BNSF defeats former employee's appeal of summary judgment order in whistleblower case
Clients BNSF Railway Company
On August 3, 2017, the Eighth Circuit affirmed an order granting summary judgment to Jones Day client BNSF Railway Company ("BNSF") and dismissing the Federal Railroad Safety Act ("FRSA") retaliation claims of a former employee. The plaintiff argued that BNSF dismissed him in retaliation for making safety complaints, reporting an on-duty injury, and testifying at another employee's FRSA trial. The Eighth Circuit, however, found that these alleged protected activities were not contributing factors in the plaintiff's dismissal.
In particular, the court rejected the plaintiff's argument that he should have been permitted to lay off of work whenever he experienced "flare-ups" resulting from a workplace injury he sustained. The court found that the plaintiff could not prove BNSF acted with a retaliatory motive by denying this leave, because he did not provide the medical documentation to support his request until after he was already in violation of BNSF's attendance guidelines.
The court found the plaintiff's remaining arguments similarly failed to prove that BNSF acted with a retaliatory motive, observing that an allegedly hostile comment from a supervisor could not meet the burden of proof because there was no evidence to support the conclusion that the statement reflected BNSF's intent generally or influenced the ultimate decision maker.
Loos v. BNSF Railway Co., Case No. 15-03355 (8th Cir. Aug 3, 2017)