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Gunderson v. Bnsf Railway Co.

United States District Court, D. Minnesota

July 28, 2015


Michael P. McReynolds, TELLO LAW FIRM; and Fredric A. Bremseth and Christopher J. Moreland, BREMSETH LAW FIRM, PC, for plaintiff.

Joanne R. Bush and Jacqueline M. Holmes, JONES DAY; and Lee A. Miller and Sally J. Ferguson, ARTHUR, CHAPMAN, KETTERING, SMETAK & PIKALA, PA, for defendant.


PATRICK J. SCHILTZ, District Judge.

Plaintiff Paul Gunderson brought this lawsuit against his former employer, defendant BNSF Railway Company ("BNSF"), alleging that BNSF violated the antiretaliation provisions of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. ยง 20109, when it fired him after he had engaged in protected activity. This matter is before the Court on BNSF's motion for summary judgment. Because no reasonable jury could find that BNSF's decision to fire Gunderson was motivated by hostility to his protected activity, the Court grants BNSF's motion and dismisses Gunderson's complaint.


A. Gunderson's Protected Activity

Gunderson worked at BNSF's yard in Willmar, Minnesota, from October 1989 until he was fired in August 2009. See ECF Nos. 48-1 at 14; 48-21; & 48-24. Over the course of his career, Gunderson worked as a brakeman, conductor, switchman, and remote-control operator. ECF No. 48-1 at 17. Gunderson was also actively involved in the United Transportation Union ("UTU"), serving as the local union officer (or "local chairman") and as the vice general chairman for the International Union. Id. at 15-16. Two aspects of Gunderson's history at BNSF are particularly important to this case: First, Gunderson was an outspoken safety advocate. Second, Gunderson suffered and reported a work-related injury in 2008.

As to the safety advocacy: Gunderson was known as a "bulldog" for safety, ECF No. 52-1 at 13, and he was one of the "highest profile safety advocates in the Willmar area, " id. at 63-64. He raised numerous safety concerns over a span of eight or nine years while he worked in the yard. ECF No. 48-1 at 17-21, 31-38 (Gunderson yearly raised complaints about dust, weeds, lighting, and snow, among other topics). Gunderson's most recent safety complaint was in March 2008. See id. at 41. At that time, Gunderson reported BNSF to the Federal Railroad Administration ("FRA") for not performing required air tests on certain trains. Id. at 17-19. When the FRA determined that BNSF had violated the air-test rule, terminal manager Herb Beam complained, "Gunny, you just threw [a] whole fucking wrench into my yard." Id. at 18. Beam "was upset about the repeated complaints about safety and other matters" and lamented that his "job would be a lot easier if Gunderson... [wasn't] around." ECF No. 52-1 at 65 (affidavit of William Fry, former superintendent of operations at Willmar).

As to Gunderson's injury: In September 2008, Gunderson injured his right shoulder in the course of performing his duties for BNSF. ECF No. 48-1 at 25. Beam and Michael Babik, the superintendent of operations, insisted that Gunderson report his injury. Id. at 38; ECF No. 48-26 at 4. Gunderson reported his injury the following day. See ECF Nos. 48-1 at 25-27 & 52-1 at 71.

At the time, reporting an injury could have negative consequences for both the employee and management. First, employees who were enrolled in BNSF's "Employee Review Process" ("ERP") accumulated points when they were injured at work- 40 points for reportable (i.e., serious) injuries and 5 points for non-reportable (i.e., minor) injuries. ECF No. 52-1 at 26. The more points employees accumulated, the more BNSF monitored and tested them. Id. at 27. Gunderson, however, was not enrolled in the ERP program. ECF No. 54-1 at 55. Second, BNSF officers' bonuses were affected by the number of reported injuries. Gunderson submitted evidence that bonuses were tied to "the total number of injuries and reportable injuries in each manager's territory. " ECF No. 52-1 at 66 (emphasis added). But BNSF officers testified that bonuses were instead tied to the total number of injuries reported nationwide, across the entire company. ECF No. 54-1 at 49, 53-54. In any event, the record contains evidence that "BNSF did not want personal injuries reported" and that Babik in particular "was mad about the injuries that... Gunderson reported." ECF No. 52-1 at 65-66.

B. BNSF's Disciplinary Procedure

When BNSF seeks to discipline an employee for violating a company rule, BNSF issues a notice of investigation to the employee. ECF No. 48-1 at 72-73. The notice informs the employee of the charges against him and describes the rights that the employee has in the disciplinary process, such as the right to be represented by the union. BNSF then conducts a formal investigation. Id. at 73. The investigation takes the form of an adversarial hearing at which BNSF must prove by "substantial evidence" that the charges against the employee are true. Id. at 73-74. The parties-that is, BNSF (typically represented by a BNSF officer) and the employee (typically represented by the union)-present evidence, examine and cross-examine witnesses, and make closing arguments. A BNSF officer presides over the hearing. A transcript of the hearing is made and sent to still other BNSF officers, and those officers decide whether and how the employee should be disciplined. See id. at 73. The employee is notified in writing of their decision.

C. Gunderson's First Alleged Violation

The events leading up to Gunderson's dismissal began with the alleged misconduct of another BNSF employee-David Peterson. In March 2009, two BNSF employees and union members-Mitchel Duke and Robert Cluka-made formal complaints to their supervisor that Peterson had used a company computer to gain access to their private information, printed out that information, and left that information in a common area, where any employee could see it. See ECF Nos. 48-5 & 48-6. BNSF issued a notice of investigation to Peterson, informing him that a hearing (or "investigation") would take place in a week. ECF No. 48-6. The notice identified Duke and Cluka as witnesses who would testify against Peterson at that hearing. Id. Gunderson learned about the notice of investigation and told Babik that he might represent Peterson at the hearing. Babik responded, "I told you to stay away from this... if you get involved you could be next [to be fired]." ECF No. 52-1 at 31.

On May 28, 2009, Duke and Cluka informed their local union president, Doug Campen, that Gunderson and another union member, Steve Mace, had pressured them to retract their statements against Peterson. ECF No. 48-9 at 4. Campen immediately reported this information to Babik, who immediately contacted his superior-Richard Ebel, the Twin Cities division general manager. See ECF Nos. 48-8 & 48-1 at 115-16. Ebel requested (and later received) written statements from Duke, Cluka, and Campen about the pressure applied by Gunderson and Mace. ECF Nos. 48-1 at 116; 48-10 at 3-4 (Duke statement), 5-6 (Cluka statement); & 48-9 at 4-5 (Campen statement).

In Duke's written statement, Duke recounted that Gunderson had approached him on multiple occasions over the course of approximately two months. See ECF No. 48-10 at 3-4. First, on April 11, 2009, Gunderson approached and "harassed" Duke at work and "told [him] to withdraw [his] statement and complaint about Dave Peterson and if [he] did not, things could get really bad... and the company could turn on [him] and [he] could get fired." Id. at 3. Second, on May 21, after Duke injured his ankle at work, Gunderson "told [him] that if [he] played [his] cards right that [his] ankle would be worth a 500, 000 dollar lawsuit against BNSF Railway."[2] Id. Finally, on May 29, Duke went to Gunderson's house (on the advice of Campen) to pick up a recantation letter that had been drafted by Peterson's attorney (Michael Tello) and sent to Gunderson for him to review. Id. at 3-4. Gunderson told Duke that "by signing this letter, [Duke] would be 100% out of the picture and there would be no reprecautions [sic] by BNSF Railway." Id. at 4. Duke further stated: "I am concerned for my safety at work, I'm afraid there will be retaliation by other union members and Gunderson... will try and do something to make my life harder...." Id.

In Cluka's written statement, Cluka reported that in mid-April, he saw Mace in a grocery store and started a conversation with him. Id. at 5. After talking about what to expect during a typical investigation, Mace asked Cluka if he "would be willing to change [his] mind and stop the process of the current investigation on Dave Peterson...." Id. Mace told Cluka that "his only concern was he would not like to see someone loose [sic] there [sic] job." Id. Cluka would not change his mind. Id. Mace then "said that he understood, and he never brought it up again...." Id. Cluka stated that this encounter "was the last time [Cluka]... had a conversation with any of the UTU reps at Willmar MN on this matter." Id. Cluka stated that he no longer felt like he was part of the Willmar yard; instead, he now had to "question every look, and every gesture...." Id. at 5-6. He found himself "thinking about the safety of [his] family and pets, [his] property...." Id. at 6; see also ECF No. 48-9 at 5 (Campen stated that he felt that Duke and Cluka "will most likely continue to be severly [sic] harassed at work.").

After receiving the written statements from Duke, Cluka, and Campen, Ebel decided to issue a notice of investigation to Gunderson. ECF No. 48-1 at 94. Ebel considered "harassment and intimidation in the workplace" to be a "very serious rules violation." Id. at 92. Before issuing the notice, Ebel consulted personnel in BNSF's labor-relations department-specifically James Hurlburt and Milton Siegele. Id. Hurlburt was an attorney who worked in Fort Worth, Texas; he had never heard of Gunderson or his prior safety advocacy. Id. at 76. Both Hurlburt and Siegele agreed that Ebel should issue the notice to Gunderson. Id. at 77, 92. Ebel decided to remove Gunderson from service pending the outcome of the investigation. Id. at 99.

D. BNSF Prepares First Notice of Investigation

Over the next few days, BNSF officers worked on drafting the notice of investigation that would be issued to Gunderson. See ECF Nos. 48-38 (June 1-3, 2009 email chain discussing the wording of the notice and the deadlines for serving notice and holding the investigation hearing) & 54-4 (June 3, 2009 email chain discussing further changes to the language in the notice). They also discussed what to do about Mace. Some officers questioned whether Mace should be withheld from service, and others discussed how Mace might be used to BNSF's advantage. See ECF No. 48-38 (emails among BNSF officers). Everett Percival (the director of administration) suggested that "Mace may want to turn state's evidence for a Level S' 30 day Record and implicate Gunderson. We above all want Gunderson." Id. at 3; see also ECF No. 54-1 at 44, 50-51 (Ebel explaining that Percival made the comment because "the allegations against Mr. Gunderson were much more severe than those against Mr. Mace" and "[t]he harassment and intimidation... were dramatically different.").

On June 2, 2009, a day before the notice was finished, Gunderson called Beam and Ebel because Gunderson had heard about an "inappropriate interaction at Willmar." ECF No. 52-1 at 102 (email exchange between Ebel and Beam relaying conversations that each had with Gunderson). Neither Beam nor Ebel told Gunderson that he was about to be served with a notice of investigation. Id. Beam told Gunderson that "to the best of [his] knowledge there had been no altercation in Willmar today." Id. Ebel "told him there was nothing new in Willmar." Id.

Also during this time, Beam and Ebel were beefing up security in Willmar in anticipation of the disciplinary proceedings against Gunderson. On June 1, Beam held a meeting to discuss camera coverage of the BNSF parking lots, increased police presence near the witnesses' homes, and inviting BNSF security guards (known as "resource protection" personnel) to be present when Beam handed the notice of investigation to Gunderson. See ECF No. 48-15. Beam stated that he contacted resource protection "[b]ecause we wanted to have someone there in case the situation started to get out of hand. There were a lot of things going on in the terminal at Willmar at that point in time." ECF No. 48-1 at 53-54. Ebel had on previous occasions asked resource protection to be present when an employee was going to be immediately removed from service pending the outcome of the investigation-as was the plan with respect to Gunderson. Id. at 100.

E. Gunderson's Second Alleged Violation

The notice of investigation was finalized on June 3, 2009, less than 45 minutes before Gunderson was scheduled to report for work. See ECF No. 54-4. After Gunderson arrived, he was sent to Beam's office, and Beam handed him the notice. Two resource-protection officers from Minneapolis-Scott Poundstone and Eric Collins-were stationed about ten feet away from Beam's office, across and down the hallway. ECF No. 48-1 at 54, 58-59. After Beam gave Gunderson the notice, Beam told Gunderson that "as [Gunderson] was a local chairman, ... he was familiar with the process of being removed from service and... he would need to leave the property promptly." Id. at 58. As Beam and Gunderson moved toward the door of Beam's office, Gunderson said, "Herb, you know I'm not just a local chairman." Id. Beam replied, "Yes, I understand that, Paul." ...

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