United States Court of Appeals

for the Fifth Circuit

____________

No. 23-30709

____________

Dakota Hanley, 

Plaintiff—Appellant,

versus

Illinois Central Railroad Company, 

Defendant—Appellee.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:22-CV-258

______________________________

Before Higginson, Willett, and Oldham, Circuit Judges.

Per Curiam:

*

Dakota Hanley sued the Illinois Central Railroad Company pursuant 

to the Federal Employers’ Liability Act, 45 U.S.C. §§ 51 et seq. The district 

court granted summary judgment on the grounds Hanley was not a railroad

employee. We affirm.

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 8, 2024

Lyle W. Cayce

Clerk

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I.

Illinois Central Railroad Company (“ICRC”) operates a railroad line 

along the southern edge of Lake Pontchartrain and across the terminus of the 

Bonnet Carre Spillway. Where the line crosses the Spillway, the track is 

elevated on a bridge. In 2017, ICRC contracted with OCCI, Inc. (“OCCI”) 

to build a new bridge. OCCI agreed to “furnish all material, supervision, 

labor, equipment, tools, supplies, incidentals, and transportation” needed for 

the Spillway project. ROA.122. To complete the project, OCCI built a 

specialized “bridge builder.”

ICRC and OCCI coordinated and communicated throughout the 

construction of the new bridge because the construction’s location and 

complexity presented several challenges. For instance, the new bridge is 

located approximately fifty feet from the old tracks, and OCCI workers had 

to cross the old tracks to reach the construction site. But ICRC did not shut 

down the old track during construction. Instead, because the old track 

remained open to live rail traffic, an ICRC Employee-in-Charge (“EIC”) 

coordinated movement across the live tracks to offer “track protection” and 

issued “stop orders” when safety concerns arose. ROA.142; 183.

ICRC also provided morning and afternoon job briefings to OCCI 

employees. Those briefings included the track protection concerns for the 

day, a “forecast” of the day’s train schedule, general work-site rules, and 

safety warnings based on the day’s scheduled projects. After the briefings, 

OCCI employees broke into their work groups and received their day’s tasks 

from an OCCI foreman. In addition to daily tasks, OCCI foremen answered 

workers’ questions, assigned discrete tasks, and directed the “means to 

accomplish the work for OCCI laborers.” ROA.261–62. At times, the OCCI

foremen and superintendents would communicate with ICRC personnel—

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particularly ICRC Vice President Raymond Baker—to ensure the bridge 

construction was safe and compliant with contractual specifications. 

Dakota Hanley was an OCCI employee working on the Spillway 

project. On June 25, 2019, Hanley slipped and fell off a ladder on OCCI’s 

bridge builder at the Spillway construction site, injuring his knee. Hanley 

sued ICRC under the Federal Employers’ Liability Act (“FELA”), 45 

U.S.C. § 51, claiming damages for his injuries as a “borrowed” railroad 

employee. ICRC moved for summary judgment, contending Hanley was not 

a railroad employee. The district court granted summary judgment, and 

Hanley timely appealed.

II.

FELA imposes liability on railroad common carriers engaged in 

interstate commerce for “damages to any person suffering injury” caused by 

the carrier’s negligence “while he is employed by such carrier in such 

commerce.” 45 U.S.C. § 51. FELA defines an “employee” as:

Any employee of a carrier, any part of whose duties as such 

employee shall be the furtherance of interstate or foreign 

commerce; or shall, in any way directly or closely and 

substantially, affect such commerce as above set forth shall, for 

the purposes of this chapter, be considered as being employed 

by such carrier in such commerce and shall be considered as 

entitled to the benefits of this chapter.

Id.

The Supreme Court has held “[FELA] does not use the terms 

‘employee’ and ‘employed’ in any special sense.” Baker v. Tex. & Pac. Ry. 

Co., 359 U.S. 227, 228 (1959). Rather, FELA requires “proof of a masterservant relationship between the plaintiff and the defendant railroad . . . 

determined by reference to common-law principles.” Kelley v. S. Pac. Co., 

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419 U.S. 318, 323 (1974). Our court has in turn recognized three doctrines 

under which a person could be considered an “employee” for FELA 

purposes, despite being a contractor paid by another company: “the person 

could (1) be the railroad’s borrowed servant, (2) serve two employers 

simultaneously, or (3) be a subservant of a company that in turn serves the 

railroad.” Wheeler v. Norfolk S. Ry. Co., 6 F.4th 626, 630 (5th Cir. 2021). 

Under all three doctrines, “a worker’s employment status turns on ‘whether 

the railroad has control of the employee or the right to control the 

employee.’” Id. (quoting Lindsey v. Louisville & Nashville R.R. Co., 775 F.2d 

1322, 1324 (5th Cir. 1985)). 

To establish a right of control over a worker, “the railroad need not 

have full supervisory control, but its supervisory role must be significant.” 

Id. “The mere reservation of authority to ensure performance as 

contemplated by a contract is not sufficient control to turn a nominal 

contractor into an employee.” Id. And “the passing of information and the 

accommodation that is obviously required in a large and necessarily 

coordinated operation” does not evince sufficient “direction or control” to 

establish significant supervision. Kelley, 419 U.S. at 330; see also Wheeler, 6 

F.4th at 631.

“Generally, whether an injured worker was acting as an employee at 

the time of injury is a question of fact for the jury.” Lowery v. Ill. Cent. Gulf 

R.R. Co., 891 F.2d 1187, 1191 (5th Cir. 1990). “Only if reasonable persons 

could not reach different conclusions on whether a claimant was an employee 

of the railroad at the time of his injury may the question be taken from the 

jury.” Ibid.; see also Baker, 359 U.S. at 228. Our review is de novo. See Union 

Pac. R.R. Co. v. City of Palestine, 41 F.4th 696, 703 (5th Cir. 2022). 

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III.

Hanley contends ICRC “borrowed” him as an employee. We agree 

with the district court that Hanley failed to create a triable issue of fact on 

that point. 

The OCCI/ICRC agreement and employee testimony establish that 

ICRC did not have supervisory control over OCCI employees like Hanley.

The contract required OCCI to supply, supervise, and pay its laborers. It gave 

OCCI discretion to make labor arrangements, so long as “the Work [was] 

done by [OCCI] in a safe, efficient, and workmanlike manner . . . consistent 

with the achievement of the result contracted for.” ROA.126. And the 

employee testimony from both OCCI and ICRC employees similarly evinced 

OCCI’s control. An OCCI Human Resources Specialist, Hanley’s OCCI 

foreman, an ICRC supervisor, and ICRC Vice President Baker all confirmed 

OCCI’s control over who worked on the Spillway project, what work each 

laborer did, and how the work was done.

In response, Hanley presents four facts he alleges demonstrate 

ICRC’s control over his work. None suffices, individually or collectively, to 

create a genuine dispute as to Hanley’s employment.

First, Hanley asserts ICRC had “stop work authority,” meaning the 

railroad EIC could order all work to cease if, for example, an unexpected train 

jeopardized worker safety at the site. ROA.281. But the mere ability of 

ICRC’s supervisor to order OCCI employees to stop working—primarily for 

safety reasons—is “a far cry from the directive control” found sufficient in 

Baker. Wheeler, 6 F.4th at 631; see also Baker, 359 U.S. at 228–29 (relying on 

supervision over “the details of the job performed by the individual 

workmen”). Stop work authority therefore does not amount to “significant 

supervisory control” sufficient to support a FELA claim. See Wheeler, 6 F.4th 

at 631; Baker, 359 U.S. at 228–29 (relying on “directive control”).

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Second, Hanley points to the EIC’s “track protection” role. True, the 

employee-in-charge could control the flow of workers and vehicles across the 

active railroad tracks to the construction site. But track protection falls short 

of demonstrating an employment relationship for largely the same reasons as 

the stop work authority. It was a permissive authority, at best, predicated 

purely on the location of the Spillway project, not on the nature of the job 

itself. And, given the scale of the project and the location of the new bridge, 

track protection was a necessity, not a way to control the construction 

workers. See Kelley, 419 U.S. at 330. The protection protocol both prevented

interference with ICRC’s ongoing train schedule and protected OCCI 

workers and equipment from dangerous encounters with oncoming trains. So 

this necessary communication between ICRC and OCCI also falls squarely 

within the “passing of information” deemed insufficient to form an 

employment relationship in Kelley.

Third, Hanley claims ICRC’s daily job briefings, Risk Assessment 

Forms, and worksite communications (like the EIC’s ability to “point out 

‘exceptions,’ such as . . . one of [the OCCI crew] not wearing proper safety 

gear” or “housekeeping” issues) constitute “significant supervision” over 

daily construction tasks. ROA.280, 282–83. But the Risk Assessment 

documents and the EIC’s description of his communications belie Hanley’s 

description. The “Daily Job Briefing and Risk Assessment” sheet concerns 

only the general activities for the day, safety concerns at the worksite, and 

protocol for avoiding those concerns (such as a warning to OCCI workers to 

“watch [their] footing” and use fall protection gear). ROA.337. And the 

“housekeeping” communications merely sought to ensure the worksite 

remained safe and compliant with regulatory cleanliness standards. Like in 

Wheeler, ICRC’s interest in maintaining a safe and clean worksite is 

“unsurprising in the context of an independent-contractor relationship.” 6 

F.4th at 632 (citing Campbell v. BNSF Ry. Co., 600 F.3d 667, 674 (6th Cir. 

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2010)). And that reasonable concern is insufficient to convert the contractor 

relationship into an employment relationship. See id. In short, railroad 

responsibility for general safety conditions does not rise to the level of control 

over the contractor’s actual work required for a finding of employment. Cf.

Kelley, 419 U.S. at 326–27.

Fourth, Hanley contends communications between ICRC Vice 

President Baker and OCCI superintendents constituted supervisory control.

ICRC personnel and OCCI superintendents discussed the specifications 

necessary to ensure the bridge would comport with the contract terms and 

specifications for use. Those specifications included, for example, discussing 

the “blow counts” for bridge piles—an indication of how deep the piles 

would sink and how stable the bridge would ultimately be—and pointing out 

damage to precast materials that would need to be repaired to ensure the 

bridge’s safety. ROA.326–28.

But these communications do not rise to the level of “directive 

control” outlined in our precedents. In Baker, for example, a railroad 

supervisor communicated directly with the contracted workers, directing 

“the details of the job performed by the individual workmen, including the 

precise point where the mixture should be pumped, when they should move 

to the next point, and the consistency of the mixture.” 359 U.S. at 228–29

(emphasis added). And in Lindsey, the plaintiff submitted evidence that 

railroad employees gave “specific orders and instructions” to the contractor 

crews. 775 F.2d at 1324.

Here, no ICRC employee ever supervised Hanley’s individual work. 

See Wheeler, 6 F.4th at 631 (“Wheeler identifies no instance in which a 

[railroad] employee instructed him to do something.”). Instead, the upperlevel communications sought simply to ensure “the bridge was being 

constructed per the specifications provided,” ROA.375, not to supervise the 

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individual laborers’ tasks. That is not enough to establish a “master-servant 

relationship,” Kelley, 419 U.S. at 323, or “significant supervisory control,” 

Wheeler, 6 F.4th at 631.

Altogether, it is clear ICRC “personnel did not, in fact, supervise 

[Hanley’s] work.” See id. Instead, ICRC’s “control” over Hanley amounted 

to a general concern for worker safety, communications ensuring everyone 

on the site was aware of the day’s potential hazards, and supervisor-tosupervisor communication concerning the quality of the finished product. 

None of these facts raises a genuine dispute that ICRC had “control of the 

employee or the right to control the employee.” Id. at 630; see also Baker, 359 

U.S. at 228–29 (relying on “directive control”). Without a showing of 

railroad employment, Hanley cannot bring a FELA claim.

AFFIRMED.

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