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Wooten v. BNSF Railway Co.

United States District Court, D. Montana, Missoula Division

May 29, 2018

ZACHARY WOOTEN, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          FINDINGS & RECOMMENDATION AND ORDER

          JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the parties' motions for partial summary judgment and several evidentiary motions.

         I. Background

         Plaintiff 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.

         The 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.

         In the 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 31, 2015.

         On 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. 101-4).

         Wooten 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.

         The 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).

         On May 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.

         II. Summary Judgment Motions

         A. Legal Standards

         Under 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 (1986).

         Once 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.

         In 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).

         When 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.

         2003).

         B. Cross-Motions for Partial Summary Judgment on Plaintiff's FRSA Claim (Docs. 99 & 105)

         1. Prima Facie Case

         To 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)).

         Wooten 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.[1] 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).

         Notwithstanding 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.

         Wooten 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.

         Wooten 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. 29, 2012)).

         Wooten 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 claim.

         BNSF 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.

         As 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.

         Evidence 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 1894708 *6.

         Under 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.[2] 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 compensation.

         Drawing 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 FRSA claim.

         Alternatively, 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.

         To the 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.

         2. Failure to Mitigate

         Wooten 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).

         Wooten 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.

         Contrary to Wooten's argument, BNSF has presented sufficient evidence on all three of these points to survive summary judgment.[3] 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.[4] (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.

         As to 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.

         Finally, 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 be denied.

         3. Punitive Damages

         BNSF 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.

         In 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.

         4. Exhaustion of Administrative Remedies

         Finally, 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. 2004).

         Wooten 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.

         But 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.

         C. BNSF's Motion for Summary Judgment on Plaintiff's ...


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