Almendarez et al v. BNSF Railway Company, No. 2:2013cv00086 - Document 66 (W.D. Wash. 2014)
Court Description: ORDER denying plaintiffs' 54 Motion for Summary Judgment; and denying plaintiff Herron's 55 Motion for Partial Summary Judgment. Signed by Hon. Mary Alice Theiler.(GB)
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Almendarez et al v. BNSF Railway Company Doc. 66 01 02 03 04 05 06 07 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 08 09 ARMANDO ALMENDAREZ, et al., 10 11 12 13 ) ) Plaintiffs, ) ) v. ) ) BNSF RAILWAY COMPANY, ) ) Defendants. ) ____________________________________ ) CASE NO. C13-0086-MAT ORDER RE: PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT 14 INTRODUCTION 15 16 Plaintiffs Almendarez, Crosby, Drecksel, Gillings, Geiss, King, Leonard, Reaser, 17 Winfrey, and Herron, the latter of whom is represented by separate counsel, filed Motions for 18 Summary Judgment in this matter pursuant to the Federal Rail Safety Act (“FRSA”), 49 U.S.C. 19 § 20109. (Dkts. 54 & 55.) Plaintiffs seek partial summary judgment on the issue of whether 20 defendant BNSF Railway Company (BNSF) violated FRSA, and request that the current trial 21 dates be maintained for a jury determination as to damages. Alternatively, plaintiffs request 22 that the Court enter an order stating that any and all material facts not genuinely in dispute be ORDER RE: PENDING MOTIONS PAGE -1 Dockets.Justia.com 01 treated as established in this case. Fed. R. Civ. P. 56(g). 02 BNSF opposes the motions for summary judgment, asserting the existence of genuine 03 disputes as to material facts requiring a jury’s determination as to witness credibility. (Dkt. 04 57.) BNSF alternatively argues that, even if the Court were to reach a credibility 05 determination, plaintiffs fail to establish a FRSA violation. BNSF also requests that the Court 06 decline to accept the invitation to establish undisputed facts on summary judgment. 07 Now, having considered the motions, opposition, and remainder of the record, the Court 08 finds and concludes that the pending motions must be DENIED based on the existence of 09 genuine disputes as to material facts precluding a ruling on summary judgment. The Court 10 also declines to reach a determination as to undisputed facts. 11 12 BACKGROUND BNSF is a railroad carrier engaged in interstate commerce and subject to FRSA. BNSF 13 is required by federal regulation to report employee injuries of certain severity to the Federal 14 Railroad Administration (hereinafter “reportable injuries”), and to refrain from harassment or 15 intimidation calculated to discourage or prevent employees from reporting injuries. 49 C.F.R. 16 §§ 225.11, 225.33. BNSF, accordingly, requires its employees to report all injuries, regardless 17 of severity. (See Dkt. 1, ¶9; Dkt. 9, ¶11.) 18 At all times pertinent to this matter, BNSF employed plaintiffs as part of a construction 19 group or “gang” under the supervision of construction roadmaster Kasie Holle. The gang was 20 based in Interbay, Seattle, Washington and assigned to build railroad track in and around the 21 Seattle area as part of the Sound Transit commuter project. 22 The incident giving rise to this matter occurred during a morning meeting conducted by ORDER RE: PENDING MOTIONS PAGE -2 01 Holle on or about January 14, 2010. Plaintiffs aver that, during the meeting, Holle addressed 02 the injury record of the gang, deemed it excessive in comparison to other track construction 03 groups, and advised that the gang would be abolished if any additional injuries occurred. (See, 04 e.g., Dkt. 54-20 (Ex. R).) Plaintiffs further contend that, after one or more members of the 05 group vocalized concern that their jobs had been threatened, Holle responded – “don’t shoot the 06 messenger” – leading plaintiffs to believe the threat came from above Holle and at the direction 07 of BNSF. (Id.) Plaintiffs point to a variety of factors, including issues of seniority and the 08 minimal work opportunities available at that time, as relevant to their concern as to the 09 abolishment of the gang. (See Dkt. 54 at 3.) They also assert the existence and relevance of 10 a BNSF program providing cash bonuses to management employees based on the number of 11 reportable injuries. (Id. at 4.) 12 BNSF refutes plaintiffs’ depiction of the statements made by Holle during the morning 13 meeting. Holle attests that the gang’s project, already extended, was scheduled to end on 14 February 1, 2010, and that she had been working on securing a new project. (See Dkt. 58.) 15 She confirms that the gang had sustained more injuries than any track group in the division. 16 (Id.) Holle maintains that, during the meeting, she discussed how the gang could be safer and 17 prevent injuries, asked how it could learn from work groups with fewer injuries, and 18 “speculated that groups that work safer may have a competitive edge for getting new work” in 19 an effort to help the gang “get every advantage for finding new work as a group by improving 20 [its] safety.” (Id., ¶13.) Holle further maintains that, after some individuals raised concerns, 21 she explained she was not making a threat, that the goal was to prevent injuries from occurring, 22 and that, if an injury did occur, it must be reported. (Id., ¶¶14-15.) Holle denies saying “don’t ORDER RE: PENDING MOTIONS PAGE -3 01 shoot the messenger,” that the group would be abolished if another injury was reported, or that 02 she was told as such by management. (Id., ¶¶16-20.) 03 No further incidents are at issue in this matter. It is undisputed, for example, that the 04 construction gang began work on a new project in Everett following cessation of work at the 05 Interbay location. (Id., ¶29.) 06 On July 9, 2010, plaintiffs filed a complaint with the United States Department of 07 Labor, Occupational Safety and Health Administration (OSHA), alleging violation of FRSA 08 through Holle’s threat that their jobs would be abolished if they reported any additional injuries. 09 (Dkt. 54-22 (Ex. T).) In a position statement offered in response to the complaint, BNSF 10 stated that plaintiffs’ work group “suffered injuries at a rate three times as high” as similar 11 groups; that the “‘tipping point’” occurred after the tenth and eleventh injuries sustained in 12 December 2009; that it was well known the group would be abolished at the conclusion of the 13 Sound Transit project in February 2010; and that Holle conducted an “employee discussion 14 regarding the unsafe behaviors leading to the rash of recent injuries[]” and explained the 15 “unremarkable principle” that, “in the competition for additional work, the safest work groups 16 are often selected for obvious reasons.” (Dkt. 54-23 (Ex. U) at 3-4.) BNSF also otherwise 17 denied the allegations raised by plaintiffs in their complaint, including the contention that Holle 18 “made the comment ‘don’t shoot the messenger’.” (Id. at 5.) 19 A Regional Administrator for OSHA, in a January 11, 2012 decision, dismissed the 20 complaint upon concluding plaintiffs “suffered no adverse actions.” (Dkt. 54-24 (Ex. V).) 21 On Appeal, an Administrative Law Judge (ALJ) found the Regional Administrator “viewed 22 ‘adverse action’ too narrowly, given the text of the Secretary’s regulation that reaches beyond ORDER RE: PENDING MOTIONS PAGE -4 01 losses of cash, benefits, or seniority, to bar intimidation, threats, restraints, and coercion.” 02 (Dkt. 54-25 (Ex. W) at 3.) The ALJ found the allegations merited a trial and set a pre-trial 03 schedule. Plaintiffs opted, instead, to seek relief in this Court. 04 05 DISCUSSION Summary judgment is appropriate when a “movant shows that there is no genuine 06 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 07 R. Civ. P. 56(a). The moving party is entitled to judgment as a matter of law when the 08 nonmoving party fails to make a sufficient showing on an essential element of his case with 09 respect to which he has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 10 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. 11 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 12 The central issue is “whether the evidence presents a sufficient disagreement to require 13 submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” 14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party bears the 15 initial burden of showing the district court “that there is an absence of evidence to support the 16 nonmoving party’s case.” Celotex Corp., 477 U.S. at 325. The moving party can carry its 17 initial burden by producing affirmative evidence that negates an essential element of the 18 nonmovant’s case, or by establishing that the nonmovant lacks the quantum of evidence needed 19 to satisfy its burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 20 Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden then shifts to the nonmoving party to 21 establish a genuine issue of material fact. Matsushita Elec. Indus. Co., 475 U.S. at 585-87. 22 In supporting a factual position, a party must “cit[e] to particular parts of materials in ORDER RE: PENDING MOTIONS PAGE -5 01 the record . . .; or show[] that the materials cited do not establish the absence or presence of a 02 genuine dispute, or that an adverse party cannot produce admissible evidence to support the 03 fact.” Fed. R. Civ. P. 56(c)(1). The nonmoving party “must do more than simply show that 04 there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 05 U.S. at 585. “[T]he requirement is that there be no genuine issue of material fact. . . . Only 06 disputes over facts that might affect the outcome of the suit under the governing law will 07 properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48 (emphasis 08 in original). Also, “[t]he mere existence of a scintilla of evidence in support of the 09 non-moving party’s position is not sufficient[]” to defeat summary judgment. Triton Energy 10 Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Likewise, the nonmoving party 11 “cannot defeat summary judgment with allegations in the complaint, or with unsupported 12 conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 13 1112 (9th Cir. 2003). 14 A. FRSA Claim 15 FRSA serves “to promote safety in every area of railroad operations and reduce 16 railroad-related accidents and incidents.” 49 U.S.C. § 20101. Pursuant to FRSA, a railroad 17 carrier “may not discharge, demote, suspend, reprimand, or in any other way discriminate 18 against an employee if such discrimination is due, in whole or in part,” to an employee’s 19 engagement in various protected activities, including “notify[ing], or attempt[ing] to notify, the 20 railroad carrier or the Secretary of Transportation of a work-related personal injury or 21 work-related illness of an employee[.]” § 20109(a)(4). Implementing regulations clarify that 22 discriminatory acts in violation of FRSA include, but are not limited to, “intimidating, ORDER RE: PENDING MOTIONS PAGE -6 01 threatening, restraining, coercing, blacklisting, or disciplining an employee if such 02 discrimination is due, in whole or in part, to the employee’s lawful, good faith act done, or 03 perceived by the employer to have been done or about to be done[.]” 29 C.F.R. § 04 1982.102(b)(1). 05 FRSA explicitly incorporates by reference the rules and procedures applicable to 06 Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR-21”) 07 whistleblower cases. 49 U.S.C. § 20109(d)(2)(A) (actions “shall be governed under the rules 08 and procedures set forth in [49 U.S.C. § 42121(b)],” including burdens of proof); Araujo v. New 09 Jersey Trans. Rail Op., Inc., 708 F.3d 152, 157 (3d Cir. 2013). 1 As such, the Court employs a 10 two-part, burden-shifting test in analyzing a FRSA claim. Araujo, 708 F.3d at 157-58 11 (“Unquestionably, AIR-21 burden-shifting applies to cases brought under the FRSA.”). 12 Plaintiffs bear the initial burden of showing, by a preponderance of the evidence, that: 13 (1) they engaged in a protected activity (or were perceived to have engaged or to be about to 14 engage in protected activity); (2) the railroad carrier knew they engaged in the protected activity 15 (or perceived the employees to have engaged or to be about to engage in protected activity); (3) 16 they suffered an adverse action; and (4) the protected activity (or perception thereof) was a 17 contributing factor in the adverse action. 49 U.S.C. § 20109(d)(2)(A)(i) (citing 49 U.S.C. § 18 42121(b)); 29 C.F.R. § 1982.104(e)(1)-(3); Araujo, 708 F.3d at 157. If plaintiffs establish this 19 prima facie claim, the burden shifts to the railroad carrier to demonstrate “by clear and 20 convincing evidence that it would have taken the same adverse action in the absence of the 21 22 1 The Third Circuit’s decision in Araujo is the lone federal appellate decision addressing FRSA subsequent to 2007 amendments adding anti-retaliation measures to the statute. ORDER RE: PENDING MOTIONS PAGE -7 01 complainant’s protected activity.” 29 C.F.R. § 1982.104(e)(4); see also 49 U.S.C. § 20109 02 (d)(2)(A)(i) (citing 49 U.S.C. § 42121(b)); Araujo, 708 F.3d at 157-60. 03 As plaintiffs observe, and as recently found by the Third Circuit, the burden-shifting 04 framework applicable to FRSA cases “is much more protective of plaintiff-employees” and 05 “much easier for a plaintiff to satisfy than the McDonnell Douglas standard[]” applied in 06 employment discrimination cases. Araujo, 708 F.3d at 158-59 (discussing McDonnell 07 Douglas Corp. v. Green, 411 U.S. 792 (1973)). That is, a plaintiff in a FRSA case need only 08 show that protected activity is a “contributory factor” in a retaliatory action, “not the sole or 09 even predominant cause.” Id. at 158-60. As explained in Araujo, the adoption of this 10 framework reflects a purposeful intent to be protective of plaintiff-employees in retaliation 11 cases relating to injury reporting. Id. at 159-60 (recounting history surrounding 2007 12 amendments to FRSA as including consideration of allegations that “‘railroad safety 13 management programs sometimes either subtly or overtly intimidate employees from reporting 14 on-the-job injuries[,]’” “a long history of underreporting incidents and accidents” in the 15 industry, and that “one of the reasons that pressure is put on railroad employees not to report 16 injuries is the compensation system; some railroads base supervisor compensation, in part, on 17 the number of employees under their supervision that report injuries to the Federal railroad 18 Administration.”) 19 Although reserving its right to dispute plaintiffs’ satisfaction of the first and second 20 elements of their prima facie claim, BNSF does not here raise a challenge to plaintiffs’ 21 contentions that they engaged in protected activity or that BNSF had knowledge they engaged 22 in such activity. (Dkt. 57 at 6, n.2.) The Court, as such, focuses only on the disputed third and ORDER RE: PENDING MOTIONS PAGE -8 01 fourth elements of the prima facie claim. 02 1. 03 Plaintiffs argue the preponderance of the evidence demonstrates Holle took the adverse Adverse Action: 04 action of threatening plaintiffs with job abolishment in the January 2010 meeting. See 49 05 U.S.C. § 20109(a)(4) (prohibiting discrimination relating to the reporting of injuries) and 29 06 C.F.R. § 1982.102(b)(1) (defining discrimination as including, but not limited to, threats, 07 intimidation, restraint, coercion, blacklisting, or discipline). Plaintiffs allege Holle addressed 08 the injury record of the gang, deemed it excessive in comparison to other groups, advised the 09 gang would be abolished if any additional injuries occurred, and, after complaints were voiced, 10 responded: “don’t shoot the messenger.” (See, e.g., Dkt. 54-20 (Ex. R).) They point to 11 support for their claim in the form of, inter alia, signed statements from plaintiffs and gang 12 foreman Jose Campos dated in January 2010 (Dkts. 54-20 (Ex. R) and 54-21 (Ex. S)), 13 deposition testimony of plaintiffs, Holle, and non-party witnesses (Exs. B-P at Dkts. 54 & 56), 14 and the position statement submitted to OSHA by BNSF (Dkt. 54-23 (Ex. U)). Plaintiffs also 15 provide and cite to administrative decisions as supporting the conclusion that a threat, standing 16 alone, constitutes an adverse action within the meaning of FRSA. (Dkts. 54-26 (Ex. X) and 17 54-27 (Ex. Y); see also Dkt. 54 at 17-19.) 18 BNSF asserts the existence of genuine issues of material fact as to the statements made 19 by Holle during the meeting in question. It points to the declaration from Holle denying she 20 said “don’t shoot the messenger” or that the group would be abolished if another injury was 21 reported, and depicting her statements in the meeting as addressing issues of safety and injury 22 prevention, directed towards securing further work for the group, and including her speculation ORDER RE: PENDING MOTIONS PAGE -9 01 that groups with better safety records had a competitive advantage in securing new work, as 02 well as her clarification that all injuries must be reported. (Dkt. 58.) BNSF maintains the 03 existence of disputes of fact necessitating a jury determination as to witness credibility and, as 04 such, precluding summary judgment. See, e.g., Nichik v. N.Y.C. Transit Authority, No. 05 10-CV-5260, 2013 U.S. Dist. LEXIS 4692 at *11-12 (E.D.N.Y. Jan. 11, 2013) (finding 06 reasonable jurors could disagree as to whether “disciplinary reinstructions,” among other 07 actions, constituted adverse employment actions under the National Transit Systems Security 08 Act). 09 BNSF denies that the statements attested to by Holle, or the cases relied upon by 10 plaintiffs, establish the existence of any adverse action. (See Dkt. 57 at 8-9.) Also, citing 11 various administrative decisions, BNSF stresses the absence of any “effect on the terms and 12 conditions” of plaintiffs’ employment, noting plaintiffs suffered no actual consequences as a 13 result of the perceived threat. (Id. at 6, 9-10.) 14 The Court first notes the absence of any binding or otherwise persuasive authority cited 15 for the proposition that a prima facie claim under FRSA requires a showing of both an adverse 16 action and a resulting effect on the terms and conditions of employment. Neither the statute, 17 the implementing regulations, nor the single federal appellate decision addressing FRSA’s 18 anti-retaliation provisions, see Araujo, 708 F.3d at 157, reflect or provide any support for the 19 existence of this additional burden. The Court, as such, limits its consideration to the FRSA 20 burdens as set forth above. Further, having considered those burdens, the Court finds this 21 matter inappropriate for a determination on summary judgment. 22 Plaintiffs’ claim rests entirely on statements made by Holle during the morning meeting ORDER RE: PENDING MOTIONS PAGE -10 01 on or about January 14, 2010. Plaintiffs maintain that the evidence – from both their own 02 witnesses and from Holle – clearly demonstrates a threat in violation of FRSA. However, 03 BNSF presents a different depiction of the statements made and not made by Holle during that 04 meeting. Contrary to plaintiffs’ contentions, BNSF’s opposition is not conclusory or 05 otherwise insufficiently supported. Instead, support for BNSF’s position can be found in the 06 portions of Holle’s deposition testimony provided by plaintiffs (Dkt. 56-3 (Ex. L)), Holle’s 07 sworn declaration (Dkt. 58), and the position statement from BNSF (Dkt. 54-23 (Ex. U)). 08 Also, while plaintiffs appear to assert contradictions between Holle’s deposition testimony and 09 her declaration (see Dkt. 60 at 2-3), they fail to sufficiently identify or explain the significance 10 of any such contradictions. 11 At the summary judgment stage, the Court may not weigh the evidence or make 12 credibility determinations, because those are “jury functions, not those of a judge.” Anderson, 13 477 U.S. at 249-50. See also Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 14 1994) (“And because summary judgment is not a paper trial, the district court’s role in deciding 15 the motion is not to sift through the evidence, pondering the nuances and inconsistencies, and 16 decide whom to believe.”) Where reasonable minds could differ on the material facts at issue, 17 summary judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). 18 Also, the Court must view the evidence in the light most favorable to the non-moving party. 19 Matsushita Elec. Indus. Co., 475 U.S. at 587. Therefore, “[i]f, as to any given material fact, 20 evidence produced by the moving party . . . conflicts with evidence produced by the nonmoving 21 party . . . ,” the Court “must assume the truth of the evidence set forth by the nonmoving party 22 with respect to that material fact.” Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) ORDER RE: PENDING MOTIONS PAGE -11 01 (citing Leslie v. Grupo ICA, 198 F.3d 1152, 1157-58 (9th Cir. 1999)). 02 In this case, construing all reasonable inferences in favor of BNSF, the non-moving 03 party, the Court finds genuine issues of material fact in dispute as to the statements made by 04 Holle at the morning meeting and the question of whether her statements constituted a threat in 05 violation of FRSA. These disputes necessitate a jury’s determination as to witness credibility 06 and preclude a ruling on summary judgment. 07 2. 08 The fourth element of a prima facie claim under FRSA requires a showing that the Contributing Factor: 09 protected activity, or perception of that activity, was a contributing factor in the adverse action. 10 BNSF avers an absence of any showing there was a threat, intimidation, or discrimination of 11 some kind. It argues that, because there was no unfavorable action, plaintiffs cannot prove a 12 protected activity contributed to such action. However, as stated above, the Court finds 13 disputes of material fact precluding a determination as to the existence of an adverse action. 14 The Court, as such, declines to reach a determination on the question of whether a protected 15 activity was a contributing factor in any adverse action. 16 B. Determination as to Undisputed Facts 17 Pursuant to Federal Rule of Civil Procedure 56(g), if the Court declines to grant the 18 relief requested by a motion for summary judgment, “it may enter an order stating any material 19 fact – including an item of damages or other relief – that is not genuinely in dispute and treating 20 the fact as established in the case.” Plaintiffs, as an alternative to their request for summary 21 judgment, ask that the Court issue an order establishing as fact any and all issues it finds 22 undisputed. BNSF opposes the request. ORDER RE: PENDING MOTIONS PAGE -12 01 The moving party bears the initial burden of demonstrating the absence of a genuine 02 issue of material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (citing 03 Celotex Corp., 477 U.S. at 323). Plaintiffs here fail to identify any specific facts associated 04 with their request for an order pursuant to Rule 56(g). Given the lack of sufficient specificity, 05 as well as the material factual disputes addressed above, the Court declines to enter an order 06 identifying material facts not genuinely in dispute. 07 08 CONCLUSION For the reasons set forth above, the Court finds disputed issues of material fact 09 precluding a grant of summary judgment and declines to enter an order pursuant to Rule 56(g). 10 Accordingly, plaintiffs’ motions for summary judgment (Dkts. 54 & 55) are herein DENIED. 11 The Clerk shall send a copy of this Order to the parties. 12 DATED this 10th day of March, 2014. 13 14 A 15 Mary Alice Theiler Chief United States Magistrate Judge 16 17 18 19 20 21 22 ORDER RE: PENDING MOTIONS PAGE -13
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