United States District Court, W.D. Washington, Tacoma
JAMES T. NORVELL, Plaintiff,
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
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.
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.
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.
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.
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. Dkt. 58.
2002, BNSF hired Norvell as a Trainman. In 2005, Norvell
became an Engineer operating locomotives, a position he held
until his termination.
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.
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.
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?
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 ...