Heim v. BNSF Railway Company

Filing 114

ORDER denying 73 Motion for Partial Summary Judgment; granting 97 Motion for Summary Judgment. Heim's motion for partial summary judgment is denied. BNSF's motion for summary judgment is granted. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (DCD)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KELLY HEIM,
Plaintiff,

8:13-CV-369

vs.
MEMORANDUM AND ORDER
BNSF RAILWAY COMPANY,
Defendant.
The plaintiff in this case, Kelly Heim, alleges that the defendant, BNSF
Railway Company, discriminated against him in violation of the Federal
Railroad Safety Act ("FRSA"), 29 U.S.C. § 20101 et seq., by disciplining him
for reporting his work-related injury. Heim and BNSF have cross-moved for
summary judgment. For the reasons that follow, Heim's motion for partial
summary judgment (filing 73) will be denied and BNSF's motion for
summary judgment (filing 97) will be granted.
BACKGROUND1
At the time of the injury Heim was a laborer on a BNSF crew working
in the general vicinity of Douglas, Wyoming. Filing 95-2 at 16. The project
Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement.
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The purpose of Rule 56.1 is, obviously, for the parties to assist the Court by allowing the
Court to identify, and focus its attention on, the parties' genuine disagreements. But the
Court was frustrated in this case by BNSF's approach to the rule. Instead of identifying
genuine disputes of fact, BNSF chose to dispute nearly every fact asserted by Heim, usually
raising spurious evidentiary or semantic complaints instead of anything substantive. For
instance, Heim asserted that "[t]he rail was lying flat and not moving" before he stepped
over it. Filing 74 at 3. There is, in fact, no evidence to the contrary. BNSF dedicates a halfpage to disputing this sentence, mostly complaining that it is vague, indefinite, and
irrelevant. Filing 94 at 7. But nothing in that half-page actually disputes the fact asserted.
And that is just one example; it goes on for 29 pages.
The end result of BNSF's obfuscation was a remarkable waste of everyone's time,
particularly the Court's. Nor does the result of the case validate BNSF's tactics: the merits
of this dispute, which favored BNSF, were harder for the Court to evaluate than they
should have been precisely because they were obscured by immaterial factual squabbling.

Heim was working on was "rail seat abrasion," which involves replacing the
material underneath the rail: the pads, insulators, and clips. Filing 76-1 at 4.
The rail is removed, the worn material is replaced, and then the rail is put
back into place. Filing 76-1 at 4. This requires de-clipping the rail from the
bed and swinging the rail into the middle of the track. Filing 76-3 at 2. But
while the rail is detached from the rail bed, it is still under tension from
either direction, and can jump or roll unpredictably. Filing 76-1 at 4. And the
rail had been rolling frequently on the day of the accident, because the crew
was working on a sharp curve. Filing 76-2 at 24.
Heim's responsibility that day was to pick up metal and other scraps
along the track. Filing 76-3 at 2. Heim was collecting material about 600 feet
from the end of the project. Filing 76-3 at 2. He saw a clip in the middle of the
track on the high side of the detached rail, between the detached rail and the
still-affixed rail. Filing 76-3 at 2. He looked to see how close the nearest
machines were, and thought it was safe to step over the rail to collect the
stray clip. Filing 76-3 at 2. But when he did, the detached rail jumped and
landed on top of his left foot, injuring his foot and pinning him in place. Filing
76-3 at 2.
Heim got the attention of a co-worker who summoned assistance, but it
took about 30 minutes to finally lift the rail enough to free Heim's foot. Filing
76-3 at 3. Heim was transported to the hospital by his supervisor in a
company pickup truck. Filing 76-3 at 3. Heim had fractured bones in his foot.
Filing 76-3 at 3. While he was in the hospital, Heim completed a BNSF injury
report form (filing 76-4) regarding the incident and his broken bones,
although the parties dispute the circumstances under which Heim filled out
the form. (Heim says he filled out the form unwillingly, under pressure and
with coaching from his supervisor; his supervisor denies pressuring him and
claims that Heim said he was all right to fill out the form. Compare filing 763 at 4 with filing 95-4 at 3-4.)
Just over a week later BNSF sent Heim a letter (filing 76-1) notifying
him of an investigation into Heim's "alleged failure to comply with
instructions given at the morning briefing" and "failure to be alert &
attentive" when he placed his foot "in harms [sic] way between the loose rail
and fixed rail resulting in injury to [his] left foot when the rail rolled. . . ."
Filing 76-1 at 2. At the hearing, Heim's supervisor said that "as a rule we
don't scrap between a loose rail and a fixed rail." Filing 76-2 at 14. Instead,
Heim should have been collecting material from the low side of the detached
rail. Filing 76-2 at 14. Heim's supervisor also said that "tipping rail" had been
discussed several times at the morning job briefings. Filing 76-2 at 16-17.
Heim was eventually found to have violated safety rules generally
requiring employees to take a safe course, be alert and attentive to avoid
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injury, and be alert to walkway conditions. Filing 76-8; filing 76-10; filing 7611. Heim was assessed a "Level S 30 Day Record Suspension" and an
associated one-year review period, during which another violation could have
had more serious consequences. Filing 76-8; filing 76-9 at 4. But a "record
suspension" is recorded on an employee's personal record, not actually served.
Filing 76-9 at 4. Heim completed the review period without incident, and his
pay and benefits were unaffected. Filing 95-2 at 31.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
The purpose of the FRSA is to "promote safety in every area of railroad
operations and reduce railroad-related accidents and incidents." 49 U.S.C. §
20101; see CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 661-62 (1993). As
relevant, the FRSA provides that a railroad "may not discharge, demote,
suspend, reprimand, or in any other way discriminate against an employee" if
that discrimination is based on the employee's attempt "to notify, or attempt

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to notify, the railroad carrier or the Secretary of Transportation of a workrelated personal injury or work-related illness of an employee." 49 U.S.C. §
20109(a)(4). FRSA's implementing regulations further provide that to
"discriminate" against an employee includes, but is not limited to,
"intimidating, threatening, restraining, coercing, blacklisting, or disciplining
an employee." 29 C.F.R. § 1982.102(b)(1)(iv). An employee may obtain de novo
review of a retaliation claim in federal court after exhausting administrative
remedies. 49 U.S.C. § 20109(d)(3).
Heim's prima facie case requires him to show (i) he engaged in a
protected activity; (ii) the defendant 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)). If he makes this showing, BNSF
is nonetheless not liable if it demonstrates, by clear and convincing evidence,
that it would have taken the same unfavorable personnel action in the
absence of his protected activity. Id. (citing 49 U.S.C. § 42121(b)(2)(B)(ii)).
In this case, there is no dispute that Heim engaged in a protected
activity, and that BNSF knew about it: he reported his work-related personal
injury to BNSF. The parties disagree about the other two elements of the
prima facie case: BNSF contends that Heim did not suffer an adverse action,
and that the circumstances do not support an inference that his injury report
was a contributing factor to whatever adverse action he might have suffered.
As suggested above, the FRSA sets a very low bar for "adverse" action, and it
includes a "reprimand" or "disciplining" an employee. See, 29 U.S.C. §
20109(a)(4); 29 C.F.R. § 1982.102(b)(1)(iv). Heim suffered little in the way of
real consequences from the investigation into his accident; however, to
characterize it as a "reprimand" or "disciplining" would not seem inaccurate.
See Blackorby v. BNSF Ry. Co., No. 13-CV-908, 2015 WL 58601, at *3 (W.D.
Mo. Jan. 5, 2015). But the Court need not ultimately decide that question
because the Court finds that the circumstances do not support an inference
that Heim was disciplined for reporting his injury.
The Eighth Circuit has explained that the essence of the intentional
tort of FRSA retaliation is discriminatory animus. Id. at 791. Under the
statute's "contributing factor" causation standard, a prima facie case does not
require that the employee conclusively demonstrate the employer's
retaliatory motive. Id. A contributing factor is any factor which, alone or in
connection with other factors, tends to affect in any way the outcome of the
decision. Id. But the contributing factor that an employee must prove is

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intentional retaliation prompted by the employee engaging in protected
activity. Id.
Heim's argument, reduced to its essence, is that the injury report was a
contributing factor to his discipline because it was a but-for cause of the
investigation and sanction. Filing 103 at 32. Employees commonly step near
loose rails, Heim contends, and BNSF cannot identify anyone else who was
disciplined for it. Filing 103 at 32-33. And Heim argues that BNSF learned
he had stepped between a loose and fixed rail from his injury report. Filing
103 at 34. Ergo, Heim concludes, "BNSF would not have disciplined Heim
had he not been injured." Filing 103 at 35.
And that much may be true, but that is not what the FRSA requires a
plaintiff to show. The FRSA protects reporting an injury because it
encourages safety to do so: it prevents railroads from covering up safety
hazards by underreporting any resulting injuries. It would be peculiar indeed
if the FRSA also protected employees from being disciplined for conduct
actually resulting in an injury. Or, more to the point: reporting an injury is
protected activity under 49 U.S.C. § 20109, but actually being injured is not
protected.
Under Heim's reading of the FRSA, he could tie himself to the railroad
tracks like a damsel in distress in a silent film melodrama, and then avoid
punishment if injured as a result simply by completing an injury report
confessing his behavior. But the Court cannot accept the implication that an
injury report is a "contributing factor" to an adverse action simply because it
is part of the administrative process which resulted in discipline. And the
Eighth Circuit made clear, in Kuduk, that an inference of intentional
retaliatory animus is required. 768 F.3d at 791-92. Heim's attempt to rely on
but-for causation is insufficient.
For that matter, it is not entirely clear to the Court that Heim's injury
report—that is, the form that he completed—was a cause of anything. Heim
reported the incident, as a practical matter, when he yelled for help while he
was trapped under a rail. The circumstances, in fact, undercut any inference
of retaliation for reporting an injury at practically every turn. It would make
little sense to retaliate against an employee for "reporting an injury" that was
evident to the railroad from nearly the moment it occurred. And it was
Heim's supervisor who asked him to complete the official report form. In fact,
Heim claims that he was pressured to do so, which begs the question: why
would BNSF work to get Heim to make a report and then retaliate against
him for making it?
Heim's answer seems to be that he was really disciplined because he
was injured. That, as noted above, is not protected activity under the FRSA.
Nor is it particularly surprising. Think of all the negligent driving that
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happens every day, unnoticed by authorities, because no accident resulted.
Only when a negligent driver is unlucky enough to cause an accident is a
citation likely to be issued. Heim's act of stepping between the rails would,
the Court agrees, have gone unsanctioned had he not been injured—most
likely because it would have gone unnoticed. And the Court sees no basis, in
the FRSA or sensible public policy, to say that a railroad cannot take a
violation of safety rules, even a common one, more seriously in the instances
in which an injury results. Heim's evidence that no other employees were
disciplined for similar conduct therefore fails to prove any kind of retaliatory
animus against him: he has failed to identify a similarly situated employee
who was treated differently, that is, an employee who did the same thing and
was injured, but who was not disciplined as a result. See, Jauhola v.
Wisconsin Cent., Ltd., No. 14-CV-1433, 2015 WL 4992392, at *6 (D. Minn.
Aug. 20, 2015); Gunderson v. BNSF Ry. Co., No. 14-CV-223, 2015 WL
4545390, at *13 (D. Minn. July 28, 2015); Loos v. BNSF Ry. Co., No. 13-CV3373, 2015 WL 3970169, at *6 (D. Minn. June 30, 2015).
Heim also complains about the investigation, and how vague the rules
are that he was found to have violated. He complains that no rule expressly
prohibits stepping between loose and fixed rails. Filing 103 at 36-38. But that
is essentially a challenge to BNSF's application of its own rules, and the
Eighth Circuit has explained that federal courts do not sit as a superpersonnel department that re-examines an employer's disciplinary decisions.
Kuduk, 768 F.3d at 792. In the absence of evidence suggesting that
retaliation for reporting an injury was a contributing factor to his discipline,
Heim is not entitled to relief, even if BNSF's disciplinary decision was
inaccurate. Id.; see, Jauhola v. Wisconsin Cent., Ltd., 2015 WL 4992392, at
*7; Gunderson, 2015 WL 4545390, at *12.
IT IS ORDERED:
1.

Heim's motion for partial summary judgment (filing 73) is
denied.

2.

BNSF's motion for summary judgment (filing 97) is
granted.

3.

A separate judgment will be entered.

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Dated this 30th day of September, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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