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Blackorby v. BNSF Railway Co.

United States District Court, W.D. Missouri, Western Division

January 5, 2015

EDWARD E. BLACKORBY, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

ORDER

FERNANDO J. GAITAN, Jr., District Judge.

Pending before the Court are (1) BNSF Railway Company's Motion for Summary Judgment (Doc. No. 37); (2) Plaintiff's Motion for Partial Summary Judgment (Doc. No. 39); and (3) Plaintiff's Motion for Leave to File Surreply in Support of Plaintiff's Motion for Partial Summary Judgment (Doc. No. 45).

As an initial matter, the Court considers the motion for leave to file surreply. Plaintiff seeks leave to brief the Court on two recent relevant orders, which were filed a few days after plaintiff completed briefing on his motion for summary judgment. Defendant argues that new cases, alone, are not a proper reason to allow the filing of a surreply. Upon consideration of the parties' arguments, the Court will DENY plaintiff's motion for leave to file surreply (Doc. No. 45). However, the parties should note that the Court has considered the cases cited by plaintiff in his motion (Kuduk v. BNSF Ry. Co., Case No. 13-3326, 2014 WL 4977351 (8th Cir. Oct. 7, 2014), and Smith-Bunge v. Wisconsin Central, Ltd., Case No. 13-cv-02736-ADM-LIB (D.Minn. Oct. 8, 2014)).

The Court now turns to the merits of the parties' summary judgment motions.

I. Facts

The facts, briefly, are as follows. On Wednesday, March 7, 2012, plaintiff was working outdoors for BNSF in Oklahoma. It was a windy day, with dust blowing around, and eventually plaintiff noticed that something was in his eye. That evening, he reported to his foreman that he had something in his eye, and the foreman told him to try to flush it out with saline solution. Plaintiff did not report the injury to management on that date. Plaintiff worked a short day on March 8, 2012, and then returned home on March 9, 2012 to attend a dental appointment. Over the weekend, his eye began to bother him more, and he went to a doctor on Sunday, March 11, 2012. At that appointment, the eye doctor removed a small piece of metal from his eye, with instructions to return the next day for follow-up.

On March 11, 2012, plaintiff reported to a management employee that he had a metal object removed from his eye, and that he believed the injury was work-related (and that he would need to take off March 12, 2012 for the follow-up appointment). When plaintiff returned for the follow-up appointment on March 12, 2012, one of BNSF's management employees was already at the doctor's office waiting for him. Plaintiff testified he found this to be intimidating. After the appointment, plaintiff and the management employee had a conversation, the contents of which are disputed.

When plaintiff returned to work on March 13, 2012, he filled out an incident report related to the eye injury. Two days later, on March 15, 2012, BNSF sent plaintiff a notice of formal disciplinary investigation regarding his alleged "failure to immediately report [a] personal injury to [the] proper manager while on duty or company property." BNSF's position is that employees must make an immediate report of injury to a management employee whenever the employee believes he is injured; plaintiff's position appears to be that he did not believe he was really injured until he needed to seek medical assistance (instead believing that he just had something in his eye that would come out on its own).

BNSF held a hearing on May 22, 2012 on the disciplinary investigation. On June 15, 2012, it assessed plaintiff with a "Level S 30 Day Record Suspension" and a "One (1) Year Review Period, " which meant that further rules violations in the 1-year period could result in additional discipline. Later, after investigation by DOL/OSHA and after further communications with plaintiff's union (and subsequent to the filing of this lawsuit), defendant removed the 30 Day Record Suspension from plaintiff's workplace record.

Plaintiff filed a two-count complaint in this Court for (1) Violations of plaintiff's rights under Section 20109 of the Federal Rail Safety Act ("FRSA"); and (2) Violation of the Federal Employers' Liability Act ("FELA").

II. Standard

Summary judgment is appropriate if the movant demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). The facts and inferences are viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-90 (1986). The moving party must carry the burden of establishing both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Matsushita, 475 U.S. at 586-90.

A nonmoving party must establish more than "the mere existence of a scintilla of evidence" in support of its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact ...

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