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Loos v. BNSF Railway Co.

United States Court of Appeals, Eighth Circuit

August 3, 2017

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)

          Submitted: June 6, 2017

         Appeals from United States District Court for the District of Minnesota - Minneapolis

          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 court[1]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 law." Id. (quotations omitted). FRSA provides that a railroad "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 . . . to notify . . . the railroad carrier . . . of a work-related personal injury" or to cooperate with a federal investigation. 49 U.S.C. § 20109(a)(1), (4), (5). A railroad likewise may not "discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for . . . reporting, in good faith, a hazardous safety or security condition." Id. § 20109(b)(1)(A). We analyze FRSA retaliation claims in two steps. First, the plaintiff must make a prima facie case. Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir. 2014) (citing 49 U.S.C. § 42121(b)(2)(B)(i)). If the plaintiff satisfies this requirement, the railroad has the opportunity to demonstrate by clear and convincing evidence that it would have discharged the employee even if he had not engaged in protected activity. Id. (citing 49 U.S.C. § 42121(b)(2)(B)(ii)).

         To make a prima facie case, Loos must demonstrate: that (1) "he engaged in protected activity"; (2) BNSF "knew or suspected, actually or constructively, that he engaged in the protected activity"; (3) "he suffered an adverse action;" and (4) "the circumstances raise an inference that the protected activity was a contributing factor in the adverse action." See id. The parties do not dispute that Loos engaged in protected activity of which BNSF was aware and that Loos suffered an adverse action. Thus, we need only determine whether a genuine dispute exists as to the final prong-whether the circumstances raise an inference that Loos's protected activity was a contributing factor to his discharge. "[A] contributing factor is any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." Id. at 791 (quotation omitted). Though the employee need not "conclusively demonstrate the employer's retaliatory motive, " id., he must show that intentional retaliation prompted by a protected activity was a contributing factor, Blackorby v. BNSF Ry. Co., 849 F.3d 716, 722 (8th Cir. 2017).[5] To determine whether the circumstances raise an inference of retaliatory motive in the absence of direct evidence, we consider circumstantial evidence such as the temporal proximity between the protected activity and the adverse action, indications of pretext such as inconsistent application of policies and shifting explanations, antagonism or hostility toward protected activity, the relation between the discipline and the protected activity, and the ...


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