Foster v. BNSF Ry. Co., 16-1648

• Decision Date: 10 August 2017
• Docket Number: No. 16-1648,16-1648
• Citation: 866 F.3d 962
• Parties: Rita FOSTER ; Brian Kline; Michael Snyder, Plaintiffs-Appellants, v. BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

866 F.3d 962

Rita FOSTER ; Brian Kline; Michael Snyder, Plaintiffs-Appellants,

v.BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant-Appellee.

No. 16-1648

United States Court of Appeals, Eighth Circuit.

Submitted: January 11, 2017

Filed: August 10, 2017

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

Counsel who presented argument on behalf of the appellee was Bryan P. Neal, of Dallas, TX. The following attorney(s) also appeared on the appellee brief; Andrew D. Weeks, and Katherine Q. Martz, of Lincoln, NE.

Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Three railroad employees appeal the district court's¹ grant of summary judgment for BNSF Railway Company on the employees' retaliation claims under the Federal Railroad Safety Act, 49 U.S.C. § 20109(a)(1)(C). The district court correctly dismissed certain claims for failure to exhaust administrative remedies, and we conclude that the exhausted claims were properly dismissed on the merits. We therefore affirm the judgment.

I.

In the early morning hours on April 2, 2012, Rita Foster, Brian Kline, Michael Snyder, and a fellow crewmember were operating a train heading eastbound. Foster, Kline, and Snyder are the plaintiffs in the district court and the appellants here. The crew on their train was scheduled to change near a bridge outside Creston, Iowa. To the east of the bridge is a parking area for vans to drop off the outbound crews and pick up the inbound crews.

The parties dispute where the crew change was supposed to occur; the employees allege that they were told to stop west of the bridge and then walk over it. The bridge had no walkway, handrail, or overhead lighting. As the crew members were bringing the train to a stop west of the bridge, they saw John Moore, a member of the outbound crew, walk across the bridge and suddenly fall off the bridge to the road below. The crew members rushed to Moore's aid and called for emergency assistance. Emergency medical personnel soon arrived and transported Moore to the hospital.

Foster, Kline, Snyder, and the other crew members then provided written statements to Trainmaster Thurston Dixon describing what had happened. In their statements, Kline and Snyder mentioned the unsafe conditions at the bridge—specifically, the lack of side rails and lighting. A few days later, on April 5, Foster spoke to BNSF Claims Representative Justin Murphy and provided a recorded statement about the accident. Foster noted that she and the others were confused about why BNSF told them to change crews west of the bridge, because employees previously had reported to BNSF that it was a dangerous location.

The following day, the plaintiffs and the other crewmembers involved in the accident received notice that BNSF was investigating possible rule infractions by BNSF employees in connection with the accident. The notice stated that BNSF would hold a hearing on the matter, and that Trainmaster Dixon and Road Foreman of Engines Jared Knutstrom would serve as witnesses. The hearing was initially scheduled for April 11, but was later postponed several times. On April 12 and 13, Snyder and Kline gave their statements to Claims Representative Murphy. Both noted the unsafe walking conditions on the bridge.

The plaintiffs allege that while the rescheduled hearing date was pending, BNSF subjected them to increased operations testing, which was defined by the district court as a foreman observing an employee's work without the employee's knowledge. Kline and Snyder claim that they felt that they had to avoid inexperienced or sloppy co-workers for fear that the company would blame them for the mistakes of others. Kline and Snyder also assert that, on account of this fear, they signed up for different work that was less lucrative in some instances.

The investigative hearing was held on January 7 and 8, 2013, before a BNSF conducting officer. Throughout the hearing, each plaintiff was accompanied by a union representative who could question witnesses, object to testimony, and enter exhibits. The plaintiffs also were permitted to ask questions of the witnesses. Knutstrom and Dixon were sequestered during the testimony of other witnesses.

During their testimonies, Knutstrom and Dixon reviewed the video evidence from the night of the accident and pointed out what they believed to be rule infractions committed by the plaintiffs and the other crewmembers. Both explained that although the crew-change location was not written down, employees were orally instructed to change crews east of the bridge. The plaintiffs and the other crewmembers contradicted Knutstrom and Dixon. They testified that company officials told them to change crews west of the bridge.

Following the hearing, BNSF's Nebraska Division General Manager Janssen Thompson reviewed the transcripts and exhibits. He disciplined the crewmembers, including the three plaintiffs, for various rule infractions. These included failing to blow the train's whistle and to use flashlights, improperly turning off the train's headlight, and fouling the tracks. As discipline, Thompson gave Snyder a formal reprimand on his record and Kline a thirty-day "record suspension," meaning that Kline's record reflected a suspension but that he was not actually suspended. Snyder and Kline both received a one-year review period (akin to probation) during which they could be fired for additional violations. Because Foster was serving a three-year review period for a previous violation, Thompson fired her. The plaintiffs appealed the decision to a Public Law Board, a three-person arbitration panel established under the Railway Labor Act. See 45 U.S.C. § 153. The Board reinstated Foster without awarding back pay, removed the reprimand from Snyder's record, and removed the suspension from Kline's record.

The plaintiffs filed an administrative complaint with the Occupational Safety and Health Administration (OSHA), alleging that BNSF had retaliated against them for providing information about a violation of federal railroad safety laws, in violation of the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109(a)(1)(C). See 49 U.S.C. § 20109(d)(1) ; 29 C.F.R. § 1982.103. After OSHA did not issue a final decision within the 210-day statutory period, the plaintiffs filed this suit in federal court as permitted by law. See 49 U.S.C. § 20109(d)(3) ; 29 C.F.R. § 1982.103. They claim that they provided information about violations of federal law three separate times when they described the unsafe conditions on the bridge: (1) in their handwritten statements to Dixon, (2) in their statements to Murphy, and (3) in their testimony at the hearing. The plaintiffs allege that because of their statements, BNSF took adverse action against them in the form of scheduling a formal investigation, delaying the investigation, engaging in excessive operations testing, pressuring them to avoid higher-paying work, and ultimately disciplining them.

BNSF moved for summary judgment, arguing that the plaintiffs failed to exhaust some of their claims before the administrative agency, that they were required to arbitrate others, and that they did not establish a prima facie case of retaliation. The district court granted BNSF's motion on several grounds. The court determined that the employees could not pursue certain claims, because they did not present those claims in their administrative complaint to OSHA as required by the statute. The court also concluded that the plaintiffs failed to show that they engaged in protected activity when they reported alleged violations of the Federal Employers Liability Act, 45 U.S.C. § 51. Alternatively, the court ruled that even if the plaintiffs engaged in protected activity, they could not prevail because they failed to show that the protected activity contributed to the adverse actions.

We review a district court's grant of summary judgment de novo , viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party. Davis v. Jefferson Hosp. Ass'n , 685 F.3d 675, 680 (8th Cir. 2012). 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).

II.

The district court concluded that the plaintiffs failed to exhaust administrative remedies for claims based on the increase in operations testing, the pressure to accept lower-paying work, and the statements to Murphy, because the plaintiffs did not include those claims in their complaint to OSHA. The plaintiffs assert that the FRSA does not include an administrative exhaustion requirement. Section 20109(d)(1) provides that an employee alleging unlawful discrimination under § 20109(a) - (c)"may seek relief in accordance with the provisions of this section, with any petition or other request for relief under this section to be initiated by filing a complaint with the Secretary of Labor." 49 U.S.C. § 20109(d)(1) (emphasis added). The text of the statute therefore makes clear that to receive relief under the FRSA, litigants must first file a complaint with OSHA alleging unlawful discrimination. See 49 U.S.C. § 20109(d)(2) ; 49 U.S.C. § 42121(b)(1) ; 29 C.F.R. § 1982.103.

The next question is what standard to apply in determining whether an employee's complaint filed with OSHA adequately exhausts a claim that the employee later brings in court under the FRSA. The parties assume, with little explanation, that we should apply the standard applicable in cases arising under Title VII of the Civil Rights Act for reviewing whether complaints filed with the Equal Employment Opportunity Commission have exhausted administrative remedies. See, e.g. , Brisbois v. Soo Line R.R. Co. , 124 F.Supp.3d 891, 899-900 (D....