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Molder v. BNSF Railway Co.

United States District Court, E.D. Washington

August 28, 2019

BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.



         BEFORE THE COURT is Defendant BNSF Railway Company's Motion for Summary Judgment (ECF No. 32). The Motion was submitted without a request for oral argument. The Court has reviewed the files and the record, and is fully informed. For the reasons discussed below, the Motion for Summary Judgment (ECF No. 32) is granted.


         A movant is entitled to summary judgment if the movant demonstrates “there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. The moving party bears the “burden of establishing the nonexistence of a ‘genuine issue.'” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). “This burden has two distinct components: an initial burden of production, which shifts to the nonmoving party if satisfied by the moving party; and an ultimate burden of persuasion, which always remains on the moving party.” Id.

         In deciding, the court may only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). As such, the nonmoving party may not defeat a properly supported motion with mere allegations or denials in the pleadings. Liberty Lobby, 477 U.S. at 248. At this stage, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor.” Id. at 255. However, the “mere existence of a scintilla of evidence” will not defeat summary judgment. Id. at 252.

         Per Rule 56(c), the parties must support assertions by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” The court is not obligated “to scour the record in search of a genuine issue of triable fact[;]” rather, the nonmoving party must “identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (brackets in original) (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). Summary judgment will thus be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         FACTS [1]

         This case arises out of Plaintiff Lawrence Darren Molder's employment with Defendant BNSF. In short, Plaintiff asserts (1) BNSF terminated him out of retaliation for Plaintiff reporting injuries in 2009 and 2017, in violation of the Federal Railroad Safety Act (“FRSA”), and (2) BNSF is liable under the Federal Employer Liability Act (“FELA”) for negligently causing the 2017 injury. ECF No. 1 at 5-7, ¶¶ 19-29.

         1. Plaintiff begins employment; 2009 injury, suit, and settlement

         Plaintiff began his employment with BNSF in 2003 as a laborer on a “tie gang.” ECF No. 32 at 2. Sometime in 2009, Plaintiff suffered a work-related injury involving a rail puller and filed a FELA lawsuit three years later in October 2012. ECF Nos. 1 at 2-3, ¶¶ 7-8; 32 at 2. After more than four years of litigation, BNSF Claims Representative Josh Gore agreed to a settlement amount with Plaintiff's counsel on January 13, 2017. ECF No. 32-9 at 2, ¶ 5. Thereafter, Gore sent the proposed settlement to Plaintiff's counsel. ECF No. 32-9 at 2, ¶ 6. Plaintiff, through counsel, sent BNSF a signed release on March 17, 2017. ECF No. 32-9 at 2, ¶ 6; 76 at 2, ¶ 3.

         2. BNSF discovers workplace violations

         Meanwhile, Plaintiff continued to work at BNSF throughout litigation. By 2016, Plaintiff worked as a Foreman on a three-person “surfacing crew.” ECF No. 32 at 3. On November 21, 2016, Hal Lewandoski, [2] BNSF Manager of Roadway Planning, was inspecting the Columbia River subdivision when he saw Plaintiff's crew equipment was not being used. ECF No. 32-8 at 50. Lewandoski asked a nearby track inspector where Plaintiff's crew was, but the inspector said he did not know. ECF No. 32-8 at 50. Lewandoski then “went up to where there was supposed to be work being performed [and] asked the foreman [of a different crew] for the section [] where the surfacing crew was.” ECF No. 32-8 at 50-51. According to Lewandoski, “[t]hey kind of laughed it off, and [told Lewandoski that Plaintiff's crew] looked at it and said they didn't think they could repair it and they had other things to do.” ECF No. 32-8 at 50. Lewandoski “made the comment about [there] being a lot of track and time” - meaning work could be performed at that time - and “they just laughed and said, well, this is pretty normal. They disappear around noon every day.”[3] ECF No. 32-8 at 50. Lewandoski tried to contact Plaintiff, but he could not reach him. ECF No. 32-8 at 53.

         Lewandoski talked with his boss at the time, David Thornton, and they “decided to look at the GPS log to see how they were spending their day.” ECF No. 32-8 at 50-51. The GPS information for the surfacing crew truck did not “match[] up” with Plaintiff's reported time for work-“the vehicle was off territory prior to end of shift. And the times paid did not match the vehicle's location.” ECF No. 32-8 at 52. For example, for November 21, 2016, Plaintiff reported that he worked a full eight hours surfacing track, plus 30 minutes of unauthorized overtime.[4] However, the GPS information showed Plaintiff's work truck was at his home by 2:11 p.m.-before his shift ended (3:00 p.m.). ECF No. 32-1 at 5, ¶ 20; see ECF No. 43 at 20, ¶ 20 (Plaintiff not disputing the proposed fact). Plaintiff argues that he was getting fuel, ECF No. 43 at 3, but his fuel card transactions demonstrate otherwise, ECF No. 71 at 7, and this still does not explain why his vehicle was at his home before his shift ended. A review of additional reported time demonstrated that Plaintiff “had repeatedly left work before the end of his scheduled shift and claimed paid time (including overtime) while at home or at a hotel.” ECF No. 43 at 20, ¶ 22.

         Lewandoski thought “it looked like [Plaintiff] was paying himself excessively outside of what the GPS logs for the truck state.” ECF No. 32-8 at 55. Lewandowski turned over the information “to the managers who were subsequently involved in the investigation and disciplinary decision[;]” Lewandoski was no longer involved. ECF No. 77 at 2-3, ¶ 5.

         3. BNSF investigation

         BNSF has a disciplinary policy known as “PEPA” (Policy for Employee Performance Accountability), which lists three levels of discipline: Standard, Serious, and Stand-Alone Dismissible. ECF No. 43 at 23, ¶ 30. “Stand-Alone Dismissible” conduct includes “Theft or any other fraudulent act that may be evidenced by . . . taking of BNSF monies or property not due” and “Dishonesty about any job-related subject[.]” ECF No. 43 at 23, ¶ 31. When an employee is subject to termination, BNSF holds an investigation hearing. ECF No. 32-3 at 2, ¶ 5. After BNSF holds an investigation hearing, a member of the “PEPA Team” makes a recommendation after reviewing the transcript of the investigation and the hearing exhibits. ECF No. 32-3 at 2, ¶ 5.

         BNSF initiated an investigation and sent Plaintiff a notice (dated December 9, 2016) to attend an investigation hearing; the notices state: “An investigation has been scheduled . . . for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged violations that occurred on or about August 15 to November 21, 2016 . . . . Alleged violations include, but are not limited to, leaving your assignment and paying yourself for being on assignment without proper authority and dishonesty for paying yourself for time you were not working.” ECF No. 32-5 at 2. After several mutually agreed postponements, ECF No. 32-5 at 3-8, an investigation hearing was held on February 15, 2017, to determine if a violation occurred; Plaintiff was provided with a union representative at the hearing. ECF No. 43 at 21, ¶ 24.

         PEPA Team member Brian Clunn was assigned to Plaintiff's case and conducted a review of the investigation materials. Clunn determined that the charges were proven, and recommended Plaintiff be terminated because Plaintiff “committed stand-alone dismissible rule violation”, including “13 separate occasions between August 15, 206 and November 21, 2016 [where Plaintiff] falsely claimed overtime[.]” ECF No. 43 at 25-26, ¶ 33; ECF No. 32-5 at 2. General Director Line Maintenance David Thornton ...

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