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Johnston v. BNSF Railway Co.

United States District Court, D. Minnesota

October 16, 2017

Jason Johnston, Plaintiff,
BNSF Railway Company, Defendant.

          Kathryn Kohn Troldahl, Kohn Law, PA, Minneapolis, Minnesota, Jon M. Moyers, Moyers Law, PC, Billings, Montana, for Plaintiff.

          Timothy R. Thornton, Tara Reese Duginske, Briggs and Morgan, PA, Minneapolis, Minnesota, for Defendant.




         This matter is before the Court on Plaintiff Jason Johnston’s Motion to Reconsider (Doc. No. 82), in which he seeks reconsideration of Judge Richard H. Kyle’s June 30, 2017 Order (Doc. No. 75, the “June 30 Order”) on the parties’ cross-Motions for Partial Summary Judgment. Specifically, Johnston asks the Court to reconsider that portion of the June 30 Order granting the Motion of Defendant BNSF Railway Company (“BNSF”) and dismissing his claim under the Federal Railroad Safety Act of 1970 (“FRSA”), 49 U.S.C. § 20109. For the reasons that follow, Johnston’s Motion will be granted.


         A. Facts[1]

         1. Johnston’s reports and the alleged rule violations

         On May 14, 2013, Johnston’s Union, the Brotherhood of Maintenance of Way Employees (“BMWE”), lodged a complaint against BNSF with the Federal Railroad Administration (“FRA”) based on safety concerns reported by Johnston. (Duginske Decl. Ex. VV.)[2] It prompted an investigation, which determined:

[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.

(Id. Ex. WW.) Following the investigation, BNSF verbally reprimanded Johnston’s supervisor, Roadmaster Larry Sanders, and noted “needs improvement” on his performance review because of the FRA’s findings. (T. Smith Dep. at 131-32.)

         The FRA later performed a follow-up inspection and identified track defects at BNSF’s Milbank yard (a location in Johnston’s territory) that were required to be repaired within thirty days. (Johnston Dep. at 89, 95.) Johnston e-mailed Sanders daily to remind him of the defects but, thirty days later, the repairs had not been completed. (Id. at 96.) As a result, Johnston decided to “pull the yard out of service” on July 19. (Id.) According to Johnston, Roadmaster Joshua Fluck (who was supervising him at the time) responded by calling and informing him that his “ass would be grass” for making this decision. (Id. at 36.)

         Approximately two weeks later, on August 4, 2013, BNSF’s Maintenance of Way (“MOW”) Department called Fluck shortly before midnight with a report of “rough tracks.” (Fluck Dep. at 55-59; Duginske Decl. Ex. FF at 11.) Fluck sent Johnston to inspect and take any necessary safety precautions. (Fluck Dep. at 59; Johnston Dep. at 115.) Johnston traveled to the location, took measurements, and at approximately 2:45 am on August 5, “slow ordered” the tracks to ten miles per hour. (Duginske Decl. Exs. AA, FF at 11.) After completing this work, he proceeded to inspect other tracks in his territory, including an area known as “Big Stone,” and reported these hours as overtime. (Id. Ex. GG at 10, 14.)

         Later that morning, Fluck participated in a conference call with Sanders and Division Engineer Tom Smith (Sanders’s and Fluck’s boss). Fluck informed them of the rough-track call and Johnston’s response, but Smith noted he had not received Johnston’s “track notes,” a form upon which train inspectors document track measurements. (T. Smith Dep. at 41-43.) He asked Fluck to follow-up to determine whether Johnston had in fact inspected the track and prepared the notes. (Id. at 41-46.)

         As he was inquiring whether Johnston had completed the inspection, Fluck noticed there was no indication Johnston had obtained approval to “foul the tracks” at the location of the rough-track report. (Id. at 46.)[3] This led Smith to conclude the section of rough tracks either “wasn’t inspected or . . . wasn’t inspected . . . safely,” and he decided to initiate an investigation as provided by the collective-bargaining agreement (the “CBA”) between BNSF and the BMWE. (Id. at 46, 54.) He drafted a letter informing Johnston of an investigation to determine whether he had “fail[ed] to properly obtain authority before occupying or fouling the main track when [he] responded to a rough track [call] . . . on August 5, 2013.” (Duginske Decl. Ex. BB.) The letter also provided that Johnston was “being withheld from service pending results of [the] investigation.” (Id.) Smith directed Sanders to hand-deliver this letter to Johnston at his home. (T. Smith Dep. at 60.)

         In the interim, on August 7, Johnston engaged in strenuous work for the railroad. (Johnston Dep. at 72.) The following morning, he awoke with severe back pain, which he attributed to his work the previous day. (Johnston Dep. at 73-75.) As he was leaving home to report to BNSF, Sanders and another railroad employee arrived. (Id.) Sanders handed Johnston an envelope containing Smith’s notice of investigation and said, “We’re pulling you out of service.” (Id.) Johnston “could not believe it” and was “beside [him]self,” and for “several minutes” he blocked everything out. (Id. at 73-76.) He then told Sanders: “[W]ell, that’s fine . . . but we need to do some paperwork, because . . . I cannot hardly walk, I can’t move, I can’t tie my shoes, I have to go see the doctor.” (Id.) According to Johnston, Sanders ignored this report and drove away. (Id.)

         Meanwhile, Smith continued to review Johnston’s August 5 conduct. (T. Smith Dep. at 53.) In doing so, he came to believe Johnston had committed two additional rule violations: first, following the rough-track call, Johnston continued to work and reported those hours as overtime when he did not have supervisor approval to do so; and second, Johnston reported that he had traversed the Big Stone track by “hyrail” truck (a truck capable of driving on and off railroad tracks), but there was no record of him obtaining preapproval to foul the tracks. (Id. at 50-54.) Smith decided to initiate an investigation into these violations as well, and he so notified Johnston by two letters dated August 13. (Duginske Decl. Exs. II, JJ.) The letters stated that “BNSF received first knowledge of [these] alleged violation[s] [on] August 8, 2013.” (Id.)

         2. The BNSF hearings

         In late August 2013, BNSF held three separate hearings (called “investigations” by the parties) concerning each of Johnston’s purported rule violations. (Id. Exs. FF-HH.) The investigations were conducted by Jason Randash, a BNSF Roadmaster based in Fargo, North Dakota. (Id.) Johnston represented himself, accompanied by representatives from the BMWE. (Id.) Fluck testified at the first investigation (concerning the initial fouling-the-tracks allegation); Fluck and Sanders testified at the second investigation (regarding the allegedly unauthorized overtime); and Sanders testified at the third investigation (regarding the fouling-the-tracks allegation at Big Stone). (Id.)

         At the first investigation, Fluck testified that under BNSF’s rules, Johnston was required to obtain preapproval to foul the tracks because he was working at night, but there was no evidence he had done so. (Id. Ex. FF at 12-13.) Johnston responded that he had used the “lone-worker rule,” pursuant to which a single worker may foul tracks without preapproval when he is able to “visually detect the approach of a train . . . and position [himself] in a predetermined place of safety at least 15 seconds prior to the arrival of the train.” (Id. Ex. Z at 7.) The rule requires that “natural or artificial light and conditions [be] sufficient to observe approaching trains,” and its use may not be based “solely upon the observation of [a train’s] headlights, . . . such as during conditions of insufficient visibility as affected by darkness or inclement weather.” (Id.) Johnston contended that there was sufficient moonlight and artificial lighting to invoke the rule during the early-morning hours on August 5, and he submitted written statements from four other railroad employees indicating they had used the lone-worker rule at night without ramifications. (Duginske Aff. Ex. FF at 32-35.)

         At the second investigation, conducted in the morning on August 18, 2013, Sanders testified that overtime must be approved by a supervisor, and that he learned on August 8 that Johnston had worked unapproved overtime following the rough-track call on August 5. (Id. Ex. GG at 11-20.) Fluck similarly testified that he did not authorize Johnston to work overtime on August 5. (Id. at 23-24.) In response, Johnston raised two procedural objections: first, that the assertion of unauthorized overtime was untimely under the CBA,[4] and second, that Sanders and Fluck had met privately with Randash before the investigation commenced, which undermined its impartiality. (Id. at 5-6.) On the merits, he testified ...

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