Vasquez v. BNSF Ry. Co.

WILLIAM VASQUEZ, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

CV 18-164-M-DLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

May 29, 2020

ORDER

Before the Court are: (1) Defendant BNSF Railway Company's Motion for Summary Judgment (Doc. 32); (2) Plaintiff William Vasquez's First Motion to Compel Discovery (Doc. 37); (3) BNSF's Motion for Protective Order (Doc. 39); (4) BNSF's Motion in Limine (Doc. 63); (5) BNSF's Motion to Exclude Expert Testimony (Doc. 65); (6) Vasquez's Motion in Limine (Doc. 67); and (7) Vasquez's Motion for Telephone Conference (Doc. 83). Because the Court grants summary judgment in favor of BNSF, the remainder of the motions will be denied as moot.

Vasquez filed this lawsuit on September 19, 2018, alleging that the termination of his employment was unlawful under the Federal Railroad Safety Act ("FRSA"). He claims that he was not terminated for violating BNSF's policies but rather because he made reports of hazardous safety conditions regarding: (1) crew fatigue; (2) BNSF's refusal to engage Positive Train Control ("PTC") on a train he was operating as engineer; and (3) training procedures. The Court concludes that Vasquez did not, in fact, make any safety-related reports and that, even if he did, any such report was not a contributing factor in BNSF's decision to terminate Vasquez's employment.

Thus, there is "no genuine dispute as to any material fact[,] and [BNSF] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court grants BNSF's motion for summary judgment.

BACKGROUND¹

Vasquez began work as an engineer for BNSF in 1995 in Whitefish, Montana. (Doc. 61 at 1-2.) His employment was terminated in early 2017. Because he has since been reinstated, damages are limited to the period of time between January 2017 and November 2019, during which he was not employed by BNSF.

In the summer of 2016, Vasquez signed a "low performance waiver," "acknowledg[ing] acceptance" of "Level S" (for "serious") discipline, whichincluded a 30-day suspension and a three-year probation period. (Docs. 33-7, 61 at 4.) Although the basis for this disciplinary action is not particularly relevant, it appears that Vasquez was disciplined for logging low hours. (Doc. 33-7.) Despite the imposition of a probationary period, Vasquez's supervisor, James Pino apparently suggested that Vasquez would not be terminated even if he were to commit a serious offense after signing the waiver, including if he went through an absolute red signal, which requires the train to be stopped before reaching the signal. (Doc. 61 at 5, 15, 19.)

Vasquez reported for work in the early morning hours of November 28, 2016 in Hauser, Idaho. (Doc. 61 at 8.) Working alongside conductor Doug Malley, Vasquez noted that their train should travel no faster than 45 miles per hour due to its cargo load. (Doc. 61 at 8-9.) However, the train's Positive Train Control ("PTC")—a system that limits train speed—was set to 55 miles per hour. (Doc. 61 at 8-9.) Resetting PTC required coordination with dispatch, and Malley—who, as conductor, was charged with communicating with the dispatcher—indicated that he and Vasquez were having trouble setting the system up. (Doc. 61 at 9-12.) The dispatcher instructed Malley that they could leave without engaging PTC. (Doc. 61 at 11-13.) Although Malley apparently agreed initially, Vasquez was concerned, and he and Malley attempted to reengagedispatch several times without success. (Doc. 61 at 10-11.) The train left the Hauser yard without PTC engaged at 5:25 a.m. (Doc. 61 at 10.)

As the train approached West Libby, Montana early in the afternoon of November 28, Malley informed Vasquez of a yellow signal, which Vasquez knew to mean that the train should be slowed to 30 miles per hour and that a red signal may be approaching. (Doc. 61 at 13-14.) Indeed, BNSF asserts that there was a red signal down the track at the East Libby switch.² (Doc. 61 at 14.) The train passed that signal and continued to travel approximately 2,030 feet before coming to a complete stop at the Libby Depot. (Doc. 61 at 15.) The failure to stop before the red signal, described as a "red block incident," triggered an investigation into Vasquez and Malley, as well as Vasquez's automatic decertification as an engineer by the Federal Railroad Administration. (Docs. 33-19, 61.)

During the investigation, Vasquez stated that the red block incident would not have occurred if either (1) PTC had been engaged, as PTC "would have warned [him] that that signal was coming" or (2) he had been working with "an experienced, qualified conductor," who "would have said something . . . like, red block, red block, you know, or he would have dumped it, or you know, therewould have been something there that would have happened." (Doc. 61 at 16-17.) Vasquez went on to say:

The problem is we're getting so many new guys out here, that I'm familiar with the territory and don't have, I'm basically up there, not only me, other Engineers and the way they've got these pools running, people are running this way, going to Spokane and back, they haven't even been there that much, and basically, I'm having to train them as I'm doing my own job, so I'm doing multiple, multiple things up there, but what, guys that aren't qualified or . . . experienced.

(Doc. 61 at 17.)

Based in part on Vasquez's previous conversation with Pino regarding the effect of his earlier Level S discipline, BNSF offered to Vasquez a waiver, which his union had previously requested. (Doc. 61 at 19-20.) Vasquez testified at his deposition that he understood he would not be terminated if he signed the waiver, but he nonetheless refused to do so. (Doc. 61 at 20-21.) He was terminated on January 27, 2017 for his second Level S violation. (Doc. 61 at 21.) He has since been reinstated as an engineer pursuant to a decision by the Public Law Board, which found that the record supported disciplinary action but that discipline less than termination was appropriate. (Docs. 30-30, 61 at 24.) Vasquez was reinstated on November 19, 2019 without pay for his time out of service. (Doc. 61 at 24.)

Vasquez brought this suit alleging retaliation under the FRSA, which protects railroad employees from adverse employment actions triggered by the employees' good faith reports of hazardous safety conditions. Relevant here, heclaims that his termination was not due to the imposition of a second Level S discipline but rather due to his reports of three safety-related conditions: (1) crew fatigue; (2) lack of PTC on the train involved in he red block incident on November 28, 2016; and (3) failure to adequately train conductors. Additional facts are discussed as relevant to he Court's analysis below.

LEGAL STANDARD

I. Summary Judgment

A court must grant summary judgment if the moving party "shows that here is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The inquiry performed is he threshold inquiry of determining whether here is he need for a trial—whether, in other words, here are any genuine factual issues that properly can be resolved only by a finder of fact because hey may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "[I]f reasonable minds could differ as to he import of he evidence," summary judgment must be denied. Id. at 250-51.

II. The FRSA

The FRSA provides that a railroad carrier may not "discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for reporting, in good faith, a hazardous safety or security condition." 49 U.S.C.§ 20109(b)(A). "A claim for unlawful retaliation under the FRSA has two stages: the prima facie stage, see 49 U.S.C. § 42121(b)(2)(B)(i)-(iii)³; 29 C.F.R. § 1982.104(e), and the substantive stage, see 49 U.S.C. § 42121(b)(2)(B)(iii)-(iv); 29 C.F.R. § 1982.109(a)-(b)." Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). Each stage requires application of a burden-shifting framework.

First, the employee must establish a prima facie case for retaliation by alleging the existence of four elements:

(i) The employee engaged in a protected activity (or . . . was perceived to have engaged or to be about to engage in protected activity);

(ii) The respondent knew or suspected that the employee engaged in the protected activity (or . . . perceived the employee to have engaged or to be about to engage in protected activity);

(iii) The employee suffered an adverse action; and

(iv) The circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.

29 C.F.R. § 1982.104. If the employee meets his or her burden, the employer can defeat the employee's prima facie case by "demonstrat[ing], by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of [the protected activity]." 49 U.S.C. § 42121(b)(2)(B)(ii).

Second, "[a]t the substantive stage, a violation will be found 'only if the complainant demonstrates that any [protected activity] was a contributing factor in the unfavorable personnel action alleged in the complaint." Rookaird, 908 F.3d at 460 (quoting 49 U.S.C. § 42121(b)(2)(B)(iii)) (emphasis and alteration in original). "Then—like at the prima facie stage—the employer can defeat the retaliation claim 'if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of [the protected activity]." Id. (quoting 49 U.S.C. § 4212l(b)(2)(B)(iv)) (alteration in original).

DISCUSSION

Vasquez alleges that BNSF terminated him in retaliation for three good faith reports of hazardous safety conditions. First, he claims that he was terminated because he alleged conditions causing fatigue among crewmembers. Second, he contends that his termination was...