Wooten v. BNSF Railway Company
ORDER adopting Findings and Recommendations 200 in full. The Parties' cross-motions for partial summary judgment on Wooten's FRSA claim 99 and 105 are DENIED and BNSF's Motion for Summary Judgment on Wooten's LIA claim 102 isDENIED. Signed by Judge Dana L. Christensen on 9/18/2018. (ASG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BNSF RAILWAY COMPANY, a
United States Magistrate Judge Jeremiah C. Lynch entered his Findings and
Recommendation and Order in this case on May 29, 2018, recommending the
denial of the Parties' cross-motions for partial summary judgment on Plaintiff
Zachary Wooten's ("Wooten") Federal Railroad Safety Act ("FRSA") claim and
Defendant BNSF Railway Company's ("BNSF") Motion for Summary Judgment
on Wooten's Locomotive Inspection Act ("LIA") claim. (Doc. 200 at 49.) BNSF
timely objected to Judge Lynch's recommendations and also objected to his order
precluding the deposition of Greg Smith and denying BNSF's motion to compel an
examination of Wooten's cell phone. (Docs. 218; 220.) Consequently, BNSF is
entitled to de novo review of those findings and recommendations to which it has
specifically objected. 28 U.S.C. § 636(b)(l)(C). Absent objection, this Court
reviews findings and recommendations for clear error. United States v. Reyna-
Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane); Thomas v. Arn, 474 U.S.
140, 149 ( 1985). Clear error exists if the Court is left with a "definite and firm
conviction that a mistake has been committed." United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000) (citations omitted). Additionally, when a party objects to
the magistrate's order on a pretrial matter, this Court may reconsider the
magistrate's order ifthe party "show[s] that the magistrate judge's order is clearly
erroneous or contrary to law." 28 U.S.C. § 636(b )(1 )(A).
"A party makes a proper objection by identifying the parts of the
magistrate's disposition that the party finds objectionable and presenting legal
argument and supporting authority, such that the district court is able to identify
the issues and the reasons supporting a contrary result." Montana Shooting Sports
Ass 'n v. Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010) (citation
omitted). "It is not sufficient for the objecting party to merely restate arguments
made before the magistrate or to incorporate those arguments by reference." Id.
Congress created magistrate judges to provide district judges "additional assistance
in dealing with a caseload that was increasing far more rapidly than the number of
judgeships." Thomas, 474 U.S. at 153. There is no benefit to the judiciary "if the
district court is required to review the entire matter de novo because the objecting
party merely repeats the arguments rejected by the magistrate. In such situations,
this Court follows other courts that have overruled the objections without
analysis." Montana Shooting Sports Ass 'n, 2010 WL 4102940, at *2 (internal
quotation marks and citation omitted).
For the following reasons, Judge Lynch's Findings and Recommendation
and Order will be adopted in full.
BNSF's Motion for Partial Summary Judgment on Wooten's FRSA
Under the Federal Railroad Safety Act:
A railroad carrier engaged in interstate or foreign commerce, ... may
not discharge, demote, suspend, reprimand, or in any other way
discriminate against an employee if such discrimination is due, in
whole or in part, to the employee's lawful, good faith act done, or
perceived by the employer to have been done or about to be doneto notify, or attempt to notify, the railroad carrier or the Secretary of
Transportation of a work-related personal injury or work-related
illness of an employee.
49 U.S.C. § 20109(a)(4). Pursuant to§ 20109(d)(2)(A), employees alleging
violation of§ 20109(a) must abide by the procedures set forth in 49 U.S.C.
As the factual background in this case is well known to both the Court and the Parties, it will
not be repeated here to the extent unnecessary to the Court's discussion.
Claims under the FRSA, as governed by§ 42121(b), are analyzed under a
burden-shifting framework which "is much more protective of plaintiffemployees" than other burden-shifting frameworks. Araujo v. New Jersey Transit
Rail Operations, Inc., 708 F.3d 152, 158 (3d Cir. 2013). First, Plaintiff must show,
by a preponderance of the evidence, that: (1) he engaged in a protected activity as
defined by statute; (2) the employer knew he engaged in the protected activity; (3)
he suffered an unfavorable personnel action; and (4) the protected activity was a
contributing factor in the unfavorable personnel action. 49 U.S.C. § 42121(b);
Araujo, 708 F.3d at 157; Tamosaitis v. URS Inc., 781 F.3d 468, 481 (9th Cir.
2015). If Plaintiff makes this prima facie showing, then "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."' Araujo, 708 F.3d at 159 (quoting§ 42121(b)(2)(B)(ii)).
Of relevance here, the Parties filed cross-motions for summary judgment on
the fourth element of Wooten's prima facie case. Judge Lynch concluded, and this
Court agrees, that summary judgment is not appropriate on this element in favor of
either party. Wooten has come forward with sufficient evidence to raise a genuine
issue of material fact as to whether BNSF retaliated against him for reporting an on
the job injury. While BNSF is correct that the district judge must "determine de
novo any part of the magistrate judge's disposition that has been properly objected
to," (Doc. 218 at 4 (quoting L.R. 72(b)(3))) it is incorrect in its assertion that the
Court is obligated to do so in this case.
An objection to a magistrate's findings and recommendations is not a
vehicle for the losing party to relitigate its case, which is precisely what BNSF has
done here. In these situations, this Court follows other courts that have overruled
the objections without analysis. Hagberg v. Astrue, 2009 WL 3386595, at* 1 (D.
Mont. Oct. 14, 2009). BNSF's only addition to the arguments already weighed and
discounted by Judge Lynch is its assertion that a deposition which occurred after
the issuance of Judge Lynch's Findings and Recommendations and Order provides
information refuting any basis upon which any reasonable fact-finder could find
retaliatory motive-namely, the testimony of one Mark Premrock stating that
Wooten's supervisor's overall rating dropped from prior years. (Doc. 218 at 12.)
The Court does not share BNSF 's conviction concerning the conclusiveness of its
new evidence and will leave the weighing of this unresolved factual dispute to the
BNSF further requested summary judgment on Wooten's FRSA claim for
failure to exhaust as well as on Wooten's punitive damages claim. Judge Lynch
recommended denying summary judgment on both fronts. BNSF's objections to
Judge Lynch's recommendations regarding punitive damages and failure to
exhaust administrative remedies are again deficient as they are nearly verbatim
recitations of the arguments and authority already before Judge Lynch.
Consequently, all ofBNSF's objections to Judge Lynch's recommendation
regarding Wooten's FRSA claim are overruled.
Wooten's Motion for a Protective Order Precluding the Deposition of
Greg Smith and BNSF's Motion to Compel the Forensic Examination of
Wooten's Cell Phone
Nearly three months after the close of discovery, on May 8, 2018, BNSF
noticed the depositions of Greg Smith (whom BNSF had previously deposed),
Nick Palicz, and Rusty Weber. On May 16, 2018, Wooten requested a protective
order precluding the three depositions. (Doc. 181.) While recognizing that the
depositions would be untimely, BNSF contended that the depositions were
necessary because recently discovered text messages indicated that Greg Smith had
lied in his prior deposition and that all three individuals had previously undisclosed
information regarding the possibility that Wooten had injured himself during a
night of heavy drinking prior to reporting to work on July 31, 2015. Additionally,
BNSF moved to compel a forensic examination of Wooten's cell phone based
upon its contention that Wooten deleted relevant text messages between him and
Greg Smith relating to the night of drinking.
Judge Lynch denied Wooten's request for a protective order as to Nick
Palicz and Rusty Weber but granted it in regard to Greg Smith. Judge Lynch also
denied BNSF's request to compel a forensic examination of Wooten's cell phone.
(Doc. 200 at 48--49.) Judge Lynch made these decisions based upon his finding
that the requests were untimely and, specifically regarding the request to depose
Greg Smith, BNSF had "not shown good cause for deposing him a second time."
(Id. at 48.) This Court must defer to Judge Lynch's order unless it is clearly
erroneous or contrary to law. Grimes v. City and County ofSan Francisco, 951
F.2d 236, 241 (9th Cir. 1991). In essence, BNSF objects to Judge Lynch's
decisions to preclude Greg Smith's continued deposition and deny their motion to
compel the forensic examination of Wooten's cell phone because, in BNSF's view,
Judge Lynch failed to appreciate how good of a reason there is for this additional
discovery. Additionally, BNSF takes issue with the fact that Judge Lynch allowed
two depositions but denied the other requests when the reason supporting all of the
requests was the same-newly discovered text messages implicated the veracity
and completeness of previous discovery. (Doc. 220 at 5-6.) BNSF does not cite to
any legal authority to support its contention that Judge Lynch's decisions were
The fact of the matter is that the district court "has wide discretion in
controlling discovery ... [and] will not be overturned unless there is a clear abuse
of discretion." Little v. City ofSeattle, 863 F.2d 681, 685 (9th Cir. 1988). Judge
Lynch made his decisions based upon his uncontroverted finding that the requests
for depositions and forensic examination were untimely. The Court can find no
clear error in this determination. Further, the Court finds that it is squarely within
the broad discretion allotted to the Court to. grant some discovery requests while
denying others, even ifthe basis for the requests is the same, despite BNSF's
unsupported assertions to the contrary. Accordingly,
IT IS ORDERED that Judge Lynch's Findings and Recommendations and
Order (Doc. 200) are ADOPTED IN FULL. The Parties' cross-motions for partial
summary judgment on Wooten's FRSA claim (Docs. 99; 105) are DENIED and
BNSF's Motion for Summary Judgment on Wooten's LIA claim (Doc. 102) is
J.a.J.Li of September, 2018.
Dana L. Christensen, Chief Judge
United States District Court
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