BNSF Railway Co. v. LABR, No. 16-3093 (8th Cir. 2017)
Annotate this CaseClyde Carter, Jr. injured his shoulder and neck while working as a carman at BNSF Railway Company’s yard in Kansas City, Kansas. Carter immediately reported the injury to BNSF. The following year, he filed a Federal Employers’ Liability Act (FELA) damage action, alleging that BNSF’s negligence caused his injury. BNSF’s discovery in defending the FELA lawsuit included a July 2009 deposition of Carter. In January 2012, as trial approached, a BNSF manager reviewed discovery materials provided by BNSF’s attorneys. He discovered discrepancies between Carter’s deposition testimony and information provided on his employment application and medical questionnaire submitted to BNSF in 2005. Thompson initiated a disciplinary investigation into potentially dishonest statements. Later, BNSF opened a second disciplinary investigation to determine if Carter signed a false statement that he arrived at work on time on February 5, 2012. The investigations culminated in two "on-property" evidentiary hearings, the conclusions of which found Carter committed dishonesty violations and recommended discipline in accordance with BNSF’s Policy for Employee Performance Accountability (PEPA). It was recommended Carter be terminated for dishonesty, a "stand alone" violation that could result in dismissal without regard to an employee's prior disciplinary history. Following termination, Carter filed an FRSA complaint with the Department of Labor, alleging that BNSF initiated the investigations leading to his dismissal in retaliation for Carter reporting the August 2007 work-related injury. The Occupational Safety and Health Administration dismissed Carter’s complaint, finding he committed the violations, and BNSF proved by clear and convincing evidence that "other employees who had not engaged in protected activity have been dismissed from service for dishonesty." Carter filed objections. After an evidentiary hearing, an Administrative Law Judge (ALJ) found that BNSF violated 49 U.S.C. 20109(a)(4) and awarded reinstatement, back pay, attorneys’ fees, and $50,000 punitive damages. BNSF filed an administrative appeal. The Secretary’s Administrative Review Board (ARB) affirmed the ALJ. BNSF appealed. The Eighth Circuit found the ALJ's reasoning was based on a flawed interpretation of the FRSA; though the Administrative Review Board did not rely on the ALJ's chain-of-events causation theory, it affirmed based on findings which were either non-existent or insufficient to support the Board's contributing factor and affirmative defense rulings. Accordingly, the Court reversed and remanded with instructions.
Court Description: Loken, Author, with Wollman, Circuit Judge, and Nelson, District Judge] Petition for Review - Administrative Review Board. Where the railroad discovered through discovery in an employee's FELA action that he had made dishonest statements in his employment application and medical questionnaire, the ALJ erred in finding that the employee's termination violated the Federal Rail Safety Act; the ALJ's conclusion that the filing of an injury report "set off a chain of events" which led to his termination and was therefore improper retaliation for engaging in a protected activity is contrary to judicial precedent construing the causation element of a Federal Rail Safety Act retaliation claim; to hold that protected activity is a contributing factor to an adverse action simply because it ultimately led to the employer's discovery of misconduct confuses a cause with proximate cause; further absent sufficient evidence of intentional retaliation, a showing that protected activity initiated a series of events leading to an adverse action does not satisfy the Federal Rail Safety Act's contributing factor causation standard; while the Administrative Review Board did not rely on the ALJ's chain-of-events causation theory, it affirmed based on findings which were either non-existent or insufficient to support the Board's contributing factor and affirmative defense rulings. Vacated and remanded for further proceedings.
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