United States District Court, D. Minnesota
MEMORANDUM AND ORDER
A. Magnuson, United States District Court Judge.
matter is before the Court on Defendant's Motions for
Summary Judgment, to Sever, and to Exclude Expert Testimony.
For the following reasons, the Motion for Summary Judgment is
granted in part and denied in part, the Motion to Sever is
denied as moot, and the Motion to Exclude is granted.
Todd Smith-Bunge worked at Defendant Wisconsin Central, Ltd.,
for six years. He initially worked as a machine operator, but
after suffering a back injury on the job, he transitioned to
working as a welder. (McNee Aff. Ex. 1 (Smith-Bunge Dep.) at
59.) In the course of his duties as a welder, Smith-Bunge
drove a welding truck. (Id. at 72.)
September 18, 2014, Smith-Bunge, two other Wisconsin Central
employees, and employees of another company, Holland, LP,
were working on train tracks near Aurora, Minnesota.
(Id. at 70-71.) Because of the track work, a train
traveling on the track had been stopped just east of where
they were working, and Smith-Bunge was aware of this fact.
(Id. at 82.) Smith-Bunge also knew that the railroad
had given the train permission to continue moving when the
work was completed. (Id.)
they finished working, the other employees got into their
vehicles and Smith-Bunge got into his truck. The three
vehicles drove west on the service road parallel to the
tracks; they were traveling in the same direction as the
now-moving train. The service road crossed the tracks and
continued to run west, parallel to and on the other side of
the tracks. (Id. at 94-96.) The other two vehicles
crossed the tracks ahead of the train without incident;
Smith-Bunge drove into the path of the oncoming train and was
injured. He admits that he saw and heard the train as he was
driving (id. at 98-99), but claims that the truck
brakes either malfunctioned, some obstacle prevented him from
braking, or the taconite pellets on the roadway prevented his
truck from stopping in time to avoid an accident.
railroad investigated the incident, but at the union's
request waited until Smith-Bunge was cleared to return to
work some five months later to hold a hearing. (McNee Decl.
Ex. 9 (Swalboski Dep.) Ex. 2.) The railroad's expert
witness, who examined the truck and reconstructed the
accident, testified that although one of the truck's six
brake axles was out of adjustment, the rest of the brakes
were in good working order and were sufficient to stop the
truck. (Id. Ex. 1 (Hr'g Tr.) at 118-19; 122.)
Smith-Bunge's expert witness agrees with this conclusion.
(McNee Decl. Ex. 6 (Lofgren Dep.) at 70-71.) There was no
evidence of any obstacles blocking the brake pedal.
(Id. at 88-89.) The data recorder from the truck
indicated that, although Smith-Bunge had slowed to about 10
mph at the time of the accident (McNee Decl. Ex. 7 (Rogers
Dep.) at 167), he had not depressed the brake pedal enough to
activate the anti-lock brake system. (Id. at 128.)
Smith-Bunge did not proffer any witness or expert testimony
at the hearing, although he had retained an expert to perform
tests on the truck and to examine the service road and
crossing, presumably in anticipation of this litigation.
Central determined that Smith-Bunge violated four of the
railroad's safety rules, including that he falsely
reported that the truck's brakes failed and caused the
accident. On March 6, 2015, Wisconsin Central terminated
Smith-Bunge's employment. (Garella Aff. Ex. 14.)
filed an administrative complaint, claiming that his
termination was in retaliation for a previous federal lawsuit
and the injuries he suffered in the September 18, 2014,
accident. (McNee Aff. Ex. 12.) The record does not reflect
the disposition of that complaint. Smith-Bunge filed this
lawsuit on December 16, 2015, claiming both retaliation under
the Federal Railroad Safety Act (“FRSA”) and that
the railroad's negligence caused the accident under the
Federal Employers' Liability Act (“FELA”).
judgment is proper if there are no disputed issues of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). The Court must view the
evidence and inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party.
Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th
Cir. 1996). The moving party bears the burden of showing that
there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A party opposing a
properly supported motion for summary judgment may not rest
on mere allegations or denials, but must set forth specific
facts in the record showing that there is a genuine issue for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986).
FRSA prohibits rail carriers from retaliating against
employees who engage in safety-related protected activities.
49 U.S.C. § 20109. As relevant here, FRSA provides that
a rail carrier “may not discharge . . . or in any other
way discriminate against” an employee for, lawfully and
in good faith, reporting a hazardous safety condition or
workplace injury, testifying at an FRSA proceeding, or
following a doctor's treatment plan. Id.
§§ 20109(a)(3), (a)(4), (b)(1)(A), and (c)(2).
Central argues first that Smith-Bunge cannot raise here any
claims he did not raise in his administrative complaint
because of FRSA's exhaustion requirement. 49 U.S.C.
§ 20109(d). Smith-Bunge mentions that he complained
about the condition of the road and the track crossing at
some point before the September 2014 accident; Wisconsin
Central asserts that he is precluded from making this
argument here because it was not included in his
administrative complaint. But Smith-Bunge is not contending
that he was retaliated against for this purported earlier
complaint about the ...