BNSF was granted judgment as a matter of law in a FELA jury trial upon the close of the plaintiff’s case, following three days of testimony in the U.S. District Court for Nebraska before the Hon. John Gerrard. BNSF had previously obtained summary judgment on the plaintiff’s FRSA, § 20109, discrimination claim. For his FELA claim, the plaintiff claimed he was injured when pulling a piece of paper containing coal dumped from the bottom of a coal car in BNSF’s Alliance, Nebraska, mechanical facility and argued that BNSF should have adopted alternative procedures of having all coal dumped outside. The Court entered judgment as a matter of law primarily due to the plaintiff’s admissions on cross-examination. The plaintiff admitted he did not perceive the task was unsafe and that his argument for dumping the coal outside did not arise from a safety concern, but rather from a labor complaint that he should not be required to do the work. The plaintiff failed to present any evidence that the task of cleaning up the coal exposed him to an unreasonable risk of injury. He attempted to rely on the existence of an alternative method to establish negligence, but the Court recognized that he must first make a showing that the method at issue was unsafe.
For his FRSA claim, the plaintiff argued that his termination for dishonesty in his injury report was retaliatory. The Court granted summary judgment, because there was no evidence of any retaliatory intent by the decision-makers in assessing discipline to establish a contributing factor under the FRSA. To explain his dishonesty, the plaintiff claimed that a supervisor influenced the way he reported his injury and made him report it dishonestly. However, the Court recognized that the critical issue was not whether this actually occurred, but whether there was any indication of pretext that the decision-makers had believed the plaintiff’s allegations. Because it was clear the decision-makers did not, the plaintiff failed to show any retaliatory intent and a contributing factor.