United States District Court, D. Montana, Missoula Division
FINDINGS & RECOMMENDATION AND ORDER
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on the parties' motions for
partial summary judgment and several evidentiary motions.
Zachary Wooten alleges he suffered an on-the-job injury on
July 31, 2015 while working as a conductor for BNSF Railway
Company. In the early morning hours of July 31, 2015, Wooten
departed Whitefish, Montana aboard a train headed to Havre
and powered by lead locomotive BNSF 6867. When the train
arrived in Coram, Montana, Wooten exited the lead locomotive
to perform a roll-by inspection of another train passing in
the opposite direction. Wooten claims that when he opened the
locomotive door, he heard a pop and felt pain in his right
wrist because the door latch became stuck or otherwise failed
to open. Wooten alleges that while he was attempting to climb
back onto the locomotive after performing the inspection, his
injured wrist gave way and he fell back onto the track
ballast. Wooten claims that as a result of his fall, he
suffered severe and disabling injuries to his arm and wrist.
engineer working with Wooten that night, Matt Roth, reported
Wooten's injury to dispatch and BNSF directed the train
to Belton, Montana, where Wooten was picked up by an
ambulance and taken to the hospital. Meanwhile, BNSF called
in a replacement crew and the train continued on as
scheduled, arriving in Havre early on the evening of July 31,
2015. At some point that evening, BNSF claims representative
Nancy Ahern took several photographs to document the
condition of BNSF 6867. The next day, a 3-Man Inspection team
inspected BNSF 6867 and found no defects. On August 2, 2015,
Wooten completed a Personal Injury/Occupational Illness
Report Form stating that he had suffered a work-related
injury to his right wrist.
meantime, Wooten's supervisor and Superintendent of
Operations James Pino had been notified of Wooten's
injury and spoke with both Roth, and Wooten about the
incident. Pino also obtained a written statement from Roth,
and watched BSNF video footage showing Wooten as he arrived
for work on July 31, 2015. Pino's investigation led him
to believe that Wooten was dishonest in reporting his injury,
and had injured his wrist prior to reporting for work on July
August 3, 2015, Wooten gave a statement to BNSF claims
representative Scott Jacobsen, and BSNF provided Wooten with
a Notice of Investigation to determine his
“responsibility, if any, in connection with [his]
alleged dishonest report of a personal injury.” (Doc.
101-3). As a result of its formal investigation, BNSF
determined that Wooten had injured his wrist before reporting
to work on July 31, 2015. BNSF terminated Wooten's
employment on September 29, 2015, for making a
“dishonest report of a personal injury.” (Doc.
commenced this action against BNSF in October 2016, alleging
three claims for relief. First, Wooten alleges he was injured
as a result of BNSF's negligence, and brings a personal
injury claim under the Federal Employers' Liability Act
(“FELA”), 45 U.S.C. § 51 et seq. Second,
Wooten alleges that BSNF violated the Locomotive Inspection
Act, 49 U.S.C. § 20701 (“LIA”) by using a
locomotive that was not in proper condition and/or safe to
operate without unnecessary danger of personal injury. Third,
Wooten alleges that BNSF retaliated against him for reporting
his injury and a hazardous safety condition, and brings a
retaliation claim under the Federal Railroad Safety Act
(“FRSA”), 49 U.S.C. § 20109. Wooten seeks
compensatory and other damages, including an award of
punitive damages on his FRSA claim.
parties have filed cross-motions for partial summary judgment
on Wooten's FRSA claim (Count II), and BSNF has moved for
summary judgment on Wooten's LIA claim (Count III). The
following motions are also pending: (1) Wooten's motion
for discovery sanctions based on spoliation of evidence (doc.
115); (2) Wooten's motion to exclude or limit expert
testimony based on timeliness and sufficiency of expert
disclosure (doc. 151); (3) BNSF's supplemental motion for
protective order and sanctions (doc. 153); (4) BNSF's
motion for protective order that the deposition of litigation
paralegal Linda Harvey not be had; (5) BNSF's motions in
limine concerning Wooten's expert witnesses (doc. 164);
(6) BNSF's motions in limine (doc. 166); (7) Wooten's
motions in limine (doc. 168), and; (8) Wooten's motion
for protective order precluding depositions. (Doc. 181).
22, 2018 and May 23, 2018, the Court held oral argument on
all of the above motions, and made several rulings and
recommendations from the bench. This Findings &
Recommendation and Order memorializes the Court's oral
rulings and recommendations on the parties' summary
judgment motions (docs. 99, 102, & 105), Wooten's
motion for discovery sanctions (doc. 115), BNSF's
supplemental motion for protective order and sanctions (doc.
153), and the parties' motions for protective orders to
preclude various depositions (docs. 161, & 181). The
parties' motions in limine to exclude or limit expert
testimony and other evidence (docs. 151, 164, 166, & 168)
will be addressed in a separate order.
Summary Judgment Motions
Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “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.” The party
seeking summary judgment bears the initial burden of
informing the Court of the basis for its motion, and
identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, which it believes demonstrate
the absence of any genuine issue of material fact.
Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986).
A movant may satisfy this burden where the documentary
evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 251
the moving party has satisfied its initial burden with a
properly supported motion, summary judgment is appropriate
unless the non-moving party designates by affidavits,
depositions, answers to interrogatories or admissions on file
“specific facts showing that there is a genuine issue
for trial.” Celotex, 477 U.S. 317, 324 (1986).
The party opposing a motion for summary judgment “may
not rest upon the mere allegations or denials” of the
pleadings. Anderson, 477 U.S. at 248.
considering a motion for summary judgment, the court
“may not make credibility determinations or weigh the
evidence.” Reeves v. Sanderson Plumbing
Prods., 530 U.S. 130, 150 (2000); Anderson, 477
U.S. at 249-50. The Court must view the evidence in the light
most favorable to the non-moving party and draw all
justifiable inferences in the non-moving party's favor.
Anderson, 477 U.S. at 255; Betz v. Trainer
Wortham & Co., Inc., 504 F.3d 1017, 1020-21
(9th Cir. 2007).
presented with cross motions for summary judgment on the same
matters, the court must “evaluate each motion
separately, giving the nonmoving party in each instance the
benefit of all reasonable inferences.” American
Civil Liberties Union of Nevada v. City of Las
Vegas, 333 F.3d 1092, 1097 (9th Cir.
Cross-Motions for Partial Summary Judgment on Plaintiff's
FRSA Claim (Docs. 99 & 105)
Prima Facie Case
establish a prima case under the FRSA's anti-retaliation
provisions, a plaintiff must show by a preponderance of the
evidence that (1) he engaged in a protected activity as
defined by statute; (2) the employer knew he engaged in the
protected activity; (3) he suffered an unfavorable personnel
action; and (4) the protected activity was a contributing
factor in the unfavorable personnel action. 49 U.S.C. §
42121(b); Araujo v. N.J. Transit Rail Operations,
Inc., 708 F.3d 152, 157 (3d. Cir. 2013). If the
plaintiff makes this showing, “the burden shifts to the
employer to demonstrate ‘by clear and convincing
evidence, that the employer would have taken the same
unfavorable personnel action in the absences of that
behavior.'” Araujo, 708 F.3d at 157
(quoting 49 U.S.C. § 42121(b)(2)(B)(ii)).
moves for summary judgment on the second, third, and fourth
elements of his prima facie case, and BNSF has cross-moved
for summary judgment on the fourth element. Notably, neither
party moves for summary judgment on the first element, which
requires Wooten to show that he engaged in a protected
activity. The FRSA defines a protected activity to include
reporting “a work-related personal injury” in
“good faith.” 49 U.S.C. § 20109(a), (a)(4).
The parties do not dispute that Wooten reported a
work-related injury to BNSF, but whether Wooten made that
report in good faith is hotly contested. As both parties thus
recognize, whether Wooten reported his injury in good faith
is a factual issue, and one that is not subject to summary
judgment. (See Doc. 101, at 15 n. 98; Doc. 106, at 14 n. 1).
this factual dispute, Wooten maintains he is entitled to
summary judgment on the second element of his prima facie
case, which requires evidence that BNSF knew he engaged in
the protected activity. Clearly, BNSF knew about Wooten's
injury report. But whether Wooten made that injury report in
good faith, thereby engaging in protected activity, is
disputed. Because the parties dispute whether Wooten engaged
in a protected activity in the first place, it cannot be said
as a matter of law that BNSF knew he engaged in a
protected activity. Wooten's motion for summary judgment
on this element should be denied.
also moves for summary judgment on the third element, which
requires proof of an unfavorable personnel action. There is
no dispute that Wooten was discharged from his employment
with BNSF, which means this element is satisfied. But because
this element is not in dispute and evidence that Wooten was
discharged will undoubtedly be introduced at trial, granting
summary on this element alone would not eliminate any issues
or serve any other useful purpose. Wooten's motion for
summary judgment on this element should be denied.
and BNSF both seek summary judgment on the fourth element,
which requires proof that the alleged protected activity was
a contributing factor in the unfavorable personnel action.
The parties disagree on the proof this element requires.
Wooten argues the standard is a lenient one, and cites
BNSF Ry. Co. v. U.S. Dep't of Labor, 816 F.3d
628, 639 (10th Cir. 2016) for the proposition that
a plaintiff need only show by a preponderance of the evidence
that the protected activity “was one of the factors
that tended to affect in any way the personnel action.”
(Doc. 101, at 17). Wooten maintains this burden can be met
with circumstantial evidence, including evidence of temporal
proximity. (Doc. 101, at 17, citing DeFrancesco v. Union
Pacific R.R., ARB No. 10-114, 2012 WL 694502 *3 (Feb.
further argues the “contributing factor” standard
is satisfied if “the protected activity and the adverse
action are ‘inextricably intertwined'.” (Doc.
101, at 18 (citing Stallard v. Norfolk S. Ry. Co.,
ARB No. 16-028, 2017 WL 4466937, at *8 (Sept. 29, 2017)).
Wooten maintains it is not possible to explain BNSF's
decision to terminate his employment without reference to his
report of a personal injury, which means the two are
inextricably intertwined and he is entitled to summary
judgment on the contributory factor element of his FRSA
takes the position that a more stringent standard applies,
and contends that in order to satisfy the contributing factor
element a plaintiff must prove “intentional retaliation
prompted by the employee engaging in protected
activity.” (Doc. 106, at 15, citing Kuduk v. BNSF
Ry. v. Co., 768 F.3d 786, 791 (8th Cir.
2014). BNSF maintains a plaintiff must also prove that the
protected activity was the “proximate cause” of
the adverse employment action, and claims evidence of
temporal proximity alone is not sufficient. Kozaria v.
BNSF Ry. Co., 840 F.3d 873, 877-78 (7th Cir.
2016). Even assuming Wooten engaged in protected activity,
BNSF argues Wooten cannot establish proximate cause or
intentional retaliation because the undisputed evidence shows
that it discharged Wooten based on its good faith belief that
he had been dishonest in reporting an on-the-job injury, not
because he engaged in protected activity.
consistently applied by district courts in the Ninth Circuit
even after the Kuduk and Kozaria decisions,
the contributing factor element “does not require that
the employee conclusively demonstrate the employer's
retaliatory motive.” Despain v. BNSF, 2018 WL
1894708 *6 (Feb. 20, 2018 D. Ariz.) (citing Araujo,
708 F.3d at 158-59). See also Coppinger-Martin v.
Solis, 627 F.3d 745, 750 (9thCir. 2010).
“Rather, the employee need only make ‘a prima
facie showing that protected behavior or conduct was a
contributing factor in the unfavorable personnel action
alleged in the complaint.” Coppinger-Martin,
627 F.3d at 750.
of the requisite degree of discriminatory animus on the part
of the employer may be circumstantial, including evidence of
temporal proximity. Despain, 1894798 *6.
“Other possibilities include ‘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 presence of intervening
events that independently justify discharge.'”
Despain, 2018 WL 1894708 *6 (quoting Loose v.
BNSF Ry. Co., 865 F.3d 1106, 1112013 (8th
Cir. 2017)). In Despain, for example, the court
found on summary judgment that retaliatory animus was
inferable based on circumstantial evidence, including
“the weakness of BNSF Railway's assertion that the
injury claim was dishonest.” Despain, 2018 WL
this standard, neither party is entitled to summary judgment
on the contributing factor element of Wooten's FRSA claim
because there is a genuine issue of material fact as to
whether BNSF acted with the requisite degree of retaliatory
animus. Evidence of the temporal proximity between
Wooten's injury report and the date of his discharge is
relevant for purposes of showing retaliatory intent and
satisfying the contributing factor element. In addition,
Wooten submitted a heavily redacted copy of BNSF's 2015
end-of-year performance review for Pino, who describes
himself as “the lead on driving [the] investigation and
ultimately terminating” Wooten. (Doc. 123). In the
self-assessment safety section of the review, Pino explains
that “the numbers are inflated by an injury that was
falsely reported” and “if we consider the falsely
reported injury” they “would be approaching 1
year injury free.” (Doc. 123). The unredacted version
of Pino's 2015 end-of-year performance review shows that
he received an “On Target” safety rating from his
manager, Dan Fransen. But on Pino's 2015 mid-year
performance review, which was completed on July 28, 2015 just
a few days before Wooten's injury report, Fransen gave
Pino a “Needs Improvement” safety rating. Fransen
stated that the trending “improvement in safety which
would include reportable injuries along with our total
injuries…must continue through the remainder of 2015
as I believe we can have a very successful year.”
Fransen's safety rating also improved during this period.
He received an “On Target” safety rating on his
2015 mid-year performance review, and an “Exceeds
Target” rating on his 2015 end-of year-review. The
Incentive Compensation Program example submitted by BNSF for
in camera review and disclosed to Wooten's counsel shows
that such individual performance ratings can result in a
Performance Management Process adjustment, thereby affecting
all inferences in Wooten's favor, this evidence suggests
that BNSF may have incentivized retaliation by managers and
supervisors by linking their individual performance reviews
to the number of on-the-job injuries reported. Assuming
Wooten engaged in protected activity by reporting an on the
job injury in good faith, he has come forward with sufficient
evidence to raise a genuine issue of material fact as to
whether BNSF retaliated again him for doing so. In light of
these factual issues, neither party is entitled to summary
judgment on the contributory factor element of Wooten's
BNSF moves for summary judgment on the ground that it has
established by clear and convincing that it would have taken
the same unfavorable personnel action even in the absence of
Wooten's alleged protected activity. The alleged
protected activity here is the good faith reporting of an
on-the-job injury. It is undisputed that BSNF discharged
Wooten for making a “dishonest report of a personal
injury.” (Doc. 101-4). Assuming Wooten engaged in
protected activity by reporting an on-the-job injury in good
faith, BNSF does not point to any evidence that it would have
discharged him for other legitimate reasons.
extent BNSF argues it would have discharged Wooten for
dishonesty even if he had not submitted an injury report,
BNSF has not established that it is entitled to summary
judgment. BNSF explains that dishonesty is a stand-alone
dismissible event under its Policy for Employee Performance
Accountability (PEPA), and cites comparator information
showing that it consistently applies and enforces its
discipline policies, including prohibitions against
dishonesty. In response, Wooten submits evidence that
railroad managers have discretion in assessing “levels
of dishonesty” and comparator information showing that
BNSF does not consistently impose identical discipline on all
employees who violate the prohibition against dishonesty.
(Doc. 100, ¶¶ 50-52, 86-92). This evidence is
sufficient to raise a genuine issue of material fact.
Failure to Mitigate
moves for summary judgment on BNSF's affirmative defense
of failure to mitigate. The parties agree that Wooten had a
duty to mitigate his damages by using “reasonable
diligence in finding other suitable employment.”
Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231
(1982). While the duty to mitigate lies with the injured
party, the burden of proving a failure to mitigate lies with
employer. See Sangster v. United Air Lines, Inc.,
633 F.2d 864, 868 (9th Cir. 1980). In most cases,
an employer satisfies this burden by establishing that (1)
“there were substantially equivalent jobs available,
which [the plaintiff] could have obtained, ” and (1)
the plaintiff “failed to use reasonable diligence in
seeking one.” EEOC v. Farmer Bros. Co., 31
F.3d 891, 906 (9th Cir. 1994).
argues BNSF's failure to mitigate defense fails as a
matter of law because BNSF has not provided enough evidence
to create a question of fact as to (1) whether any
alternative employment was available to Wooten; (2) whether
Wooten failed to use reasonable efforts to secure such
employment; and (3) the amount by which damages would have
been reduced had Wooten satisfied his obligation.
to Wooten's argument, BNSF has presented sufficient
evidence on all three of these points to survive summary
judgment. With respect to substantially equivalent
employment, BNSF has submitted evidence from damages expert
Katherine Dunlap that alternate and equivalent employment
opportunities were available in the railroad industry in
various cities in Washington, Utah, Idaho, and
Wyoming. (Doc. 134, ¶ 98). While Wooten argues
he should not have been required to relocate to any of these
locations, whether it would have been reasonable to expect
that he do so under the circumstance is a question for the
trier of fact.
the reasonableness of Wooten's efforts to secure
alternative employment, BNSF points to evidence that he
submitted only one employment application, which was for a
job at car dealership, and did not actively seek out any
other employment. While Wooten is now working as an insurance
agent, BNSF claims that is only because he was offered the
job by a former acquaintance. (Doc. 134, ¶ ¶95,
96). In addition, Dunlap states in her expert report that
diligence obtaining equivalent employment should entail
engaging in job search activities on a full-time basis. (Doc.
134, ¶ 97). According to BNSF, Wooten did not meet this
time commitment. The reasonableness of Wooten's
mitigation efforts is for the jury to consider.
Wooten argues that even if he failed to mitigate, BNSF has
not presented any evidence showing the amount by which his
damages should be reduced. But Dunlap addresses damages in
her expert report, which is sufficient for summary judgment
purposes. Wooten argues that Dunlap's conclusions are not
supported, but such arguments are for the trier of fact to
consider. Wooten's motion for summary judgment on
BNSF's affirmative defense of failure to mitigate should
moves for summary judgment on Wooten's request for
punitive damages. To recover punitive damages under the FRSA,
Wooten must prove that BSNF acted “[w]ith malice or ill
will or with knowledge that its actions violated federal law
or with reckless disregard or callous indifference to the
risk that its actions violated federal law.”
Worcester v. Springfield Terminal Railway Company,
827 F.3d 179, 182 (1st Cir. 2016) (quoting Smith v.
Wade, 461 U.S. 30, 56 (1983)). BNSF maintains that the
undisputed evidence establishes that it followed its written
policies prohibiting retaliation (doc. 111), and argues
Wooten has not come forward with any evidence upon which a
jury might find that it acted with the requisite level of
intent to support an award of punitive damages.
response, Wooten points to evidence showing that BNSF
anticipated litigation on the very day he was injured. (Doc.
90-6). Wooten also cites deposition testimony from Pino
explaining that within 24 hours of the alleged incident, he
had determined based on video taken as Wooten arrived to work
on the night in question that Wooten was injured before he
showed up for work. (Doc. 90-7, at 2). The Court also remains
mindful, as previously discussed, that Wooten has established
the existence of a genuine issue of material fact as to
whether BNSF acted with discriminatory animus in terminating
his employment. Thus, viewing the evidence in the light most
favorable to Wooten and drawing all inferences in his favor,
a reasonable trier of fact could find that BNSF, through its
employees, acted with reckless disregard in terminating
Wooten's employment. Whether the standard for punitive
damages is satisfied is better left to the jury.
Exhaustion of Administrative Remedies
BNSF moves for summary judgment on Wooten's FRSA claim
based on failure to exhaust his administrative remedies. The
FRSA states that an employee “may seek relief in
accordance with the provisions of this section, with any
petition or other request for relief under this section to be
initiated by filing a complaint with the Secretary of
Labor.” 49 U.S.C. §20109(d)(1). “The text of
the statute therefore makes clear that to receive relief
under the FRSA, litigants must first file a complaint with
OSHA alleging unlawful discrimination.” Foster v.
BNSF Railway Company, 866 F.3d 962, 966 (8th Cir. 2017);
See 49 U.S.C. §20109(d)(2); 49 U.S.C. §
42121(b)(1); 29 C.F.R. § 1982.103. The FRSA's
exhaustion requirements are met “where the retaliation
claim is reasonably related to the administrative
complaint.” Finley v. Salazar, 2013 WL
1209940, at *2 (D. Mont. Mar. 25, 2013); See also Vasquez
v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir.
filed an OSHA complaint alleging he engaged in protected
activity by notifying BNSF that he had suffered a
work-related personal injury. In his Complaint in his case,
Wooten alleges he also engaged in protected activity by
“reporting in good faith a hazardous safety
condition” by reporting a “defective latch on a
locomotive door.” (Doc. 1 § 22). BNSF argues
Wooten cannot raise those claims in this case because he did
not include similar allegations in his OSHA complaint.
because Wooten's report of a personal injury stated that
he injured his wrist as a result of a door latch that was not
functioning properly, his claim that he engaged in protected
activity by reporting a hazardous safety condition is
reasonably related to his OSHA complaint. Therefore,
BNSF's motion for summary judgment on failure to exhaust
administrative remedies should be denied.
BNSF's Motion for Summary Judgment on Plaintiff's ...