Kuduk v. BNSF Ry. Co.

• Decision Date: 07 October 2014
• Docket Number: No. 13–3326.,13–3326.
• Citation: 768 F.3d 786
• Parties: Thomas F. KUDUK, Plaintiff–Appellant v. BNSF RAILWAY COMPANY, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

768 F.3d 786

Thomas F. KUDUK, Plaintiff–Appellant

v.BNSF RAILWAY COMPANY, Defendant–Appellee.

No. 13–3326.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2014.

Filed: Oct. 7, 2014.

Christopher W. Bowman, argued, Saint Paul, MN (Louis E. Jungbauer, Saint Paul, MN, on the brief), for appellant.

Bruce Jay Douglas, argued, Minneapolis, MN (Ashley A. Wenger, Minneapolis, MN, on the brief), for appellee.

Before LOKEN, BRIGHT, and GRUENDER, Circuit Judges.

Opinion

LOKEN, Circuit Judge.

The Federal Rail Safety Act (“FRSA”) prohibits rail carriers from retaliating against employees who engage in safety-related protected activities. 49 U.S.C. § 20109(a). Brakeman Thomas Kuduk, a long-time employee of BNSF Railway Co. (“BNSF”), commenced this action alleging that BNSF violated this anti-retaliation mandate when it terminated him in September 2010. He now appeals the district court's¹ grant of summary judgment dismissing his FRSA claim. Reviewing the court's decision de novo and the facts in the light most favorable to Kuduk, we affirm.

I.

After a long history of good work performance, Kuduk committed a Level S (Serious) safety violation in December 2009. He accepted responsibility for causing a car to derail and agreed to discipline consisting of a 30–day record suspension and one year of probation. The Investigation Waiver provided that “[a]ny rules violation during this probation period could result in further disciplinary action.” BNSF's Policy for Employee Performance Accountability provided that “Dismiss[i]ble Violations” include two serious rule violations within a twelve-month review period for an employee with a good safety and discipline record.

On June 9, 2010, two supervisors, Trainmaster Greg Jaeb and Larry Mattison, observed Kuduk walking between the rails of Track 190 near Hinckley, Minnesota. Walking between the rails, or “fouling the tracks” as it is called in the industry, is permitted only in limited situations. BNSF's Train Yard & Engine Safety Rules, echoing the requirements of 49 C.F.R. § 214.313(b) -(c), instruct: “Do not walk between rails or foul the track, except when duties require and proper protection is provided.” Violating this rule is a well-recognized serious safety violation. BNSF designates it one of the “Eight Deadly Decisions” and a Level S violation.

Mattison and Jaeb reported the violation, and an investigation ensued, with the union representing Kuduk. After Kuduk rejected a negotiated settlement, a formal hearing before the Superintendent of Operating Practices for the Twin Cities Division took place on September 8, 2010. Kuduk testified that he was walking between the rails to retrieve and re-attach a rear end device, a task included in his job duties as a brakeman. He contended that he was required to walk on the track because the Training Coordinator's Manual required him to “always take the safe course” and walking on the ballast alongside the track was unsafe due to uneven terrain. He argued his movements were protected because he lined nearby tracks and applied handbrakes to train cars in the vicinity. Jaeb and Mattison testified that they did not see Kuduk performing any work duty, and that he complained about walking conditions on the ballast, apologized for walking on the track, and asked for leniency.

The hearing transcript and exhibits were provided to Richard Ebel, General Manager of BNSF's Twin Cities Division. Ebel reviewed the evidence and Kuduk's personnel record, including the December 2009 S–Level violation, and determined that dismissal was appropriate after consulting with Jim Hurlburt from BNSF labor relations. The discharge was approved by regional vice president Sanford Sexhus. Kuduk was dismissed on September 17. After the discharge, the union and BNSF continued negotiations, eventually agreeing that Kuduk would be “available for service” and receive agreed employee benefits through June of 2011 and would retire thereafter with full benefits.

II.

The FRSA provides that a rail carrier “may not discharge ... or in any other way discriminate” against an employee because he lawfully and in good faith provided information relating to, or directly assisted investigation of, conduct the employee reasonably believed violated a Federal law relating to railroad safety, or for “reporting, in good faith, a hazardous safety or security condition.” 49 U.S.C. §§ 20109(a)(1) and (b)(1)(A). The statute provides that an employee may obtain de novo review of a retaliation claim in federal court after exhausting administrative remedies. § 20109(d)(3).²

In March, 2011, Kuduk filed a complaint with the Department of Labor alleging that his discharge was motivated, at least in part, by two complaints he made in the months preceding discharge that constituted safety reports protected by the FRSA. First, he complained to union representative Mike Wold, a member of BNSF's safety committee, that Trainmaster Jaeb unfairly conducted a “banner test” on May 17, 2010. A banner test ensures that trains are able to stop within the range required by the General Code of Operating Rules. During a banner test, the examiner waves a flag and the crew must bring the train to a complete stop within a certain distance. Kuduk's crew passed the test, but Kuduk objected that Jaeb had not fully unfurled the flag. Wold raised Kuduk's concern at a May 19 safety committee meeting; the committee concluded the test was fine because “any object waved violently is a sign to stop.” Ebel was present at this meeting.

Second, on May 24, 2010, invoking BNSF's Safety Issue Resolution Process (“SIRP”), Kuduk complained that a flop-over handle used to derail cars was too heavy and could cause employee back injuries; he suggested the handle be replaced. Assigned to investigate the issue, Jaeb concluded that the handle met safety requirements and that BNSF was not responsible for the equipment because it was on the property of the railroad's customer. The SIRP inquiry was closed on September 21, four days after Kuduk's discharge.

When the Department of Labor did not issue a final decision within 210 days after Kuduk filed his complaint, he commenced this action. To prevail, he must establish a prima facie case by showing (i) he engaged in a protected activity; (ii) BNSF knew or suspected, actually or constructively, that he engaged in the protected activity; (iii) he suffered an adverse action; and (iv) the circumstances raise an inference that the protected activity was a contributing factor in the adverse action. See 49 U.S.C. § 42121(b)(2)(B)(i) ; 29 C.F.R. § 1982.104(e)(2). If Kuduk makes this showing, BNSF is nonetheless not liable if it “demonstrates, by clear and convincing evidence, that [it] would have taken the same unfavorable personnel action in the absence of [Kuduk's protected activity].” § 42121(b)(2)(B)(ii).

III.

The district court granted BNSF's motion for summary judgment, concluding that Kuduk failed to present a prima facie case of unlawful retaliation and, alternatively, that BNSF has shown by clear and convincing evidence that it would have discharged Kuduk even in the absence of protected activity. Kuduk v. BNSF Ry., 980 F.Supp.2d 1092, 1102 (D.Minn.2013). Kuduk appeals both rulings.

A. Kuduk's Prima Facie Case. In concluding Kuduk failed to present a prima facie case, the district court first ruled that his report to union representative Wold concerning the banner test was not protected activity because Wold was not a “person with supervisory authority over the employee or [a] person who has the authority to investigate, discover, or terminate the misconduct,” 49 U.S.C. § 20109(a)(1)(C). Kuduk, 980 F.Supp.2d at 1099. On appeal, Kuduk attacks this ruling on two distinct grounds. We conclude that we need not consider these issues because we agree with BNSF that Kuduk's complaint to a union representative that Trainmaster Jaeb had unfairly conducted the banner test was not a report of a hazardous safety condition. Kuduk himself testified that his objection to the test was that it was inappropriately and unfairly conducted, not that the way Jaeb conducted the test created a hazardous safety condition.

The district court next ruled that Kuduk's report of an overweight derail handle presented an issue of fact as to whether he had engaged in an activity protected by § 20109(b)(1)(A). 980 F.Supp.2d at 1099–1100.³ Though BNSF argues to the contrary on appeal, the summary judgment record supports this ruling. Kuduk testified that he made the report because he “was concerned that someone could hurt their back in trying to lift [the handle],” and the SIRP records would permit a reasonable jury to find that BNSF understood Kuduk's complaint regarding the handle to be, at bottom, a safety report.

However, the district court concluded, Kuduk failed to establish a prima facie case of unlawful retaliation under the FRSA for two reasons: (1) he “submitted no evidence that Ebel or anyone in higher management that reviewed the dismissal decision had actual or constructive knowledge of Plaintiff's protected activity”; and (2) he made no showing that his protected activity was a contributing factor in BNSF's decision to discharge him. 980 F.Supp.2d at 1100–01. The court explained: “BNSF has given a consistent basis for its decision to terminate Plaintiff's employment, and ... Plaintiff can point to no evidence of pretext, shifting explanations, antagonism or hostility toward Plaintiff's protected activity, or a change in attitude toward Plaintiff after he engaged in protected activity.” Id. at 1101.

On appeal, as in the district court, Kuduk argues that he satisfied these requirements of a prima facie case because a reasonable jury could find that (i) Trainmaster Jaeb, a “lower-level supervisor,” knew of the protected activity and acted as a “cat's paw” in the discharge process, and (ii) Kuduk's protected activity was a “contributing factor” in his discharge “because serious questions exist as to whether Kuduk in fact...