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Wolfe v. BNSF Railway Co.

United States Court of Appeals, Ninth Circuit

April 23, 2014

SCOTT R. WOLFE, Plaintiff-Appellant,
v.
BNSF RAILWAY COMPANY, A Delaware corporation, Defendant-Appellee

Argued and Submitted, Portland, Oregon: July 11, 2013.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Montana. D.C. No. 1:09-cv-00166-RFC. Richard F. Cebull, Senior District Judge, Presiding.

Sharon L. Van Dyck (argued), Van Dyck Law Firm, PLLC, St. Louis Park, Minnesota, for Plaintiff-Appellant.

Donald J. Munro (argued), Jones Day, Washington, D.C.; Michelle T. Friend, Hedger Friend, PLLC, Billings, Montana, for Defendant-Appellee.

Before: Harry Pregerson, Mary H. Murguia, and Morgan Christen, Circuit Judges.

OPINION

PREGERSON, Circuit Judge

Plaintiff-Appellant Scott Wolfe (" Wolfe" ) appeals the district court's order granting summary judgment in favor of Defendant-Appellee BNSF Railway Company (" BNSF" ) on Wolfe's claims under Montana Code Annotated (" MCA" ) § 39-2-703. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Wolfe is a longtime employee of BNSF. In December 2008, Wolfe worked in Shelby, Montana, as a track inspector for the first time. Before then, he worked primarily as a foreman and a machine operator at BNSF. BNSF mechanic Robert Flesche provided Wolfe with a hi-rail

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truck, which can be driven along rails. Flesche had previously complained about the hi-rail truck's poor condition to BNSF. Flesche stated that " nobody wanted to be assigned that truck, certainly nobody like[d] it for a h[i-]rail truck." Flesche said " [e]verything was just more difficult with that truck. . . . [I]t was a rough riding truck, very rough riding." Flesche had " told the railroad, it was a bad [truck], [and that] it sure was not suited for track inspection." Nevertheless, Flesche gave Wolfe the truck because it was the only one available.

Flesche quickly showed Wolfe how to use the hi-rail attachments on the truck. The hi-rail attachments were four heavy mechanical assemblies, two in front and two in back, that were supposed to drop the truck's wheels onto the rail and lock them in place, keeping the truck on the rails like a standard railroad car. Flesche also " showed [Wolfe] a little about" the truck's Hi-rail Limits Compliance System (" HLCS" ). The HLCS is a GPS system that identifies where vehicles are on the tracks, interfaces with BNSF's computer system, and ensures that employees stay within their railroad track authorities (the boundaries of the areas to which they have been assigned). Wolfe previously had attended mandatory training on using the HLCS. At that training, managers read material on the HLCS to the employees, but there was no demonstration on how to work the system. Flesche concluded after observing Wolfe that " [Wolfe] had not ever been trained on using [the HLCS]."

On the morning of December 18, 2008, Wolfe requested track authority from the dispatcher, James Trotchie, to go east on a particular stretch of track. Trotchie misheard Wolfe's request for permission to go " east" and, assuming that he wanted to go west, verbally approved Wolfe's request while assigning him track authority in the HLCS to go west. Wolfe proceeded to go east on the rails in his hi-rail truck.

Approximately four miles from where Wolfe began to travel on the rails, Wolfe encountered a freight train head on. Wolfe jumped off the truck before it was hit by the train. The truck was damaged, but Wolfe was not physically injured.

Wolfe is a member of the Brotherhood of Maintenance of Way Employes union (the " Union" ). The Union has a collective bargaining agreement (" CBA" ) with BNSF. Under Rule 40 of the CBA, an employee who has worked 60 days or more, such as Wolfe, " will not be disciplined or dismissed until after a fair and impartial investigation has been held." BNSF conducted two formal investigations of Wolfe's accident pursuant to Rule 40 to determine (1) whether Wolfe failed to activate the HLCS on his truck and (2) whether Wolfe failed to operate within the limits of his track authority at the time of the accident. After the investigations, BNSF determined that Wolfe committed the alleged misconduct. Wolfe received a 30-day suspension for his failure to activate the HLCS and was dismissed for his failure to have main track authority.

Wolfe challenged his dismissal. On Wolfe's behalf, the Union referred the grievance to the National Railroad Adjustment Board (the " Adjustment Board" ). The Adjustment Board was created under the Railway Labor Act to resolve disputes between carriers and their employees. 45 U.S.C. § 153. The Adjustment Board (1) determined that BNSF proved that Wolfe failed to engage his HLCS and violated his track authority, (2) affirmed Wolfe's 30-day suspension for the HLCS violation as reasonable, and (3) reduced Wolfe's dismissal to a long-term suspension because it found that " dismissal was too severe a penalty" for the track authority violation. The Adjustment Board ordered that Wolfe

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be reinstated with his seniority unimpaired, but decided that he was not ...


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