Heim v. BNSF Railway Company

Filing 92

MEMORANDUM AND ORDER - After hearing held on February 18, 2015,1) The railroad's motion to strike, (Filing No. 82 ), is denied;2) The plaintiff's motion for leave to file a reply, (Filing No. 85 ), is granted;3) The railroad&# 039;s motion to compel, (Filing No. 51 ) is denied;4) The plaintiff's motion to amend the final progression order, (Filing No. 78 ), is denied; and5) The railroad's motion for protective order, (Filing No. 59 ), is granted.Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

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

8:13CV369

vs.
MEMORANDUUM AND ORDER
BNSF RAILWAY COMPANY,
Defendant.
On February 18, 2015, the court held a hearing on the parties’ pending motions.
During the hearing, the court summarily denied the railroad’s motion to strike,
(Filing No. 82), and granted the plaintiff’s motion for leave to file a reply, (Filing No.
85).
The court heard the parties’ arguments on the remaining motions and, for the
reasons stated on the record:

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Denied the railroad’s motion to compel, (Filing No. 51); and

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Denied the plaintiff’s motion to amend the final progression order, (Filing
No. 78); The plaintiff failed to show the requisite due diligence justifying
any continuance of the motion to compel deadline set forth in the court’s
progression order. Sherman v. Winco Fireworks, Inc., 532 F.3d 709 (8th
Cir. 2008).

As to the railroad’s motion for protective order, (Filing No. 59), the court found
the plaintiff’s noticed 30(b)(6) deposition to explore the railroad’s alleged national policy
of assessing points against employees who claimed a work-related personal injury:

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was not necessary to prove the plaintiff reported a work-related injury; that
fact is not in dispute. See Fed. R. Civ. P. 26(b)(2)(C)(i); and

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was not relevant as to any claim that assessment of points was an adverse
employment action: 1) such a claim was not raised in the complaint and is
not before the court (see Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007));
and 2) based on the testimony of record, the points assessment was used, at
most, to evaluate and identify employees needing additional training and
for making employment decisions related to termination, reduction in pay
or benefits, and changes in employment that significantly affect an
employee's future career prospects. Spears v. Missouri Dep't of Corr. &
Human Res., 210 F.3d 850 (8th Cir. 2000); Koziara v. BNSF Ry. Co., No.
13-CV-834-JDP, 2015 WL 137272, at *1 (W.D. Wis. Jan. 9, 2015).

After reviewing the information provided or pinpointed after the hearing at the
court’s request, (Filing No. 90-1), specifically the testimony of Samuel Casey Turnbull,
the decision-maker, and his understanding of the railroad’s point system, the court finds
the proposed 30(b)(6) deposition will not reasonably lead to the discovery of relevant
information as to the railroad’s basis or motive for imposing a Level S 30-Day Record
Suspension and a One Year Review Period on the plaintiff. As to this plaintiff, Turnbull
admitted that a points system existed, and he explained its purpose. But he did not use
the system to decide whether to impose a Level S 30-Day Record Suspension and a One
Year Review Period, the points information was never located on any employee’s
transcript, it was never used as a factor in making employee discipline decisions, and the
decision-maker in this case does not know if he even had access to the information
without contacting upper management. (Filing No. 90-1).
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“Some threshold showing of relevance must be made before parties are required to
open wide the doors of discovery and to produce a variety of information which does not
reasonably bear upon the issues in the case.” Hofer v. Mack Trucks, 981 F.2d 377, 380
(8th Cir.1992). Other than pure speculation, the plaintiff has shown no connection
between the railroad’s decision to impose a Level S 30-Day Record Suspension and a
One Year Review Period and the railroad’s national points system.

Accordingly,

IT IS ORDERED:

1)

The railroad’s motion to strike, (Filing No. 82), is denied;

2)

The plaintiff’s motion for leave to file a reply, (Filing No. 85), is granted;

3)

The railroad’s motion to compel, (Filing No. 51) is denied;

4)

The plaintiff’s motion to amend the final progression order, (Filing No. 78),
is denied; and

5)

The railroad’s motion for protective order, (Filing No. 59), is granted.

February 20, 2015.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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