which you did and was a total change on your end. We left our conversation like our previous one that you requested my PT Summary Discharge notes before establishing a return to work date. These are not complete or available to date. There has been no change or further information provided. We agreed upon a trial period to begin on 5/19. The phrase we both agreed upon was a “Field Test”. When I asked you to notify my Superiors that it was going to be a trial period you told me that was my responsibility. You also told me if I was unable to perform my job and it was unsafe for me it was my responsibility to take myself [out of service] and return to LTD and use the Vocational Rehab program. Please confirm.

         On May 11, 2014, Lewandowski emailed Finnegan and Marshall, again directing Finnegan to return to work on May 12, 2014, because it was Lewandowski's understanding that Finnegan was cleared to return to work on that date.

         Finnegan Returns to Work

         On May 12, 2014, Finnegan returned to work and resumed his duties as a Terminal Trainmaster. While Finnegan was out on medical leave, Lutz had covered his job duties with some assistance from Fitzpatrick. Following Finnegan's return to work, Lutz, resigned from his position. That position remained vacant, leaving Finnegan as the only Terminal Trainmaster assigned to the yard. Finnegan spoke with Lewandowski around that time regarding Lutz's resignation. During that conversation, Lewandowski did not inquire as to Finnegan's trial return to work. According to Fitzpatrick, Finnegan “was doing everything like he did before he went out as far as I know. If he wasn't, I think I would have known about it.” According to Finnegan's wife, he had suffered balance issues before he had gone out on medical leave, prior to the removal of his tumor, i.e., he had been performing his duties as Terminal Trainmaster for a period of months despite his balance issues.

         Finnegan and Marshall discussed in the context of field testing himself, that if any time Finnegan didn't feel it was safe, he would “take [him]self out of service.” Finnegan's attorney confirmed in a May 19, 2014 letter that Finnegan and CSX “agreed that if he comes across tasks that he could not perform, he would remove himself from service.” During his trial return to work, Finnegan did not perform any of the four required banner tests, and he did not tell his manager that he was not performing the tests. Finnegan's purported reason for not doing the tests was that Fitzpatrick, the other Trainmaster, was working nights, i.e., wasn't available to do the tests with him.

         When he returned to work, Finnegan began to “field test” himself. Finnegan described his transition back to work, “like a kid riding a bike and taking the training wheels off.” According to Finnegan, he was able to perform numerous job duties without any accommodation. For example, according to Finnegan, a good portion of his job involved duties that he performed from his office, his home, his vehicle, or from paved or flat areas within CSX yards or customer sites. These duties included attending morning and evening conference calls with CSX management, addressing customer issues, visiting satellite yards, completing payroll, and performing various operational tests (observing employees to ensure that they perform their work properly). Part of Finnegan's duties required him to conduct operational tests, in which he observed and evaluated employees. Finnegan performed the majority of his operational testing by observing employees from a distance__either from his vehicle or from a paved area. Again, according to Finnegan, doing so was consistent with how he had performed such testing prior to going out on leave. That is, Finnegan represents that before he had gone out on medical leave, he regularly performed this work from his vehicle, from a distance using binoculars, or from an office where he could observe employees on video. He also believes it was also consistent with how other managers conducted the majority of their operational testing. For example, at times, Finnegan's colleagues would watch an employee from a distance so that the employee would not know that he or she was being observed.

         Finnegan did find that he needed to make some adjustments to how he worked. He ended up working seven days per week, at least ten hours per day, which was more than he typically worked prior to going out on leave. Finnegan did not feel comfortable walking on ballast[2] and rails in high traffic areas, such as on the mainline track where trains operate at higher speeds. The West Springfield yard has live traffic every day and at all hours of the day. Therefore, on occasions when he was required to approach high traffic areas, he did so by driving his vehicles on the roads that provide direct access to the tracks. According to Finnegan, these roads provide access to the overwhelming majority of CSX track. However, paved roads do not provide access to a majority of the tracks in the West Springfield yard. Moreover, investigating derailments and conducting operational tests require the Trainmaster to regularly walk on uneven ballast and unpaved areas, in areas that are sloped and not graded flat, and through snow and ice along the train tracks.

         The only operational tests that Finnegan did not feel comfortable performing were the banner tests. Banner tests comprised a small fraction of the operational tests that Finnegan performed each month. Finnegan did not feel comfortable performing those tests on his own because he did not want to go onto live track as a train approached without any safeguards. According to Finnegan, this type of test was ordinarily conducted by more than one Trainmaster. However, since Lutz had resigned, Finnegan did not have another Trainmaster readily available who he could direct to perform the test with him. He states that he could possibly have performed them with Fitzpatrick. However, during Finnegan's trial period, Fitzpatrick was performing duties in other areas and only saw Finnegan once. According to Fitzpatrick, he generally performed about 30% of such tests by himself, that is, without the assistance of another Trainmaster.

         Finnegan also refrained from climbing and riding on trains. According to Finnegan, prior to going out on leave, he rarely climbed or rode on trains when investigating derailments. Further, according to Fitzpatrick, he did not believe that Finnegan's predecessor ever climbing or riding on trains, and there were “plenty of managers that never did train rides.”

         Finnegan Requests Accommodations

         Following his return to work, Finnegan informed Fitzpatrick that he had submitted a request for accommodations to CSX. Fitzpatrick responded that he did not think that was a good idea because he believed that CSX would refuse to grant him any accommodations and would instead pull him from service. In a letter dated May 19, 2014, one week after he returned to work, Finnegan, through his attorney, informed CSX that he felt unsafe “even attempting” to perform certain aspects of his job. In the letter, Finnegan notified Marshall that he sought certain workplace accommodations. Marshall received that letter several days later, on or about May 22, 2014. In his letter to Marshall, Finnegan's attorney opined that Finnegan was able to “effectively perform all office functions as well as observe crews from his vehicle or pavement.” Finnegan's attorney also informed Marshall that there were certain activities that Finnegan did not feel were safe to perform. Those activities included:

- Walking in or on any areas of ballast or rail
- Riding/climbing on/off trains or locomotives
- Utilizing a brakestick - Setting up a ...

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