Heim v. BNSF Ry. Co., 15-3532

• Decision Date: 27 February 2017
• Docket Number: No. 15-3532,15-3532
• Citation: 849 F.3d 723
• Parties: Kelly HEIM, Plaintiff–Appellant v. BNSF RAILWAY COMPANY, Defendant–Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

849 F.3d 723

Kelly HEIM, Plaintiff–Appellant

v.BNSF RAILWAY COMPANY, Defendant–Appellee

No. 15-3532

United States Court of Appeals, Eighth Circuit.

Submitted: September 21, 2016

Filed: February 27, 2017

Rehearing and Rehearing En Banc Denied April 7, 2017^*

Counsel who presented argument on behalf of the appellant was James H. Kaster, of Minneapolis, MN. The following attorney(s) appeared on the appellant brief; Matthew H. Morgan, of Minneapolis, MN., Nick D. Thompson, of Minneapolis, MN., and Adam W. Hansen of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Katherine Q. Martz, of Lincoln, NE. In addition to Ms. Martz, the following attorney(s) appeared on the appellee brief; Thomas Carl Sattler, of Lincoln, NE., Bryan P. Neal, of Dallas, TX., and Micah Randall Prude, of Dallas, TX.

Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

Kelly Heim, a track worker for BNSF Railway Company ("BNSF"), was seriously injured when a rail rolled onto his foot. BNSF disciplined Heim for alleged violations of BNSF rules that led to this injury. Heim sued, claiming BNSF's discipline violated the employee-protections provision of the Federal Railroad Safety Act ("FRSA"), 49 U.S.C. § 20109(a)(4). The district court¹ granted summary judgment for BNSF, and we now affirm.

I.

On the day of his injury, Heim was working as part of a section gang near Douglas, Wyoming. The section gang was responsible for replacing worn material underneath the rail. This process, known as "rail seat abrasion," requires de-clipping and swinging the rail into the center of the track. The loose rail, however, remains under tension, and there is a risk that it may roll or tip unpredictably. During a morning safety briefing, the gang was allegedly warned of this risk and instructed to remain out of the "danger zone." The danger zone is the area between the loose and fixed rail. In this zone, the loose rail could move and pinch a worker against a fixed rail. Loose rail tends to tip towards fixed rail, but can tip either way. No BNSF rule directly prohibits employees from stepping into the danger zone, but general BNSF rules require employees to take precautions to avoid injury.

At the time of his injury, Heim was responsible for picking up "other track material" (e.g. , clips, spikes, and anchors). BNSF workers pick up these materials because they may pose a tripping hazard or get "tamped into the ballast." While performing this task, Heim noticed a stray rail clip in the danger zone. According to Heim, the loose rail was sitting flat at the time and did not appear to be moving. He looked both ways to locate the nearest on-track machines and, believing it was safe under the circumstances, stepped between the loose and fixed rails to retrieve the clip. After Heim did so, the loose rail jumped onto his left foot, fracturing it. The rail pinned Heim's foot to the ground, but the rail did not pinch him against the fixed rail—the "danger" typically associated with the danger zone. Heim called out to his coworkers for help, and after the rail was finally removed from his foot 30 minutes later, Heim was transported to the hospital.

According to Heim, his immediate supervisor, Jim White, pressured him into filling out a formal personal injury report at the hospital. Heim did not want to fill out the form at the time because he had taken prescription pain medication. White, however, "insisted that it needed to be filled out right then and there." When Heim filled out the report and checked the box indicating that the injury was caused by the conduct of another person, White "coached" Heim to change his answer. Heim acquiesced, scratching out his original answer and indicating that the injury was not caused by another person. Heim also wrote that he could have prevented the injury by picking up the clip from the other side of the rail or leaving the clip until he could retrieve it later.

One week after Heim's injury, he received a notice of investigation from BNSF. The notice requested that Heim attend a hearing to determine "his responsibility, if any, in connection with [his] alleged failure to comply with instructions given at the morning briefing and failure to be alert & attentive when [he] placed his foot in harms [sic ] way between the loose rail and fixed rail." At the hearing, Heim stated that he believed it was safe to step between the rail under the circumstances and that he could not have prevented the injury without also failing to perform his job that day (i.e. , remove debris from the track). A BNSF Division Engineer, Samuel Turnbull, reviewed the transcript from the hearing and determined that Heim violated BNSF rules requiring employees to be alert, attentive, and careful to prevent injury. As a result, Heim was given a Level S (Serious), 30–Day Record Suspension and a one-year probationary period. The effect of this discipline was that Heim faced a 30–day suspension without pay if he committed another rule violation during the one-year probationary period. Heim ultimately did not receive any time off without pay as a result of his Record Suspension.

Heim filed suit against BNSF, claiming that its discipline violated the FRSA. In his discovery deposition, Turnbull testified that he was "probably guilty" of stepping too close to the loose rail himself, and that "there probably isn't an engineering employee out on the track that at one point in time has not either stepped that close [to loose rail] or seen somebody do it." Turnbull, however, stated that he was not aware of any other employee in his "territory" who had been disciplined for stepping too close to loose rail. He also stated that he had never personally set up an investigation for such a violation. But, according to Turnbull, Heim's incident warranted discipline because it was a "pretty significant event" due to Heim's injury.

Additionally, Turnbull, White, and a BNSF corporate representative testified about a BNSF incentive compensation program. BNSF's corporate representative testified that 15% of the compensation program depended upon meeting or exceeding BNSF goals for reducing injuries reportable to the Federal Railroad Administration.² The representative further testified that this component of the compensation program is important to incentivize employees to have "processes, such as [a] safety action plan ... that are going to reduce and eliminate injury, pain, and suffering." Turnbull testified that his bonus from the compensation program is based on the number of injuries reported company-wide, not the number of injuries reported under individual managers. He stated, "I could have zero [injuries] and the next guy could have 10 and it makes no difference, everybody is going to get the same. But at the local level you're also evaluated on your safety and it's not based off the number of injuries. It's based off of what you're doing to change behaviors, what you're doing to fix the environment[.]" Further, Turnbull and White both testified that they had been trained not to retaliate against employees for reporting injuries, and White testified that he has witnessed a coworker fired for such retaliation.

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