RAILROADS: Engineer properly terminated for speeding, not in retaliation for being outspoken advocate of predictive scheduling to alleviate fatigue… Christensen.
BNSF hired Keith Jones as a conductor and engineer in 2006. His employment ended in 2010 but he was rehired in 2/11. He was diagnosed with sleep apnea prior to his first term of employment, and BN was aware of his diagnosis when he was rehired. During the summer of 2016 his sleep deteriorated. He saw Pat Burns of Glacier Headache & Sleep Medicine, who recommended a new sleep study to ensure that his CPAP was operating properly. In response to Jones’s request that Burns support his claim for medical leave, Burns also noted his concern that — as reported by Jones — BN’s scheduling practices may not sufficiently accommodate his sleep needs.
In 9/16 Jones had a conversation with superintendent James Pino, which BN describes as a “coaching and counseling” session and Jones classifies as “a talking to” that made him feel “intimidated.” Nevertheless, it is clear that they talked about Pino’s expectations regarding communications with dispatchers. It was prompted by Pino’s understanding that Jones had made “comments to a Dispatcher in a very argumentative way, and then somebody else on the radio responded with like a cat meow, saying wow, and then Jones replied to that and said yep that’s right, Stone is playing games.” (According to Pino, Jones at times refers to himself as “Stone.”) Pino played the conversation to Jones, explaining his expectation that Whitefish crewmembers be respectful even when dispatchers were frustrated, and Jones agreed to act appropriately.
Early the next month Jones submitted several forms documenting his belief that BN’s scheduling increased crew fatigue to the detriment of safety. He turned in Safety Issue Resolution Process forms on 3 different days, writing that “inaccurate line ups contribute to fatigue issues, creating unsafe working conditions.” He submitted a 4th form stating that his safety concern arose from late modifications to his schedule. On 11/2 he filled out a union fatigue monitor. These forms are submitted to the union, which shares the information with FRA and may be used during negotiations.
In the early morning of 11/5/16 Jones was tired, having been called in at 2:45 a.m., well before his scheduled time of 5:25. He arrived less than 17 hours after his last shift, and he had a sinus infection and was unable to get high-quality sleep. At one point after his train left Whitefish it was traveling 5 mph due to fog and a dispatcher, apparently irritated by the slow progress, stated to Jones, “You guys are unbelievable.” The dispatcher notified Jones that the train would be meeting multiple trains at Belton. Jones replied, “You might as well keep us here all night.” The train reached Belton just before 5 a.m. Jones informed the dispatcher that he would take a nap — permitted under BN policy — while waiting for the other trains to pass. When his train was cleared to leave the Belton siding, it resumed east to Essex, where it was again sidelined to allow oncoming trains to pass. Jones informed a dispatcher that he was tired, explained why, and said he would like to take “a nap or two.” The dispatcher informed head of dispatch Chris Lucero of the discussion. Lucero contacted Pino and they decided that Jones and his conductor should be ordered back to Whitefish and replaced by another crew. The train was delayed while the swap occurred.
Jones filled out another fatigue monitor 11/6. Pino called him into his office along with Jones’s union chairman Brent Wetsch and a local chairman from the SMART-TD union. Pino played recordings of the conversations between Jones and the dispatchers and initiated a discussion about whether a disciplinary investigation should be initiated. According to Wetsch, “Pino was the only individual present at the meeting who thought that Jones violated any rules or that a disciplinary investigation should be launched into Jones’s conduct.” On 11/8/16 BN notified Jones of an imminent investigation “for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged discourteous and quarrelsome behavior including alleged intent to cause train delay” at Whitefish. The investigation was held 1/11/17 after Jones filled out 3 additional fatigue monitors and one SIRP form. Following the hearing, BN imposed a “Level S” (serious) discipline.
On 12/5/16 Jones informed BN that he was not sleeping well and did not feel that he could safely perform his job without seeking medical care. The next day BN wrote him: “You have been removed from service pending an assessment of your fitness for duty. In our conversation you have stated that you do not feel safe to work as you don’t feel that you are getting proper sleep.” Before returning he would need to submit results of a sleep study and 30 days of downloaded information from his CPAP. His CPAP was titrated as a result of the study and his doctor released him for work with no restrictions 1/4/17. He returned, but filled out 4 fatigue monitors and 3 SIRPs in late January and February.
According to Pino, the conductor stated 5/10/17 that he warned Jones of an upcoming 25 mph restriction before leaving to use the restroom, and that when he came out he noted that the speedometer was at 31-32 and he asked Jones if they were in the restricted location and Jones replied, “I don’t know,” and that he began to slow the train. When the conductor asked how fast they had been going, Jones allegedly said, “Don’t worry, we did not go federal.” Jones disputes that he knew of the restriction before entering the zone. The employee who reviewed braking records verified that “heavy dynamic braking” was applied at 36 mph in an effort to slow to the required 25 mph.” BN notified FRA of an event involving speeds of 10+ mph over the limit, resulting in an automatic 30-day suspension of Jones’s engineer certification. The conductor also received a 30-day suspension but he was allowed to return. Jones disputes the determination that the speed was greater than 10 mph over the limit. A formal investigation by Rick Stauffer, Director of Administration for Montana, resulted in a 2nd Level S discipline. Brian Clunn, an executive in BN’s headquarters, reviewed the formal investigation regarding the 5/10/17 event and — because it was Jones’s 2nd Level S and because of the perceived seriousness of the violation — recommended dismissal. Montana manager Jon Gabriel adopted the recommendation. Jones was terminated 7/17/17.
2 other events which do not fit nearly into the above chronology are relevant. In 2014 then-GM Dan Fransen held a town hall for employees at which Jones made a comment about the lack of predictive scheduling and its effect on crew fatigue — the same issue raised in the SIRPs submitted throughout 2016-17. Jones claims that Fransen was extremely upset by his comment. In 6/16, Jones reported an unsanitary bathroom.
Jones sued in 8/18 alleging that his termination was unlawful under the Federal Railroad Safety Act — that BN took adverse actions when it investigated and disciplined him in 1/17 and when it terminated him in 7/17, and that he was fired for reporting conditions causing crew fatigue, seeking treatment for and notifying BN of his sleep apnea, and reporting an unsanitary bathroom. BN requests summary judgment. Jones concedes that he was terminated for having 2 Level-S disciplines, but contends that they were motivated by his “legitimate safety complaints” as to how BN’s policies impacted fatigue. At heart, his claim is that he was an outspoken advocate for predictive scheduling and that BN disciplined and terminated him for that advocacy. He also argues — less vigorously — that he was disciplined for reporting unsanitary bathroom conditions.
I. Jones’s fatigue-related reports.
BN argues that Jones did not report a hazardous safety or security condition because federal law sets the minimum standard for safety and BN met that standard and that his fatigue is largely attributable to his apnea which is not a “hazardous condition” under the FRSA. It contends that he has not established a prima facie case of retaliation, and that it would have terminated him even had he not engaged in protected activity.
The Court disagrees with BN’s theories that he did not engage in protected activity. Other statutory schemes do not preclude this suit, and his complaints are protected under FRSA to the degree that they relate to BN’s scheduling practices. But it agrees with BN on the other points, either of which would be sufficient. BN is entitled to summary judgment because the “circumstances are [not sufficient] to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. Moreover, given the decisionmakers’ lack of knowledge of his reports, BN has shown “by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of [the protected activity].” 49 USC 42121(b)(2)(B)(ii).
BN contends that Jones’s fatigue-related complaints are not protected under FRSA because its policies & procedures were consistent with the Hours of Service Act and the Federal Rail Safety Improvement Act. However, the fact that its scheduling practices were allowed under federal law does not mean that Jones was not disciplined for “reporting, in good faith, a hazardous safety or security condition.” 49 USC 20109(b)(A).
B. Hazardous safety conditions.
BN argues that Jones did not engage in protected activity when he filled out safety reports regarding its scheduling practices and fatigue because his own “personal fatigue and non-work-related sleep apnea” are not “hazardous safety conditions” within the meaning of FRSA. The Court agrees that FRSA is indifferent to reports of allegedly unsafe conditions that fall outside a railroad’s control. Hunter (3d Cir. 2016; Williams (SD Miss. 2017) (“Reading the statute to include self-reported illnesses as hazardous safety conditions would expand protected activity to include any ailment, including drunkenness, fatigue, or even personal incompetence, that an employee believes might affect his or her ability to perform the essential functions of the job.”). Thus Jones cannot succeed to the degree that he reported that his apnea made him too tired to safely work. He cannot claim that his conversations with dispatch 11/5/16 were reports of a hazardous safety condition when the hazard was his exhaustion, particularly when that exhaustion was due in large part to not only his apnea but a sinus infection. The Court agrees that BN’s scheduling practices may have worsened his fatigue, but it does not logically follow that he reported its scheduling practices by asserting that he was tired and wanted to nap. However, some of his reports targeted BN’s scheduling practices. He is protected under FRSA for his submission of SIRPs requesting predictive scheduling and discussing fatigue.
C. Prima facie case.
Although Jones did engage in protected activity, the “circumstances [are not] sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. It is true that there is a temporal connection between his altercations with dispatchers 11/5/16 and the investigation, but there is no reason BN should have viewed these conversations as reports of “a hazardous safety or security condition” given that his personal exhaustion is not by itself a safety condition as contemplated by FRSA. He claims that the first dispatcher was openly hostile and that he merely asserted his right to nap while the train was waiting for the tracks, consistent with BN policy. This may be true, but it does not demonstrate retaliation. A railroad may take action against an employee that could conceivably be wrongful under other legal schemes without running aground of FRSA. Koziara (7th Cir. 2016) (FRSA “does not punish railroads for disciplining (including firing) employees unless the discipline is retaliatory.”). There is a factual dispute as to whether Jones was “discourteous and quarrelsome” and acted with the “intent to cause train delay” in violation of BN policy, but the dispute is not material. If there is an inference to be drawn from the crew replacement, it is that BN was legitimately concerned about Jones’s ability to safely operate the train. In any event, the soundness of that decision is not at issue.
Jones argues that retaliation should be inferred from a comment he made in the 2014 town hall when he raised his concern as to the effect of erratic schedules on fatigue, pointing to a declaration from Wetsch that “this event was likely the genesis of BNSF’s retaliatory conduct toward Jones.” He states that Fransen “took Jones out of the safety meeting to chastise him and was openly hostile.” Wetsch’s declaration is the strongest support for Jones’s retaliation claim, but it is not strong enough. There is not even temporal proximity between the 2014 meeting and 2016 disciplinary actions, nor does the record support a finding that Stauffer, the decisionmaker as to Jones’s 1st Level S, was aware of the meeting. And Fransen left BN in 3/17, months before the 2nd Level S action. And even Jones does not argue that the 2nd Level S was not serious enough to warrant a 30-day suspension. He claims that BN may not have done everything in its power to ensure that the speeding was significant enough to mandate its report to regulators. His argument stemming from the speeding is that he would not have been fired had he not already had the 1st Level S on his record. However, because a jury could not conclude that the 1st action was retaliatory, he has not established prima face retaliation under FRSA.
D. Termination in the absence of protected activity.
Summary judgment is alternatively appropriate because the evidence shows that Jones would have been terminated even had he not been an advocate for predictive scheduling. Clunn recommended dismissal and Gabriel adopted it. Nothing in the record supports a finding that they were aware of — let alone relied on — Jones’s reports regarding fatigue.
Jones argues that data regarding similarly situated employees defeats summary judgment on this point. He points to “BNSF comparator data regarding employees charged with violating the same or similar rules as Jones that would have mandated a Level-S incident or review of BNSF comparator data identifying whether or not BNSF employees who received 2 or more Level-S violations were dismissed.” However, where the decisionmakers were unaware of the employee’s safety reports, comparator data is unnecessary and irrelevant. BN does not need to “prove similar or identical issues received the same discipline” because it has proven that Jones’s safety reports did not factor into the decisions to discipline him.
II. Unsanitary bathroom.
Jones also alleges that BN retaliated against him for “reporting a hazardous safety condition of an unsanitary bathroom on a locomotive in or around June 2016.” Assuming that this qualifies as a protected activity under FRSA, he has not established prima facie retaliation. To succeed at step 1 under FRSA, an employee must show that “the circumstances were sufficient to raise the inference that the protected activity (or perception thereof) was a contributing factor in the adverse action.” 29 CFR 1982.104. No such inference is logical here. Jones claims only that a juror could conclude that BN was made aware of the unsanitary bathroom when he reported it to Pino and management employee Brian Scheffield. However, there is no reason to make the jump from them hearing his report and Stauffer’s disciplinary actions 9 months later or Clunn’s and Gabriel’s 6 months after that.
Because BN is entitled to summary judgment on Jones’s substantive claims, his claim for punitives necessarily fails.
BN’s motion for summary judgment is granted. All other motions are denied as moot.
Jones v. BNSF, 44 MFR 224, 4/29/20.
William Jungbauer (Yaeger & Jungbauer Barristers), St. Paul, for Jones; Joey Breitenbach, Michelle Friend & Ben Rechtfertig (Hedger Friend), Billings, for BN.
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