Neylon v. BNSF Ry. Co.

• Decision Date: 31 July 2020
• Docket Number: No. 19-2905,19-2905
• Citation: Neylon v. BNSF Ry. Co., 968 F.3d 724 (8th Cir. 2020)
• Parties: Jeffrey NEYLON, Plaintiff - Appellant v. BNSF RAILWAY COMPANY, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

968 F.3d 724

Jeffrey NEYLON, Plaintiff - Appellant

v.BNSF RAILWAY COMPANY, Defendant - Appellee

No. 19-2905

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2020

Filed: July 31, 2020

Corey Lane Stull, Atwood & Holstein, Lincoln, NE, Nicholas Thompson, The Moody Law Firm, Portsmouth, VA, for Plaintiff-Appellant.

Nichole S. Bogen, Tyler K. Spahn, Lamson & Dugan, Lincoln, NE, Bryan P. Neal, Micah Randall Prude, Thompson & Knight, Dallas, TX, for Defendant-Appellee.

Before COLLOTON and BENTON, Circuit Judges, and WILLIAMS,¹District Judge.

BENTON, Circuit Judge.

Jeffrey S. Neylon sued BNSF Railway Company for dismissing him, alleging retaliation for engaging in protected activity under the Federal Railroad Safety Act (FRSA), 49 U.S.C. § 20109.The district court² granted summary judgment to BNSF.Neylon appeals.Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In June 2015, Neylon injured his Achilles tendon while on duty at BNSF.Trying to step up onto a train engine, he felt a "pop" in the tendon three to four inches above the heel, with sharp pain lasting less than a minute.He sank down on his knee for five to ten seconds, got up, took a few steps, but continued working.He did not report the injury to BNSF because he"didn't think anything was wrong."

After the injury, Neylon rolled his ankle "quite a bit" at work, multiple times per day.In fall of 2015, he felt "occasional pain" and "some soreness and tightness" in his Achilles "every once in a while."It felt tender to the touch.Neylon first mentioned the pain to his doctor on November 18, 2015, when seeking treatment for unrelated back problems.By the following fall, in 2016, the tightness "just wouldn't go away" and he had difficulty walking.After work each day, Neylon had to lie down with ice and ibuprofen.He noticed a "lump" forming where his Achilles was injured.

Neylon first sought medical treatment for these symptoms on November 4, 2016.He told the doctor he injured his leg at work in June 2015—"the only time I can remember anything happening to my Achilles."His doctor wrote a note recommending that Neylon "should not return to work until further evaluation by an orthopedic surgeon."

Neylon "had to notify BNSF" on November 4 about the injury "because I was going to be missing work."Reading the doctor's note, the acting terminal manager asked if it was an on-duty injury.Neylon "told him that the first time I noticed anything was that pop" in June 2015.Neylon told the same thing to a BNSF claims agent who called that evening.

According to Neylon, two days later, on November 6, the superintendent, Allen Wolfe, called him at home, instructing him "to come out and fill out an injury report."Neylon told Wolfe he was on muscle relaxers and would come to the office "when I felt good enough to drive."

On November 11, BNSF notified Neylon of an investigation into his "alleged late/non-report" of his injury and "alleged failure to comply with instructions issued ... by Terminal Superintendent Allen Wolfe on November 6, 2016... to complete the prescribed injury reporting form."

That same day, Neylon visited an orthopedic surgeon.He told the surgeon he"thinks that he stepped ... awkwardly onto a train engine 18 months ago."The surgeon diagnosed him with "left watershed Achilles tendinitis," recommending he return to work with restrictions.

On November 14, Neylon completed a personal injury report and handed it to Wolfe.To "describe injuries or illness/condition," Neylon wrote, "Achilles Tendonitis [sic]."For "date of injury,"he wrote "June 2015."He later explained that was "the first time I noticed anything with that part of my body."For the date "first treated or diagnosed,"he wrote "Nov. 11 2016."To "describe fully how injury, illness or condition occurred,"he wrote, "Stepped up on engine and felt a pop in left leg."

After a hearing, the conducting officer recommended dismissing Neylon for (1) late reporting and (2) disobeying Wolfe's instructions to report.The officer also recommended a separate investigation into whether Neylon was dishonest in his injury report (because it contradicted his hearing testimony).Late reporting of an injury is a "serious" violation of BNSF's policy.The policy allowed dismissal because Neylon was within the review period for a prior serious violation (for "indifference to duty").

A BNSF review team agreed with dismissing Neylon for late reporting, noting he violated multiple rules by failing to report the June 2015 injury until November 2016.The review team disagreed with the disobedience and dishonesty recommendations.

Based on the recommendations of the conducting officer and review team, the regional general manager authorized dismissing Neylon.BNSF notified him that he was dismissed "for late report/failure to report a personal injury."BNSF said he violated rules requiring that all personal injuries "while on duty or on company property ... be immediately reported to the proper manager and the prescribed form completed."BNSF said he violated a rule requiring that employees "must not withhold information, or fail to give all the facts to those authorized to receive information regarding ... personal injuries."BNSF also said he violated a rule barring negligent conduct.BNSF informed him it had considered his discipline record and its employee policy.

Neylon appealed through his union to a Public Law Board, an arbitration panel under the Railway Labor Act.See generally45 U.S.C. § 153 Second(allowing special adjustment boards);29 C.F.R. § 1207.1(governing establishment of "special adjustment boards,""referred to as PL Boards").The board found sufficient evidence for BNSF's finding that Neylon violated its rules by failing to report his injury in June 2015.However, the board found his dismissal "unreasonable and arbitrary given these circumstances."The board noted that Neylon's "injury was not one that he believed would really be a problem until several months later."He"eventually received a full medical release and was able to return to work."Thus, the board ordered Neylon "reinstated ... but without back pay."His time off work was "considered a lengthy disciplinary suspension for his technical violation of the rules."

Neylon filed a complaint under the FRSA with the Occupational Safety and Health Administration.See49 U.S.C. § 20109(d)(1) .He alleged BNSF dismissed him in retaliation for reporting a work-related injury.The Acting Secretary of Labor found no FRSA violation, because Neylon "felt a ‘pop’ in his ankle in June 2015 but did not report it" to BNSF "until November 4, 2016."Further, he was dismissed "for late reporting, which is a violation of [BNSF's] rules governing the reporting of on-duty injuries, and not for reporting the injury itself."

Neylon sued BNSF in federal district court.He claimed BNSF dismissed him in retaliation for reporting a work-related injury.See49 U.S.C. § 20109(a)(4) .The district court granted summary judgment to BNSF.He appeals.

This court reviews de novo a grant of summary judgment.Torgerson v. City of Rochester , 643 F.3d 1031, 1042(8th Cir.2011)(en banc).The district court"shall grant summary judgment 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 law."Fed. R. Civ. P. 56(a) ."Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial."Torgerson , 643 F.3d at 1042.

II.

Neylon argues that the district court erred by granting summary judgment on his claim that he was dismissed in retaliation for reporting his injury."To establish a prima facie case of unlawful FRSA retaliation, an employee must show, by a preponderance of the evidence: ‘(i)he engaged in a protected activity; (ii) the rail carrier 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.’ "

Dakota, Minn., & E. R.R. Corp. v. U.S. Dep't of Labor Admin. Review Bd. , 948 F.3d 940, 943-44(8th Cir.2020)(cleaned up), quotingKuduk v. BNSF Ry. Co. , 768 F.3d 786, 789(8th Cir.2014).See49 U.S.C. §§ 20109(a),20109(d)(2)(A)(i),42121(b)(2)(B)(i) .Reporting "a work-related personal injury" is a protected activity.§ 20109(a)(4) .

At issue is only the fourth element.The "contributing factor that an employee must prove is intentional retaliation prompted by the employee engaging in protected activity."Blackorby v. BNSF Ry. Co. , 849 F.3d 716, 721(8th Cir.2017)(emphasis in original), citingKuduk , 768 F.3d at 791.See alsoSmith-Bunge v. Wisconsin Cent., Ltd. , 946 F.3d 420, 424(8th Cir.2019)(same).

A.

Neylon contends that by requiring intentional retaliation, this court misinterprets "contributing factor."SeeKuduk , 768 F.3d at 791(requiring intentional retaliation), citing49 U.S.C. § 20109(a) .He believes he need not show intentional retaliation.However, "it is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel."Dakota , 948 F.3d at 946(holding an administrative review board must apply the "intentional retaliation"standard of Kuduk).This court is "bound to follow Kuduk ."SeeBlackorby , 849 F.3d at 722 & 722 n.1(requiring intentional retaliation)("In effect, Blackorby argues that we should overrule Kuduk .He may properly raise this contention in a petition for rehearing en banc.").

To support his assertion that he need not show intentional retaliation, Neylon relies on cases from other circuits.He ignores the circuits that have expressly approved this court's reasoning.SeeArmstrong v. BNSF Ry. Co. , 880 F.3d 377, 382(7th Cir.2018)(holding"the statutory text requires a showing that retaliation was a motivating factor"), citing...