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Loos v. BNSF Railway Co.

United States District Court, D. Minnesota

June 30, 2015

Michael D. Loos, Plaintiff,
v.
BNSF Railway Company, Defendant.

MEMORANDUM AND ORDER

PAUL A. MAGNUSON, District Judge.

This matter is before the Court on BNSF's Motion for Summary Judgment and alternative Motion for Separate Trials. For the reasons that follow, the Court grants in part and denies in part the Motion for Summary Judgment and denies the Motion for Separate Trials as moot.

BACKGROUND

In this railroad-employment dispute, Michael Loos is suing BNSF Railway Company for firing him after he engaged in protected conduct. For fifteen years, Loos worked at BNSF's Twin Cities Division as a conductor, brakeman, and switchman. (Miller Aff. (Docket No. 42) Ex. D, at 22:12-25.) Before his discharge, however, his history with the company was marked by three relevant circumstances: his attendance record, his safety efforts, and his workplace injury.

A. Attendance Record

1. BNSF's Attendance Policy

Like most employers, BNSF maintains an attendance policy that requires its employees to report to work regularly. (Id. Ex. A, at 1.) Under the policy, BNSF reviews an employee's compliance with its requirements over every three-month rolling period and assesses violations based on the number of days the employee is absent during that period. (Id.)

Each employee may take a certain number of absences each three-month period. (Id.) But when an employee exceeds the permitted threshold, BNSF may discipline him progressively. (Id.) The first attendance violation results in a formal reprimand, the second in a 10-day record suspension, the third in a 20-day record suspension, and the fourth in discharge. (Id. at 3.) An employee may also be subject to discharge if he garners three attendance violations in a single year and has an active "Level S" violation[1] on record. (Id.) An attendance violation stays active until the employee works a full year without a new violation. (Id.)

Not every absence counts against the employee. (Id.) The attendance policy excludes rest days, various forms of paid time off, and approved medical leaves. (Id. at 1.) An employee who needs time off for an on-duty injury is also eligible for an excused absence, if he submits supporting medical documentation and obtains BNSF's approval. (Id. Ex. B; Ex. C, at 42.)

2. Loos's Attendance Record

Throughout his employment, Loos struggled to comply with the attendance policy. On August 23, 2006, he admitted an attendance violation and received a formal reprimand. (Id. Ex. E; Ex. D. at 30:15-18.) Then on September 12, 2006, he admitted a second attendance violation and received a 10-day record suspension. (Id. Ex. F; Ex. D. at 37:4-5.) On July 28, 2008, he again admitted an attendance violation; this time, BNSF offered, and Loos accepted, alternative handling, which involved a discussion of future compliance with the attendance policy. (Id. Ex. I; Ex. D at 44:23-25; 45:22-25; 46:1-19.) On January 20, 2009, Loos acknowledged another attendance violation and received a formal reprimand. (Id. Ex. J; Ex. D at 53:14-25, 54:1-19.)

Two days later, Trainmaster Bill Shulund met with Loos to discuss his attendance issues. (Id. Ex. K.) Shulund advised Loos that he worked only 36.8 hours in October 2008 and 29.5 hours in November 2008. (Id.) During those months, Loos's peers worked, on average, 170 hours per month. (Id.) Shulund told Loos that his persistent failure to perform full-time work hours would be considered a violation of the attendance policy. (Id.)

Despite Shulund's warning, Loos's attendance problems continued. On June 15, 2009, Loos admitted an attendance violation and received a Level S 10-day record suspension. (Id. Ex. L; Ex. D at 56-58, 59:3-15.) On March 22, 2010, he admitted that he did not notify BNSF within 24 hours of the reason for another absence. (Id. Ex. M; Ex. D at 61:17-20.) BNSF again offered alternative handling, which Loos accepted. (Id.) One month later, on April 19, 2010, Loos admitted that he did not follow Shulund's instructions about maintaining an adequate number of work hours by repeatedly failing to report to work on multiple days. (Id. Ex. N; Ex. D at 66:19-24.) BNSF issued him a Level S 30-day record suspension and placed him on a three-year review period. (Id.)

In June 2010, Loos worked 87.6 hours. (Id. Ex. D, at 72:3-4.) On July 12, 2010, he met with Terminal Superintendent Phillip Mullen to discuss his inability to keep the hours of a full-time employee. (Id. Ex. D, at 71:19-23; Ex. O.) On August 9, 2010, Ned Percival, Director of Administration for the Twin Cities Division, wrote to Loos about his failure to work a full-time schedule, noting that his repeated absences revealed behavior "indicating of misconduct and/or indifference to duty." (Id. Ex. O.) The letter instructed Loos to manage his performance to meet the levels expected of a full-time employee and warned that further violations would result in discipline. (Id.)

On July 25, 2011, Loos again admitted an attendance violation and received a formal reprimand. (Id. Ex. Q.) Four months later, on November 9, 2011, he admitted a second attendance violation that year and received a 10-day record suspension. (Id. Ex. R.)

B. Safety Efforts

When he attended work, Loos pursued efforts to improve safety at BNSF. On September 22, 2007, he submitted a Safety Issue Resolution Process ("SIRP") record[2] to BNSF, requesting defibrillators. (Id. Ex. D, at 15:11-14.) BNSF denied that request. (Id. Ex. H.) In addition, sometime in 2007 and early 2008, Loos served on BNSF's site safety committee for eight to twelve months. (Id. Ex. D, at 74:25, 75:1-4, ...


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