United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge
States Magistrate Judge Jeremiah C. Lynch entered his
Findings and Recommendation and Order in this case on May 29,
2018, recommending the denial of the Parties'
cross-motions for partial summary judgment on Plaintiff
Zachary Wooten's ("Wooten") Federal Railroad
Safety Act ("FRSA") claim and Defendant BNSF
Railway Company's ("BNSF") Motion for Summary
Judgment on Wooten's Locomotive Inspection Act
("LIA") claim. (Doc. 200 at 49.) BNSF timely
objected to Judge Lynch's recommendations and also
objected to his order precluding the deposition of Greg Smith
and denying BNSF's motion to compel an examination of
Wooten's cell phone. (Docs. 218; 220.) Consequently, BNSF
is entitled to de novo review of those findings and
recommendations to which it has specifically objected. 28
U.S.C. § 636(b)(1)(C). Absent objection, this Court
reviews findings and recommendations for clear error.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc); Thomas v. Am, 474 U.S.
140, 149 (1985). Clear error exists if the Court is left with
a "definite and firm conviction that a mistake has been
committed." United States v. Syrax, 235 F.3d
422, 427 (9th Cir. 2000) (citations omitted). Additionally,
when a party objects to the magistrate's order on a
pretrial matter, this Court may reconsider the
magistrate's order if the party "show[s] that the
magistrate judge's order is clearly erroneous or contrary
to law." 28 U.S.C. § 636(b)(1)(A).
party makes a proper objection by identifying the parts of
the magistrate's disposition that the party finds
objectionable and presenting legal argument and supporting
authority, such that the district court is able to identify
the issues and the reasons supporting a contrary
result." Montana Shooting Sports Ass'n v.
Holder, 2010 WL 4102940, at *2 (D. Mont. Oct. 18, 2010)
(citation omitted). "It is not sufficient for the
objecting party to merely restate arguments made before the
magistrate or to incorporate those arguments by
reference." Id. Congress created magistrate
judges to provide district judges "additional assistance
in dealing with a caseload that was increasing far more
rapidly than the number of judgeships." Thomas,
474 U.S. at 153. There is no benefit to the judiciary
"if the district court is required to review the
entire matter de novo because the objecting party merely
repeats the arguments rejected by the magistrate. In such
situations, this Court follows other courts that have
overruled the objections without analysis." Montana
Shooting Sports Ass'n2010 WL 4102940, at *2
(internal quotation marks and citation omitted).
following reasons, Judge Lynch's Findings and
Recommendation and Order will be adopted in full.
BNSF's Motion for Partial Summary Judgment on
Wooten's FRSA Claim
Under the Federal Railroad Safety Act:
A railroad carrier engaged in interstate or foreign commerce,
. . . 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, or perceived by
the employer to have been done or about to be done- to
notify, or attempt to notify, the railroad carrier or the
Secretary of Transportation of a work-related personal injury
or work-related illness of an employee.
49 U.S.C. § 20109(a)(4). Pursuant to §
20109(d)(2)(A), employees alleging violation of §
20109(a) must abide by the procedures set forth in 49 U.S.C.
under the FRSA, as governed by § 42121(b), are analyzed
under a burden-shifting framework which "is much more
protective of plaintiff-employees" than other
burden-shifting frameworks. Araujo v. New Jersey Transit
Rail Operations, Inc., 708 F.3d 152, 158 (3d Cir. 2013).
First, 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, 708 F.3d at 157; Tamosaitis v.
URS Inc., 781 F.3d 468, 481 (9th Cir. 2015). If
Plaintiff makes this prima facie showing, then "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 absence of that
behavior.'" Araujo, 708 F.3d at 159
(quoting § 42l2l(b)(2)(B)(ii)).
relevance here, the Parties filed cross-motions for summary
judgment on the fourth element of Wooten's prima facie
case. Judge Lynch concluded, and this Court agrees, that
summary judgment is not appropriate on this element in favor
of either party. Wooten has come forward with sufficient
evidence to raise a genuine issue of material fact as to
whether BNSF retaliated against him for reporting an on the
job injury. While BNSF is correct that the district judge
must "determine de novo any part of the magistrate
judge's disposition that has been properly objected
to," (Doc. 218 at 4 (quoting L.R. 72(b)(3))) it is
incorrect in its assertion that the Court is obligated to do
so in this case.
objection to a magistrate's findings and recommendations
is not a vehicle for the losing party to relitigate its case,
which is precisely what BNSF has done here. In these
situations, this Court follows other courts that have
overruled the objections without analysis. Hagberg v.
Astrue, 2009 WL 3386595, at *1 (D. Mont. Oct. 14, 2009).
BNSF's only addition to the arguments already weighed and
discounted by Judge Lynch is its assertion that a deposition
which occurred after the issuance of Judge Lynch's
Findings and Recommendations and Order provides information
refuting any basis upon which any reasonable fact-finder
could find retaliatory motive-namely, the testimony of one
Mark Premrock stating that Wooten's supervisor's
overall rating dropped from prior years. (Doc. 218 at 12.)
The Court does not share BNSF's conviction concerning the
conclusiveness of its new evidence and will leave the
weighing of this unresolved factual dispute to the jury.
further requested summary judgment on Wooten's FRSA claim
for failure to exhaust as well as on Wooten's punitive
damages claim. Judge Lynch recommended denying summary
judgment on both fronts. BNSF's objections to Judge
Lynch's recommendations regarding punitive damages and
failure to exhaust administrative remedies are again
deficient as they are nearly verbatim recitations of the
arguments and authority already before Judge Lynch.
Consequently, all of BNSF's objections to Judge
Lynch's recommendation regarding Wooten's FRSA claim
Wooten's Motion for a Protective Order Precluding the
Deposition ofGreg Smith and BNSF's
Motion to Compel the ...