RAILROADS: Engineer’s claim that he was terminated in retaliation for reports of crew fatigue, lack of PTC on train that was in a red block incident, and failure to adequately train conductors rejected on summary judgment… Christensen.
William Vasquez began as a BNSF engineer in 1995 in Whitefish. He was terminated in 1/17 and reinstated in 11/19. In the summer of 2016 he signed a “low performance waiver” acknowledging acceptance of “Level S” (serious) discipline for logging low hours which included 30 days suspension and 3 years probation. His supervisor James Pino suggested that he would not be terminated even if he were to commit a serious offense after signing the waiver, including if he went through an absolute red signal, which requires the train to be stopped before reaching the signal. He reported for work in the early morning of 11/28/16 in Hauser, Idaho. Working along conductor Doug Malley, he noted that they should go no faster than 45 mph due to the cargo load. However, the Positive Train Control was set to 55. Resetting it required coordination with dispatch, and Malley — who as conductor was charged with communicating with the dispatcher — indicated that they were having trouble setting the system up. The dispatcher instructed Malley that they could leave without engaging PTC. Although Malley initially agreed, Vasquez was concerned, and they attempted to reengage dispatch several times without success. The train left the yard without PTC engaged at 5:25 a.m. As it approached West Libby early in the afternoon Malley informed Vasquez of a yellow signal, which Vasquez knew meant that the train should be slowed to 30 mph and a red signal may be approaching. BN asserts — and Vasquez disputes — that there was a red signal at the East Libby switch. They passed that signal and continued 2,030 feet before stopping at the Libby Depot. The failure to stop before the red signal triggered an investigation into Vasquez and Malley, as well as Vasquez’s automatic decertification as an engineer by FRA. During the investigation, Vasquez stated that the red block incident would not have occurred had the PTC been engaged which “would have warned me that that signal was coming” or had he been working with “an experienced, qualified conductor” who “would have said something like, red block, red block, you know, or he would have dumped it, or you know, there would have been something there that would have happened,” adding:
The problem is we’re getting so many new guys out here that I’m familiar with the territory and don’t have, I’m basically up there, not only me, other engineers and the way they’ve got these pools running, people are running this way, going to Spokane and back, they haven’t even been there that much, and basically I’m having to train them as I’m doing my own job, so I’m doing multiple, multiple things up there, but what, guys that aren’t qualified or experienced.
Based in part on Vasquez’s previous conversation with Pino regarding the effect of his earlier Level S discipline, BN offered a waiver, which his union had previously requested. Vasquez testified at his deposition that he understood that he would not be terminated if he signed the waiver, but had nonetheless refused to do so. He was terminated 1/27/17 for his 2nd Level S. The Public Law Board found that less discipline than termination was appropriate, and he was reinstated 11/19/19 without pay for his time out of service. He sued alleging retaliation under the FRSA, which protects employees from adverse employment actions triggered by good faith reports of hazardous safety conditions. He claims that he was not terminated for the 2nd Level S but for his reports of crew fatigue, lack of PTC on the train in the red block incident, and failure to adequately train conductors. BN requests summary judgment as to all 3 reports.
In the fall of 2016 Vasquez submitted several “wage claim forms” after being called into work early. They are the means by which crewmembers request reclassification of their hours in order to increase their pay. In his comments, his strongest complaint was that BN did “not manage the pool properly” and “back to backed Whitefish crew out of Whitefish to protect Havre jobs.” He did not claim to have been fatigued on these trips, and he did not state that BN’s alleged mismanagement of scheduling caused an unsafe condition. In his Complaint, he did not allege that he was terminated for fatigue reports, nor did he make such an allegation to OSHA in the mandatory administrative proceeding. Indeed, the basis for this claim appears to have arisen nearly a year after he filed this suit, during his 7/24/19 deposition, when he gave his attorney the wage claim forms which he retrieved from a box in his truck. BN argues that it is entitled to summary judgment regarding Vasquez’s fatigue complaints because (1) he failed to exhaust administrative remedies, (2) the decisionmakers who terminated him were not aware of his complaints, (3) he did not engage in a protected activity, and (4) his allegedly protected activities did not contribute to BN’s decision to terminate him. BN is entitled to summary judgment under (1) and (3), either of which would be sufficient, and thus the Court does not reach the other 2 theories.
Failure to exhaust.
Given that the parties were unaware of the basis for Vasquez’s claim regarding crew fatigue prior to 7/19, there can be no dispute that his fatigue-related FRSA claim was not presented to OSHA. The question that remains is legal: must he exhaust administrative remedies as to every alleged protected activity prior to bringing an FRSA action in Federal Court? The Court does not decide that, as a matter of law, a plaintiff can never raise a new theory of retaliation in an FRSA action. However, in this case Vasquez’s failure to bring his safety related claim to OSHA bars its consideration now. Neither OSHA nor BN was “placed on notice that it was required to investigate” BN’s alleged retaliation for his safety complaint. Windom (M.D. Ga. 2013); Bozeman (N.D. Ga. 2006).
Vasquez did not “report, in good faith, a hazardous safety condition” when he submitted wage claim forms requesting higher pay. 49 USC 20109(b)(A). The Court rejects BN’s theory that FRSA is indifferent to complaints regarding crew fatigue. As addressed at length in Jones v. BNSF (44 MFR 224), federal law does not preclude Vasquez’s retaliation claim when the other statutory schemes governing fatigue — the Hours of Service Act and the Federal Rail Safety Improvement Act — complement rather than override FRSA. Additionally, a request for a change in BN scheduling policy due to fatigue could give rise to a viable claim under FRSA. Here, however, there was no such request. Unlike Jones, Vasquez did not submit a form dedicated to alleging safety issues. He submitted wage claim forms requesting additional pay consistent with the CBA. While he did claim to have been called in early and out of rotation, he never claimed to have been fatigued or raised any safety concerns. No reasonable factfinder could conclude that he reported a hazardous safety condition when he asked for additional pay and neither requested a change in BN policy to protect safety nor suggested that he or any other crewmember had been fatigued.
Vasquez claims that he was terminated in retaliation for a complaint regarding PTC on his train. However, he never made a complaint, but merely attempted to reset the PTC. His attempt through Malley to contact dispatch cannot conceivably be understood as a safety complaint.
Vasquez contends that he was terminated in retaliation for comments during the red block investigation — that conductors had not been adequately trained and he had to train them as he was doing his own job. However, he was not requesting BN to change its policies to improve safety, but suggesting that his workload prevented him from adequately performing his job. Moreover, the investigation was already underway when he made self-serving statements explaining why the event triggering discipline occurred. Nothing suggests that these statements moved the needle one way or the other, particularly in light of BN’s proffered waiver.
Because BN is entitled to summary judgment on Vasquez’s substantive claims, his claim for punitives necessarily fails.
BN’s motion for summary judgment is granted.
Vasquez v. BNSF, 44 MFR 225, 5/29/20.
William Jungbauer (Yaeger & Jungbauer Barristers), St. Paul, for Vasquez; Joey Breitenbach, Michelle Friend & Ben Rechtfertig (Hedger Friend), Billings, for BN.
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