United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge
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
& Legal Background
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
(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
49 U.S.C. § 20109(b).
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.
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
(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
(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).
"[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).
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
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
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.
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."
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.
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.
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.
Jones's First Motion to Compel (Doc. 30)
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.
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.)
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