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Norvell v. BNSF Railway Co.

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

August 21, 2019

JAMES T. NORVELL, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant BNSF Railway Company's (“BNSF”) motion for summary judgment. Dkt. 50. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants in part and denies in part the motion for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On August 29, 2017, Plaintiff James Norvell (“Norvell”) filed a complaint against BNSF asserting a claim for wrongful discharge in violation of public policy and a claim for intentional infliction of emotion distress (commonly referred to as “outrage”). Dkt. 1.

         On October 11, 2017, BNSF filed a motion to dismiss for failure to state a claim. Dkt. 10. On January 2, 2018, the Court denied the motion because Norvell alleged sufficient facts to state claims for relief. Dkt. 17.

         On September 13, 2018, the Washington Supreme Court issued its opinion in Martin v. Gonzaga Univ., 191 Wn.2d 712 (2018), and clarified the standard for claiming discharge in violation of public policy based on whistle-blowing activity.

         On July 9, 2019, BNSF filed a motion for summary judgment. Dkt. 50. On July 29, 2019, Norvell responded. Dkt. 55. On August 2, 2019, BNSF replied and moved to strike some evidence submitted by Norvell.[1] Dkt. 58.

         II. FACTUAL BACKGROUND

         In 2002, BNSF hired Norvell as a Trainman. In 2005, Norvell became an Engineer operating locomotives, a position he held until his termination.

         On June 10, 2015, Norvell was operating a train near Bingen, Washington. Norvell ran through a grade crossing (street intersection) while failing to sound the required whistle signal prior to entering the crossing as required by BNSF's rules. Norvell admitted his violation of the rules, and the parties agreed to a “Level S” 30 Day Record Suspension.

         On the night of July 13, 2015, Norvell was assigned to operate locomotive 2339 (“2339”) in BNSF's Portland, Oregon Terminal. During his shift Norvell was assigned to perform a reverse “shoving” movement of twenty-two cars from Lake Yard into Willbridge Yard. The twenty-two cars included sixteen loaded cars and six empties with a total weight of 2246 tons and a total length of 1290 feet. The distance between Lake Yard and Willbridge Yard was a mile or less with the track on a downhill grade. Prior to performing this twenty-two car shove, Norvell did not request that any air brakes be cut in to any of the cars in the train by his crew, instead relying solely on the locomotive brakes.

         Norvell pulled the cars forward out of Lake Yard going northbound and uphill, before coming to a stop. Norvell began shoving the train in reverse (pushing them backwards) downhill into the Willbridge Yard. Norvell took the train all the way up to ten miles per hour, which was the maximum speed in the yard. When Norvell attempted to stop, the locomotive brakes did not sufficiently slow the train. Norvell reacted and threw the reverser forward against the movement of the train all the way to the maximum thrust, and the train came to an abrupt stop. Norvell admitted he was unaware at that time of Air Brake and Train Handling Rule (“ABTH”) 103.11.5, which states the “[r]everser handle must not be moved to any position other than in the direction of travel while locomotive is moving . . . .” In his deposition, Norvell describes the situation as follows:

Q: So at the time this happened, what did you know was at the end of that track?
A: Well, earlier in the night we had set some loaded hazardous tank cars down on the lead. And we would have crashed into those.
****
Q: Did you have any - was there any other braking applications that you can use at that point?
A: No.
Q: So what did you do next?
A: I threw the reverser.
Q: And what prompted you to do that?
A: I was out of ...

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