Krist v. BNSF Railway Company

Filing 65

MEMORANDUM OF LAW & ORDER. IT IS HEREBY ORDERED: 1. Defendant's Motion for Summary Judgment 30 is GRANTED and this matter is DISMISSED WITH PREJUDICE. 2. Plaintiff's Cross-Motion for Summary Judgment 41 is DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Michael J. Davis on 3/8/17. (GRR)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

KENT KRIST,
Plaintiff,

v.

MEMORANDUM OF LAW & ORDER
Civil File No. 14-4457 (MJD/LIB)

BNSF RAILWAY COMPANY,
Defendant.
Michael F. Tello and Michael P. McReynolds, Tello Law Firm, and David M. Bolt
and Joseph M. Sayler, Bolt Hoffer Boyd Law Firm, Counsel for Plaintiff.
Jacqueline M. Holmes, Jones Day, and Lee A. Miller and Sally J Ferguson,
Arthur, Chapman, Kettering, Smetak & Pikala, PA, Counsel for Defendant.
I.

INTRODUCTION
This matter is before the Court on the parties’ cross-motions for summary

judgment. [Docket Nos. 30, 41] The Court heard oral argument on September
28, 2016. Because Plaintiff could not meet Defendant’s medical standards for
fitness for duty insofar as he could not tolerate full-time work, Defendant is
entitled to summary judgment.
II.

BACKGROUND
A.

Factual Background
1

1.

The Parties and Plaintiff’s Injury

Defendant is BNSF Railway Company (“BNSF”). BNSF hired Plaintiff
Kent Krist on May 3, 2004. (Morrell Aff., Ex. D, Krist Dep. 25-26.) Krist belonged
to the United Transportation Union (“UTU”) and worked as a brakeman,
conductor, and switchman. (Id. 26-27, 33.)
On August 3, 2006, Krist suffered a work-related back injury: a handbrake
malfunctioned and he injured his back. (Id. 58.) He informed his trainmaster
and filed an injury report with BNSF on August 4. (Id. 58-59.) Krist then went
on medical leave until December 2010. (Morrell Aff., Ex. L, Employee Transcript
at 2.)
On April 13, 2007, orthopedic surgeon Timothy Garvey, M.D., operated on
Krist to repair a herniated disk. (Morrell Aff., Ex. D, Krist Dep. 60-61, 93; Morrell
Aff., Ex. M, Garvey Dep. 19-20.)
After Krist’s back injury, BNSF assigned a manager from its Medical &
Environmental Health Department, Connie John Swanson, to assist Krist in
returning to work. (Morrell Aff., Ex. N, Swanson Dep. 6, 31; Morrell Aff., Ex. D,
Krist Dep. 61-62.)

2

2.

BNSF Attendance Policy

BNSF maintains an attendance policy entitled the Attendance Guidelines.
(Morrell Aff., Ex. B, Murphy Dep. 11-12, 15; Morrell Aff., Ex. C, Attendance
Guidelines.) The Attendance Guidelines are BNSF’s own policy, not part of a
collective bargaining agreement, and they can be modified as BNSF chooses.
(Morrell Aff., Ex. B, Murphy Dep. 15-16.)
The Attendance Guidelines state that TYE (train, yard, and engine)
employees and Yardmasters must be “‘full-time’ employees.” (Attendance
Guidelines at 1.) BNSF considers full-time service an essential function of all
operating employees; Krist was hired as a TYE employee. (Morrell Aff., Ex. A,
Morgan Dep. 8, 84-86.) Under the Guidelines, full-time service is defined by a
maximum per-month threshold of absences for each position. For an employee,
such as Krist, who worked a five-day assigned service (five scheduled work days
and two scheduled rest days per week), the threshold is one any day absence per
month, in addition to rest days and other excluded time. (Attendance Guidelines
at 1; Morrell Aff., Ex. B, Murphy Dep. 78; Morrell Aff., Ex. E, Brown Dep. 42-43,
120.) Excluded time includes absences for jury duty, union business, National
Guard service, vacation, paid personal leave, and medical leave. (Attendance
Guidelines at 1.)
3

When employees are absent, they use a three-letter “layoff” code to label
the reason for their absence. (Id.; Morrell Aff., Ex. F, Layoff Codes.) Layoff codes
include “FML,” for Family Medical Leave Act; “ION” for Injury On Duty; “LOP”
for Layoff Personal Business; “LOS” for Layoff Sick; “MED” for Medical Layoff;
and “VAC” for Layoff Vacation, among others. (Layoff Codes at 1.) ION is
defined as follows: “All on-duty injuries must be reported immediately and, as a
result, use of this code must be approved by a supervisor. This would also
include re-occurring incidents where the injury requires additional time off.”
(Id. at 2.) While LOS counts as an absence, ION does not count as an absence.
(Id. at 2, 4.)
BNSF analyzes compliance with the Guidelines on a rolling three-month
basis in order “to better accommodate periods of intermittent illness.”
(Attendance Guidelines at 1.) BNSF does not consider an employee to violate the
Guidelines until his total absences in a three-month period exceed the combined
three-month threshold. (Morrell Aff., Ex. B, Murphy Dep. 53, 75.) BNSF does
not discipline an employee twice for the same absence. (Id. 84-85.)
The first violation of the Attendance Guidelines results in a formal
reprimand. (Attendance Guidelines at 2.) The second violation results in a 10-

4

day suspension. (Id.) The third violation results in a 20-day suspension. (Id.)
The fourth violation may result in dismissal. (Id.) The Guidelines instruct that
managers should not enforce them in a “rigid or ‘wooden’ manner, and in every
case should use ‘common sense.’” (Id.)
The collective bargaining agreements provide the procedures for charging
and disciplining employees for attendance violations. (Morrell Aff., Ex. H,
Albanese Dep. 30; Morrell Aff., Ex. I, Uniform Investigation Rule.) If a BNSF
officer believes that an employee has violated the Guidelines, BNSF issues a
notice of investigation scheduling a formal investigation. (Uniform Investigation
Rule at 1.) The formal investigation is an adversarial process with the burden of
proof on BNSF, which must provide a “fair and impartial” hearing before
imposing any discipline. (Id. at 1-2.) A BNSF officer serves as the conducting
officer. The employee has the right to cross examine witnesses, call his own
witnesses, and introduce evidence. (Id. at 3.) The employee has a right to a
representative. (Id.) After the investigation, BNSF officers review the transcript
and determine whether the charges were proven. (Id.; Morrell Aff., Ex. J,
Hunkus Dep. 66.) BNSF officers inform the employee of the results in writing.
(Uniform Investigation Rule at 3-4.) Any assessment of discipline must be

5

rendered within 15 days of the conclusion of the hearing. (Uniform Investigation
Rule at 3.)
If the employee faces dismissal, the case is separately reviewed under
BNSF’s Policy for Employee Performance Accountability (“PEPA”). (Murphy
Dep. 112; Morrell Aff., Ex. G, Bausell Dep. 35-36; Morrell Aff., Ex. K, Wright Dep.
118.) After BNSF imposes discipline, the employee may appeal, culminating in
arbitration before a neutral Public Law Board (“PLB”) established under the
federal Railway Labor Act. (Murphy Dep. 115-16.)
3.

Light-Duty Position

During the fall and winter of 2010, Krist used his seniority to begin
training for sedentary work as a switch tender and hump tower operator.
(Morrell Aff., Ex. Q; Morrell Aff., Ex. D, Krist Dep. 90; Morrell Aff., Ex. N,
Swanson Dep. 95-96.) As part of the return-to-work process, on November 22,
2010, Krist and his union representative, Jeremy Brown, met with Swanson,
BNSF managers, and possibly, supervisor, Robert Skuza. (Morrell Aff., Ex. D,
Krist Dep. 83-85; Ex. N, Swanson Dep. 100-01; Supp. Morrell Aff., Ex. I, Skuza
Dep. 19; Tello Aff., Ex. 3, Brown Dep. 48-49.) The purpose of the meeting was for
Swanson to go over Krist’s restrictions, accommodation needs, and job duties.
6

(Id.) At the meeting, the participants reviewed Krist’s physical restrictions and
medications and discussed a training schedule for his new positions. (Id.)
Krist and Brown assert that, during the meeting, Krist told Swanson that
he would not be able to work five consecutive days because he would have flareups of his back pain and would need to lay off work when the flare-ups
occurred. (Tello Aff., Ex. 3, Brown Dep. 41, 44, 49-53, 127-28; Tello Aff., Ex. 4,
Krist Dep. 83-84.) According to Krist and Brown, Swanson stated that taking
time off from work “wouldn’t be a problem.” (Morrell Aff., Ex. D, Krist Dep. 8384; see also Brown Dep. 51.) Brown claims that Swanson told Krist that he could
take time off as needed for his back injury and that he did not need to worry
about being disciplined or about the Attendance Guidelines because the absences
were for a work-related injury. (Brown Dep. 51.) Brown claims that Skuza did
not raise any concern about Krist intermittently missing work. (Id. 134.)
Swanson testified that she had no memory of Krist mentioning that he
would need to lay off intermittently for flare-ups, and Skuza testified that Krist
did not mention such a need. (Supp. Morrell Aff., Ex. D, Swanson Dep. 99-100;
Supp. Morrell Aff., Ex. I, Skuza Dep. 19-20.) Krist testified that, as far as he

7

knew, BNSF only has full-time employees and that he had been told by Swanson
that BNSF did not have part-time employees. (Morrell Aff., Ex. D, Krist Dep. 28.)
4.

Return to Work

Krist returned to work at BNSF in December 2010. (Morrell Aff., Ex. R,
Fitness for Duty Recommendation; Krist Transcript.) Within a few weeks of
Krist’s return, and although he used morphine while on duty, Krist suffered a
flare-up of back pain and had to go to the hospital. (Morrell Aff., Ex. D, Krist
Dep. 87, 91; Morrell Aff., Ex. S, Medical Notes.) Krist began another medical
leave in January 2011. (Krist Transcript at 2.)
5.

2011 Operation

On March 9, 2011, Garvey performed a second back surgery on Krist.
(Morrell Aff., Ex. M, Garvey Dep. 19; Morrell Aff., Ex. D, Krist Dep. 93; Morrell
Aff., Ex. T, June 2, 2011 Garvey Note.) Garvey released Krist for full-time duty
three months later, stating that his progress was “excellent” and that he was
“capable of returning to light duty employment at the present time full time.”
(Morrell Aff., Ex. D, Krist Dep. 95; Morrell Aff., Ex. T, June 2, 2011 Garvey Note.)
Krist returned to work for BNSF in June 2011. (Morrell Aff., Ex. L, Krist
Transcript at 2.)
8

On July 18, 2011, Krist visited the emergency room due to back pain and
then returned to medical leave. (Morrell Aff., Ex. D, Krist Dep. 96; Krist
Transcript at 2; Morrell Aff., Ex. U, ER Letter.)
In August 2011, Garvey wrote a letter stating that Krist could work four to
six hours per day or possibly every other day. (Morrell Aff., Ex. V at 3; Morrell
Aff., Ex. X, Aug. 22, 2011 Garvey letter.) Krist informed Swanson of Garvey’s
opinion, and Swanson encouraged Krist to undergo additional treatment so that
he could return to work on a full-time basis. (Morrell Aff., Ex. V at 3; Morrell
Aff., Ex. N, Swanson Dep. 106.) Swanson further explained that, under Krist’s
current hours restrictions, BNSF would not permit him to return to work. (Id.)
Krist relayed to Garvey that BNSF would not allow part-time employment.
(Morrell Aff., Ex. Y.)
6.

January 2012 Return to Work

In November 2011, Garvey released Krist to full-time work. (Morrell Aff.,
Ex. Z; Morrell Aff., Ex. AA.) Krist returned to work in January 2012, but after a
few weeks, Krist took medical leave. (Krist Transcript at 2.) During a January
26, 2012, exam, Garvey told Krist to “‘push through’ his reactivation back at
work” and explained that “it is highly unlikely that he would have caused any
9

structural change.” (Morrell Aff., Exs. BB-CC; Morrell Aff., Ex. M, Garvey Dep.
52-53.) Garvey again released Krist to “full-time” work, defined as 40 hours per
week. (Id.; Garvey Dep. 39-40, 48, 53-54.) Krist returned to work full-time at
BNSF in February 2012. (Krist Transcript at 2; Morrell Aff., Ex. D, Krist Dep.
132.)
Garvey saw Krist on March 5, 2012, and opined that Krist was “making
good progress.” (Morrell Aff., Ex. DD.) Garvey noted that Krist was working
“fulltime. (Id.) Garvey instructed Krist to “[c]ontinue your walking program,”
but did not mention flare-ups or the need to miss work one to three days per
week. (Id.) He gave no treatment instructions other than to continue walking.
(Id.) Garvey scheduled Krist for a one-year follow-up (id.), but Garvey did not
see Krist again until June 22, 2015 (Morrell Aff., Ex. M, Garvey Dep. 57). Garvey
did not treat Krist during that three-year period. (Id. 22.) Garvey testified that,
as of March 2012, Krist had reached “maximum medical improvement,” meaning
that his back condition was “as good as” it was “going to get.” (Morrell Aff., Ex.
M, Garvey Dep. 40, 112.)

10

7.

Federal Employers Liability Act Trial

In 2007, Krist had filed a lawsuit against BNSF in Anoka County Court
asserting a violation of the Federal Employers Liability Act (“FELA”).
On April 11, 2012, Garvey gave a deposition in Krist’s FELA case. (Morrell
Aff., Ex. II, Garvey FELA Dep.) Garvey was asked if Krist was “more at risk for
having these kind of flare-ups in the future than an average individual,” and he
testified: “Versus somebody who has not had surgical intervention I believe, yes,
sir.” (Garvey FELA Dep. 36.) When asked if Krist would “have back flare-ups in
the course of his life,” Garvey testified: “Yes, sir. Yeah, he’ll have an increased
risk of flare-ups versus the population at large.” (Id.) He also agreed that “those
flare-ups could cause him to have to miss work for periods of time.” (Id.)
Garvey’s deposition testimony was presented during the trial, and,
according to Krist, multiple BNSF managers were present to hear Garvey’s
testimony. (Morrell Aff., Ex. HH at 47.) On June 26, 2012, the parties settled and
stipulated to dismissal of the FELA lawsuit, which the state court granted on July
2, 2012. (Tello Aff., Ex. 5, Stipulation for Dismissal.)

11

8.

First Investigation

Krist returned to work full time in February 2012. During this time period,
Krist worked a 5-day assigned service (Morrell Aff., Ex. E, Brown Dep. 120),
which permitted him 3 “any day” absences for each rolling 3-month review
period. (Morrell Aff., Ex. D, Krist Dep. 44.) From March 1, 2012, through May
31, 2012, Krist was absent 7 days for LOP (Layoff Personal Business) or LOS
(Layoff Sick), which counted towards his 3-absence threshold. (Morrell Aff., Ex.
EE.) From June through August 2012, he was absent 5 days for LOS. (Id.)
Although Krist’s absences exceeded the Attendance Guidelines limit, BNSF
declined to discipline Krist and implemented coaching and counseling. (Morrell
Aff., Ex. H, Albanese Dep. 41-42, 116-17.)
During the three-month period from July through September 2012, Krist
incurred 10 LOS absences. (Morrell Aff., Ex. FF.)
On September 14, 2012, Krist began medical care with Ross Chambers,
M.D. (Supp. Morrell Aff., Ex. O, Chambers Dep. 35.) During that appointment,
Chambers gave Krist “routine instructions that we give patients for acute
worsening of lumbar back pain:”:
For acute pain, rest, intermittent application of heat (do not sleep on
heating pad), analgesics and muscle relaxants are recommended.
Discussed longer term treatment plan of prn NSAID’s and discussed
12

a home back care exercise program with flexion exercise routine.
Proper lifting with avoidance of heavy lifting discussed. Consider
Physical Therapy and XRay studies if not improving. Call or return
to clinic prn if these symptoms worsen or fail to improve as
anticipated.
(Id. 36; Morrel Aff., Ex. KK.) Chambers testified that nothing in the instructions
authorized Krist to miss work and that the reference to “rest” did not
contemplate that Krist would be missing work. (Supp. Morrell Aff., Ex. O,
Chambers Dep. 38 (“That was not my intent.”).) If Chambers had intended for
Krist to miss work, he “would have written a separate note that asked for him to
be off work or some restrictions in his work.” (Id.; see also id. 45-46.) Chambers
did not prescribe Krist any narcotic medication. (Id. 39.)
On October 10, 2012, BNSF issued a notice of investigation to Krist for
failing to maintain full-time employment by incurring 10 absences in July,
August, and September 2012. (Morrell Aff., Ex. GG.)
Krist contacted Chambers and asked that he fill out FMLA paper work
before the formal investigation on November 13. (Supp. Morrell Aff., Ex. N,
Fairview Northland Record at 50.) Chambers did not have any available
appointments, so Krist “drop[ped] off the paperwork with a note explaining
what he needs.” (Id. at 51.) Chambers declined to sign the materials without

13

seeing Krist in an appointment. (Id. at 55; Supp. Morrell Aff., Ex. O, Chambers
Dep. 52-53.) Chambers offered an appointment on November 26, but Krist
declined and said that “he was going to speak to his attorney to see what he
should do to get his fmla forms filled out as soon as possible.” (Fairview
Northland Record at 55.)
Krist was able to obtain an appointment with nurse practitioner Linda
Baumann on November 1, 2012. (Fairview Northland Record at 57; Supp.
Morrell Aff., Ex. Q, Baumann Dep. 14-15.) He told Baumann that he had been
missing one to three days of work per week and requested that she complete his
FMLA forms in order to “protect his job.” (Fairview Northland Record at 58;
Baumann Dep. 37.) She agreed to execute the forms although she had no
previous experience with Krist. (Supp. Morrell Aff., Ex. Q, Baumann Dep. 32;
Morrell Aff., Ex. QQ.)
The investigation was held on November 29, 2012. (Morrell Aff., Ex. HH,
Nov. 29, 2012 Investigation Transcript.) Brown represented Krist (Morrell Aff.,
Ex. D, Krist Dep. 34), and did not dispute that Krist exceeded his absence
threshold (Morrell Aff., Ex. HH, Nov. 29, 2012 Investigation Transcript 52-53).
Krist claimed that his absences were due to flare-ups from the 2006 back injury in

14

accordance with a medical treatment plan. (Id. 51-53.) Krist offered the
previously mentioned April 2012 deposition by Garvey from the FELA case. (Id.
45-46.) Brown discussed the previously quoted portion of that testimony in
which Garvey had testified that Krist’s surgeries created “an increased risk of
flare-ups versus the population at large” that “could cause him to have to miss
work for periods of time.” (Id.)
Krist also offered the previously quoted routine instructions from
Chambers, dated September 14, 2012. (Nov. 29, 2012 Investigation Transcript 5152.) He testified that if he followed his treatment plan he could not “safely
perform service” and thus would have to lay off from work. (Id. 52.) Krist
argued that his LOS absences were taken in accordance with Chambers’
treatment plan and, thus, were protected under the Federal Railroad Safety Act.
(Id. 51-53.) BNSF concluded that Krist had violated its Attendance Guidelines
and, on December 7, 2012, it issued a formal reprimand. (Morrell Aff., Ex. LL.)
9.

Second Investigation and First FMLA Request

In October 2012, Krist incurred six additional LOP and LOS absences.
(Morrell Aff., Ex. MM.)

15

On October 8, 2012, BNSF General Manager Thomas Albanese wrote an
email to Terminal Superintendent Phillip Mullen in which he stated:
I have a question about the Krist case. He came back from injury a
while ago and got a couple of free passes earlier. When do we
consider that over? Seems to me he has been back over well three
months now. He has five days off on a threshold of two. Is he
missing work and claiming prior injury to mitigate his attendance?
(Tello Aff., Ex. 9.)
Albanese testified that he meant that Krist was granted no discipline
although he was over the Attendance Guidelines earlier in 2012, and he
wondered when BNSF would consider Krist capable of being a full-time
employee consistent with the Attendance Guidelines. (Tello Aff., Ex. 8, Albanese
Dep. 41-42.)
On November 1, 2012, Krist applied for FMLA leave. (Morrell Aff., Ex.
QQ, Nov. 1, 2012 FMLA Certification.) He submitted the leave certification filled
out by Baumann, which stated that Krist was not unable to perform any of his
job functions due to his back injury and that the “[j]ob had been modified to
accommodate [his] condition.” (Id. at 2.) Baumann further wrote that he would
experience episodic flare-ups once a week for one to three days per episode that
would require him to be absent from work because he would need medication

16

that would not allow driving and could impair his judgment. (Id. at 3.) On
November 7, 2012, BNSF rejected Krist’s FMLA request because he was not
eligible for FMLA leave because he had not worked 1,250 hours during the
previous 12 months. (Tello Aff., Ex. 22.)
On November 13, 2012, BNSF issued a second notice of investigation based
on Krist’s failure to maintain full-time employment during August, September,
and October 2012. (Morrell Aff., Ex. NN.)
On November 27, 2012, Mullen sent Krist a letter recommending that he
reapply for FMLA once he had built up sufficient hours to qualify, and, in the
meantime, to consider requesting a medical leave of absence or requesting an
accommodation. (Morrell Aff., Ex. TT.)
On November 30, Krist saw Baumann again and asked her to execute a
new set of FMLA forms, which she did. (Morrell Aff., Ex. UU.) Baumann never
saw Krist again. (Supp. Morrell Aff., Ex. Q, Baumann Dep. 63-64.) She testified
that Krist was never her patient, that she did not give him a “care plan,” and that
she never “treat[ed]” him. (Baumann Dep. 17, 49, 60, 67.)
Also on November 30, Krist submitted a formal request for
accommodation to BNSF to allow layoffs when he suffered flare-ups of his back

17

injury. (Morrell Aff., Ex. VV.) The accommodation request included a form
completed by Baumann on November 30 stating that Krist required the
following accommodations: “No lifting, bending, stooping, using stairs or
ladders during acute exacerbation of pain. May need to use narcotic pain
medication, in which instance he cannot drive or operate machinery.” (Id.)
The second investigation was held on December 3, 2012. (Morrell Aff., Ex.
OO, Dec. 3, 2012 Investigation Transcript.) The evidence showed that Krist
missed 6 days of work on LOP or LOS in October 2012. (Morell Aff., Ex. MM.)
Krist asserted that his absence should be excused based on Chambers’ September
14 instructions and Garvey’s deposition testimony. (Dec. 3, 2012 Investigation
Transcript 23-28, 40.)
On December 13, 2012, BNSF decided that Krist had violated the
Attendance Guidelines and issued a 10-day suspension. (Morrell Aff., Ex. SS.)
10.

FMLA Leave Approval and Accommodation Denial

On December 20, 2012, BNSF approved Krist’s November 30 application
for intermittent leave under the FMLA. (Morrell Aff., Ex. WW.)
In a January 15, 2013 letter, BNSF Director of Human Resources Terry
Morgan denied Krist’s request for accommodation in the form of reducing
18

attendance requirements to permit him to take off between 1 and 3 days per
week for episodic flare-ups of back pain on the ground that it was unreasonable.
(Morrell Aff., Ex. XX at 1.) Morgan stated that “regular and reliable” attendance
was an essential function of Krist’s job and “vital to ensur[ing] the smooth
operation of the railroad.” (Id. at 2.) Granting the accommodation and
“allowing irregular and unpredictable attendance” “would conflict with the
rights of other employees and violate the Attendance Guidelines.” (Id.) It would
be “incompatible with the position [he] now hold[s] and the needs of BNSF’s
management to be able to schedule employees and ensure smooth operations.”
(Id.)
11.

Third Investigation

By December 20, 2012, when BNSF approved Krist’s request for
intermittent FMLA leave, Krist had incurred 4 additional LOS absences and 1
LOC (Layoff on Call) absence in November and December 2012. (Morrell Aff.,
Ex. YY.) On January 10, 2013, BNS issued a third notice of investigation based on
failure to maintain full-time employment for the period October, November, and
December 2012. (Morrell Aff., Ex. ZZ.) The investigation was held on January
31, 2013. (Morrell Aff., Ex. AAA, Jan. 31, 2013 Investigation Transcript.) The
19

evidence showed 5 LOS/LOC absences in November and December 2012.
(Morrell Aff., Ex. YY.) Krist responded that his absences were protected as
following his treatment plan and pointed to the Garvey deposition, the
September 14 Chambers’ document, and the November 1 FMLA certification and
November 7 denial letter. (Jan. 31, 2013 Investigation Transcript 33-46.)
On February 12, 2013, BNSF concluded that Krist had violated the
Attendance Guidelines and issued a 20-day suspension. (Morrell Aff., Ex. BBB.)
12.

Federal Railroad Safety Act Administrative Complaint

On February 26, 2013, Krist filed a complaint with the Occupational Safety
and Health Administration (“OSHA”) claiming that BNSF’s discipline under the
Attendance Guidelines violated the Federal Railroad Safety Act because it
punished Krist for following a treatment plan for his work-related injury.
(Morrell Aff., Ex. CCC.) Before OSHA issued a decision, Krist filed his claim in
federal court. (Morrell Aff., Ex. EEE.)
13.

June 2013 FMLA Certification

On June 24, 2013, Krist saw Chambers “to have BNSF specific FMLA
papers completed” because BNSF had requested a medical recertification for his
FMLA leave. (Supp. Morrell Aff., Ex. N, Fairview Northland Record at 106;
20

Supp. Morrell Aff., Ex. R.) During the June 24 appointment, Chambers did not
conduct a physical examination, but did complete the recertification form.
(Supp. Morrell Aff., Ex. O, Chambers Dep. 64-65.)
On the FMLA certification form, Chambers wrote that Krist would require
intermittent absences of 1 to 3 days once per week based on episodic flare-ups.
(Morrell Aff., Ex. NNN, June 24, 2013 FMLA Certification ¶¶ 5(d), 9(d)-(e).)
Under the section entitled “REGIMEN OF TREATMENTS,” Chambers wrote that
Krist would require one treatment per month for 99 months and that the nature
of the treatments would be “physical therapy,” “Celebrex, hydrocodone,” and
“occasional PT as needed.” (Id. ¶ 8.)
14.

Termination

On August 20, 2013, Krist sent letters to his BNSF supervisors stating that
he would soon exhaust his FMLA leave, asking how he could avoid future
attendance violations, and inquiring whether he should use the ION (Injury on
Duty) layoff code, which did not count towards the absence limit. (Morrell Aff.,
Exs. FFF-GGG.) On September 12, 2013, Morgan wrote Krist that he could not
use the ION code and could not lay off without incurring discipline; Morgan
wrote that he should consider reapplying for FMLA once he was eligible for
21

another annual allotment of FMLA leave. (Morrell Aff., Ex. HHH.) Morgan
suggested that, in the meantime, Krist could apply for medical leave. (Id.)
Morgan reiterated that “regular and reliable attendance is a necessary part of
your current job and is vital to ensure the smooth operation of the railroad, so
addressing attendance issues is important.” (Id.) Krist decided against a medical
leave of absence because he would not be paid during medical leave. (Morrell
Aff., Ex. D, Krist Dep. 167.)
After Krist exhausted his FMLA leave, he incurred absences beyond his
scheduled rest days. In September 2013, he had 4 LOS absences, and in October
2013, he had 8 LOS absences. (Morrell Aff., Exs. III-JJJ.) BNSF issued two
additional notices of investigation on October 8 (for the period of July, August,
and September 2013) and November 8, 2013 (for the period of August,
September, and October 2013). (Morrell Aff., Exs. KKK-LLL.)
BNSF held a fourth formal investigation on November 4, 2013. (Morrell
Aff., Ex. MMM, Nov. 4, 2013 Investigation Transcript.) Krist asserted that his
absences were due to following a treatment plan from Chambers from June 2013.
(Id. at 64-66.) As evidence, Krist offered the FMLA certification from Chambers
from June 2013. (Id.) Krist asserted that following the treatment plan set forth in

22

Chambers’ FMLA certification required him to miss work. (Nov. 4, 2013
Investigation Transcript 65.)
BNSF held the fifth formal investigation on November 26, 2013. (Morrell
Aff., Ex. OOO, Nov. 26, 2013 Investigation Transcript.) Krist offered an identical
defense based on Chambers’ June 2013 FMLA recertification form. (Id. 86-87.)
On December 3, 2013, BNSF notified Krist that he was eligible for FMLA
leave as of November 27, 2013, but that his leave was not yet approved because
Krist needed to “furnish a Notice of Intent to Take Paid/Unpaid FMLA Leave
medical.” (Tello Aff., Ex. 25.)
On December 4, 2013, BNSF manager David Nickles sent an email to the
PEPA board, which reviews disciplinary cases in which the employee faces
dismissal, stating:
Please provide review of the transcript for the Aug, Sep, Oct ATG
investigation for KA Krist, 1599117, conducted on 26 November,
2013. I have attached his transcript(s) and point out that on 15
November, he received a second 20-day record suspension for ATG
in the previous 3-month rolling period.
I have made corrections to the transcript and have sent it back this
evening.
He does not offer a new defense, and does admit that he is over his
threshold for attendance and also to being knowledgeable on the
policy. He continues to rely on applying for FMLA in December,
23

and describes a conversation with the benefits team on the same day
as the Investigation. He again mentions his legal counsel during his
testimony.
Final discipline needs to be post marked on December 10, 2013 to be
within the agreement.
(Tello Aff., Ex. 26.)
BNSF decided that, in both cases, Krist had violated the Attendance
Guidelines. On November 15, 2013, BNSF issued a second 20-day record
suspension for the fourth violation. (Morrell Aff., Ex. PPP.) Based on Krist’s fifth
violation, BNSF General Manager Albanese decided to dismiss Krist. (Morrell
Aff., Ex. H, Albanese Dep. 8, 110; Morrell Aff., Ex. QQQ.) BNSF’s director of
employee performance Kathleen Bausell and regional vice president Michael
Shircliff also reviewed Krist’s dismissal. (Albanese Dep. 110-12, 118; Morrell
Aff., Ex. G, Bausell Dep. 35-36, 64.) On December 9, 2013, BNSF terminated
Krist’s employment “for failure to maintain full time employment in accordance
with BNSF Attendance Guidelines.” (Morrell Aff., Ex. QQQ.)
The Union exhausted Krist’s on-property appeals and appealed all five
instances of discipline to the PLB. (Morrell Dep., Ex. H, Albanese Dep. 87-88, 9394; Morrell Aff., Ex. B, Murphy Dep. 116.) The PLB upheld BNSF’s discipline up
to and including the termination. (Morrell Aff., Ex. RRR.)
24

B.

Procedural History

On October 23, 2014, Krist filed a Complaint against BNSF in this Court.
[Docket No. 1] The Complaint seeks damages under the whistleblower
provisions of the Federal Rail Safety Act, 49 U.S.C. § 20109 (“FRSA”). In the
Complaint, Krist alleges two types of protected activity: reporting his back injury
in 2006 and following a medical treatment plan that required him to lay off
during flare-ups. However, in briefing, Krist only asserts a claim based on the
protected activity of following a medical treatment plan. Krist seeks damages,
expungement of all negative information from his personnel file, reinstatement,
and attorney’s fees.
III.

DISCUSSION
A.

Summary Judgment Standard

Summary judgment is appropriate if, viewing all facts in the light most
favorable to the non-moving party, there is no genuine dispute as to any material
fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party seeking
summary judgment bears the burden of showing that there is no disputed issue
of material fact. Celotex, 477 U.S. at 323. “A dispute is genuine if the evidence is
such that it could cause a reasonable jury to return a verdict for either party; a
25

fact is material if its resolution affects the outcome of the case.” Amini v. City of
Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 252 (1986)).
B.

The Federal Railroad Safety Act

Congress enacted the FRSA “to promote safety in every area of railroad
operations and reduce railroad-related accidents and incidents.” 49 U.S.C. §
20101. The FRSA prohibits a railroad carrier from interfering with the treatment
of an employee injured during employment: “A railroad carrier or person
covered under this section may not deny, delay, or interfere with the medical or
first aid treatment of an employee who is injured during the course of
employment.” 49 U.S.C. § 20109(c)(1). The FRSA also bars retaliation against an
employee who follows a treating physician’s medical treatment plan for an onthe-job injury:
A railroad carrier or person covered under this section may
not discipline, or threaten discipline to, an employee for requesting
medical or first aid treatment, or for following orders or a treatment
plan of a treating physician, except that a railroad carrier’s refusal to
permit an employee to return to work following medical treatment
shall not be considered a violation of this section if the refusal is
pursuant to Federal Railroad Administration medical standards for
fitness of duty or, if there are no pertinent Federal Railroad
Administration standards, a carrier’s medical standards for fitness
for duty. For purposes of this paragraph, the term “discipline”
means to bring charges against a person in a disciplinary
26

proceeding, suspend, terminate, place on probation, or make note of
reprimand on an employee’s record.
49 U.S.C. § 20109(c)(2).
Krist claims that BNSF violated subsection (c)(2) by terminating his
employment because he followed a medical treatment plan by being absent
during back pain flare-ups.
“The FRSA incorporates by reference the rules and procedures applicable
to Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(“AIR–21”) whistleblower cases.” Araujo v. N.J. Transit Rail Operations, Inc.,
708 F.3d 152, 157 (3d Cir. 2013) (citing 49 U.S.C. § 20109(d)(2)(A)), disagreed with
on other grounds by Kuduk v. BNSF Ry. Co., 768 F.3d 786, 790-91 (8th Cir. 2014).
Following the AIR-21 framework,
[t]o establish a prima facie claim of retaliation under FRSA, an
employee must show by a preponderance of the evidence that he 1)
engaged in protected activity; 2) that the employer knew he engaged
in protected activity; 3) he suffered an unfavorable personnel action;
and 4) the protected activity was a contributing factor in the
unfavorable action.
Kuduk v. BNSF Ry. Co., 980 F. Supp. 2d 1092, 1098 (D. Minn. 2013) (citing
Araujo, 708 F.3d at 157), aff’d, 768 F.3d 786 (8th Cir. 2014). “[U]nder the [FRSA]’s
‘contributing factor’ causation standard, [a] prima facie case does not require that

27

the employee conclusively demonstrate the employer’s retaliatory motive. But
the contributing factor that an employee must prove is intentional retaliation
prompted by the employee engaging in protected activity. Kuduk, 768 F.3d at
791 (citations omitted).
Once the plaintiff makes a showing that the protected activity was a
“contributing factor” to the adverse employment action, the burden
shifts to the employer to demonstrate “by clear and convincing
evidence, that the employer would have taken the same unfavorable
personnel action in the absence of that behavior.”
Kuduk, 980 F. Supp. 2d 1098-99 (quoting Araujo, 708 F.3d at 157). See also 29
C.F.R. § 1982.104(e)(4).
Krist claims that he was following his doctors’ treatment plan for his onthe-job back injury when he took time off work for flare-ups. Thus, his absences
were protected activity under subsection (c)(2) and BNSF was prohibited from
considering the absences as attendance violations and disciplining him.
C.

Safe Harbor Provision

The Court concludes that Krist’s continued employment would violate
BNSF’s fitness for duty requirements; thus, Krist cannot show a violation of
subsection (c)(2). Because the Court concludes that the safe harbor applies, the
Court need not reach the parties’ dispute regarding whether a qualifying

28

treatment plan can exist after an employee has reached maximum recovery after
an injury.
Subsection (c)(2)’s safe harbor provision provides that
a railroad carrier’s refusal to permit an employee to return to work
following medical treatment shall not be considered a violation of
this section if the refusal is pursuant to Federal Railroad
Administration medical standards for fitness of duty or, if there are
no pertinent Federal Railroad Administration standards, a carrier’s
medical standards for fitness for duty.
1.

The Ability to Work Full-Time Is a BNSF Fitness-for-Duty
Requirement

The ability to perform full-time service is one of BNSF’s fitness-for-duty
standards. All parties agree that BNSF does not permit part-time employment.
Krist testified that he knew of BNSF’s policy and that he knew of no employee
who worked part-time. BNSF clearly communicated that regular, full-time
attendance was an essential job duty, necessary for the smooth operation of the
railroad and to avoid impinging on other employees. Cf. Nesser v. TransWorld
Airlines, Inc., 160 F.3d 442, 445 (8th Cir. 1998) (“An employee who is unable to
come to work on a regular basis [is] unable to satisfy any of the functions of the
job in question, much less the essential ones.”) (addressing ADA claim) (citation
omitted); Greer v. Emerson Elec. Co., 185 F.3d 917, 921 (8th Cir. 1999) (“[R]egular
29

and reliable attendance is a necessary element of most jobs.”) (addressing ADA
claim) (quoting Nesser, 160 F.3d at 445).
Here, BNSF promulgated clear Attendance Guidelines with a progressive
discipline policy regarding absenteeism. The Attendance Guidelines are not
vague or subject to manipulation. Krist testified that he understood how the
Guidelines applied to his position and that he knew that BNSF does not have any
part-time employees. (Morrell Aff., Ex. D, Krist Dep. 28, 43-44.) He also knew
that absences under the LOS code would count against the absence limit. (Id. 44,
123, 234.) BNSF imposed progressive discipline on Krist, a formal hearing was
conducted before each discipline, and Krist admits that the absences occurred.
BNSF monitors attendance for all employees on a monthly basis and has a
computerized system that calculates the attendance for each three-month period.
(Morrell Aff., Ex. TTT, Dingmann Dep. 21-22; Morrell Aff., Ex. G, Bausell Dep.
77-78.) When any employee exceeds the threshold for a three-month period, the
attendance system notifies each division and local management inquires into the
circumstances to decide whether to pursue a formal investigation. (Morrell Aff.,
Ex. G, Bausell Dep. 77-78; Dingmann Dep. 27-28.)

30

BNSF regularly disciplines employees for attendance violations. Krist’s
union representative testified that it was “common” for BNSF to charge
employees with attendance violations. (Morrell Aff., Ex. E, Brown Dep. 31.)
On average, BNSF dismisses one to two employees for attendance violations per
month. (Morrell Aff., Ex. H, Albanese Dep. 118-19.) BNSF points to two specific
employees from the same region that it fired in 2011 and 2014 for attendance
violations who did not file an injury report and had no record of medical leave.
(See Morrell Aff., Exs. UUU-VVV.) Albanese testified that BNSF had never
granted an employee request to reduce the attendance requirements for an
individual employee, apart from accommodating qualified FMLA leave.
(Morrell Aff., Ex. H, Albanese Dep. at 86-87.)
Krist asserts that Brown testified that employees were allowed to lay off
because of an injury without punishment; however, Brown admitted that he had
no direct knowledge of any specific case of an employee being treated more
leniently than Krist. (Tello Aff., Ex. 3, Brown Dep. 110-13.) Krist also notes that
retired BNSF employee George Joyce testified that, before BNSF promulgated the
Attendance Guidelines, it accommodated injured workers who had flare-ups
from on-duty injuries. (Tello Aff., Ex. 10, Joyce Dep. 71-72.) However, Joyce had

31

no direct knowledge of this practice, but simply testified that it was “common
knowledge.” (Id.) He testified that he had no particular example of an
individual who had a flare-up and was excused from the Attendance Guidelines.
(Id. 88.)
In sum, BNSF has a clear attendance policy that does not permit sick leave
beyond 3 days per month. This was a legitimate fitness-for-duty standard that
was an essential part of Krist’s job and was necessary for smooth operation of the
railroad. The evidence in the record is that BNSF monitors all employee
attendance, regularly disciplines employees for attendance violations, and that
Krist understood the Guidelines and how they would be enforced against him.
2.

Krist Could Not Meet BNSF’s Full-Time Work Requirement

It is undisputed that Krist was not capable of meeting BNSF’s fitness-forduty requirement of working full-time. Garvey released Krist for full-time duty
three times (June 2011, November 2011, and January 2012). Yet, Krist does not
dispute that he could not actually work full-time when he returned to work in
2012 or any time thereafter. Krist asserts that he is medically required to work a
usual schedule of only 2 to 4 days per week, with no notice of which days those

32

would be. He testified that he is not capable of working a 40-hour week.
(Morrell Aff., Ex. D, Krist Dep. 205-06, 227.)
BNSF has presented evidence that Krist’s frequent, unplanned absences
negatively affected its operations, delaying freight and forcing other employees
to work beyond their shifts. One manager testified that he had to fill Krist’s
position by moving an employee from another job that then went unfilled.
(Morrell Aff., Ex. SSS, Skuza Dep. 52-55.) This move “ultimately delay[ed] and
affect[ed] [BNSF’s] ability to move the customers’ freight.” (Id. 53.) Krist’s
absences caused this to occur multiple times. (Id. 53-54.) Other employees had
to work unexpectedly beyond their assigned shift due to Krist’s sudden
absences. (Id. 67-68.)
3.

Whether BNSF Knew that Krist Could Not Work Full Time
When It Allowed Him to Return to Work in 2012

Krist argues that BNSF knew that he was not able to work full-time when
it returned him to service in 2012 and, thus, the full-time requirement was
waived. He bases this conclusion on testimony that, during the November 2010
return to work meeting, BNSF was told that he would need intermittent layoffs
under his treatment plan, and that BNSF stated that there would be no adverse

33

consequences for laying off. However, even if the November 2010 meeting
proceeded as asserted by Krist, the safe harbor provision applies.
In August 2011, when Krist was only released to part-time work (four to
six hours per day or every other day) and attempted to return to work, BNSF
informed Krist that he could not return to work with that schedule and did not
permit him to return until Garvey again released him to full-time work in
November 2011.
Krist testified that his return to work in 2012 was full-time. (Morrell Aff.,
Ex. D, Krist Dep. 132.) Garvey had released Krist to work full-time, defined as 40
hours per week. These representations conflicted with Krist’s later claim that he
needed to miss 1 to 3 days per week.
Krist’s meeting with Swanson occurred in November 2010. Thus, between
the Swanson meeting and Krist’s final return to work in February 2012, Krist had
a second back surgery and three separate medical leaves of absence, Swanson
informed Krist that his return to work need to be full-time, BNSF rejected his
attempt to return at less than full-time, and Garvey gave three separate full-time
releases. Moreover, there is no evidence that, during the November 2010
meeting, Krist stated how often the flare-ups would occur or how long they

34

would last. The Attendance Guidelines allowed Krist to take one absence per
month without penalty, in addition to FMLA, personal leave, or medical leave.
It is undisputed that, after that meeting, BNSF rejected Krist’s attempt to
return to work part time and did not allow his return until he was released for
full-time duty. In 2012, Garvey released Krist to work full-time, meaning 40
hours per week. The law does not permit an employee to nullify the safe harbor
by representing to the employer that he does meet the fitness-for-duty standard
in order to return to work and then invoking a treatment plan if he faces
discipline for failing to meet that standard.
The Court holds that BNSF has shown that the safe harbor applies and that
Krist could not meet its fitness for duty requirements because he, undisputedly,
could not work full-time. Thus, BNSF was justified in terminating his
employment once it became apparent that, in fact, Krist could not work full-time.
BNSF is entitled to summary judgment.

Accordingly, based upon the files, records, and proceedings herein, IT IS
HEREBY ORDERED:

35

1. Defendant’s Motion for Summary Judgment [Docket No. 30] is
GRANTED and this matter is DISMISSED WITH PREJUDICE.
2. Plaintiff’s Cross-Motion for Summary Judgment [Docket No. 41]
is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: March 8, 2017

s/ Michael J. Davis
Michael J. Davis
United States District Court

36