Thomas F. Kuduk, Plaintiff-Appellant
BNSF Railway Company, Defendant-Appellee
Submitted: June 12, 2014.
Appeal from United States District Court for the District of Minnesota - Minneapolis.
For Thomas F. Kuduk, Plaintiff - Appellant: Christopher W. Bowman, YAEGER & JUNGBAUER, Saint Paul, MN; Louis E. Jungbauer, YAEGER & JUNGBAUER, Minneapolis, MN.
For BNSF Railway Company, Defendant - Appellee: Bruce Jay Douglas, OGLETREE & DEAKINS, Minneapolis, MN.
Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.
LOKEN, Circuit Judge.
The Federal Rail Safety Act (" FRSA" ) prohibits rail carriers from retaliating against employees who engage in safety-related protected activities. 49 U.S.C. § 20109(a). Brakeman Thomas Kuduk, a long-time employee of BNSF Railway Co. (" BNSF" ), commenced this action alleging that BNSF violated this anti-retaliation mandate when it terminated him in September 2010. He now appeals the district court's grant of summary judgment dismissing his FRSA claim. Reviewing the court's decision de novo and the facts in the light most favorable to Kuduk, we affirm.
After a long history of good work performance, Kuduk committed a Level S (Serious) safety violation in December 2009. He accepted responsibility for causing a car to derail and agreed to discipline consisting of a 30-day record suspension and one year of probation. The Investigation Waiver provided that " [a]ny rules violation during this probation period could result in further disciplinary action." BNSF's Policy for Employee Performance Accountability provided that " Dismiss[i]ble Violations" include two serious rule violations within a twelve-month review period for an employee with a good safety and discipline record.
On June 9, 2010, two supervisors, Trainmaster Greg Jaeb and Larry Mattison, observed Kuduk walking between the rails of Track 190 near Hinckley, Minnesota. Walking between the rails, or " fouling the tracks" as it is called in the industry, is permitted only in limited situations. BNSF's Train Yard & Engine Safety Rules, echoing the requirements of 49 C.F.R. § 214.313(b)-(c), instruct: " Do not walk between rails or foul the track, except when duties require and proper protection is provided." Violating this rule is a well-recognized serious safety violation. BNSF designates it one of the " Eight Deadly Decisions" and a Level S violation.
Mattison and Jaeb reported the violation, and an investigation ensued, with the union representing Kuduk. After Kuduk rejected a negotiated settlement, a formal hearing before the Superintendent of Operating Practices for the Twin Cities Division took place on September 8, 2010. Kuduk testified that he was walking between the rails to retrieve and re-attach a rear end device, a task included in his job duties as a brakeman. He contended that he was required to walk on the track because the Training Coordinator's Manual required him to " always take the safe course" and walking on the ballast alongside the track was unsafe due to uneven terrain. He argued his movements were protected because he lined nearby tracks and applied handbrakes to train cars in the vicinity. Jaeb and Mattison testified that they did not see Kuduk performing any work duty, and that he complained about walking conditions on the ballast, apologized for walking on the track, and asked for leniency.
The hearing transcript and exhibits were provided to Richard Ebel, General Manager of BNSF's Twin Cities Division. Ebel reviewed the evidence and Kuduk's personnel record, including the December 2009 S-Level violation, and determined that dismissal was appropriate after consulting with Jim Hurlburt from BNSF labor relations. The discharge was approved by regional vice president Sanford Sexhus. Kuduk was dismissed on September 17. After the discharge, the union and BNSF continued negotiations, eventually agreeing that Kuduk would be " ...