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Ford v. Bnsf Railway Co.

United States District Court, W.D. Washington, Seattle

December 8, 2017

JEFFREY R. FORD, et al., Plaintiffs,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.



         This matter comes before the Court on Defendant BNSF Railway Company (“BNSF”)'s Motion for Summary Judgment. Dkt. #22. BNSF argues, inter alia, that Plaintiffs Jeffrey Ford, Donald Bigham, and Geoffrey Mirelowitz cannot establish a prima facie case under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109, the sole basis for this action. Plaintiffs oppose this Motion. Dkt. #24. For the reasons set forth below, the Court GRANTS BNSF's Motion and DISMISSES all claims in this case.

         I. BACKGROUND

         This case concerns the termination of employment of Plaintiffs Jeffrey Ford, Donald Bigham, and Geoffrey Mirelowitz with BNSF. Although the parties have submitted extensive facts about Plaintiffs' employment and about BNSF's practices generally, the Court is only concerned with whether or not Plaintiffs can present evidence that they were terminated for protected activity in violation of the FRSA.

         Plaintiffs were fired on August 24, 2012. Dkt. #23-15. They had been suspended pending an investigation into events occurring earlier in the year. Id.; see also Dkt #23-14 (setting forth procedure for being withheld from service). BNSF stated that the terminations were for violating certain company rules related to clocking in and out, among other related rules. Dkt. #23-15.

         On December 4, 2012, Plaintiffs filed complaints with the Occupational Safety & Health Administration (“OSHA”) under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. Dkt. #23-16. Plaintiffs essentially argued that they were whistleblowers, “fired in retaliation for refusing to authorize the use of safety-related equipment… [and] for reporting in good faith a hazardous safety condition… about unsafe switches.” Id. These complaints did not further explain when and where Plaintiffs refused to authorize the use of safety-related equipment, or when and where they reported hazardous safety conditions.

         On March 31, 2016, OSHA issued Secretary's Findings, concluding that “there is no reasonable cause to believe that [BNSF] violated the FRSA, ” “insufficient evidence to establish reasonable cause that a violation had occurred, ” and “[t]he evidence failed to show a nexus between the protected activities and the adverse actions.” Dkt. #26-1. Plaintiffs objected to OSHA's findings and requested a hearing before an Administrative Law Judge (“ALJ”), which was later dismissed without prejudice. Dkt. #23-18. On August 31, 2016, plaintiffs filed separate complaints with this Court pursuant to 49 U.S.C. § 20109(d)(3). See Dkt. #1. These were consolidated into this action on January 20, 2017. Dkt. #12. BNSF now moves for summary judgment dismissal of all Plaintiffs' claims. Dkt. #22.


         A. Legal Standard

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of the matter, but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir. 1992)).

         On a motion for summary judgment, the court views the evidence and draws inferences in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v. U.S. Dep't of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable inferences in favor of the non-moving party. See O'Melveny & Meyers, 969 F.2d at 747, rev'd on other grounds, 512 U.S. 79 (1994). However, the nonmoving party must make a “sufficient showing on an essential element of her case with respect to which she has the burden of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 251.

         B. Requirements for Claims brought under the Federal Railroad Safety Act

         The FRSA serves “to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. § 20101. Pursuant to the FRSA, a railroad carrier, such as BNSF, may not “discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, ” to an employee's engagement in a protected activity. 49 U.S.C. § 20109(a). To state a claim of retaliation under the FRSA, a plaintiff bears the initial burden of pleading sufficient facts that demonstrate “(1) he engaged in a protected activity; (2) the employer knew he engaged in the allegedly protected activity; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable personnel action.” Rookaird v. BNSF Ry. Co., No. C14-176RSL, 2015 WL 6626069, at *2 (W.D. Wash. Oct. 29, 2015); Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 157 (3d Cir. 2013); Heim v. BNSF Ry. Co., 849 F.3d 723, 726-27 (8th Cir. 2017). If the plaintiff establishes this prima facie case, the burden shifts to the railroad carrier to demonstrate “by clear and convincing evidence that [it] would have taken the same unfavorable personnel action in the absence of the protected activity.” Rookaird, 2015 WL 6626069 at *2.

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