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Sanders v. BNSF Railway Co.

United States District Court, D. Minnesota

October 24, 2019

Don Sanders, Plaintiff,
BNSF Railway Co., Defendant.

          Lucas J. Kaster and James H. Kaster, Nichols Kaster, PLLP, Minneapolis, MN, for Plaintiff Donald Sanders.

          Tracey Holmes Donesky, Stinson Leonard Street LLP, Minneapolis, MN, and Sally J. Ferguson, Arthur, Chapman, Kettering, Smetak & Pikala, PA, Minneapolis, MN, for Defendant BNSF Railway Co.


          Eric C. Tostrud United States District Court

         The Federal Railroad Safety Act, 49 U.S.C. § 20109 (“FRSA”), forbids a rail carrier from taking adverse action against an employee because the employee reported violations of, or refused to violate, any federal law relating to railroad safety. In this case, Plaintiff Don Sanders alleges that Defendant BNSF Railway Company violated the FRSA when it terminated his employment as a track inspector in April 2016. Sanders says essentially that BNSF fired him for reporting too many track defects. BNSF denies violating the FRSA and says it terminated Sanders for falsifying his payroll records. BNSF seeks summary judgment. This motion will be denied because a reasonable juror could conclude that BNSF terminated Sanders for reasons the FRSA prohibits and there is not clear and convincing evidence BNSF would have terminated Sanders regardless.


         Sanders worked for BNSF as a track inspector. BNSF hired Sanders in 2007. Sanders Dep. 23-24 [ECF No. 79-24].[2] He became a track inspector in approximately 2010. Id. at 26-28. As a track inspector, Sanders was responsible for identifying and reporting track defects to ensure that trains, equipment, and personnel could move safely. Id. at 34-35. Sanders could fix some more minor issues himself, but other defects required a maintenance crew to fix. Id. at 40. For such defects, depending on the type and severity of the defect, track inspectors might issue a “slow order”-ordering that trains move at a slower speed over a particular section-or pull a section of track out of service. Id. at 38- 39, 46-47. In other cases, the track inspector might simply report the defect into an internal computer system called “TIMS, ” to be repaired within 30 days. Id. 49-51. Sanders estimates that in his six years as a track inspector, he pulled tracks out of service “hundreds of times, ” id. at 45, issued “hundreds” of slow orders, id. at 48-49, and reported “thousands” of more minor defects, id. at 53-54.

         Sanders reported to roadmaster Blaine Hoppenrath, and she reported to division engineer Keith Jones. Track inspectors are supervised by a roadmaster. Sanders Dep. 59- 60. Except for a month or so beginning in January 2016 when Sanders moved to Northtown Yard in Minneapolis, where he was supervised by roadmaster Stephen Chartier, [3] see Sanders Dep. at 107, 191-92, Sanders worked mainly out of BNSF's Dayton's Bluff Yard in St. Paul, where Hoppenrath was his direct supervisor from about April 2015 onward. Hoppenrath Dep. at 13 [ECF No. 79-18]. She reported to division engineer Keith Jones. Id. at 70.

         During several conversations in or around November and December 2015, Jones voiced displeasure with Sanders's work, including with his slow orders. See generally Mem. in Opp'n at 9-12 [ECF No. 77]. Jones variously expressed concern that he would be fired as a result of the slow orders and defects reported in his territory, asked for Sanders's help to keep him from getting fired, and expressed anger at Sanders for placing slow orders and for contacting the Federal Railroad Administration (“FRA”) with a safety question. Unbeknownst to Jones, Sanders recorded some of these conversations, and a detailed review of some of those conversation is helpful to decide BNSF's summary-judgment motion.[4] At multiple points in those recorded conversations, Jones speaks angrily and uses profanity. The recordings are undated, but some can be assigned a date (or an approximate date) by referring to other documents in the record. Regardless, Sanders and BNSF agree that the recordings all were made while Sanders was a track inspector for BNSF. E.g., Jones Dep. at 190 [ECF No. 79-20 at 49].

         Jones berated Sanders for talking about their conversations with others. In one recording, the date of which is not evident, Sanders told Jones that he wanted an instruction he (Sanders) had received from Hoppenrath to inspect the main lines instead of the yard to be put in writing so that if something went wrong in the yard he would not be “thrown under the bus for it” and accused of failing to perform his assigned tasks. Kaster Decl. Ex. 13 at 0:12 to 1:04. Jones responded in an angry tone, saying: “Who's throwing anybody under the bus? The only bus is when you get on conference calls and start throwing shit out that you and I talk about behind the scenes. That's the only bus that can happen.” Id. at 1:04 to 1:12.

         Jones expressed anger over Sanders's slow-order reporting practices and asked Sanders to change his practices to protect Jones's job. In another recorded conversation on November 9, 2015, Jones interrogated Sanders about two slow orders he had entered. Kaster Decl. Ex. 14; see also Mem. In Opp'n at 9; Duginske Decl. Ex. BBB [ECF No. 68- 3 at 4-5]. Sanders explained the reason for the slow orders, and although Jones did not dispute the basis Sanders provided, he expressed frustration nonetheless, at least in part because they had slowed the speed at which a “business car” carrying company higher-ups could travel, and thus reflected badly on Jones:

Here's the deal, is I got fucking people coming in from all over the place that are double checking how I manage the railroad. And they're tell- and they're almost wanting to take me off this fucking job and put me on another one. So I'm about to lose my job, my family's welfare, and everything else because I can't get a team of people that want to work with me, and want to go around me or, or do shit that just seems to be the flavor of the day, and nobody wants to work with me, this and that. So where do I start to get people to look at my best interests at heart and not think that anybody's gonna get fired because we know when they [the defects] were put out there but they weren't reported? Everybody's failing here. Everybody's failing, but you know who's going to ultimately pay the price? It's gonna be me.

Kaster Decl. Ex. 14 at 1:57 to 2:44. Sanders responded that he had issued orders that he believed were required, and he did not know what to do. Sanders noted that another BNSF employee who he referred to as “Ben” had told him not to report defects to TIMS and to instead report them directly to a supervisor, which would allow the defects to be handled without leaving a paper trail. Jones replied:

All I know is, is we're- we're behind the eight ball, my ass is in the hot seat, and I don't know what to do. And, and granted, I know that those [defects] have been out there, but condition-wise, . . . are they really something that you're worried about, as opposed to other stuff that you got out there? I understand that the, what the EI[5] tells you, but are you really worried about, uh, something happening?

Id. at 2:45 to 4:06. Sanders provided more detail about the extent of the problem that caused him to issue the slow order, and Jones responded:

I mean I guess- I guess- I see what you- You gotta do what you gotta do, but I guess I'll just fucking pack my bags and tell the family fuck it I'll just go back. ‘Cuz I- I tried the partnership, I tried to let everybody understand that we're here to help each other, and it just seems like, that, you know, we- we have things that are out of spec and I understand that. And if you want to take Ben's stuff to heart, nobody's out here to get anybody. And I can't get anybody to understand that I need help from you guys before we can get brought back up. And I'm not telling you that when you see something that is a condition, a cross-level, a warp, or something that is truly measured out for a defect slow order, but I'm asking for some help . . . . Nobody wants to do anything for me, they just want to do everything against me.

Id. at 4:12 to 5:29. Jones characterized his crew members as engaging in “vindictive shit, ” id. at 5:35 to 5:41, and sighed, “I don't know. I just- I'm almost at the end of being able to hold on any much longer, ” id. at 8:02 to 8:09. Later, Jones complained:

It just seems like I can never have the right answers for my boss. OK? ‘What is this slow order on?' ‘Well, it's for this.' So and then we get that condition fixed and then all of a sudden here comes something out of left field, and we throw something else on again. . . . I mean it's just like, I mean we know what the EI says. There's critical joints at a location. You know what? Big fucking deal. We got other, bigger fish to fry.

Id. at 10:15 to 10:45. Later in the conversation, Jones told Sanders:

All I can do is express where I sit, and then you gotta do what you gotta do. It ain't like I can say that you're doing anything out of line, all I can say is that I just need your help right now to keep my ass from getting fired.

Id. at 13:17 to 13:30. Sanders asked if he needed to “just look the other way” to keep Jones from being fired; Jones said no, indicating that instead, Sanders should verbally report defects to Jones and let Jones make the decision about whether to enter a slow order based not primarily on safety considerations but on Jones's own professional interests: “I'd say well, all right, I've got a business car coming, I'm trying to eliminate some drama, let's, uh, let's hold off on those [inaudible], I'll take the heat if something happens, and- and then I'll get people over there to [perform maintenance].” Id. at 13:30 to 14:10.

         Jones rebuked Sanders for contacting the FRA. In another conversation, which seems to have occurred on November 23, 2015, Jones expressed anger that Sanders had called FRA with a question about a safety issue. See Duginske Decl. Ex. S [ECF No. 68-1 at 136-37]; Kaster Decl. Ex. 16. Jones and Sanders had previously spoken about whether a form of track protection, a “wrap bar, ” was “within the guidelines.” Jones Dep. at 227. Jones told Sanders that it was, but Sanders evidently still had reservations, and had contacted the FRA to inquire further, which angered Jones. Id. at 227-28. BNSF permits its employees to contact FRA for guidance on interpreting and applying safety rules, but Jones felts “betrayed” that Sanders had done so. Id. at 227-29. Jones yelled, “Why would you call them? All that does is bring up red flags that either management and track inspectors are not getting along or we're trying to [inaudible] or whatever like that. Why would you not call me?” Kaster Decl. Ex. 16 at 0:04 to 0:18. And again, “Why in the world would we ever call FRA about anything? Unless I'm absolutely blatantly telling you to break rules or don't do something. Why would you ever call FRA?” Id. at 1:00 to 1:14. Jones continued:

I tell ya, the maddest I've ever been in my life is just about three weeks ago when [unintelligible] obviously is getting information from you and all the other inspectors saying I'm telling you to do stuff wrong, and he's gonna call FRA on me. And I'll tell you what, nobody threatens me with that right there. And now to find out that you are making phone calls directly to FRA without including me first . . . It's not good.

Id. at 1:23 to 1:50. Later, Jones told Sanders, “Obviously you don't really give two shits about BNSF or you and I would be working more and more together and not bringing FRA into it.” Id. at 4:03 to 4:13. Sanders explained that FRA officials know the “rulebook” and that he had been consulting with FRA on safety regulations ever since he started working as a track inspector, but Jones accused Sanders of trying to get FRA to “start sniffing around” in Jones's territory:

That's your whole motive. You can't tell me you don't have a little hidden agenda to get ‘em because I don't do everything that you tell me to do and you think that I have you going around the books and, and cutting corners and this and that, so let's bring FRA in here and find out that we do have some non-class tracks for 30 days.

Ex. 16 at 9:25 to 9:46. Sanders denied that he had any hidden agenda, but Jones persisted: “I have never felt more betrayed than right now, [with you] calling the FRA.” Id. at 10:40 to 10:45.[6]

         Sanders contacted HR to report Jones, and a future meeting was planned. Shortly after Sanders's call with Jones about Sanders calling the FRA, on November 25, 2015, Sanders called BNSF's Human Resources (“HR”) manager, Magenta Eggertsen, [7] and asked to meet with her. Duginske Decl. Ex. T at 1 [ECF No. 68-1 at 140-41]. Eggertsen was not available immediately and conferred with Hoppenrath to find a time she could meet with Sanders. Id.

         Jones told Sanders in the meantime that his slow-order reporting was “embarrassing.” On December 3, 2015, Sanders recorded another conversation with Jones in which Sanders explained why he had put a slow order on a particular section of track, and that he had previously reported the issue but it had not been repaired. Duginske Decl. Ex. S; Kaster Decl. Ex. 18 at 0:10 to 0:50. “That's fine, ” Jones responded. “All I know is, Kramer [a welder]'s not leaving anymore. He's not leaving on time. He's not going home. And he's gonna weld until he fucking falls over. I'm sick of it. He can be pissed off at me for getting onto him for lying to him- to me, but I'm done being lied to and I'm done playing games, so I don't care.” Kaster Decl. Ex. 18 at 0:57 to 1:14. Sanders said he had told Kramer “at 3:30, the minute we found [the defect], ” to which Jones replied, “Okay. That's fine. I'm embarrassed. I'm embarrassed every time I get something from Fort Worth that says, ‘surprising,' or ‘what else is new,' or all this other shit because we find them all at 3:30 to 5:30 at night.” Id. at 1:14 to 1:34. He further told Sanders, “I'm not saying you're not doing your job, but as a whole, it is embarrassing for everybody. And if you're not embarrassed because we're putting these out at 3:30 at night, then obviously nobody's taking ownership in it like we should be.” Id. at 1:53 to 2:04. Jones was worried primarily about the “perception . . . we're just causing all kinds of ruckus” and not working during the day, only finding defects at night when they cannot be as speedily repaired. Id. at 3:38 to 4:18. “Well, ” Jones said toward the end of the call, “at this point I'm in survival mode. As usual.” Id. at 7:50 to 7:58.

         Sanders met with HR and reported his complaints with Jones and disclosed his recordings of their conversations. On December 7, 2015, Eggertsen and Sanders met. Duginske Decl. Ex. S. Sanders described his concerns with his treatment and played his recordings for her. Id. Within a day of when Sanders filed his first formal complaint, both Hoppenrath and Jones knew Sanders had begun communicating with HR, and Jones tried to preemptively refute what he assumed Sanders was reporting. Kaster Decl. Ex. 19 [ECF No. 80-11]. After her meeting with Sanders, Eggertsen recommended that Jones receive coaching and counseling for his inappropriate, disrespectful communications with Sanders, but concluded that no one was retaliating against Sanders. Eggertsen Dep. at 53, 72-73 [ECF No. 79-23]; Duginske Decl. Ex. T at 2. She also recommended that “a letter of anti-retaliation is important because Mr. Sanders feels already that he is treated different[ly].” Duginske Decl. Ex. T at 2. BNSF routinely issues anti-retaliation letters to supervisors like Jones when they are accused of ...

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