Johnston v. BNSF Ry. Co.

Jason Johnston, Plaintiff, v. BNSF Railway Company, Defendant.

Civ. No. 15-3685 (RHK/SER)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

June 30, 2017

MEMORANDUM OPINION AND ORDER

Jon M. Moyers, Moyers Law, PC, Billings, Montana, Kathryn Kohn Troldahl, Kohn Law, PA, Minneapolis, Minnesota, for Plaintiff.

Timothy R. Thornton, Tara Reese Duginske, Briggs and Morgan, PA, Minneapolis, Minnesota, for Defendant.

INTRODUCTION

Plaintiff Jason Johnston alleges in this action that the negligence of his former employer, Defendant BNSF Railway Company ("BNSF"), caused him injuries, in violation of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., and that BNSF terminated him in retaliation for making safety and personal-injury reports, in violation of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20109. Presently before the Court are the parties' cross-Motions for Partial Summary Judgment. For the reasons that follow, the Court will grant BNSF's Motion and grant in part and deny in part Johnston's Motion.

BACKGROUND

The following facts are undisputed. BNSF operates a railroad spanning 33,000 miles, twenty-eight states, and two Canadian provinces. (Mclaughlin Decl. ¶ 2.) Its Maintenance of Way ("MOW") Department preserves the integrity of its railroad tracks and related structures. (Id. ¶ 4.) Johnston began working for BNSF in 1997 and, at all relevant times, worked in its MOW Department as a track inspector. His duties included investigating reports of track-related defects in BNSF's Appleton Subdivision, part of the Twin Cities South Division. He inspected tracks using a BNSF-owned "hyrail" truck capable of driving on and off railroad tracks.

I. BNSF policies

Several relevant policies governed Johnston's workplace conduct. First, like most BNSF employees, Johnston belonged to a union, the Brotherhood of Maintenance of Way Employees ("BMWE"). A collective bargaining agreement ("CBA") between BNSF and BMWE set forth workplace rules and required BNSF to follow certain procedures prior to disciplining a union employee. (See Duginske Decl. Ex. Q.) It also provided that "[n]o overtime hours will be worked without authority of a superior officer, except in cases of emergency where advance authority is not obtainable." (Id.)

Second, BNSF's Policy for Employee Performance Accountability ("PEPA") provided that "[r]ule compliance is essential to a safe operation, and [BNSF] expect[s] everyone . . . to consistently comply with [its] safety and operating rules." (Id. Ex. R at 2.) It set forth three categories of misconduct—standard, serious ("Level S"), and "stand-alone dismissible" violations—and outlined a progression of discipline for repeatviolations in each category. (Id. at 3-4.) A standard violation is one "which does not subject an employee or others to potentially serious injury or fatality," whereas a Level S violation includes, among other things, any "[v]iolation of any work procedure that is designed to protect employees, the public and/or others from potentially serious" injury or fatality. (Id. at 5.) Stand-alone dismissible violations, as the label suggests, may "result in immediate dismissal." (Id. at 6.) "Dishonesty about any job-related subject" is one such stand-alone dismissible violation. (Id.)

Finally, BNSF promulgated Maintenance of Way Operating Rules ("MWOR") for track inspectors such as Johnston. (See id. Ex. Z.) The MWOR required Johnston to obtain pre-approval from central train dispatch prior to occupying railroad tracks ("fouling the tracks") to ensure it was safe for him to do so. The "lone worker rule" is an exception—a lone worker may foul the tracks absent preapproval when, among other things, the "lone worker is able to visually detect the approach of a train . . . and position themselves [sic] in a predetermined place of safety at least 15 seconds prior to the arrival of the train." (Id. at 7.)

II. Events giving rise to this case

A. Safety ladder complaint

On October 12, 2012, track inspector Timothy Even lodged a safety complaint with BNSF regarding his hyrail truck. (Kohn Aff. Ex. D.) Specifically, he reported that its tailgate was forty-eight inches off the ground when parked on railroad tracks. At this height, in his view, he lacked a safe method of entering and exiting the rear of the truck. (Id.) Though Johnston's hyrail truck was not identified in Even's report, Johnstonrecalled raising the same issue at "numerous safety meetings" during the fall of 2012. (Johnston Dep. 10-11.) He complained to his direct supervisor, Roadmaster Larry Sanders, that BNSF needed to install safety ladders on hyrail trucks to remedy the issue. (Id.) Sanders obtained one ladder, directed Even to install it on his truck, and considered the complaint resolved. (Sanders Dep. 74.) Then, "some of the guys [saw] the steps that came in and asked if they could get one," so Sanders "went ahead and just ordered [them] all steps." (Id. 76; see also Kohn Aff. Ex. I (ladder receipts dated late 2012 and early 2013).) Sanders testified in his deposition that, when the ladders arrived, he directed Johnston to "come and pick [a ladder] up and get it installed." (Sanders Dep. 83.) In contrast, Johnston testified that no one advised him a ladder was available or approved its installation on his truck. (Johnston Dep. 16, 113-14.) It is undisputed, however, that Johnston never had a ladder installed on his truck.

B. Johnston's probation

On March 13, 2013, BNSF cited Johnston for failing to wear his seatbelt while operating his hyrail truck, a Level S violation. (Duginske Decl. Ex. Y.) Johnston took responsibility for the violation and waived his CBA-afforded right to a hearing. (Id.) As a consequence, in April 2013, he incurred a "30 Day Record Suspension" and one year of probation, as contemplated by the PEPA. (Id.; see also id. Ex. R; Johnston Dep. 21.) Under such circumstances, the PEPA warned that "[a] second [Level S] violation committed within the applicable review period may result in dismissal." (Duginske Decl. Ex. R at 4.)

C. Federal Railroad Administration complaint

Two months later, on May 14, the BMWE lodged a complaint against BNSF with the Federal Railroad Administration ("FRA") based on safety concerns reported by Johnston. (Id. Ex. VV.) Johnston had approached BMWE Vice Chairman John Mozinski with concerns that Sanders was clearing track defects from BNSF's database when they had not in fact been remedied. (Mozinski Dep. 18.) Based on information Johnston provided (but without mentioning Johnston), Mozinski wrote a letter to the FRA outlining the concerns. (Id.; Duginske Decl. Ex. VV.) It prompted an investigation, which found:

[BNSF's] inspection records were in order according to [federal standards]. However, three locations inspected contained defects that had been documented as repaired which had not been remedied. As a result, a recommendation for the assessment of civil penalties will be submitted to the FRA Office of Chief Counsel.

(Duginske Decl. Ex. WW.) It is unclear whether BNSF incurred civil penalties (compare Johnston Dep. 37-38 (testifying that BNSF was fined), with Sanders Dep. 56 (denying fines were assessed)), but BNSF verbally reprimanded Sanders and noted "needs improvement" on his performance review because of the FRA's findings (T. Smith Dep. 131-32).

The FRA later performed a follow-up inspection and identified additional track defects at BNSF's Milbank yard (a location in Johnston's territory). The FRA required BNSF to repair the defects within thirty days. (Johnston Dep. 89, 95.) Johnston e-mailed Sanders daily to remind him of the defects but, thirty days later, no one had completed the repairs. (Id. 96.) As a result, Johnston decided to "pull the yard out of service" onJuly 19.¹ (Id.) Johnston testified in his deposition that Roadmaster Joshua Fluck (who was supervising him at the time) called and said his "ass would be grass" after he made this decision. (Id. 36.)

D. Johnston's purported misconduct and verbal injury report

In the morning on August 5, 2013, the MOW Department called Fluck (who was again supervising Johnston) with a report of "rough tracks." (Fluck Dep. 55-59.) Fluck sent Johnston to the location to inspect the tracks and take any necessary safety precautions. (Id. 59; Johnston Dep. 115.) Johnston responded to the location, took measurements, and "slow ordered" the tracks to ten miles per hour. (Duginske Decl. Ex. AA.) After completing this work, he proceeded to inspect other tracks in his territory and reported these hours as overtime. (Id. Ex. GG at 10, 14.)

Later that morning, Fluck participated in a conference call with Division Engineer Tom Smith and Sanders (who had returned). Fluck informed Smith and Sanders of the rough-track call and Johnston's response. (T. Smith Dep. 42-43.) Smith asked Fluck whether Johnston had completed "track notes," a form upon which train inspectors document track measurements. (Id.) According to Smith, "Johnston knew . . . that was an expectation and a requirement," but it was "quite a while before" he received Johnston's track notes for the morning of August 5. (Id. 45-46.)

While investigating whether Johnston had turned in his track notes, Fluck found no record of Johnston obtaining preapproval to "foul the tracks" at the location of the rough-track report. (Id. 46.) This led Smith to conclude that the section of rough trackseither "wasn't inspected or . . . wasn't inspected . . . safely." (Id.) He decided to initiate an investigation as provided by the CBA. (Id. 54.) He drafted a letter informing Johnston of the investigation to determine whether he had "fail[ed] to properly obtain authority before occupying or fouling the main track when [he] responded to a rough track service interruption . . . on August 5, 2013." (Duginske Decl. Ex. BB.) The letter also stated that Johnston was "being withheld from service pending results of investigation." (Id.) Smith directed Sanders to hand-deliver this letter to...