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Bjornson, v. Soo Line Railroad Co.

United States District Court, D. Minnesota

February 21, 2017

LONNIE BJORNSON and SHARON BJORNSON, Plaintiffs,
v.
SOO LINE RAILROAD COMPANY, a Minnesota corporation d/b/a Canadian Pacific Railway, and GLENWOOD HOSPITALITY, INC., a Minnesota Corporation d/b/a Scottwood Motel, Defendants.

          Michael P. McReynolds, TELLO LAW FIRM, and David A. Brandis, YAEGER & JUNGBAUER BARRISTERS, PLC, for plaintiffs.

          Tracey Holmes Donesky and Margaret M. Bauer Reyes, STINSON LEONARD STREET LLP, and Steven J. Erffmeyer, ARTHUR, CHAMPMAN, KETTERING, SMETAK & PIKALA, PA, for defendant Soo Line Railroad Company.

          Gregory J. Young, GOETZ & ECKLAND P.A., Banks Building, for defendant Glenwood Hospitality, Inc.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

          JOHN R. TUNHEIM, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Plaintiffs Lonnie Bjornson (“Bjornson”) and Sharon Bjornson bring this action against Bjornson's employer, Soo Line Railroad Company, doing business as Canadian Pacific Railway, (“Canadian Pacific”), and Glenwood Hospitality, Inc. (“Glenwood Hospitality”). Plaintiffs allege several state and federal claims based on Bjornson's injury from slipping in the shower at a hotel owned by Glenwood Hospitality, and a 5-day suspension he received from Canadian Pacific after he called in sick to attend a chiropractic session almost two years after his injury. Canadian Pacific moves for summary judgment on Count II of Bjornson's complaint, in which Bjornson alleges that this disciplinary action violated the Federal Rail Safety Act (“FRSA”). Because the Court finds that Bjornson did not engage in protected activity, Bjornson's FRSA claim fails, and the Court will grant Canadian Pacific's motion.

         BACKGROUND

         I. FACTUAL HISTORY

         Canadian Pacific “provides freight rail transportation services in several states, including Minnesota and North Dakota.” (Decl. of Amanda Cobb (“Cobb Decl.”) ¶ 3, May 31, 2016, Docket No. 61.) Canadian Pacific is “largely unionized” and its union workers, including its conductors, “are governed by applicable collective bargaining agreements.” (Id. ¶¶ 3-4.) Canadian Pacific contracted with Glenwood Hospitality to provide rooms at a set rate for its employees at the Scotwood Motel in Glenwood, Minnesota. (See Aff. of David A. Brandis (“Brandis Aff.”), Ex. B, June 21, 2016, Docket No. 66.)

         Bjornson began working for Canadian Pacific as a conductor trainee in 1997, and after a few months of training, he became a conductor. (Decl. of Greta Bauer Reyes (“Reyes Decl.”), Ex. A (“Bjornson Dep.”) at 36:14-24, May 31, 2016, Docket No. 62; Cobb Decl. ¶ 7.) The conductor position includes a requirement to “be available on call, 24 hours per day, 7 days per week including weekends and holidays.” (Reyes Decl., Ex. C.)

         A. BJORNSON'S INJURY

         On November 3, 2011, Bjornson worked on freight run from Enderlin, North Dakota, to Glenwood. (Id. at 296:18-297:13.) Bjornson stayed at the Scotwood motel, where several anti-skid strips were missing from the shower in his room. (Id. at 298:5-9, 219:6-9; Brandis Aff., Ex. C.) Bjornson slipped and fell in the shower, hitting the side of the tub with his left shoulder and the back of the tub with his head. (Bjornson Dep. at 305:4-6, 306:4-307:9.) Bjornson completed a guest accident report and filled out an injury report form with his employer. (See Reyes Decl., Ex. S; id., Ex. T.) Bjornson still worked his shift on November 3, and the following several days. (Bjornson Dep. at 237:14-25.) Bjornson stated that he did not feel any aches and pains when he first returned to work, but three or four days later, he began experiencing stiffness and soreness in his neck and shoulder. (Id. at 320:3-7.)

         B. BJORNSON'S 2011 MEDICAL TREATMENT

         On November 9, 2011, Bjornson sought medical treatment from a physician's assistant, Cristy Brosowske.[1] (Id. at 152:3-19.) Brosowske noted a bruise on Bjornson's left upper arm, and Bjornson reported neck pain and upper back pain, as well as continuous pain radiating down his upper right arm. (Reyes Decl., Ex. W.) Brosowske suspected chronic tendonitis was the cause of Bjornson's shoulder pain, and she recommended rest, ice, and heat. (Id.) Brosowske also directed Bjornson to check back with the office in two to three weeks and return for a follow up appointment if his condition was not improving. (Id.)

         Bjornson did not return to work after the November 9 appointment while he rested due to his neck and shoulder pain. (Reyes Decl., Ex. Y; id., Ex. V (“Brosowske Dep.”) at 29:6-19.) Bjornson returned for a follow-up medical appointment on November 23, 2011, where he reported occasional pain in his neck and back. (Id., Ex. Z.) Brosowske diagnosed Bjornson with cervical strain and bilateral shoulder tendonitis, and also noted a history of degenerative joint disease and degenerative disk disease of the cervical spine and degenerative joint disease of the shoulders. (Id.; Brosowske Dep. at 35:4-10.) Brosowske referred Bjornson to physical therapy to evaluate if he could return to work. (Brosowske Dep. at 35:21-36:5.) On November 30, 2011, Bjornson again visited Brosowske, and she completed a supplemental doctor statement in which she found that Bjornson's ...


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