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Krist v. Bnsf Railway Co.

United States District Court, D. Minnesota

March 8, 2017

KENT KRIST, Plaintiff,

          Michael F. Tello and Michael P. McReynolds, Tello Law Firm, and David M. Bolt and Joseph M. Sayler, Bolt Hoffer Boyd Law Firm, Counsel for Plaintiff.

          Jacqueline M. Holmes, Jones Day, and Lee A. Miller and Sally J Ferguson, Arthur, Chapman, Kettering, Smetak & Pikala, PA, Counsel for Defendant.


          Michael J. Davis United States District Court Judge


         This matter is before the Court on the parties' cross-motions for summary judgment. [Docket Nos. 30, 41] The Court heard oral argument on September 28, 2016. Because Plaintiff could not meet Defendant's medical standards for fitness for duty insofar as he could not tolerate full-time work, Defendant is entitled to summary judgment.


         A. Factual Background

         1. The Parties and Plaintiff's Injury

         Defendant is BNSF Railway Company (“BNSF”). BNSF hired Plaintiff Kent Krist on May 3, 2004. (Morrell Aff., Ex. D, Krist Dep. 25-26.) Krist belonged to the United Transportation Union (“UTU”) and worked as a brakeman, conductor, and switchman. (Id. 26-27, 33.)

         On August 3, 2006, Krist suffered a work-related back injury: a handbrake malfunctioned and he injured his back. (Id. 58.) He informed his trainmaster and filed an injury report with BNSF on August 4. (Id. 58-59.) Krist then went on medical leave until December 2010. (Morrell Aff., Ex. L, Employee Transcript at 2.)

         On April 13, 2007, orthopedic surgeon Timothy Garvey, M.D., operated on Krist to repair a herniated disk. (Morrell Aff., Ex. D, Krist Dep. 60-61, 93; Morrell Aff., Ex. M, Garvey Dep. 19-20.)

         After Krist's back injury, BNSF assigned a manager from its Medical & Environmental Health Department, Connie John Swanson, to assist Krist in returning to work. (Morrell Aff., Ex. N, Swanson Dep. 6, 31; Morrell Aff., Ex. D, Krist Dep. 61-62.)

         2. BNSF Attendance Policy

         BNSF maintains an attendance policy entitled the Attendance Guidelines. (Morrell Aff., Ex. B, Murphy Dep. 11-12, 15; Morrell Aff., Ex. C, Attendance Guidelines.) The Attendance Guidelines are BNSF's own policy, not part of a collective bargaining agreement, and they can be modified as BNSF chooses. (Morrell Aff., Ex. B, Murphy Dep. 15-16.)

         The Attendance Guidelines state that TYE (train, yard, and engine) employees and Yardmasters must be “‘full-time' employees.” (Attendance Guidelines at 1.) BNSF considers full-time service an essential function of all operating employees; Krist was hired as a TYE employee. (Morrell Aff., Ex. A, Morgan Dep. 8, 84-86.) Under the Guidelines, full-time service is defined by a maximum per-month threshold of absences for each position. For an employee, such as Krist, who worked a five-day assigned service (five scheduled work days and two scheduled rest days per week), the threshold is one any day absence per month, in addition to rest days and other excluded time. (Attendance Guidelines at 1; Morrell Aff., Ex. B, Murphy Dep. 78; Morrell Aff., Ex. E, Brown Dep. 42-43, 120.) Excluded time includes absences for jury duty, union business, National Guard service, vacation, paid personal leave, and medical leave. (Attendance Guidelines at 1.)

         When employees are absent, they use a three-letter “layoff” code to label the reason for their absence. (Id.; Morrell Aff., Ex. F, Layoff Codes.) Layoff codes include “FML, ” for Family Medical Leave Act; “ION” for Injury On Duty; “LOP” for Layoff Personal Business; “LOS” for Layoff Sick; “MED” for Medical Layoff; and “VAC” for Layoff Vacation, among others. (Layoff Codes at 1.) ION is defined as follows: “All on-duty injuries must be reported immediately and, as a result, use of this code must be approved by a supervisor. This would also include re-occurring incidents where the injury requires additional time off.” (Id. at 2.) While LOS counts as an absence, ION does not count as an absence. (Id. at 2, 4.)

         BNSF analyzes compliance with the Guidelines on a rolling three-month basis in order “to better accommodate periods of intermittent illness.” (Attendance Guidelines at 1.) BNSF does not consider an employee to violate the Guidelines until his total absences in a three-month period exceed the combined three-month threshold. (Morrell Aff., Ex. B, Murphy Dep. 53, 75.) BNSF does not discipline an employee twice for the same absence. (Id. 84-85.)

         The first violation of the Attendance Guidelines results in a formal reprimand. (Attendance Guidelines at 2.) The second violation results in a 10- day suspension. (Id.) The third violation results in a 20-day suspension. (Id.) The fourth violation may result in dismissal. (Id.) The Guidelines instruct that managers should not enforce them in a “rigid or ‘wooden' manner, and in every case should use ‘common sense.'” (Id.)

         The collective bargaining agreements provide the procedures for charging and disciplining employees for attendance violations. (Morrell Aff., Ex. H, Albanese Dep. 30; Morrell Aff., Ex. I, Uniform Investigation Rule.) If a BNSF officer believes that an employee has violated the Guidelines, BNSF issues a notice of investigation scheduling a formal investigation. (Uniform Investigation Rule at 1.) The formal investigation is an adversarial process with the burden of proof on BNSF, which must provide a “fair and impartial” hearing before imposing any discipline. (Id. at 1-2.) A BNSF officer serves as the conducting officer. The employee has the right to cross examine witnesses, call his own witnesses, and introduce evidence. (Id. at 3.) The employee has a right to a representative. (Id.) After the investigation, BNSF officers review the transcript and determine whether the charges were proven. (Id.; Morrell Aff., Ex. J, Hunkus Dep. 66.) BNSF officers inform the employee of the results in writing. (Uniform Investigation Rule at 3-4.) Any assessment of discipline must be rendered within 15 days of the conclusion of the hearing. (Uniform Investigation Rule at 3.)

         If the employee faces dismissal, the case is separately reviewed under BNSF's Policy for Employee Performance Accountability (“PEPA”). (Murphy Dep. 112; Morrell Aff., Ex. G, Bausell Dep. 35-36; Morrell Aff., Ex. K, Wright Dep. 118.) After BNSF imposes discipline, the employee may appeal, culminating in arbitration before a neutral Public Law Board (“PLB”) established under the federal Railway Labor Act. (Murphy Dep. 115-16.)

         3. Light-Duty Position

         During the fall and winter of 2010, Krist used his seniority to begin training for sedentary work as a switch tender and hump tower operator. (Morrell Aff., Ex. Q; Morrell Aff., Ex. D, Krist Dep. 90; Morrell Aff., Ex. N, Swanson Dep. 95-96.) As part of the return-to-work process, on November 22, 2010, Krist and his union representative, Jeremy Brown, met with Swanson, BNSF managers, and possibly, supervisor, Robert Skuza. (Morrell Aff., Ex. D, Krist Dep. 83-85; Ex. N, Swanson Dep. 100-01; Supp. Morrell Aff., Ex. I, Skuza Dep. 19; Tello Aff., Ex. 3, Brown Dep. 48-49.) The purpose of the meeting was for Swanson to go over Krist's restrictions, accommodation needs, and job duties. (Id.) At the meeting, the participants reviewed Krist's physical restrictions and medications and discussed a training schedule for his new positions. (Id.)

         Krist and Brown assert that, during the meeting, Krist told Swanson that he would not be able to work five consecutive days because he would have flare-ups of his back pain and would need to lay off work when the flare-ups occurred. (Tello Aff., Ex. 3, Brown Dep. 41, 44, 49-53, 127-28; Tello Aff., Ex. 4, Krist Dep. 83-84.) According to Krist and Brown, Swanson stated that taking time off from work “wouldn't be a problem.” (Morrell Aff., Ex. D, Krist Dep. 83-84; see also Brown Dep. 51.) Brown claims that Swanson told Krist that he could take time off as needed for his back injury and that he did not need to worry about being disciplined or about the Attendance Guidelines because the absences were for a work-related injury. (Brown Dep. 51.) Brown claims that Skuza did not raise any concern about Krist intermittently missing work. (Id. 134.)

         Swanson testified that she had no memory of Krist mentioning that he would need to lay off intermittently for flare-ups, and Skuza testified that Krist did not mention such a need. (Supp. Morrell Aff., Ex. D, Swanson Dep. 99-100; Supp. Morrell Aff., Ex. I, Skuza Dep. 19-20.) Krist testified that, as far as he knew, BNSF only has full-time employees and that he had been told by Swanson that BNSF did not have part-time employees. (Morrell Aff., Ex. D, Krist Dep. 28.)

         4. Return to Work

         Krist returned to work at BNSF in December 2010. (Morrell Aff., Ex. R, Fitness for Duty Recommendation; Krist Transcript.) Within a few weeks of Krist's return, and although he used morphine while on duty, Krist suffered a flare-up of back pain and had to go to the hospital. (Morrell Aff., Ex. D, Krist Dep. 87, 91; Morrell Aff., Ex. S, Medical Notes.) Krist began another medical leave in January 2011. (Krist Transcript at 2.)

         5. 2011 Operation

         On March 9, 2011, Garvey performed a second back surgery on Krist. (Morrell Aff., Ex. M, Garvey Dep. 19; Morrell Aff., Ex. D, Krist Dep. 93; Morrell Aff., Ex. T, June 2, 2011 Garvey Note.) Garvey released Krist for full-time duty three months later, stating that his progress was “excellent” and that he was “capable of returning to light duty employment at the present time full time.” (Morrell Aff., Ex. D, Krist Dep. 95; Morrell Aff., Ex. T, June 2, 2011 Garvey Note.) Krist returned to work for BNSF in June 2011. (Morrell Aff., Ex. L, Krist Transcript at 2.)

         On July 18, 2011, Krist visited the emergency room due to back pain and then returned to medical leave. (Morrell Aff., Ex. D, Krist Dep. 96; Krist Transcript at 2; Morrell Aff., Ex. U, ER Letter.)

         In August 2011, Garvey wrote a letter stating that Krist could work four to six hours per day or possibly every other day. (Morrell Aff., Ex. V at 3; Morrell Aff., Ex. X, Aug. 22, 2011 Garvey letter.) Krist informed Swanson of Garvey's opinion, and Swanson encouraged Krist to undergo additional treatment so that he could return to work on a full-time basis. (Morrell Aff., Ex. V at 3; Morrell Aff., Ex. N, Swanson Dep. 106.) Swanson further explained that, under Krist's current hours restrictions, BNSF would not permit him to return to work. (Id.) Krist relayed to Garvey that BNSF would not allow part-time employment. (Morrell Aff., Ex. Y.)

         6. January 2012 Return to Work

         In November 2011, Garvey released Krist to full-time work. (Morrell Aff., Ex. Z; Morrell Aff., Ex. AA.) Krist returned to work in January 2012, but after a few weeks, Krist took medical leave. (Krist Transcript at 2.) During a January 26, 2012, exam, Garvey told Krist to “‘push through' his reactivation back at work” and explained that “it is highly unlikely that he would have caused any structural change.” (Morrell Aff., Exs. BB-CC; Morrell Aff., Ex. M, Garvey Dep. 52-53.) Garvey again released Krist to “full-time” work, defined as 40 hours per week. (Id.; Garvey Dep. 39-40, 48, 53-54.) Krist returned to work full-time at BNSF in February 2012. (Krist Transcript at 2; Morrell Aff., Ex. D, Krist Dep. 132.)

         Garvey saw Krist on March 5, 2012, and opined that Krist was “making good progress.” (Morrell Aff., Ex. DD.) Garvey noted that Krist was working “fulltime. (Id.) Garvey instructed Krist to “[c]ontinue your walking program, ” but did not mention flare-ups or the need to miss work one to three days per week. (Id.) He gave no treatment instructions other than to continue walking. (Id.) Garvey scheduled Krist for a one-year follow-up (id.), but Garvey did not see Krist again until June 22, 2015 (Morrell Aff., Ex. M, Garvey Dep. 57). Garvey did not treat Krist during that three-year period. (Id. 22.) Garvey testified that, as of March 2012, Krist had reached “maximum medical improvement, ” meaning that his back condition was “as good as” it was “going to get.” (Morrell Aff., Ex. M, Garvey Dep. 40, 112.)

         7. Federal Employers Liability Act Trial

         In 2007, Krist had filed a lawsuit against BNSF in Anoka County Court asserting a violation of the Federal Employers Liability Act (“FELA”).

         On April 11, 2012, Garvey gave a deposition in Krist's FELA case. (Morrell Aff., Ex. II, Garvey FELA Dep.) Garvey was asked if Krist was “more at risk for having these kind of flare-ups in the future than an average individual, ” and he testified: “Versus somebody who has not had surgical intervention I believe, yes, sir.” (Garvey FELA Dep. 36.) When asked if Krist would “have back flare-ups in the course of his life, ” Garvey testified: “Yes, sir. Yeah, he'll have an increased risk of flare-ups versus the population at large.” (Id.) He also agreed that “those flare-ups could cause him to have to miss work for periods of time.” (Id.)

         Garvey's deposition testimony was presented during the trial, and, according to Krist, multiple BNSF managers were present to hear Garvey's testimony. (Morrell Aff., Ex. HH at 47.) On June 26, 2012, the parties settled and stipulated to dismissal of the FELA lawsuit, which the state ...

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