United States District Court, D. Minnesota
H. Kaster, Matthew H. Morgan, and Nicholas D. Thompson,
NICHOLS KASTER, PLLP, for plaintiff.
Holmes Donesky and Matthew Tews, STINSON LEONARD STREET LLP,
Patrick J. Schiltz United States District Judge.
Lori Brisbois is a long-time employee of defendant Soo Line
Railroad Company d/b/a Canadian Pacific (the
“Railroad”). In 2012, the Railroad suspended
Brisbois for five days without pay and restricted her
seniority for one year. Brisbois contends that she was
disciplined in retaliation for reporting a safety concern,
and thus that the Railroad violated the Federal Railroad
Safety Act (“FRSA”), 49 U.S.C. § 20109. The
Railroad contends that Bribois was disciplined because she
was argumentative and repeatedly defied the instructions of
matter is before the Court on the Railroad's motion for
summary judgment. Because the evidence is clear that Brisbois
was not disciplined for reporting a safety concern, the
Railroad's motion is granted, and Brisbois's claim is
was hired by the Railroad in 2006. Brisbois Dep. [ECF No.
59-2] at 56, 149. Since then, she has worked as a track
laborer, track inspector, machine operator, assistant
foreman, and foreman. Id. at 89, 91, 94-95, 71-102,
130. Brisbois has often brought safety concerns to the
Railroad's attention. Id. at 231-32. She has
never suffered any adverse consequence on account of raising
those safety concerns; indeed, her supervisors rewarded her
by offering to allow her to leave work early after she
reported that another foreman had asked a machine operator to
release a train without giving him the “slow order
information that he needed.” Id. at 232-33.
supervisors have, however, occasionally complained about her
work. Id. at 166-69. Sometimes they have accused her
of being late with her job briefings. Id. at 167.
Other times they have said that she was “not doing
enough.” Id. at 166-68. And in May 2012,
Brisbois was issued a formal “positive action
plan” for being “argumenta[tive]” and
“insubordinate” and for “fail[ing] to
comply with [her] supervisors['] instructions.”
Id. at 170-72; Donesky Decl. Ex. M [ECF No. 59-13],
at 1. Brisbois disputes the legitimacy of these complaints,
but she does not deny that the complaints were made.
See Brisbois Dep. 166-71, 180-82.
12, 2012, Brisbois was working as a foreman at a rail yard in
St. Paul, Minnesota. Id. at 25-27. Her crew was
scheduled to work on tracks 37 and 38, both of which were
“protected”-meaning that the tracks were
configured to prevent trains from coming onto them.
Id. at 11-12, 189-90. The adjacent tracks (tracks 36
and 39) were, however, initially unprotected. Id. at
32-36, 251-53. When Brisbois briefed her crew, she reminded
them not to “foul” any unprotected
tracks. Donesky Decl. Ex. G [ECF No. 59-7], at
114; Donesky Decl. Ex. P [ECF No. 59-16], at 12.
Specifically, she warned the crew members not to walk down or
cross any unprotected tracks while carrying equipment or
supplies. Brisbois Dep. 52-53, 219. Brisbois then left to
lock out the west end of track 39. Donesky Decl. Ex. G, at
Brisbois reached the west end of track 39, she noticed that
part of her crew was walking down track 39, “carrying
water, ice, tools, supplies, parts, clothing, lunchboxes,
” and other equipment. Brisbois Dep. 10, 13, 200, 219;
see also Donesky Decl. Ex. G, at 127-28; Donesky
Decl. Ex. P, at 12. Brisbois also saw a new employee, Dominic
Lamana, wandering around on unprotected track
Brisbois Dep. 16-18. Brisbois immediately stopped some of her
crew members from “proceeding over the track.”
Id. at 10, 199. Other crew members were too far away
for her to stop, id., so she did the next best thing
by quickly finishing the locking out of track 39.
Id. at 48, 201. Brisbois then drove back to her crew
and asked them why they had crossed track 39 without her
permission. Id. at 205. The workers responded that
Brisbois's boss, Kenneth Heath, had “told them to
go to work.” Id. at 37, 161, 165, 207.
showed up a few minutes later, and Brisbois went to confront
him. Id. at 207-09. At this point, Brisbois's
crew members were no longer in danger, as all of them were
working safely on protected tracks. Id. at 221-22.
But Brisbois nevertheless wanted to talk to Heath about how
he had “improperly permitted [her crew] to enter into
tracks that had not been protected.” Id. at
296. To that end, she asked Heath-and continued to ask
Heath-whether he thought what he had done was a
“safety” concern. Id. at 210-13. Heath
evaded the question. Heath denied ordering Brisbois's
“whole” crew to go to work. Id. at 210.
Heath asked Brisbois whether she had properly locked out
tracks 37 and 38 the previous night. Id. at 213,
226. And Heath told Brisbois that she should have talked
directly to Lamana if she was concerned for his safety.
Id. at 222. The conversation continued like this for
Heath told Brisbois to stop arguing and go back to work.
Id. at 214. Brisbois did not stop arguing and did
not go back to work. Id. at 244-45. According to
Brisbois, Heath did not tell her to stop talking,
but to stop arguing. Id. Also according to
Brisbois, she was not “arguing, ” but merely
“asking for clarification.” Id. at 228.
Thus, Brisbois contends, it was impossible for her
to follow Heath's instruction, because she could not stop
doing something that she was not doing in the first place.
Id. at 245-46. (Brisbois does not explain why she
could not follow Heath's instruction to go back to work.)
to say, Heath did not see things the same way. Two more
times, Heath told Brisbois to stop arguing and warned her
that, if she did not stop arguing and get back to work, he
would send her home. Id. at 226-28, 245-47, 260-62.
And two more times, Brisbois persisted in asking Heath
whether he thought what he had ordered the crew to do was a
safety concern. Id. After the third such exchange,
Heath sent Brisbois home. Id. at 37. It was roughly
7:00 a.m. Id. at 38-39.
month later, the Railroad conducted a disciplinary hearing.
Id. at 185. After taking testimony from Brisbois,
Heath, and several other employees, the Railroad determined
that Brisbois had violated Rules 1.6 and 1.13 of the General
Code of Operating Rules. See Donesky Decl. Ex. BB
[ECF No. 59-29]. Rule 1.6 prohibits employees from being
“insubordinate, ”“quarrelsome, ” or
“discourteous.” Donesky Decl. Ex. H [ECF No.
59-8], at 15. And Rule 1.13 generally requires employees to
follow their supervisors' instructions. Brisbois Dep.
159-62. As punishment for these rule violations, Brisbois was
suspended for five days without pay and her seniority was
restricted for one year. Id. at 5-6, 271-72; Donesky
Decl. Ex. BB. This lawsuit followed.
STANDARD OF REVIEW
judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute over a fact is
“material” only if its resolution might affect
the outcome of the suit under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). And a dispute over a fact is “genuine”
only if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving ...