PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1035

WILLIAM M. CONRAD,

Plaintiff - Appellant,

v.

CSX TRANSPORTATION, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. William M. Nickerson, Senior District 

Judge. (1:13−cv−03730−WMN)

Argued: January 27, 2016 Decided: May 25, 2016

Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by published opinion. Senior Judge Davis wrote the 

opinion, in which Judge Niemeyer and Judge Floyd joined. 

ARGUED: Lawrence A. Katz, COFFEY KAYE MYERS & OLLEY, Bala 

Cynwyd, Pennsylvania, for Appellant. Jacqueline Marie Holmes, 

JONES DAY, Washington, D.C., for Appellee. ON BRIEF: Thomas R. 

Chiavetta, Emily J. Kennedy, JONES DAY, Washington, D.C., for 

Appellee.
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DAVIS, Senior Circuit Judge:

Appellee CSX Transportation, Inc. charged one of its 

employees, Appellant William M. Conrad, with “serious”

violations of the company’s safety policy. Alleging he was 

disciplined in retaliation for his activities as local chairman 

of the transportation union, Conrad sued in federal district 

court under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. 

§ 20109. The district court granted summary judgment in favor 

of CSX, concluding that Conrad had failed to show that any CSX 

employee involved in the disciplinary process had also known

about his union activities. Conrad v. CSX Transp., Inc., No. 

WMN-13-3730, 2014 WL 7184747, at *5 (D. Md. Dec. 15, 2014).

On appeal, Conrad argues that knowledge of an employee’s

protected activities may be imputed to the decision-makers if 

any supervisory employee at the company knew of the subordinate 

employee’s protected activity when the decision-maker took the 

unfavorable personnel action, regardless of whether the person

with knowledge played a role in the disciplinary process. We 

disagree and therefore affirm the judgment.

I.

Conrad has worked at CSX, an international transportation 

company, as a freight train conductor out of Cumberland, 

Maryland, since 2003. From 2009 to 2012, he served as local 

chairman of the United Transportation Union Local 340, during 
3

which time he defended his union members against disciplinary 

actions and ensured that CSX complied with all safety policies. 

Conrad’s tenure in that role gave rise to the two events at 

issue here, referred to by the parties as the “Deineen Incident” 

and the “Demmler Yard Incident.”

The Deineen Incident involved local union member James 

Deineen and preceded Conrad’s first disciplinary charge. In 

January 2011, Deineen, a conductor, was injured while applying a 

handbrake at Cumberland Yard. Deineen reported his accident and 

left work for the day. CSX supervisors, however, instructed 

Deineen to return to the yard to recreate the accident. 

Deineen, having suffered an injury and having worked 13 hours 

already, contacted Conrad to discuss CSX’s request. Believing 

Deineen was due a rest period under the Hours of Service Act, 49 

U.S.C. § 21101 et seq., Conrad advised Deineen that he did not 

need to return to work. Conrad informed Trainmaster Ron Baer of 

his intent to report the alleged Hours of Service Act violation, 

and indeed made the report to Michel Bull, a Federal Railroad 

Administration representative.

Less than a month later, on February 9, 2011, Cumberland 

Terminal Superintendent Ray Morriss, Assistant Terminal 

Superintendent Keith Stafford, and Trainmaster Eric Koelker 

accompanied a new trainmaster, Mike Drummond, to an area west of 

Cumberland for training. While there, they observed Conrad stop 
4

his train at a bow-handled switch and, before checking the 

switch, operate the switch with one hand—a violation of CSX’s 

safety policy. Later that day, CSX charged Conrad with a 

“serious offense” for the rule violation. J.A. 216. Following 

the disciplinary charge, Conrad opted to take a “time out,” id., 

avoiding formal disciplinary procedures by submitting to a 

meeting with a CSX manager and a union representative.

Some six months later, the Demmler Yard Incident occurred. 

In August 2011, CSX Conductors Scott Sechler and Christopher 

Hose were operating a train that had run out of fuel near 

Demmler Yard, a railroad yard in western Pennsylvania. Their 

train blocked the primary artery in and out of the yard, known 

as the “main line,” obstructing the passage of other trains. A 

CSX supervisor ordered Sechler and Hose to switch their 

locomotive with one from Demmler Yard to move the disabled 

train, but Sechler refused to switch locomotives.

The conditions at Demmler Yard made it difficult to operate 

trains in the area, so CSX and the United Transportation Union

had settled a union safety complaint by mandating that

conductors be qualified before working there. Sechler knew that 

he and Hose were not qualified to enter Demmler Yard. Although

CSX offered to send a qualified employee to help navigate the 

locomotive switch, Sechler persisted and, being a local union 

member, called Conrad for advice. Conrad told Sechler that he 
5

could not enter the yard. And in a subsequent phone call, 

Conrad conveyed to Trainmaster Danielle Renner that he had 

advised Sechler not to enter Demmler Yard.

Later that month, on August 26, 2011, CSX Senior Road 

Foreman of Engines Bill Diamond and Trainmaster Ron Baer saw 

Conrad violate a number of safety procedures in Cumberland Yard. 

Diamond and Baer were in Cumberland Yard for operational 

testing, and, while there, they observed Conrad operate a train

without his radio on, fail to use proper identification in 

conducting a radio check, and fail to use both hands when 

operating a switch. CSX charged Conrad with “serious offense” 

rules violations for that conduct. J.A. 196.

After exhausting his administrative remedies, Conrad filed 

suit against CSX in federal district court, alleging two counts 

of retaliation in violation of the FRSA. CSX moved for summary 

judgment, arguing in part that none of the CSX employees who 

witnessed Conrad’s rule violations and initiated disciplinary 

actions knew about his safety complaints. The district court 

agreed and held that “at least one person involved in the 

adverse employment decision must have knowledge of the protected 

activity.” See Conrad, 2014 WL 7184747, at *4. Concluding that 

“Conrad ha[d] not provided sufficient admissible evidence from 

which a jury could conclude that there was any knowledge of his 

alleged protected activity among any of the individuals involved 
6

in the decision-making process to discipline him,” the district 

court granted summary judgment in favor of CSX. See id. at *4, 

*6. Conrad timely appealed.

II.

A.

We review the district court’s grant of summary judgment de 

novo. Groves v. Commc’n Workers of Am., 815 F.3d 177, 180 (4th 

Cir. 2016) (citation omitted). “Summary judgment is appropriate 

when, viewing the facts in the light most favorable to the 

nonmoving party, there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” 

Id. at 181 (citations and internal quotation marks omitted).

B.

For context, we begin with an overview of the relevant 

statutory framework and the applicable liability standards. 

Congress enacted the FRSA “to promote safety in every area of 

railroad operations and reduce railroad-related accidents and 

incidents.” 49 U.S.C. § 20101. To that end, the FRSA prohibits 

railroads from discriminating against employees who engage in 

certain safety-related activities. See id. § 20109(a). 

Relevant here, the FRSA protects employees from disciplinary 

action for “provid[ing] information . . . regarding any conduct 

which the employee reasonably believes constitutes a violation 

of any Federal law, rule, or regulation relating to railroad 
7

safety.” Id. § 20109(a)(1). The FRSA likewise protects 

employees who “report[], in good faith, a hazardous safety or 

security condition.” Id. § 20109(b)(1)(A).

Like other federal whistleblower statutes, the FRSA is 

governed by the burden-shifting framework set forth in the 

Wendell H. Ford Aviation Investment and Reform Act for the 21st 

Century (“AIR-21”). See id. § 20109(d)(2)(A)(i); see also, 

e.g., 18 U.S.C. § 1514A(b)(2)(C) (Sarbanes-Oxley Act) 

(incorporating the rules and procedures of AIR-21); 42 U.S.C. 

§ 5851(b)(3) (Energy Reorganization Act) (same). Thus, to 

maintain an FRSA retaliation claim past the summary judgment 

stage, a plaintiff must project sufficient admissible evidence 

to establish that: “(1) [the employee] engaged in [a] protected 

activity; (2) the employer knew that [the employee] engaged in 

the protected activity; (3) [the employee] suffered an 

unfavorable personnel action; and (4) the protected activity was 

a contributing factor in the unfavorable action.” Feldman v. 

Law Enf’t Assocs. Corp., 752 F.3d 339, 344 (4th Cir. 2014)

(citation and internal quotation marks omitted). The absence of 

probative evidence as to any single element necessary to 

establish a prima facie claim terminates the action. See Litt 

v. Republic Servs. of S. Nev., ARB Case No. 08-130, 2010 WL 

3448544, at *3 (Dep’t of Labor Aug. 31, 2010). If the employee 

establishes a prima facie claim, then the burden shifts to the 
8

employer to demonstrate “by clear and convincing evidence that 

the employer would have taken the same personnel action in the 

absence of the protected activity.” Feldman, 752 F.3d at 345 

(citation omitted).

C.

The district court granted summary judgment in favor of CSX 

based on the evidentiary insufficiency as to the second prong of 

the AIR-21 prima facie standard. In other words, the district 

court concluded that Conrad could not show that CSX “knew that 

[he had] engaged in the protected activity.” Feldman, 752 F.3d 

at 344 (citation and internal quotation marks omitted); Cf.

Conrad, 2014 WL 7184747, at *4. On appeal, as they did below, 

the parties offer two opposing theories of what constitutes 

knowledge under the FRSA. Conrad argues that he can meet the 

knowledge requirement if any supervisory employee at the company 

knew of his protected activities at the time of the unfavorable 

personnel action. CSX responds that, to the contrary, knowledge 

must be tied to a decision-maker involved in the unfavorable 

action.

Although this Circuit has not previously had occasion to 

address the knowledge sufficient to sustain an FRSA retaliation 

claim, the Administrative Review Board of the U.S. Department of 

Labor (“ARB”) has explained that an employee “must establish 

that the decision-makers who subjected him to the alleged 
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adverse action were aware of the protected activity.” Rudolph 

v. Nat’l R.R. Passenger Corp., ARB Case No. 11-037, 2013 WL 

1385560, at *9 (Dep’t of Labor Mar. 29, 2013); see also Litt, 

2010 WL 3448544, at *3, *5 (concluding, under the Surface 

Transportation Assistance Act, which required a showing by a 

preponderance of the evidence that the employer “was aware of 

the protected activity,” that the employee did not establish a 

prima facie case of retaliation because he failed to show that 

“any of the decision-makers involved in his termination knew 

that he engaged in any protected activity”). Moreover, the ARB 

has added that it is “insufficient” to “demonstrat[e] that an 

employer, as an entity, was aware of the protected activity.” 

Rudolph, 2013 WL 1385560, at *9; see also Kuduk v. BNSF Ry. Co., 

768 F.3d 786, 790-91 (8th Cir. 2014) (a lower-level supervisor’s

knowledge was not sufficient where the “decision-makers had no 

knowledge—actual or constructive—of [the employee’s] protected 

activity”). 

We conclude that the above cited authorities are sound and 

persuasive, and we therefore adopt the same interpretation: The 

“knowledge” relevant for a retaliation claim under the FRSA must

be tied to the decision-maker involved in the unfavorable 

personnel action. As the district court concluded, Conrad has 

failed to show that such knowledge existed here.
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Conrad claims that CSX brought his February 2011 

disciplinary charges in retaliation for his decision to report 

an Hours of Service Act violation in connection with the Deineen 

Incident. He has not marshaled evidence, however, that any of 

the four CSX employees who observed his conduct that month and 

charged him with a violation were aware of his January Hours of 

Service Act complaint. Instead, CSX has produced declarations

from the four employees, all of whom attest that they did not 

know of the complaint or any other safety concerns that Conrad 

may have previously raised. Conrad has produced no evidence to 

dispute their assertions.

Conrad also argues that, because he notified Trainmaster 

Baer that he intended to file an Hours of Service Act complaint, 

CSX had knowledge of his protected activity before it charged 

him with the February 2011 safety violation. This argument 

fails because Conrad has not demonstrated that Baer had any role 

in the February 2011 disciplinary charges. Although Conrad 

argues on appeal that a jury may assume that Baer informed 

Stafford of Conrad’s complaint, Stafford (who did observe

Conrad’s February 2011 safety violation) attested that he had no 

knowledge of the Hours of Service Act complaint. Conrad has not 

produced any evidence to call into question Stafford’s sworn 

statements. To the extent Conrad means to suggest that summary 

judgment should be denied to a moving party on mere speculation 
11

that a jury might arbitrarily disbelieve a fellow employee’s 

testimony, we reject such a suggestion. Accordingly, Conrad has 

failed to generate a genuine dispute of material fact as to the 

knowledge element of his claim arising from the Deineen 

Incident.

Conrad’s retaliation claim related to the Demmler Yard 

Incident fails for the same reason. Diamond and Baer reported 

Conrad’s safety violations in August 2011. But Conrad has not 

marshaled any evidence that Diamond or Baer knew that he had 

instructed Sechler not to enter the Demmler Yard. As we have 

explained, Conrad had the burden to produce such evidence. See

Feldman, 752 F.3d at 344. And Diamond has denied knowing about 

“any specific safety complaints” that “Conrad [had] made during 

his employment with [CSX].”* J.A. 196.

At bottom, Conrad urges us to rely on a series of inference

upon inference, based on the chain of command, to conjure a 

 * Baer had also stated that he “d[id] not recall any 

specific safety complaints” that “Conrad [had] made during his 

employment with [CSX].” J.A. 81. This statement by Baer 

arguably conflicts with Conrad’s testimony that he told Baer 

about his intention to file the Hours of Service Act complaint 

related to the Deineen Incident. See J.A. 378. Nevertheless, 

because Conrad does not argue that his August 2011 disciplinary 

charges arose out of the February Deineen Incident, we regard as 

immaterial, for purposes of CSX’s motion for summary judgment, 

the ostensible conflict in the recollections of Conrad and Baer 

with respect to Baer’s alleged knowledge of the Hours of Service 

Act complaint related to the Deineen Incident.
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scheme among higher-level CSX supervisors who were aware of his 

protected activity and sought to silence his FRSA complaints

because he was “a thorn in [their] side.” Appellant’s Br. 6. 

But Conrad offers no evidence that his protected activity, or 

any animus derived from such activity, was communicated through 

a chain of CSX employees. Such unsupported inferential leaps 

are no adequate substitute for actual evidence. See Litt, 2010 

WL 3448544, at *4 (“Litt’s mere assertions that it can be 

inferred that [the decision-makers] did know he filed the 

complaint are not sufficient to constitute circumstantial 

evidence to establish that Republic was aware of Litt’s . . .

alleged protected activity by a preponderance of the 

evidence.”). 

In sum, because Conrad does not present sufficient evidence 

that the relevant CSX decision-makers knew of his protected 

activities, his claims fail as a matter of law at the prima 

facie stage.

III.

For the reasons set forth, the judgment of the district 

court is

AFFIRMED.