United States District Court, D. Minnesota
Moyers, Moyers Law, PC, Billings, Montana, Kathryn Kohn
Troldahl, Kohn Law, PA, Minneapolis, Minnesota, for
Timothy R. Thornton, Tara Reese Duginske, Briggs and Morgan,
PA, Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
RICHARD H. KYLE, UNITED STATES DISTRICT JUDGE
Jason Johnston alleges in this action that the negligence of
his former employer, Defendant BNSF Railway Company
(“BNSF”), caused him injuries, in violation of
the Federal Employers' Liability Act
(“FELA”), 45 U.S.C. § 51 et seq.,
and that BNSF terminated him in retaliation for making safety
and personal-injury reports, in violation of the Federal
Railroad Safety Act (“FRSA”), 49 U.S.C. §
20109. Presently before the Court are the parties'
cross-Motions for Partial Summary Judgment. For the reasons
that follow, the Court will grant BNSF's Motion and grant
in part and deny in part Johnston's Motion.
following facts are undisputed. BNSF operates a railroad
spanning 33, 000 miles, twenty-eight states, and two Canadian
provinces. (Mclaughlin Decl. ¶ 2.) Its Maintenance of
Way (“MOW”) Department preserves the integrity of
its railroad tracks and related structures. (Id.
¶ 4.) Johnston began working for BNSF in 1997 and, at
all relevant times, worked in its MOW Department as a track
inspector. His duties included investigating reports of
track-related defects in BNSF's Appleton Subdivision,
part of the Twin Cities South Division. He inspected tracks
using a BNSF-owned “hyrail” truck capable of
driving on and off railroad tracks.
relevant policies governed Johnston's workplace conduct.
First, like most BNSF employees, Johnston belonged to a
union, the Brotherhood of Maintenance of Way Employees
(“BMWE”). A collective bargaining agreement
(“CBA”) between BNSF and BMWE set forth workplace
rules and required BNSF to follow certain procedures prior to
disciplining a union employee. (See Duginske Decl.
Ex. Q.) It also provided that “[n]o overtime hours will
be worked without authority of a superior officer, except in
cases of emergency where advance authority is not
BNSF's Policy for Employee Performance Accountability
(“PEPA”) provided that “[r]ule compliance
is essential to a safe operation, and [BNSF] expect[s]
everyone . . . to consistently comply with [its] safety and
operating rules.” (Id. Ex. R at 2.) It set
forth three categories of misconduct-standard, serious
(“Level S”), and “standalone
dismissible” violations-and outlined a progression of
discipline for repeat violations in each category.
(Id. at 3-4.) A standard violation is one
“which does not subject an employee or others to
potentially serious injury or fatality, ” whereas a
Level S violation includes, among other things, any
“[v]iolation of any work procedure that is designed to
protect employees, the public and/or others from potentially
serious” injury or fatality. (Id. at 5.)
Stand-alone dismissible violations, as the label suggests,
may “result in immediate dismissal.”
(Id. at 6.) “Dishonesty about any job-related
subject” is one such stand-alone dismissible violation.
BNSF promulgated Maintenance of Way Operating Rules
(“MWOR”) for track inspectors such as Johnston.
(See id. Ex. Z.) The MWOR required Johnston to
obtain pre-approval from central train dispatch prior to
occupying railroad tracks (“fouling the tracks”)
to ensure it was safe for him to do so. The “lone
worker rule” is an exception-a lone worker may foul the
tracks absent preapproval when, among other things, the
“lone worker is able to visually detect the approach of
a train . . . and position themselves [sic] in a
predetermined place of safety at least 15 seconds prior to
the arrival of the train.” (Id. at 7.)
Events giving rise to this case
Safety ladder complaint
October 12, 2012, track inspector Timothy Even lodged a
safety complaint with BNSF regarding his hyrail truck. (Kohn
Aff. Ex. D.) Specifically, he reported that its tailgate was
forty-eight inches off the ground when parked on railroad
tracks. At this height, in his view, he lacked a safe method
of entering and exiting the rear of the truck. (Id.)
Though Johnston's hyrail truck was not identified in
Even's report, Johnston recalled raising the same issue
at “numerous safety meetings” during the fall of
2012. (Johnston Dep. 10-11.) He complained to his direct
supervisor, Roadmaster Larry Sanders, that BNSF needed to
install safety ladders on hyrail trucks to remedy the issue.
(Id.) Sanders obtained one ladder, directed Even to
install it on his truck, and considered the complaint
resolved. (Sanders Dep. 74.) Then, “some of the guys
[saw] the steps that came in and asked if they could get one,
” so Sanders “went ahead and just ordered [them]
all steps.” (Id. 76; see also Kohn
Aff. Ex. I (ladder receipts dated late 2012 and early 2013).)
Sanders testified in his deposition that, when the ladders
arrived, he directed Johnston to “come and pick [a
ladder] up and get it installed.” (Sanders Dep. 83.) In
contrast, Johnston testified that no one advised him a ladder
was available or approved its installation on his truck.
(Johnston Dep. 16, 113-14.) It is undisputed, however, that
Johnston never had a ladder installed on his truck.
March 13, 2013, BNSF cited Johnston for failing to wear his
seatbelt while operating his hyrail truck, a Level S
violation. (Duginske Decl. Ex. Y.) Johnston took
responsibility for the violation and waived his CBA-afforded
right to a hearing. (Id.) As a consequence, in April
2013, he incurred a “30 Day Record Suspension”
and one year of probation, as contemplated by the PEPA.
(Id.; see also id. Ex. R; Johnston Dep.
21.) Under such circumstances, the PEPA warned that
“[a] second [Level S] violation committed within the
applicable review period may result in dismissal.”
(Duginske Decl. Ex. R at 4.)
Federal Railroad Administration complaint
months later, on May 14, the BMWE lodged a complaint against
BNSF with the Federal Railroad Administration
(“FRA”) based on safety concerns reported by
Johnston. (Id. Ex. VV.) Johnston had approached BMWE
Vice Chairman John Mozinski with concerns that Sanders was
clearing track defects from BNSF's database when they had
not in fact been remedied. (Mozinski Dep. 18.) Based on
information Johnston provided (but without mentioning
Johnston), Mozinski wrote a letter to the FRA outlining the
concerns. (Id.; Duginske Decl. Ex. VV.) It prompted
an investigation, which found:
[BNSF's] inspection records were in order according to
[federal standards]. However, three locations inspected
contained defects that had been documented as repaired which
had not been remedied. As a result, a recommendation for the
assessment of civil penalties will be submitted to the FRA
Office of Chief Counsel.
(Duginske Decl. Ex. WW.) It is unclear whether BNSF incurred
civil penalties (compare Johnston Dep. 37-38
(testifying that BNSF was fined), with Sanders Dep.
56 (denying fines were assessed)), but BNSF verbally
reprimanded Sanders and noted “needs improvement”
on his performance review because of the FRA's findings
(T. Smith Dep. 131-32).
later performed a follow-up inspection and identified
additional track defects at BNSF's Milbank yard (a
location in Johnston's territory). The FRA required BNSF
to repair the defects within thirty days. (Johnston Dep. 89,
95.) Johnston e-mailed Sanders daily to remind him of the
defects but, thirty days later, no one had completed the
repairs. (Id. 96.) As a result, Johnston decided to
“pull the yard out of service” on July
(Id.) Johnston testified in his deposition that