Smith v. BNSF Railway Co.

          ORDER

          KATHLEEN M TAFOYA, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on “BNSF Railway Company's Motion for Summary Judgment on Plaintiff's FELA and FRSA Claims” (“Mot.”) [Doc. No. 48] filed November 16, 2018. “Plaintiff's Response in Opposition to BNSF Railway Company's Motion for Summary Judgment on Plaintiff's FELA and FRSA Claims” (“Resp.”) [Doc. No. 56] was filed December 11, 2018. “BNSF Railway Company's Reply in Support of its Motion for Summary Judgment on Plaintiff's FELA and FRSA Claims” (“Reply”) [Doc. No. 59] was filed on December 26, 2018. This motion is now ripe for ruling by the court.^[1]

         Unless otherwise referenced, the following summary is taken from the parties' undisputed facts (“UF”) contained in BNSF's motion, which were not disputed in the Response by Plaintiff.

         Plaintiff Smith began working for BNSF in November 2014 as a Carman, a job that entails working on rail cars needing repairs, as well as inspecting rail cars, connecting air hoses, and releasing hand brakes. (UF #1.) The Carman position entailed specialized safety training (UF # 2, 4) and working as an apprentice under more experienced Carman employees (UF# 3).

         On or about May 23, 2015, Plaintiff worked for BNSF at the yard and was releasing rail car hand brakes with Greg Rogers, Morris Bell and George Keithline. (UF #39.) Plaintiff made no report of injury for any activities he undertook on that day. (UF # 17.) Between May and July 22, 2015, Plaintiff did not miss work because of any injury sustained on his job as Carman. (Id.) Plaintiff Smith denies that he was injured prior to the July 22, 2015 injury described infra.

         On June 26, 2015, Plaintiff began seeing a chiropractor, Dr. Stephen Kutscher, complaining that he had been feeling pain and tingling from his right shoulder to his fingers since June 1, 2015, and reported his symptom level as being near the top of “extreme symptoms.” (Mot., Ex. H [Doc. No. 48-8].) On the body diagram Plaintiff completed at intake, Plaintiff said he was feeling “pins & needels (sic)” from his thumb to the top of his neck and used the pain assessments for Ache, Burning, Numbness and Pins and Needles as descriptive of his symptoms. (Id.) He claimed that any movement or pressure aggravated the problem and that he was prevented from doing or enjoying “Everything sleep.” (Id.) Between June 26, 2015 and July 21, 2015, Plaintiff was treated by Dr. Kutscher more than once.

         On July 22, 2015, Plaintiff, working with more senior employees Carman Aranda and Carman Acosta at the rip track (not at the yard) (see UF#56), was using a sledge hammer to attempt to remove^[2] a cushioning unit from a rail car. (UF #21, 23-25.) Plaintiff was not swinging the sledge hammer in a traditional movement, but rather was using it “in a plunger effect to tap the cushioning unit” (UF #25) and “not holding any weight of the sledgehammer” (UF #24). During the last hour of his shift, while still engaging with the sledge hammer and the cushioning unit, Plaintiff testified that he felt a “zinger” or “Charlie horse” shoot up his right arm. (Resp. Ex. 1 at 34 [Doc. No. 56-1] (“Pl. Dep.”), deposition page 130.) The trio were unable to release the cushioning unit during the course of their shift that day and left the project to be worked on by others. (UF #35.) No. report of injury was made that day.

         Although the date Plaintiff claims he first reported an injury to BNSF arising out of his activities on July 22, 2015 is disputed - it appears the date was either July 24 or July 25, 2015 - it is undisputed that on July 27, 2015, Smith submitted an injury report that his supervisor helped him complete^[3] and noted the date of injury as July 22, 2015. (UF ## 37, 39; [Doc. No. 48-16].) In describing his injuries, Plaintiff stated in the report, “sever (sic) pain from right shoulder blade to finger tips, numbness, pins & needles sensation.” [Doc. No. 48-16.] Plaintiff also stated, “was noticing irritation on east and trainyard tying hand brakes, final realization was at rip track using sledge hammer on track 123 working on [unreadable] gear.” (Id.) Plaintiff reported that fellow employees Greg Rogers, Morris Bell, and George Keithline were witnesses to his injury; Plaintiff did not report that Mr. Aranda or Mr. Acosta were witnesses. (Id.; UF #39.) As noted, Mr. Rogers, Mr. Bell and Mr. Keithline were employees who worked with Plaintiff on or about May 23, 2015, when Plaintiff was releasing hand brakes on rail cars at the yard but who were not working with him on July 22, 2105. (UF #39.)

         On July 23, 2019, before any injury report was made to any person in authority at BNSF, Plaintiff went to see Dr. Brad Reedy, D.O., at Front Range Family Medicine. [Doc. No. 48-17.] According to Dr. Reedy's intake notes, Plaintiff reported neck pain, upper back pain and shoulder pain, which Plaintiff said had been ongoing for 8-9 weeks and had been worsening for the previous two weeks. Plaintiff claimed that the pain was “[w]orse after swinging sledge hammer at work.” (Id. at 1.)

         Plaintiff has been diagnosed via an MRI taken August 12, 2015, with

1. Mild degenerative changes of the C6-7 disc space with a posterior right paracentral disc protrusion/herniation causing lateral recess effacement and proximal C7 nerve root compression. 2. Minimal degenerative changes of the C7- T1 disc space with a small posterior central disc protrusion without evidence of nerve root impingement or cord compression. 3. Findings consistent with muscle spasm.

(Resp., Ex. 6 [Doc. No. 56-6] (MRI Radiological Report); see also Ex. 5 [Doc No. 56-5] (Operative Report).)

         After conducting two disciplinary investigations concerning Plaintiff's Report of Injury, on September 2, 2015, BNSF terminated Plaintiff based on its finding of “dishonesty.” (UF #50, 54.) Plaintiff also received a Level S record suspension on the basis that Plaintiff failed to file a FRSA report about a May 2015 injury. (Id.)

         Plaintiff claims that he was fired because he filed an injury report, a FRSA protected activity and that not only was he not dishonest, the dishonesty allegation is a pretext for the real reason he was fired - for engaging in protected activity. Further, Plaintiff claims that BNSF provided an unsafe work environment which led to his injury on July 22, 2015. Defendant moves for judgment as a matter of law on both claims.

         LEGAL STANDARD

         Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact is “material” if “under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

         When ruling on a motion for summary judgment, a court may consider only admissible evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, 36 F.3d at 1517. When ruling on a motion for summary judgment, courts should recall that “[c]redibility determinations [and] the weight of the evidence” are the province of the jury. Fresquez v. BNSF Railway Co., No. 17-cv-00844- WYD-SKC, 2018 WL 6249686, at *5 (D. Colo. Oct. 2, 2018) (citing Anderson, 477 U.S. at 255). Even so, at the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.

         ANALYSIS

         A. Federal Railroad Safety Act - Claim II

         In 1980 Congress added an anti-retaliation provision to the Federal Railroad Safety Act, 49 U.S.C. § 20101, et seq. (“FRSA”), prohibiting railroad carriers from discriminating against employees who reported safety violations or who refused to work under hazardous conditions. Federal Railroad Safety Authorization Act of 1980, Pub. L. No. 96-423, § 10, 94 Stat. 1811, 1815. FRSA provides that a railroad “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done . . . to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee.” 49 U.S.C. § 20109(a)(4).

         To prevail on his FRSA claims, Plaintiff must prove each of the following four elements by a preponderance of the evidence: 1) he engaged in protected activity; 2) BNSF knew about the protected activity; 3) BNSF subjected him to an unfavorable personnel action; and 4) the protected activity was a “contributing factor” in the unfavorable personnel action. BNSF Ry. Co. v. United States DOL, 816 F.3d 628, 638 (10th Cir. 2016); Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014). Courts have held that an employee must prove intentional retaliation prompted by the employee engaging in protected activity. See Jones v. BNSF Ry. Co., No. 14- 2616-JAR-KGG, 2016 WL 3671233, at *3 (D. Kan. July 11, 2016) (district court correctly focused on the decisionmakers' knowledge and motive when analyzing Appellant's FRSA retaliation claims). The Supreme Court has held that the essence of the kind of intentional tort involved here is “discriminatory animus.” Staub v. Proctor Hosp., 562 U.S. 411, 421 (2011) (dealing with antimilitary animus).

         If Plaintiff can establish a prima facie case as to the first four elements of his FRSA claim, a defendant such as BNSF can nonetheless be exonerated from liability if it “demonstrates, by clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of the plaintiff's protected activity.” See 49 U.S.C. § 42121(b)(2)(B)(ii); Fresquez, 2018 WL 6249686, at *10-11 (If the employee meets his or her threshold burden, the burden shifts to the employer to demonstrate “by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of [the employee's protected activity].”) (citing Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1212 (10th Cir. 2018) (quoting Conrad v. CSX Transp., Inc., 824 F.3d 103, 10 (4th Cir. 2016)). In Araujo v. New Jersey Transit Rail Operations, Inc., 708 F.3d 152 (3d Cir. 2013), the court made clear that this is a “tough standard, and not by accident.” Id. at 159 (citation omitted). “[T]he “standard is ‘tough' because Congress intended for companies . . . to face a difficult time defending themselves, due to a history of whistleblower harassment and retaliation in the industry.” Id. (citation omitted).

         Defendant claims Plaintiff lacks evidence sufficient to support elements one and four. As to element two, it is not disputed that BNSF knew about Plaintiff's injury report^[4] and as to element three, both termination and suspension are undisputedly adverse employment events.^[5]Should the court find, however, that sufficient evidence does exist to support Plaintiff's FRSA claim, Defendant argues it is nonetheless entitled to judgment as a matter of law on its affirmative defense that BNSF would have suspended and terminated Plaintiff notwithstanding the protected activity of filing an injury report on the basis of Plaintiff's dishonesty. Finally, BNSF argues that even if the court finds sufficient evidence on elements one through four and finds against BNSF at this stage on its affirmative defense, Plaintiff lacks sufficient evidence to pursue a claim for punitive damages.

         1. Element 1, Protected Activity

         Defendant argues, relying on Murphy v. Norfolk S. Ry. Co., No. 1:13-CV-863, 2015 WL 914922, at *5 n.3 (S.D. Ohio Mar. 3, 2015)^[6], that Plaintiff did not make a good faith injury report in July 2015. To satisfy the “good faith” requirement under FRSA, an employee must both “have a good faith belief that his injury is work-related” and “have actually made the injury report itself in good faith.” Id. The Ohio court addressed a situation where an employee had attempted to conceal his injury from his employer by failing to make an injury report. Defendant argues that Plaintiff's failure to report his May 2015 injury, like the Plaintiff in Murphy, was an attempt to conceal the same. In the Ohio case the court found that an employee who later reports an on-duty injury after actively attempting to conceal his injury from his employer does not make a “good faith” injury report under FRSA. Accordingly, “[a]n employee who . . . actually attempted to avoid reporting an injury. . . would not be acting in good faith.” Id. As applied to this case, Defendant argues that if there was no “real” report of injury, to wit: there was no injury on July 22, 2015 because the injury happened at an earlier time, there would be a failure of a “good faith” injury report, no “protected activity, ” and therefore no viable claim under FRSA. (Mot. at 16.)

         Defendant, in seeking summary judgment, argues that Plaintiff, given the undisputed evidence now before the court, cannot meet his burden under FRSA, in part, because of a lack of “good faith protected activity, ” an essential element of a FRSA claim. Defendant argues that the evidence shows that “Smith concealed a May handbrake incident from BNSF for two months and, in doing so, violated BNSF's reporting rules” (Mot. at 17) and “attempted to avoid reporting an injury” (id. at 18).

         Without a doubt, the primary dispute in this case is whether Plaintiff suffered a work-related injury in May 2015 or in July 2015 or both or neither.

         Contrary to the arguments of Defendant, credible admissible evidence exists supporting a theory that Plaintiff did not suffer spinal injury until July 22, 2015. BNSF policy is to allow the employee to determine, in the first instance, whether he has been injured on the job. (Resp., Ex. 19 at 4 [Doc. No. 56-19] (Dep. of Bret J. Bridges), deposition page 94 (referencing Dep. Ex. 23, BNSF Injury Reporting Policy).) Plaintiff testified that he felt very sore from his unaccustomed activities on or about May 23, 2015, but felt it was simply from unaccustomed physical labor. (Pl. Dep. at 143-144, 248-250.) Plaintiff did not did not take any time off complaining of pain between May and July 22, 2015 and did not file an injury report. Plaintiff testified that he went to the chiropractor several weeks after the day of hand brake work to simply utilize the benefits of chiropractic adjustment which were offered by the company as a matter of course to help with what he believed was muscle soreness which had largely resolved by late June 2015.^[7] (Pl. Dep. at 132, 148.) Plaintiff also testified that the events on July 22, 2015 created a unique, new pain experience as well as exacerbated his existing pain significantly. It is undisputed that Plaintiff sought immediate emergency medical attention from his primary care doctor - not his chiropractor - the day after the work events on July 22, 2015. (Pl. Depo., Ex. 4.) The doctor, after seeing Plaintiff, scheduled an MRI. (Pl. Depo. at 140.) Plaintiff testified that he could not move his arm, “I was like I was paralyzed.” (Id. at 171.) Also, Plaintiff immediately sought time off from his next scheduled work day to deal with the injury. Plaintiff notified his supervisor he was unable to work because of an injury, provided his supervisors with a “doctor's note” and filed an injury report with the help of one of his supervisors within a few days of the July 22, 2015 activities. (Mot., Ex. F; Ex., Dep. of Bret J. Bridges at 56, Dep. Ex. 16.)

         The court does not discount that there is also credible admissible evidence to support a theory that Plaintiff injured his back when he was tying down rail car hand brakes on or about May 23, 2015. Plaintiff himself told the chiropractor in June, long before the July 22, 2015 “zinger, ” that he “might have” been injured at work in late May when he was tying down or setting rail car hand brakes. He set forth exactly the same pain symptoms in his June 26, 2015 chiropractor visit as he did when he saw Dr. Reedy on July 23, 2015, one day after the July 22, 2015 sledge hammer work on the stuck cushioning unit. In fact, Plaintiff told Dr. Reedy that he had been suffering from back pain for eight to nine weeks prior to July 22, 2015, which had gotten worse in the two weeks before the activities on July 22, 2015.

         The evidence regarding whether there was a work-related injury in May, 2015 or July 22, 2015, could support either side's conclusions, thus creating a quintessential jury question. The issue will be largely one of credibility and viewing the evidence as a whole. BNSF claims that Plaintiff told several different stories about his injury^[8] and either broke BNSF rules by not reporting the May 2015 injury and/or filed a false report of injury in July 2015. Plaintiff claims simply that if he was injured at all in May 2015, which he denies, it was simply part of a series of events which may or may not have been related to the “zing” or “charlie horse” he experienced when attempting to dislodge the cushioning unit by using the sledge hammer on July 22, 2015.

         The court finds that neither of the differing inferences and conclusions drawn from these facts by the two sides are incredible as a matter of law. At the summary judgment stage, the trial judge's function is not to weigh the evidence and decide what occurred, but to determine whether a genuine issue exists for the jury. Anderson v. Liberty Lobby, Inc., at 249; First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968). Here, it does.

         2. Element 4, Contributing Factor

         The Tenth Circuit has stated that a “contributing factor” is “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” BNSF v. DOL, 816 F.3d at 638 (citing Lockheed Martin Corp. v. Admin. Review Bd., U.S. Dep't of Labor, ...