Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Neylon v. BNSF Railway Co.

United States District Court, D. Nebraska

September 4, 2019

JEFFREY NEYLON, Plaintiff,
v.
BNSF RAILWAY CO., Defendant.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF, SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Jeffrey Neylon brings this lawsuit under 49 U.S.C. § 20109 of the Federal Railroad Safety Act (“FRSA”) which, among other things, prohibits railroads from discriminating against, suspending, or discharging an employee for notifying or attempting to notify the railroad about a work-related illness or injury. Neylon alleges that his former employer, Defendant BNSF, terminated his employment for engaging in protected activity under 49 U.S.C. § 20109(a)(4)-that is, reporting to BNSF an ankle injury that he speculated occurred while climbing onto a train in the course of his employment as a BNSF conductor 17 months earlier. (Filing No. 1 at CM/ECF pp. 2-3, 5.) Neylon requests reinstatement, expungement of any BNSF record of misconduct, compensatory and punitive damages, and costs. (Filing No. 1 at CM/ECF p. 6.)

         I. PROCEDURAL BACKGROUND

         This court previously granted Defendant BNSF's Motion for Summary Judgment (Filing No. 83) on Neylon's section 20109(c)(2) medical-treatment claim and dismissed such claim as abandoned due to Neylon's failure to address any of BNSF's arguments regarding section 20109(c)(2). After a discovery dispute arose regarding evidence submitted on the Motion for Summary Judgment as to Neylon's section 20109(a)(4) injury-reporting claim, giving rise to a Motion for Sanctions, this court denied BNSF's Motion for Summary Judgment on the section 20109(a)(4) claim without prejudice to reassertion following the Magistrate Judge's ruling on Neylon's Motion for Sanctions.[1]

         After the Magistrate Judge denied the Motion for Sanctions and gave Neylon time to file a motion to reopen discovery (Filing No. 117) (which Neylon declined to do), BNSF filed a Motion to Reassert and Submit Defendant's Motion for Summary Judgment (Filing No. 118) seeking to reactivate BNSF's prior Motion for Summary Judgment (Filing No. 83) along with its accompanying briefs and evidence. In response, Neylon filed additional evidence (Filing Nos. 120, 121). The court granted BNSF's Motion to Reassert and Submit Defendant's Motion for Summary Judgment and characterized it as a pending Motion for Summary Judgment on Neylon's 49 U.S.C. § 20109(a)(4) injury-reporting claim, which is now ripe for resolution.

         II. FACTUAL BACKGROUND

         Distilled from the parties' briefs and the evidence cited therein are the following undisputed material facts:

         Injury-Reporting Regulations, Policies, and Rules

         1. The Federal Railroad Administration (“FRA”) has enacted regulations requiring railroads to report injuries. See 49 C.F.R. Part 225.

         2. As mandated by the FRA, Defendant BNSF has an Internal Control Plan “to assure the complete and accurate reporting of all accidents, incidents and occupational illnesses arising from the operation of BNSF Railway Company, in full compliance with the letter and spirit of FRA's accident reporting regulations.” (Filing No. 85-7 at CM/ECF p. 1.)

         3. The Internal Control Plan provides for discipline, up to dismissal, for any BNSF management employee who engages in “harassment or intimidation of any person that is calculated to discourage or prevent such person from receiving proper medical treatment or from reporting such accident, incident, injury or illness.” (Filing No. 85-7 at CM/ECF p. 2.)[2]

         4. The Internal Control Plan also states that “BNSF Safety Rules require timely reporting of all injuries and incidents.” (Filing No. 85-7 at CM/ECF p. 5.)

         5. BNSF also has an Injury Reporting Policy that requires management employees to accept all injury reports, whether they are verbal or written, and to report all injuries, even where no medical treatment is required. (Filing No. 85-8 at CM/ECF p. 1.)

         6. For non-acute injuries, the Injury Reporting Policy provides that employees have up to 72 hours to report “muscular aches and pains from ‘routine' work that do not appear to be serious when they first occur . . . .” (Filing No. 85-8 at CM/ECF p. 2.)[3]

         7. BNSF has multiple company rules that require employees to timely report work-related injuries, including the General Code of Operating Rules (“GCOR”) 1.1.3 (employees must “[r]eport by the first means of communication any . . . personal injuries . . . .”); 1.2.5 (“All cases of personal injury, while on duty or on company property, must be immediately reported to the proper manager and the prescribed form completed.”); and 1.2.7 (“Employees must not withhold information, or fail to give all the facts to those authorized to receive information regarding . . . personal injuries . . . .”). (Filing No. 85-24; Filing No. 85-27 at CM/ECF p. 1.)

         BNSF's Discipline Policy

         8. BNSF has a progressive discipline policy known as the Policy for Employee Performance Accountability (“PEPA”). (Filing No. 85-10.)[4]

         9. Under the PEPA, rule violations are categorized as Standard Violations, Serious Violations (“Level-S” violations), and Stand-Alone Dismissible Violations. (Filing No. 85-10 at CM/ECF pp. 3-4.)

         10. Under the PEPA, Serious Rule Violations include the following:

Late reporting of accident or injury. Note: Employees will not be disciplined for “late reporting” of muscular-skeletal injuries, as long as the injury is reported within 72 hours of the probable triggering event, the employee notifies the supervisor before seeking medical attention, and the medical attention verifies that the injury was most likely linked to the event specified.

         (Filing No. 85-10 at CM/ECF p. 5.)

         11. Under the PEPA, an employee's first Level-S violation results in a 30-day record suspension and a review period of 36 months. (Filing No. 85-10 at CM/ECF p. 4.)

         12. A second Level-S violation committed within the applicable review period may result in dismissal. (Filing No. 85-10 at CM/ECF p. 4.)

         Neylon's Training, Experience, and Collective Bargaining Agreement

         13. On February 25, 2002, BNSF hired Neylon as a conductor. (Filing No. 85-11 at CM/ECF p. 1.)

         14. Neylon was trained and tested on GCOR rules. (Filing No. 85-13, Dep. Neylon at 66:9-10.)

         15. Neylon understood that BNSF's rules required him to notify his supervisor immediately if he was hurt at work. (Filing No. 85-13, Dep. Neylon at 67:2-12; Filing No. 85-33 at 7:5-20.) Neylon understood that “[i]f I were to have an acute injury on a specific day, a year and a half later that would be a violation of the rules if I did not report it.” (Filing No. 96-4, Dep. Neylon at 172:11-14.) Neylon believes that BNSF “requires you to report acute injuries, ” but not “every ache and pain.” (Id. at 172:20-25.) Neylon does not think BNSF has “ever in any way instructed [him regarding] what constitutes a reportable injury . . . versus an ache and pain that [he does] not need to report.” (Id. at 173:11-15.)

         16. Neylon's employment was governed by a collective bargaining agreement (“CBA”), which provided employees with “a fair and impartial hearing” prior to any discharge, suspension, or other discipline. (Filing No. 85-21.) With regard to the incident at issue, Neylon and his union representative testified they were provided the rights afforded to Neylon under his CBA. (Filing No. 85-13, Dep. Neylon at 119:19-121:1, 122:8-16; Filing Nos. 85-16 to 85-30; Filing No. 85-35, Dep. Trauernicht at 17:1-18:25.)

         17. The CBA ensured that Neylon received timely written notice of the investigation hearing

within a reasonable period of time but not to exceed ten (10) days from the date of occurrence, or where the occurrence is of a nature not immediately known to the employee's supervisor(s), from the time they first have knowledge thereof.

(Filing No. 85-21 (emphasis added).)

         18. In 2005, prior to the injury in question, Neylon reported an off-duty (non-work-related) injury to BNSF and was not disciplined. (Filing No. 85-13, Dep. Neylon at 57:4-59:11.)

         19. Likewise, in 2011 Neylon reported an on-duty (work-related) injury to BNSF and was not disciplined. (Filing No. 85-11 at CM/ECF p. 2; Filing No. 85-13, Dep. Neylon at 59:12-25, 63:13-22.) Neylon testified that a claim agent handling his 2011 injury told Neylon that all injuries “are . . . kept on record and . . . are compounded. And multiple . . . injuries could be subject to punishment.” (Filing No. 96-4, Dep. Neylon at 174:20-175:6.) Neylon understood from the agent's comment that he “could be disciplined” for reporting injuries. (Id. at 175:7-11.)

         20. Prior to the discipline at issue, on September 26, 2014, Neylon signed a waiver of formal investigation for a Level-S violation and received a 30-day record suspension with a three-year review period. (Filing No. 85-11 at CM/ECF p. 2; Filing No. 85-12; Filing No. 85-13, Dep. Neylon at 54:18-55:19, 56:7-57:3.)

         21. Under the PEPA, Neylon was subject to dismissal if he received another Level-S violation before his three-year review period expired on September 26, 2017. (Filing No. 85-10 at CM/ECF p. 4; Filing No. 85-11 at CM/ECF p. 2; Filing No. 85-12.)

         Neylon's Unreported Work Injury, Symptoms, and Treatment

         22. In June 2015, Neylon was working as a hostler in BNSF's yard in Lincoln, Nebraska. (Filing No. 85-13, Dep. Neylon at 95:18-96:12.)

         23. He attempted to step up on a locomotive and felt a pop in his left Achilles. (Filing No. 85-13, Dep. Neylon at 80:17-20, 81:10-82:4, 83:4-8, 91:3-7, 95:18-25, 96:13-24, 106:4-13, 175:22-176:3.)

         24. He immediately felt sharp pain in his left Achilles that caused him to kneel down for five to ten seconds. (Filing No. 85-13, Dep. Neylon at 80:20-21, 82:5-22.) Neylon testified that the pain lasted less than a minute, after which he was able to finish his shift. (Filing No. 96-4, Dep. Neylon at 96:23-97:1.)

         25. Despite the immediate pain, Neylon did not report his left Achilles injury to a BNSF supervisor in June 2015 because he “didn't think anything was wrong.” (Filing No. 96-4, Dep. Neylon at 97:19-21.)

         26. By the fall of 2015, Neylon was having intermittent pain, soreness, and tightness in his left Achilles, but “it would go away.” (Filing No. 85-13, Dep. Neylon at 79:16-25, 85:19-24, 97:22-99:1, 101:12-15.)

         27. On November 18, 2015, Neylon saw his primary-care physician, Dr. Sabrina Cerny, for back pain. During the visit, he reported a “previous injury of R [right] achilles and pain in L [left] achilles.” (Filing No. 86-1 at CM/ECF p. 4; Filing No. 85-13, Dep. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.