Federal Court in Minnesota Provides Guidance on Non-Injury Retaliation Claims Under FRSA

Granting complete summary judgment to BNSF Railway Co., Chief Judge Michael Davis of the U.S. District Court for the District of Minnesota interpreted and provided the railroad industry with guidance pertaining to the parameters of a non-injury based retaliation claim under 49 U.S.C. § 20109 of the Federal Railroad Safety Act (FRSA)—an issue of first impression in the district, and one of only a few such decisions nationwide. Kuduk v. BNSF Railway Co., No. 12-cv-00276  (September 26, 2013).

The district court rejected the BNSF employee’s reliance on a case decided by the Supreme Court of the United States in 2011, Staub v. Proctor Hospital, as “misplaced” due to the differences in the model of proof in FRSA cases and because there was no evidence of pretext or animus by a supervisor in this case. Importantly, the court held that there was no evidence that higher-level management employees, who made the termination decision and later reviewed it in accordance with an internal review process, knew of the employee’s alleged protected activity.

The court further recognized and held that under Eighth Circuit Court of Appeals precedent, temporal proximity alone is not enough. The court found that the employee failed to establish a causal nexus between his discharge and his cited incidents of alleged protected activity (including various alleged reports of supposed safety violations) under the statute. Relying upon Eighth Circuit precedent in retaliation cases, the court noted that the employee was already on probation for unrelated violations of the railroad’s policies when he claimed to have engaged in the alleged protected activity.

Finally, the court held that, even if the employee could establish a prima facie case of retaliation, BNSF was nonetheless entitled to summary judgment under the burden-shifting analysis of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. §42121. Finding a consistency throughout the case in the employer’s explanations for its actions and a complete absence of animus by its supervisors toward the employee, the court held that BNSF had demonstrated by clear and convincing evidence that it would have made the same decision to discharge the employee even in the absence of any evidence that he had engaged in protected activity.