Cases & Deals

BNSF wins Eighth Circuit affirmation of dismissal of former employee's whistleblower claims

Client(s) BNSF Railway Company

The Eighth Circuit affirmed a U.S. district court decision completely dismissing Federal Railroad Safety Act ("FRSA") whistleblower claims brought by former employees against Jones Day's client BNSF Railway Company.

The employee claimed he was unlawfully terminated in retaliation for filing an injury report and raising various safety complaints during the course of his career at the railroad. In its motion for summary judgment, BNSF demonstrated that these protected activities played no role in his termination and that he was instead dismissed because BNSF believed he had harassed a coworker and threatened one of his supervisors. The district court agreed and, in a thoroughly reasoned opinion, rejected each of the employee's theories and dismissed his claims in full. The court concluded that "no reasonable jury could find that BNSF's decision to fire [the employee] was motivated by hostility to his protected activity" and, further, that BNSF had proven its affirmative defense under the FRSA by clear and convincing evidence.

The Eighth Circuit affirmed that decision. The decision is one of only a few FRSA cases on the merits in the Circuit Courts of Appeals, and the court’s analysis of how to view animus of lower-level managers not involved in the underlying disciplinary decision is important for railroad employers defending FRSA cases. The opinion is also important because it is the first court to suggest that there may be a limit to a plaintiff’s ability to re-argue the merits of the underlying discipline in an FRSA case.

Gunderson v. BNSF Railway Co., No.: 0:14-cv-00223 (D. Minn., 2015); No. 2011-FRS-00001 (ALI, 2014); No. 15-02905 (8th Cir.)