865 F.3d 1106 (8th Cir. 2017), 15-3355, Loos v. BNSF Railway Co.

Docket Nº:15-3355, 16-1123
Citation:865 F.3d 1106
Opinion Judge:GRUENDER, Circuit Judge.
Party Name:Michael D. Loos, Plaintiff - Appellant v. BNSF Railway Company, Defendant - Appellee; American Association for Justice, Amicus on Behalf of Appellant(s); Michael D. Loos, Plaintiff - Appellee v. BNSF Railway Company, Defendant - Appellant; United States of America, Amicus on Behalf of Appellant(s) American Association for Justice, Amicus on ...
Attorney:For Michael D. Loos, Plaintiff - Appellant (15-3355): Michael P. McReynolds, TELLO & ASSOCIATES, Anoka, MN; Michael F. Tello, TELLO & ASSOCIATES, Anoka, MN; Michael A. Wolff, SCHLICHTER & BOGARD, Firm, Saint Louis, MO. For BNSF Railway Company, Defendant - Appellee (15-3355): William A. Brasher, ...
Judge Panel:Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.
Case Date:August 03, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
FREE EXCERPT

Page 1106

865 F.3d 1106 (8th Cir. 2017)

Michael D. Loos, Plaintiff - Appellant

v.

BNSF Railway Company, Defendant - Appellee;

American Association for Justice, Amicus on Behalf of Appellant(s);

Michael D. Loos, Plaintiff - Appellee

v.

BNSF Railway Company, Defendant - Appellant;

United States of America, Amicus on Behalf of Appellant(s)

American Association for Justice, Amicus on Behalf of Appellee(s)

Nos. 15-3355, 16-1123

United States Court of Appeals, Eighth Circuit

August 3, 2017

Submitted June 6, 2017.

Page 1107

[Copyrighted Material Omitted]

Page 1108

Appeals from United States District Court for the District of Minnesota - Minneapolis.

For Michael D. Loos, Plaintiff - Appellant (15-3355): Michael P. McReynolds, TELLO & ASSOCIATES, Anoka, MN; Michael F. Tello, TELLO & ASSOCIATES, Anoka, MN; Michael A. Wolff, SCHLICHTER & BOGARD, Firm, Saint Louis, MO.

For BNSF Railway Company, Defendant - Appellee (15-3355): William A. Brasher, BOYLE & BRASHER, Saint Louis, MO; Sally Jean Ferguson, ARTHUR & CHAPMAN, Minneapolis, MN; Jacqueline M. Holmes, JONES & DAY, Washington, DC; Allison LaFave, ARTHUR & CHAPMAN, Minneapolis, MN; Alice Elizabeth Loughran, STEPTOE & JOHNSON, Washington, DC; Nikki Lynn McArthur, JONES & DAY, Washington, DC; Lee A. Miller, ARTHUR & CHAPMAN, Minneapolis, MN; Noelle L. Schubert, ARTHUR & CHAPMAN, Minneapolis, MN; Stephen M. Warner, ARTHUR & CHAPMAN, Minneapolis, MN.

For American Association for Justice, Amicus on Behalf of Appellant (15-3355): Jeffrey R. White, AMERICAN ASSOCIATION FOR JUSTICE, Washington, DC.

For Michael D. Loos, Plaintiff - Appellee (16-1123): Michael P. McReynolds, TELLO & ASSOCIATES, Anoka, MN; Michael F. Tello, TELLO & ASSOCIATES, Anoka, MN; Michael A. Wolff, SCHLICHTER & BOGARD, Saint Louis, MO.

For BNSF Railway Company, Defendant - Appellant (16-1123): William A. Brasher, BOYLE & BRASHER, Saint Louis, MO; Sally Jean Ferguson, ARTHUR & CHAPMAN, Minneapolis, MN; Jacqueline M. Holmes, JONES & DAY, Washington, DC; Allison LaFave, ARTHUR & CHAPMAN, Minneapolis, MN; Nikki Lynn McArthur, JONES & DAY, Washington, DC; Lee A. Miller, ARTHUR & CHAPMAN, Minneapolis, MN; Noelle L. Schubert, ARTHUR & CHAPMAN, Minneapolis, MN; Stephen M. Warner, ARTHUR & CHAPMAN, Minneapolis, MN.

For United States of America, Amicus on Behalf of Appellant (16-1123): Jonathan S. Cohen, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Marion E.M. Erickson, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

For American Association for Justice, Amicus on Behalf of Appellee (16-1123): Jeffrey R. White, AMERICAN ASSOCIATION FOR JUSTICE, Washington, DC.

Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.

OPINION

Page 1109

GRUENDER, Circuit Judge.

Michael D. Loos brought two claims against BNSF Railway Company: a retaliation claim under the Federal Railroad Safety Act (" FRSA" ) and a negligence claim under the Federal Employers Liability Act (" FELA" ). The district court1 granted BNSF summary judgment on the retaliation claim, but the negligence claim proceeded to trial where a jury rendered a verdict in favor of Loos. Loos appeals the grant of summary judgment to BNSF on his retaliation claim. BNSF cross-appeals denial of its motion to offset the amount of tax BNSF argues the Railroad Retirement Tax Act (" RRTA" ) requires it to withhold from the judgment on Loos's FELA claim. For the following reasons, we affirm both decisions.

I. Background

Loos worked for BNSF for fifteen years as a conductor, brakeman, and switchman before BNSF fired him on November 29, 2012. During his employment, Loos made a number of safety reports, and he served on BNSF's site safety committee for an unspecified period in 2007 and 2008.2 Between

Page 1110

2006 and his dismissal, Loos accumulated a number of attendance violations. The BNSF attendance policy allows each employee a certain number of absences during each three-month rolling period. If an employee exceeds the number of allowed absences during a given three-month period, BNSF disciplines the employee in accordance with a schedule of progressively increasing punishments. The first violation results in a formal reprimand, the second violation in a ten-day record suspension, the third in a twenty-day record suspension, and the fourth in a possible discharge. The employee also may be subject to dismissal, among other reasons, for having an active " Level S" violation (denoting a significant rule violation) on his record and accumulating three active attendance violations. Attendance violations remain active until the employee works one year without a new attendance violation. An employee may also request alternative handling, under which the employee agrees to participate in a plan designed to reduce future violations and, in return, does not receive an attendance violation.

Loos violated the policy twice in 2006, receiving first a formal reprimand, then a ten-day record suspension. In 2008, Loos violated the policy twice, receiving alternative handling and then a formal reprimand. After the second 2008 violation, Loos received a letter from his supervisor explaining that Loos worked between about thirty and forty hours per month during October and November of 2008 while his peers worked an average of 170 hours per month. The supervisor warned him that continuing to work less than full-time work hours would be considered an attendance violation. However, on June 15, 2009, Loos admitted another attendance violation and received a Level S ten-day record suspension. On March 22, 2010, Loos violated attendance rules by failing to notify a supervisor of the nature of a family-emergency absence within twenty-four hours and received alternative handling. That same month, Loos violated the attendance policy again and received a Level S thirty-day record suspension. BNSF then placed Loos on a three-year probation period during which " [a]ny rules violation . . . could result in further disciplinary action." Loos's attendance problems continued, and BNSF warned him in July 2010 that if he did not maintain full-time work hours, it would be considered another Level S violation.

On December 19, 2010, Loos twisted his knee when he fell into a snow-covered drainage grate in the train yard. He reported the workplace injury and missed work until May 16, 2011 when his orthopedist released him to work without restrictions. Later in May, Loos requested and was denied leave under the Family Medical Leave Act (" FMLA" ), because he had not worked a sufficient number of hours in the previous year to qualify. The FMLA request did not include a statement from his doctor or any other form of medical documentation. In the summer of 2011, Loos requested to use the " injury on duty" (" ION" ) code to take excused absences due to flare-ups of his knee injury. His supervisor, Matt Bailey, initially responded that the ION code was not available to him because " [w]e don't do it anymore." 3 When Loos pressed him further, Bailey stated, " I

Page 1111

won't authorize it, and that's the end of it." In his deposition, Bailey clarified that the ION code is available, but it requires medical documentation and clearance through the medical department-a policy, Bailey admitted, that is not written down and which he did not communicate to Loos. Later in 2011, Loos violated the attendance policy twice, and he received first a formal reprimand and then a ten-day record suspension. Loos testified in his deposition that at least one of these violations resulted from injury flare-ups, but he ultimately admitted the violations and waived his right to a formal investigation both times. After the second 2011 violation, BNSF placed Loos on a one-year review period.

In January 2012 Loos testified on behalf of two former co-workers, Paul Gunderson and David Peterson, in a hearing before a Department of Labor administrative law judge considering Gunderson and Peterson's claims against BNSF for retaliatory dismissal under FRSA.4 BNSF authorized Loos's absence to testify, but, shortly after the hearing, it sent Loos an investigation notice relating to the day of work he missed to testify. In a related meeting, trainmaster Greg Jaeb, a supervisor, asked for a copy of the subpoena and stated that " this could be bad for you." It is unclear whether Jaeb was referring to Loos's testimony or to the effect of an attendance violation. BNSF did not ultimately require Loos to produce the subpoena and later canceled the investigation.

In the three-month period between May and July 2012, Loos missed eight-and-a-half weekdays and two weekend days. For that period, the attendance policy allowed him to miss only seven-and-a-half weekdays and no weekend days. He missed five days due to knee-injury flare-ups, two days (including Sunday, July 8) for personal reasons, and one-and-a-half days for a family...

To continue reading

FREE SIGN UP