Smith-Bunge v. Wis. Cent., Ltd., Civil No. 13–2736 ADM/LIB.

• Decision Date: 08 October 2014
• Docket Number: Civil No. 13–2736 ADM/LIB.
• Citation: 60 F.Supp.3d 1034
• Parties: Todd SMITH–BUNGE, Plaintiff, v. WISCONSIN CENTRAL, LTD., Defendant.
• Court: U.S. District Court — District of Minnesota

60 F.Supp.3d 1034

Todd SMITH–BUNGE, Plaintiff

v.WISCONSIN CENTRAL, LTD., Defendant.

Civil No. 13–2736 ADM/LIB.

United States District Court, D. Minnesota.

Signed Oct. 8, 2014.

Jeff R. Dingwall, Esq., Law Office of Jeff R. Dingwall PLC, San Diego, CA, James Lavoie, Esq., Lindell & Lavoie, Minneapolis, MN, for Plaintiff.

Holly M. Robbins, Esq., Littler Mendelson, PC, Minneapolis, MN, for Defendant.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, District Judge.

I. INTRODUCTION

On August 27, 2014, the undersigned United States District Judge heard oral argument on Plaintiff Todd Smith–Bunge's (“Smith”) Motion for Partial Summary Judgment [Docket No. 23] and Defendant Wisconsin Central Ltd.'s (“Central”) Motion for Summary Judgment [Docket No. 45]. For the reasons discussed below, Plaintiff's motion is granted and Defendant's motion is denied.

II. BACKGROUND

Central is a rail carrier. Since Smith began working for Central in 2008, he has worked in a number of positions, including welder, night crew foreman and mobile mechanic. Smith Dep. [Docket No. 27] Attach. 2 at 15–22, 50 (filed under seal).

In 2012, Central disciplined Smith with a 15–day suspension without pay for failure to report a low-back injury on the same day it occurred, as required by Central's injury reporting rules. Smith initially believed that his 2012 back pain was caused by an aggravated 2009 back injury. Because Smith did not know until after an MRI was complete that his 2012 back pain constituted a new injury, Smith argues that Central's discipline of him for filling out an injury report—six days after the 2012 incident and at Central's request—violated his rights under the Federal Rail and Safety Act (FRSA).

A. The Federal Rail and Safety Act

The FRSA aims to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. The FRSA was amended by Congress in 2007 to broaden protection for railroad workers by including anti-retaliation measures. Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 156 (3d Cir.2013). The FRSA now prohibits railroad employers from discriminating against employees who report work-related injuries. 49 U.S.C. § 20109(a)(4). Specifically, the statute states that an employer: “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee's lawful, good faith act done, or perceived by the employer to have been done or about to be done ...” to, among other things, report or attempt to report a work-place injury. Id.

B. Central's Injury Reporting Policy

Central established internal injury reporting rules to promote employee safety and to ensure Central's compliance with reporting obligations required by the Federal Railroad Administration (FRA). Def.'s Mem. Supp. Summ. J. [Docket No. 47] 3–4 (citing 49 U.S.C. § 20901 ; 49 C.F.R. §§ 225.1, 225.5, 225.11 and 225.19 ). The primary rule promulgated by Central and at issue in this case is United States Operating Rule (“USOR”) D, which states:

Employees must report promptly to the proper authority any injury sustained on duty or on company property. Notification of the injury must be made prior to the end of the employee's tour of duty and before leaving company property.

Weinstein Aff. [Docket No. 48] Ex. D. Smith and other Central employees receive classroom training and testing on the USORs every two years. Def.'s Mem. Supp. Summ. J. at 3.

Central defines a report as a “notification to the proper authority” and “injury” as “any injury or suspected injury that is incurred on duty or on company property.” Interrog. Ans. No. 10 [Docket No. 27] Attach. 15 at 8. A report must be made of all new injuries and any “significant aggravation of a preexisting condition....” Central's Reporting Guide [Docket No. 27] Attach. 22 (filed under seal). A preexisting condition is significantly aggravated and reportable under the FRA if it requires the employee to take one or more days away from work or change medical treatment necessitated by the workplace event or exposure. Id.

C. Smith's 2009 Injury

Smith suffered his first work-related injury in 2009, when he slipped on taconite pellets and injured his low back. Def.'s Mem. Supp. Summ. J. at 11, n. 3.¹ Despite medical treatment, physical therapy and pain medications, Smith continued to experience recurrent low-back pain. Smith Med. Rec. [Docket No. 27] Attach. 4 (filed under seal). Smith managed the recurrent pain with exercises recommended by his doctor and prescription pain medication. Id.

Smith reported his 2009 injury the day after it occurred. Smith explained, “I just thought I'd pulled my back. It wasn't until the next morning that I realized that I injured it when I went to the doctor.” Smith Dep. 45:18–25. Because Central's internal policies require employees to report injuries “promptly ..., prior to the end of the employee's tour of duty and before leaving company property,” Smith was disciplined with a five-day suspension for failure to comply with USOR D. Id.²

D. Smith's 2012 Injury

Smith suffered his second work-related injury on Wednesday, August 22, 2012. Similar to Smith's 2009 injury, he again slipped on taconite pellets and felt a sharp pain in his low back. Id. at 97–99. Smith believed that he had aggravated his 2009 injury. Id. at 22:25; 23:1–25; 24:1–10. Before leaving work that day, Smith told his supervisor that his back was stiff and sore. Ernst Dep. at 8:16–25. That evening, Smith took his prescription pain medication and he returned to work the next day. Plagued by ongoing pain, Smith took a vacation day on the following day (Friday, August 24, 2012), hoping that after three days of rest he would be able to return to work. On Monday, Smith was still experiencing considerable pain, so he took another vacation day. The next day (Tuesday, August 28, 2012), Smith went to work. However, at the end of the day, Smith called his supervisor, Mickey Ernst, to inform him that he would need to find a replacement mechanic for Wednesday because Smith needed to see his doctor about his ongoing back pain.

Later, an MRI was ordered and revealed a new injury in Smith's low back. See Smith Dep. 23:14–25. He was ordered by his doctor to be off work for approximately one year. Id.

E. Central's Response to Smith's 2012 Injury

When Smith called Ernst on August 28, 2012, Ernst inquired about the origin of Smith's low-back pain. Id. at 10:11–16. Smith explained that he had slipped on some pellets a few days prior and felt a twinge in his back. Id. 18–24. Smith also told Ernst that as he continued to perform other tasks throughout the day, his back pain increased. Id. Based on the information shared by Smith, Ernst believed Smith's back pain was the result of a work-related injury that occurred six days earlier, on August 22, 2012. Id. at 11. Ernst, having only been on the job for a few months, called his supervisor, Brent Burton, to inquire about how to proceed. Id. at 12. On Wednesday, August 29, 2012, Ernst, Smith and Central's local risk mitigation officer, Lance Hunt, met to discuss the incident, review the scene where the incident occurred and have Smith fill out the appropriate injury reporting paperwork. Id. at 21–24.

Central issued a Notice of Investigation on September 14, 2012. Id. at 37. Pursuant to Central's collective bargaining agreement with Smith's Union, a hearing was scheduled to gather facts and determine if Smith violated any of Central's rules by not reporting a new injury on August 22, 2012. Id. Prior to the hearing, Ernst and his supervisor concluded that the appropriate discipline for Smith's alleged violated of USOR D was a 15–day suspension and a 15–day deferred suspension. Id. at 70–71.³ The hearing took place on October 2, 2012 and Central ultimately concluded that Smith violated USOR D. The recommended discipline was imposed. Id.

As ordered by his doctor, Smith was on medical leave for nearly one year after the August 22, 2012 incident. Smith Dep. at 35. Once released to return to work, Smith served his 15–day unpaid suspension. When Smith returned to work, he was placed on the “Focus List” for at-risk behavior of late reporting of injuries. Ernst Dep. 57:25.

F. Procedural History of Present Action

In February 2013, Smith filed a complaint with the United States Department of Labor, Occupational Safety and Health Administration (OSHA), alleging violation of his rights under the FRSA, 49 U.S.C. § 20109. Because a final decision was not issued within 210 days, Smith brought this suit in October 2013. See 49 U.S.C. § 20109(d)(3) (permitting employee to bring action for de novo review in appropriate district court if Secretary of Labor has not issued final decision within 210 days after filing complaint with OSHA). Smith seeks expungement of the 2012 disciplinary actions, back pay with interest and other damages permitted under the FRSA. Compl. [Docket No. 1] 5.

III. DISCUSSION

A. Standard of Review

Rule 56(c) of the Federal Rules of Civil Procedure states a court shall grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. “While a party moving for summary judgment has the burden of showing that there is no genuine issue of fact for trial, a nonmoving party seeking to avoid having summary judgment entered against it may not rest on mere allegations or denials, but must set forth specific facts sufficient to raise a genuine material issue for trial.” Thomas v. Runyon, 108 F.3d 957, 959 (8th Cir.1997).

A fact dispute is “material,” and will thus preclude summary judgment, only if the dispute “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And where the moving party has carried its burden, the nonmoving party must then “do more than simply show that there is some metaphysical doubt as to the...