Frost v. BNSF Railway Company

Filing 112

ORDER re 110 Trial Brief filed by BNSF Railway Company. Evidence concerning the Incentive Compensation Plan, Personal Performance Index, and OSHA Accord is excluded from trial. Signed by Judge Donald W. Molloy on 12/14/2016. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

MICHAEL A. FROST,

CV 15–124–M–DWM

Plaintiff,
vs.

ORDER

BNSF RAILWAY COMPANY,
Defendant.

Before the Court are parties’ cross-motions regarding the admissibility of
evidence concerning the Personal Performance Index, Incentive Compensation
Plan, and the OSHA Accord.
Review of the evidence regarding the Incentive Compensation Plan shows it
is not relevant to this case. For instance, there is no individual calculation for each
BNSF manager that factors into the Incentive Compensation Plan; instead, the
Plan applies to all managers and scheduled employees. This system-wide effect,
coupled with the complexity of the calculations in the Plan and the scale at which
it is used to make compensation decisions (200,000 work hours) show the Plan has
limited, if any, relevance to the motivations of the BNSF managers in charge of
Frost’s discipline, Rule 401, which does not outweigh the cumulative and

confusing effect introduction of the Plan would have, Rule 403.
Nor is BNSF’s Personal Performance Index policy sufficiently relevant
here. First, the PPI has been discontinued following the OSHA Accord. Second,
there is no evidence of any points or remedial training being assessed to the
plaintiff. Third, BNSF did not use the Personal Performance Index for discipline.
Personal Performance Index is of limited relevance under Rule 401, and, like the
Incentive Compensation Plan, would introduce redundancy and confusion in this
case, Rule 403.
Finally, the OSHA Accord is also not relevant to this case. The Accord’s
purported relevance hinges on demonstrating the ill-intent toward Mr. Frost on the
part of the BNSF managers who directed his discipline. However, Mr. Frost was
not party to the Accord, and, because no evidence shows the Personal Performance
Index and Compensation Plan affected Mr. Frost’s discipline, the Accord does not
touch on facts relevant to this case.
According, IT IS ORDERED that BNSF’s motion (Doc. 110) is
GRANTED. Evidence concerning the Incentive Compensation Plan, Personal
Performance Index, and OSHA Accord is excluded from trial.

DATED this 14th day of December, 2016.