Bjornson v. Soo Line Railroad Company, et al
MEMORANDUM OPINION AND ORDER granting 57 Motion for Summary Judgment of Count II (Written Opinion) Signed by Chief Judge John R. Tunheim on February 21, 2017. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-4596 (JRT/SER)
LONNIE BJORNSON and
SOO LINE RAILROAD COMPANY, a
Minnesota corporation d/b/a Canadian
Pacific Railway, and GLENWOOD
HOSPITALITY, INC., a Minnesota
Corporation d/b/a Scottwood Motel,
AND ORDER GRANTING MOTION
FOR PARTIAL SUMMARY
Michael P. McReynolds, TELLO LAW FIRM, 2150 Third Avenue North,
Suite 10, Anoka, MN 55303, and David A. Brandis, YAEGER &
JUNGBAUER BARRISTERS, PLC, 2550 University Avenue West,
Suite 345N, St. Paul, MN 55114, for plaintiffs.
Tracey Holmes Donesky and Margaret M. Bauer Reyes, STINSON
LEONARD STREET LLP, 150 South Fifth Street, Suite 2300,
55402, and Steven J. Erffmeyer, ARTHUR,
CHAMPMAN, KETTERING, SMETAK & PIKALA, PA, 81 South
Ninth Street, Suite 500, Minneapolis, MN 55402, for defendant Soo Line
Gregory J. Young, GOETZ & ECKLAND P.A., Banks Building, 615
First Avenue Northeast, Suite 425, Minneapolis, MN 55413, for defendant
Glenwood Hospitality, Inc.
Plaintiffs Lonnie Bjornson (“Bjornson”) and Sharon Bjornson bring this action
against Bjornson’s employer, Soo Line Railroad Company, doing business as Canadian
Pacific Railway, (“Canadian Pacific”), and Glenwood Hospitality, Inc. (“Glenwood
Hospitality”). Plaintiffs allege several state and federal claims based on Bjornson’s
injury from slipping in the shower at a hotel owned by Glenwood Hospitality, and a 5day suspension he received from Canadian Pacific after he called in sick to attend a
chiropractic session almost two years after his injury.
Canadian Pacific moves for
summary judgment on Count II of Bjornson’s complaint, in which Bjornson alleges that
this disciplinary action violated the Federal Rail Safety Act (“FRSA”). Because the
Court finds that Bjornson did not engage in protected activity, Bjornson’s FRSA claim
fails, and the Court will grant Canadian Pacific’s motion.
Canadian Pacific “provides freight rail transportation services in several states,
including Minnesota and North Dakota.” (Decl. of Amanda Cobb (“Cobb Decl.”) ¶ 3,
May 31, 2016, Docket No. 61.) Canadian Pacific is “largely unionized” and its union
workers, including its conductors, “are governed by applicable collective bargaining
agreements.” (Id. ¶¶ 3-4.) Canadian Pacific contracted with Glenwood Hospitality to
provide rooms at a set rate for its employees at the Scotwood Motel in Glenwood,
Minnesota. (See Aff. of David A. Brandis (“Brandis Aff.”), Ex. B, June 21, 2016, Docket
Bjornson began working for Canadian Pacific as a conductor trainee in 1997, and
after a few months of training, he became a conductor. (Decl. of Greta Bauer Reyes
(“Reyes Decl.”), Ex. A (“Bjornson Dep.”) at 36:14-24, May 31, 2016, Docket No. 62;
Cobb Decl. ¶ 7.) The conductor position includes a requirement to “be available on call,
24 hours per day, 7 days per week including weekends and holidays.” (Reyes Decl.,
On November 3, 2011, Bjornson worked on freight run from Enderlin,
North Dakota, to Glenwood. (Id. at 296:18-297:13.) Bjornson stayed at the Scotwood
motel, where several anti-skid strips were missing from the shower in his room. (Id. at
298:5-9, 219:6-9; Brandis Aff., Ex. C.) Bjornson slipped and fell in the shower, hitting
the side of the tub with his left shoulder and the back of the tub with his head. (Bjornson
Dep. at 305:4-6, 306:4-307:9.) Bjornson completed a guest accident report and filled out
an injury report form with his employer. (See Reyes Decl., Ex. S; id., Ex. T.) Bjornson
still worked his shift on November 3, and the following several days. (Bjornson Dep. at
237:14-25.) Bjornson stated that he did not feel any aches and pains when he first
returned to work, but three or four days later, he began experiencing stiffness and
soreness in his neck and shoulder. (Id. at 320:3-7.)
BJORNSON’S 2011 MEDICAL TREATMENT
On November 9, 2011, Bjornson sought medical treatment from a physician’s
assistant, Cristy Brosowske. 1 (Id. at 152:3-19.) Brosowske noted a bruise on Bjornson’s
left upper arm, and Bjornson reported neck pain and upper back pain, as well as
continuous pain radiating down his upper right arm. (Reyes Decl., Ex. W.) Brosowske
In the record, Cristy Brosowske is also referred to by a previous name, Cristy Selzler,
(Reyes Decl., Ex. V at 6:17-7:10), but, the Court will refer to her by her current name.
suspected chronic tendonitis was the cause of Bjornson’s shoulder pain, and she
recommended rest, ice, and heat. (Id.) Brosowske also directed Bjornson to check back
with the office in two to three weeks and return for a follow up appointment if his
condition was not improving. (Id.)
Bjornson did not return to work after the November 9 appointment while he rested
due to his neck and shoulder pain. (Reyes Decl., Ex. Y; id., Ex. V (“Brosowske Dep.”) at
29:6-19.) Bjornson returned for a follow-up medical appointment on November 23,
2011, where he reported occasional pain in his neck and back. (Id., Ex. Z.) Brosowske
diagnosed Bjornson with cervical strain and bilateral shoulder tendonitis, and also noted a
history of degenerative joint disease and degenerative disk disease of the cervical spine
and degenerative joint disease of the shoulders.
(Id.; Brosowske Dep. at 35:4-10.)
Brosowske referred Bjornson to physical therapy to evaluate if he could return to work.
(Brosowske Dep. at 35:21-36:5.)
On November 30, 2011, Bjornson again visited
Brosowske, and she completed a supplemental doctor statement in which she found that
Bjornson’s condition – a cervical strain, shoulder strain – was improving, and she
estimated that Bjornson would be ready to return to work on December 14, 2011, after
two weeks of physical therapy. (Reyes Decl., Ex. CC; Brosowske Dep. at 43:8-45:2.)
Bjornson returned for a follow-up appointment on December 12, 2011, and
Brosowske found that his strain and shoulder tendonitis had both resolved, that he had
“rehabbed to baseline functioning,” and that he could “return to work unrestricted” as
anticipated. (Reyes Decl., Ex. DD; Brosowske Dep. at 46:19-48:22.) Brosowske also
noted Bjornson’s history of degenerative joint disease, which had not resolved because it
was a preexisting chronic problem. (Reyes Decl., Ex DD; Brosowske Dep. at 47:1448:2.) Brosowske wrote that Bjornson should contact her office if problems arose again
in the future. (Reyes Decl., Ex. DD; Brosowske Dep. at 49:18-22.) Brosowske testified
that Bjornson’s medical records did not suggest she made any recommendation for
Bjornson to receive chiropractic treatment, (Brosowske Dep. at 22:20-23:7, 31:18-21;
36:6-11; 50:2-5), and Bjornson admitted that Brosowske did not refer him to chiropractic
treatment, (Bjornson Dep. at 154:6-13, 158:1-5, 159:6-21, 162:5-8).
BJORNSON’S 2013 CHIROPRACTIC TREATMENT
On March 21, 2013, a year and a half after his injury, Bjornson returned to a
chiropractor he had seen somewhat regularly prior to his fall – from June 2009 until
October 27, 2011. (Bjornson Dep. at 170:2-171:16; see also Reyes Decl., Ex. EE at 1128 2.) Bjornson testified that he returned to the chiropractor due to recurring neck pain.
(Bjornson Dep. at 171:21-24.) The chiropractor, Christopher Danduran, wrote in his
notes from that first return visit that Bjornson reported “continued chronic right shoulder
pain,” “moderate neck pain on the right; unchanged from the last treatment,” and “mild
restricted neck motion on the left, which is a minimal improvement over his previous
visit.” (Reyes Decl., Ex. EE at 27.) Danduran also noted that Bjornson recalled “having
a few falls on the ice since last visit (1.5 years ago) where he underwent physical therapy
The Court will cite to pages within this document using the last two digits of the bates
Bjornson continued to see Danduran, attending ten appointments from March
through the end of June 2013. (Id. at 27-33.) During several of those appointments,
Danduran noted that Bjornson reported various causes for his pain, including lifting
boxes, long rides on his motorcycle, and sleeping in unusual positions. (Id. at 28, 29, 31,
32.) The first time Danduran made any note of Bjornson’s November 2011 injury was
during an October 23, 2013, visit. (Id. at 36-37.)
After his September 26, 2013, chiropractic appointment, Bjornson called and
scheduled another appointment for September 30, 2013. (Bjornson Dep. at 173:10-174:7;
Reyes Decl., Ex. FF at 25.) Bjornson was on the extra list 3 for September 30, 2013, and
he was required to be available to cover shifts or “protect service” on that date.
(Bjornson Dep. at 179:3-7.) Bjornson promptly attempted to request the day off several
times, but he gave up after being placed on hold, (id. at 185:5-186:2, 189:18-192:10);
finally, Bjornson got through the night before his appointment and requested the day off,
(id. at 192:11-22). Bjornson’s request was denied, but he chose to attend his appointment
and called in sick on September 30, 2013. (Id. at 180:3-11, 202:15-20.)
The extra list, also referred to as the “Guaranteed Extra Board/Guaranteed Extra List,”
is a list of employees that can fill in for “vacancies for employees who are off on vacation or
approved layoffs” to “make sure that [Canadian Pacific] has people to staff trains and Yard
engine assignments.” (Decl. of Justin Dittrich-Bigley (“Dittrich-Bigley Decl.”) ¶ 3, May 31,
2016, Docket No. 60.) The employees on the extra list “are paid a minimum monthly payment
for protecting the board and being available for call all hours of the day.” (Id.)
The day after Bjornson’s appointment, on October 1, 2013, Canadian Pacific
issued a letter notifying Bjornson to appear for a “formal investigation/hearing” into his
“failure to protect service” the day before and his “alleged lay-off under false pretenses”
on September 29, 2013. (Reyes Decl., Ex. GG.) Following a hearing, Canadian Pacific
informed Bjornson by letter that it found he had violated the rule regarding reporting
injuries and that he would serve a five-day suspension once he returned to active duty.
(Id., Ex. II.)
On March 26, 2014, Bjornson filed a complaint with the Occupational Safety and
Health Administration (“OSHA”) challenging his 5-day suspension as retaliation for
following his physician’s treatment plan.
(See id., Ex. JJ at 42.)
investigation, OSHA found no reasonable cause to believe Canadian Pacific violated 49
U.S.C. § 20109, concluding:
Complainant did not engage in protected activity on November 3, 2011,
when he reported a non-work-related injury to his supervisor, nor did he
engage in protected activity when he sought treatment for the non-workrelated injury on September 30, 2013. Therefore, a prima facie allegation
has not been established.
Consequently, this complaint is hereby
(Id., Ex. MM at 11.) Bjornson objected to this decision, on June 26, 2014, (id., Ex. NN),
and advised Canadian Pacific of his intention to file a complaint in federal court on
October 22, 2014, (id., Ex. OO).
On October 31, 2014, Bjornson filed his complaint in federal court. (Compl.,
Oct. 31, 2014, Docket No. 1.) Bjornson filed an amended complaint on February 27,
2015. (Am. Compl., Feb. 27, 2015, Docket No. 32.) Bjornson alleges a negligence claim
under the Federal Employers’ Liability Act (“FELA”) in Count I, a claim under the
FRSA in Count II, a negligence claim against Glenwood Hospitality in Count III, and
loss of consortium against Glenwood Hospitality in Count IV.
On May 31, 2016, Canadian Pacific filed this motion seeking summary judgment
only as to Bjornson’s FRSA claim, found in Count II of his complaint. (Mot. for
Summ. J. of Count II, May 31, 2016, Docket No. 57.)
STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the
lawsuit, and a dispute is genuine if the evidence is such that it could lead a reasonable
jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A court considering a motion for summary judgment must view the facts in
the light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment is appropriate if the
nonmoving party “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
BJORNSON’S FRSA CLAIM
Canadian Pacific challenges Bjornson's FRSA claim, brought under 49 U.S.C.
In pertinent part, § 20109(c)(2) prohibits a railroad carrier from
“disciplin[ing] or threaten[ing] discipline to, an employee for . . . following orders or a
treatment plan of a treating physician.” To establish a prima facie case under this
provision, Bjornson must show that “(i) he engaged in a protected activity; (ii) [Canadian
Pacific] knew or suspected, actually or constructively, that he engaged in the protected
activity; (iii) he suffered an adverse action; and (iv) the circumstances raise an inference
that the protected activity was a contributing factor in the adverse action.” Kuduk v.
BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014) (citing 49 U.S.C. § 42121(b)(2)(B)(i);
29 C.F.R. § 1982.104(e)(2)).
Even if Bjornson establishes this prima facie case,
however, Canadian Pacific can nonetheless avoid liability if it proves, “by clear and
convincing evidence, that it would have taken the same unfavorable personnel action in
§ 42121(b)(2)(B)(ii)) (internal brackets omitted).
Canadian Pacific argues that Bjornson did not engage in protected activity because
his chiropractor is not a “treating physician,” and therefore, Bjornson’s September 30
appointment was not pursuant to any “order or . . . treatment plan of a treating
physician.” 49 U.S.C. § 20109(c)(2). As discussed above, Bjornson does not dispute that
he was never referred to a chiropractor by his treating physicians following his November
2011 injury; and thus, Bjornson relies solely on his chiropractor’s treatment plan.
Neither party provides any case law interpreting the term “physician” in
Canadian Pacific advocates that “treating physician” is properly
interpreted to refer to medical doctors, which would not include chiropractors. Canadian
Pacific states that if Congress intended to include chiropractors in the statute, it could
have done so; Congress used the broader term “health care providers” in the Family and
Medical Leave Act, and that term was later defined by regulation to include chiropractors
in specific circumstances. See 29 U.S.C. § 2611(6); 29 C.F.R. § 825.125(b)(1) (including
chiropractors as capable to provide health care services only when providing “treatment
consisting of manual manipulation of the spine to correct a subluxation as demonstrated
by X-ray to exist”).
Bjornson acknowledges that a chiropractor is not a medical doctor, but argues that
the statute should be interpreted to cover chiropractors as well as medical doctors.
Bjornson notes the Joint Commission, a credentialing body for hospitals and healthcare
organizations, recently recognized chiropractors as physicians. (Brandis Aff., Ex. I.)
However, this decision occurred in 2014 and thus it was not considered by Congress
when it enacted § 20109(c)(2) in 2008; additionally, the recent decision to recognize
chiropractors as physicians suggests that they were not previously considered physicians
by the Joint Commission.
Congress certainly could have chosen other, broader terms such as “health care
providers,” but it chose the limited word “physician,” which Merriam-Webster’s
Dictionary defines as “one educated, clinically experienced, and licensed to practice
medicine,” Merriam-Webster’s Collegiate Dictionary 935 (11th ed. 2007), and Oxford’s
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Dictionary defines as “a person qualified to practice medicine,” Oxford American
Dictionary 1321 (3rd ed. 2010). There is no indication that the term "physician" was
meant to cover additional professionals besides medical doctors, and the Court is not
persuaded otherwise based on the Joint Commission’s decision to begin recognizing
chiropractors as physicians in 2014.
Bjornson also suggests that limiting the term “physicians” to medical doctors
would run contrary to Congress’s intent in establishing FRSA because much of railroad
employees’ ongoing treatment would include physical therapy, and if a chiropractor is
not a physician, then a physical therapist also likely is not a physician. The Court need
not decide whether a physical therapist would qualify as a treating physician under the
statute. But the Court is not persuaded by Bjornson’s policy argument because, in many
cases, a medical doctor initially refers a patient to a physical therapist, in which case one
could argue that the physical therapy plan would still be considered part of the medical
doctor’s order or treatment plan. Here, however, Bjornson independently decided to see
a chiropractor, without a referral from a medical doctor, and thus, he could not rely on
such an argument. The Court is not convinced that the ordinary meaning of “physician”
runs counter to Congress’s intent.
The Court finds that Bjornson did not engage in protected activity under the
statute because he was not following the treatment plan or order of a treating physician. 4
Canadian Pacific also argued that Bjornson’s did not engage in protected activity
because his treatment was not for an “on-duty injur[y.]” See Port Auth. Trans-Hudson Corp. v.
Sec’y, U.S. Dep’t of Labor, 776 F.3d 157, 169 (3d Cir. 2015) (holding that § 20109(c)(2) covers
(Footnote continued on next page.)
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Accordingly, Bjornson’s FRSA claim fails, and the Court will grant Canadian Pacific’s
This case will be placed on the Court’s next available trial calendar.
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Canadian Pacific’s Motion for Summary Judgment of
Count II [Docket No. 57] is GRANTED. Count II is DISMISSED with prejudice.
DATED: February 21, 2017
at Minneapolis, Minnesota.
JOHN R. TUNHEIM
United States District Court
only treatment for “on-duty injuries”). Because the Court finds that Bjornson was not following
a treatment plant of a treating physician, it need not decide whether Bjornson’s injury would be
considered on-duty for § 20109(c)(2) purposes. Nevertheless, the Court notes that no court has
interpreted when an injury occurs “during the course of employment,” under § 20109(c), and it is
not clear why that language would be interpreted differently than FELA, which covers “injuries
sustained in the course of employment,” CSX Transp., Inc. v. McBride, 564 U.S. 685, 691
(2011), and can include injuries sustained in employer-provided housing, see Empey v. Grand
Trunk W. R.R. Co., 869 F.2d 293, 295-96 (6th Cir. 1989) (finding that “an employee who is
injured while he avails himself of housing which his employer has provided and implicitly
encouraged him to use is within the scope of his employment for the purposes of FELA”); see
also Lockard v. Missouri Pacific R. Co., 894 F.2d 299, 304 (8th Cir. 1990) (citing Empey with
Additionally, because the Court finds Bjornson has not shown he engaged in protected
activity, the Court need not reach Canadian Pacific’s other arguments that Bjornson’s treatment
was not a contributing factor to his suspension and that Canadian Pacific would have reached the
same decision regardless of any protected activity.
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