McFarland v. BNSF Railway Company

Filing 58

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - denying 40 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CC, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No.

BRENT McFARLAND,

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Plaintiff,

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4:16-CV-05024-EFS

ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

v.
BNSF RAILWAY COMPANY,

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Defendant.

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Before the Court is Defendant BNSF Railway Company’s Motion for

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Summary

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Plaintiff Brent McFarland claims that BNSF wrongfully discharged him in

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retaliation for hiring an attorney and bringing a lawsuit under the

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Federal Employers Liability Act (FELA). See ECF No. 17.

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summary judgment, arguing that Mr. McFarland was not discharged for

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filing a FELA claim, and was instead removed from the seniority roster

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pursuant to Rule 16(f) of the Brotherhood Railway Carmen Collective

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Bargaining Agreement (BRC CBA) because he worked for another employer

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while on a leave of absence. ECF No. 40.

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McFarland

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alternative relief — for partial summary judgment as to “the portion of

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plaintiff’s claim that relies on alleged disparate treatment.” ECF No.

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40 at 10.

Judgment

ORDER - 1

lacks

and

any

for

Partial

similarly

Summary

situated

Judgment,

ECF

No.

40.

BNSF seeks

BNSF also argues that Mr.
comparator,

and

asks

—

as

Mr. McFarland counters that a jury could find that dismissal

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under Rule 16(f) was pretext, or that his FELA lawsuit was nevertheless

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a substantial factor in BNSF’s decision, and that his claim is not

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dependent on proving disparate treatment. ECF No. 48.

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the record and relevant legal authority, for the reasons set forth

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below, the Court finds there are genuine issues of material fact and

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therefore denies BNSF’s Motion.
I.

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After reviewing

FACTS AND ALLEGATIONS

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Mr. McFarland worked for BNSF for over 15 years as a carman,

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starting in 1994 and terminating in 2013. Ex. 54, ECF No. 51-1 at 43.

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The BRC CBA, which governed Mr. McFarland’s employment relationship with

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BNSF, prohibited other employment during a leave of absence:
Employees accepting other compensated employment while on
leave of absence without first obtaining permission from the
officer in charge and approved by the General Chairman shall
be considered out of service, and their names shall be removed
from the seniority roster.1

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CBA Rule 16(f), Ex. 1, ECF No. 46-1 at 16.

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employment

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company, RJ Mac, including during periods when he had taken a leave of

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absence from BNSF. See, e.g., Ex. 4, ECF No. 42-1 at 3–4.

with

BNSF,

Mr.

McFarland

Nonetheless, throughout his

also

worked

for

his

father’s

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According to Mr. McFarland, “[p]robably 95 percent of all of the

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foremans [sic] knew” that he worked for RJ Mac while on a leave of

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absence. Ex. 52, ECF No. 51-1 at 19.

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Mr. McFarland’s supervisors have provided affidavits stating that they

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were unaware of Mr. McFarland’s employment with RJ Mac while on leave,

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and that if they had known, they would have informed Mr. McFarland that

BNSF denies this, and three of

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1

Though this BRC CBA only became effective in February 2006, the predecessor
agreement contained the same restrictions. See Ex. 14, ECF No. 55-1 at 23.

ORDER - 2

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such

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violation. Exs. 16–18, ECF No. 55-1 at 34–35, 39–43, 48–49.

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did not take any proactive steps to discover Rule 16(f) violations, had

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no

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violations, and in ten years — across the country — had discharged only

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three employees under Rule 16(f). Ex. 68, ECF No. 51-1 at 151–152;

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Ex. 70, ECF No. 51-1 at 160.

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9

employment

written

was

policies

prohibited

on

how

to

or

they

handle

would

have

allegations

reported

of

the

Yet, BNSF

Rule

16(f)

In December 2009, Mr. McFarland injured his right shoulder. See
ECF No. 17 at 3.

In 2012, after trying unsuccessfully to obtain

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compensation from BNSF, Mr. McFarland filed a FELA lawsuit, alleging

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BNSF committed negligence that had caused him to suffer an on-the-job

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injury. Ex. 57, ECF No. 51-1 at 53–57.

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resulting trial, Mr. McFarland’s testimony included statements that he

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had worked for RJ Mac while on leaves of absence from BNSF in 2003 and

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2004. Ex. 59, ECF No. 51-1 at 75–77.

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BNSF’s favor on Mr. McFarland’s FELA claim, and the trial court entered

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its last ruling — denying Mr. McFarland’s motion for new trial — on

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October 22, 2013. Ex. 61, ECF No. 51-1 at 106.

In August 2013, during the

Ultimately, the jury found in

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On November 6, 2013, Mr. McFarland and his union representative,

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Bert Barnes, were called into Ryan Risdon’s office. Ex. 52, ECF No. 51-

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1 at 109.

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McFarland, which indicated that Mr. McFarland was being removed from

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the seniority roster for violating Rule 16(f) of the BRC CBA. Ex. 60,

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ECF No. 51-1 at 95–96. Mr. McFarland avers that upon reading the letter,

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he confronted Mr. Risdon, saying, “This is retaliation for my lawsuit.”

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And Mr. Risdon’s response was something to the effect of: “What do you

ORDER - 3

Mr. Risdon presented a letter bearing his signature to Mr.

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expect?

You sued the railroad.” Ex. 52, ECF No. 51-1 at 24–28.

During

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a deposition, Mr. Barnes likewise paraphrased Mr. Risdon’s statement

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as: “What did you think would happen if [you] sued the railroad[?]”

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Exhibit 62, ECF No. 51-1 at 111.

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such a statement, and asserts that Mr. Risdon merely said the matter

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was outside his control and explained the origins of the evidence used

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to find a Rule 16(f) violation. Ex. 12, ECF No. 55-1 at 4.

But BNSF denies that Mr. Risdon made

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The union initially challenged Mr. McFarland’s discharge, but

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later informed him that it would not be pursuing the grievance because

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it did not believe it could prevail in arbitration. See Ex. 11, ECF

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No. 43-1 at 43.

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BNSF’s proffered reason for terminating him — Rule 16(f) — was merely

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a

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retaliation for filing a grievance and FELA lawsuit seeking to recover

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for his worksite injury. ECF No. 17.

pretext

for

Mr. McFarland then filed this lawsuit, alleging that

the

II.

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true

A.

basis

for

his

termination,

which

was

in

APPLICABLE LEGAL STANDARDS

Summary Judgment
A

motion

for

summary

judgment

will

only

be

granted

if

“the

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pleadings, the discovery and disclosure materials on file, and any

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affidavits show that there is no genuine issue as to any material fact

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and that the movant is entitled to judgment as a matter of law.” Fed.

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R. Civ. P. 56(c).

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burden of providing the basis for its motion and must identify those

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portions of the pleadings and discovery responses that demonstrate the

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absence of a genuine issue of material fact. See Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986).

ORDER - 4

A party seeking summary judgment bears the initial

The substantive law identifies which

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facts are material, and only disputes over facts that might affect the

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outcome under that governing law will preclude the entry of summary

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judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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Therefore,

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affirmatively

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plaintiff’s case such that no reasonable trier of fact could find other

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than in the defendant’s favor. See Celotex Corp., 477 U.S. at 323.

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the defendant meets this initial burden, the plaintiff must then provide

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“specific facts showing that there is a genuine issue for trial.”

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to

prevail

on

demonstrate

summary

an

absence

judgment,
of

a

evidence

defendant
to

support

must
the

If

Liberty Lobby, 477 U.S. at 250.

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When deciding whether to enter summary judgment, the Court makes

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no credibility determinations and does not weigh conflicting evidence.

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Instead, it must construe the evidence — and draw all reasonable

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inferences therefrom — in the light most favorable to the nonmoving

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party. See Liberty Lobby, 477 U.S. at 255; T.W. Elec. Serv., Inc. v.

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Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir. 1987).

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Nonetheless, evidence presented by the parties must be admissible, Fed.

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R. Civ. P. 56(e)(1), and conclusory or speculative statements are

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insufficient

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judgment, see Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738

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(9th Cir. 1979).

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B.

to

raise

genuine

issues

of

fact

and

defeat

summary

Wrongful Discharge in Washington State

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Under Washington State law, the tort of wrongful discharge in

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violation of public policy is an exception to the at-will employment

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doctrine, and is narrowly drawn to further the goal of preventing

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employers from using the at-will doctrine to subvert those who seek to

ORDER - 5

1

promote public policy. See Thompson v. St. Regis Paper Co., 685 P.2d

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1081,

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recognizes the tort of wrongful discharge as extending to claims of

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employer retaliation for whistleblowing activity, Dicomes v. State, 782

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P.2d 1002, 1007 (Wash. 1989), as well as for obtaining legal assistance

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to confront the employer’s unlawful discrimination, Bennett v. Hardy,

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784 P.2d 1258, 1264 (Wash. 1990).

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within a such a recognized category, Washington courts apply a three-

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step, burden-shifting test taken from McDonnell Douglas Corp. v. Green,

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411 U.S. 792, (1973).2 See, e.g., Scrivener v. Clark Coll., 334 P.3d 541

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(Wash. 2014) (applying the McDonnell Douglas framework in the employment

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discrimination context).

1088–89

(Wash.

1984).

The

Washington

State

Supreme

Court

And when analyzing a claim that falls

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The first step is for the plaintiff to make out a prima facie case

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for retaliatory discharge. See Wilmot v. Kaiser Aluminum & Chem. Corp.,

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821 P.2d 18, 28–29 (Wash. 1991).

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attempt to prove the employer’s sole motivation was retaliation.”

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Wilmot, 821 P.2d at 30. Rather, the plaintiff need only produce evidence

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– even if circumstantial — that his actions, which were in furtherance

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of public policy, were “a cause of the firing.” Wilmot, 821 P.2d at 30;

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see also, Rickman v. Premera Blue Cross, 358 P.3d 1153, 1160 (Wash.

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2015).

To do so, the plaintiff “need not

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As Mr. McFarland’s claims fit within common and previously-recognized wrongful
discharge scenarios, the Court need not apply the four-factor “Perritt
analysis” to determine whether Mr. McFarland has alleged a violation of public
policy that warrants recovery. Cf. Gardner v. Loomis Armored Inc., 913 P.2d
377, 382 (Wash. 1996) (“Because this situation does not involve the common
retaliatory discharge scenario, it demands a more refined analysis than has
been conducted in previous cases.” (citing Henry H Perritt, Jr, Workplace
Torts: Rights and Liabilities § 3.7 (1991))).

ORDER - 6

At

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the

second

step,

the

burden

of

production

shifts

to

the

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employer, who must articulate a legitimate, non-retaliatory reason for

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the discharge. Wilmot, 821 P.2d at 29.

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relevant admissible evidence of another motivation, but need not do so

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by the preponderance of evidence necessary to sustain the burden of

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persuasion, because the employer does not have that burden[.]” Id.
The

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third

step

reason

by

that

the

showing

plaintiff
either

respond

(1)

the

to

the

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employer’s

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articulated reason is pretext, or (2) even if the employer’s stated

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reason is legitimate, retaliation for protected conduct was nevertheless

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a substantial motivating factor. Wilmot, 821 P.2d at 31.

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judgment purposes, this is a burden of production, not persuasion, and

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the plaintiff need only offer sufficient evidence to create a genuine

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issue of material fact. See Scrivener, 334 P.3d at 546.

employer’s

For summary

III. ANALYSIS

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proffered

requires

“The employer must produce

A.

Summary Judgment: Application of McDonnell Douglas

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Here, the Court finds that Mr. McFarland has satisfied step one

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of the McDonnell Douglas analysis. During his deposition, Mr. McFarland

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stated that his supervisors had long been aware that he worked for RJ

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Mac while on leaves of absence, but he was not terminated until his FELA

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case reached final resolution.

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that Mr. Risdon essentially admitted that Mr. McFarland was being

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removed from the seniority roster because he had sued the railroad.

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Such evidence, when assumed to be genuine and accurate, is more than

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sufficient to show a prima facia case of wrongful termination.

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ORDER - 7

Mr. McFarland also provided evidence

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At step two, the Court finds that BNSF has articulated a legitimate

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reason for terminating Mr. McFarland, namely his violation of Rule

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16(f).

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It is step three, therefore, upon which summary judgment hinges.

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And at this third step, the Court finds Mr. McFarland has demonstrated

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that a genuine issue of material fact exists as to whether BNSF’s

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decision to discharge him under Rule 16(f) was either pretext or

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substantially motivated by retaliation.

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1.

BNSF’s Arguments Supporting Discharge Under Rule 16(f)

BNSF makes cogent arguments for why Mr. McFarland’s discharge

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under Rule 16(f) was not pretext.

Primarily, BNSF argues that there is

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no evidence of a retaliatory motive because: (1) the decision to remove

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Mr. McFarland from the seniority roster was within the sole discretion

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of Ollie Wick, the General Director of Labor Relations at BNSF; (2) in

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arriving at his decision, Mr. Wick relied exclusively on Mr. McFarland’s

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own sworn testimony and the terms of the BRC CBA; and (3) the clear

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terms of the BRC CBA show Rule 16(f) is self-executing, meaning Mr.

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McFarland’s removal from the seniority roster was both mandatory and

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automatic. See ECF No. 44.

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the decision to remove Mr. McFarland from the seniority roster, and that

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he was not aware of — let alone motivated by — Mr. McFarland’s FELA

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lawsuit. Ex. 13, ECF No. 55-1 at 10–11.

Indeed, Mr. Wick averred that he alone made

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In BNSF’s view, Mr. Wick’s role in Mr. McFarland’s removal not

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only illustrates a lack of retaliatory intent, but also proves that

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others at BNSF did not use Mr. Wick as a “cat’s paw” to retaliate against

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Mr. McFarland. See ECF No. 40.

ORDER - 8

BNSF cites to Staub v. Proctor Hospital,

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562 U.S. 411 (2011), as supportive of its argument that Mr. Wick’s

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“independent” review and sole discretion shields BNSF from liability

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because Mr. Wick did not rely on any “biased” representations, and

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instead looked to Mr. McFarland’s own sworn statements. See ECF No. 40

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at 7–9.

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BNSF’s position, and the case addressed similar issues, that case dealt

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with statutory language and discrimination rather than common law and

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retaliation.

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helpful to BNSF.

Although some of the language in Staub can be read to support

More importantly, when read as a whole, Staub is not

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2.

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In Staub, the United States Supreme Court addressed the issue of

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what circumstances must exist for an employer to be held liable for

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employment

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“influenced, but did not make, the ultimate employment decision.” 562

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U.S. at 413.

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Services Employment and Reemployment Rights Act of 1994, 38 U.S.C.

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§ 4301

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discrimination is “a motivating factor.”

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that even if the decision to terminate an employee was based in part on

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a report that was prompted by discrimination, such discrimination was

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not a motivating factor so long as the decision maker had no unlawful

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animus and was unaware of the report’s discriminatory origins. Staub,

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562 U.S. at 418–19.

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Staub v. Proctor Hospital

et

discrimination

based

on

the

animus

of

an

employee

There, the Court analyzed the text of the Uniformed

seq.,

which

prohibits

adverse

employment

action

if

The Supreme Court concluded

However, the Supreme Court also noted,

An employer’s authority to reward, punish, or dismiss is
often allocated among multiple agents. . . . [Defendant’s]
view would have the improbable consequence that if an
employer isolates a personnel official from an employee’s
supervisors, vests the decision to take adverse employment

ORDER - 9

who

1
2
3
4

actions in that official, and asks that official to review
the employee’s personnel file before taking the adverse
action, then the employer will be effectively shielded from
discriminatory acts and recommendations of supervisors that
were designed and intended to produce the adverse action.
That seems to us an implausible meaning of the text, and one
that is not compelled by its words.

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Staub, 562 U.S. at 420.

Thus, Staub is consistent with the principle

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that an employer cannot escape liability for wrongful discharge simply

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by pointing to a selectively enforced, but otherwise “valid” policy.

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See Wilmot, 821 P.2d at 31–32 (stating that if an absenteeism policy is

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not evenly applied, “or if it is applied where an employee’s absence is

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relatively brief, an employee may use those circumstances as tending to

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show the absenteeism policy was a pretext for discharge”).

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3.

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If Mr. McFarland’s evidence is accepted as accurate, and all

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reasonable inferences are drawn in his favor, a juror could reasonably

15

believe that BNSF discharged Mr. McFarland in retaliation for his FELA

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lawsuit.

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decade that he worked for RJ Mac during leaves of absence, the fact that

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BNSF only terminated Mr. McFarland after his FELA case had concluded is

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circumstantial evidence of retaliation.

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enforces Rule 16(f) lends further support, and — for the purposes of

21

summary judgment — one must assume that Mr. Risdon really did make

22

statements tying Mr. McFarland’s discharge to his lawsuit.

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evidence, a reasonable juror could infer that BNSF employees would not

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have brought Mr. McFarland’s Rule 16(f) violations to the attention of

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Mr. Wick in the first place if Mr. McFarland had not sued BNSF.

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Moreover, given that it was the transcript from Mr. McFarland’s FELA

ORDER - 10

Evidence of Unlawful Motivation or Pretext

As previously noted, if BNSF supervisors knew for over a

The rarity with which BNSF

Given such

1

case that Mr. Wick received, reviewed, and relied upon in making his

2

determination,

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statements to the contrary — Mr. Wick did know about Mr. McFarland’s

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lawsuit against BNSF.

5

question

6

judgment would be inappropriate.

7

B.

a

BNSF’s

juror

might

reasonably

infer

that

—

despite

his

In either scenario, a reasonable juror could

motives

for

invoking

Rule

16(f),

meaning

summary

Summary Judgment as to “Comparator Claim”

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BNSF asks, in the alternative, that the Court “grant partial

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summary judgment dismissing plaintiff’s ‘comparator’ claim, on the

10

ground that none of the alleged comparators is similarly situated to

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plaintiff.” ECF No. 40 at 2. BNSF provided evidence that Thomas Kinghorn

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was not subject to the same CBA, let alone a provision analogous to Rule

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16(f). ECF No. 46 at 9. Neither was Greg Coronado, who had stopped

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working after signing an “out of service” settlement agreement, but was

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able to keep certain benefits for a time. See Ex. 3, ECF No. 41-1 at

16

11.

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after being informed that he could not work for another employer while

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on leave. ECF No. 46 at 94–95. And none of them had the same supervisors

19

as Mr. McFarland. ECF No. 46 at 10–11.

Hal Smith apparently resigned in order to operate a tool business

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Generally, plaintiffs must be able to point to valid comparators

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when bringing a disparate treatment claim under Title VII, Washington

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Law Against Discrimination (WLAD), and 42 U.S.C. § 1981. See, e.g.,

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Alonso v. Qwest Commc'ns Co., 315 P.3d 610 (Wash. App. 2013) (noting

24

that under WLAD, disparate treatment occurs when employers treat certain

25

employees “less favorably” than others because of race, color, or other

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protected

ORDER - 11

status).

Here,

however,

Mr.

McFarland

is

not

alleging

1

discrimination, he is alleging that BNSF retaliated against him for

2

reporting

3

privilege; his sole cause of action is for wrongful discharge in

4

violation of public policy. See ECF No. 38.

employer

misconduct

and/or

exercising

a

legal

right

or

5

BNSF correctly points out that Mr. McFarland’s pleadings alleged

6

that other employees had similarly worked for RJ Mac, but were not

7

terminated because they did not bring a lawsuit against BNSF. ECF No. 17

8

at 8; ECF No. 54 at 3.

9

this type of allegation would tend to show pretext on the part of BNSF,

10

whereas comparator evidence showing consistent application of Rule 16(f)

11

would

12

significance

13

however, does not somehow transform Mr. McFarland’s wrongful discharge

14

claim into a “comparator claim,” or otherwise split the issues such that

15

partial

16

comparator evidence will be governed by the usual principles and rules

17

of evidence.

tend

to
and

summary

Naturally, comparator evidence that verified

undermine

Mr.

importance

judgment

of

is

IV.

18

McFarland’s
this

kind

appropriate.

claim.
of

The

potential

comparator

evidence,

Instead,

any

proffered

CONCLUSION

19

The record contains competing representations of fact from which

20

a jury could find either that Mr. McFarland was wrongfully terminated

21

or that he was terminated for a legitimate, non-retaliatory reason.

22

Both Mr. McFarland and BNSF Railway met their preliminary evidentiary

23

burdens, and what evidence is to be believed is a matter for the jury.

24

See Scrivener, 334 P.3d at 545 (“When the record contains reasonable

25

but competing inferences of both discrimination and nondiscrimination,

26

the trier of fact must determine the true motivation.”).

ORDER - 12

Further, there

1

is no separate comparator claim or issue that would warrant partial

2

summary judgment.

3

For reasons set forth above, IT IS HEREBY ORDERED, Defendant BNSF

4

Railway Company’s Motion for Summary Judgment and for Partial Summary

5

Judgment, ECF No. 40, is DENIED.

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7
8

IT IS SO ORDERED.

The Clerk’s Office is directed to enter this

Order and provide copies to all counsel.
DATED this

2nd

day of February 2017.

9
s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2016\16-CV-5024;McFarland.Deny.MSJ.LC1.docx

ORDER - 13