Rita Foster; Brian Kline; Michael Snyder, Plaintiffs - Appellants,
BNSF Railway Company, a Delaware Corporation, Defendant-Appellee.
Submitted: January 11, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
COLLOTON, Circuit Judge.
railroad employees appeal the district court's
grant of summary judgment for BNSF Railway Company on the
employees' retaliation claims under the Federal Railroad
Safety Act, 49 U.S.C. § 20109(a)(1)(C). The district
court correctly dismissed certain claims for failure to
exhaust administrative remedies, and we conclude that the
exhausted claims were properly dismissed on the merits. We
therefore affirm the judgment.
early morning hours on April 2, 2012, Rita Foster, Brian
Kline, Michael Snyder, and a fellow crewmember were operating
a train heading eastbound. Foster, Kline, and Snyder are the
plaintiffs in the district court and the appellants here. The
crew on their train was scheduled to change near a bridge
outside Creston, Iowa. To the east of the bridge is a parking
area for vans to drop off the outbound crews and pick up the
parties dispute where the crew change was supposed to occur;
the employees allege that they were told to stop west of the
bridge and then walk over it. The bridge had no walkway,
handrail, or overhead lighting. As the crew members were
bringing the train to a stop west of the bridge, they saw
John Moore, a member of the outbound crew, walk across the
bridge and suddenly fall off the bridge to the road below.
The crew members rushed to Moore's aid and called for
emergency assistance. Emergency medical personnel soon
arrived and transported Moore to the hospital.
Kline, Snyder, and the other crew members then provided
written statements to Trainmaster Thurston Dixon describing
what had happened. In their statements, Kline and Snyder
mentioned the unsafe conditions at the bridge-specifically,
the lack of side rails and lighting. A few days later, on
April 5, Foster spoke to BNSF Claims Representative Justin
Murphy and provided a recorded statement about the accident.
Foster noted that she and the others were confused about why
BNSF told them to change crews west of the bridge, because
employees previously had reported to BNSF that it was a
following day, the plaintiffs and the other crewmembers
involved in the accident received notice that BNSF was
investigating possible rule infractions by BNSF employees in
connection with the accident. The notice stated that BNSF
would hold a hearing on the matter, and that Trainmaster
Dixon and Road Foreman of Engines Jared Knutstrom would serve
as witnesses. The hearing was initially scheduled for April
11, but was later postponed several times. On April 12 and
13, Snyder and Kline gave their statements to Claims
Representative Murphy. Both noted the unsafe walking
conditions on the bridge.
plaintiffs allege that while the rescheduled hearing date was
pending, BNSF subjected them to increased operations testing,
which was defined by the district court as a foreman
observing an employee's work without the employee's
knowledge. Kline and Snyder claim that they felt that they
had to avoid inexperienced or sloppy co-workers for fear that
the company would blame them for the mistakes of others.
Kline and Snyder also assert that, on account of this fear,
they signed up for different work that was less lucrative in
investigative hearing was held on January 7 and 8, 2013,
before a BNSF conducting officer. Throughout the hearing,
each plaintiff was accompanied by a union representative who
could question witnesses, object to testimony, and enter
exhibits. The plaintiffs also were permitted to ask questions
of the witnesses. Knutstrom and Dixon were sequestered during
the testimony of other witnesses.
their testimonies, Knutstrom and Dixon reviewed the video
evidence from the night of the accident and pointed out what
they believed to be rule infractions committed by the
plaintiffs and the other crewmembers. Both explained that
although the crew-change location was not written down,
employees were orally instructed to change crews east of the
bridge. The plaintiffs and the other crewmembers contradicted
Knutstrom and Dixon. They testified that company officials
told them to change crews west of the bridge.
the hearing, BNSF's Nebraska Division General Manager
Janssen Thompson reviewed the transcripts and exhibits. He
disciplined the crewmembers, including the three plaintiffs,
for various rule infractions. These included failing to blow
the train's whistle and to use flashlights, improperly
turning off the train's headlight, and fouling the
tracks. As discipline, Thompson gave Snyder a formal
reprimand on his record and Kline a thirty-day "record
suspension, " meaning that Kline's record reflected
a suspension but that he was not actually suspended. Snyder
and Kline both received a one-year review period (akin to
probation) during which they could be fired for additional
violations. Because Foster was serving a three-year review
period for a previous violation, Thompson fired her. The
plaintiffs appealed the decision to a Public Law Board, a
three-person arbitration ...