United States District Court, D. Nebraska
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
The plaintiff in this case, Kelly Heim, alleges that the defendant, BNSF Railway Company, discriminated against him in violation of the Federal Railroad Safety Act ("FRSA"), 29 U.S.C. § 20101 et seq., by disciplining him for reporting his work-related injury. Heim and BNSF have cross-moved for summary judgment. For the reasons that follow, Heim's motion for partial summary judgment (filing 73) will be denied and BNSF's motion for summary judgment (filing 97) will be granted.
At the time of the injury Heim was a laborer on a BNSF crew working in the general vicinity of Douglas, Wyoming. Filing 95-2 at 16. The project Heim was working on was "rail seat abrasion, " which involves replacing the material underneath the rail: the pads, insulators, and clips. Filing 76-1 at 4. The rail is removed, the worn material is replaced, and then the rail is put back into place. Filing 76-1 at 4. This requires de-clipping the rail from the bed and swinging the rail into the middle of the track. Filing 76-3 at 2. But while the rail is detached from the rail bed, it is still under tension from either direction, and can jump or roll unpredictably. Filing 76-1 at 4. And the rail had been rolling frequently on the day of the accident, because the crew was working on a sharp curve. Filing 76-2 at 24.
Heim's responsibility that day was to pick up metal and other scraps along the track. Filing 76-3 at 2. Heim was collecting material about 600 feet from the end of the project. Filing 76-3 at 2. He saw a clip in the middle of the track on the high side of the detached rail, between the detached rail and the still-affixed rail. Filing 76-3 at 2. He looked to see how close the nearest machines were, and thought it was safe to step over the rail to collect the stray clip. Filing 76-3 at 2. But when he did, the detached rail jumped and landed on top of his left foot, injuring his foot and pinning him in place. Filing 76-3 at 2.
Heim got the attention of a co-worker who summoned assistance, but it took about 30 minutes to finally lift the rail enough to free Heim's foot. Filing 76-3 at 3. Heim was transported to the hospital by his supervisor in a company pickup truck. Filing 76-3 at 3. Heim had fractured bones in his foot. Filing 76-3 at 3. While he was in the hospital, Heim completed a BNSF injury report form (filing 76-4) regarding the incident and his broken bones, although the parties dispute the circumstances under which Heim filled out the form. (Heim says he filled out the form unwillingly, under pressure and with coaching from his supervisor; his supervisor denies pressuring him and claims that Heim said he was all right to fill out the form. Compare filing 76-3 at 4 with filing 95-4 at 3-4.)
Just over a week later BNSF sent Heim a letter (filing 76-1) notifying him of an investigation into Heim's "alleged failure to comply with instructions given at the morning briefing" and "failure to be alert & attentive" when he placed his foot "in harms [sic] way between the loose rail and fixed rail resulting in injury to [his] left foot when the rail rolled...." Filing 76-1 at 2. At the hearing, Heim's supervisor said that "as a rule we don't scrap between a loose rail and a fixed rail." Filing 76-2 at 14. Instead, Heim should have been collecting material from the low side of the detached rail. Filing 76-2 at 14. Heim's supervisor also said that "tipping rail" had been discussed several times at the morning job briefings. Filing 76-2 at 16-17.
Heim was eventually found to have violated safety rules generally requiring employees to take a safe course, be alert and attentive to avoid injury, and be alert to walkway conditions. Filing 76-8; filing 76-10; filing 76-11. Heim was assessed a "Level S 30 Day Record Suspension" and an associated one-year review period, during which another violation could have had more serious consequences. Filing 76-8; filing 76-9 at 4. But a "record suspension" is recorded on an employee's personal record, not actually served. Filing 76-9 at 4. Heim completed the review period without incident, and his pay and benefits were unaffected. Filing 95-2 at 31.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751 (8th Cir. 2011). The mere existence of a scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
The purpose of the FRSA is to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101; see CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 661-62 (1993). As relevant, the FRSA provides that a railroad "may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee" if that discrimination is based on the employee's attempt "to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a workrelated personal injury or work-related illness of an employee." 49 U.S.C. § 20109(a)(4). FRSA's implementing regulations further provide that to "discriminate" against an employee includes, but is not limited to, "intimidating, threatening, restraining, coercing, blacklisting, or disciplining an employee." 29 C.F.R. § 1982.102(b)(1)(iv). An employee may obtain de novo review of a retaliation claim in federal court after exhausting administrative remedies. 49 U.S.C. § 20109(d)(3).
Heim's prima facie case requires him to show (i) he engaged in a protected activity; (ii) the defendant knew or suspected, actually or constructively, that he engaged in the protected activity; (iii) he suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action. Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014) (citing 49 U.S.C. § 42121(b)(2)(B)(i); 29 C.F.R. § 1982.104(e)(2)). If he makes this showing, BNSF is nonetheless not liable if it demonstrates, by clear and convincing evidence, ...