Hysten v. Burlington Northern Santa Fe Ry. Co.

• Citation: 530 F.3d 1260
• Decision Date: 07 July 2008
• Docket Number: No. 05-3391.,05-3391.
• Parties: Larry D. HYSTEN, Plaintiff-Appellee, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

530 F.3d 1260

Larry D. HYSTEN, Plaintiff-Appellee, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant-Appellant.

No. 05-3391.

United States Court of Appeals, Tenth Circuit.

July 7, 2008.

David R. Cooper (Teresa L. Sittenauer with him on the briefs), Fisher, Patterson, Sayler & Smith, Topeka, KS, for the Defendant-Appellant.

Alan V. Johnson (Stephen D. Lanterman with him on the brief), Sloan, Eisenbarth, Glassman, McEntire & Jarboe, Topeka, KS, for the Plaintiff-Appellee.

Before HENRY, Chief Judge, ANDERSON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

This appeal challenges the final judgment in favor of the plaintiff Larry Hysten on his retaliatory discharge claim under Kansas law. During trial, the district court denied the motions of Mr. Hysten's employer, the defendant Burlington Northern Santa Fe Railway Company ("Burlington Northern"), for judgment as a matter of law. The jury found that Burlington Northern retaliated against Mr. Hysten for reporting a work-related injury that might have led to a future claim under the Federal Employer's Liability Act ("FELA"), 45 U.S.C. §§ 51-60.¹ The jury awarded Mr. Hysten $30,000 in lost wages and benefits ("backpay"), $5,000 in compensatory damages, and $120,000 in punitive damages. The district court subsequently denied Burlington Northern's post-verdict motion for judgment as a matter of law. It also granted Mr. Hysten's motion to alter or amend the judgment to include prejudgment interest.

We have jurisdiction under 28 U.S.C. § 1291. Exercising this jurisdiction, we hold that Burlington Northern's challenges to the jury verdict and to the award of prejudgment interest lack merit. We therefore AFFIRM the district court's denial of Burlington Northern's post-verdict motion for judgment as a matter of law and the district court's post-verdict award of prejudgment interest.

I. BACKGROUND²

Mr. Hysten began working as a freight car mechanic for Burlington Northern in 1977 at its Topeka, Kansas facility. At the Topeka facility, front line supervisors report to foremen, who in turn report to the superintendent. In the late 1990's, Monte Johnson was Mr. Hysten's superintendent, James Hall was his foreman, and Dan Kennedy was his front line supervisor.

A. 1998 Injury

In April 1998, Mr. Hysten injured his back. Because he was uncertain as to the cause of the injury, when asked whether he was reporting an on-duty injury, Mr. Hysten responded, "I don't know yet." App. at 1654. Mr. Hysten informed Mr. Johnson that he was investigating the cause of the injury through his medical providers. Although Mr. Johnson believed that Mr. Hysten had violated Burlington Northern's reporting rules by not identifying with immediacy the cause of his injury, no disciplinary action was taken against Mr. Hysten.

B. 1999 Injury

On April 6, 1999, Mr. Hysten spent his work day repairing a rail car. The following morning, Mr. Hysten awoke with pain in his back and did not go to work. Still in pain on April 8, 1999, he went to the emergency room for medical treatment after calling in sick to work. The emergency room physician diagnosed him with a muscle strain.

On Friday, April 9, 1999, Mr. Hysten left a voice message with Mr. Kennedy stating he had pulled a muscle in his back, and that he would return to work on the next business day. On Monday, April 12, 1999, Mr. Hysten went to work and spoke with Pam Morse, an administrative clerk. Mr. Hysten informed Ms. Morse that he did not know the cause of his injury. Mr. Hysten filled out a medical-status form and submitted a note showing that he had received chiropractic care. On the medical-status form, Mr. Hysten checked neither the "On-Duty injury" box nor the "Off-Duty medical problems" box; instead, with the approval of Ms. Morse, he wrote that he suffered a back injury of "unknown" cause. App. at 1059, 1511. Mr. Hysten subsequently relayed this information to Mr. Kennedy.

On April 15, 1999, Mr. Hysten completed a leave-of-absence form. The form allows the employee seeking medical leave to indicate whether the reason for the requested absence is due to an off-duty injury, an on-duty injury, or some other cause. Mr. Hysten wrote "unknown-back" on the blank line next to the box marked "other." App. at 1062, 1506. Mr. Johnson approved Mr. Hysten's request for medical leave the authorized period expired on April 21, 1999.

Mr. Hysten filled out a second medical-status form on April 21, 1999. This time, Mr. Hysten averred that he suffered an off-duty injury. Notwithstanding, on April 26, 1999, Mr. Hysten completed a second leave-of-absence form on which he wrote "back unknown other" on the blank line accompanying the box denominated "other." App. at 1510. Again, Mr. Johnson approved Mr. Hysten's request, placing Mr. Hysten on a medical leave of absence until May 2, 1999.

Mr. Hysten returned to work in early May 1999, after Mr. Johnson approved his return to light-duty work in accordance with Burlington Northern's transitional work program. Under this program, Mr. Hysten was allowed to perform light-duty work for two weeks, and then was required to either perform his regular duties or apply for medical leave. The transitional work program was designed to ease the passage to full-time work for employees who had suffered off-duty or unknown injuries. On May 14, 1999, Mr. Hysten filled out a third medical-status form, again identifying the cause of his injury as "unknown." App. at 1078, 1511.

C. May 17, 1999 Meeting

On May 17, 1999, Mr. Hysten was summoned to meet with Mr. Johnson and Mr. Hall. Mr. Johnson expressly inquired whether Mr. Hysten's injury occurred on-duty or off-duty. Mr. Hysten responded that he did not know the origin, but that he was searching for a "doctor who would give [a] MRI so [he] would know what was going on here." App. at 1083.

Mr. Hall took notes during the meeting which he later incorporated into a follow-up e-mail to Mr. Johnson. This e-mail, dated May 17, 1999, recorded Mr. Hysten's uncertainty as to the etiology of his injury. In particular, it stated that Mr. Hysten "wouldn't admit to what caused his latest back pain but `thinks' it might have been caused by working under a freight car." App. at 1564. The email also confirmed that Mr. Hysten was attempting to "get a medical professional to place the cause." Id.

D. May 21, 1999 Meeting

On May 21, 1999, Mr. Hysten was asked to attend another meeting with Mr. Johnson. Mr. Hysten testified that Mr. Johnson told him that Burlington Northern needed to know the origin of the injury "or else." App. at 1108. Although Mr. Johnson did not define what he meant by "or else," Mr. Hysten interpreted the statement as an ultimatum: that is, he would be placed on medical leave or fired if he failed to describe the origin of the injury during this meeting. In response to Mr. Johnson's ultimatum, Mr. Hysten asked for his union representative, who was unavailable. Mr. Hysten then decided to claim the injury as "work-related," in part because he felt as if he "was being pushed in the corner." App. at 1109. According to the testimony of Burlington Northern's claims manager, the on-duty injury report triggered Mr. Hysten's FELA rights. The report placed Burlington Northern on notice that he could file a FELA lawsuit within the applicable three-year limitation period.³ See 45 U.S.C. § 56 (1999).

Within moments after Mr. Hysten characterized the injury as work-related, Mr. Johnson stated that Burlington Northern was going to "[s]et up an investigation." App. at 1110. Mr. Hysten was taken to a conference room and was told to fill out a form entitled "Employee Personal Injury/Occupational Illness Report." Id. at 1110-11, 1503. Mr. Hysten described his injury as lower back pain, identified April 6, 1999 as the date of the injury, placed a question mark next to the query of when he first noticed symptoms, and stated that the injury occurred at work while he was placing an air hose or a new test device on a railcar.

Soon after Mr. Hysten completed the personal-injury report, Mr. Johnson entered the conference room and gave Mr. Hysten a written notice of a disciplinary investigation. Mr. Johnson understood that a railroad company employee who has an on-the-job injury has a possible FELA claim against the railroad company for damages. The written notice informed Mr. Hysten that he was being investigated for possible violations of work-related rules as stated in Burlington Northern's safety management handbook. The written notice identified the following work-related rules: Rule S-28.2.5(A) and (C); Rule S-28.2.7; and Rule S-28.13.

E. Applicable Reporting Rules and Disciplinary Policy

Rule S-28.2.5 memorializes Burlington Northern's policy regarding the reporting of injuries and provides, in pertinent part:

A. Injuries to Employees

All cases of personal injury, while on duty or on company property, must be immediately reported to the proper manager and the prescribed form completed.

If after the initial report of an injury, employees seek medical attention for a work-related injury, they must contact the appropriate supervisor and update their status.

A personal injury that occurs while off duty that will in any way affect employee performance of duties must be reported to the proper manager as soon as possible. The injured employee must also complete the prescribed written form before returning to service.

....

C. Employees with Information Concerning Injuries

Employees with information concerning an accident or injury to themselves, another employee, or a non-employee must immediately report the information to the proper manager and complete the prescribed form.

App. at 1513 (emphasis added).

Rule S-28.2.7 sets out Burlington Northern's policy as to furnishing information. It prohibits employees from "withhold[ing] information, or [from] fail[ing] to give all the facts to those authorized to receive information regarding unusual events, accidents,...