Bigham v. BNSF Railway Company

Filing 41

ORDER granting defendant's 22 Motion for Summary Judgment; All of Plaintiffs' claims are DISMISSED; All pending motions in this case are STRICKEN; This case is CLOSED, signed by Judge Ricardo S Martinez. (SWT)

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  1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 Case No. C16-1383 RSM JEFFREY R. FORD, et al., 11 12 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiffs, v. 13 14 BNSF RAILWAY COMPANY, a Delaware corporation, 15 Defendant. 16 This matter comes before the Court on Defendant BNSF Railway Company (“BNSF”)’s 17 18 Motion for Summary Judgment. Dkt. #22. BNSF argues, inter alia, that Plaintiffs Jeffrey 19 Ford, Donald Bigham, and Geoffrey Mirelowitz cannot establish a prima facie case under the 20 Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, the sole basis for this action. 21 Plaintiffs oppose this Motion. Dkt. #24. For the reasons set forth below, the Court GRANTS 22 23 24 BNSF’s Motion and DISMISSES all claims in this case. I. BACKGROUND 25 This case concerns the termination of employment of Plaintiffs Jeffrey Ford, Donald 26 Bigham, and Geoffrey Mirelowitz with BNSF. Although the parties have submitted extensive 27 facts about Plaintiffs’ employment and about BNSF’s practices generally, the Court is only 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1   1 2 concerned with whether or not Plaintiffs can present evidence that they were terminated for protected activity in violation of the FRSA. 3 Plaintiffs were fired on August 24, 2012. Dkt. #23-15. They had been suspended 4 pending an investigation into events occurring earlier in the year. Id.; see also Dkt #23-14 5 6 7 8 9 10 11 12 (setting forth procedure for being withheld from service). BNSF stated that the terminations were for violating certain company rules related to clocking in and out, among other related rules. Dkt. #23-15. On December 4, 2012, Plaintiffs filed complaints with the Occupational Safety & Health Administration (“OSHA”) under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. Dkt. #23-16. Plaintiffs essentially argued that they were whistleblowers, “fired in 13 retaliation for refusing to authorize the use of safety-related equipment… [and] for reporting in 14 good faith a hazardous safety condition… about unsafe switches.” Id. These complaints did 15 not further explain when and where Plaintiffs refused to authorize the use of safety-related 16 equipment, or when and where they reported hazardous safety conditions. 17 18 On March 31, 2016, OSHA issued Secretary’s Findings, concluding that “there is no 19 reasonable cause to believe that [BNSF] violated the FRSA,” “insufficient evidence to establish 20 reasonable cause that a violation had occurred,” and “[t]he evidence failed to show a nexus 21 between the protected activities and the adverse actions.” Dkt. #26-1. Plaintiffs objected to 22 23 24 OSHA’s findings and requested a hearing before an Administrative Law Judge (“ALJ”), which was later dismissed without prejudice. Dkt. #23-18. On August 31, 2016, plaintiffs filed 25 separate complaints with this Court pursuant to 49 U.S.C. § 20109(d)(3). See Dkt. #1. These 26 were consolidated into this action on January 20, 2017. Dkt. #12. BNSF now moves for 27 summary judgment dismissal of all Plaintiffs’ claims. Dkt. #22. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2   II. 1 2 DISCUSSION A. Legal Standard 3 Summary judgment is appropriate where “the movant shows that there is no genuine 4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 5 6 7 R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 8 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of 9 the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, 10 11 12 Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). 13 On a motion for summary judgment, the court views the evidence and draws inferences 14 in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. 15 U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable 16 inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747, rev’d 17 18 on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient 19 showing on an essential element of her case with respect to which she has the burden of proof” 20 to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, 21 “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be 22 23 24 25 26 27 insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 251. B. Requirements for Claims brought under the Federal Railroad Safety Act The FRSA serves “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. Pursuant to the FRSA, a railroad 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3   1 carrier, such as BNSF, may not “discharge, demote, suspend, reprimand, or in any other way 2 discriminate against an employee if such discrimination is due, in whole or in part,” to an 3 employee’s engagement in a protected activity. 49 U.S.C. § 20109(a). To state a claim of 4 retaliation under the FRSA, a plaintiff bears the initial burden of pleading sufficient facts that 5 6 7 demonstrate “(1) he engaged in a protected activity; (2) the employer knew he engaged in the allegedly protected activity; (3) he suffered an unfavorable personnel action; and (4) the 8 protected activity was a contributing factor in the unfavorable personnel action.” Rookaird v. 9 BNSF Ry. Co., No. C14-176RSL, 2015 WL 6626069, at *2 (W.D. Wash. Oct. 29, 2015); 10 11 12 Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013); Heim v. BNSF Ry. Co., 849 F.3d 723, 726-27 (8th Cir. 2017). If the plaintiff establishes this prima facie case, 13 the burden shifts to the railroad carrier to demonstrate “by clear and convincing evidence that 14 [it] would have taken the same unfavorable personnel action in the absence of the protected 15 activity.” Rookaird, 2015 WL 6626069 at *2. 16 1. Protected Activity 17 18 To sustain a retaliation claim under the FRSA, a plaintiff must have engaged in a 19 protected activity. Rookaird, 2015 WL 6626069 at *2; Araujo, 708 F.3d at 157. The FRSA 20 specifies what constitutes a protected activity, grouping them generally into three categories: 21 (1) providing information pertaining to the investigation of or proceeding about a violation of 22 23 24 25 26 27 safety regulations, see 49 U.S.C. § 20109(a); (2) “reporting, in good faith, a hazardous safety or security condition” or refusing to work around a hazardous safety condition, see id. § 20109(b); and (3) requesting medical treatment for a work-related injury, see id. § 20109(c). BNSF argues there is no evidence that Plaintiffs engaged in a protected activity. For Plaintiffs Bigham and Ford, Plaintiffs claimed in deposition that this protected activity occurred 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4   1 in April or May of 2012 when they asked Superintendent Matthew Garland what kind of switch 2 maintenance program there was for the Seattle Terminal. Dkt. #23-1 (Bigham Deposition) at 3 124:3-129:17; Dkt. #23-2 (Mirelowitz Deposition) at 43:21-47:1.). Garland allegedly did not 4 get back to Plaintiffs with an answer. Bigham Dep. at 126:19-127:18. BNSF argues that this 5 6 7 cannot constitute protected activity because Plaintiffs did not provide information or assist in an investigation about a violation of safety regulations, and that therefore the activity is not 8 protected under 49 U.S.C. § 20109(a). BNSF argues it cannot constitute protected activity 9 under 49 U.S.C. § 20109(b) either because “Plaintiffs reported no hazardous safety condition 10 11 12 during their meeting with Garland…” Dkt. #22 at 11. BNSF argues that the Court should also dismiss Mirelowitz’s claim against BNSF, “insofar as Mirelowitz relies upon the April or May 13 2012 meeting with Garland and Marx to try and satisfy the required element of protected 14 activity.” Id. 15 16 Plaintiffs’ Response is full of passionate argument, yet, incredibly, only contains two citations to the record, discussed below. Plaintiffs’ “Facts” section narrates as if citations are a 17 18 pointless formality. For example, and critical to the Court’s analysis here, Plaintiffs state—by 19 footnote—that “[t]he crew complaints, at issue in this case, began with a particular switch 20 beginning in January of 2012,” that “[t]he crew complained about the switch repeatedly but the 21 switch initially was not properly repaired, and that “[e]ventually after considerable effort by 22 23 24 Bigham, Ford and Mirelowitz, and resistance by some BNSF officers, the switch was finally repaired.” Dkt. #24 at 4 n.3. Plaintiffs make this important assertion without citation. In 25 discussing the meeting with Garland, which Plaintiffs rely on to establish a protected activity, 26 Plaintiffs assert that “[i]n that meeting… and in subsequent email correspondence the crew 27 jointly asserted the need for improvements in switch maintenance.” Id. at 5 n.4. Again, no 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5   1 citations. Plaintiffs cannot rely on the words of their counsel. British Airways Bd. v. Boeing 2 Co., 585 F.2d 946, 952 (9th Cir. 1978) (“[L]egal memoranda and oral argument are not 3 evidence, and they cannot themselves create a factual dispute sufficient to defeat summary 4 judgment”). The first of Plaintiffs’ citations is to a May 25, 2012, email from Garland to 5 6 Plaintiff Mirelowitz, which states: Geoff, 7 Following up on our conversation regarding Switch Maintenance a few weeks back in West Seattle. Apologize for taking this long to get back to you. 8 9 10 Below is the process that our Engineering Team adheres to for switch maintenance in West Sea. 11 12 17 1) Each switch is check once per week, this typically occurs on Thursday or Friday. 2) Switch maintainer is assigned to check, in case of vacation or illness another maintainer is assigned 3) When checking each switch, the switch is first thrown and if it throws fine he/she continues to next switch. If switch does not throw correctly it is then broomed, oiled and rechecked. 4) If switch is hard to throw, torque indicator is utilized to validate and is adjusted to specifications. 18 Please let me know if you have any concerns. 13 14 15 16 19 Dkt. #25-2 at 64. Plaintiffs argue “[b]ased upon this email alone there is sufficient proof that 20 21 protected conduct occurred and that the Defendant knew about the conduct.” Dkt. #24 at 14. 22 The Court disagrees. This email, alone, provides no evidence that Plaintiffs reported a safety 23 issue, as opposed to inquiring about one, and provides no evidence of a hazardous safety 24 situation. Plaintiffs argue, without citation, that “it is undisputed that the three plaintiffs made 25 26 safety complaints concerning the condition of railroad track switches.” Id. at 13.1 This is flatly 27 1 28 Plaintiffs argue that they “reported a defective track switch on January 31, 2012; and then from January through May, there were other ongoing difficulties with the switches and with difficulty getting the Defendant to fix the defective switches at Job 113. The three plaintiffs (jointly) submitted and then pushed complaints concerning the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6   1 contradicted by BNSF’s briefing, to which Plaintiffs are responding. BNSF does not concede 2 that Plaintiffs engaged in protected activity. Plaintiffs briefing cites to only one other exhibit in 3 the entire Response brief, “Declaration of George A. Thornton, Exh. 10,” described by 4 Plaintiffs’ counsel as “true and correct copies of some of BNSF articles regarding Plaintiffs, 5 6 7 specifically Don Bigham, recognizing him for his ongoing loyalty and commitment to his career with Defendant.” Dkt. #25 at 2; Dkt.#25-10. The Court believes Plaintiffs intended to 8 cite to Exhibit 9, “the FRA report dated January 25, 2013, detailing inspection of track switches 9 in the West Seattle area,” but cannot be sure. See Dkt. #25 at 2; Dkt. #24 at 15. In any event, 10 11 12 this evidence does not support the existence of protected activity. Pursuant to the Local Civil Rules, parties must support factual assertions with a citation 13 to the record, including a pincite to the relevant page or pages. See LCR 10(e)(6) (“In all cases 14 where the court is to review the proceedings of an administrative agency, transcripts, deposition 15 testimony, etc., the parties shall, insofar as possible, cite the page and line of any part of the 16 transcript or record to which their pleadings, motions[,] or other filings refer.”). Using specific 17 18 citations, the nonmoving party must direct the court’s attention to specific facts and may not 19 rely on generalized declarations or general citations to an entire deposition. “The district court 20 need not examine the entire file for evidence establishing a genuine issue of fact, where the 21 evidence is not set forth in the opposing papers with adequate references so that it could 22 23 24 conveniently be found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 10301031 (9th Cir. 2001); see also Jaurequi v. Carter Mfg. Co., 173 F.3d 1076, 1085 (8th Cir. 25 1999) (“[A] district court is not ‘obligated to wade through and search the entire record for 26 some specific facts which might support the nonmoving party’s claim.’”) (internal citation 27 28 safety of railroad track switches where they regularly worked.” Dkt. #24 at 13. Again, there are no citations for any of this. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7   1 omitted); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (“‘Rule 56 does 2 not impose upon the district court a duty to sift through the record in search of evidence to 3 support a party’s opposition to summary judgment.’”) (internal citation omitted). 4 5 6 7 Although Plaintiffs are the nonmoving party, they must still make a sufficient showing on an essential element of their case with respect to which they have the burden of proof to survive summary judgment. Celotex, supra. Further, “[t]he mere existence of a scintilla of 8 evidence in support of the plaintiff's position will be insufficient; there must be evidence on 9 which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 251. The Court 10 11 12 finds that Plaintiffs have failed to make a sufficient showing that they engaged in protected activity in this matter, and that this is an essential element of their case with respect to which 13 they have the burden of proof. 14 evidence, either by submitting hundreds of pages of uncited documents, or by pointing to the 15 May 25, 2012, email and surrounding communications, do not rise above a scintilla. Asking 16 Plaintiffs’ attempts to cobble together protected activity about safety issues does not equate to reporting on safety issues, and certainly there is no 17 18 evidence submitted of reporting on a hazardous safety condition, as required under the FRSA. 19 Without evidence to support the protected activity element, Plaintiffs cannot meet the 20 requirement to show a prima facie case under the FRSA, and the Court’s analysis stops. 21 Summary judgment dismissal of all of Plaintiffs claims is warranted. 22 23 24 25 26 27 III. CONCLUSION Having reviewed the relevant briefing, the declarations and exhibits attached thereto, and the remainder of the record, the Court hereby finds and ORDERS: 1) Defendant BNSF’s Motion for Summary Judgment (Dkt. #22) is GRANTED. All of Plaintiffs’ claims are DISMISSED. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8   1 2) All pending Motions in this case are STRICKEN. 2 3) This case is CLOSED. 3 DATED this 8th day of December 2017. 4 5 6 7 A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9

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