Loos v. BNSF Ry. Co.

• Decision Date: 03 August 2017
• Docket Number: No. 16-1123,No. 15-3355,15-3355
• Citation: 865 F.3d 1106
• Parties: Michael D. LOOS, Plaintiff–Appellant v. BNSF RAILWAY COMPANY, Defendant–Appellee American Association for Justice, Amicus on Behalf of Appellant(s) Michael D. Loos, Plaintiff–Appellee v. BNSF Railway Company, Defendant–Appellant United States of America, Amicus on Behalf of Appellant(s) American Association for Justice, Amicus on Behalf of Appellee(s)
• Court: U.S. Court of Appeals — Eighth Circuit

865 F.3d 1106

Michael D. LOOS, Plaintiff–Appellant

v.BNSF RAILWAY COMPANY, Defendant–Appellee

American Association for Justice, Amicus on Behalf of Appellant(s)

Michael D. Loos, Plaintiff–Appellee

v.BNSF Railway Company, Defendant–Appellant

United States of America, Amicus on Behalf of Appellant(s)

American Association for Justice, Amicus on Behalf of Appellee(s)

No. 15-3355

No. 16-1123

United States Court of Appeals, Eighth Circuit.

Submitted: June 6, 2017

Filed: August 3, 2017

Counsel who presented argument on behalf of the appellant/cross-appellee was Michael A. Wolff, of Saint Louis, MO. The following attorney(s) also appeared on this brief; Michael F. Tello and Michael P. McReynolds, of Anoka, MN. Appearing on the Amicus Brief for The American Association for Justice in support of the appellant were Larry A. Tawwater and Jeffrey R. White of Washington, DC.

Counsel who presented argument on behalf of the appellee/cross-appellant were William A. Brasher, of Saint Louis, MO, and Nikki Lynn McArthur of Washington, DC. The following attorney(s) appeared on this brief; Alice E. Loughran, of Washington, DC., Sally J. Ferguson and Lee A. Miller, of Minneapolis, MN, Jacqueline M. Holmes, of Washington, DC., and Thomas P. McDermott of Saint Louis, MO. Counsel who presented argument on behalf of Amicus Curiae United States of America in support of BNSF Railway was Marion E.M. Erickson of Washington, DC. Also appearing on this brief was Jonathan S. Cohen of Washington, DC.

Before WOLLMAN, ARNOLD, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Michael D. Loos brought two claims against BNSF Railway Company: a retaliation claim under the Federal Railroad Safety Act ("FRSA") and a negligence claim under the Federal Employers Liability Act ("FELA"). The district court¹ granted BNSF summary judgment on the retaliation claim, but the negligence claim proceeded to trial where a jury rendered a verdict in favor of Loos. Loos appeals the grant of summary judgment to BNSF on his retaliation claim. BNSF cross-appeals denial of its motion to offset the amount of tax BNSF argues the Railroad Retirement Tax Act ("RRTA") requires it to withhold from the judgment on Loos's FELA claim. For the following reasons, we affirm both decisions.

I. Background

Loos worked for BNSF for fifteen years as a conductor, brakeman, and switchman before BNSF fired him on November 29, 2012. During his employment, Loos made a number of safety reports, and he served on BNSF's site safety committee for an unspecified period in 2007 and 2008.² Between 2006 and his dismissal, Loos accumulated a number of attendance violations. The BNSF attendance policy allows each employee a certain number of absences during each three-month rolling period. If an employee exceeds the number of allowed absences during a given three-month period, BNSF disciplines the employee in accordance with a schedule of progressively increasing punishments. The first violation results in a formal reprimand, the second violation in a ten-day record suspension, the third in a twenty-day record suspension, and the fourth in a possible discharge. The employee also may be subject to dismissal, among other reasons, for having an active "Level S" violation (denoting a significant rule violation) on his record and accumulating three active attendance violations. Attendance violations remain active until the employee works one year without a new attendance violation. An employee may also request alternative handling, under which the employee agrees to participate in a plan designed to reduce future violations and, in return, does not receive an attendance violation.

Loos violated the policy twice in 2006, receiving first a formal reprimand, then a ten-day record suspension. In 2008, Loos violated the policy twice, receiving alternative handling and then a formal reprimand. After the second 2008 violation, Loos received a letter from his supervisor explaining that Loos worked between about thirty and forty hours per month during October and November of 2008 while his peers worked an average of 170 hours per month. The supervisor warned him that continuing to work less than full-time work hours would be considered an attendance violation. However, on June 15, 2009, Loos admitted another attendance violation and received a Level S ten-day record suspension. On March 22, 2010, Loos violated attendance rules by failing to notify a supervisor of the nature of a family-emergency absence within twenty-four hours and received alternative handling. That same month, Loos violated the attendance policy again and received a Level S thirty-day record suspension. BNSF then placed Loos on a three-year probation period during which "[a]ny rules violation ... could result in further disciplinary action." Loos's attendance problems continued, and BNSF warned him in July 2010 that if he did not maintain full-time work hours, it would be considered another Level S violation.

On December 19, 2010, Loos twisted his knee when he fell into a snow-covered drainage grate in the train yard. He reported the workplace injury and missed work until May 16, 2011 when his orthopedist released him to work without restrictions. Later in May, Loos requested and was denied leave under the Family Medical Leave Act ("FMLA"), because he had not worked a sufficient number of hours in the previous year to qualify. The FMLA request did not include a statement from his doctor or any other form of medical documentation. In the summer of 2011, Loos requested to use the "injury on duty" ("ION") code to take excused absences due to flare-ups of his knee injury

. His supervisor, Matt Bailey, initially responded that the ION code was not available to him because "[w]e don't do it anymore."³ When Loos pressed him further, Bailey stated, "I won't authorize it, and that's the end of it." In his deposition, Bailey clarified that the ION code is available, but it requires medical documentation and clearance through the medical department—a policy, Bailey admitted, that is not written down and which he did not communicate to Loos. Later in 2011, Loos violated the attendance policy twice, and he received first a formal reprimand and then a ten-day record suspension. Loos testified in his deposition that at least one of these violations resulted from injury flare-ups, but he ultimately admitted the violations and waived his right to a formal investigation both times. After the second 2011 violation, BNSF placed Loos on a one-year review period.

In January 2012 Loos testified on behalf of two former co-workers, Paul Gunderson and David Peterson, in a hearing before a Department of Labor administrative law judge considering Gunderson and Peterson's claims against BNSF for retaliatory dismissal under FRSA.⁴ BNSF authorized Loos's absence to testify, but, shortly after the hearing, it sent Loos an investigation notice relating to the day of work he missed to testify. In a related meeting, trainmaster Greg Jaeb, a supervisor, asked for a copy of the subpoena and stated that "this could be bad for you." It is unclear whether Jaeb was referring to Loos's testimony or to the effect of an attendance violation. BNSF did not ultimately require Loos to produce the subpoena and later canceled the investigation.

In the three-month period between May and July 2012, Loos missed eight-and-a-half weekdays and two weekend days. For that period, the attendance policy allowed him to miss only seven-and-a-half weekdays and no weekend days. He missed five days due to knee-injury

flare-ups, two days (including Sunday, July 8) for personal reasons, and one-and-a-half days for a family emergency. During the three-month period, Loos had requested and was denied permission to use the "ION" code to designate his knee-injury-related absences as excused. BNSF emphasized that it denied Loos's request because he did not provide medical documentation. BNSF issued an investigation notice in August 2012 and held a formal investigation on November 16, 2012. In the interim, Loos submitted a second FMLA request in September 2012, including a statement from his doctor. At the hearing, Loos submitted a note from his doctor dated November 6, 2012, explaining that he would have to miss work because of knee-injury flare ups and that these issues were present during May, June, and July of 2012. The BNSF investigator found that Loos had violated the attendance policy. Thus, as Loos had accumulated a total of three active attendance violations and an active Level S violation, BNSF dismissed Loos.

Loos filed suit on December 9, 2013, alleging that BNSF retaliated against him in violation of FRSA and that BNSF was liable under FELA for negligently causing his knee injury

. The district court granted BNSF summary judgment on Loos's FRSA claim, but Loos's FELA claim proceeded to trial. The jury ruled in Loos's favor and awarded $85,000 for past pain, disability, and emotional distress; $30,000 for lost wages; and $11,212.78 for past medical expenses. BNSF moved under Federal Rule of Civil Procedure 59(e) for the court to offset the lost wages award by the amount of Loos's share of taxes owed under the RRTA. The district court found that no RRTA tax was owed on the award and denied BNSF's motion. In February 2016, BNSF partially satisfied the judgment, withholding from the payment the amount of the disputed RRTA taxes. Loos appeals summary judgment on his FRSA claim, and BNSF cross-appeals the district court's determination with respect to RRTA taxes.

II. Discussion

A. FRSA Retaliation Claim

"We review a district court's grant of a motion for summary judgment de novo, viewing all evidence and drawing all reasonable inferences in the light most favorable to the nonmoving party." Heim v. BNSF Ry. Co. , 849 F.3d 723, 726 (8th Cir. 2017) (quotation omitted). "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...