898 F.3d 852
8th Cir.2018Background
- Hess was a Union Pacific conductor who suffered a work-related injury in 2006, sued under FELA, and settled in 2011; the settlement allowed intermittent medical time off with documentation.
- Union Pacific has a graduated absenteeism policy: First and Second Offenses yield written notices; a Third Offense results in permanent dismissal; offenses expire after 36 months.
- From 2006–2011 Hess had multiple absenteeism charges; Union Pacific terminated him on January 16, 2012, for excessive absenteeism and failure to provide timely medical documentation.
- Hess filed an OSHA complaint under the Federal Railroad Safety Act (FRSA) alleging retaliation for reporting his injury; OSHA found he engaged in protected activity but concluded Union Pacific had legitimate, nonretaliatory reasons for dismissal.
- Hess sued in federal district court asserting FRSA retaliation (49 U.S.C. § 20109(a)(4) and related provisions); the district court granted summary judgment for Union Pacific, finding Hess failed to make a prima facie showing that protected activity was a contributing factor.
- The Eighth Circuit affirmed: it held the record showed legitimate, nondiscriminatory reasons (absenteeism, failure to complete reinstatement steps), and no sufficient evidence of intentional retaliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hess established a prima facie FRSA retaliation claim for reporting a work-related injury | Hess: termination was retaliation for reporting the 2006 injury, pursuing litigation, and returning after settlement | Union Pacific: termination was for repeated unexcused absenteeism and failure to provide required documentation/reinstatement steps | Held: No — Hess failed to show protected activity was a contributing factor; summary judgment for Union Pacific affirmed |
| Whether temporal or circumstantial evidence raised an inference of retaliatory motive | Hess: points to treatment after car accident and disciplinary history as evidence of hostility/retaliation | Union Pacific: disciplinary record and procedural failures explain adverse action; intervening events justify discharge | Held: Insufficient circumstantial evidence of intentional retaliation; absenteeism furnished legitimate reasons |
| Whether Hess stated a claim for retaliation for seeking medical treatment under FRSA §20109(c) | Hess: complaint references FRSA protections for seeking/receiving medical treatment | Union Pacific: complaint does not allege termination for seeking treatment; claim not pleaded | Held: No viable §20109(c) claim in complaint; even if alleged, it would fail for same reasons |
| Whether employer’s non-retaliatory reasons refute causation once prima facie case established | Hess: argued contributory causation from protected activity | Union Pacific: presented substantial evidence of policy violations and noncooperation with reinstatement | Held: Union Pacific’s legitimate, nondiscriminatory reasons negate inference of retaliation |
Key Cases Cited
- Loos v. BNSF Railway Co., 865 F.3d 1106 (8th Cir. 2017) (standard for FRSA retaliation analysis and circumstantial evidence factors)
- Heim v. BNSF Railway Co., 849 F.3d 723 (8th Cir. 2017) (elements of prima facie FRSA retaliation claim)
- Kuduk v. BNSF Railway Co., 768 F.3d 786 (8th Cir. 2014) (contributing-factor causation and de novo review after administrative exhaustion)
- Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011) (summary judgment burden and nonmovant’s obligation to present specific facts)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment framework)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (nonmovant must show more than metaphysical doubt)
- BNSF Railway Co. v. United States Dep’t of Labor, 867 F.3d 942 (8th Cir. 2017) (protected activity that merely initiates events is insufficient without intentional retaliation)
- Gunderson v. BNSF Railway Co., 850 F.3d 962 (8th Cir. 2017) (consider employer’s nonretaliatory reasons in causation analysis)
- Helmig v. Fowler, 828 F.3d 755 (8th Cir. 2016) (summary judgment standards in employment cases)