Dafoe v. BNSF Ry. Co.

164 F.Supp.3d 1101

Chad Dafoe, Plaintiff,

v.BNSF Railway Company, Defendant.

Civil No. 14-239 (JRT/TNL)

United States District Court, D. Minnesota.

Signed February 26, 2016

Michael F. Tello and Michael P. McReynolds, TELLO LAW FIRM, 2150 Third Avenue North, Suite 10, Anoka, MN 55303, for plaintiff.

Joanne R. Bush and William R. Taylor, JONES DAY, 717 Texas Avenue, Suite 3300, Houston, TX 77002, and Lee A. Miller and Sally J. Ferguson, ARTHUR, CHAPMAN, KETTERING, SMETAK & PIKALA, PA, 81 South Ninth Street, Suite 500, Minneapolis, MN 55402, for defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, Chief Judge, United States District Court

Plaintiff Chad Dafoe, a train conductor, brings this lawsuit against his former employer, Defendant BNSF Railway Company (“BNSF”), alleging that BNSF violated anti-retaliation provisions of the Federal Railroad Safety Act (“FRSA”) by firing him for engaging in protected activity, including making safety complaints, reporting personal injuries, and being involved in a co-worker's FRSA case. BNSF now moves for summary judgment. BNSF also moves to exclude expert testimony from Dafoe's expert, Paul Byrnes. Because there is no genuine issue of material fact as to whether Dafoe's protected activity was a contributing factor in his dismissal, or, alternatively, because BNSF has shown by clear and convincing evidence that it would have fired Dafoe even in absence of his protected activity, the Court will grant BNSF's motion for summary judgment. The Court will also deny as moot BNSF's motion to exclude the expert testimony of Paul Byrnes.

BACKGROUND

BNSF operates a freight railroad in parts of the United States and Canada, including in Minnesota. Dafoe worked for BNSF for over fifteen years, from May 9, 1994, until he was terminated on September 26, 2011, purportedly for committing three “serious” rule violations. At the time of his termination, Dafoe was a train conductor working out of BNSF's yard in Willmar, Minnesota. The Willmar yard is a part of BNSF's Twin Cities Division.

I. BNSF DISCIPLINARY PROCEDURES

Dafoe is a member of the United Transportation Union (“UTU”), which has a collective bargaining agreement (“CBA”) with BNSF. Pursuant to the CBA, BNSF is required to follow a series of procedures before it may discipline a conductor, such as Dafoe, for rule violations. (Decl. of Gina Hall-Lopez (“Hall-Lopez Decl.”), Ex. F, Aug. 1, 2015, Docket No. 63.) First, if BNSF believes that a conductor has violated a rule, it must provide the conductor with a written notice of investigation explaining the allegations. (Id. at 3.) Then, BNSF must conduct a “full and impartial investigation,” unless the conductor waives his or her right to an investigation, in which case BNSF may impose discipline immediately. (Id. ) The investigation itself is an adversarial proceeding presided over by a BNSF investigating officer. (Id. ) At the investigation, the conductor may be represented by a fellow employee, offer witnesses and evidence, and question witnesses presented by BNSF. (Id. ) After the investigation is completed, a BNSF investigating officer must issue a decision either exonerating the conductor or finding that the conductor is responsible for the alleged misconduct. (Id. at 4-5.) The conductor has a right to appeal the result. (Id. at 4.) If the conductor is found responsible for the misconduct, BNSF may impose discipline. (Id. at 3-4.) Discipline is imposed pursuant to BNSF's Policy for Employee Performance Accountability, otherwise known as PEPA. (Hall-Lopez Decl., Ex. G (“PEPA”).) An employee who is found to have committed a serious rule violation will receive a 30-day record suspension and, in general, a 36-month review, or probationary, period. (Id. at 4.) If the employee commits a second serious rule violation within the review period, he or she may be fired. (Id. ) BNSF may also fire an employee for “stand alone” dismissible conduct, which includes committing two serious rule violations during the same tour of duty. (Id. at 4, 6.) Before an employee may be fired, however, BNSF's senior management must review the decision. (Id. at 4.)

II. ALLEGED SERIOUS RULE VIOLATIONS

Pursuant to the above-described disciplinary framework, BNSF determined that Dafoe committed three serious rule violations. The facts underlying these alleged violations, as well as Dafoe's subsequent termination, are as follows.

On August 20, 2011, Dafoe was the conductor on a train traveling from BNSF's Northtown yard to its Willmar yard. (Decl. of Joanne R. Bush (“Bush Decl.”), Ex. S (“Dafoe Dep. 1”) at 202:10-20 Aug. 1, 2015, Docket No. 64.) Also on the train were engineer James Layman and engineer pilot Corey Spencer. As the train was leaving the Northtown yard, Dafoe received a radio communication from David Dodds, a carman in the Northtown yard. (Id. at 204:1-23.) Dodds' duties as carman included performing a visual roll-by inspection of Dafoe's outgoing train for potential problems. (Id. at 204:8-23; Bush Decl., Ex. U (“Canchola Dep.”) at 29:7-14.) Dodds informed Dafoe over the radio that the angle cock on the train appeared to be “slightly turned” and advised him that “maybe you could take a look at it if you stop.” (Dafoe Dep. 1 at 204:9-14.) BNSF regulations expressly prohibit operating a train with a slightly closed angle cock; such conduct constitutes a serious rule violation under PEPA. (See Hall-Lopez, Exs. A, H; PEPA at 5.)

Despite receiving this radio notice from Dodds, Dafoe did not stop the train to investigate. (Dafoe Dep. 1 at 214:1-14.) When the train made a scheduled stop in Atwater, Minnesota, Dafoe again did not investigate or close the angle cock. (Id. ) The train subsequently completed its trip to the Willmar yard. At some point in the next few days, Dafoe voluntarily informed two of his superiors that he had failed to stop and check the angle cock after being notified by carman Dodds that it might be slightly closed. (Id. at 220:1-17; Bush Decl., Ex. W at 36:2-23.) As a result of this disclosure, BNSF issued notices of investigation on August 25, 2011, to Dafoe, Layman, and Spencer. (Hall-Lopez Decl., Ex. E.) Notably, BNSF did not issue a notice of investigation to carman Dodds. Layman and Spencer were later exonerated after BNSF determined that they were not privy to Dodds' radio communication. (See Hall-Lopez Decl., Ex. I.)

Also on August 20, 2011, BNSF's Twin Cities Division commenced a random safety audit of various trains, including Dafoe's train. (Bush Decl., Ex. T (“Lund Dep. 1”) at 40:19-22; 68:9-14.) Although such audits occur semi-regularly, this one was in response to several serious safety violations that had occurred recently in Sioux City, Iowa. (Id. at 39:3-14, 44:21-45:4.) One of the individuals involved in the audit was Michael Lund, the Superintendent of Operating Practices for the Twin Cities Division. (Id. at 29:8-14.) Lund reviewed “event recorder data” and radio transmissions from Dafoe's train and concluded that Dafoe and Layman committed two serious rule violations under PEPA. (Bush Decl., Ex. V at 3; Hall-Lopez Decl., Ex. J; PEPA at 5.) First, Lund concluded that Dafoe and Layman improperly bottled air in the braking system after the train arrived in the Willmar yard. (Bush Decl., Ex. V at 3.) Second, Lund concluded that Dafoe walked in between train equipment in the Willmar yard without following required safety procedures. (Id. ) On August 23, 2011, BNSF issued notices of investigation for both incidents to Dafoe and Layman. (Hall-Lopez Decl., Ex. B.)

On September 12, 2011, Dafoe signed a waiver accepting responsibility for the angle cock violation. (Id. , Ex. H.) The formal investigation for that incident was cancelled, Dafoe accepted a serious rule violation under PEPA, and he was given a 30-day record suspension and a 3-year review period. (Id. )

On September 13, 2011, BNSF held a formal investigation for the remaining two alleged serious rule violations—bottling air and walking in between train equipment without following required safety procedures. John Wright, a Superintendent of Operations at BNSF, presided over the investigation. (Id. , Ex. D (“Investigation Tr.”) at 1-2; Id. , Ex. L (“Dismissal Letter”).) William Fry, a fellow BNSF employee and UTU member, represented Dafoe. (Investigation Tr. at 2:11-12.) Various individuals gave testimony. Jake Demarais, a road foreman, testified on behalf of BNSF. Dafoe, Layman, and Spencer testified on behalf of Dafoe. (Id. at 1.) Dafoe also had the opportunity to question Demarais and present evidence.

Thomas Albanese, General Manager of the Twin Cities Division, had final authority to determine whether Dafoe committed the serious rule violations; Albanese was also responsible for recommending the appropriate discipline.¹ (Bush Decl., Ex. X (“Albanese Dep.”) at 92:1-11.) After reviewing the investigation transcript, exhibits, event recorder data, and radio transmissions, and receiving input from Lund, Albanese ultimately concluded that Dafoe committed both serious rule violations and recommended dismissal. (Id. at 36:24-37:20, 49:16-22, 74:16-22, 92:1-24, 107:3-9; Dismissal Letter.) Andrea Smith, Director of Labor Relations for BNSF, reviewed Albanese's decision and concurred with his recommendation. (Bush Decl., Ex. II (“Smith Dep.”) at 59:7-9; id. , Ex. JJ at 2-3.) Dafoe was terminated effective September 26, 2011. (Dismissal Letter.) BNSF also terminated Dafoe's crewmate, engineer James Layman, on the ground that he shared culpability with Dafoe for bottling air. (Hall-Lopez Decl., Ex. K.)

Dafoe filed two separate appeals pursuant to the CBA, but both were denied. (Id. , Exs. M, N.) Dafoe then submitted a claim to the Public Law Board (“PLB”), a three-person panel organized pursuant to the Federal Railway Law Act. (Id. , Ex. O.) The PLB panel consisted of a BNSF representative, a union representative, and a neutral third party. (Id. at 3.) The PLB, by a vote of two to one,...