Koziara v. BNSF Ry. Co.

• Decision Date: 31 October 2016
• Docket Number: No. 16-1577,16-1577
• Citation: 840 F.3d 873
• Parties: Michael Koziara, Plaintiff–Appellee, v. BNSF Railway Co., Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

840 F.3d 873

Michael Koziara, Plaintiff–Appellee,

v.BNSF Railway Co., Defendant–Appellant.

No. 16-1577

United States Court of Appeals, Seventh Circuit.

Argued September 20, 2016

Decided October 31, 2016

Matthew H. Morgan, Nicholas D. Thompson, Nichols Kaster, PLLP, Minneapolis, MN, Adam W. Hansen, Apollo Law LLC, Minneapolis, MN, James H. Kaster, Minneapolis, MN, for Plaintiff–Appellee.

Bruce Jay Douglas, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Minneapolis, MN, Jacqueline M. Holmes, Jones Day, Washington, DC, for Defendant–Appellant.

Before Bauer, Posner, and Easterbrook, Circuit Judges.

Posner

, Circuit Judge.

The Federal Railroad Safety Act forbids a railroad to discharge or otherwise discriminate against an employee for conduct protected by the Act, including notifying the railroad that he has suffered a work-related injury. 49 U.S.C. § 20109(a)

, (a)(4). The plaintiff in this case was employed by BNSF Railway Company, the second-largest North American freight railroad, and brought this suit against the railroad for violating the provisions of the Railroad Safety Act that we just cited. A jury returned a verdict in favor of the plaintiff and awarded him damages, and the defendant, having failed to persuade the district judge to award judgment to it despite the jury's verdict, has appealed.

The plaintiff was a track foreman supervising crews of 50 to 100 employees responsible for track maintenance. The company required employees to “be careful to prevent injuring themselves” and (what seems equivalent) not to be “careless of the safety of themselves.” In addition the railroad makes theft a ground for dismissing an employee and goes further by stating that it has “a zero tolerance policy for theft” and indeed “in all cases” the “sanction [for theft] ... is dismissal ... regardless of [the employee's] length of service” or “the monetary value of whatever was stolen.”

On September 9, 2010, the plaintiff was supervising a crew assigned to remove and reinstall crossing planks on a segment of the railroad's line. Crossing planks are pieces of timber installed at railroad crossings to enable cars and trucks to drive over the tracks. They are fastened to the track bed by means of large wooden screws called “lags” that are removed with a hydraulic tool before a crossing plank is lifted (the purpose of lifting the crossing plank being to allow maintenance work on the track). On the day in question the crew had difficulty removing one of the planks in the usual way, and with the plaintiff's approval a member of the crew named Zielke used a front-end loader—a tractor-like vehicle equipped in this instance with a forklift that could be used to pry a plank loose without removing any of the lags—to remove the plank. The procedure caused the plank to fly loose just as the plaintiff was walking into the center of the track, and to strike one of his legs.

Though at first he thought he'd just bruised his leg

, several days later he went to his doctor and learned that he'd fractured his tibia (shinbone). After first lying to two of his coworkers that he'd been injured at home, on advice of a union official and a lawyer affiliated with the union he told his supervisor, Veitz, that he'd been injured by the plank and was going to fill out an injury report. Veitz told him to submit the report to someone in management, which he did. The company accepted the report and paid his medical bills.

BNSF has a policy of investigating all reported injuries by staging a reenactment of the accident in order to learn how it happened. Veitz staged the reenactment and concluded that the plaintiff had been careless in walking into the crossing in which the front-end loader was busy trying to remove the plank, thus placing himself in danger of being hit by the plank as it came off the ground—and hit he was.

A week after the reenactment a member of the crew that the plaintiff had been supervising told Veitz that he thought the plaintiff might have been injured ten days before the front-end loader fiasco—while removing railroad ties from railroad property. (Railroad ties typically are wooden strips laid underneath and horizontal to the rails to provide support for them.) Veitz requested a preliminary investigation of the theft allegation, which concluded that theft charges were warranted. Pursuant to the railroad's collective bargaining agreement with the plaintiff's union, the company conducted a formal investigation presided over by railroad managers who'd been trained to serve as hearing officers and had not themselves been involved in the alleged misconduct of the employee being investigated. Actually there were two investigations: one of the plaintiff's taking the railroad ties without permission and the other of his carelessness with regard to the front-end loader—carelessness that had resulted in the medical expenses that the railroad had paid and did not seek, and has not sought, reimbursement for from him. For his carelessness (which had cost the company the medical expenses), the company decided that a 30–day suspension would be adequate punishment. But that decision quickly became moot because the company also decided that he should be discharged because of the theft, consistent with the company policy that we quoted earlier.

Although at the hearing the plaintiff argued that Veitz had given him permission to take the ties, which he planned to give to a friend who had a farm, Veitz testified that he'd never given such permission. It would have been especially irresponsible for Veitz to have given permission because the railroad ties were soaked in creosote, and as another manager at BNSF testified without contradiction, “we do not give or sell creosote products to employees or the general public and there's reasons for it. That's bold letters. We don't do it.” There are indeed reasons—compelling ones. As the U.S. Environmental Protection Agency explains, “products containing creosote as the active ingredient are used to protect wood against termites, fungi, mites and other pests that can degrade or threaten the integrity of wood products. These treated wood products are used in outdoor settings such as in railroad ties and utility poles.... [But] creosote is not approved to treat wood for residential use, including landscaping timbers or garden borders,” because materials coated with creosote can be hazardous (emphasis added). EPA, “Creosote,” www.epa.gov/ingredients-used-pesticide-products/creosote (visited Oct. 28, 2016, as were the other websites cited in this opinion); see also Agency for Toxic Substances & Disease Registration, Toxic Substances Portal—Creosote, “Public Health Statement for Creosote,” www.atsdr.cdc.gov/phs/phs.asp? id=64&tid=18. To allow the plaintiff to carry off creosote-treated railroad ties to a farm, where they could do real damage, would have exposed the railroad to litigation and Veitz to the risk of a swift firing.

One would have expected the plaintiff, with his extensive experience as a track foreman, to have known better than to give creosote-soaked railroad ties to a farmer, thereby compounding his theft. And that the theft had been discovered in the course of an investigation triggered by the injury report obviously did not prevent the railroad from concluding that he had stolen the ties. For “once an employer learns about employee wrongdoing that would lead to a legitimate discharge, we cannot require the employer to ignore the information, even if it is acquired during the course of discovery in a suit against the employer” or, we add, in the course of some other procedure, including an investigation. McKennon v. Nashville Banner Publishing Co. , 513 U.S. 352, 362, 115 S.Ct. 879, 130 L.Ed.2d 852 (1995)

.

Both the Railway Labor Act, 45 U.S.C. § 153(i)

, and the railroad's collective bargaining agreement with the plaintiff's union, entitled him to appeal the 30–day suspension, plus his discharge from the railroad's employment, to the National Railroad Adjustment Board (NRAB), an arbitral body established pursuant to the Act. The plaintiff did appeal, and the union supported him, but the Board denied both appeals, remarking that the railroad had proved that the plaintiff had “failed to be alert and attentive when he did not safely remove a crossing board” and that the plaintiff had “failed to prove that ... Veitz gave him permission to remove the ties.”

Having struck out with the NRAB, the plaintiff filed a complaint with OSHA, but OSHA rejected his complaint on the same grounds on which the adjustment board had rejected it. (OSHA, the acronym for the Occupational Safety and Health Administration, is of course employee-friendly.) The plaintiff appealed OSHA's finding, which was preliminary. But because OSHA did not issue a final administrative decision within 210 days after his initial complaint, see 49 U.S.C. § 20109(d)(3)

, he was allowed to file this lawsuit, and did, though not till three years after the accident. Much of the delay, however, was attributable to an OSHA investigation that though protracted found no wrongdoing on the part of the railroad.

The suit accuses the railroad of having retaliated against the plaintiff in violation of the Federal Railroad Safety Act, which as we noted earlier forbids a railroad to retaliate against an employee (as by firing him) for his having notified the railroad that he has suffered a work-related personal injury, incurring medical expenses that the railroad might be required to cover. The railroad might also be required to report the injury to the Federal Railroad Administration, which regulates railroad safety. See U.S. Dept. of Transportation, Federal Railroad Administration, “Railroad Safety,” www.fra.dot.gov/Page/P0010. But the parties do not tell us whether the injury to the plaintiff in this case had to be—or was—reported to the FRA. The plaintiff's medical expenses were below the applicable threshold, see 49 C.F.R. § 225.19(e)

, and though it is not entirely clear...