United States District Court, D. Colorado
ANTHONY J. SMITH, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.
KATHLEEN M TAFOYA, UNITED STATES MAGISTRATE JUDGE
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.
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
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).
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.
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.
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 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.
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 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.)
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.)
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).)
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
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
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).
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.
Federal Railroad Safety Act - Claim II
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).
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).
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).
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 and as to element three, both termination
and suspension are undisputedly adverse employment
events.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.
Element 1, Protected Activity
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), 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.)
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).
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.
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. (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.)
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.
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 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.
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.
Element 4, Contributing Factor
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, ...