Hysten v. Burlington Northern Santa Fe Ry. Co.

• Decision Date: 10 June 2005
• Docket Number: No. CIV.A. 01-2296KHV.,CIV.A. 01-2296KHV.
• Citation: 372 F.Supp.2d 1246
• Parties: Larry D. HYSTEN, Plaintiff, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

372 F.Supp.2d 1246

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

No. CIV.A. 01-2296KHV.

United States District Court, D. Kansas.

June 10, 2005.

COPYRIGHT MATERIAL OMITTED

Alan V. Johnson, Stephen D. Lanterman, Sloan, Listrom, Eisenbarth, Sloan & Glassman, LLC, Topeka, KS, for Plaintiff.

David R. Cooper, Fisher, Patterson, Sayler & Smith, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Larry D. Hysten brings suit against his employer, the Burlington Northern Santa Fe Railway Company ("BNSF"), alleging that it terminated his employment for filing a claim under the Federal Employer's Liability Act ("FELA"). This matter is before the Court on defendant's Motion To Dismiss (Doc. # 45) and Motion For Summary Judgment (Doc. # 47), both filed February 3, 2005. For reasons stated below, defendant's motions are overruled.

Factual Background

The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.

Plaintiff began working for BNSF in August of 1977. On April 2, 1998, plaintiff reported to his supervisor that he was experiencing pain in his back. Between April 2 and April 14, upon repeated question by his supervisors, plaintiff said that he did not know whether his back pain was work-related. Plaintiff never changed his position to claim a work-related injury, and defendant conducted no formal investigation or disciplinary proceedings into the matter.

As of April 6, 1999 — a year later — plaintiff was working at the Topeka shop facility, repairing and maintaining air brakes on freight cars. When plaintiff awoke on April 7, he experienced pain in his lower back. He did not go to work that morning and did not call BNSF to report his absence. On April 9, plaintiff told BNSF that because of pain, he could not work from April 7 through 9. He said that he did not know the exact nature or cause of his injury, however, and that he could not identify his injury as work-related.

On April 8, 1999, plaintiff saw Dr. Desai at St. Francis Medical Center. At this visit, Dr. Desai placed plaintiff on limited duty. On April 12, plaintiff sought treatment at the Tennant Chiropractic Center. The treating physician requested that plaintiff be excused from work for two days. When plaintiff delivered the doctor's note to BNSF, he told Pamela Morse, a clerk in the Topeka System Maintenance Terminal, that he did not know exactly what had caused his injury. Morse told plaintiff that he needed to fill out leave-of-absence forms so his employment would not be terminated. BNSF supervisors filled out a personal injury report sheet regarding plaintiff's injury. Plaintiff later filled out a BNSF accident analysis form which required him to state exactly how he had been injured on the job. Although plaintiff was uncertain as to the exact nature and cause of his injury, he noted that the injury could have been sustained while he was putting on an air hose or an air test device. Plaintiff continued to seek medical attention, and BNSF gave him a leave of absence until his next scheduled medical appointment on April 21.

On May 3, 1999, BNSF allowed plaintiff to return to work. Even though plaintiff was still unaware whether his injury was work-related, BNSF medical personnel placed plaintiff in the Transitional Work Program ("TWP") from May 3 to May 14. The TWP is designed to accommodate employees who have sustained injuries which are not work-related. If plaintiff had reported that he had been injured on duty, he would not have been eligible for TWP.

On May 17, 1999, plaintiff returned to full duty work. The same day, plaintiff met with Monte Johnson, the superintendent of the Topeka System Maintenance Terminal, and Jim Hall, General Equipment Supervisor. During this meeting, Johnson asked plaintiff to declare whether his injury was work-related. Plaintiff declined and stated that he was trying to get a doctor to tell him where the injury had occurred. He also stated that the injury could have been caused by work under a freight car.

During a meeting on May 21, 1999, Johnson told plaintiff that he had to declare whether his injury was work-related.¹ Plaintiff again explained that he did not know what injury he had sustained and could not declare whether it was work-related. To protect his ability to receive FELA benefits, however, plaintiff felt that he had no option but to declare that the injury was work-related. While plaintiff completed paperwork regarding his injury, Johnson told him (and also gave him written notice) that BNSF was going to conduct a formal investigation whether plaintiff had violated rules and regulations which required him to promptly report a work-related injury. See Exhibit 10 to Memorandum In Support Of Defendant's Motion For Summary Judgment (Doc. # 48) filed February 3, 2005. On June 1, 1999, plaintiff spoke with John Suminski, a BNSF claims manager, about filing a FELA claim for what he now considered to be a work-related injury. Plaintiff, however, never filed any claim.

On June 14, 1999, BNSF held the formal investigation. Johnson conducted the meeting and determined that plaintiff's employment should be terminated for violating rules S-28.2.5, S-28.2.7 and S-28.13. Rule S-28.2.5 states as follows:

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.

Mechanical/P7M Safety Rules Policies — January 1999, Exhibit 10 to Memorandum In Support Of Defendant's Motion. Rule S-28.2.7 states that "[e]mployees must not withhold information, or fail to give all the facts to those authorized to receive information regarding unusual events, accidents, personal injuries, or rule violations." Id. Rule S-28.13 requires employees to

report to and comply with instructions from supervisors who have the proper jurisdiction. Employees will comply with instructions issued by managers of various departments when the instructions apply to their duties.

Id.

Plaintiff did not attend the meeting and later told Johnson that he had forgotten about it. On July 12, 1999, based on Johnson's recommendation, BNSF terminated plaintiff's employment.

On January 3, 2000, plaintiff filed suit against BNSF and Johnson, alleging that in terminating his employment, in violation of 42 U.S.C. § 1981, defendants had retaliated against him for filing a race discrimination claim. Plaintiff also alleged that in violation of state law, defendants had wrongfully discharged him in retaliation for filing an on-duty injury claim. The Honorable G. Thomas VanBebber granted summary judgment for defendants on plaintiff's federal claim and declined to exercise supplemental jurisdiction over his state law claim. See Hysten v. Burlington N. & Santa Fe R.R. Co., No. 00-2002-GTV, 2000 WL 1871889 (D.Kan. Dec. 6, 2000).

While his original federal lawsuit was pending, in April of 2000, the BNSF Public Law Board reviewed plaintiff's case and reinstated his employment. It noted that plaintiff had waited 46 days to formally report his injury and that the evidence was "insufficient to warrant reasonable conclusion that he obtained [the injury] while on duty." Exhibit 16 to Memorandum In Support Of Defendant's Motion (Doc. # 48). The board concluded that plaintiff's injury report was "clearly in violation of the Carrier's Rules with which he is charged," but it determined that because he was a long-term employee, he receive "one final chance to prove his worth to [BNSF]." Id. It therefore reinstated plaintiff with seniority but without back pay.

After Judge VanBebber dismissed plaintiff's state law retaliatory discharge claim, plaintiff re-filed it in state court. Citing diversity jurisdiction, defendant removed the case to this court on June 14, 2000.²

On March 26, 2002, this Court granted defendant's motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P. Plaintiff appealed, and the Tenth Circuit certified two questions to the Kansas Supreme Court. On March 19, 2004, the Kansas Supreme Court responded to those questions, holding that (1) Kansas law recognizes a common law tort of retaliatory discharge for the exercise of rights under FELA, and (2) the remedies available to aggrieved employees under the Railway Labor Act ("RLA"), 45 U.S.C.A. § 151 et seq., are not adequate alternative remedies. Hysten v. Burlington N. & Santa Fe Ry. Co., 108 P.3d 437 (Kan.2004). Based on these holdings, the Tenth Circuit reversed this Court's order of dismissal and remanded for further proceedings. Hysten v. Burlington N. & Santa Fe Ry. Co., 98 Fed.Appx. 764, 2004 WL 966286 (10th Cir. May 6, 2004).

On February 3, 2005, defendant reinstated its dispositive motions. Defendant contends that it is entitled to judgment as a matter of law because (1) the RLA preempts plaintiff's claim; (2) plaintiff cannot show a prima facie case of retaliation; and (3) plaintiff cannot show that its legitimate non-retaliatory reason for termination was pretextual.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "mate...