McFarland v. BNSF Railway Company, No. 4:2016cv05024 - Document 58 (E.D. Wash. 2017)
Court Description: ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - denying 40 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CC, Case Administrator)
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McFarland v. BNSF Railway Company Doc. 58 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. BRENT McFARLAND, 8 Plaintiff, 9 10 4:16-CV-05024-EFS ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. BNSF RAILWAY COMPANY, 11 Defendant. 12 13 Before the Court is Defendant BNSF Railway Company’s Motion for 14 Summary 15 Plaintiff Brent McFarland claims that BNSF wrongfully discharged him in 16 retaliation for hiring an attorney and bringing a lawsuit under the 17 Federal Employers Liability Act (FELA). See ECF No. 17. 18 summary judgment, arguing that Mr. McFarland was not discharged for 19 filing a FELA claim, and was instead removed from the seniority roster 20 pursuant to Rule 16(f) of the Brotherhood Railway Carmen Collective 21 Bargaining Agreement (BRC CBA) because he worked for another employer 22 while on a leave of absence. ECF No. 40. 23 McFarland 24 alternative relief — for partial summary judgment as to “the portion of 25 plaintiff’s claim that relies on alleged disparate treatment.” ECF No. 26 40 at 10. Judgment lacks and any for Partial similarly Summary situated Judgment, ECF No. 40. BNSF seeks BNSF also argues that Mr. comparator, and asks — as Mr. McFarland counters that a jury could find that dismissal ORDER - 1 Dockets.Justia.com 1 under Rule 16(f) was pretext, or that his FELA lawsuit was nevertheless 2 a substantial factor in BNSF’s decision, and that his claim is not 3 dependent on proving disparate treatment. ECF No. 48. 4 the record and relevant legal authority, for the reasons set forth 5 below, the Court finds there are genuine issues of material fact and 6 therefore denies BNSF’s Motion. I. 7 After reviewing FACTS AND ALLEGATIONS 8 Mr. McFarland worked for BNSF for over 15 years as a carman, 9 starting in 1994 and terminating in 2013. Ex. 54, ECF No. 51-1 at 43. 10 The BRC CBA, which governed Mr. McFarland’s employment relationship with 11 BNSF, prohibited other employment during a leave of absence: Employees accepting other compensated employment while on leave of absence without first obtaining permission from the officer in charge and approved by the General Chairman shall be considered out of service, and their names shall be removed from the seniority roster.1 12 13 14 15 CBA Rule 16(f), Ex. 1, ECF No. 46-1 at 16. 16 employment 17 company, RJ Mac, including during periods when he had taken a leave of 18 absence from BNSF. See, e.g., Ex. 4, ECF No. 42-1 at 3–4. with BNSF, Mr. McFarland Nonetheless, throughout his also worked for his father’s 19 According to Mr. McFarland, “[p]robably 95 percent of all of the 20 foremans [sic] knew” that he worked for RJ Mac while on a leave of 21 absence. Ex. 52, ECF No. 51-1 at 19. 22 Mr. McFarland’s supervisors have provided affidavits stating that they 23 were unaware of Mr. McFarland’s employment with RJ Mac while on leave, 24 and that if they had known, they would have informed Mr. McFarland that BNSF denies this, and three of 25 26 1 Though this BRC CBA only became effective in February 2006, the predecessor agreement contained the same restrictions. See Ex. 14, ECF No. 55-1 at 23. ORDER - 2 1 such 2 violation. Exs. 16–18, ECF No. 55-1 at 34–35, 39–43, 48–49. 3 did not take any proactive steps to discover Rule 16(f) violations, had 4 no 5 violations, and in ten years — across the country — had discharged only 6 three employees under Rule 16(f). Ex. 68, ECF No. 51-1 at 151–152; 7 Ex. 70, ECF No. 51-1 at 160. 8 9 employment written was policies prohibited on how to or they handle would have allegations reported of the Yet, BNSF Rule 16(f) In December 2009, Mr. McFarland injured his right shoulder. See ECF No. 17 at 3. In 2012, after trying unsuccessfully to obtain 10 compensation from BNSF, Mr. McFarland filed a FELA lawsuit, alleging 11 BNSF committed negligence that had caused him to suffer an on-the-job 12 injury. Ex. 57, ECF No. 51-1 at 53–57. 13 resulting trial, Mr. McFarland’s testimony included statements that he 14 had worked for RJ Mac while on leaves of absence from BNSF in 2003 and 15 2004. Ex. 59, ECF No. 51-1 at 75–77. 16 BNSF’s favor on Mr. McFarland’s FELA claim, and the trial court entered 17 its last ruling — denying Mr. McFarland’s motion for new trial — on 18 October 22, 2013. Ex. 61, ECF No. 51-1 at 106. In August 2013, during the Ultimately, the jury found in 19 On November 6, 2013, Mr. McFarland and his union representative, 20 Bert Barnes, were called into Ryan Risdon’s office. Ex. 52, ECF No. 51- 21 1 at 109. 22 McFarland, which indicated that Mr. McFarland was being removed from 23 the seniority roster for violating Rule 16(f) of the BRC CBA. Ex. 60, 24 ECF No. 51-1 at 95–96. Mr. McFarland avers that upon reading the letter, 25 he confronted Mr. Risdon, saying, “This is retaliation for my lawsuit.” 26 And Mr. Risdon’s response was something to the effect of: “What do you ORDER - 3 Mr. Risdon presented a letter bearing his signature to Mr. 1 expect? You sued the railroad.” Ex. 52, ECF No. 51-1 at 24–28. During 2 a deposition, Mr. Barnes likewise paraphrased Mr. Risdon’s statement 3 as: “What did you think would happen if [you] sued the railroad[?]” 4 Exhibit 62, ECF No. 51-1 at 111. 5 such a statement, and asserts that Mr. Risdon merely said the matter 6 was outside his control and explained the origins of the evidence used 7 to find a Rule 16(f) violation. Ex. 12, ECF No. 55-1 at 4. But BNSF denies that Mr. Risdon made 8 The union initially challenged Mr. McFarland’s discharge, but 9 later informed him that it would not be pursuing the grievance because 10 it did not believe it could prevail in arbitration. See Ex. 11, ECF 11 No. 43-1 at 43. 12 BNSF’s proffered reason for terminating him — Rule 16(f) — was merely 13 a 14 retaliation for filing a grievance and FELA lawsuit seeking to recover 15 for his worksite injury. ECF No. 17. pretext for Mr. McFarland then filed this lawsuit, alleging that the II. 16 17 18 true A. basis for his termination, which was in APPLICABLE LEGAL STANDARDS Summary Judgment A motion for summary judgment will only be granted if “the 19 pleadings, the discovery and disclosure materials on file, and any 20 affidavits show that there is no genuine issue as to any material fact 21 and that the movant is entitled to judgment as a matter of law.” Fed. 22 R. Civ. P. 56(c). 23 burden of providing the basis for its motion and must identify those 24 portions of the pleadings and discovery responses that demonstrate the 25 absence of a genuine issue of material fact. See Celotex Corp. v. 26 Catrett, 477 U.S. 317, 323 (1986). ORDER - 4 A party seeking summary judgment bears the initial The substantive law identifies which 1 facts are material, and only disputes over facts that might affect the 2 outcome under that governing law will preclude the entry of summary 3 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 Therefore, 5 affirmatively 6 plaintiff’s case such that no reasonable trier of fact could find other 7 than in the defendant’s favor. See Celotex Corp., 477 U.S. at 323. 8 the defendant meets this initial burden, the plaintiff must then provide 9 “specific facts showing that there is a genuine issue for trial.” 10 to prevail on demonstrate summary an absence judgment, of a evidence defendant to support must the If Liberty Lobby, 477 U.S. at 250. 11 When deciding whether to enter summary judgment, the Court makes 12 no credibility determinations and does not weigh conflicting evidence. 13 Instead, it must construe the evidence — and draw all reasonable 14 inferences therefrom — in the light most favorable to the nonmoving 15 party. See Liberty Lobby, 477 U.S. at 255; T.W. Elec. Serv., Inc. v. 16 Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630–31 (9th Cir. 1987). 17 Nonetheless, evidence presented by the parties must be admissible, Fed. 18 R. Civ. P. 56(e)(1), and conclusory or speculative statements are 19 insufficient 20 judgment, see Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 21 (9th Cir. 1979). 22 B. to raise genuine issues of fact and defeat summary Wrongful Discharge in Washington State 23 Under Washington State law, the tort of wrongful discharge in 24 violation of public policy is an exception to the at-will employment 25 doctrine, and is narrowly drawn to further the goal of preventing 26 employers from using the at-will doctrine to subvert those who seek to ORDER - 5 1 promote public policy. See Thompson v. St. Regis Paper Co., 685 P.2d 2 1081, 3 recognizes the tort of wrongful discharge as extending to claims of 4 employer retaliation for whistleblowing activity, Dicomes v. State, 782 5 P.2d 1002, 1007 (Wash. 1989), as well as for obtaining legal assistance 6 to confront the employer’s unlawful discrimination, Bennett v. Hardy, 7 784 P.2d 1258, 1264 (Wash. 1990). 8 within a such a recognized category, Washington courts apply a three- 9 step, burden-shifting test taken from McDonnell Douglas Corp. v. Green, 10 411 U.S. 792, (1973).2 See, e.g., Scrivener v. Clark Coll., 334 P.3d 541 11 (Wash. 2014) (applying the McDonnell Douglas framework in the employment 12 discrimination context). 1088–89 (Wash. 1984). The Washington State Supreme Court And when analyzing a claim that falls 13 The first step is for the plaintiff to make out a prima facie case 14 for retaliatory discharge. See Wilmot v. Kaiser Aluminum & Chem. Corp., 15 821 P.2d 18, 28–29 (Wash. 1991). 16 attempt to prove the employer’s sole motivation was retaliation.” 17 Wilmot, 821 P.2d at 30. Rather, the plaintiff need only produce evidence 18 – even if circumstantial — that his actions, which were in furtherance 19 of public policy, were “a cause of the firing.” Wilmot, 821 P.2d at 30; 20 see also, Rickman v. Premera Blue Cross, 358 P.3d 1153, 1160 (Wash. 21 2015). To do so, the plaintiff “need not 22 23 24 25 26 2 As Mr. McFarland’s claims fit within common and previously-recognized wrongful discharge scenarios, the Court need not apply the four-factor “Perritt analysis” to determine whether Mr. McFarland has alleged a violation of public policy that warrants recovery. Cf. Gardner v. Loomis Armored Inc., 913 P.2d 377, 382 (Wash. 1996) (“Because this situation does not involve the common retaliatory discharge scenario, it demands a more refined analysis than has been conducted in previous cases.” (citing Henry H Perritt, Jr, Workplace Torts: Rights and Liabilities § 3.7 (1991))). ORDER - 6 At 1 the second step, the burden of production shifts to the 2 employer, who must articulate a legitimate, non-retaliatory reason for 3 the discharge. Wilmot, 821 P.2d at 29. 4 relevant admissible evidence of another motivation, but need not do so 5 by the preponderance of evidence necessary to sustain the burden of 6 persuasion, because the employer does not have that burden[.]” Id. The 7 third step reason by that the showing plaintiff either respond (1) the to the 8 employer’s 9 articulated reason is pretext, or (2) even if the employer’s stated 10 reason is legitimate, retaliation for protected conduct was nevertheless 11 a substantial motivating factor. Wilmot, 821 P.2d at 31. 12 judgment purposes, this is a burden of production, not persuasion, and 13 the plaintiff need only offer sufficient evidence to create a genuine 14 issue of material fact. See Scrivener, 334 P.3d at 546. employer’s For summary III. ANALYSIS 15 16 proffered requires “The employer must produce A. Summary Judgment: Application of McDonnell Douglas 17 Here, the Court finds that Mr. McFarland has satisfied step one 18 of the McDonnell Douglas analysis. During his deposition, Mr. McFarland 19 stated that his supervisors had long been aware that he worked for RJ 20 Mac while on leaves of absence, but he was not terminated until his FELA 21 case reached final resolution. 22 that Mr. Risdon essentially admitted that Mr. McFarland was being 23 removed from the seniority roster because he had sued the railroad. 24 Such evidence, when assumed to be genuine and accurate, is more than 25 sufficient to show a prima facia case of wrongful termination. 26 ORDER - 7 Mr. McFarland also provided evidence 1 At step two, the Court finds that BNSF has articulated a legitimate 2 reason for terminating Mr. McFarland, namely his violation of Rule 3 16(f). 4 It is step three, therefore, upon which summary judgment hinges. 5 And at this third step, the Court finds Mr. McFarland has demonstrated 6 that a genuine issue of material fact exists as to whether BNSF’s 7 decision to discharge him under Rule 16(f) was either pretext or 8 substantially motivated by retaliation. 9 10 1. BNSF’s Arguments Supporting Discharge Under Rule 16(f) BNSF makes cogent arguments for why Mr. McFarland’s discharge 11 under Rule 16(f) was not pretext. Primarily, BNSF argues that there is 12 no evidence of a retaliatory motive because: (1) the decision to remove 13 Mr. McFarland from the seniority roster was within the sole discretion 14 of Ollie Wick, the General Director of Labor Relations at BNSF; (2) in 15 arriving at his decision, Mr. Wick relied exclusively on Mr. McFarland’s 16 own sworn testimony and the terms of the BRC CBA; and (3) the clear 17 terms of the BRC CBA show Rule 16(f) is self-executing, meaning Mr. 18 McFarland’s removal from the seniority roster was both mandatory and 19 automatic. See ECF No. 44. 20 the decision to remove Mr. McFarland from the seniority roster, and that 21 he was not aware of — let alone motivated by — Mr. McFarland’s FELA 22 lawsuit. Ex. 13, ECF No. 55-1 at 10–11. Indeed, Mr. Wick averred that he alone made 23 In BNSF’s view, Mr. Wick’s role in Mr. McFarland’s removal not 24 only illustrates a lack of retaliatory intent, but also proves that 25 others at BNSF did not use Mr. Wick as a “cat’s paw” to retaliate against 26 Mr. McFarland. See ECF No. 40. ORDER - 8 BNSF cites to Staub v. Proctor Hospital, 1 562 U.S. 411 (2011), as supportive of its argument that Mr. Wick’s 2 “independent” review and sole discretion shields BNSF from liability 3 because Mr. Wick did not rely on any “biased” representations, and 4 instead looked to Mr. McFarland’s own sworn statements. See ECF No. 40 5 at 7–9. 6 BNSF’s position, and the case addressed similar issues, that case dealt 7 with statutory language and discrimination rather than common law and 8 retaliation. 9 helpful to BNSF. Although some of the language in Staub can be read to support More importantly, when read as a whole, Staub is not 10 2. 11 In Staub, the United States Supreme Court addressed the issue of 12 what circumstances must exist for an employer to be held liable for 13 employment 14 “influenced, but did not make, the ultimate employment decision.” 562 15 U.S. at 413. 16 Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. 17 § 4301 18 discrimination is “a motivating factor.” 19 that even if the decision to terminate an employee was based in part on 20 a report that was prompted by discrimination, such discrimination was 21 not a motivating factor so long as the decision maker had no unlawful 22 animus and was unaware of the report’s discriminatory origins. Staub, 23 562 U.S. at 418–19. 24 25 26 Staub v. Proctor Hospital et discrimination based on the animus of an employee There, the Court analyzed the text of the Uniformed seq., which prohibits adverse employment action if The Supreme Court concluded However, the Supreme Court also noted, An employer’s authority to reward, punish, or dismiss is often allocated among multiple agents. . . . [Defendant’s] view would have the improbable consequence that if an employer isolates a personnel official from an employee’s supervisors, vests the decision to take adverse employment ORDER - 9 who 1 2 3 4 actions in that official, and asks that official to review the employee’s personnel file before taking the adverse action, then the employer will be effectively shielded from discriminatory acts and recommendations of supervisors that were designed and intended to produce the adverse action. That seems to us an implausible meaning of the text, and one that is not compelled by its words. 5 Staub, 562 U.S. at 420. Thus, Staub is consistent with the principle 6 that an employer cannot escape liability for wrongful discharge simply 7 by pointing to a selectively enforced, but otherwise “valid” policy. 8 See Wilmot, 821 P.2d at 31–32 (stating that if an absenteeism policy is 9 not evenly applied, “or if it is applied where an employee’s absence is 10 relatively brief, an employee may use those circumstances as tending to 11 show the absenteeism policy was a pretext for discharge”). 12 3. 13 If Mr. McFarland’s evidence is accepted as accurate, and all 14 reasonable inferences are drawn in his favor, a juror could reasonably 15 believe that BNSF discharged Mr. McFarland in retaliation for his FELA 16 lawsuit. 17 decade that he worked for RJ Mac during leaves of absence, the fact that 18 BNSF only terminated Mr. McFarland after his FELA case had concluded is 19 circumstantial evidence of retaliation. 20 enforces Rule 16(f) lends further support, and — for the purposes of 21 summary judgment — one must assume that Mr. Risdon really did make 22 statements tying Mr. McFarland’s discharge to his lawsuit. 23 evidence, a reasonable juror could infer that BNSF employees would not 24 have brought Mr. McFarland’s Rule 16(f) violations to the attention of 25 Mr. Wick in the first place if Mr. McFarland had not sued BNSF. 26 Moreover, given that it was the transcript from Mr. McFarland’s FELA ORDER - 10 Evidence of Unlawful Motivation or Pretext As previously noted, if BNSF supervisors knew for over a The rarity with which BNSF Given such 1 case that Mr. Wick received, reviewed, and relied upon in making his 2 determination, 3 statements to the contrary — Mr. Wick did know about Mr. McFarland’s 4 lawsuit against BNSF. 5 question 6 judgment would be inappropriate. 7 B. a BNSF’s juror might reasonably infer that — despite his In either scenario, a reasonable juror could motives for invoking Rule 16(f), meaning summary Summary Judgment as to “Comparator Claim” 8 BNSF asks, in the alternative, that the Court “grant partial 9 summary judgment dismissing plaintiff’s ‘comparator’ claim, on the 10 ground that none of the alleged comparators is similarly situated to 11 plaintiff.” ECF No. 40 at 2. BNSF provided evidence that Thomas Kinghorn 12 was not subject to the same CBA, let alone a provision analogous to Rule 13 16(f). ECF No. 46 at 9. Neither was Greg Coronado, who had stopped 14 working after signing an “out of service” settlement agreement, but was 15 able to keep certain benefits for a time. See Ex. 3, ECF No. 41-1 at 16 11. 17 after being informed that he could not work for another employer while 18 on leave. ECF No. 46 at 94–95. And none of them had the same supervisors 19 as Mr. McFarland. ECF No. 46 at 10–11. Hal Smith apparently resigned in order to operate a tool business 20 Generally, plaintiffs must be able to point to valid comparators 21 when bringing a disparate treatment claim under Title VII, Washington 22 Law Against Discrimination (WLAD), and 42 U.S.C. § 1981. See, e.g., 23 Alonso v. Qwest Commc'ns Co., 315 P.3d 610 (Wash. App. 2013) (noting 24 that under WLAD, disparate treatment occurs when employers treat certain 25 employees “less favorably” than others because of race, color, or other 26 protected ORDER - 11 status). Here, however, Mr. McFarland is not alleging 1 discrimination, he is alleging that BNSF retaliated against him for 2 reporting 3 privilege; his sole cause of action is for wrongful discharge in 4 violation of public policy. See ECF No. 38. employer misconduct and/or exercising a legal right or 5 BNSF correctly points out that Mr. McFarland’s pleadings alleged 6 that other employees had similarly worked for RJ Mac, but were not 7 terminated because they did not bring a lawsuit against BNSF. ECF No. 17 8 at 8; ECF No. 54 at 3. 9 this type of allegation would tend to show pretext on the part of BNSF, 10 whereas comparator evidence showing consistent application of Rule 16(f) 11 would 12 significance 13 however, does not somehow transform Mr. McFarland’s wrongful discharge 14 claim into a “comparator claim,” or otherwise split the issues such that 15 partial 16 comparator evidence will be governed by the usual principles and rules 17 of evidence. tend to and summary Naturally, comparator evidence that verified undermine Mr. importance judgment of is IV. 18 McFarland’s this kind appropriate. claim. of The potential comparator evidence, Instead, any proffered CONCLUSION 19 The record contains competing representations of fact from which 20 a jury could find either that Mr. McFarland was wrongfully terminated 21 or that he was terminated for a legitimate, non-retaliatory reason. 22 Both Mr. McFarland and BNSF Railway met their preliminary evidentiary 23 burdens, and what evidence is to be believed is a matter for the jury. 24 See Scrivener, 334 P.3d at 545 (“When the record contains reasonable 25 but competing inferences of both discrimination and nondiscrimination, 26 the trier of fact must determine the true motivation.”). ORDER - 12 Further, there 1 is no separate comparator claim or issue that would warrant partial 2 summary judgment. 3 For reasons set forth above, IT IS HEREBY ORDERED, Defendant BNSF 4 Railway Company’s Motion for Summary Judgment and for Partial Summary 5 Judgment, ECF No. 40, is DENIED. 6 7 8 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 2nd day of February 2017. 9 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2016\16-CV-5024;McFarland.Deny.MSJ.LC1.docx ORDER - 13
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