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Jones v. BNSF Railway Co.

United States District Court, D. Montana, Missoula Division

December 11, 2019

KEITH JONES, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.


          Dana L. Christensen, Chief Judge

         Before the Court are four discovery motions: (1) Plaintiff Keith Jones's First Motion to Compel Discovery Responses and for Leave of Court to Supplement Expert Disclosures (Doc. 30); (2) Defendant BNSF Railway Company's First Motion for Protective Order (Doc. 36); (3) Jones's Second Motion to Compel (Doc. 39); and (4) BNSF's Motion for Protective Order regarding PMP and ICP (Doc. 45). The Court grants in full BNSF's second motion for a protective order. (Doc. 45.) All other motions are granted in part and denied in part. (Docs. 30, 36, 45.) A hearing on the motions is unnecessary.

         Procedural & Legal Background

         Plaintiff Keith Jones worked for Defendant BNSF from April 10, 2006 to July 9, 2010 and again from February 21, 2011 until his termination on July 17, 2017. He alleges that BNSF took adverse employment actions against him on two occasions: (1) when BNSF investigated and disciplined him in January 2017; and (2) again when BNSF fired him in July of that year. (Doc. 1.) Jones claims that the investigation and termination are unlawful under the Federal Rail Safety Act, 49 U.S.C. § 20109, because they were in response to him making internal reports and external complaints regarding safety. In relevant part, the FRSA reads:

(b) Hazardous safety or security conditions.-
(1) A railroad carrier engaged in interstate or foreign commerce, or an officer or employee of such a railroad carrier, shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for-
(A) reporting, in good faith, a hazardous safety or security condition;
(B) refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties, if the conditions described in paragraph (2) exist; or (C) refusing to authorize the use of any safety-related equipment, track, or structures, if the employee is responsible for the inspection or repair of the equipment, track, or structures, when the employee believes that the equipment, track, or structures are in a hazardous safety or security condition, if the conditions described in paragraph (2) exist.
(2) A refusal is protected under paragraph (1)(B) and (C) if-
(A) the refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;
(B) a reasonable individual in the circumstances then confronting the employee would conclude that-
(i) the hazardous condition presents an imminent danger of death or serious injury; and
(ii) the urgency of the situation does not allow sufficient time to eliminate the danger without such refusal; and
(C) the employee, where possible, has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work, or not to authorize the use of the hazardous equipment, track, or structures, unless the condition is corrected immediately or the equipment, track, or structures are repaired properly or replaced.

49 U.S.C. § 20109(b).

         "A claim for unlawful retaliation under the FRSA has two stages: the prima facie stage, see 49 U.S.C. § 42121(b)(2)(B)(i)-(iii); 29 C.F.R. § 1982.104(e), and the substantive stage, see 49 U.S.C. § 42121(b)(2)(B)(iii)-(iv); 29 C.F.R. § 1982.109(a)-(b)." Rookaird v. BNSF Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018). Each stage requires application of a burden-shifting framework.

         First, the employee must establish a prima facie case for retaliation by alleging the existence of four elements:

(i) The employee engaged in a protected activity (or ... was perceived to have engaged or to be about to engage in protected activity);
(ii) The respondent knew or suspected that the employee engaged in the protected activity (or... perceived the employee to have engaged or to be about to engage in protected activity);
(iii) The employee suffered an adverse action; and
(iv) The circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.

29 C.F.R. § 1982.104. If the employee meets his or her burden, the employer can defeat the employee's prima facie case by "demonstrating], by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of [the protected activity]." 49 U.S.C. §42121(b)(2)(B)(ii).

         Second, "[a]t the substantive stage, a violation will be found 'only if the complainant demonstrates that any [protected activity] was a contributing factor in the unfavorable personnel action alleged in the complaint." Rookaird, 908 F.3d at 460 (quoting 49 U.S.C. § 42121 (b)(2)(B)(iii)) (emphasis and alteration in original). "Then-like at the prima facie stage-the employer can defeat the retaliation claim 'if the employer demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of [the protected activity]." Id. (quoting 49 U.S.C. § 42121(b)(2)(B)(iv)) (alteration in original).

         Important for purposes of this Order are the "contributing factor" requirements of both stages. To prevail at the substantive phase of his FRSA claim, Jones must prove to the jury BNSF's "discriminatory or retaliatory intent" by demonstrating, "by a preponderance of the evidence, that [Jones's] protected conduct was a contributing factor to the adverse employment action-i.e., that it tended to affect the decision in some way." Frost v. BNSF Ry Co., 914 F.3d 1189, 1195-96 (9th Cir. 2019). At the prima facie stage, the issue is the same, but the plaintiff need not prove his or her theory by a preponderance of the evidence. See, e.g., Rookaird, 908 F.3d at 462-67 & n.6. "A 'contributing factor' includes 'any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision.'" Rookaird, 908 F.3d at 461 (quoting Gunderson v. BNSF Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017)). It may be shown through circumstantial evidence, Araujo v. N.J. Transit Rail Ops., Inc., 708 F.3d 152, 160- 61 (3d Cir. 2013), including, for example:

Temporal proximity, indications of pretext, inconsistent application of an employer's policies, an employer's shifting explanations for its actions, antagonism or hostility toward a complainant's protected activity, the falsity of an employer's explanation for the adverse action taken, and a change in the employer's attitude toward the complainant after he or she engages in protected activity.

Ray v. Union Pac. R.R. Co., 971 F.Supp.2d 869, 885 (S.D. Iowa 2013) (quoting Defrancesco v. Union R.R. Co., Dep't of Labor Admin. Rev. Bd. 10-114(2012), 2012 WL 694502).

         Legal Standard

         Rulings on discovery issues fall within the Court's broad discretion over case management. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). The scope of discovery extends to all

nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). For purposes of discovery, relevance is relatively expansive, "encompass[ing] any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). "If the information sought might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement, it is relevant to the subject matter involved in the pending action." Cintron v. Title Fin. Corp., 9:17-cv-108-M-DLC, 2018 WL 6605901, at *1 (Dec. 17, 2018) (quotation omitted). The information "need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). A court may act to limit unreasonably cumulative, overbroad, unduly burdensome, or irrelevant discovery. Fed.R.Civ.P. 26(b)(2)(c).

         A party may move to compel disclosure when it is unable to access information through its discovery requests. Fed.R.Civ.P. 37(a)(2)(A). "The moving party bears the burden of showing that the discovery sought is 'relevant' as defined above, and the party resisting discovery bears the burden of showing that nondisclosure is appropriate." Cintron, 2018 WL 6605901, at *1. The flipside of a motion to compel is a motion for a protective order, which may be granted "to protect a party ... from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1).

         This Court "takes an expansive view regarding relevance for purposes of discovery. At risk of stating the obvious, subject matter or documents may be relevant, as defined in the preceding paragraphs, for purposes of discovery, but will not meet the more stringent standard of relevance to constitute admissible evidence at trial." Cintron, 2018 WL 6605901, at *1.

         Here, then, the question is whether the information Jones seeks to discover and BNSF seeks to avoid disclosing may be (or may lead to) direct or circumstantial evidence tending to show the reasons for his termination. This includes information probative of: the states of mind of individual decisionmakers, including company policies and procedures that arguably may have influenced those decisionmakers; and BNSF's general treatment of individuals similarly situated to Jones.


         The Court considers the four pending motions in turn, keeping in mind the requirements of a FRS A claim for wrongful termination and the guiding discovery standards.

         I. Jones's First Motion to Compel (Doc. 30)

         Jones requests data regarding comparators-other BNSF employees accused of violating the same rule(s)-and specific documents from the personnel files of his supervisors-Incentive Compensation Plan ("ICP"), Performance Management Process ("PMP"), and merit award documents. He further requests additional time to supplement expert reports following receipt of additional discovery. The Court grants the motion in part.

         A. Comparator Data

         Jones asked for information about employees "charged and/or notified of alleged violation of the same type of rule violation" as Jones, including "copies of each and every BNSF audit or analysis of BNSF waiver, alternative handling, leniency, discipline or no discipline for each employee notified of possible rule violation for each and every rule that Plaintiff was charged of violating" and "documents, reports, data, information, investigations summaries, audits, studies, or research regarding each and every BNSF employee charged with any of the same rules violations" as Jones from 2012 through the present. (Doc. 31-1 at 4, 29, 31.)

         Although it had not yet produced anything prior to submitting its response brief, BNSF has represented that it is not adverse to giving Jones some comparator data. However, it disagrees with the scope of Jones's request, suggesting that it would be willing to give data regarding Montana employees accused of the same conduct in 2016 and 2017. (Doc. 31-2 at 16-27, 47-48.) Thus, there are three points of dispute between the parties. First, Jones wants seven years of data, and BNSF has offered two. Second, Jones wants company-wide data, and BNSF has offered to give Montana-specific information. Third and finally, Jones seeks ...

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