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Rossich v. BNSF Railway Co.

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

January 9, 2020

BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.



         THIS MATTER is before the Court on Defendant's Motion for Summary Judgment [Dkt. # 38]. The Court has reviewed the materials filed for and against the motion. Oral argument is unnecessary. For the reasons stated below, the motion is DENIED.

         I. FACTS

         On June 9, 2017, Plaintiff Rossich was working on Job 156 as a Switchman Helper at the BNSF Tacoma East End Yard in Tacoma, Washington, along with Switchman Chase DeGarmo and Engineer Philip Ray. Rossich and the crew were tasked with moving railcars from the east end of the yard to various pre-designated tracks which branched off the lead section of track. Rossich and his crew worked from a list of cars and “cut”[1] the specified cars from the main group and “kick”[2] the cars off the lead track, which moved the cars onto separate tracks using a series of switches on the tracks. Once the cars were separated and moved to the designated tracks, the crew would secure the railcars by tying the handbrakes on the railcars. This switching process was followed because they believed it was more a more efficient to way to switch a large volume of railcars in a short period of time, and it was safe.

         As the crew was in the process of switching railcars, single railcar ATW 84177, on Track 17, was part of their switching task. Rossich was engaged in the process of securing railcars his crew had moved onto nearby tracks in the east end of the Tacoma yard.

         Two Federal Railroad Administration (FRA) inspectors observed the crew as they worked. The Job 156 crew asked East Yard headquarters, “who is sitting in the van watching us?” The response was a warning: “FRA is in the yard, make sure you check your securement.” Based on their observations of the work, the FRA inspectors issued a Verbal Individual Liability (VIL) for failing to secure unattended equipment by applying a hand brake to prevent dangerous movement of the equipment. The FRA also cited BNSF.

         Three days later, BNSF initiated its own investigation, because failing to properly secure unattended equipment also violates BNSF safety rules. Rossich had a previous disciplinary action in his record. The prior February, Rossich had received a “Level S” Violation (Serious) for causing a derailment (and damage) when he failed to properly protect a shoving movement and stop short of a derail. A Level S discipline has a one-year review period (through February 10, 2018), meaning that any violation during the review period could result in further disciplinary action.

         The Collective Bargaining Agreement (CBA) between BNSF and Rossich's union (SMART-TD) required BNSF to notify Rossich, and hold an investigation hearing, prior to discipling him. On July 14, 2017, before that investigation began (and, therefore, before BNSF considered evidence or evaluated potential discipline), Rossich slipped and fell on improperly stored and spilled pebbles of ice melt on a walkway on the job and was injured. BNSF arranged for an ambulance to transport Rossich to the hospital and was therefore immediately aware of the incident. Rossich also submitted to BNSF an injury report three days later.

         BNSF held a hearing about the June incident just weeks later, on August 8, 2017. Every eyewitness testified that the crew (including Rossich) had acted in accordance with their training and BNSF's operational practices in securing the cars as they did. They testified that Rossich was in the process of securing cars, and would have soon arrived at Track 17 to secure the car in question. No. witnesses testified that Rossich had acted inappropriately or violated BNSF rules or established practices. After the investigation hearing, BNSF managers independently reviewed the investigation transcript and exhibits to determine whether Rossich had violated BNSF rules. They found that he had, and on August 22, 2017, BNSF dismissed Rossich. This dismissal was in accordance with BNSF's stated progressive discipline policy, its Policy for Employee Performance Accountability (PEPA).


         Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether an issue of fact exists, the Court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Anderson Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. At 251-52. The moving party bears the initial burden of showing that there is no evidence which supports an element essential to the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, the nonmoving party then must show that there is a genuine issue for trial. Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323-24.


         Rossich claims that BNSF Section 20109 of the Federal Railroad Safety Act (FRSA) by dismissing him in retaliation for reporting a work-related injury. 49 U.S.C. § 20109(a)(4). BNSF moves for summary dismissal of that claim.

         The FRSA requires a plaintiff to prove by a preponderance of the evidence that: (1) he engaged in a protected activity; (2) the actual decisionmaker(s) had knowledge of the protected action; (3) he suffered an unfavorable personnel action; and (4) the protected activity was a contributing factor in the unfavorable action. Rookaird v. BNSF, 908 F.3d 451, 455 (9th Cir. 2018). Regardless of whether a plaintiff can meet those four elements, there is no liability if the employer demonstrates that it “would ...

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