Eighth Circuit Affirms Dismissal in Retaliation Case

The U.S. Court of Appeals for the Eighth Circuit affirmed the entry of summary judgment in favor of the railroad on the employee’s claim under the Federal Railroad Safety Act (“FRSA”), 49 U.S.C. § 20109. The employee, who was disciplined for a violation of the railroad’s safety rules, claimed he was disciplined because he reported a work-related injury, a protected activity under the FRSA. The U.S. District Court for Nebraska held that the railroad did not retaliate against the employee because no evidence suggested his injury report was a contributing factor to his discipline.

In reliance on Kuduk v. BNSF Railway Company, 768 F.3d 786 (8th Cir. 2014), the Heim court reaffirmed that to establish a prima facie case of FRSA retaliation, the employee must show the railroad intentionally retaliated against the employee for engaging in a protected activity. The employee argued the injury report and his discipline were “inextricably intertwined” since the railroad would not have learned about the rule violation absent his report of personal injury. The court rejected this argument finding the employee “must demonstrate more than a mere factual connection between his injury report and his discipline to establish a prima facie case under the contributing-factor standard.” While the employee was not required to conclusively demonstrate a retaliatory motive, he was required to show the discipline was at least partly based on intentional retaliation.

The Court rejected the employee’s argument that circumstantial evidence was sufficient to show intentional retaliation. The evidence showed he was encouraged to report his injury, and the proximity between the injury report and discipline, without more, was insufficient to make a retaliation claim. The employee’s claim that he was treated differently because he sustained an injury failed to show a retaliatory motive because there was no evidence that the railroad was aware of other employees engaging in the same misconduct as the employee. The existence of the railroad’s compensation program was also insufficient to support the employee’s claim. Because the employee failed to offer specific evidence of an improper retaliatory motive by the railroad, summary judgment in favor of the railroad was proper.

On October 2, 2017, the U.S. Supreme Court denied plaintiff’s petition of a writ of certiorari upholding the Eighth Circuit’s decision.

Heim v. BNSF Railway Company, 849 F.3d 723 (8th Cir. 2017)., cert. denied (2017).