Hess v. Union Pac. R.R. Co., 17-1167

• Citation: 898 F.3d 852
• Decision Date: 06 August 2018
• Docket Number: No. 17-1167,17-1167
• Parties: Dustin D. HESS, Plaintiff–Appellant v. UNION PACIFIC RAILROAD COMPANY, A Delaware Corporation, Defendant–Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

898 F.3d 852

Dustin D. HESS, Plaintiff–Appellant

v.UNION PACIFIC RAILROAD COMPANY, A Delaware Corporation, Defendant–Appellee

No. 17-1167

United States Court of Appeals, Eighth Circuit.

Submitted: June 14, 2018

Filed: August 6, 2018

Counsel who presented argument on behalf of the appellant was Christopher H. Leach, of Kansas City, MO. The following attorney(s) appeared on the appellant brief; Corey Lane Stull, of Lincoln, NE., Jeanette Stull, of Lincoln, NE.

Counsel who appeared on the brief and presented argument on behalf of the appellee was Ryan D Wilkins, of Omaha, NE. The following attorney(s) appeared on the appellee brief; George E. Martin, III, of Omaha, NE., Heidi Ann Guttau-Fox, of Omaha, NE., Scott P. Moore, of Omaha, NE.

Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

Dustin D. Hess ("Hess"), appeals from a grant of summary judgment by the district court¹ in favor of Union Pacific Railroad, a Delaware Corporation ("Union Pacific"). Hess claims that he was terminated for engaging in a protected activity. Union Pacific countered, and the district court agreed, that he was terminated for violating the railroad company’s absenteeism policy. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Assuming the facts in a light most favorable to the non-moving party, Hess was originally hired as a brakeman for Union Pacific in 2004 and promoted to conductor in January 2005. He suffered a workplace injury on May 17, 2006, and filed a suit against Union Pacific under the Federal Employers Liability Act ("FELA"). The case settled in April 2011. The settlement recognized that Hess continued to suffer the effects of his injuries and allowed him to "mark off intermittently for his neck" so long as he provided "appropriate medical documentation to justify the time off, as requested by the Company." A major area of dispute between the parties is whether the settlement agreement, which required Union Pacific to accommodate Hess’s need for time off to obtain medical treatment on his neck, excused Hess from continuing to comply with Union Pacific’s general attendance policy that required him to notify and provide medical documentation to his supervisor before missing a shift.

On September 7, 2011, while traveling to Boone for a work-related test, Hess’s car was involved in a collision with another vehicle. He was injured and required hospitalization. The parties dispute whether the accident aggravated Hess’s previous injuries or resulted in new injuries. In order to submit his claim with the other driver’s insurance carrier, Hess needed to produce payroll documents. He asserts that it was unlawful harassment for Union Pacific to charge him 75 dollars for copies of the records. Hess explains the Union Pacific action as a retaliatory impediment because a manager responded to his request for copies by stating "since you are being a smart-ass, it is being put on the bottom of the stack and we will see when we get to it."

Union Pacific’s graduated attendance policy contains the following language:

As a Union Pacific employee, you were hired for and are expected to protect your job assignment on a full-time basis. "Full-time" means being available to work your assignment, whether regular or extra, whenever it is scheduled to work. Assigned rest days, layover days, and agreement-provided compensated days off are available to you for personal business. In addition, reasonable personal lay-offs may be granted if the needs of service permit.

It is your responsibility to notify your manager, in advance of layoffs if possible, on personal or family issues that may affect your ability to work full time. Substantiating documentation is expected and may be required. However, notification and documentation alone do not excuse your responsibility to protect your job. You may be considered in violation of this policy regardless of the explanation offered if you are unable to work full time and protect all employment obligations.

A first unexcused absence counts as a First Offense under the policy. A second unexcused absence counts as a Second Offense. Discipline for the first two offenses is limited to written notice advising the employee that he or she has violated the absenteeism policy. A Third Offense will result in permanent dismissal.

Union Pacific terminated Hess’s employment on January 16, 2012, for excessive absenteeism and failure to provide timely medical documentation. As the district court explained:

A First or Second Offense remains on an employee’s record for 36 months. If there are no new offenses during this 36-month period, the employee’s attendance record is returned to a clean slate. For example, Plaintiff was assessed a First Offense for absenteeism on November 29, 2006. He had no violations in the following 36 months. Thus, when in July 2010 he was charged again for absenteeism, this only counted as a First Offense. When he was allegedly excessively absent again, he received a Second Offense on November 12, 2010. Finally, when Plaintiff was allegedly excessively absent between September 6, 2011 to December 4, 2011, he was charged with a Third Offense. A subsequent formal investigation concluded that the absences were unexcused because he failed to notify his manager before taking time off.

On October 5, 2012, the Public Law Board ("PLB") granted Hess’s request for removal of his disciplinary entry for his alleged Second Offense of the absentee policy, finding that Union Pacific did not meet its burden of proof and that "[t]he record showed that the claimant marked off for medical appointments and that the claimant attempted to reach [Union Pacific] officers prior to marking off." On June 7, 2013, another PLB granted removal of Union Pacific’s Third Offense disciplinary action, finding that a "reasonable man would easily see the nexus between" the two accidents and that the automobile collision aggravated the work-related injury.

After the first PLB order, on October 24, 2012, Union Pacific reinstated Hess, informing him by letter. The railroad required Hess to recertify his qualifications prior to resuming full conductor duties. His first opportunity to work was January 7, 2013. He was put on a training board until January 31, 2013. Even though he admits he was informed of his reinstatement, Hess claims he was never properly reinstated because he was never paid his lost wages and his lost benefits were not restored. On March 1, 2013, Hess talked to the company’s assistant director of labor relations, James Boyle, to discuss his lost wages and benefits. Boyle told Hess the problem would be resolved the next day. On March 2, 2013, Hess called a railroad employee to discuss the restoration of benefits. When he was told his benefits had not yet been restored, Hess asked to be put on "Leave/Quit" status. Union Pacific never called him to work after that. Hess never called management to discuss his resignation and only returned to the company to surrender company equipment. He now contends he never quit but merely vented out of frustration because Union Pacific was dragging its feet to get his back pay and benefits reimbursed.

On June 4, 2012, Hess filed a complaint with the Occupational Safety and Health Administration ("OSHA") alleging retaliation in violation of 49 U.S.C. § 20109 of the Federal Railway Safety Act ("FRSA"). On September 13, 2013, OSHA dismissed the complaint. Although OSHA found that Hess engaged in a protected activity by filing an on-the-job injury report and that he had suffered an adverse action by being terminated, OSHA found that Hess failed to establish a prima facie case of retaliation. According to the OSHA order: "A preponderance of the evidence indicates that Complainant’s protected activity was not a contributing factor in the adverse action. Respondent put forth and established a legitimate, non-retaliatory reason for its decision to issue Complainant a permanent dismissal. The evidence shows that Complainant received a permanent dismissal for violating Respondent’s attendance policy." The OSHA order further provided, "Complainant has 30 days from the receipt of these Findings to file objections and to request a hearing before an Administrative Law Judge (ALJ)." The dismissal was scheduled to be heard by an ALJ on October 21, 2014. Prior to the scheduled hearing, the ALJ dismissed the OSHA complaint after receiving a copy of Hess’s district court complaint.

Hess filed his complaint in district court on August 8, 2014, alleging retaliation for reporting a work-related injury under 29 U.S.C. § 20109(a)(4). He points out that the "FRSA also prohibits a railroad from denying, delaying, or interfering with the medical treatment of an injured employee and from disciplining or threatening discipline to an employee for requesting medical or first aid treatment or for following the orders or treatment plan of a treating physician." Union Pacific moved for summary judgment, claiming that Hess failed to prove a prima facie claim of retaliation; he raised claims in the complaint that were not raised in the OSHA complaint and are now time-barred; he failed to exhaust his administrative remedies; he cannot collect lost wages; and his claim for punitive damages fails as a matter of law. The district court granted summary judgment, finding that Hess "cannot establish a prima facie case of retaliation for his FRSA Section(a)(4) claim." The district court did not reach the issues of affirmative defense, administrative exhaustion, or punitive damages.

II. DISCUSSION

"We review a district court’s grant of a motion for summary judgment de novo, viewing all the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party." Loos v. BNSF Railway Co., 865 F.3d 1106, 1112 (8th Cir. 2017) (quoting Heim v. BNSF Railway Co., 849 F.3d 723, 726 (8th Cir. 2017) ). "Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material...