United States District Court, W.D. Washington, Seattle
JEFFREY R. FORD, et al., Plaintiffs,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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)).
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.
Requirements for Claims brought under the Federal Railroad
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.